District Court New South Wales Medium Neutral Citation: Jay v Baker; State of NSW (TAFE NSW Previously TAFE Commission) v Baker [2018] NSWDC 270 Hearing dates: 13-15 June 2017; 4-5 December 2017; 23-24 April 2018; 26-27 April 2018; 30 April 2018-1 May 2018; 17 August 2018; 31 August 2018 (last written submissions received) Date of orders: 25 September 2018 Decision date: 25 September 2018 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) Judgment for Ms Jay against the defendant in the 2015 proceedings. (2) The defendant in the 2015 proceedings is to pay the plaintiff's costs of those proceedings as agreed or assessed. (3) Judgment for the plaintiff in the 2016 proceedings against the defendants. (4) The defendants in the 2016 proceedings are to pay the plaintiff's costs in those proceedings as agreed or assessed. (5) Liberty to the parties to apply to vary the costs orders in paragraphs 2 and 4 above within 14 days. (6) The parties in both proceedings are to bring in agreed Short Minutes of Order within 14 days reflecting the reasons for decision. In the event that agreement cannot be reached, the parties should approach the Associate to Dicker DCJ to have the matter listed for further directions. (7) The exhibits are to be retained until further order. Catchwords: Torts-negligence-motor vehicle accident - whether plaintiff pedestrian was negligently struck by passing vehicle driven by defendant - blameless accident provisions - extent of injuries - gratuitous care issues - indemnity claimed by employer - whether psychiatric illness caused by accident - previous medical condition - whether hip injury caused by accident – whether accident connected to plaintiff's employment – whether closed period appropriate for loss of future earning capacity – relevance of apparent improvement in plaintiff's physical condition Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Motor Accidents Compensation Act 1999 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: AAI Ltd v State Insurance Regulatory Authority of NSW [2016] NSWCA 368 Allianz Australia Insurance Ltd v Serria Girgis [2011] NSWSC 1424 Afoa v McBride [2017] NSWCA 323 Ausgrid v Settree Pty Ltd [2015] NSWCA 407 Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Axiak v Ingram [2012] NSWCA 311 Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324 Bird v Commonwealth (1988) 165 CLR 1; [1988] HCA 23 Boateng v Dharamdas [2016] NSWCA 183 Calcagno v Dent [2015] NSWDC 308 Curtis v Harden Shire Council [2014] NSWCA 314 Davis v Swift [2014] NSWCA 458 Dent v Calcagno [2016] NSWCA 289 Grant v Royal Rehabilitation Centre Sydney (1999) 47 NSWLR 263; [1999] NSWCA 250 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; [1992] HCA 21 Hyjer v Lopes [2018] NSWDC 8 Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59 Malec v Hutton (1990) 169 CLR 638; [1990] HCA 20 Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 Mason v Demasi [2009] NSWCA 227 New South Wales v Moss (2000) 54 NSWLR 536 OCS Australia Pty Ltd v Cho [2010] NSWCA 85 Perrett v Sydney Harbour Foreshore Authority [2009] NSWSC 1026 Pham v Shui [2006] NSWCA 373 Podrebersek v Australian Iron and Steel [1985] HCA 34; (1985) 59 ALR 529 South Eastern Sydney Area Health Service v Gadiry [2002] NSWCA 161 Spratt v Perilya Broken Hill Ltd [2016] NSWCA 192 State of New South Wales v Chapman-Davis [2016] NSWCA 237 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 Sydney Harbour Foreshore Authority v Perrett [2010] NSWCA 160 The Star Pty Ltd v Mitchison [2017] NSWCA 149 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Category: Principal judgment Parties: Katrina Marie Jay (Plaintiff 2015/193834) State of NSW (TAFE NSW Previously TAFE Commission) (Plaintiff 2016/26942) Edward Baker (Defendant 2015/193834; First Defendant 2016/26942) Wendy Elizabeth Baker (Second Defendant 2016/26942) Representation: Counsel: K Andrews (Plaintiff 2015/193834) P Tierney (Plaintiff 2016/26942) J Gracie (Defendants) (13-15 June 2007); L McFee (4-5 December 2017 onwards) Solicitors: Stacks Goudkamp (Plaintiff 2015/193834) Turks Legal (Plaintiff 2016/26942) Moray & Agnew (Defendants) File Number(s): 2015/00193834; 2016/00026942 CONTENTS Paragraph Judgment 1 The plaintiff's evidence The plaintiff's oral evidence Evidence in chief 8 Cross-examination of the plaintiff 63 Re-examination of the plaintiff 111 Further cross-examination 120 Evidence of Mr Robert Jay Evidence in chief 154 Cross-examination of Mr Jay 165 Evidence of Mr John Maginnis 174 Evidence of Mr Warwick Jay 190 The plaintiff's tender bundle - Exhibit A The plaintiff's liability report - the report of Mr N McDonald dated 6 May 2015 203 Evidence on behalf of the defendants Oral evidence of Mr Edward Baker Examination in chief 211 Cross-examination of the first defendant 214 Oral evidence of Ms Louise Lynch Examination in chief 230 Cross-examination of Ms Lynch 236 Liability report of the defendant - report of Mr G Urquhart dated 21 December 2015 242 The defendants' tender bundles Joint liability report 245 Submissions of the parties on the liability issue concerning the accident 247 Factual findings on the liability issue 251 The Medical Evidence The plaintiff's medical evidence 274 Reports of Dr Gareth Thomas, Sports Medicine Doctor 275 Report of Dr Steven Ruff, Orthopaedic Surgeon 296 Report of Dr Andrew Cree, Orthopaedic Surgeon 297 Reports of Dr Matthew Lyons, Orthopaedic Surgeon 298 Reports of Dr Ian Thong, Pain Management Specialist 300 Reports of Ms N Toner, Psychologist 302 Dr M Patfield, Psychiatrist 311 Report of Professor Khadra, Urologist 313 Rehabilitation reports 314 Reports of Dr T Duncan, psychiatrist 319 Radiological reports 329 Clinical records of Dudley Private Hospital 332 Plaintiff's medico legal and MAS reports Reports of Dr James Bodel, Orthopaedic Surgeon 333 Reports of Dr Brian Burke, Psychiatrist 336 Reports of Dr M Ling, Rehabilitation Physician 346 MAS reports 351 The Defendants' Medical Evidence 354 Reports of Dr Michael Shatwell 355 Reports of Dr S Roberts 379 Occupational therapy report of Ms N Taylor-Fick 391 Report of Dr R Sekel 405 Report of Ms I Jurkowski, Rehabilitation Counsellor/Vocational Assessor 409 Report of Dr PL Harvey-Sutton 410 Report of Ms Hoskins-Murphy, psychologist 419 Further material relating to Dr Mohamed Khadra 421 Conclave expert psychiatric report of Drs Roberts and Burke 425 Conclave cross-examination of Dr Burke and Dr Roberts 439 Pre-accident medical notes 471 Anson Medical Centre Orange 477 Caro Consultancy notes 480 Submissions in relation to medical findings 485 Medical Findings Introduction 489 Ms Jay 490 Pre-accident findings 491 Physical injuries in or arising from the accident 495 Psychiatric injuries arising from the accident 501 Evidence of the State of New South Wales 517 Evidence of the plaintiff Ms Jay 519 Section 151Z of the WCA 521 Consideration 525 Duty of care and breach 544 Causation 555 Contributory negligence 560 The blameless accident provisions 572 Damages Introduction 577 Each party's submissions 579 Non-economic loss 580 Past out-of-pocket expenses 584 Future out-of-pocket expenses 587 Future equipment 591 Past domestic assistance 592 Future domestic assistance 595 Past economic loss 597 Superannuation on past economic loss 599 Future economic loss 600 Superannuation on future economic loss 608 Fox v Wood 609 Reduction for contributory negligence 610 Conclusions 611 Disposition 612 Judgment 1. Before me are two proceedings which arise out of a motor vehicle accident which occurred on 22 August 2013 in which the plaintiff in one proceedings, Ms Katrina Jay, suffered injuries. 2. In the first proceedings, Ms Jay sues the driver of the motor vehicle which struck her when she was at or near her parked vehicle, for damages in the tort of negligence under the provisions of the Motor Accidents Compensation Act 1999 (NSW) ("MACA"). 3. In the second proceedings, Ms Jay's employer at the time of the accident, TAFE New South Wales, sues the defendants who were the owner and driver of the motor vehicle which struck Ms Jay for an indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) ("WCA"). The plaintiff has been receiving workers compensation payments and benefits from her employer since the accident. The State of New South Wales, being the entity which sues the defendants in that matter, seeks the indemnity for the amount of compensation which has been paid to the plaintiff Ms Jay along with medical and related costs together with interest: See Further Amended Statement of Claim filed 24 April 2018. The defendants deny any such liability: Amended Defence filed 26 April 2018, paragraphs 3 and 11-12. 4. In the first proceedings, the plaintiff Ms Jay sues the defendant driver of the motor vehicle Mr Baker first, in negligence and, if liability is not established, seeks to recover damages under the "blameless accident" provisions in MACA. 5. In paragraph 5 of the Statement of Claim filed 2 July 2015 in the first proceedings, particulars of a breach of duty of care of the defendant are set out as follows: PARTICULARS OF BREACH OF DUTY OF CARE i) Failure to keep a proper lookout. ii) Driving at a speed that was too fast having regard to the prevailing circumstances. iii) Failing to keep his vehicle a safe distance from where the plaintiff was waiting next to her vehicle. iv) Failing to keep his vehicle a safe distance from parked vehicles. v) Failing to brake, steer and/or otherwise control the vehicle so as to avoid a collision. vi) Failure to sound a warning of the potential risk of collision with the plaintiff. vii) Failure to observe the door of the plaintiff's vehicle being opened and/or closed. 1. Liability has been denied by the defendants in both proceedings. In the alternative, contributory negligence is relied on: Defence filed 4 November 2015; Amended Defence filed 26 April 2018. 2. As the case developed, it became clear that the central question to be determined was whether the plaintiff was struck when she was standing immediately adjacent to her motor vehicle or whether she had taken one or more steps to cross the road without looking to her right before she was struck by the vehicle. In his Defence in the first proceedings, the defendant says that the plaintiff, without warning or looking, walked in front of his motor vehicle, providing no opportunity for him to avoid the collision and that the plaintiff should therefore be regarded as the sole cause of the accident. The plaintiff's evidence The plaintiff's oral evidence Evidence in chief 1. The plaintiff gave evidence that she lived at Clifton Grove which was about 10 kilometres outside Orange in country New South Wales. She stated that she lived on five acres with her husband. 2. A chronology in relation to the plaintiff was confirmed by her as being correct and it was part of the plaintiff's tender bundle which became Exhibit A. This showed that the plaintiff was born in May 1961, making her 52 on the date of the accident and 56 at the time of the commencement of the hearing. The chronology showed that after completing high school and obtaining the Higher School Certificate, the plaintiff began working at Zinc Corporation Australia whilst studying part-time. The plaintiff completed a Bachelor of Business Studies graduating in 1984. After working as an accountant, the plaintiff began teaching accounting in the TAFE system and then, in due course, moved to administration duties within the TAFE system. The plaintiff gave evidence that she worked part-time for 10 years before commencing fulltime work. 3. The plaintiff married in 1983 and had four children. She worked part-time while the children were small and fulltime after the birth of her last child. The plaintiff gave evidence that on the day of the accident she was performing in an acting role as Director Strategic Performance Management in the Department of Education and Communities. She gave evidence that the substantive officer in that position was on leave and the acting position was for an indefinite period. The acting role provided the plaintiff with a higher level of income. See Exhibit D behind tab 23 and Exhibit F page 74 for details of the plaintiff's employment history. 4. The plaintiff gave evidence that both her substantive position and the acting position required her to drive long distances throughout country New South Wales. Sometimes this required the plaintiff to be away for a week as she did a circuit visiting various country towns in the State. 5. The plaintiff said that in November 2013 after the accident on 22 August 2013, there was a restructuring in the TAFE system as a result of the State Government introducing a new funding model. The plaintiff said that she was offered a position in that new restructuring as Director of Customer Service and Facilities in TAFE. This involved her being paid the same amount of money as in her previous acting position. 6. The plaintiff gave evidence that prior to the accident she lived on her current property of five acres with her husband who was employed as a mines inspector and who also travelled extensively in his job. The property had dogs, cats and chickens on it. At the time of the accident her four sons were adults and had left home. 7. The plaintiff gave evidence that on the property was a four bedroom house which had two bathrooms, a kitchen, family room, lounge and an inside laundry. The plaintiff said that in relation to the inside of the house, prior to the accident she undertook all domestic chores. The plaintiff stated: "I did everything". In relation to the outside, the plaintiff gave evidence that the property had substantial gardens and the plaintiff did a lot of the gardening including trimming the hedges and some lawn mowing. On occasions her four sons helped but she did the bulk of the work. The plaintiff said that she and her husband had owned the property for slightly more than one year prior to the accident. 8. The plaintiff gave evidence that prior to the accident she was involved in daily exercise. This included going to the gym several times per week in Orange, undertaking personal training sessions and being involved in a runner's club which involved running several times per week. The plaintiff indicated that if she was travelling she also engaged in running. It is clear that the plaintiff was very fit and active prior to the accident. 9. The plaintiff said she undertook substantial social activities with her group of friends, saw her family, travelled, and rode bicycles and walked whilst on holidays. 10. The plaintiff then gave evidence in relation to the day of the accident. The plaintiff said she was working on that day and at lunchtime drove to an appointment in Woodward Street, Orange (later evidence established the appointment was with a Ms Anderson, a psychologist). She said she parked her manual Nissan Patrol four wheel drive at the side of the road in an area near the entry to a football oval. This involved parking her car on the left hand side of the road. The plaintiff said that she stopped the vehicle, put it in forward gear, put the handbrake on, turned the engine off and took the key out of the ignition. The plaintiff gave evidence that she then checked the mirrors, being the rear vision mirror and the right hand side mirror for traffic before opening her door. The plaintiff gave evidence that she was "paranoid" about opening her door before looking as a friend had had her door damaged as a result of opening her door. 11. The plaintiff said she was wearing work clothes which included red shoes, a skirt, a jumper and a red overcoat which was three quarters in length as it was a cold day in August in Orange. The plaintiff said she also had a red handbag: T11.19; T12.8. 12. The plaintiff gave evidence that after she turned the engine of the car off, she had the car key in her hand. She said that after looking in the mirrors she opened her door and reached over and retrieved her bag from the passenger seat. She then said she stepped onto the ground and closed the door and locked it with the key. The plaintiff then stated that she placed the car key in a zipped compartment in her handbag. The handbag was in front of her when she did this. She then placed the handbag onto her right shoulder and adjusted her scarf: T12.8. 13. The plaintiff gave evidence that she went to turn around when she got hit in the "back": T12.12. She gave evidence that she heard a noise at the same time as she was hit and did not expect a car. The plaintiff stated that she was thrown in the air and landed with a hard landing on her back to the side of the road. The plaintiff gave evidence that she noticed a line on the road and her head was on the line or just over the line when she landed. The plaintiff recalled looking at the side of the car which she assumed to be the car which struck her and saw damage to the car. The plaintiff was conscious at the time and she recalled just wanting to go home. 14. People attended the scene quickly including the man who she understood to have been driving the car which struck her. The man tried to help her up and she recalled a woman telling her to get up. The plaintiff repeated that she just wanted to go home. The plaintiff said she was looking down the road and could see herself, a space, the gentleman's car which she believed hit her and then her car. 15. The plaintiff said that she was struck in the sacrum area in the middle of the back more to the left leg than the right leg. She noticed that she had bruising. She noticed later that her bruising was worse on the back of her left leg. 16. The plaintiff said that she recalled saying to the man, "I'm so sorry". She said she felt dreadful for damaging his car. The plaintiff then stated that she said words to the effect: "I know it's all my fault. Can someone help me to the car. I just want to go home. Can you help me up?" The plaintiff gave evidence that the man said to her words to the effect: "It's alright love. Don't worry about that. I'm not worried about the car." The plaintiff noticed that the gentleman was elderly and he was shaking. 17. The ambulance and the police were called and an ambulance took the plaintiff to hospital. The plaintiff gave evidence whilst she was in the ambulance a police officer put his head into the ambulance through the side door opening. The plaintiff confirmed that she said to the policeman at the time words to the effect: "It was my fault." The plaintiff said that she said it was her fault because she was very concerned about the gentleman who was older and shaking a lot. 18. The plaintiff said that she was taken to the Orange Hospital where she spent about a week and had considerable pain in her back, at the top of her buttocks and in the sacrum area. She said she had pain in the ankle and the elbow but the majority of the pain was in her back. The plaintiff confirmed that she had not seen the vehicle which struck her in the rear vision mirror or the driver's right hand side mirror before alighting from her vehicle. 19. The plaintiff gave evidence that she went home after about a week and was in incredible pain. She said she could not do much. The plaintiff said that the main pain was in her back. 20. After several weeks, the plaintiff stated that she went back part-time to work on reduced hours. She said this did not include the driving duties of her job but included attending meetings and attending video conferencing. 21. The plaintiff said that initially her son took her to work and collected her after the working day completed. The plaintiff said it was "incredibly difficult" for her to drive due to the pain of putting her foot on the clutch. 22. The plaintiff was taken to a photograph at page 24 of the liability report of her expert, Mr McDonald (Exhibit A, page 30), and she confirmed that the photographs shows the approximate position where her car was parked on the day of the accident and the red coat which she was wearing at the time of the accident. 23. The plaintiff was then asked questions in relation to her return to work. The plaintiff said she was off work for several weeks then initially returned to work part-time for the period 18 October 2013 to 11 December 2013 working four hours five days per week. She then increased her hours in the period December 2013 to 12 January 2014 to six hours per day five days per week. The plaintiff gave evidence that she was not performing her pre-accident duties, in particular she found travelling, including travelling to different locations in Orange, to be difficult. 24. The plaintiff gave evidence that for periods in 2014 she was unable to go to work because of experiencing bouts of shingles and being unable to function emotionally due to pain, anxiety, not sleeping and not able to perform her functions in her job. 25. The plaintiff said that she had difficulty driving distances for work and only attempted it when she was in the presence of other officers who could drive. The plaintiff confirmed that she had driven to Canberra and back to visit her sons and to attend a wool spinning activity with which she was interested. She drove by herself but stopped on occasions. She said she felt discomfort when she arrived in Canberra and stopped at least once on the way home. 26. The plaintiff gave evidence that she commenced fulltime restricted duties on 5 January 2015 but left work in March 2015. She said she had become suicidal. The plaintiff gave evidence that work was "incredibly important" to her and she believed she was not doing her job properly: T23.21. She was not engaging with her colleagues and was angry and short with them. The plaintiff said she was unable to cope with the stress of the job together with the pain she was suffering and the medications she was under as well as the pressure from her superiors to re-engage in the travel in her job: T23.26-.31. The plaintiff said she believed she suffered something like a nervous breakdown and had decided to kill herself and not worry about things any more: T23.29. 27. At about this time the plaintiff gave evidence that she saw a pain specialist and this was the first time she had spoken to someone who understood the pain she was suffering. Later evidence showed this was Dr Thong. The plaintiff stated that she started to see a psychologist, as she knew she was not managing and was anxious. The psychologist was Ms Natalie Toner. 28. The plaintiff stated that Ms Toner referred her to a psychiatrist who was initially Dr Patfield and in due course she was referred to another psychiatrist, Dr Duncan. The plaintiff said that she saw Ms Toner every two to three weeks and Dr Duncan every two to four weeks. At the same time, the plaintiff saw Dr Thong, the pain specialist, every three months in Bathurst as well as undertaking physiotherapy every three to four weeks. The plaintiff stated that the physiotherapist concentrated on building up her core muscles around her back, hip and buttocks. 29. The plaintiff gave evidence that she had some symptoms of incontinence which started on the day of the accident. She said these symptoms had reduced due to medication and exercise but she still had some symptoms. 30. In relation to medication, the plaintiff said that Dr Duncan had prescribed her with several medicines which were quite expensive. She confirmed that the workers compensation insurer paid for all her medical expenses and medication expenses. 31. In relation to when the plaintiff intended to work to, she gave evidence that her children had left home and that she loved her job and intended to continue working in it. She also said she enjoyed travel as she saw different people. She gave evidence that she could not go back to work as she was still struggling with pain as well as having anxiety and difficulty sleeping. She said she did not believe that she had come to terms with her symptoms arising from the accident. On some days the plaintiff said that she could not get out of bed for the day and this occurred once or twice per fortnight. 32. In relation to driving, the plaintiff said she could drive but she was an anxious driver and was "hyper alert" when driving. The plaintiff gave evidence that seeing car accidents on television often made her cry and she then turned off the television or went to another room: T29. 33. The plaintiff gave evidence in relation to her current symptoms. She said that she was right hand dominant. In relation to her left leg, that continued to give her problems. The plaintiff said she continued to have pain around her left hip going down to the knee: T27.2. She said her hip clicks and her leg "turns out". She said she did not have full range of movement in her left leg without considerable pain: T27.2. 34. In relation to her garden, the plaintiff said she chose only to move in the area of her garden close to the house where it was more even. Areas further away from her house were uneven and she had a fear of falling. 35. In relation to sitting, the plaintiff gave evidence that sitting for any length of time caused her discomfort. Pain was caused whilst sitting going from the outer part of her left hip towards the centre part of her lower back. On occasions the pain had been assisted by a kneeling chair. This was helpful to the sacral pain but bad for her hip pain. 36. In relation to her sleeping, the plaintiff said she did not sleep all night and that she woke up during the night depending on the pain. Taking some medication helped her with sleeping. 37. The plaintiff was then asked some questions in relation to her self-management and the domestic chores around the house. The plaintiff said that she was able to look after her showering and toileting although she could not do so for a time when she got out of hospital and relied on her husband and her sons for several weeks including assisting her on and off the toilet. 38. The plaintiff said that she was able to interact now only with the smaller dogs but not the bigger dogs and could not get back to dealing with chores relating to the chickens which her husband now did. 39. The plaintiff said her motivation was very low presently and she was not interested in things. She did not go out much socially and tended to stay at home watching television. The plaintiff gave evidence that her memory was not quite as good as it had been before and she could not hold information in her head. Prior to the accident her job required her to have extensive knowledge of education and training within the TAFE system. 40. In relation to a recommendation for surgery, the plaintiff said that she intended to follow the recommendation but was reluctant to undertake it just at the moment. She said she would also follow other advice given by doctors for treatment. 41. The plaintiff gave evidence that she had difficulty cutting her toe nails and needed a pedicure or assistance from her niece. She said it was too painful to undertake the task of lifting her foot towards her to undertake the cutting of the nails. 42. In relation to physiotherapy, the plaintiff said she was following the instructions of the physiotherapist in relation to exercises and was also using specialist equipment such as a ball to sit on and the use of a yoga mat and pillow and a cushion for the car. In relation to the shower the plaintiff said that she used a wooden chair in the shower to hang on to where necessary. 43. Prior to the accident, the plaintiff said she had undertaken interstate and overseas travel socially including on a walking holiday. She had previously travelled economy class but found after the accident that it was very constricted and she had to get up and move around frequently. 44. The plaintiff then gave evidence in relation to domestic duties around the house. Initially the plaintiff could do very little and her husband did the domestic duties around the house from the date of the accident on 22 August 2013 until December 2013. This included making the bed, doing the washing, hanging out the clothes and bringing them in, shopping, cooking, vacuuming, mopping, ironing and gardening. The plaintiff said that her husband spent at least 10 hours per week undertaking these tasks which she normally did. 45. In the period from December 2013 until October 2014 her husband did less around the house as she undertook some cooking and ironing but that he still undertook about seven to eight hours per week doing tasks which she had previously done. 46. In October 2014 the plaintiff had surgery to her left hip and she was on crutches for three to four weeks. During this time her husband assisted her with dressing and showering which increased his duties about another three and a half hours per week for a period. 47. Between November 2014 and March 2015 her husband undertook about seven to eight hours duties and the time her husband spends in domestic duties has not changed since she finished work in March 2015 (this evidence was given by the plaintiff in June 2017: T34.7-.11). 48. The plaintiff said it was simply too painful for her to undertake many tasks such as mopping and vacuuming. Her husband also does her shopping and the gardening which she previously did. The plaintiff gave evidence that prior to the accident she often spent most of Saturday in the garden. Some of this is now undertaken by her husband and some duties such as weeding and trimming of plants were simply not undertaken. 49. The plaintiff gave evidence that she has had some improvement to her symptoms since the accident after she gave up work but a lot of her problems still persisted. She said that the medication she took did not take away the pain but sometimes it took the edge off the pain. 50. In relation to her work salary, the plaintiff said she initially took sick leave and initially received her normal salary then it was reduced. 51. The plaintiff gave evidence that she now had trouble going down stairs and tended to lead with her left leg whilst holding on to the rail. 52. The plaintiff gave evidence that she did not at present have a great ability to remain calm and both her sons and her husband had found her a little frustrating as she cried often and was frequently very distressed. The plaintiff said that she had side effects from the medicines prescribed by her psychiatrist including dry mouth, constipation, difficulty waking up and difficulty concentrating. 53. The plaintiff gave some evidence in relation to some stressful incidents at her TAFE job prior to the accident. These incidents included trouble with a finance manager well before the accident which resulted in her taking time off work and making a workers compensation claim (evidence tendered by the defendant showed that this incident occurred in 2000, 13 years before the accident: See Exhibit 1D6). The plaintiff said that the finance manager indicated that he would shoot people. The plaintiff said that these problems had resolved and she had returned to normal duties. 54. In addition, a student in the TAFE system had been killed horse riding which had caused trauma at work (evidence showed this occurred in March 2009). The substantive officer for whom she was acting was on leave because of this incident. The plaintiff said that she saw a psychologist as she had never dealt with anything like that at work before and was unsure how to assist people through the problems. She said at that time there were a lot of changes in documentation of activities in the TAFE system: T37.43. 55. The plaintiff also gave evidence that she had injured her ankle in the accident and she experienced discomfort in her hamstrings. She said this affected her ability to climb stairs and sit for lengthy periods: T38.25. Cross-examination of the plaintiff 1. The plaintiff was subjected to an extensive cross-examination. This occurred mainly in the first stage of the trial in June 2017 but also occurred in April 2018. 2. The first area of cross-examination was in relation to stress which the plaintiff had prior to the accident on 22 August 2013. The plaintiff confirmed that she had time off work on a workers compensation claim before the accident. This arose from conflict with an officer in the finance department of TAFE in 2000-2001. The plaintiff made a worker's compensation claim at the time and a return to work plan was arranged for the plaintiff to return to work in April 2001. The plaintiff agreed that at this time she had the perception that she was constantly harassed and intimidated at work by the finance manager. She also confirmed that she spoke to a psychologist at the time. She said this arose from the finance manager threatening to shoot people. The plaintiff said that in late 2000 she held the position as Campus Manager for the Lachlan TAFE and was responsible for the administration and student records for five colleges. 3. The plaintiff was then asked about her dealings with doctors at her general medical practice. She confirmed that she had attended a particular medical practice, although not exclusively, since 2006. The plaintiff confirmed that she had been prescribed the antidepressant drug Pristiq prior to the accident. The plaintiff gave evidence that she had been diagnosed with renal cancer in 2011 and was recovering from it. She said she had trouble confronting the issue of whether she would live or die. In answer to the suggestion that she had trouble coping with stress at work prior to the accident, the plaintiff claimed that work kept her going and that she really liked work. 4. The plaintiff was asked questions about her suffering shingles to the face in early 2013 and it was suggested to her that this was a reaction to stress at work. The plaintiff said she did not know whether it was connected with stress at work. The plaintiff was taken to a number of entries in the notes of her general practitioner, Dr Khin, which suggested that she was very emotional and not coping in her job. The plaintiff agreed that she had been referred to a psychologist. She gave evidence that she did not attend the psychologist as she thought she would be fine and she had difficulty getting an appointment: T45.46 cf T37.32 and T48.26. This evidence was later shown to be incorrect. The plaintiff confirmed that she did not know at the time that shingles were connected to stress. 5. The plaintiff was then taken to an entry in the notes of her general practitioner Dr Khin which indicated that Dr Khin had increased her dose of Pristiq from 50mg to 100mg as she was not coping at work and was very emotional. The plaintiff agreed that there was stress at work but said she was still anxious in her recovery from the renal cancer which had been diagnosed. In the end, the plaintiff agreed that her dose of Pristiq had been doubled at the time. She also agreed that in May 2013 she was seeing a psychologist and found it beneficial. She agreed that there was stress at work in May 2013 and she was not sleeping well. The plaintiff also confirmed that she had a recurrence of shingles which she put down to being scared of dying of cancer although she agreed that she also had stress at work at the time: see generally at T46.21-T51. 6. The plaintiff was then cross-examined in relation to medical notes of Dr Khin for 14 June 2013 where he indicated that the plaintiff was very stressed and was crying. She agreed she had a stressful job at the time. Despite the entries indicating that the plaintiff was not coping at work, the plaintiff said she could not recall having this problem in the three months prior to the accident. She was then taken to Dr Khin's note which stated "thinking of quitting job". The plaintiff said she could not recall this although she assumed that the note was accurate. She said she had no recollection of saying this: T51.14. Although the plaintiff agreed that Dr Khin prescribed an increase in Pristiq to 150mg at this time, she said that she only ever took 100mg. In answer to the suggestion that she took 100mg of Pristiq daily both before and after the accident, the plaintiff said that she now believes she takes 200mg a day which was prescribed for her by Dr Duncan, her treating psychiatrist. The plaintiff seemed vague about her Pristiq doses. She confirmed that in June 2014 she attempted to wean herself from Pristiq by taking 50mg every second day. In answer to the suggestion that it was wrong to tell the court that doctors had prescribed her a dose of 200mg of Pristiq, she denied that and said that it had been prescribed by Dr Crane. Initially the plaintiff had identified Dr Duncan or Dr Patfield as the correct doctors. The plaintiff agreed that she had never been prescribed more than 200mg of Pristiq per day and in answer to the suggestion that she had never been prescribed 200mg, she said that she recalled Dr Crane advising her to take 200mg per day but she may be mistaken on that: T54.18. 7. The plaintiff was then cross-examined extensively in relation to what had occurred on the day of the accident. 8. The plaintiff was taken to the photograph in Mr McDonald's liability report at page 24 which is page 30 of Exhibit A. The plaintiff confirmed that the location of the four wheel drive vehicle in the photograph was the general area where she parked on the day of the accident although it could have been out by a small distance. She also confirmed that she appeared in the photograph and that she was wearing the red coat which she was wearing on the day of the accident. 9. The plaintiff was asked questions about the location in which she was standing in the photograph in page 30 of Exhibit A. She said that she did not wish to stand for the purposes of the photograph closer to the road although she agreed that she had discussed with the expert standing and facing in the manner she was when she was struck by the vehicle. She agreed that when she was struck she was facing the door of her car slightly turned around. She agreed that she had been hit by the bull bar of the defendant's car but made an assumption at the time that she had hit the passenger side of his car. She agreed that she thought she had damaged the defendant's car and that was why she was very apologetic to him. The plaintiff agreed that she now knew that she had hit the bull bar on the front of the defendant's vehicle and not the side of the car as that part of the vehicle had hit her back. 10. The plaintiff recalled speaking to a police officer when she was in the ambulance soon after the accident. She was taken to the police notebook of Senior Constable Andrew Wotton for 22 August 2013 (defendant's bundle Exhibit 1D4 page 104) which stated: "Spoken to in Ambulance stated: I'm so sorry, it's my fault, I was thinking about other things and didn't look. Please tell that man that I am so sorry. I've got other things on my mind. I just walked out in front of him." 1. The plaintiff confirmed that she had said to the policeman words to the effect: "It was my fault": T58.18. She agreed that saying this had stuck in her mind. She also agreed that it appeared that the police officer had written out what she had said. It was put to the plaintiff that she was speaking the truth when she said that she was thinking about other things. The plaintiff said she did not recall saying it, although she did not doubt that it was probably accurate that she did say it: T59.8. 2. It was put to the plaintiff that she wanted to explain to the police officer why it was her fault being that she was thinking about other things. The plaintiff said she did not recall saying this although she conceded that she probably said it. It was put to the plaintiff that it was true that she did not look and the plaintiff denied this: T59.11; T59.37. She said she did not recall saying that part of what was in Senior Constable Wotton's notebook. In the end, the plaintiff said that she did not say this. It was put to the plaintiff again that she did not look and she confirmed that she did not look over her shoulder in the direction that the defendant's vehicle was coming before turning around: T59.43. Following further cross-examination, the plaintiff confirmed that once she had exited from her vehicle she did not look in the direction from which the defendant was driving: T60.4. The plaintiff said she was not sure of the precise direction she was facing when she was hit but she confirmed again that she was not looking in the direction from which the defendant's car was coming. 3. After further cross-examination, the plaintiff confirmed that she believed she said words to the effect: "Please tell that man that I'm so sorry. I've got other things on my mind" but she did not recall saying "I just walked out in front of him." The plaintiff said she was "really confused" at the time and she recalled just wanting to go home: T61.24. 4. The plaintiff confirmed that on 2 September 2013 she attended Orange Police Station and made a further statement to Constable Sean Webb. This appears at page 112 of the defendant's tender bundle Exhibit 1D4. The plaintiff said that at this time she was about to go to hospital at Royal North Shore and was happy to sign anything to get out of the police station. However, she confirmed that she believed that what she said to the police was true and she agreed that she signed it as she agreed with the contents of the statement. 5. The statement included the following: "4. I stopped my car and checked the rear vision mirror to stop my car door from being damaged. I then got out of my car and closed the driver's side door and locked it. 5. At the time I was wearing a three quarter length bright red overcoat and it was button up. 6. I would say that I was standing on the road for around seven to ten seconds to lock the vehicle and check the door. I then put the keys into my handbag, all of this while still facing the car. 7. I then started to turn back to the right. I was looking down at my chest area at my scarf. I was then hit from behind. I was hit in the back of my right leg and buttock. 8. I would say that I had turned nighty [sic] degrees and sit [sic] at the driver's door. I cannot recall if I had taken a step away from my car, if I did it would not have been more than one step. I did not have time to look at the road to see what was coming. 9. I then felt a tremendous hit to my body and a thud noise. I heard the brakes screech, then I realised it was a car. I fell airborne into the ground and I said at least three times in my mind don't land on your head. I felt a massive whack on my back and I hit the road. I immediately threw myself over onto your left side away from the car. 10. I recall elderly male approach [sic] me and he said, "You just walked out in front of me. I don't know where you came from." The male took hold of me and offered to help me up. I said, "I can't, I'm in too much pain." The male seemed physically shaking. I said, "I'm very sorry." I was worried about the elderly male. … 13. A short time later an ambulance came and were treating me. I remember having a conversation with a police officer. I said to the police officer that "It's all my fault." When I said this to the police officer I only said this because I was concerned about the elder male driver. I was worried that he might have a heart attack at how badly he was shaking, I was embarrassed and I just wanted to go home. I believe that I was suffering from shock." 1. In cross-examination, the plaintiff confirmed the accuracy of paragraphs 4-10 of the statement. In paragraph 6 where it states: "I was standing on the road" the plaintiff said that she meant that she was standing on the bitumen of the road. She agreed that it took seven to 10 seconds to lock the vehicle and swivel around. The plaintiff confirmed again that she did not look in the direction from where the defendant came. She said that she had looked before getting out of the car in the rear vision mirror and the side mirror. She said it was a long road and she did not see any car coming towards her. She said that she did not believe that she needed to look again in the direction from which the defendant's vehicle came as she had already checked in the mirrors before getting out of the car. The plaintiff confirmed that this could have taken up to 14 seconds to go through the process of getting out of the vehicle but said that she was not checking the time and she thought it was safe where she was standing. She agreed that it was possible that her buttocks were protruding slightly over the "fog line" along the side of the road. 2. In relation to the suggestion that it was easy for the plaintiff to look over her shoulder in the direction from which the defendant came, the plaintiff said she was going to look but had not turned around to look to start crossing the road. She believed she was close to the car and there was no risk of being hit. She agreed that she said that she was standing right next to the door of the car but did not once look up the road towards where the defendant came from. In answer to the suggestion that the plaintiff was anxious to blame someone other than herself for the accident the plaintiff denied this. 3. The plaintiff was then taken to the personal injury claim form which was signed by her on 8 August 2013 and which became part of Exhibit 1D6 volume 3 in the proceedings (see behind tab 9 page 37). The plaintiff was asked questions about the diagram of the accident and the description of the accident on page 9 of the claim form (page 39). In relation to the diagram, the plaintiff gave evidence that her husband drew the diagram based on what she had told him and she checked the diagram to see if she was happy with it before she signed the claim form. 4. The plaintiff was then taken to the detailed description of the accident. This relevantly provided as follows (page 39): "… I checked my rear vision mirrors and blind spot before opening the car door; there were no vehicles approaching. I am always particular about doing this because a friend had her door hit, I have only reasonably recently moved to Orange and wanted to avoid a similar accident. In addition, Woodward Street is a long straight road and so cars tend to be driving rather fast, at the speed limit or above along this stretch. I made very sure there were no cars approaching before opening the door and alighting. I stepped out of the vehicle, closed and locked the door with the key, placed the key in my handbag and started to turn towards the road. It would have taken me several seconds to do all of this. I was wearing a long bright red overcoat at the time. It could be described as fire engine red. I was at the edge of the road for several seconds at least I would have been very obvious to any vehicle traveling up the road towards me. I cannot believe any driver with any attention on the road ahead would have failed to see me. I was not on the road proper I was still at my car door when hit. The vehicle must have been driving too close to my vehicle and that is how he hit me." 1. Ms Jay confirmed that these were her words, although she did not recall whether she typed that part of the form. Ms Jay was taken to that part of her description of the accident in which she states: "Woodward Street is a long straight road and so cars tend to be driving rather fast, at the speed limit or above along this stretch." 2. The plaintiff agreed that she knew that cars drove fast along that part of Woodward Street at or above the speed limit. In answer to the suggestion that it would have been prudent for her to look around to see if cars were approaching, the plaintiff said that according to her judgment seeing the absence of vehicles in her mirrors, she had adequate time to get out of the car and lock the door. The plaintiff agreed that on the assumption that the defendant was travelling at 40kph and that she had seven to 10 seconds to see his car, that she had an opportunity to see the car and did not do so. It was put to the plaintiff that she made an error of judgment in not looking to see if there was a car approaching. The plaintiff did not agree with this. She agreed that it was a matter of judgment but gave evidence that she was smaller than the door of the car and that if she stood close to the door she was not in danger. She then gave evidence that she had shut the door and locked the door and was standing close to the door. 3. In the light of the fact that cars sped along Woodward Street, the plaintiff agreed that it was a dangerous place but that she did not look for cars whilst outside her vehicle as she believed she was safe. It was further put to the plaintiff that if she had looked for the defendant's car and had seen it the accident would not have happened because she would have avoided being hit. The plaintiff said she did not agree with that suggestion. It was again put to the plaintiff that if she had looked she would have seen the defendant's vehicle and had seven to 10 seconds to do that. The plaintiff said that she was not sure of this but she may have had time to do that. She said she never expected a car to come towards her and to hit her. It was put to the plaintiff that she could have got out of the way if she had looked and seen the defendant's car. The plaintiff said she was not sure of this but she would have attempted to get out of the way of the defendant's car if she had believed that it was likely to hit her. The plaintiff confirmed that if she had known the defendant's car was coming at her she would have got out of the way. She agreed that she failed to look towards the direction that the defendant's car was coming when she got out of the vehicle. 4. The plaintiff was then taken to the sentence which read: "I stepped out of the vehicle, closed and locked the door with the key, placed the key in my handbag and started to turn towards the road. It would have taken me several seconds to do all of this." The plaintiff agreed that this was accurate and she said that she had not started to walk across the road but had started to turn towards the road. The plaintiff was then taken to the sentence which included: "I would have been very obvious to any vehicle travelling up the road towards me." She agreed that the defendant's car would have been obvious to her if she had chosen to look in that direction upon exiting the car. The plaintiff said that although she did not look in the direction from which the defendant's car came for oncoming vehicles she believed she was not in the dangerous part of the road and that she was standing in a safe space. 5. An alternative version of what occurred from a female witness was then put to the plaintiff. It was put to the plaintiff that she had her back to the traffic and took a step back before possibly taking a step forward into the lane. The plaintiff denied this and said that she was standing side on to the traffic, had started to turn around and did not recall taking a step into the lane of traffic. It was suggested that the plaintiff had her buttocks protruding over the fog line towards the road lane. At T66.33 in answer to the suggestion that the plaintiff's buttocks at least might have been encroaching on the fog line, the plaintiff answered, "my bum's not that big but they might have been. It might have been." Later the plaintiff said that she doubted whether her buttocks were protruding over the line. She then said that she did not know whether they were on or within the line but they could have been within the line. 6. It was suggested to the plaintiff that she had one of her feet in the roadway. The plaintiff said she could not deny this as she was turning around. It was put to the plaintiff that she stepped out into the roadway and the plaintiff denied this. The plaintiff further denied that she put herself in the way of the oncoming vehicle. In answer to the suggestion that she swung her leg and stepped into the path of the vehicle the plaintiff said that she took a step to start to turn around before she was hit. She denied that her recollection in her evidence was false and was being given in an attempt to win the case. She confirmed that she had no recollection of saying to the female witness words to the effect: "It's all my fault." 7. The plaintiff was then asked questions in relation to what she said to the male driver. The plaintiff denied that the male driver had said that she was on the road. She also denied that she was in the middle of the road or walking across the road. In answer to the question whether the plaintiff claimed to have a clear recollection of events, Ms Jay said she clearly recollected starting to turn around. She agreed that her eventual intention was to walk across the road but she had only moved one foot to turn. Whilst denying that she had started the motion to walk across the road she agreed that her physical movement was consistent with movement to cross the road. The plaintiff confirmed again that at no time did she look towards the oncoming traffic after exiting the vehicle, even though she knew that cars travelled along the road at or above the speed limit. 8. The plaintiff was asked numerous questions in relation to surveillance film and a car trip which she had taken to and from Canberra after the accident. The plaintiff gave evidence that she had driven to Canberra by herself to see her sons and had met up with them for coffee. The plaintiff confirmed that she was aware that surveillance film had been taken of her in relation to her trip to Canberra in November 2015. She agreed that she met up with one son in the Canberra suburb of Braddon and then proceeded with him to meet with her other son in the Canberra suburb of Manuka. The plaintiff agreed that this trip to Canberra was a distance of some 290km each way. She believed that her husband was working on that day. The reasons she gave for going alone were that she had a new car, was comfortable with her medication and in herself and the car was an automatic. She said she also had a new cushion to sit on for the purposes of the trip. The plaintiff said she wanted to try the car on the trip and also wanted to see her sons. She agreed that she left Orange to go to Canberra at 9.30am and stopped for a short period in a park in Boorowa before proceeding to Canberra. The plaintiff could not recall sitting with her first son for an hour without standing up or sitting down in the car and at a café for two and a half hours continuously, but agreed that this may have been the case. 9. The plaintiff gave evidence that she used her car to see her doctors in Orange. She also confirmed that she drove once every three months to see Dr Thong who had moved to Bathurst. She said she was only able to undertake this driving trip if she had an "appropriate psychological framework" to do it herself. The plaintiff gave evidence that while she could drive the manual vehicle she had before, the new automatic car was much easier. The plaintiff also confirmed that she had travelled to Sydney on holidays as she had a number of family members in Sydney. She said she would have done this on more than one occasion by car. The plaintiff indicated that sometimes she drove part of the way, depending on the vehicle and how she was at the time but she would not have driven the full way. 10. The plaintiff was taken to entries in the records of Dr Thomas in 2014 in which she had indicated that she had steady improvement in her sacral pain. The plaintiff said she accepted this if it was reflected in the records. She also accepted that she had told Dr Thomas that she had made good progress and was swimming and walking regularly. One entry suggested that the plaintiff had driven 90 minutes to Dubbo without significant exacerbation to her condition. The plaintiff gave evidence that she could do driving duties, including going to Dubbo with her job, if she had the appropriate mental and physical state on that day. She also agreed that she had driven to Dubbo and travelled with other people. The plaintiff said that she had driven to Dubbo as she was trying to get back to her normal duties and the TAFE vehicle supplied was a smaller automatic vehicle. The plaintiff also conceded that Dr Thomas, in February 2015, had certified the plaintiff as having a recommended driving allowance of 200km per day. 11. The plaintiff was then asked a number of questions about her work environment in 2015. The plaintiff confirmed that she had told Dr Patfield, a psychiatrist, in March 2015 that she found work very difficult. She also confirmed that she thought her boss was giving her the "most stressful work" and that she was being "actively bullied." The plaintiff gave evidence that her boss told her do her job including all that was required including country driving. The plaintiff gave evidence that the bullying consisted of her boss saying to her when she told her when she had to have a hip operation words to the effect: "Not again, we better replace you." 12. The plaintiff denied that she was a person who was "highly geared" to make workplace complaints: T87.31. The plaintiff gave evidence, however, that she did complain about her chair and desk when she went back to work after the accident. She was asked not to stand in meetings as it was distracting to other persons: T88.6. The plaintiff conceded that her employer, including her rehabilitation officer Pam Kelly, had acquired all necessary office furniture to allow her to engage in a return to work programme at the end of 2015. The plaintiff confirmed that she had not resigned in March 2015 from her job but had stopped going to work at that time. She confirmed that eight months had elapsed when she was not working. She denied that she kept putting extra stipulations on her return to work to her employer to make it impossible for the employer. The plaintiff confirmed that she asked for a "micro desk" to assist with her work and this was provided. The plaintiff confirmed that she required to come back to her normal job as that was her position and that is what she liked doing. She said that she "clung" to her job as she wanted her normal life back: T92.30. 13. The plaintiff also gave evidence that the employer allowed her to have an office at premises in March Street in Orange which included a bigger office and room for her executive assistant to move with her. The area had a separate office with space for her to lie down if necessary. The plaintiff said that all of her requests were actioned by her employer including the acquisition of new office equipment recommended for her use by the rehabilitation officer, Pam Kelly. The new furniture allowed her to sit and stand with an adjustable desk as the previous "micro desk" did not accommodate her needs. The plaintiff agreed that she worked from November 2014 12 hours per week on three days. The plaintiff agreed that she avoided going to meetings at TAFE's Forest Road premises including working more than her stipulated four hours per day because proper seats were not available to her at Forest Road. The plaintiff said that she was restricted to working only four hours per day at this time. These clear instructions were provided to the plaintiff, according to her evidence, by Ms Kelly. 14. The plaintiff denied that she was only willing to work on her terms. She agreed that at this time in December 2014 she was happy with the safety and adequate provision of furniture for her work environment and was keen to return to work. The plaintiff agreed that her employer had done everything requested of it by her and she moved to fulltime work. The plaintiff agreed that as far as she was aware there were no impediments to her returning to work on a fulltime basis and she wanted to do so. However, the plaintiff confirmed in her evidence that as at January 2015 she was still suffering from constant pain in the sacrum and that affected her ability to attend to her full duties both at work and at home: T104. The plaintiff agreed that in January 2015 she was being called every day to the Forest Road TAFE premises for a one hour meeting. She found getting in and out of the car to be a problem and working full hours was difficult with the pain which she suffered: T105. 15. The plaintiff agreed that at a meeting with Pam Kelly and others in February 2015 she stated that she had a plan to "end it all". The plaintiff confirmed that she was referred to the community mental health unit. The plaintiff said that at this time she believed that her superior was making it difficult to perform her duties in the work place as she would not agree with the plaintiff participating in meetings via videoconferencing from her March Street office. The plaintiff said that her boss wanted her to attend some meetings in person and she refused as this was difficult to do as she was instructed not to stand up in meetings: T106-T107. 16. The plaintiff was then asked questions about her employment status in January 2016. She confirmed that as that time she was still an employee of the TAFE Institute. She agreed she had contact with Pam Kelly in February 2016 in relation to her return to work; however, the plaintiff said the work was to return to Forest Road which she regarded as being unsuitable. She also said that no work was offered to her. She accepted that Pam Kelly had told her that the work place would be modified for her. The plaintiff agreed that she had told doctors that her work was very stressful but gave evidence that she loved her job. She agreed that she told a doctor that she thought that her employer wanted to get rid of her and that was the impression that she had formed. 17. Ultimately the plaintiff said the person who made the decision to stop turning up to work with her employer was herself. In answer to the question whether that was because she was in pain, the plaintiff said that it was because she decided to kill herself as she could "no longer retain control". The plaintiff said she had been battling for several months to keep going to work and keep her job and her life. She stated that she could no longer psychologically do it and that she was "googling ways to kill herself." She even arranged a plan to commit suicide: T119-120. 18. The plaintiff was then asked a series of questions about personal care and domestic chores. 19. She agreed that her husband used a ride on mower. However, the plaintiff said that prior to the accident the hand mowing was done by her and a large area of the garden needed to be hand mown: T117. She agreed that her husband was still capable of doing the lawns and mowed the majority of the lawn area on a ride on mower: T117.38-.50. 20. In her evidence, Ms Jay agreed with counsel for the defendants that her brother and his wife had come to stay with the plaintiff shortly after the accident in 2013 and had stayed in her house for a period of time and assisted with cleaning the house, preparing the meals and undertaking domestic activities. The plaintiff could not recall how long they had stayed but when they left her husband took over the domestic activities. 21. The plaintiff confirmed that her husband was a mines inspector and he travelled in his job. She agreed that he could be away with his job for up to a week on an irregular basis. She said it was very rare that both of them were away at the same time. In answer to a question as to whether he could cook and clean for himself, the plaintiff said that her husband relied on takeaway food prior to the accident if she was not there and food which she had left for him to eat other than him preparing simple meals. She gave evidence that her husband invariably did not wash clothes while she was away but left it for her to do upon her return. 22. The plaintiff agreed that she had substantial difficulty for the four months to the end of 2013 in doing anything around the house as she was in incredible pain: T128.41. The plaintiff agreed for at least the first three months after the accident she needed assistance with dressing, showering, putting her shoes on and domestic duties such as cooking, cleaning and laundry. The plaintiff confirmed that as at February 2016 she was independent in all aspects of personal care apart from needing a pedicure every two months. She did the cooking in the house and the dusting whereas her husband did the mopping of the floors. The plaintiff accepted that the mopping of the floors in the house took about 45 minutes per week: T130.8. 23. The plaintiff agreed that she undertook most of the washing and the ironing but her husband put heavy items into the washing machine and hung them on the line. These included his work clothes and the mats for the dogs of which there were about 15 and were washed every week: T138. The plaintiff agreed that it took about six minutes to peg their bed clothes on the line and about a further ten minutes for the dog mats: T137-138. 24. The plaintiff agreed that she could undertake light shopping but could not push a laden trolley. Her husband assisted with the heavier shopping. 25. The plaintiff confirmed that her driving was limited to about 30 minutes before she experienced lower back and hip pain. She agreed that she had been able to drive to Canberra with a short break but experienced pain in driving after half an hour. 26. In relation to an overseas holiday to New Zealand in about April 2015 the plaintiff said that she flew economy class and had to get up regularly to stretch. The plaintiff gave evidence that the holiday to New Zealand was planned so that she would have something to look forward to because of her suicidal ideation. She confirmed that she had seen doctors in New Zealand but did not need to see doctors upon her return because of pain. She agreed that she could travel again to New Zealand adopting the same standing up and stretching strategy. The plaintiff said that she did not know whether she could tolerate longer overseas trips. 27. The plaintiff was then asked about information she had provided a rehabilitation consultant for the purposes of an earning capacity report in April 2017. The plaintiff confirmed that she had said that she was independent in showering and dressing, could undertake cooking, was able to do some shopping for small items but that her husband completed many other tasks around the house including pegging out the washing and bringing it in. 28. The plaintiff confirmed that she had told the rehabilitation officer that she had initiated a return to work in June or July 2016 but was not offered her old job back but was offered a research role. The plaintiff also said that at that time her employer could not find the special chair and desk which had been available to her previously in her position in her March Street office. The plaintiff also said that the offer was of a position working in an open office and she did not feel psychologically safe in that position because her fellow workers were asking questions about her condition. 29. The plaintiff said that she was told by the Rehabilitation Officer, Pam Kelly, that her old desk could not fit in the location but that an alternative desk arrangement was offered. The plaintiff said she was physically unable to raise and lower the desk as she needed. She was taken to the office and the desk available was demonstrated but it was hard to operate and she needed help with it. The plaintiff said that the desk raising and lowering device was obviously heavy and difficult and she would have needed help. The plaintiff said that her manager said she could ask people to assist her but the plaintiff said that it needed adjustment every half an hour and she thought it would be disruptive to ask people. She was told that her special chairs could not be located. The plaintiff denied that she invented specious impediments to prevent her return to work: T141.45. Re-examination of the plaintiff 1. In re-examination the plaintiff gave some important further clarifying evidence in relation to the accident and other issues. 2. The plaintiff was taken to the photograph appearing on page 24 of Mr McDonald's reports at Exhibit A page 30. The plaintiff confirmed that when she was standing putting the key into the lock to lock the car on the day of the accident she was facing "probably" in a south-east direction: T170.43. The plaintiff confirmed that she was unsure after she placed her key in the zipped compartment of her bag as to whether she took a step: T171.3. The plaintiff confirmed that she was intending to cross the road and to do that she would have faced the western side of the road to walk frontwards across the road: T171.8. The plaintiff also confirmed that she was going to turn to the right in order to face the western side of the road because I was sort of "half facing that … way": T171.13. In order to turn to the right to face across the road the plaintiff said: "A. My foot would've gone back, because that's how I believe I was going to turn around, but I just don't know if my foot went all the way to the road, or ‑ I was just going to turn around, yes." (T171.19-.21). 1. The plaintiff then gave evidence that she believed she used her "right foot to step backwards and this step made her body turn towards the right: T171.30-.43. The plaintiff said that at the time she was hit she was facing "probably south" and "maybe partly to the east": T171.45-172.2. 2. The plaintiff was then asked questions in re-examination about her taking of the antidepressant Pristiq. The plaintiff confirmed that she currently took Pristiq in a dose of 200mg. She said it was prescribed for her by Dr Duncan, her treating psychiatrist: T171.13. The plaintiff said that she had been taking 200mg of Pristiq since at least November 2016 and it could have been before then: T172.24. The plaintiff gave evidence that she had seen Dr Crane who had prescribed Pristiq before she saw Dr Duncan and Dr Duncan had increased her dose: T172.42; T173.5. 3. The plaintiff confirmed that she had seen a number of rehabilitation providers and had been given a number of return to work plans. Ms Jay gave evidence that she understood that she had to adhere to the restrictions placed on the medical certificate which allowed her to return to work, including the number of hours she was permitted to work: T173.42. 4. The plaintiff was then asked what occurred in relation to domestic duties if her husband went away between Monday to Friday. She said that if that occurred the jobs did not get done and he had to do the domestic chores when he returned. The plaintiff confirmed her evidence at T34.5-.11 that the plaintiff's husband completed domestic duties previously undertaken by the plaintiff for about seven to eight hours per week on average: T174.29. The plaintiff said that if her husband was away her niece, one of her sons, her sister-in-law or her brother comes to help: T174.46. 5. In relation to the plaintiff's tiredness in driving, she confirmed that in February 2015 when she was supposed to drive to Wellington she had felt tired by Molong which was about 30 minutes from her home. The plaintiff said she "was embarrassed to have to admit that I couldn't get there [to Wellington]": T175.29. 6. Ms Jay then gave some evidence when she was working "full hours" in her job. She said that when working full hours she was not doing her full duties: T176.26. The plaintiff gave evidence that she had restrictions on the location that she should work from, her hours of work, her travel and lifting of items of a particular weight: T176.38. These were restrictions she had to comply with as part of her return to work plan. 7. The plaintiff finally gave evidence that her normal manner of crossing the road was not to look for traffic with her back to the road but to look to her right, her left and then back to the right again when she crosses a road: T177.36-.43. Further cross-examination 1. The hearing of the case occurred in several parts due in the main to the necessity to obtain further psychiatric expert reports and the availability for cross-examination of specialists. In the third period of the hearing of the matter in April 2018, the plaintiff, Ms Jay, was further cross-examined in relation to a number of matters following the service by the parties of additional expert medical evidence and leave being granted to the plaintiff in the 2016 proceedings to file an Amended Statement of Claim. 2. In relation to cross-examination by counsel for the State of New South Wales, Ms Jay was asked a number of questions in relation to her routine whilst working with the TAFE prior to the accident. Ms Jay confirmed that as part of her conditions of work she was supposed to have a lunch break each day of 30 minutes. This could occur at any time during the day and there were no restrictions on her as to where and how she would take it. Ms Jay gave evidence that the way she took her lunch break varied and that she did not remain at the TAFE every day for her lunch. Sometime she ate her lunch at her desk or in a meeting or in her car going to another place of work or while she was talking on the phone. 3. Ms Jay gave evidence that her duties took her away from the TAFE office where she worked and she attended other places in Orange for appointments or meetings which also occurred during her lunch break. 4. On the day of the accident, 22 August 2013, Ms Jay gave evidence that she left her office at the TAFE to go to an appointment with another appointment being scheduled straight after. She said her first appointment was with Rebecca Anderson, later identified as a psychologist in Woodward Street in Orange. The plaintiff said she believed she had not taken her lunch break on that day as it was only midday. She could not recall whether she had eaten her lunch. After her first appointment with Ms Anderson she was to proceed to meet a Ms Baxter who was the TAFE Institute Director: T309.10. 5. The plaintiff confirmed that after the accident she made a workers compensation claim as she was advised to do so: T309. At the time she did not understand what was covered by the claim but she agreed that she received weekly benefits from 23 August 2013 in workers compensation payments: T309.45. 6. The plaintiff then confirmed a document which became Exhibit 2D5 as recording accurately payments she had received in workers compensation benefits and other payments relating to medical and like expenses. Only one or two names were unfamiliar to her on this document. She agreed that the other persons and entities had provided services to her in relation to her injuries arising from the accident: T310.32. 7. The plaintiff confirmed that the time of the accident was just before midday and she had taken her lunch with her but had not yet eaten it. Ms Jay confirmed that in relation to leaving the TAFE to go and do her own personal business, she was not required to seek approval from anyone at the TAFE: T311.8. 8. The plaintiff was then further cross-examined by counsel for the defendants. The first area of cross-examination related to the plaintiff's claim for workers compensation. When asked whether she made a claim for workers compensation shortly after the accident, the plaintiff said she must have done but she could not recall doing it. The plaintiff could not recall completing additional documents in relation to her workers compensation claim including obtaining a certificate from a doctor from the hospital. However, the plaintiff confirmed that she signed a workers compensation claim form when shown it. She agreed that someone assisted her to complete the document and that parts of the form were completed by her. She did not recall who completed the rest of the form. 9. The plaintiff was then asked questions in relation to the appointment which she was planning to attend with Ms Rebecca Anderson in Woodward Street Orange shortly before and on the day of the accident. The plaintiff confirmed that at the time of the accident she was going to see Rebecca Anderson who was a consultant psychologist at Caro Consulting. When asked the reason why she was seeing Ms Anderson, the plaintiff said: "It was about some matters that had gone on at work in relation to the death of a student and different management changes that had to happen around that": T320.13. 10. The plaintiff was cross-examined in detail in relation to her reasons for seeing Ms Anderson on the day of the accident. The plaintiff maintained throughout her evidence that the reason she was going to see Ms Anderson related to work issues and how she would manage those work issues relating to staff and ongoing changes at the TAFE. She noted that the director responsible in the area where she was working was on leave and she was acting in her position. The plaintiff maintained that she was at Ms Anderson's rooms consulting her for advice and guidance about how to deal with the staff in the area where she was acting. Despite this, the plaintiff confirmed that although she could not remember when the student had died in the horse riding accident at a TAFE campus at Dubbo, there was only one such incident and she accepted that it occurred in March 2009, over four years before she was seeing Ms Anderson. 11. The plaintiff confirmed that she made the appointment with Ms Anderson and that she had consulted her previously in relation to similar issues being for assistance with dealing with staff members and in the plaintiff acting in the position. The plaintiff said that she "might" have been consulting Ms Anderson as a psychologist through the Employee Assistance Program (EAP): T321.38-.45. The plaintiff denied that she was consulting Ms Anderson in relation to her own personal psychological difficulties: T321.49. The plaintiff again emphasised that she was seeing Ms Anderson for "work guidance" for managing her distressed colleagues: T322.25. The plaintiff said she was seeing Ms Anderson for the purposes of "trying to get my job done and I needed help to do that, to sort some issues out": T322.45. The plaintiff agreed that she gave permission to Ms Anderson to contact her general practitioner Dr Khin: T323.42. 12. The plaintiff also agreed that she consulted Ms Anderson at Caro Consulting throughout the period April to July 2013: T324.3. When it was put to the plaintiff that she did not see Ms Anderson for work purposes, the plaintiff said that she was only talking about work issues and her management of those issues: T324.16. She said that her recollection was that there were "tensions" with the employees still arising from the TAFE student's death: T324.24. The plaintiff said she did not recall discussing with Ms Anderson during the periods of the consultancy from April to July 2013 any personal problems that she was experiencing: T324.29. When it was suggested again that Ms Anderson was consulted by the plaintiff in relation to her own psychological issues and not those of her work colleagues, the plaintiff said that she could only go to a consultation under the Employee Assistance Program through work: T324.46. 13. The plaintiff was then shown two pages of notes made by Ms Anderson in the period from 9 April 2013 to 18 July 2013 and she accepted that there was no reference in those notes to the consultancy being in relation to the management of the distress of colleagues arising from the student's death: see Exhibit 1D6 pages 274-5 (volume 1). When it was suggested to the plaintiff that the notes disclosed that the consultations were in relation to the plaintiff's own concerns not those relating to the distress of work colleagues, the plaintiff replied that the consultations were "all about work": T327.1. However, the plaintiff accepted that the notes were about work in the context of her own concerns: T327.4 14. The plaintiff accepted that the Caro Consulting notes did not include any notes in relation to an appointment for the period after 18 July 2013. Similarly, there were no notes for 22 August 2013. The plaintiff said that she was seeking advice from Caro on 22 August 2013 in relation to similar matters: T327.25. The plaintiff accepted that the notes only disclosed matters in relation to her own "distress" not those of the persons she supervised at work: T327.37. The plaintiff said that she did not remember being referred to Ms Anderson by her general practitioner Dr Khin for personal issues: T328.2. The plaintiff said that the consultations related to her personal issues "in relation to work": T328.11. She accepted that the notes did not disclose that the consultations related to the effect on her work colleagues of the death of a TAFE student. However, the plaintiff denied that she was not consulting in relation to her work colleagues. The plaintiff stated in her evidence: "I was acting in the role of the director who'd been responsible for the area where the student was killed. So I'd just taken over these people, I'd had a couple of meetings with them, there was a lot of anxiety and angst for those people over what had happened": T328.42. The plaintiff agreed that she authorised Ms Anderson to release the documents to her general practitioner Dr Khin: T329.37. The plaintiff said that she was "as happy as Larry [the day of the accident]" and "did not have any personal issues with my state of mind or any other thing because I was in such a good mood": T330.50-331.2. She stated that she was going to talk to Ms Anderson because she was having difficulty with the "head teachers" and that related to work: T331.4. 15. The plaintiff was then asked a number of questions about her recent consultation with Dr Burke, a psychiatrist whose reports are relied upon by the plaintiff in the proceedings. She agreed that she saw Dr Burke on 6 October 2017 and it was a lengthy consultation. It was put to the plaintiff that when she saw Dr Burke on 6 October 2017 that she did not inform him in relation to her anti-depression treatment prior to the motor vehicle accident. The plaintiff said that she answered his questions and told him the truth. She stated that she was depressed over her cancer diagnosis in relation to her kidney and believed she would have told Dr Burke that: T334.13. The plaintiff said that she believed she told him about her prior treatment whether it was at the appointment in October 2017 or at her earlier appointment with Dr Burke: T334.26. 16. The plaintiff was then taken to her earlier consultation in 2015 with Dr Burke. She conceded that she found out later that the incident in relation to the physical threats by the fellow TAFE worker was much earlier by about 10 years and that she had given Dr Burke some incorrect information: T335.13. The plaintiff also accepted that the history she had provided Dr Burke in relation to the prescribing of Pristiq was wrong and that she had a faulty recollection in relation to timing. The plaintiff agreed that she was taking Pristiq for a period prior to the accident but said that she was not taking it "consistently": T336.21. 17. The plaintiff was then cross-examined in relation to the information she had given to Dr Burke at the consultation in October 2017 in relation to the medication she was taking. She said that she gave Dr Burke a printed list of her medicines. She was then taken to page 3 of Dr Burke's 2017 report where he described the plaintiff as calling the intensity of her pain "breathtaking and becoming more frequent". The plaintiff said she did not recall saying this but accepted that she said "something like that perhaps": T337.29. It was then put to the plaintiff that since April 2017 the only drugs that she had been presenting prescriptions for were Pristiq, a drug related to her shingles, and another drug prescribed for her by Dr Duncan. The plaintiff said that she was also taking a drug for her thyroid condition and had been doing that prior to the accident. It was put to the plaintiff that the records did not disclose her presenting prescriptions for Lyrica, Palexia or Panadeine Forte for pain. The plaintiff's evidence on this issue was somewhat confusing but she said that she was happy to accept what was put to her. In the end, Ms Jay seemed to accept that that is what the records disclosed: T339.1. It should be noted that this was in the context of Ms Jay disclosing, in my view, some difficulties with the questions and then being upset before the adjournment on the day. 18. Following the State of New South Wales being granted leave to further amend their pleadings, Ms Jay was asked some further questions by counsel appearing for the defendants in both proceedings in relation to issues concerning the circumstances in which she was injured. The plaintiff gave evidence that when she left the TAFE premises to do her own personal business she did not need to get permission from anyone to do so. She said that she regarded personal business as including attending medical appointments, going shopping and having her lunch or other breaks. When asked specifically about being required to inform someone and obtaining permission to take time off for personal medical appointments, the plaintiff said that as far as she was aware there was no need for approval from anyone for her to do so at the time of the accident: T351.34. The plaintiff stood by her evidence that, at the time she parked her car for the purposes of attending a consultation with Ms Anderson, she was not attending for personal purposes but for work purposes: T351.44. 19. The plaintiff was then asked further questions in relation to what she told Dr Burke in her October 2017 consultation. The plaintiff said that she answered questions that Dr Burke asked her and realised that he was providing an opinion in relation to her current condition. When it was asked of her whether she agreed it was important to provide Dr Burke with all the details of her activities of daily living, the plaintiff said that she disclosed information as he asked her. She said she did not consciously keep any information from Dr Burke but provided what she thought he needed. She said that she did the best that she could: T352.16. 20. The plaintiff was then asked a number of questions about alleged inconsistencies in information which she provided to various doctors. It was put to the plaintiff that she had told Dr Shatwell, Orthopaedic Surgeon, in a consultation with him that she could not walk or run since the accident. The plaintiff accepted that she said this and stated that she since recalled that she had done some jogging eight or nine months after the accident in an attempt to relieve pain which was of no assistance. She said this was prior to her arthroscopy procedure being her hip surgery. The plaintiff emphasised the difficulty she had running but accepted that she had done some jogging prior to her hip surgery. It was then put to the plaintiff that she entered and completed the Northparkes Rotary Fun Run on 18 May 2014. This was said to be a mixed 5km run. The plaintiff said that she did participate in the run and "peed [herself] all the way" and did not jog thereafter: T355.18. Exhibit 1D6 volume 3 page 71 is the finish list which shows that the plaintiff completed the run. 21. It was then put to the plaintiff that she told Dr Burke in October 2017 that friends from Parkes came to visit at six monthly intervals, she occasionally went to restaurants and could not read newspapers or magazines. The plaintiff agreed that she went to restaurants only very occasionally and was impaired in relation to her concentration and functioning: T356.22. 22. The plaintiff confirmed that she had been seeing her psychologist, Ms Natalie Toner, since September 2014. It was put to the plaintiff that when she saw Ms Toner after giving evidence in the first part of the hearing that she told Ms Toner in July 2017 that she had started a Bachelor of Arts in Social Work. The plaintiff accepted that she told Ms Toner that and when she saw Dr Burke in October 2017 that she did not disclose the commencement of the course to Dr Burke. It was put to the plaintiff that she told Ms Toner in July 2017 that she thought the study she had commenced was worthwhile and that she found it enjoyable and interesting. The plaintiff said she did not recall this but accepted that she said that. She also accepted that she told Ms Toner that she had some difficulty with one thousand word essays but she would go outside to the garden if she found difficulties in her concentration. She also agreed that she told Ms Toner that she attended online lectures every Monday and she was looking forward to them. The plaintiff also accepted that she told Ms Toner that it took her a lot longer now to do cryptic crosswords which she did not recall telling Dr Burke, but she said that she had not done cryptic crosswords for a long time: T356-8. 23. The plaintiff accepted that in July 2017 she told Ms Toner that she walked the dogs every second day, saw her physiotherapist every few weeks, went to Pilates every Friday and was still attending spinning classes. It was put to the plaintiff that she was significantly involved in the Spinners Association. The plaintiff said that she had not been there for several months and very rarely went although she was a member. She said she was not aware that she was the contact on the circular for the advertising for the Autumn Fibre Muster event in Orange. She said no one had ever contacted her in relation to the matter. When it was suggested that she told Ms Toner that she was attending the Spinners Association weekly, the plaintiff said that she accepted she said that but she had not been to the Association for at least two months. The plaintiff also accepted that she told Ms Toner in July 2017 that she did not wish to bother with people because she wished to concentrate on her university studies. 24. It was then put to the plaintiff that she told Dr Burke that her social activities were very limited and she did not like to be seen out to limit surveillance of her. The plaintiff said that she did not like dealing with people and then sought a break in her evidence. She said she did avoid going out because of the possibility of surveillance because she felt shame and remorse after the first hearing where she was cross-examined in relation to seeing her sons in Canberra and having a lunch at the Orange Country Club with her work colleagues. She agreed that avoiding surveillance was one of the reasons she did not go out but there were other reasons as well. The plaintiff agreed that one explanation for her social isolation and not going out was that she did not wish to be judged if she went out: T364.48. 25. The plaintiff accepted that when she saw Dr Burke in October 2017 that he asked her in relation to her work and was of the view that she was not fit to return to work since 2015. She accepted that she told Ms Toner that she had received a call from work which had shaken her up. She said she still felt hurt in relation to what happened at work and it was a continuing stressor to her. 26. It was put to the plaintiff that she told Ms Toner in July 2017 that on most days she had her pain under control and she could do "whatever she needs to be comfortable": T363.14. The plaintiff importantly accepted that she said this to Ms Toner and also accepted that that was different to what she had told Dr Burke in October 2017. She agreed that when she saw Ms Toner in August 2017 she was still studying her degree course and had said that she was completing essay after essay and taking copious notes in an attempt to try to focus. She agreed she told Ms Toner that she thought she was organising things better and she was enjoying the course and finding it interesting. She also agreed that she told Ms Toner that she wanted to explore further volunteer opportunities. She agreed that in September 2017 she had become the President of the local Quota Club in Orange which was a charitable club. The plaintiff denied that she deliberately was withholding relevant information from doctors concerning her symptoms: T367.40. However, she accepted that she did not disclose her study activities or her spinning activities to Dr Burke nor did she disclose to him that she was the President of the Quota Club. She also accepted the same failure to disclose in relation to Dr Roberts. 27. When asked why she did not disclose this information, the plaintiff said that she was very anxious when she saw the doctors: T366.40. The plaintiff said that she did not recall these matters to tell Dr Burke. She denied that she deliberately withheld important information when she was asked about her activities of daily living by Dr Burke. She said she did not consciously withhold any relevant information concerning her presentation to any of the doctors: T368.32. 28. In further re-examination, the plaintiff said that when she answered questions asked by Dr Roberts and Dr Burke she answered all of their questions to the best of her ability and did so to all doctors that she had seen since the last time she was in court: T369-370. 29. The plaintiff also stated that when she answered questions with "I accept that" she meant that she did not remember the particular item but she was not questioning what those people recorded her as saying: T370. The plaintiff said that when on occasion she stood up whilst giving her evidence that she was uncomfortable in the hip and had to move around: T371. 30. The plaintiff gave her oral evidence in two tranches separated by several months because of the service of additional medical reports. The first tranche was in June 2017 and the second tranche was in April 2018. Both parties accept that the plaintiff has a major depressive disorder at the least. The issues are the extent of her physical injuries and disabilities arising from the accident, and whether her psychiatric condition, whatever the extent of it, was caused by the accident. 31. The plaintiff was a highly emotional witness who was frequently teary and upset and who found the process of cross-examination and the review in detail of the circumstances of the accident and her pain and limitations following it, to be significantly distressing. The plaintiff asked for several breaks in the hearing due to her being upset and in tears. On several occasions, the plaintiff raised her voice in giving answers and referred to the fact that she had considered and even planned suicide on occasions as a result of her injuries. It was put to the plaintiff by counsel for the defendants that she had deliberately withheld important information as to her activities and prior medical history from various doctors including her own treating doctors and medico-legal experts. She denied this. 32. I formed the clear view from the extensive cross-examination that the plaintiff was essentially an honest witness who was attempting wherever possible to be truthful in her answers. I reject the defendants' submissions to the contrary. The plaintiff made numerous concessions including that she did not look up the road towards the defendant's vehicle after alighting from her own vehicle. While there were some inconsistencies in the plaintiff's evidence I do not put these down to her exaggerating or embellishing her injuries. Rather, the plaintiff seemed to have a genuine inability on occasions to recall the detail of her restrictions and problems at work at particular points in time. In general terms, I accept the plaintiff as a witness of truth. 33. In my view, the plaintiff's recollection seemed to have deteriorated on the second occasion she gave evidence. She appeared to be agitated and had difficulties focussing on the questions. She readily accepted that she may not have told doctors Roberts and Burke the full detail in relation to her recent activities. Again, I formed the clear view this was not deliberate. 34. I will consider the reliability of the plaintiff's evidence further below. Evidence of Mr Robert Jay Evidence in chief 1. Oral evidence was given by Mr Robert Jay, the husband of the plaintiff. 2. Mr Jay was asked questions in relation to the home life enjoyed by him and the plaintiff prior to the accident. He said that they lived on a five acre property which consisted primarily of gardens. He said there was a substantial division of duties between the plaintiff and himself. Inside the house the domestic duties were undertaken by the plaintiff whereas outside the house they shared the duties. Mr Jay said that outside the house the plaintiff undertook gardening and pruning: T204.18-.30. 3. Mr Jay gave evidence that prior to the accident his job involved travel and his wife's job at the TAFE also involved overnight travel at times: T206.5. Their social life consisted of activities including attending restaurants for meals. 4. Prior to the accident, the plaintiff and Mr Jay had enjoyed overseas travel and travel within Australia where they took their bicycles on the trips. Some of the holidays overseas involved walking holidays particularly one in Spain. Prior to the accident, Mr Jay did not notice that the plaintiff had any difficulty in undertaking the walks or the pushbike riding: T206.46. 5. In relation to the plaintiff's work with the TAFE, Mr Jay noted that the plaintiff held a high level within the TAFE for a long time and he believed she "loved her job". According to Mr Jay, the plaintiff had a number of staff who she enjoyed working with: T206.50. 6. Mr Jay was then asked questions in relation to the plaintiff after the accident. 7. Mr Jay gave evidence that the plaintiff was in hospital for about a week and when she came home she was very restricted and needed assistance. He said that his sons came home to help. Mr Jay stated that the plaintiff needed assistance for things like showering and getting into bed. 8. Mr Jay said that for the period of six to eight weeks after the accident he did as much as he could and his sons also assisted with preparing meals. In relation to other domestic duties Mr Jay said that he did these with the assistance of his sons. After his sons left, Mr Jay said he did more around the house and assisted the plaintiff when she did some activities. Mr Jay said that after his sons left he helped with the washing, the changing and making of the bed, assisting with meals, vacuuming and mopping the floors: T208.28. In relation to duties that the plaintiff used to do before the accident that Mr Jay has picked up and continued to do, he estimated that during the week these activities probably took an extra hour to an hour and a half a day. On the weekend, Mr Jay gave evidence that he mainly did the cleaning such as mopping the floors, vacuuming, sweeping and washing: T208.48. Mr Jay said that when he had to go away overnight during the week the domestic duties usually waited to be undertaken until he came home: T209.6. 9. In relation to outside the house, Mr Jay said that he has a ride on mower which he used whereas areas that could not be cut with the ride on mower were prior to the accident, shared by using a push mower between the plaintiff and himself. When available Mr Jay said he tried to get his sons to do the push mowing activities. 10. In relation to planting plants and attending to the gardens, the plaintiff did these activities with Mr Jay's assistance and he now undertakes those activities himself. This includes pruning. Mr Jay estimated that he spent five hours per week undertaking these activities on a Sunday that the plaintiff used to do prior to the accident. The plaintiff now directs him what to do: T210.2. Mr Jay said he also undertook tasks in the vegetable garden that the plaintiff did before the accident. 11. When asked to describe the difference in the plaintiff before and after the accident Mr Jay said "there was probably a significant change": T210.49. He said life was really good for the plaintiff and himself prior to the accident but it was definitely not now. He described the plaintiff as being in constant pain, being very moody, getting upset very easily and becoming emotional very quickly. He also noted that the plaintiff did not wish to go out socially any more: T210.21. Cross-examination of Mr Jay 1. Mr Jay was asked whether he was aware that his wife was being prescribed antidepressant drugs prior to the accident. He said he did not specifically recall it: T211.13. Mr Jay confirmed that he recalled that the plaintiff was very upset in 2000-2001 as a result of a supervisor which she had in the finance department. He also confirmed that the plaintiff saw a psychologist at that time. Mr Jay said that he did not recall his wife being prescribed the antidepressant Pristiq: T212.39. Mr Jay was asked questions about whether he recalled the plaintiff having any problems at work in the year 2013 before the accident. Mr Jay said that he recalled that a student was killed at a TAFE in Dubbo riding a horse and although the plaintiff was not directly involved in it she was at a senior level and he believed it affected everyone in the organisation. Otherwise, he did not remember the plaintiff having troubles at work in 2013 before the accident: T212.7. In particular, Mr Jay indicated that he was not aware that the plaintiff was thinking of quitting her job prior to the accident: T212.12. He confirmed that he would have expected her to share that with him as he thought she loved her work: T212.16. 2. Mr Jay was then asked some questions about his duties at home. Mr Jay gave evidence that there had been extensive planting of the garden at their house prior to the accident. He stated that the plaintiff had devoted a lot of time to the garden both before and after the accident. Mr Jay confirmed that the gardens had been expanded about 50% since the accident: T214.26-T215.8. Mr Jay also confirmed that additional hedges had been planted after the accident. He indicated that the driveway hedge required trimming three or four times a year, whereas a hedge near the main rainwater tank required hedging about twice a year. This trimming took about three hours in total. The mowing of the labyrinth with a hand mower was estimated by Mr Jay to take an hour to an hour and a half. 3. Mr Jay confirmed that in the first three months after the accident the plaintiff was very restricted and could not do anything looking after herself: T216.29. Mr Jay then gave evidence that since that time the plaintiff started to improve and could look after her personal hygiene and toileting apart from cutting her toenails which took Mr Jay a couple of minutes once per month. 4. In relation to cooking, Mr Jay said that he was a poor cook but he could cook food on a barbeque. After Christmas 2013, the plaintiff resumed some of the cooking duties and Mr Jay assisted her: T217.47-T218.20. 5. In relation to doing the laundry, Mr Jay said he was happy to do it (T218.34) and he usually put the clothes into the washing machine and hung them out on the line. He accepted that the plaintiff has put light things in the washing machine and hung them out at times but he generally tried to do it: T219.1. Mr Jay confirmed the plaintiff's evidence that they had multiple rugs in the house which were washed regularly once or twice per week. The mats were used by the dogs and he undertook that task: T219.15. Mr Jay confirmed that they had dogs both before and after the accident. 6. In relation to changing the bed linen, Mr Jay did that on the weekend and it took him about 10 to 15 minutes to strip the bed, put it in the washing machine and hang it out. 7. Mr Jay gave evidence that he did the majority of the shopping although the plaintiff did some minor light shopping. The major shopping for the household was done on a Saturday by the couple together: T220.10. Mr Jay said the plaintiff was able to see her doctors by herself and pick up her prescriptions: T221.27. 8. Mr Jay confirmed that the couple did not have many people attend their house socially. The only people who attended the house regularly were their children: T222.41. Mr Jay also confirmed that the plaintiff had been "very depressed recently" because of the case coming up for hearing: T222.50-T223.10. Mr Jay could not recall the plaintiff in February 2016 behaving in a relatively happy and laughing manner either with himself or his sons as was reflected in the Orange Country Club lunch which the plaintiff attended. 9. Mr Jay impressed me as a completely honest and straightforward witness. He did not exaggerate in his evidence and made concessions where appropriate. I have no hesitation in accepting his evidence as truthful. Evidence of Mr John Maginnis 1. Oral evidence was given by Mr John Maginnis. Mr Maginnis is the Relieving Director, Customer Service and Facilities, for TAFE New South Wales: T250.12. Mr Maginnis, in acting in this position, is currently relieving for the plaintiff. Accordingly, his relieving position is the plaintiff's substantive position with TAFE New South Wales. Mr Maginnis' substantive position is Manager of Student Administration and Reporting for the Western Region of TAFE New South Wales: T251.11. He reported to the Director, previously Ms Jay, whilst she was working. Mr Maginnis has been in his current position for three months. 2. Mr Maginnis gave evidence that he knew the plaintiff and worked from 2008 with her. He also gave evidence that he knew her before that time. His evidence was that he started with TAFE in 2002 and had some interactions with the plaintiff from then but his interactions with her through work increased from 2005. 3. In his current position (which is the plaintiff's substantive position), Mr Maginnis gave evidence that he was in charge of facilities, maintenance, staff welfare, strategic planning for funding for building maintenance and new facilities, counsellors, librarians and disability coordinators for 24 campuses of TAFE in western New South Wales. Mr Maginnis stated that this involved a lot of travel with him visiting each of the 24 campuses at least once a month depending on whether there are major capital works at a particular TAFE site. In undertaking the travel required, Mr Maginnis proceeded by car and tried to share visits with other TAFE officers in order to share the driving. 4. Mr Maginnis gave evidence that he was aware the plaintiff was in an accident in August 2013 and that he saw her daily prior to the accident and reported to her unless she was travelling outside the office. Mr Maginnis said that prior to the accident he regarded the plaintiff as one of the smartest people he had worked for. He described her as very driven, very focused and good at strategic planning and thinking: T251.33. He stated that prior to the accident the plaintiff had started to mentor him in relation to strategic planning and thinking. 5. In relation to his current duties, Mr Maginnis said that he attended regular meetings which included in-depth discussions in relation to the focus of New South Wales TAFE and how it would achieve its objectives. It was necessary for him to prepare reports in relation to those matters. Prior to the accident Mr Maginnis said that he saw and heard the plaintiff having discussions with staff at meetings and expressing opinions to staff which resulted in robust debating. In relation to the plaintiff's ability to concentrate and focus, Mr Maginnis described the plaintiff as very focused and having the ability to think about the implications of matters and how they would impact and affect the staff: T253.8. 6. Mr Maginnis gave evidence that he travelled with the plaintiff by car on occasion and they took it in turns to drive. The furthest distance they had travelled was from Orange to Broken Hill and that the plaintiff had driven part of the way. He said had no concerns in relation to that. 7. After the accident when the plaintiff returned to her duties, he noticed that the plaintiff had a reduced workload to start with. Mr Maginnis gave evidence that on one occasion in early 2015 when he drove with the plaintiff from Orange to Warren, the plaintiff started to drive in Orange. After about 20 minutes of driving when they arrived in Molong, Mr Maginnis noticed that the plaintiff was fidgeting and he became concerned in relation to her concentration and the safety of the vehicle because of that. He offered to take over the driving from that time which was agreed with the plaintiff. 8. Mr Maginnis gave evidence that he attended meetings with the plaintiff weekly or more frequently. When asked to compare the plaintiff's status before compared to after the accident, Mr Maginnis said that the plaintiff appeared to him to be not as engaged in the meetings. He noticed her getting up and moving around every 10 to 15 minutes and also fidgeting. He said he formed the opinion that her focus was somewhere else. Mr Maginnis particularly remembered one meeting which he thought was in early 2015 where the plaintiff appeared unable to concentrate and she burst into tears: T254.46. He said he had never seen this occur before and the meeting was stopped. He said he commented to the other persons attending the meeting that that was really "not Katrina". 9. Mr Maginnis said he saw the plaintiff every now and again out socially including earlier in 2017 where he saw the plaintiff and her husband having dinner. He said the plaintiff said hello to him but she appeared to be subdued and not her usual communicative self: T255.16. 10. In cross-examination Mr Maginnis stated that in the period 2005 to 2008 his working relationship with the plaintiff did not extend to any discussions in relation to health matters beyond usual comments about how each was feeling. In that period he only socialised with the plaintiff at work functions. He did not have any discussions with the plaintiff in the 2005 to 2008 period about stressful events or her medical treatment. He agreed that he saw the plaintiff more often from 2008 as he was reporting to her and they were on the same campus: T256.13-.40. 11. Mr Maginnis said he was familiar with an incident where a Dubbo TAFE student was killed in a horse riding accident but he could not recall the date of the accident. He also could not recall being aware in 2008 or 2009 of concerns being expressed by Dubbo TAFE staff in relation to the incident or any conversation with the plaintiff about staff welfare concerning that incident: T257.16. 12. Mr Maginnis was then asked questions about the period 2008 to 2012 where he had a closer working relationship with the plaintiff. In relation to health matters or health concerns, he did not recall the plaintiff talking to him about anything specific in that period. He recalled her having a cancer scare at one stage with her kidney. Mr Maginnis was asked whether the plaintiff spoke to him about her treatment for depression/anxiety/unhappiness in the period 2008 to 2012 and he said that he could not recall any such discussion: T258.5. 13. Mr Maginnis confirmed that in 2013 there had been a restructuring and organisational change in TAFE: T258.9. This included a change to all executive positions. He said that he was not required to reapply for his position although the name of his position changed. He agreed that he had discussions at the time with the plaintiff in relation to that change. He stated that these discussions included the nature of the changes and their impact and the fact that her job functions were changing: T258.27. He said that as far as he could recall, the plaintiff did not indicate having any concerns at this time causing her to be distressed or that she said she was stressed, not coping and was thinking of quitting her job. He agrees that if he had been informed of this he would have remembered it: T258.34-.41. 14. Mr Maginnis was asked whether he was aware in June and July 2013 of the plaintiff taking sick leave. He said he recalled the plaintiff taking sick leave in relation to matters concerning her kidney but not in relation to other issues. He was not aware in April to July 2013 of any discussions about the plaintiff consulting a psychologist: T259.8. 15. In re-examination, Mr Maginnis was asked whether prior to the accident in August 2013, he was aware of the plaintiff having any extended absences from work for any reason. Mr Maginnis said that he recalled the plaintiff having a kidney removed and a cancer scare but he did not recall how long she was away from work at that time: T259.43. 16. Mr Maginnis appeared to be an honest and forthright witness who gave his evidence to the best of his ability. I have no hesitation in accepting his evidence. His evidence is relevant to the plaintiff's pre-accident status and particularly that the plaintiff mentioned nothing to him about any plans to leave her job because of stress issues. Evidence of Mr Warwick Jay 1. Evidence was given in the proceedings by Mr Warwick Jay who is one of the adult sons of the plaintiff. Mr Jay is an auditor by profession and works in Canberra. 2. Mr Jay gave evidence that he lived at home until early 2004 when he went to go to university in Canberra. He said he kept in contact with his parents particularly his mother and spoke to her every week or thereabouts. He said that he went home from university at least four to five times per year as well as on some weekends. After he commenced work, he went home not as often but did on the occasional weekend. Mr Jay is now married. He said that his parents came to Canberra as often as he went to their house in Orange. 3. Mr Jay said that he observed his mother at home prior to the accident. He said that she was always hard working and was the primary cleaner/ cook/washing up person in the house, whereas his father attended to matters in the yard and maintenance matters: T262.36. He said his wife was sensitive and had an allergy to pet fur and that his mother made efforts to ensure that the house was cleaned of pet fur prior to them coming to stay. He said that his parents acquired the property at Orange because they had an ambition to have extensive gardens. He said that prior to the accident he noted that his parents worked in the gardens on weekends and they planned to create extensive gardens including a garden labyrinth. He said he observed the plaintiff planting and weeding: T263.15. 4. Prior to the accident he said that he had little discussion with the plaintiff in relation to her work as she usually asked him and his brothers about their work: T263.25. 5. Mr Jay was aware that the plaintiff had been diagnosed with cancer prior to the accident. He agreed that prior to the diagnosis with cancer the plaintiff was self-assured, outgoing and sociable. He agreed that after the cancer diagnosis he noticed a change in the plaintiff as she began to question her own mortality and her outlook on life changed. He said this did not involve the way the plaintiff worked around the house. He said the cancer operation involved a certain amount of recovery time but after that the plaintiff returned to her normal working habits: T263.45-264.18. 6. Mr Jay said that when he was notified of the accident in 2013 he did not go home immediately because of the plaintiff's physical condition; however he spoke to her on the phone. 7. In relation to what he observed of the plaintiff at home after the accident compared to before the accident, he said that there was a substantial difference. In the early weeks following the accident the plaintiff was not able to be on her feet much. After the early few weeks he noticed that there was a reallocation of duties in the house in relation to cleaning and cooking because his mother could not stay long on her feet. He said he did not recall the last time he saw his mother mopping or vacuuming and that his father does those domestic duties. He stated that from his observation his father did not do as good a job with them as his mother in the sense that they are not completed to the same high standard: T264.29-.48. 8. Mr Jay was asked questions about the occasion on which his mother drove to see him in Canberra as revealed on the surveillance film. He said he recalled the event and he believed he spent about 90 minutes with her in a cafe but it could have been 60 minutes or 120 minutes. At the time, he said that the observations he made of the plaintiff were that she was uncomfortable on her feet and adjusted herself while she was sitting with complaints in relation to her back. He also noted that she was prone to be more philosophical at the time and urged and his brother and him to do things and to go on a holiday: T264.50-265.33. 9. Mr Jay was asked in cross-examination about discussions with his mother in relation to her medical issues. He said that in the period from when he left to go to university in 2004 to 2008 he did not have any discussions with his mother in relation to her having problems with depression: T265.49. He said that he himself had problems in this area in the second half of 2012. His mother said to him in a discussion in relation to his problems that she had grappled with similar issues and provided him with general advice and support: T266.6. 10. Mr Jay said that he was not told in the period 2006 to 2009 that his mother had conveyed to Dr Heron, her general practitioner, that she was depressed or teary: T266.15. He said he was also not aware that from 2006 onwards his mother had been prescribed medications for depression/anxiety/insomnia: T266.20. When he had the discussion with her in 2012 he said that he mentioned the medication he was taking which he only took for six months but he did not recall any discussion about specific medications. He did say that the plaintiff said at some stage in the 2006 to 2013 period that she had been on medication on occasions: T266.33. 11. Mr Jay was asked whether he had any discussions with his mother in 2011 in relation to her anxiety concerning her cancer. He said he did not but he said that he was aware that she was anxious and linked it to the cancer. Mr Jay said that even after the August 2011 successful surgery the plaintiff retained a degree of anxiety as to whether the cancer would return and described this as a "lingering anxiety":. He said that he noticed the plaintiff having this lingering anxiety for about six months but could not recall whether he noticed it after that occasion: T266-7. 12. Mr Jay was asked whether his mother told him that there were organisational/structural changes at the TAFE in early 2013. He said that he heard that the "decks were shuffled" and that there were references in conversation at about that time: T267.23. Mr Jay was asked whether he had any discussions with his mother about issues at work from the beginning of 2013 to July 2013 causing her significant stress which led to her taking medications and seeing a psychologist. Mr Jay said he was aware of the plaintiff having thyroid issues but was not aware of any link to problems at work: T267.37. He also stated that he had no discussions with the plaintiff about her having significant concerns about her ability to perform her work in 2013 prior to the accident. He, in particular, did not recall any specific discussions in or about June 2013 that she was suffering from severe stress, was crying, not coping and thinking of quitting her job. Mr Jay was asked whether he was ever informed prior to the accident that his mother had reached the stage of thinking of quitting her job. He said he knew that she was stressed on many occasions in relation to her job as it was a fairly senior role and stress was part of that role but he was not informed of these issues: T267-8. 13. Mr Warwick Jay struck me as an honest and direct witness who made concessions where appropriate. I did not see him display any bias towards the plaintiff in giving his evidence. He was frank and candid in his evidence. In my view, his evidence should be accepted as truthful and accurate. The plaintiff's tender bundle - Exhibit A The plaintiff's liability report - the report of Mr N McDonald dated 6 May 2015 1. In evidence, as part of Exhibit A, was a report prepared by Mr Nigel McDonald, an engineer with expertise in crash reconstructions relating to motor vehicle accidents. In his report Mr McDonald undertakes a detailed examination of the circumstances surrounding the plaintiff's accident on 22 August 2013. Mr McDonald's letter of instructions asked him to assume that the plaintiff had locked her car, put the keys back in her handbag and then "turned to walk across the road when she was struck from the back by [the defendant's vehicle]" (paragraph 2.2). In paragraph 2.4 Mr McDonald noted that when the police attended the accident they described the weather as fine and the road surface as dry. The accident occurred shortly before noon and therefore it was daylight at the time. It is noted that in her oral evidence, the witness, Ms Lynch, said that it had been raining lightly before and immediately after the accident. Mr McDonald noted that the speed limit in the area was 50kph (paragraph 3.8) and that the plaintiff's vehicle was parked by her in a legal location (paragraph 3.12). 2. Mr McDonald also noted that the defendant had told police that the plaintiff had started to walk across the road and was in the "middle of the road" when he saw her. He also indicated that he was about where the plaintiff's vehicle's tail lights were when he saw her (paragraph 5.4). Mr McDonald assumed from the defendant's account that he did not observe the plaintiff as he travelled south along Woodward Street until immediately preceding the collision, at which time he was very close to or beside the plaintiff's vehicle (paragraph 5.4). Mr McDonald also noted Ms Lynch's account to police which was relevantly as follows: "This lady was standing on an angle, in between the front driver door and the centre pillar of the car. The lady backed out of the door and shut it. The lady then took steps back and turned then possibly took a step into the lane." (paragraph 5.7). 1. Mr McDonald also considered the plaintiff's version as provided to Constable Webb dated 2 September 2013 (paragraph 5.10). The plaintiff relevantly said: "I would say I had turned ninety degrees and … at the drivers door. I cannot recall if I had taken a step away from my car, if I did it would not have been more than one step. I did not have time to look around to see what was coming." (paragraph 5.10). 1. Mr McDonald then set out the plaintiff's injury pattern including the displaced fracture of the S3/S4 level of the sacral spine and the displacement of the coccyx. Mr McDonald concluded that the displacement of the coccyx forward (an anterior displacement) was therefore most likely from the impact with the defendant's vehicle and appears to indicate the base of the spine was forced forwards from the rear during impact (paragraph 5.21). 2. The injury and the collision dynamics led Mr McDonald to conclude that the motion or trajectory of the plaintiff was a "wrap trajectory" (paragraph 5.25). The projection of the plaintiff forward from the impact and her coming to rest on the edge line and close to the alignment of the near side of the striking vehicle were to Mr McDonald strong indicators that the point of impact on the roadway "was close to or on the edge line, and the point of impact across the vehicle was close to [the] near side corner" (paragraph 5.28). Mr McDonald concluded that it appeared likely that the plaintiff was struck from behind consistent with his instructions (paragraph 5.29). 3. The plaintiff undertook a re-enactment with Mr McDonald which led him to conclude that the plaintiff had in effect undertaken a pivot about the position of her left foot which would not have resulted in her progressing any significant distance across the roadway from where she had been standing (paragraph 5.42). The likely positions of impact are set out in a diagram by Mr McDonald at figure 5.4 on page 20 of his report (Exhibit A, page 26). 4. Mr McDonald noted: 1. As the defendant approached the point of impact he was travelling on a straight and level roadway. Sight lines are good for an extended distance; 2. The plaintiff's red jacket provided a contrasting colour against the likely background, as did her light coloured hair. Accordingly, the defendant should have had a good line of sight to the plaintiff and her vehicle; 3. The defendant was likely to have had sufficient time and distance to observe the plaintiff beside her vehicle and position his vehicle in the lane away from the plaintiff to pass safely; 4. From his analysis, Mr McDonald concluded that the defendant did not appear to have seen the plaintiff as he approached, nor did he position his vehicle away from the plaintiff's parked vehicle in anticipation of a potential hazard. 1. From his analysis Mr McDonald formed the following conclusions: i) In the absence of a transient view obstruction, the plaintiff was likely visible to the defendant for the entire period she was beside her vehicle and leading up to impact - during which time the defendant appears likely to have travelled in the order of 100 metres or more along Woodward Street; ii) Despite the good sight distance available, the defendant appears to have observed the plaintiff only from a distance in the order of 21 metres behind her vehicle; iii) The defendant's self-reported travel speed was in the order of 40 km/h. Analysis of the material supplied supports this speed estimate or higher, subject to the duration of pre impact braking; iv) The defendant does not appear to have intentionally slowed as he travelled along Woodward Street, other than a sudden emergency response immediately preceding impact; v) The plaintiff appears to have been struck from behind at a position on or near the eastern edge of the southbound lane; vi) If the defendant had travelled in the centre of the southbound lane, it appears likely the collision would not have occurred; vii) If the defendant had been travelling at a safe separation from plaintiff's parked vehicle, it appears likely the collision would not have occurred; viii) If the defendant had been travelling at a safe separation from plaintiff standing beside her vehicle, it appears likely the collision would not have occurred; ix) The available sight distance and road geometry allowed the defendant to move his vehicle to the right side of the southbound lane in response to seeing a pedestrian on the eastern edge of the lane, and in doing so would have prevented a collision; x) The defendant does not appear to have sounded his horn as a warning as he travelled south along Woodward Street. Evidence on behalf of the defendants Oral evidence of Mr Edward Baker Examination in chief 1. Oral evidence was given by Mr Edward Baker, a defendant in both proceedings, who was the driver of the motor vehicle which collided with the plaintiff on the day of the accident. Mr Baker gave evidence that he was born in May 1937 and was thus 76 on the day of the accident. 2. Mr Baker said that on the day of the accident he was driving home and was coming from the town of Orange. The first defendant described the accident in the following terms: "Q. I see. And looking back and remembering the accident as best you can could you describe it as you remember it. The passage up to the accident, the fact of the accident and then we'll deal with the aftermath in a moment. So just describe what you saw and what happened? A. As I was driving along Woodward Road I saw the lady in question in a red coat and as I got nearer quite close, she stepped out in front of my vehicle and consequently I knocked her over. Q. You are aware that there was a fog line on that road? A. Yes. Q. Are you able to tell the Court whether the lady when she stepped was on the road side of that fog line or the parking pedestrian side of the fog line? A. The road side of the fog line." (T179.48-T180.11). 1. Mr Baker confirmed that he was subject to an interview by the police and he told the police the truth. He gave evidence that he signed the policeman's notebook at the conclusion of the interview process: T180.24. The relevant part of the first defendant's statement is in Exhibit 1D4 at pages 101-102 and was to the following effect: "Q: She got out of this car how far away were you when you saw the lady in the middle of the road. A: I was about where her tail lights were when I saw her. I didn't see her open the door just noticed that she was in the middle of the road." (emphasis added) A similar statement was provided to an insurance investigator: Exhibit 1D4 page 16. Cross-examination of the first defendant 1. In cross-examination Mr Baker gave evidence that he had lived in Orange for a long time. He said that as he was returning from the Orange shopping area on the day of the accident, he had the window down in his car. Mr Baker denied that his memory of what took place on the day of the accident was vague or uncertain: T181.7. 2. Mr Baker was taken to the part of his police statement where he said "well the lady got out of her car in front of me" (Exhibit 1D4, page 101). Mr Baker said that that part of his statement was "probably incorrect" because she was out of her car when he saw her: T181.50. He accepted in relation to this part, that he "could have been wrong" because "there was a bit of shock there involved": T182.6. Mr Baker denied that the next part of his statement where he stated that the plaintiff "started to walk across the road" was also wrong. He indicated that he was "very sure" that the plaintiff walked in front of his vehicle across the road. 3. The relevant evidence on this point was as follows: "Q. Well how can you be so sure that that bit's correct if the earlier bit might be wrong? A. Well I'm very sure that the lady walked in front of my vehicle across the road. Q. And are you sure of that fact because your vehicle and the lady collided? A. Yes. Q. And is that the fact that you rely upon to be sure that she walked in front of your car? A. Yes. Q. And is that the only fact you rely upon? A. Well yes." (T182.12-.25.). 1. This was not convincing evidence from the first defendant. It appears that the only fact he relied upon to lead him to the conclusion that the plaintiff walked in front of his vehicle was the fact that his vehicle and the plaintiff collided. The first defendant could not appear to contemplate that he had been driving too close to the side of the road. 2. In his police statement in answer to the police question how fast he was travelling before the collision, Mr Baker indicated: "about 40 kilometres or a bit. I always drive below the speed." Mr Baker then indicated that he was driving "about 40 to 45kph in the middle of that": T182.36. Mr Baker said that he was not able to indicate how far his vehicle was from the centre of the road. He indicated that his vehicle "was in the centre of the road I was going along". He clarified this to indicate that he was travelling "on the centre of my side of the road": T183.5. Mr Baker said in his evidence that his vehicle was in the centre of the left hand lane but he was not able to say how close to the centre line or how close to the fog line his vehicle was: T183.5. 3. Mr Baker agreed that as he was driving down the road he was "suddenly confronted by this lady in the red coat": T184.9. Mr Baker could not recall whether any vehicles were coming the other way towards him: T184.24. 4. Mr Baker was then taken to that part of his police statement where the question was asked: "Q: She got out of this car how far away were you when you saw the lady in the middle of the road?" 1. In answer to the question whether he told the police the lady was in the middle of the road he said he did not know and he could not remember: T183.30. Mr Baker was then taken to that part of his signed statement where he stated: "I was about where her tail lights were when I saw her. I didn't see her open the door just noticed that she was in the middle of the road." Mr Baker then seemed to suggest that this was incorrect and that he first saw the plaintiff as he was approaching her vehicle. Mr Baker could not remember how far back from her car he was when he first saw her and said it was possibly a car length of approximately six to eight metres: T184.42-T185.4. Mr Baker denied that the plaintiff was standing next to her car locking the door manually when he first came into sight over a hundred metres away. He also denied that he had ample time having seen her in the red coat to slow down. He confirmed that he kept driving at the same speed: T185.16. 2. Mr Baker gave evidence that it was the last few seconds before the collision that the plaintiff stepped in front of his vehicle. He could not recall whether he saw the plaintiff before he reached the back of her car: T185.34. He specifically denied that at the time the front of his vehicle collided with the plaintiff she was standing on the left hand side of the fog line: T185.39. He agreed that she would have been on the right hand side of the fog line because he collided with her: T186.2. He denied that his vehicle veered to the left: T185.7. Mr Baker agreed that his evidence today as to the position of the plaintiff was purely dependent on the fact that he collided with her: T186.32. 3. Mr Baker gave evidence that the first time he saw the plaintiff he saw her side-on. He stated that the only thing he noticed about the plaintiff prior to the impact was her red coat and that she was a lady: T186.41-T187.13. He then added that he saw the plaintiff's car parked at the side of the road at the same time as he saw her red coat, although he then added that that was an assumption he made: T188.1-.12. He could not recall how far he was away when he first saw her standing beside the vehicle but said it was "probably car lengths, little bit more": T188.39. Mr Baker said the plaintiff was facing west because she started to walk across the road: T188.49. He denied that the plaintiff was never at any time facing west, that she was stationary with her back towards his vehicle and that she was either on the left hand side of the fog line or on the fog line: T189.9-.24. 4. Mr Baker denied that he ever saw the plaintiff take a step backwards or face in a south easterly direction. 5. Mr Baker said that when he noticed her walking across the road she was "probably a step or two onto the road": T190.11. He denied that the plaintiff never took a step or two onto the road. 6. Mr Baker was asked why his statement to police was different to his evidence and he said that maybe what he had told the police was not 100% accurate but he did not know why that was the case as he could not remember. He said it was an "ordeal" when you had knocked somebody over: T190.37. Mr Baker conceded that as at the day of the accident the events were far clearer in his mind than on the day he gave evidence: T190.42-.50. 7. I viewed Mr Baker carefully whilst he was giving his evidence. In my view, the first defendant, Mr Baker, was an honest witness who attempted to give his evidence to the best of his recollection. The accident was clearly traumatic for Mr Baker and he said there was "a bit of shock there involved" (T181.3) and it was "an ordeal" (T190.38). Mr Baker conceded that parts of the statement which he signed on the day of the accident were incorrect. He also qualified many answers with the use of the word "probably" or with the use of the words "as far as I can remember" yet denied that his memory was vague or uncertain: T181.7. 8. It seems the primary factor Mr Baker relied upon in support of the plaintiff walking in front of his vehicle was the fact that his vehicle and the plaintiff collided: T181.8-.25. He did not concede that this could have been because he was too close to the fog line on the left hand side of the road. His evidence was somewhat inconsistent as to when he first saw the plaintiff. He initially said he saw her as he was approaching her vehicle (T184.39) but could not estimate how far back from her car he was when he first saw her (T184.44) and then suggested it was "possibly a car length, maybe" (T184.47). He then said it was "maybe, approximately" six to eight metres back: T184.4. He denied that the plaintiff came into his sight when he was over 100 metres away: T185.9. He then said he did not recall seeing her before he reached the back of her car: T184.34. This should be contrasted with his signed police statement where he says he was about where the plaintiff's vehicle's tail lights were when he saw her (Exhibit 1D4 page 102) and his statement to the investigator where he said that he was "a couple of metres from the vehicle" when he observed her (Exhibit 1D4 page 16). 9. Overall, despite my forming the view that Mr Baker was an honest witness who was attempting to give his evidence truthfully, I reached a firm opinion that he did not have a good recollection of the accident and that the accident, understandably, had been traumatic for him. He seemed to have formed the opinion that the plaintiff must have been in the middle of the road because he had struck her. In my opinion, the inconsistencies in Mr Baker's evidence meant that Mr Baker's evidence should be approached with some real caution as to its reliability on the central issues. Oral evidence of Ms Louise Lynch Examination in chief 1. Ms Lynch was a witness who was in the vicinity of the accident location on 22 August 2013 where she saw the collision between the defendant's vehicle and Ms Jay: T191.23. Ms Lynch was at the location as she was dropping her grand-daughter at the nearby pre-school. Ms Lynch recalled that the plaintiff was wearing a red coat and scarf at the time: T192.29. Ms Lynch was taken to her signed statement which she gave to police on 9 September 2013 which is at pages 107-110 of Exhibit 1D3. Ms Lynch confirmed that the statement was true. 2. The statement given by Ms Lynch to police was relevantly to the following effect: "4. About 11.45 I was walking down the driveway of Capable Kids. I saw a lady driving a four wheel drive park her car directly opposite the driveway of Capable Kids. The lady driver got out and was standing with her back to the traffic. She went back into the car to grab something, I assume it was her handbag. 5. The lady was standing on an angle, in between the open front driver door, and the centre pillar of the car. 6. The lady backed out of the door and shut it. The lady then took a steps [sic] back and turned then possibly took a step into the lane. 7. I heard a screech of a car tyre. I saw a car clip the lady with the front of the car. The lady was lifted off the ground maybe a foot. She landed on her knees or legs. The lady was three foot in front of his car, when she landed. The other car was a four wheel drive I think blue/grey with a silver bull bar. It was an [sic] mid to late 60's male driver. 8. I went straight to the lady on the ground. I saw her conscious on her knees with her handbag maybe a foot away from her closer to the footpath. I said "are you alright". She said "can I get up". I said "no". 9. At this stage a car that stopped behind the male driver's car, two ladies got out and was standing with me and the lady. She was still on the ground. They said "are you alright". She said "I felt myself in the air and I didn't want to land on my head. I'm sorry, I'm sorry, I'm sorry. I'm so embarrassed. It's all my fault." 10. I then crossed the road to take my grand-daughter back into Capable Kids. After this I came back to the lady with an umbrella and one of the other ladies was looking after the lady on the ground. The other lady was holding her handbag. I think it was a counsellor from Capable Kids, another lady was calling the lady on the ground's husband I think. 11. I spoke with the male driver who hit the lady. I said "are you alright"? Do you need a hot drink?" He said: "No he was on his way home for lunch and would get one then". The lady was in the ambulance, and the other ladies were going. I went back inside Capable Kids to return the umbrella. I came back out of Capable Kids with my grand-daughter. I saw the male driver talking with police. I walked over and gave the police my contact details. 12. The incident lasted about 30 sec-a minute, I was about 30 feet away from the incident, the visibility was clear day however it was drizzling, there was no obstruction, no person was known to me." (emphasis added) 1. This statement is slightly different to her later statement to the investigator where Ms Lynch apparently said she saw the plaintiff "just step out onto the road at a forty five degree angle to walk across the roadway" (Exhibit 1 D4 pages 17-18). In her oral evidence, Ms Lynch said that she and her grand-daughter were walking down the driveway of the preschool when she noticed the plaintiff's car pull up directly opposite her and the plaintiff get out. She noticed the plaintiff because she was wearing "such a bright coat": T193.20. Ms Lynch said that when the plaintiff alighted from the car she was facing south. With the door of the car partially open, she said the plaintiff went back through the open door apparently to get something. After performing that movement, Ms Lynch said the plaintiff was standing on an angle "maybe south east" (T193.50) in between the door pillar and the front driver's door. Ms Lynch then said that she saw the plaintiff turn more to the south as she came out of the car. The plaintiff then closed the door and turned more to the south: T194.6. Ms Lynch then gave the following evidence: "Q. Did she do anything in relation to the car door? A. She closed the door, then, then, I'm just trying to think. She closed the door still facing south, so she stepped backwards, so say if she's facing south she stepped backwards in the north direction but never faced that way, then she turned directly and stepped out. Q. Out where? A. On to the road. Q. And what's the next thing that you saw or heard? A. The car, the car the gentleman was driving at the time to me as I recollect, he was going, he was going fairly slowly, he would have been approximately at the back of the car when she stepped out, he clipped her, I couldn't tell you exactly where he hit her on his car. She then landed on the road on her knees, close to the edge of the road or where the line was." (T194.8-.22) 1. Ms Lynch gave evidence that she noticed that the plaintiff landed "maybe four or five feet" in front of her car but she was not certain and could not recall whether the plaintiff was on the pavement side of the fog line or on the fog line or on the road side of the fog line: T194.49. 2. Ms Lynch said that she went over to the lady on the ground and spoke to her. The plaintiff was trying to get up and Ms Lynch said she told her to stay "on her knees" where she was. Ms Lynch then said that the plaintiff said to her something to the effect "that I'm very, very silly, this is all my fault": T195.26. 3. Ms Lynch said that she spoke to the defendant who was quite distressed and she said to him that she had seen the accident and "not to worry that it wasn't his fault": T195.36. Ms Lynch said she was about 10 metres away from the collision and the weather was clear but drizzling: T196.33-.36. Cross-examination of Ms Lynch 1. In cross-examination Ms Lynch confirmed that when she gave her statement to the police (9 September 2013) what had occurred on the day of the accident was still clear in her mind and certainly clearer than when she gave evidence: T197.15. Ms Lynch confirmed that when the plaintiff lent back into her car she was facing in a south-east direction: T198.35. Ms Lynch stated that before the plaintiff shut the door to her car she took an "average step" backwards: T198.44. Later, that evidence was clarified by Ms Lynch by giving evidence that the plaintiff had taken a step back so the door would close: T199.5. 2. Ms Lynch said the plaintiff never turned directly to face her on the opposite side of the road and that she was always on an angle facing south: T199.24. 3. Ms Lynch was taken to that part of her police statement where she said: "The lady then took a steps [sic] back and turned then possibly took a step into the lane." Ms Lynch said she did not recall saying that to the police. Ms Lynch gave evidence that the plaintiff "turned out into the lane but at no time faced say west": T199.30. 4. Ms Lynch then gave a demonstration of what she saw the plaintiff do immediately before the collision. Her evidence was as follows: "Q. Please stand up and show us. HIS HONOUR: Yes. WITNESS: Okay. It's very hard to describe. Car, road. So fog lane or whatever they're called, so car, she's stepped back stepped over, so never this way, stepped back out of the door, stepped this way on an angle. So it's very ‑ but never ever turned to face directly across to the west. That's the way I remember it. ANDREWS Q. Let me try and describe and please correct me if any of this is wrong? A. Okay. Q. She's basically facing the southeast direction? A. In the car, yes. Q. When she's between the door and the pillar? A. Yes. Q. Okay. She's stepped back? A. Back. Q. Closed the door? A. Yes. Q. She's then facing in a basically southerly direction? A. Okay yes. Q. No please correct me if there's anything you disagree? A. No, no, go. Q. Facing in a basically southerly direction, that is, the direction the road runs? A. Right yes. Q. And you then say there is a step? A. Yes. Q. Which is a turn towards the right? A. Yes. GRACIE: With the left foot. ANDREWS Q. With the? A. With the foot yes. Q. But with which foot? A. Her right foot. GRACIE: Sorry, right foot. I've got it wrong. WITNESS: Yeah right foot. HIS HONOUR: I think it should be noted that the step back the witness was indicating stepping back towards the north? ANDREWS: That's right. WITNESS: That's correct. Yes." (T200.24 to T201.35). 1. This evidence is not consistent with Ms Lynch's statement to the investigator (Exhibit 1D4 pages 17-18). It is closer to her earlier statement to police. Ms Lynch said that she could see the fog line from where she was standing but could not say where the plaintiff's foot landed in relation to the fog line when she turned: T202.1. She therefore could not say whether the plaintiff's foot was on either side of the fog line or on the fog line itself: T202.5. Ms Lynch confirmed that the last movement of the plaintiff that she recalled was a movement of her right leg (T202.30) and a short time later the plaintiff was struck by the car: T203.7. Ms Lynch did not recall seeing anything else occur between the plaintiff moving her right leg and being struck by the defendant's vehicle: T203.12. 2. I found Ms Lynch to be an impressive and careful witness. She appeared to give her evidence honestly and readily conceded when she did not recall something. She appeared to me to be observant and thorough in her manner. I accept her evidence to the extent of her recollection. Ms Lynch clarified her evidence in chief where she said that she saw that the plaintiff "turned directly and stepped out" (T194.12). In cross-examination her evidence was that she saw the plaintiff step back an average step towards the northerly direction and then take a step by the plaintiff turning to the right with her right foot: T201.14. This appeared to be a pivot type action. Liability report of the defendant - report of Mr G Urquhart dated 21 December 2015 1. The defendant relied on an expert collision report prepared by Mr Glen Urquhart. There was no issue as to Mr Urquhart's expertise. Mr Urquhart undertook a detailed examination of the statements taken from the witnesses, including the plaintiff and the defendant, and expressed his opinions in relation to the collision. Those statements included statements provided to an insurance investigator. Mr Urquhart noted that there was no physical evidence which could be used independently to assess the point of impact such as debris, tyre marks or shoe scuffs on the roadway. There was also no damage sustained by the defendant's vehicle by it striking the plaintiff. Mr Urquhart noted that accordingly there was no physical evidence which could be used by him to independently assess the point of impact and that in the absence of physical evidence, he relied upon witness accounts (page 33.5-.12). 2. In the body of his report, Mr Urquhart noted the following: 1. Mr Urquhart reviewed the various witness statements and the police COPS event entry. He also inspected the scene of the accident in the light of the statements. He concluded that the location where the plaintiff parked her car was a legally permissible location as the vehicle was north of a parking restriction sign: page 25.27; 2. Based on all the information before him, Mr Urquhart was of the view that the defendant commenced to brake a short time prior to impact: page 27.17; 3. Mr Urquhart expressed the opinion that having regard to all the witness statements, on balance the evidence indicates that the plaintiff did move from a position beside her vehicle onto the roadway when she was struck: page 31.33; 4. An analysis of the plaintiff's age and likely walking speed suggests that the plaintiff took about two steps: page 32.17; 5. The plaintiff's injuries including the bruising on her back were consistent with the plaintiff being struck by the bull-bar of the defendant's vehicle: page 34.8. Due to the configuration of style of the bull-bar and the impact forces associated with the collision, the injuries to the plaintiff could have occurred had the plaintiff been struck in a more sideways location: page 35.2; 6. Mr Urquhart's opinion, based on the evidence he examined, was that it was likely the place of impact occurred within the southbound traffic lane and that the plaintiff took about two steps onto the roadway from her position adjacent to her vehicle prior to impact. He stated that it was "possible" that the injuries sustained to the plaintiff as a result of the collision forces "could" have occurred had she been oriented at an angle relative to the approach of the defendant's vehicle: page 34.14; 7. The statements from the defendant indicated that he was only a few metres from the plaintiff's vehicle when he observed the plaintiff: page 35.39. Mr Urquhart was of the opinion that the line of sight between the defendant and the plaintiff (to each other) was clear and unobstructed. He also expressed the view that the defendant's vehicle would have been clearly visible to the plaintiff for at least nine seconds. Presumably the plaintiff would have been clear to the defendant for the same period: page 36.1-.7; 8. Mr Urquhart considered the prospect for collision avoidance. He noted that the collision could potentially have been avoided by the defendant or the plaintiff. In relation to the defendant, Mr Urquhart noted that the defendant would need to have identified the plaintiff on the roadway at an early enough stage to have taken evasive action by braking or steering. He stated that assuming the defendant maintained an approach speed of 40kph the defendant was placed between about 78 and 111 metres from the point of impact when the plaintiff was standing next to her vehicle. He concluded that given the visibility at the location, the plaintiff would have been within the defendant's line of sight on approach to the collision location: page 39.1. Mr Urquhart was of the view that from the defendant's perspective as he approached the plaintiff she was not an immediate hazard requiring an emergency response. Given the motion of the plaintiff on which Mr Urquhart concluded and the available time for the defendant to respond, Mr Urquhart expressed the opinion that: "It is unlikely a collision could have been avoided by an evasive steering manoeuvre to the right as a collision may still have occurred. An evasive steering input to the left is likely to have brought the Defendant's vehicle into collision with the Plaintiff's vehicle.": page 40.26. Mr Urquhart said that ultimately, unless the defendant pre-empted the motion of the plaintiff, the collision was not likely to be avoidable from the defendant's perspective. For the purposes of his opinion Mr Urquhart assumed the defendant was travelling centrally within his lane on approach and at the point of impact. Mr Urquhart importantly stated the following: "The author accepts that had the defendant seen the plaintiff earlier he could have moved his vehicle laterally to the right and closer to the centre of the lane. This is likely to have provided a "buffer" between his vehicle and the plaintiff. However, it is possible a collision may still have occurred depending on the motion of the plaintiff." page 40.43; 1. In relation to the plaintiff, Mr Urquhart concluded that the collision could have been avoided by the plaintiff had she maintained an awareness of her proximity to the traffic lane, kept a proper lookout and not moved into the traffic lane. He noted that the defendant's vehicle would have been clearly visible to the plaintiff if she had looked or looked properly: page 41.34; 2. Mr Urquhart then reviewed Mr McDonald's report. However his conclusions were impacted upon by his view that the available evidence indicated that it was likely the plaintiff had in fact commenced to walk across the roadway when she was struck. Mr Urquhart did not agree with Mr McDonald that the plaintiff was struck from behind: T44.4. Mr Urquhart agreed with Mr McDonald that the plaintiff and the defendant had a good line of sight. Significantly, Mr Urquhart stated the following: "The present author agrees with Mr McDonald, that had the defendant seen the plaintiff he could have moved his vehicle laterally to the right to provide a "buffer". As outlined earlier, it is possible a collision may have occurred regardless, depending on the motion of the Plaintiff.": pages 45.20 and 46.23. 1. Mr Urquhart's conclusions are set out at pages 47-48 of his report. Mr Urquhart's conclusions are heavily influenced by the view he took of the statements that the plaintiff had moved on to the roadway before the collision. In those circumstances Mr Urquhart was of the opinion that once the plaintiff presented as an immediate hazard to the defendant, the collision was unlikely to be avoidable by any actions of the defendant. He also was of the view that whilst both parties had no view obstructions the plaintiff could have avoided the collision outright by maintaining an awareness of the road position and proximity to the traffic lane. Mr Urquhart said his review of Mr McDonald's report did not change his opinion. The defendants' tender bundles Joint liability report 1. The two liability experts prepared a joint experts' report dated 8 June 2017: Exhibit B. 2. In the joint report, the experts agreed on the following significant matters: 1. There was around 100 metres unobstructed line of sight between the plaintiff's position and the defendant's approach. Travelling at 50kph 100 metres is traversed in 7.2 seconds. At 40kph 100 metres is traversed in nine seconds; 2. The total duration of the plaintiff's actions from opening her door on her car to finishing manually locking the door and putting the keys into her handbag was likely to be in excess of nine seconds and probably around 12 seconds; 3. When the plaintiff first opened her door and exited the vehicle, it is likely there was no line of sight between the plaintiff and the defendant. When there was a line of sight between the defendant and the plaintiff, it is likely the plaintiff had exited and was beside her vehicle; 4. Given the width of the parking lane, the plaintiff would likely have been on the edge line as she turned away from her vehicle. Any movement across the road would therefore have been within the traffic lane from that moment; 5. A typical walking pace is in the order of 0.7 metres. One step would take in the order of 0.5 seconds. Two steps would take in the order of 0.9 seconds; 6. If the plaintiff took one step, the front of the defendant's vehicle would have been around 5.2 metres away from the plaintiff as she commenced walking into the carriageway. If the plaintiff took two steps, the front of the defendant's vehicle would have been around 10.4 metres away from the plaintiff as she commenced walking onto the carriageway. The defendant's perception response likely commenced when the front of his vehicle was in the order of 21 metres away from the plaintiff; 7. The expected perception response time is in the order of 1.8 to 2.6 seconds on average. Age is not a significant factor in perception response studies; 8. On the assumptions that the defendant was travelling at 40kph and assuming the defendant was within a line of sight of the plaintiff's vehicle when the door opened, the total stopping distance was 51.4 metres (comprising 20 metres perception response followed by 31.4 metres of breaking). Under emergency braking, the total stopping distance was 28.4 metres (comprising 20 metres perception response followed by 8.4 metres of emergency braking). The perception response times are applicable in a circumstance where there is an immediate hazard that warrants an emergency response. Submissions of the parties on the liability issue concerning the accident 1. The parties have made detailed written and oral submissions in relation to the issues in the proceedings. It is necessary for me to consider the submissions in relation to the various issues. I now consider the submissions in relation to the liability issue concerning the accident and contributory negligence. 2. The following submissions were made, in summary, by counsel for Ms Jay in relation to the issues of liability and contributory negligence: 1. The accident in question occurred on 22 August 2013 at approximately 12:10pm; 2. The evidence from the plaintiff Ms Jay establishes that the plaintiff stopped her vehicle, she stepped out of the vehicle, she closed the door, she put the key in the lock of the door, she has locked the car, taken the key back out and put the key in her handbag (paragraph 20 of the written submissions in chief). She then placed her bag on her shoulder, fiddled with her scarf and went to turn around because she heard a noise and was hit in the back. The plaintiff's evidence is that she was hit in the sacrum area in the middle of the back area more to the left (paragraphs 21-22); 3. The suggestion by the plaintiff that she just walked out in front of the defendant's car was made at the time immediately after the accident when she was understandably confused (paragraph 25); 4. The accident was witnessed by Ms Lynch who gave evidence after being called by the defendant. Ms Lynch made a number of significant concessions in cross-examination including that before the plaintiff shut the door she took a step backwards which was an average step and that if the plaintiff took a step after that it was never towards the west as she was still facing more south (paragraph 31). The last movement of the plaintiff, Ms Jay, which Ms Lynch recollected, was a movement of her right leg shortly before she was struck (paragraph 35); 5. The evidence of the independent witness Ms Lynch substantially reflected the evidence of the plaintiff as to the circumstances of the accident. This should be contrasted with the defendant's evidence which had a number of inconsistencies and suggested he had a poor recollection of events (paragraphs 36-46). The defendant Mr Baker accepted that the version he gave to police could have been wrong and that the only fact he relied upon to allege that Ms Jay walked in front of the vehicle while crossing the road was the fact that his vehicle had collided with her (paragraph 39). He said he was unable to say how close she was to the centre line or to the fog line (paragraph 41). Mr Baker said that his evidence as to the position of the plaintiff was purely dependent upon the fact that he had collided with her. He stated that he never saw the plaintiff take a step backwards or take steps to lock the car (paragraph 42 and paragraph 44) 6. Accordingly, the evidence of the defendant was totally contrary to the evidence of Ms Lynch and the plaintiff and it should be rejected. The factual findings sought by Ms Jay's counsel are set out in paragraph 46 of the submissions, including that at the time she was struck she was facing towards her car, possibly in a south-easterly direction and had then taken a step with her right foot backwards in a northerly direction. It is submitted that on the evidence the court would find that the plaintiff had not crossed out over the fog line and even if she was on the fog line she would have been there for a considerable period of time and certainly sufficient time for the defendant to have seen her. On all the evidence, the defendant Mr Baker failed to keep a proper lookout and failed to take any action to ensure that his vehicle did not come into collision with somebody who was standing next to the vehicle on the side of the road (paragraphs 47-49). Accordingly, there ought to be a verdict in favour of the plaintiff in relation to liability (paragraph 51); 7. In relation to contributory negligence, the allegations that the plaintiff, without warning or looking, walked in front of the defendant's motor vehicle should be rejected (paragraph 52). The evidence of the defendant Mr Baker referring to what he probably did should be found to be a reconstruction. There is no evidence that the plaintiff entered the carriageway. There is no evidence that the plaintiff had attempted to cross the street. There is no allegation of what action the plaintiff ought to have taken to prevent a collision, apart from checking to see whether traffic was coming; 8. In the alternative, if any contributory negligence contributed in any way to the accident, its contribution would have been minor and such contributory negligence could not exceed 10% (paragraph 60). However, the primary submission of the plaintiff Ms Jay is that on the whole of the evidence there was no element of contributory negligence on Ms Jay's part as there was nothing shown to have been done by her or not done by her which would give rise to any contributory negligence (paragraph 63). 1. The submissions made on behalf of the other plaintiff, the State of New South Wales, in relation to liability are, in summary, as follows: 1. The State contends that the defendants breached the duty of care which they owed to Ms Jay by virtue of the actions of Mr Baker and the statutory agency of the second defendant (paragraph 8); 2. The claim of the first defendant, that Ms Jay walked in front of his vehicle across the road, in the light of the concession made by the first defendant that the only fact relied upon by him to found that proposition was that the first defendant collided with Ms Jay, demonstrates adequately that there was no basis for such a claim. By contrast, there is ample evidence that the actions of Mr Baker in driving the vehicle were negligent and in breach of the duty of care owed by the defendants to Ms Jay (paragraph 11); 3. The evidence of Mr Baker was equivocal and constituted a reconstruction rather than being founded in objective fact or even simply a claimed observation of fact (paragraph 13). The independent witness, Ms Lynch, strongly supports Ms Jay's case (paragraph 14); 4. The evidence also presents a number of challenges to the assumptions underpinning the expert report of Mr Urquhart. Mr Urquhart's conclusions also suffer from other reconstructive reasoning. The expert report of Mr McDonald should be preferred to that of Mr Urquhart (paragraphs 15-16); 5. The case of Ms Jay in relation to liability should be preferred. Ms Jay has established the defendant's liability to pay damages; 6. In the alternative, Ms Jay can rely upon the blameless motor accident provisions of Part 1.2 of MACA. This was a case of a single motor vehicle accident involving a pedestrian, and there is no scope in the statutory scheme under MACA for a finding on primary liability that the negligence of a pedestrian plaintiff caused the accident (paragraph 20). Accordingly, if the court does not find for Ms Jay on the basis of the fault of the defendants, the court should find that the accident was a blameless motor accident for the purposes of Part 1.2 of MACA which would enable the plaintiff Mrs Jay to establish the defendants' liability to pay her damages (paragraph 22); 7. The question of contributory negligence has no direct relevance to the State's claim, in that the indemnity is not subject to any discount for the level of contributory negligence. However, the indemnity available to the State is capped by the amount of damages recovered or recoverable by the injured worker. Contributory negligence can, therefore, reduce the pool of damages available from which to claim the indemnity. In relation to contributory negligence, there is nothing to determine that the actions of Ms Jay constituted contributory negligence. The most that can be said is that Ms Jay should not have undertaken any tentative steps without checking for oncoming traffic. The degree of departure of her failure to take reasonable care is very minor and the court would allow no more than a 5% reduction for contributory negligence. 1. The submissions made on behalf of the defendants in relation to the liability issue are, in summary, as follows: 1. The plaintiff's submissions are confined to transcript references of the evidence given by the plaintiff, the defendant and the independent witness Ms Lynch. No analysis has been taken of the other relevant accounts of the collision or the experts' reports. Statements were given to police and to an insurance investigator. These were all considered by the defendant's expert Mr Urquhart (paragraphs 1-5); 2. The defendant's case, that the evidence discloses that the plaintiff Ms Jay had in fact commenced to walk across the road way when she was struck, is supported by contemporaneous accounts and expert evidence. It is consistent with what the plaintiff told Constable Webb on the day of the accident and what Ms Lynch told the investigator on 11 November 2013. It is also consistent with the ambulance officer's records (paragraphs 6-7); 3. The position of the plaintiff's parked vehicle did not allow a great deal of space between her driver's side door and the fog line (paragraph (8); 4. Ms Lynch in chief said that the plaintiff turned directly and stepped out (paragraph 10); 5. This is consistent with her 11 November 2013 statement; 6. It is also consistent with the defendant's 11 November 2013 statement and his general evidence. The plaintiff's various later accounts are inconsistent with the contemporaneous accounts. The latter should be preferred; 7. The defendant's account is consistent with the point of impact and the plaintiff's projection forward. It is also consistent with the injury pattern. If the defendant had been on the fog line his emergency response would be to steer away from the fog line to prevent collision and that did not occur (paragraphs 14-21); 8. The plaintiff was standing on the road for around 7-10 seconds and had she looked, the defendant's vehicle would have been clearly visible to her. When the plaintiff first opened her door and exited her vehicle, it is likely that there was no line of sight between the defendant and the plaintiff. The plaintiff has not established causative breach in the light of the perception response time. The plaintiff's version of events after 22 August 2013 cannot be reconciled with the police COPS entries and the independent witness' accounts (paragraphs 22-27); 9. In the event that causative breach is established, contributory negligence should be found. A significant factor in assessing the relative responsibility for the accident is the unpredictable motion undertaken by the plaintiff and her unobstructed line of sight towards the north if she had looked towards the defendant's vehicle. If she had looked she would have seen the defendant's vehicle and would have moved to a safe spot; 10. The evidence supports a finding that the plaintiff failed to take reasonable care for her own safety. According proper weight to her unusual manoeuvre and her failure to look at any time after exiting the vehicle, contributory negligence should be assessed at a figure significantly greater than 50% and in the order of 80%. In the event of a blameless accident finding, contributory negligence ought be assessed at 100% (paragraphs 28-38). Factual findings on the liability issue 1. I now turn to consider my factual findings in relation to the liability issue. The court has before it the contrasting views of two motor accident collision experts, differing statements from the plaintiff, the defendant and an independent witness Ms Lynch, the police COPS entry, the ambulance officer's records and different evidence given orally before the court from many of the same witnesses. 2. The collision experts also did not have the advantage of physical evidence at the scene of the collision such as damage to the vehicle, the stationary location of the defendants' vehicle at the scene of the accident immediately after the collision, debris on the road, and skid and shoe scuff marks. 3. In those circumstances, the court has to form a view in relation to the most likely facts in all the circumstances on the whole of the evidence. Clearly, in order to establish liability, the plaintiff must establish facts which lead to a conclusion of negligence, on the balance of probabilities. The experts' views taking into account the width of the lanes and the plaintiff's vehicle are noted. 4. The following matters would appear to be relevant: 1. The road where the collision occurred was a long straight road. In their joint liability report, the experts agreed that there was about 100 metres unobstructed line of sight between the plaintiff's position and the first defendant's position: Exhibit B. Travelling at 50kph, 100 metres is covered in 7.2 seconds and at 40kph, 100 metres is travelled in 9 seconds; 2. The total duration of the plaintiff's actions from opening her door on her car to finishing manually locking the door and putting the keys into her handbag was found by the experts to be likely in excess of 9 seconds and probably around 12 seconds; 3. The collision occurred at about midday and at the time of the collision the road surface was dry although it commenced to drizzle shortly after the collision; 4. The plaintiff Ms Jay is a person of medium to slim stature. At the time of the accident, she was wearing a mid-length red coat which in my view would have stood out to any reasonable person in the vicinity, including a driver approaching the plaintiff in the position of the defendant Mr Baker as the plaintiff was standing at the side of the road near the driver's door of her vehicle as he approached. The plaintiff also had fair hair which would have assisted to some degree anyone observing the plaintiff. 1. The clear weight of evidence from the defendant Mr Baker is that he only saw the plaintiff very shortly before the collision. At that time he was not far from the rear of the plaintiff's vehicle, although the exact location is not clear. This is consistent with the defendant's statement evidence and his oral evidence before the court: defendant's tender bundle Exhibit 1D4 page 102 (page 16 of police note book) and page 16; T188-189. In my view, having regard to the clear line of sight available to the parties because of the nature of the road, the speed Mr Baker said he was travelling which I accept (40-45kph), the plaintiff wearing a red coat, and the length of time that the plaintiff was standing by her vehicle prior to impact, the defendant should have seen the plaintiff well before the moment when he did see her. In all the circumstances, in my view, the defendant should have seen the plaintiff when he was somewhere between 85 and 100 metres from her vehicle. See also Exhibit B, the joint experts' report. 2. Any consideration of the facts relating to the liability issue must consider the differing accounts of the plaintiff. The first version provided by the plaintiff was given after she had been recently struck and severely injured to Senior Constable Wooton which has already been set out above. This version is not helpful to the plaintiff and has the plaintiff apologising and saying, "it's my fault, I was thinking about other things and just didn't look": defendant's bundle page 104. The plaintiff added, according to Senior Constable Wooton: "I just walked out in front of him". 3. In my view, this version must be regarded with some real caution by the court. The plaintiff had just been involved in a serious accident where she was struck by the defendant's vehicle. She had received significant injuries. The circumstances of the accident were traumatic and potentially life-threatening. The evidence suggests she was at least confused to some extent. Whilst the record first given by the plaintiff is undoubtedly highly relevant, in my view it is not decisive on the liability factual issue for the reasons given. The ambulance officer's records relied upon by the defendant do not appear to be a quote from the plaintiff but an interpretation of the officer. What information was relied upon is unclear: See Exhibit 1D4 page 239 and plaintiff's reply submissions dated 22 June 2014 paragraph 2. 4. The second account of the plaintiff is that given to Constable Sean Webb on 2 September 2013, several days after the accident. In this version the plaintiff was struck as she was turning to the right after having faced her car for several seconds. The plaintiff stated: "I would say that I had turned nighty [90] degrees and sit [sic] at the drivers door. I cannot recall if I had taken a step away from my car, but if I did it would not have been more than one step. I did not have time to look at the road to see what was coming. I then felt tremendous hit to my body and a thud noise": defendant's bundle Exhibit 1D4 pages 113-114. 1. The plaintiff claimed that when she told the police officer that it was all her fault, she said this only because she was concerned about the elderly male driver and she was embarrassed and simply wanted to go home. The plaintiff said that she believed she was suffering from shock: defendant's bundle Exhibit 1D4 pages 115-116. I accept the plaintiff's evidence of her belief in this regard. 2. In the personal injury claim form, the plaintiff said that she stepped out of the vehicle, closed and locked the door with the key, placed the key in her handbag and started to turn towards the road. She asserted that she was at the edge of the road for several seconds at least and would have been very obvious to any vehicle travelling up the road towards her. She claimed that she was not on the road proper and was still at her car when hit and speculated that the vehicle must have been driving too close to her vehicle and that was how she was struck. 3. In her oral evidence, the plaintiff stated that she went to turn around from facing the car when she was struck: T12.12 and T55.50. This is somewhat similar to Ms Lynch's oral evidence. The plaintiff confirmed that once she exited her vehicle she did not look in the direction where the defendant came from: T60.4. The plaintiff said she got hit from behind: T60.18. The plaintiff conceded the possibility that her buttocks might have been encroaching on the fog line: T66.33. The plaintiff, while conceding that it would have been simple for her to look to see if any cars were coming, which might put her in danger, said that she had not "got to turn around", that is that she "hadn't turned around to the direction that you're going to be in to cross the road. I hadn't turned around to start crossing the road at all": T66.35-.46. 4. Ms Jay denied in cross-examination that she had stepped out onto the roadway: T154.27. 5. Although I did not form the view that the plaintiff was deliberately lying in relation to her accounts of the accident, the difference between the accounts requires the plaintiff's evidence in relation to the circumstances of the immediate collision to be treated with some caution by the court. In essence, the plaintiff's evidence before the court was that she started to turn from facing her vehicle, she may have placed one of her feet on the roadway as she was turning around but denied stepping out in front of the car that was passing as she was turning. 6. There were also, in my view, real concerns with the defendant's evidence. I have already made some comments above about inconsistencies in the defendant's evidence and his apparent poor recollection of the day of the accident. In his statement provided on the day of the accident, the defendant said that the plaintiff got out of her car in front of him and started to walk across the road. He later did not correct the police officer when it was suggested that the plaintiff was "in the middle of the road": defendant's tender bundle Exhibit 1D4 pages 101-102. This assertion is inconsistent with the evidence of the plaintiff and Ms Lynch. See also Exhibit 1D 4 page 16. 7. Mr Baker was particularly unimpressive in his evidence that the only fact he relied upon to be sure that the plaintiff walked in front of his car was the fact that his vehicle and the plaintiff collided: T182.12-.25. I accept the submissions of the two plaintiffs on this aspect of the evidence. 8. In the light of these inconsistent versions, and the defendant's evidence as a whole, in my view considerable weight must be placed on the evidence of the independent witness, Ms Louise Lynch. Ms Lynch impressed me as a careful witness who was observant and thorough in her evidence. She did not appear to exaggerate in her evidence and realised the significance of it. 9. In her statement given to police on 9 September 2013, Ms Lynch said that she noted the plaintiff back out of the door of her car and shut it and then the plaintiff took a step back "and turned then possibly took a step onto the lane": defendant's bundle page 108. Her later 11 November 2013 statement was even more specific: Exhibit 1D 4 page 17. Ms Lynch confirmed that the plaintiff said that it was all her fault; however, her evidence was inconsistent with the plaintiff's evidence on the issue of what she initially said to the plaintiff. The plaintiff said that she was told by the woman who first came to her "you can get up" whereas Ms Lynch's evidence was to the contrary. 10. Initially, in her oral evidence in chief, Ms Lynch said that the plaintiff turned and stepped out onto the road (T194.8-.22). However, in cross-examination Ms Lynch said that the plaintiff stepped back in a northerly direction to close the door of her car and then the plaintiff took a step which was a turn to the right with her right foot: T200.24-201.35. Ms Lynch could see the fog line from where she was standing but could not say where the plaintiff's foot landed in relation to the fog line when she turned: T202.1. Ms Lynch confirmed that the last movement of the plaintiff that she recalled was a movement of her right leg (T202.30) and a short time later the plaintiff was struck by the car. However, Ms Lynch did not see anything occur between the plaintiff moving her right leg and being struck: T202.12. Ms Lynch was close to the plaintiff and was observing her at the time. I consider Ms Lynch's evidence given in cross-examination following a testing of it is the most reliable evidence before the court and I prefer it and find that it should be accepted as accurate. Her evidence following the cross-examination was that the plaintiff began turning to the right and took a step to the right with her right foot before she was struck. This is not consistent with the evidence of the defendant and is closer to the oral evidence of the plaintiff. This is also inconsistent with her 11 November 2013 statement and closer to her 9 September 2013 statement. 11. In my view, the evidence of Ms Lynch is inconsistent with the conclusion of the defendant's expert (defendant's bundle Exhibit 1D4 page 31) that on balance the evidence indicates that the plaintiff did move from a position beside her vehicle onto the roadway when she was struck. It is also inconsistent with Mr Urquhart's conclusion that the plaintiff was likely to have taken about two steps before impact: defendant's bundle Exhibit 1D4 page 47. The evidence of Ms Lynch, who was observing the plaintiff, must be given considerable weight. 12. In the light of all of the evidence including the statements taken by police, the plaintiff's accident claim form and the evidence given orally before the court, I find that the plaintiff exited her vehicle, stood close to the vehicle facing it while she placed her key inside her handbag and then commenced to turn her body, moving her right leg around, probably placing her foot on or just over the fog line before she was struck by the defendant's vehicle. I find that the plaintiff had not taken two steps or even one step in crossing the road before she was struck by the defendant's vehicle. I also find that the vehicle driven by the defendant was not in the centre of his lane as he asserts but was travelling far too close to the edge of the road immediately adjacent to or just on the fog line and was proceeding southwards in a dangerous location having regard to his proximity to the fog line. 13. The defendant had available a clear view ahead for 100 metres (joint expert report) and in my view should have clearly seen the plaintiff wearing her three quarter length red coat well before he did. 14. Having regard to the evidence, I accept and prefer the opinions of Mr McDonald that if the defendant had travelled in the centre of the southbound lane, it was likely that the collision would not have occurred. If the defendant had been travelling at a safe separation from the plaintiff standing beside her vehicle, which should have been clear to him, it is likely the collision would not have occurred. Further, if the defendant had seen the plaintiff from a distance of 85 metres to 100 metres as I believe he should have, the defendant should have slowed further down, moved his vehicle closer to the centre line of the road and would have clearly avoided a collision with the plaintiff. 15. The evidence clearly establishes to my satisfaction that the plaintiff failed to look for traffic after exiting her vehicle and should have looked for cars travelling in a southerly direction like the defendant's car. This would have assisted her in taking evasive action if she had been cognisant of the traffic travelling south. However, I find on the whole of the evidence as discussed above that the clear cause of the accident is the defendant's failure to travel in his vehicle either in the centre of the lane, or, upon noticing the plaintiff as he should have much earlier than he did, travelling closer to the centre line thus allowing a clear space between the plaintiff turning on the side of the road and his vehicle. Overall, the defendant was driving his vehicle too close to the plaintiff standing by her vehicle and in a manner which was clearly dangerous. He did not have proper and reasonable regard to the plaintiff's vulnerable position in the circumstances. The Medical Evidence The plaintiff's medical evidence 1. The plaintiff relied on an extensive number of treating medical and rehabilitation reports and medico-legal reports which became Exhibits D and E in the proceedings. In order to put the reports in their timing context, it will be recalled that the motor vehicle accident occurred on 22 August 2013. The plaintiff was then admitted to Orange Base Hospital and was discharged to the care of her general practitioner without any operative treatment having occurred. I will consider the most relevant reports. Reports of Dr Gareth Thomas, Sports Medicine Doctor 1. In his initial report dated 30 August 2013, Dr Thomas set out the background to the accident and made reference in a referral to Dr Stephen Ruff to the plaintiff's pain which included pain occurring across the sacrum with intermittent left sciatic nerve pain proceeding into the posterior left leg. Dr Thomas noted that an MRI scan showed a displaced S3-4 fracture with "significant soft tissue swelling and concern for nerve root damage". 2. In his report dated 23 October 2013 referring the plaintiff to Dr Andrew Cree, Dr Thomas noted that Dr Ruff decided not to operate in relation to the plaintiff. Dr Thomas noted that the plaintiff had just returned to work but was "symptomatically unstable" and her pain had not eased. 3. In a report to the NRMA dated 11 November 2013, Dr Thomas noted that the plaintiff's bladder and bowel function remained "sluggish" with localised numbness. He also reported the plaintiff as having "burning intermittent pain in the buttock with leg pain and symptomatic instability at and around the fracture site". 4. In a 18 November 2013 report, Dr Thomas noted no real change in the plaintiff's pain although she was managing her current restrictions and was benefiting from working at home at times. 5. In a 12 December 2013 report to the insurer, Dr Thomas noted Dr Cree's decision not to perform surgery with Dr Cree stating that the pain would take "12 to 18 months to ease" with there being possible surgery after then if there was no improvement. Dr Thomas also noted that the plaintiff complained of pain which consisted of "burning pain with episodic brief, severe nerve pain". In the report dated 12 December 2013, while referring to the plaintiff having a "serious back injury", Dr Thomas noted that the consensus from several surgical opinions was that no invasive treatment would be of benefit to the plaintiff at that time. 6. In a report dated 9 January 2014, Dr Thomas noted that the plaintiff reported a steady improvement in her sacral pain following a recent holiday and she was able to walk a little further and sit for longer. Dr Thomas said that he was happy for the plaintiff to travel to Dubbo (but no further) and to increase her exercise as tolerated. 7. In a 30 January 2014 report, Dr Thomas noted the plaintiff as making good progress and she was undertaking swimming and walking. He noted that most pain occurred with prolonged sitting at work and the plaintiff stood regularly. He also noted that the plaintiff had driven 90 minutes to Dubbo without significant exacerbation and was "keen" to return to her pre-injury duties. 8. In a 27 February 2014 report to the insurer, Dr Thomas noted a "high-grade sacral fracture" and that progress was "generally good, although a rapid return to full duties had led to an exacerbation of symptoms". He said that the plaintiff's pain had worsened considerably and that severe fractures as had occurred to the plaintiff "may cause lifelong pain". He concluded that the plaintiff "may have some degree of pain for the rest of her life resulting from the injury". 9. In reports dated 8 April 2014 and 20 May 2014, Dr Thomas noted improvement in the plaintiff although pain continued. Dr Thomas referred the plaintiff to a physiotherapist to strengthen the plaintiff's "deep core strength". 10. In a report dated 17 July 2014, Dr Thomas noted the development of severe pain in the left hip of the plaintiff radiating down the anterior thigh. In a later report dated 4 August 2014, Dr Thomas noted that an MRI scan had shown a superior labral tear which was limiting the plaintiff's progress. In a report dated 6 August 2014, Dr Thomas noted as follows: "The hip MRI has shown hamstring origin bone edema and a possible tendon tear, consistent with the trauma suffered in the accident." 1. The reports show this pain continuing for several months and developing into ongoing hip pain and low chronic left pelvic pain. In his report dated 2 February 2015, Dr Thomas described the plaintiff as "a very motivated lady". 2. The defendants relied on a report of Dr Thomas dated 27 January 2015 (Exhibit 1D6 Tab 3). The report noted that the plaintiff continued to progress although the process was slow and she had ongoing pain in the left pelvis and hip amongst other areas especially after loading. It was stated that at the date of the report no treatment other than physiotherapy and hydrotherapy were likely to improve work capacity. This report was prepared prior to a psychological deterioration in the plaintiff's condition. 3. On 4 February 2015, Dr Thomas noted that the plaintiff had developed symptoms consistent with major depression, with suicidal ideation and planning. He also noted that she had been prescribed Pristiq and had seen a psychologist although her depression appeared to be worsening. 4. The plaintiff apparently ceased work in early 2015 which involved an improved mental state but in May 2015 Dr Thomas reported "worsening anxiety-related symptoms" at the prospect of returning to work. In June 2015 Dr Thomas noted that the plaintiff had slow but steady progress with a slightly improved mental state without the stress from her work. 5. In August 2015, Dr Thomas noted that the plaintiff's pain was "essentially unchanged" and she did not feel able to return to work. He mentioned anxiety crossing the road becoming problematic with some symptoms suggesting PTSD. The next month, in September 2015, Dr Thomas noted that the pain and depressive symptoms of the plaintiff "remain significant". 6. In October 2015, Dr Thomas noted that the plaintiff was not ready either mentally or physically to return to work at that stage. 7. In a report dated 27 June 2017 addressed to the solicitors for the plaintiff, Dr Thomas summarised, by including various notes, his history of consultations with the plaintiff. He noted that his first consultation with the plaintiff was on 30 August 2013 and that he did not have any consultations with her prior to the accident on 22 August 2013. 8. The notes which were included covered consultations from 30 August 2013 to 22 June 2017. In a consultation on 23 November 2015 Dr Thomas noted that the plaintiff's pain was unchanged, though variable, and affected multiple areas in her left pelvis. In a consultation on 1 December 2015 he noted that the plaintiff's symptoms were quite stable at that time. A similar report was made on 5 January 2016 where Dr Thomas suggested no change to her treatment. An improvement in mental state was noted on 1 February 2016. On 24 February 2016 Dr Thomas noted that she required ongoing psychological care as Dr Patfield had left private practice. 9. A possible return to work was contemplated. On 22 March 2016, Dr Thomas agreed with the plaintiff that a long-term goal of a return to pre-injury duties with no restrictions was not a realistic long term goal. On 19 April 2016, further shingles were noted as well as an increase in left pelvic pain. Dr Thomas noted that this was likely due to stress from pressure to return to work. The plaintiff appeared to want to return to work in mid-2016 but this resulted in an increase in her physical pain. On 14 June 2016, Dr Thomas certified her as unfit for any work. 10. On 5 July 2016, Dr Thomas noted that the plaintiff's pelvic pain continued although depressive symptoms had eased. Ongoing problems were noted in August 2016 but in September 2016 an improvement in mental state was noted. The plaintiff's condition seemed to be variable in late 2016 although in December 2016, the plaintiff's depression was noted as being stabilised and her sleep had improved. The plaintiff's condition being unchanged was noted in January 2017 with her mood being up and down and her sleep being poor of late. Increased pain and distress were noted in late January 2017 and February 2017. The plaintiff's condition was variable throughout the first half of 2017 although an exacerbation in pain was noted in June 2017. 11. Dr Thomas gave a prognosis for ongoing pain with the severity and location of the pain being variable and depending on physical loading, psychological stress, medications and concurrent illness. It had been noted that the plaintiff had had shingles on and off. Dr Thomas stated: "It is expected that Ms Jay will have pain to some extent for the rest of her life. Depression is variable and linked to the other factors. It is likely she will suffer from depression for an extended and indeterminate period. Ms Jay remains unfit for any work for which she is trained. … House work is performed by her husband. Ms Jay is capable of performing light household tasks. She does not engage any domestic assistance." Report of Dr Steven Ruff, Orthopaedic Surgeon 1. In a report dated 4 September 2013, Dr Ruff noted a displaced S3/4 fracture with displacement of the coccyx. He expressed the opinion that the plaintiff required decompression of her sacral nerve roots to give her the best chance of regaining full bladder and bowel control. However, following an admission to Royal North Shore Hospital, this procedure was not performed. Report of Dr Andrew Cree, Orthopaedic Surgeon 1. In a report dated 4 December 2013, Dr Cree noted the plaintiff had ongoing pain about the sacral region especially with sitting following her admission to Royal North Shore Hospital. Dr Cree expressed the opinion that there was not any role for decompression and that internal fixation of the fractures involved was not normally undertaken. He recommended a conservative approach. Reports of Dr Matthew Lyons, Orthopaedic Surgeon 1. Dr Lyons noted, in a report dated 27 August 2014, that an MRI confirmed an anterior superior labral tear. He recommended a hip arthroscopy and labral repair. This was performed on 22 October 2014. The operative findings of Dr Lyons were a "full thickness" labral tear and moderate impingement of the femoral articular cartilage. On 4 November 2014, Dr Lyons noted that the plaintiff was doing well and had minimal pain. He recommended that the plaintiff return to work on a graduated basis with the continuation of a rehabilitation program with her physiotherapist. 2. In a report dated 19 January 2015, Dr Lyons noted that the plaintiff was doing well post-operatively in relation to the hip joint but was still troubled by significant sacroiliac and hamstring pain. Reports of Dr Ian Thong, Pain Management Specialist 1. The plaintiff was referred to a pain management specialist, Dr Thong. In his report dated 6 February 2015, he noted that the plaintiff had chronic pain resulting from the accident. Whilst the early severe pain had settled, the plaintiff was left with persistent continuing pain. He noted that the pain had been so distressing to the plaintiff that the plaintiff had contemplated self-harm thoughts and that the orthopaedic surgeons had no further options. He diagnosed a sacral plexus injury with neuropathic pain and recommended that an increase in the plaintiff's Pristiq dose be considered. Further analgesic relief was recommended in later reports. In a report dated 19 March 2015, Dr Thong noted that the plaintiff's pain had worsened with the contributing factor being work due to the sitting and "the level of stress" involving deadlines. 2. Later reports from Dr Thong suggest that the plaintiff ceased work with the result that her pain improved. In an 18 November 2015 report, Dr Thong noted persistent neuropathic pain associated with the fracture and strain at the hamstring tendon insertion on the pelvic bone. The persistent pain in the sacrum was noted as limiting walking and sitting. This was causing a return to work for the plaintiff as being problematic. Reports of Ms N Toner, Psychologist 1. The parties relied on various reports of Ms Natalie Toner, psychologist. 2. In evidence were clinical notes from Ms Toner which showed that the plaintiff was referred to her and was first seen by her in September 2014. The notes which are part of Exhibit 1D6 show that the plaintiff initially complained of pain and stress upon her return to work including arising from travel. The plaintiff indicated to Ms Toner that she "probably went back to work too soon". She also noted that due to her physical limitations she could not walk very far. According to the notes, she stated to Ms Toner that she used to be in a runners club and used running to manage stress. The notes suggest the plaintiff having difficulties coping with her work following the accident. 3. The defendant relied on a report of Ms Toner dated 28 September 2014 which shows that the plaintiff was referred to Ms Toner for psychological treatment by her treating general practitioner Dr Khin. The report includes: "She believes that she returned to work too soon, feeling pressured to return and complete duties as she was acting in a Directors role at TAFE. Katrina reports that there is not a minute that she is not in pain but the pain will vary depending on her activity during the day. Pain is worsened with travel and with lots of sitting." 1. The plaintiff referred to the recent pain experienced in her hip. Later, the plaintiff had surgery on her hip. The plaintiff noted that she had a "dull ache" that does not go away and pain disturbed her sleep on most nights. The plaintiff admitted that she did not want to get out of bed some days and felt irritated frequently with other people. A form completed by Ms Toner indicated results "in the moderate range for depression and in the severe range for anxiety and stress". Further psychological sessions were recommended. 2. In evidence was a report of Ms Toner dated 25 February 2015. Ms Toner noted that the plaintiff had reported that she used to be a very active person and it had been very difficult for her to adjust to living with pain and the need to change her lifestyle following the accident. The plaintiff stated that she had a very low mood and reported suicidal ideation with specific planning. Ms Toner indicated that she had referred the plaintiff to Community Mental Health in early February 2015 and had met with the plaintiff's husband. She also noted that the plaintiff had commenced seeing Dr Thong and that her medication for pain relief had been altered. 3. In a report dated 27 July 2017, Ms Toner in a letter to Allianz Australia Insurance Limited expressed the opinion that the plaintiff continued to meet the criteria for a diagnosis of PTSD with associated symptoms of major depression and generalised anxiety disorder. It was recorded that the plaintiff reported that she has had periods of time when her symptoms have improved and she has felt better but not to the point of her status prior to the accident. Persistent pain from injuries suffered in the accident was noted by the plaintiff. Symptoms recorded by Ms Toner included excessive teariness, significant difficulty with sleeping, intermittent suicidal ideation, intrusive thoughts and memories and dreams of her accident as well as physiological symptoms of anxiety. 4. Attendance at a relapse prevention group at a private hospital was reported by the plaintiff to be very beneficial and she was more successful at building on her coping strategies at home. 5. Some tests showed a gradual improvement with depression indicated in the mild range and anxiety in the severe range. The plaintiff noted that she had recently enrolled in a Bachelor of Arts in Social Work degree to complete one subject to begin with and enjoyed this, although finding it required her a lot of time to complete work. Other activities were also noted. The plaintiff reported limited involvement in domestic activities but she did do some shopping with her husband doing the heavier activities and her doing light housework activities. The plaintiff reported that she believed that her main barrier to work at present was the significant difficulty she had with concentrating and focusing. Contacts in relation to work brought on an experience of an increase in intrusive thoughts. Ms Toner expressed the opinion that due to the concentration and focus difficulties it was unlikely that the plaintiff would be able to participate in any work-related activity in the near future. The psychological symptoms were a significant barrier to returning to work. The plaintiff was considering volunteer work. 6. In a report dated 22 December 2017 Ms Toner noted that the plaintiff had recently been hospitalised from 8 December 2017 to 20 December 2017 to contain psychological symptoms and for safety relating to "psychosocial stressors". Psychological problems relating to continued court hearings were noted. Dr M Patfield, Psychiatrist 1. The evidence suggests Dr Martyn Patfield was the first psychiatrist the plaintiff had ever consulted or been referred to. 2. In evidence was a report of Dr Patfield dated 26 February 2015. Dr Patfield noted that the plaintiff had been seeing Ms Toner, psychologist, for some time. He set out a history of the plaintiff's continuing pain following the accident and stated that no repair surgery was indicated. He also noted the plaintiff seeing Dr Thong and her suicidal ideation. The plaintiff indicated that she was fed up with "always being in pain and the poor sleep". Dr Patfield stated that the plaintiff's record of being a successful and capable person seems to have made her injury and dealing with it particularly difficult for her. He described the plaintiff as having no past psychiatric history and as presenting as "tearful, overwhelmed, despondent and despairing in the wake of a significant accident which has left her in chronic pain and with some disability". He recommended determining whether her pharmacological management could be optimised, challenging her current approaches to her pain and disability and continuing to see Ms Toner. Report of Professor Khadra, Urologist 1. In a report dated 30 November 2015, Professor Khadra stated that he had performed urodynamics on the plaintiff which showed an instability of the bladder which may or may not be related to her motor vehicle accident. Rehabilitation reports 1. In evidence were numerous rehabilitation reports including injury management plans. These covered the period from September 2013. 2. Issues emerging from these reports include: 1. The reports noted that following the accident the plaintiff was unfit for work and eventually had a staged return to work at the end of 2013. Initially, the plaintiff worked two-three hours of a morning to gauge her tolerances. A report dated 7 October 2013 noted the plaintiff's working conditions as follows: "fast paced work environment. Timeframes for submissions, reports and feedback. Travelling for meetings and reviews across New South Wales; travel for four out of five days if visiting campuses; travel to Sydney once per month; travel to Dubbo once per week"; 2. Recommendations were made for the plaintiff to be provided with altered chairs to assist her return to work. It was noted that the plaintiff was advised to alternate her position from sitting, kneeling, and standing every 15 minutes. It was determined that a return to work on pre-injury hours was possible within three months with assistance, and the development of a graded return to work programme was recommended; 3. A further report recommended changes to the plaintiff's workstation and workspace. See report dated 27 November 2013. Despite these reports and the plaintiff continuing to attend physiotherapy as approved by the insurer, there were delays in the plaintiff's return. This was not assisted by the plaintiff's 22 October 2014 hip operation; 4. Further return to work plans were prepared and the plaintiff was indicated as being keen to resume work but had reduced functional capacity and ongoing pain levels; 5. Overall, the plaintiff's rehabilitation managers seem to have undertaken all reasonable recommendations to assist the plaintiff in staging a return to work and providing the necessary equipment. However, the plaintiff's psychological state deteriorated at the beginning of 2015 and this deterioration continued for some time with suicidal ideation noted in a psychological/counselling management plan dated 12 February 2015. 1. In a report dated 13 March 2015, it was noted that the plaintiff continued to present as depressed and emotionally fragile with multiple sites of pain as being barriers to returning to work. The plaintiff's continual expression of a desire to return to work was however noted. A 24 March 2015 report noted that the plaintiff had commenced sick leave on 18 February 2015 due to chronic pain, depression and fatigue although the plaintiff returned to work on suitable duties on 10 March 2015 at 20 hours per week. She was certified as unfit for duties due to her psychological symptoms on 23 March 2015. 2. Further reports noted no work capacity in the plaintiff. The reports as 2015 continued, noted that the plaintiff's pain was essentially unchanged and she was not able to return to work. 3. A psychological assessment was performed by Ms Michele Rae psychologist/rehabilitation consultant, and in a report dated 29 September 2015, it was noted that the plaintiff advised that thoughts of a return to work resulted in a recurrence of suicidal thoughts despite seeing her psychologist regularly. It was noted that at the date of assessment, the plaintiff reported that she believed she did not have the capacity to return to work at present despite having a motivation to do so. Ms Rae noted that the plaintiff's reported symptoms met the criteria for major depression. Ms Rae also noted that the plaintiff did not appear fit to return to her pre-injury role at present given the severity of the symptoms reported. An increased frequency of psychological treatment utilising cognitive behavioural therapy was recommended. Reports of Dr T Duncan, psychiatrist 1. Following Dr Patfield apparently retiring from practice, Dr Tristram Duncan became the plaintiff's treating psychiatrist. He has been the plaintiff's treating psychiatrist from 2016 to date. The plaintiff relied on a number of reports of Dr Duncan for the period from 28 November 2016 to 7 December 2017. The documentation shows that Dr Duncan had not consulted with the plaintiff prior to her seeing Dr Patfield and particularly had not consulted with the plaintiff prior to the motor vehicle accident. It appears that Dr Duncan has been provided with limited information in relation to the plaintiff's pre-accident psychological problems. 2. In a report dated 28 November 2016, Dr Duncan noted that he had reviewed the plaintiff on that same day. Dr Duncan stated that his impression was that of PTSD with generalised anxiety disorder following the accident in 2013. He noted that the plaintiff presented with prominent PTSD symptoms including re-experiencing, avoidance, hypervigilance and "emotional numbing". He also noted prominent depressive symptoms as well as prominent anxiety disorder, irritability and teariness. He noted that there was some improvement in irritability and teariness symptoms following an increase in Pristiq to 200mg per day as well as other drugs. Whilst noting some issues with suicidal thoughts earlier, he said that this had settled to only transient ideation with no plans or intent. The plaintiff's sleep had vastly improved. Dr Duncan emphasised the need to continue seeing Ms Toner. He stated as follows: "As stated before my primary diagnosis is that of [PTSD] with secondary major depressive disorder and social anxiety disorder. As you may be aware I have increased her Pristiq to 200mg … I certainly recommend that no other assessments related to her mental health status should be occurring with external company until we achieve a greater sense of stability early next year." 1. In a progress note dated 16 January 2017 following a review on that day, Dr Duncan noted that the plaintiff reported that she had been "going relatively well until recently receiving a letter from her employer". It was noted that suicidal ideation, although continuing to occur, had improved and was now only occasional without the same intensity. Concentration had also improved and the plaintiff could now read a book which was a vast improvement. Her anxiety was also reported by the plaintiff to be lower. 2. In a further note dated 16 January 2016, Dr Duncan expressed the opinion that Dr Thong's recommendation for the plaintiff's involvement in a pain management programme would generally be beneficial but that a re-engagement with Ms Toner to support her mental state would be of predominant benefit and would enhance her pain management. 3. In a report dated 13 February 2017, Dr Duncan noted some fluctuation in the plaintiff's medical state with suicidal thoughts remaining although improved. The doctor discussed alterations in her medication which he hoped would lessen the impact of PTSD. Dr Duncan suggested to the plaintiff that she engage in the "Mindfulness Group", a group therapy arrangement which had been beneficial for other people particularly with PTSD and similar presentations. 4. In a report dated 25 May 2017 following a review on the same day, it was noted by Dr Duncan that the plaintiff's emotional regulation in dealing with stressful situations continued to be undermined by her mood and other symptoms. It was also noted that psychological sessions with Ms Toner were beneficial to the plaintiff and there was some evidence of improvement. 5. In a report dated 22 June 2017 to the plaintiff's solicitors, Dr Duncan noted that his first consultation with the plaintiff was on 7 November 2016. Dr Duncan stated: "The history provided indicated that Ms Jay was suffering from significant anxiety along with major depressive disorder and post-traumatic stress disorder in the context of increased stress within the workplace. This was following a motor vehicle accident and subsequent impairment of her usual functional as a consequence due to a number of issues. Ms Jay presented with increased irritability, increased teariness, concentration impairment, mood that was cyclical in nature, however this was only cycling between what was relatively "low normal" to depressed. … Coupled with this were signs and symptoms consistent with post-traumatic stress disorder, including hypervigilance, re-experiencing symptoms, emotional blunting and hypervigilance. This has led at the time of her presentation to a relative sense of inability to be able to keep on top of changes within her service, having to take longer and longer to do functions she would previously have done automatically … compounding this was ongoing pain management issues … as indicated above, my diagnoses were that of post-traumatic stress disorder, major depressive disorder and social anxiety disorder." 1. Dr Duncan expressed the opinion that with medication alteration, the plaintiff had shown some gradual improvement in the symptomatology, although she continued to remain hypervigilant with anxiety features and fluctuant depressive symptoms. The need to continue seeing Ms Toner was emphasised to assist particularly with the PTSD. Although Dr Duncan noted some improvement since November 2016, the plaintiff's functional capacity remained "significantly impaired with a high chance of relapse". His prognosis was guarded for any major improvement in the plaintiff's function over the following two years and recovery was seen as a long-term process. Dr Duncan stated: "…although she may show some symptomatic relief with ongoing treatment, I am guarded and concerned that her functional improvement over the next two years will not be significant or dramatic enough to allow her to return to a substantive and consistent workplace environment". 1. He stated that the plaintiff would require ongoing surveillance from psychiatry even after a one to two year period of treatment. He stated that from a psychiatric perspective he was unaware of any particular domestic assistance that was required. 2. In a report dated 7 December 2017, Dr Duncan referred to the plaintiff's recent mental health deterioration with an emergence of suicidal ideation. He also referred to the plaintiff having a "profound deterioration both in mental health, function, and the presence of suicidal thoughts". Dr Duncan stated that the plaintiff presented as profoundly anxious with prominent re–experiencing symptoms, hypervigilance and profound emotional distress. The plaintiff reported not being able to attend to even basic activities of daily living and required assistance from her husband with tasks. A reference to suicidal ideation was noted to be a major concern. Dr Duncan requested an urgent admission to Dudley Hospital to stabilise the plaintiff. This admission occurred. Radiological reports 1. Various radiological reports were tendered by the plaintiff. 2. A CT scan dated 22 August 2013 reported a sacral fracture with a pre-sacral haematoma. No displaced fracture of the pelvis was shown. An MRI performed on 23 August 2013 showed a complete fracture of the sacro coccygeal junction with pre-sacral oedema and ligamentous disruption haematoma noted. A concern about nerve root disruption at the S3 level was noted. 3. An MRI of the left hip on 4 August 2014 showed an anterior superior labral tear with mild bone oedema involving the common hamstring tendon, possibly caused by trauma. This was confirmed in an MRI dated 22 August 2014. Clinical records of Dudley Private Hospital 1. The plaintiff tendered as part of Exhibit E, clinical records from Dudley Private Hospital. These show that the plaintiff was admitted on 8 December 2017 with a plan of containment of the plaintiff's diagnosed PTSD and major depressive disorder post the motor vehicle accident. The referring doctor was noted as Dr Khin with the attending doctor Dr Duncan. It was noted that the plaintiff had described a recent deterioration of her mental health secondary to psychosocial stressors and associated suicidal thoughts. Sleep and appetite had been reduced and the plaintiff was reporting an increase in PTSD symptoms. On discharge it was noted that the plaintiff described an improvement in terms of agitation and anxiety. The principal diagnoses at discharge were depression, anxiety and PTSD. The plaintiff was noted as taking 200mg of Pristiq daily. The admission was noted as being required to enable the plaintiff to stay until her mood improved. An increase in flashbacks, nightmares and hypervigilance were noted on admission. Plaintiff's medico legal and MAS reports Reports of Dr James Bodel, Orthopaedic Surgeon 1. Dr Bodel, orthopaedic surgeon, provided reports in relation to the plaintiff in 2015 and 2017. 2. In a report dated 11 June 2015, Dr Bodel set out the background to the plaintiff and her complaints of pain and significant psychological disturbances. He noted that the plaintiff has struggled to return to work because of her residual injuries. He described the plaintiff as very anxious in her manner and very pain focussed. Dr Bodel described the diagnosis as being "very complex". He expressed the opinion that the plaintiff had structural damage in the sacro coccygeal region with a displaced fracture of the S3/4 segment of the sacrum as well as probable damage to the lumbosacral spine and left sacroiliac joint as well as pathology in the region of the left hip. He stated that "of greatest importance", the plaintiff had developed a very significant chronic pain profile. He reported that the plaintiff had been struggling with severe ongoing pain for some time and her prognosis must therefore be considered "very guarded". He agreed that it was unlikely that any surgical intervention would improve function and that appropriate pain management was necessary. He stated that the plaintiff was going to struggle to be able to return and remain at work in the future because of the level of her pain. He expressed the opinion that the plaintiff needed "extensive domestic assistance for heavy household maintenance and cleaning activities as a consequence of the effects of her injury" and that this may increase over time. 3. In his 28 April 2017 report, Dr Bodel noted that when he had last seen the plaintiff she "was making no real progress and she was struggling". Dr Bodel noted that there may be significant ongoing neurological involvement involving the sacral nerves but he was unable to confirm this on clinical testing. He continued with his view that the plaintiff had "a very guarded prognosis and had made very little progress". He agreed that it was appropriate that the plaintiff was under the care of a pain clinic and that the plaintiff did have a significant impairment in earning capacity as a consequence of her injuries. Reports of Dr Brian Burke, Psychiatrist 1. The plaintiff has also relied on reports from Dr Brian Burke, psychiatrist. The plaintiff saw Dr Burke for medico-legal purposes. 2. In his report dated 24 July 2015, Dr Burke noted that he had examined the plaintiff for more than three hours. He obtained a detailed history from the plaintiff in relation to her psychological/psychiatric condition and her referral to Dr Thong for pain management. He noted that the plaintiff stated that at no stage did she think she was carrying out her work efficiently upon a return to work because of her physical and psychological symptoms. 3. Dr Burke went through the plaintiff's previous stressful instances including suffering renal cancer in 2011, the threats made by a TAFE finance manager and the incident where a TAFE employee was killed in a horse riding accident. It is clear that Dr Burke was provided with an incomplete medical history in relation to the plaintiff in the consultation in 2015. 4. Dr Burke expressed the opinion that on the basis of his clinical examination and her symptom history, the plaintiff was suffering from PTSD and a comorbid chronic major depression with both conditions having been caused by the injuries she sustained in the motor vehicle accident. Dr Burke expressed the opinion that the plaintiff required ongoing psychiatric treatment with antidepressant and mood stabilising medication for a period of at least two years requiring approximately 20 consultations with a psychiatrist or alternatively primarily with a psychologist with but with six monthly reviews by a psychiatrist over a period of 2 to 3 years. Dr Burke stated: "I consider her prognosis guarded in view of the seriousness of her combined psychiatric disorders, allied with the effects on them of the ongoing problems associated with her physical symptoms". He stated that he considered it likely that the plaintiff would have future difficulty in coping with work which was intellectually demanding, unduly stressful or required a significant degree of collaborative teamwork. 5. In a second report dated 29 July 2015, he stated the following about employability: "She thinks she could work in a job which didn't require concentration or interaction with people; she does not think she could work more than two hours for a few days a week and is not sure she could work at all". 6. Dr Burke prepared a third report dated 15 November 2017 after a consultation on 6 October 2017 with the plaintiff lasting over four hours. 7. Dr Burke took a further history from the plaintiff including that she panics frequently such as when she crosses the road, depending on the traffic, and avoids parking in supermarket car parks. She also suffers anxiety when travelling in a car and avoids the site of the accident. Nightmares were also reported as well as suicidal ideation and an attack of shingles. She remembers the day of the accident and "the incident passes through her mind like a video." The plaintiff described the intensity of her ongoing pain as "breathtaking" with an increase in frequency (page 3). She can drive to Bathurst to see her pain specialist Dr Thong. Dr Burke took a detailed note of the plaintiff's usual daily activities (pages 3-6). 8. On examination, Dr Burke noted that the plaintiff was agitated and teary with a gross tremor, particularly of the right hand. 9. Dr Burke did not alter his previous opinion and diagnosed chronic PTSD and a co-morbid chronic major depression arising from the accident (page 6). He said the plaintiff's illness has become more chronic with a loss of hope of recovery. Dr Burke did not agree with Dr Duncan's diagnosis of social anxiety disorder seeing her symptoms as part of her PTSD and major depressive disorder. He could not see the plaintiff returning to any form of work on the open labour market in the foreseeable future. Dr Burke's prognosis was more guarded than when he saw the plaintiff in 2015. He saw her as needing more comprehensive psychiatric treatment in the near future requiring inpatient treatment followed by at least two further years of treatment as she has been receiving (page 9). 10. Dr Burke said Ms Jay is currently able to cope with very little in the way of domestic duties and assistance is needed for at least a further three years due to her psychiatric injuries (page 10). Reports of Dr M Ling, Rehabilitation Physician 1. The plaintiff relied on a number of reports of Dr Monica Ling, rehabilitation physician. In her report dated 8 February 2016, Dr Ling noted that prior to the accident, the plaintiff did not have any urinary dysfunction but since the accident, she has had severe problems with bladder incontinence and inability to hold a full bladder. It is noted that the plaintiff still experiences urinary accidents at least daily. Dr Ling stated that the plaintiff was independent at the time in all personal care but needed assistance with some personal items as well as heavier cleaning, shopping and gardening. It was noted that the plaintiff undertook all care in relation to their dogs. 2. On examination, Dr Ling noted the plaintiff as a very direct and forthright historian without any signs of exaggeration or malingering. It was noted that the plaintiff was frequently teary throughout the interview. 3. Dr Ling expressed the opinion that the plaintiff sustained severe injuries as a result of the motor accident and that her urinary incontinence was likely secondary to neurogenic bladder impairment as a result of the sacral nerve injury. Dr Ling expressed the opinion that the plaintiff's injuries were stable and had reached maximal medical improvement and that she would have permanent impairment of her sacral nerves with ongoing left lower limb weakness, sensory impairment, neuropathic pain and neurogenic bladder impairment. Dr Ling expressed the opinion that the plaintiff had a significantly reduced working capacity as a result of her injuries with a significantly reduced prognosis for obtaining work on the open labour market compared to able-bodied peers. 4. Dr Ling was of the view that the plaintiff was likely to have lifelong ongoing symptomatic degenerative joint disease at her lower back and left hip as a result of the accident. A lifelong multidisciplinary rehabilitation program was recommended to maintain and optimise the plaintiff's current level of function and that the plaintiff should perform home exercise and a gymnasium program with assessment by an occupational therapist. Whilst personal care was not currently required, domestic care was recommended including for gardening and home maintenance. Past care was stated to have arisen solely as a result of the motor vehicle accident. 5. In a later report dated 10 May 2017, Dr Ling, having read Dr Bodel's report, did not alter her opinion regarding Ms Jay's future treatment needs. Dr Ling expressed the opinion that Ms Jay should continue to receive care from the pain clinic and was in agreement with Dr Bodel that the plaintiff had significant impairment in earning capacity as a consequence of the effects of her injury. Dr Ling noted that she found evidence for sacral nerve injury at the time of her assessment although Dr Bodel asked for a neurologist to confirm the diagnosis. MAS reports 1. In relation to MAS reports, the plaintiff was assessed by Dr Graham Blom, psychiatrist, who diagnosed major depressive disorder, anxiety disorder and chronic PTSD. Dr Duncan, the plaintiff's treating psychiatrist, has also diagnosed PTSD. Dr Blom's report provided a very extensive and detailed pre-accident medical history. He also provided a very detailed and comprehensive post-accident medical history. Dr Blom summarised the plaintiff upon examination as follows: "Ms Jay was tearful, agitated and anxious throughout the interview. Her speech during the interview emanated a relentless sense of helplessness and hopelessness made worse by her high levels of guilt, shame and marked self-criticism… She was clearly depressed and quite anxious." Dr Blom expressed the opinion that the plaintiff's presentation was consistent with a history that he reviewed and the documentation. After expressing the opinion that the plaintiff had major depressive disorder and PTSD, Dr Blom stated that the plaintiff was "unquestionably disabled" by both of these disorders. In relation to the plaintiff's prior cancer diagnosis, Dr Blom stated as follows: "Whilst Ms Jay was treated for depressive symptomatology related to her renal cancer I do not believe this in any way has impacted on her current symptomatology. The psychological treatment that she was having prior to her motor vehicle accident was work-related and clearly not associated with substantial symptomatology and not with any level of impairment. As such I do not believe either of them warrants a reduction". This view should be contrasted with the view of the psychiatrist briefed by the defendant, Dr Roberts, which I discuss in detail below. 2. Assessor Dr Christopher Oates noted a diagnosis of complete sacro coccygeal fracture with displacement and labral tear of the left hip apparently caused by the accident. With respect to the left hip injury, Dr Oates noted a "measurable reproducible loss of active range of motion which forms the basis for assessing impairment". 3. Dr Korbel examined the plaintiff's urinary problems. He expressed the opinion that the plaintiff had urinary/bladder problems caused by the accident. It was noted that the plaintiff had "urgency and intermittent incontinence" but that her voluntary bladder control had improved. The Defendants' Medical Evidence 1. The defendants relied on a number of medico-legal expert reports for the purposes of the proceedings. They also relied on a number of reports from treating doctors and notes from the plaintiff's general practitioners and a psychologist who treated the plaintiff prior to the accident. Reports of Dr Michael Shatwell 1. Associate Professor ("Dr") Michael Shatwell prepared two reports for the purposes of the proceedings. 2. Dr Shatwell, orthopaedic surgeon, prepared a report dated 9 October 2015 in relation to an examination of the plaintiff on 8 October 2015. The report was addressed to the defendant's solicitors. 3. After setting out the history in some detail, Dr Shatwell notes that the plaintiff stated to him that she had been unable to work since March 2015, had not benefited from physiotherapy over the last six months and continued to experience pain in the sacral region with radiation to the left groin and inner thigh. Dr Shatwell noted that in February 2015 the plaintiff was referred to Dr Patfield, psychiatrist, because she had become depressed by her chronic pain and there were concerns regarding suicidal ideation. 4. He also noted that prior to the accident the plaintiff, due to significant stress at work, had trialled Pristiq. 5. In his examination, Dr Shatwell noted that the plaintiff was teary because of the distress her condition caused her, had difficulty sitting but walked with a normal gait and was able to walk on tiptoe and on her heels with minor difficulty. Dr Shatwell noted symmetrical reflex activity but irritability in movement of the left hip with pain and guarding of movement in all directions. He noted that there was no local tenderness over the sacrum or sacroiliac joints and the plaintiff had a full free range of cervical spine movement without discomfort. Movements were said to be conducted in an active manner. 6. Dr Shatwell reviewed certain radiological investigations which were provided to him. He then answered a number of questions which had been put to him. In relation to the list of injuries sustained, Dr Shatwell noted that the plaintiff had sustained a fracture at the lower end of her sacrum at the S3/4 level. There was anterior displacement of the distal segment of the sacrum and coccyx in relation to the body of the sacrum with significant haematoma. No other bony injuries were noted in the pelvis. 7. Dr Shatwell expressed the opinion that the accident described to him by the plaintiff would have caused the injury to her sacrum. His diagnosis was a closed fracture of the sacrum at S3/4 level with some anterior displacement of the sacro coccygeal segment with associated soft tissue injury. The fracture had healed. Importantly, Dr Shatwell expressed the opinion that the labral tear of the left hip was not related to the injury described. 8. He expressed the opinion that the whole of the plaintiff's current disability and impairment was related to the incident which occurred on 22 August 2013 and that Ms Jay's condition had not stabilised. He thought the prognosis was uncertain as Ms Jay was significantly affected by the effects of her injury. He agreed with the other specialist orthopaedic surgeons that surgery was not indicated but that further medical treatment in the form of pain management and physiotherapy may be of benefit. 9. He noted that the plaintiff's chronic pain and the effect of this on her psychological resilience were considerable. He did not feel it likely from the examination that she would return to work in her previous capacity but she may be able to function in a less responsible position. At the date of examination, he did not consider that Ms Jay was fit for any work primarily caused by her psychological status. He considered it likely that Ms Jay would sustain a future economic loss as a result of the accident being directly related to the physical side of the injury sustained. He noted a need for continuing domestic care and recommended reports from a psychiatrist. 10. Dr Shatwell stated as follows, in answer to the plaintiff's prior history: "Ms Jay had difficulty managing her workload prior to the accident of 22 August 2013. I feel that her psychological status was such that she could have reduced her work hours and duties prior to the accident as judged by the reports I have read. Corroboration of this by a psychiatrist would be advised." 1. Dr Shatwell noted that the plaintiff had a normal life expectancy. 2. Dr Shatwell provided a further report dated 22 February 2018 following a consultation with the plaintiff on 16 February 2018. The plaintiff attended the consultation alone. 3. In the history provided by the plaintiff it was noted that she had not worked since March 2015. Dr Shatwell recorded that the plaintiff was able to work four hours per day, five days per week, from 18 October 2013 and got back to full duties by February 2014. He stated that Ms Jay was able to work at home and when pain was troublesome she would manage her duties from home base. Due to continued problems, an MRI scan was performed to investigate pain on her left side. The MRI scan of the left hip performed on 4 August 2014 was considered to show a "tear" of the labrum of the left hip capsule. The plaintiff was referred to Dr Matthew Lyons, orthopaedic surgeon, who considered that the clinical examination findings were consistent with a labral tear and advised arthroscopic surgery which went ahead on 22 October 2014. Dr Shatwell noted that following the surgery the plaintiff reported that her left groin pain had increased and she was disappointed by the failure of the operation to produce any benefit. She reported continuing to suffer pain in the sacral region, abductor region and ischial regions of her left upper thigh and buttock. 4. These continuing problems were said to lead to difficulty managing at work and eventually certificates were given after March 2015 indicating no capacity for work and the plaintiff has remained off work since that time. He notes that the plaintiff was referred for pain management to Dr Thong and was treated with various medications without any benefit. He then notes that the plaintiff became extremely depressed by her chronic pain, was referred to Dr Patfield, psychiatrist, in February 2015 and had suicidal ideation. He noted that the plaintiff continues to be treated with a variety of antidepressant medications. 5. In the history provided by the plaintiff as recorded in the second report, the plaintiff stated that she cannot walk more than one kilometre at a slow pace, she cannot sit for more than half to one hour, her driving ability was limited, she could not stand for more than 15 to 20 minutes and she relied heavily upon her husband for household chores. The plaintiff said she was able to do cooking and light household chores around the kitchen. She stated that she was unable to cultivate her five acre garden and relied upon her husband to manage this on his own. Poor sleep was reported. The plaintiff also stated that she was incontinent of urine but her symptoms were variable and that she took Betmiga for bladder irritability. Ms Jay informed Dr Shatwell that she had not sought a further opinion from orthopaedic surgeons regarding her pain. She noted attending a psychologist every two weeks and a psychiatrist every four weeks. 6. As in his first report, Dr Shatwell referred to the plaintiff's past medical history with her being treated with Pristiq prior to the motor vehicle accident of 22 August 2013 for significant stress at work. He noted her occupational and personal histories and her interests in walking and jogging in the past which she stated she was not able to participate in since the accident. In cross-examination, the plaintiff conceded this was wrong and that she had engaged in some limited running since the accident. She also accepted that she was able to do some limited gardening since the accident. 7. On examination, Dr Shatwell noted that the plaintiff was tearful and could not sit for more than a few minutes. She described pain in the left gluteal region as well as in the left thigh and groin. However, Dr Shatwell noted that the plaintiff walked with a normal gait, she was able to stand on either leg with no obvious weakness in the gluteal muscle, and reflex activity was seen to be symmetrically present. He noted irritability on movement of the left hip and guarding in all directions, although the range of movement in the hips was symmetrical. He noted minor tenderness over the sacral and sacroiliac joints and there being pain in the left buttock and left hamstring regions. 8. Dr Shatwell noted that the plaintiff had a full range of cervical spine movement without discomfort and all movements were conducted in an active manner. 9. Dr Shatwell looked at the radiological investigations. In relation to the MRI scan of the left hip performed on 4 August 2014, he noted that the radiologist considered there was an anterio superior labral "tear" in the left hip joint. Dr Shatwell stated that labral abnormalities are seen in surveys of asymptomatic adults in more than 60% of the population on MRI scans of the pelvis. He also noted tendonopathy of the common hamstring tendon and noted that the radiologist considered changes could feasibly be of traumatic aetiology. 10. Dr Shatwell noted that there was no complaint of left hip pain documented in the hospital notes at Orange Hospital and that the plaintiff did not complain of groin pain or difficulty weight bearing on her left hip. He noted the complaints almost one year after the accident and the MRI scan being interpreted as showing a "tear" of the labrum of the left hip. He also noted the failure of the plaintiff to benefit from the hip operation and her suffering with continued pain in the left hip region which has not been amenable to treatment. He stated that her chronic pain and anxiety regarding the left hip problem led to the severe psychological problems which contributed to her not working since March 2015. 11. Dr Shatwell said that he did not consider there was any pathology related to the sacroiliac joints but the plaintiff had developed a chronic pain problem even though pain relating to the fracture of the sacrum had settled. He expressed the opinion that management of chronic pain may be of some benefit but the psychological disturbance caused by the plaintiff's difficulties with her employment was the major problem and the sacral injury should have settled. He expressed the following opinion: "[The pre-accident problems] associated with her employment … have been amplified by the effects of the accident and her inability to manage her normal duties. Ms Jay's chronic pain syndrome is related to her personality. Her inability to cope with her job was a problem before the accident occurred. … In my opinion, Ms Jay will need intermittent pain medication for management of her physical problem for the next few years." 1. Dr Shatwell then provided his opinion in relation to domestic assistance indicating that the plaintiff would have needed limited domestic assistance for the injuries in the accident and following the left hip arthroscopic surgery. 2. In relation to fitness for work, Dr Shatwell expressed the opinion that Ms Jay was fully fit for her pre-injury duties from February 2014 and that subsequent problems were connected to psychological issues. In his opinion, Ms Jay could have returned to her pre-injury duties within two months of the incident. He regarded the accident as not affecting the plaintiff's long-term employment in the future. He said that psychological issues "have eclipsed the effects of the injury." He regarded the plaintiff's musculoskeletal injuries as having stabilised, leaving only minor residual pain and without any residual impairment relating to the sacral fracture. 3. Dr Shatwell's prognosis for return to work was poor due to the plaintiff's psychological problems which in his view were not related to the physical injuries she received on 22 August 2013. In his view, residual problems were exacerbated by inappropriate surgical treatment of a lesion in the left hip which was not the cause of the symptoms and was not connected to trauma. In Dr Shatwell's opinion, it was highly unlikely that the abnormality observed in the MRI scan of 4 August 2014 was related to the trauma described. He also did not believe that the accident caused any permanent neurological disturbance of bladder function for the plaintiff. In essence: 1. Dr Shatwell regarded the plaintiff as having pre-injury psychological problems; 2. He regarded the injuries arising from the accident as limited with the plaintiff being able to return to work with full duties within two months; 3. He regarded the hip condition as being unconnected to the accident; 4. He saw no physical reason for the plaintiff not being able to return to work; 5. He regarded the plaintiff's main problem to be psychological; 6. He did not see any connection between the plaintiff's physical injuries and her psychological injuries. Reports of Dr S Roberts 1. The defendant relied on reports of Dr S Roberts, psychiatrist, dated 1 February 2016 and 7 February 2018. 2. In relation to his first report, Dr Roberts had been asked to undertake a psychiatric assessment of the plaintiff which he conducted on 25 January 2016. In preparing his report, Dr Roberts had the benefit of a number of relevant reports, including reports from Dr Gareth Thomas, the plaintiff's sports medicine doctor/general practitioner, and documents produced by the plaintiff's psychologist, Ms N Toner and her psychiatrist, Dr Patfield. 3. Dr Roberts set out the plaintiff's history of the accident and the history of her injuries and treatment following the accident. Dr Roberts noted that the plaintiff stated that the pain in her hip ultimately became so severe prior to hip surgery that she started to "get down in her mood as her optimism was deteriorating. She spoke of having tried hard to hang onto her job but her performance declined." The plaintiff stated that she became teary and irritable and her level of functioning deteriorated. The plaintiff noted that she continued to see her psychologist, Ms Toner, on a weekly to monthly basis. The plaintiff did not describe improvement in her psychiatric mood despite the combination of psychiatric and psychological treatment she has received. Dr Roberts noted that the plaintiff said that she could not concentrate to enable her to read or watch television and could not relax. 4. Dr Roberts expressed the opinion that the account presented by the plaintiff reflects the development of a major depressive disorder "characterised by a pervasively depressed mood state, pessimism, reduced appetite, impairment of concentration, social withdrawal and suicidality". The symptomatology presented by Ms Jay was not consistent with post-traumatic stress disorder in Dr Roberts' opinion. Dr Roberts agreed with the description of Dr Patfield that contributing to Ms Jay's depressive condition was her pre-existing impression of herself as a strong, capable and resilient person who has been unable to resume her pre-injury level of functioning due to the motor vehicle accident. He noted that based on Ms Jay's account, "the trajectory of her depressive condition has not included any improvement over time". 5. Dr Roberts noted that Ms Jay was previously prescribed antidepressant medication when she had renal cancer. He did not regard this as a pre-existing constitutional predisposition to depressive illness but rather an episode of mood disturbance "in response to a specific stressor." He accepted that the major depressive disorder which he diagnosed could have been caused by the accident (page 14 of his report). In particular, he expressed the opinion that the "entirety of the impairment" arising as a result of the psychiatric condition, was as a result of the effects of the motor accident. He regarded the psychiatric condition as having stabilised and that it was not expected that it would improve substantially in the upcoming year. His prognosis was guarded and he did not expect that the plaintiff's condition would improve in the foreseeable future while her physical limitations and chronic pain continued. 6. Dr Roberts expressed the opinion that a revised approach to pharmacological treatment may yield some improvement in relation to the plaintiff. He recommended further psychiatric consultation and also psychological therapy following improved pharmacological treatments. 7. Dr Roberts expressed the opinion that Ms Jay was unfit for work by virtue of a combination of psychiatric and physical limitations. However, he expressed the opinion that her psychiatric condition did not render her totally unfit for work by itself. Nevertheless he noted that the plaintiff was lacking motivation and that her concentration was impaired. He also noted her ability to interact with people was compromised. 8. In his second report dated 7 February 2018, Dr Roberts expressed quite different opinions, particularly in the light of reviewing the general practitioner notes relating to the plaintiff prior to the accident. He undertook a further examination of the plaintiff on 22 January 2018 (page 3 of the report) and was, for the purposes of his report, provided with extensive further documentation which he sets out on pages 2-3 of his report. This included documentation in relation to psychological issues which the plaintiff had faced prior to the accident. Dr Roberts in particular, looked at documents which were clinical notes of doctors at the Orange Anson Medical Centre (her general practitioner's practice prior to the accident) and Caro Consultancy (which he incorrectly calls Taro Consultancy in his report), a psychologist's practice. Dr Roberts notes in his report the plaintiff seeking psychological advice and treatment at various times in the period 2006-2009, 2011 and 2013 with Pristiq being prescribed in 2011 and increased in 2013 (see pages 7 and 10-11). 9. Dr Roberts outlines the plaintiff's current personal circumstances (pages 3-4), including her daily routines and limitations, and her psychiatric progress as reported by the plaintiff (pages 4-7) which includes feelings of guilt, suicidal ideation, the stress of the court proceedings on her, her depressed mood, the help and reassurance provided by her husband, her insomnia and dreams, her psychiatric treatment and her apparent hospitalisation at the end of 2017. Reference is made to her past psychiatric treatment and to her claims that she first saw a psychiatrist, Dr Patfield, after the accident, was prescribed Pristiq in the context of a diagnosis of renal cancer and sought guidance from a psychologist, "Rebecca", as to how to deal with staff following the death of a student. The plaintiff said she was on the way to see Rebecca Anderson on the day of the motor accident. She also referred to depression and the prescription of Pristiq 20 years ago when an employee threated to shoot workers at the TAFE (page 7). 10. Ms Jay's work history is set out (pages 8-9) as well as a history of excess alcohol consumption (page 9). Her medication is referred to (page 9). Dr Roberts undertook a mental state examination (page 9). 11. Dr Roberts outlines his review of the documents. He notes that in his first report he diagnosed major depressive disorder but not PTSD as a result of the accident. This was on the basis of a mood change being diagnosed with kidney cancer with the plaintiff being prescribed Pristiq, with some time off work and her mood symptoms resolving within six months. However, his review of further documents showed a much longer history of psychological issues with the plaintiff from 2006 when her GP noted depression and diagnosed anti-depressants. This continued into 2007-9 with unsafe drinking of alcohol and well predated the renal carcinoma. In the context of psychiatric symptoms, the plaintiff had time off work and Pristiq was prescribed. She was described as "not coping" and emotional in March-June 2013 and being very stressed, crying and having thoughts of quitting her job (page 11). Her mood apparently improved after the accident but then deteriorated in 2014-15. The dispensing of Pristiq from November 2011 was stated by Dr Roberts as being consistent, and in a manner reflecting, ongoing use up to and subsequent to the accident. The first psychiatric consultation under Medicare appeared to be that of Dr Patfield on 7 September 2015. 12. In the light of this material, Dr Roberts concluded that Ms Jay has suffered a major depressive disorder since at least 2006 "characterised by relapsing and remitting symptomatology at least at times in response to alterations in her antidepressant medication." Further, it was noted that Ms Jay suffered a period of psychiatric decline in the months prior to the accident and her condition initially improved following the accident (pages 18-19). Dr Roberts regarded an attempt to attribute significance to the accident in the light of her troubles in the months prior to the accident as "particularly tenuous". He concluded that the plaintiff presented with "clear depressive symptomology" and her history of severe major depressive disorder has thus far failed to respond to treatment. His diagnosis was of "longstanding major depressive disorder" and that her prior depressive history had previously compromised Ms Jay's capacity to pursue employment as she was required to take periods off work. He concluded that Ms Jay's need for treatment has not altered and could be seen as a natural consequence of her major depressive disorder. Occupational therapy report of Ms N Taylor-Fick 1. The defendant relied on a report of Ms Natarsha Taylor-Fick, occupational therapist, dated 31 October 2016. Ms Taylor-Fick notes that the assessment of the plaintiff was conducted by her on 10 October 2016 at Ms Jay's home over a period of 2.5 hours. 2. She noted, on her review of the plaintiff, a presentation with a: "Significantly flat affect and low mood. Ms Jay portrayed a sense of overall helplessness and hopelessness and reported upon having no purpose; she was frequently in tears during the assessment" (paragraph 1.7). 1. Ms Taylor-Fick noted that the plaintiff was upset through most of the interview. The plaintiff told Ms Taylor-Fick that at the time of the accident the plaintiff's four sons had all moved out of home. In relation to her pre-accident psychological status, the plaintiff informed Ms Taylor-Fick that she had experienced some previous work related psychological problems for which she had been treated with medication but this had been managed and was not ongoing at the time of the accident (paragraph 2.2). Ms Taylor-Fick sets out in paragraph 5.1 of her report, pre-accident material relating to psychological issues for the plaintiff including depression, lifestyle challenges with menopause symptomatology, her renal cancer, stress at work and difficulty coping. Later entries show an improved mood and learning to cope with stress prior to the accident. A general practitioner notes the plaintiff complaining of a highly stressful job whilst going through change of life (pages 9-10). At paragraph 6, Ms Taylor-Fick notes that she was advised by the plaintiff that she did not feel her condition had improved at all but in fact had worsened. 2. In Parts 9 and 10 of her report, Ms Taylor-Fick examines the plaintiff's limitations with personal care activities and domestic activities. In particular in Part 10, Ms Taylor-Fick outlines the plaintiff's limited role in domestic activities particularly household cleaning, bed making and changing, laundry activities and gardening and property maintenance. Ms Taylor-Fick in Part 10.7, expressed the opinion from her assessment that the plaintiff was observed to have the physical capacity and range of movement required for safe driving, although some significant sacroiliac joint pain was reported. Mr Jay completed the majority of shopping, particularly heavy items. 3. In her conclusion, Ms Taylor-Fick : 1. Expresses the opinion that there is room for improvement in Ms Jay's functional capacity and ability to participate in daily activities. Participation in regular active exercise with focus on stability and strengthening of core and hip musculature is recommended; 2. Instruction/guidance is recommended from an occupational therapist to assist her with resuming domestic activities post the accident; 3. Expresses the opinion that the plaintiff's psychological symptoms have had, and continue to have, a significant impact on her motivation and ability to participate in daily activities; 4. States that due to the degree of psychological symptoms, it is unlikely that occupational therapy intervention will have any significant impact on the plaintiff's overall level of function and requirement for care with daily activities; 5. Expresses the opinion that the provision of ongoing assistance with personal care tasks is not reasonable nor necessary as a result of the accident; 6. Expresses the opinion that the provision of ongoing assistance with meal preparation, cooking and completion of dishes is not reasonable or necessary as a result of the accident; 7. Expresses the opinion that whilst the plaintiff has the capacity to resume some aspects of cleaning, some assistance is needed with heavier aspects of household cleaning tasks; 8. Expresses the opinion that whilst the plaintiff has the capacity to complete the majority of laundry activities, including assisting her husband with changing bedding, some equipment assistance is needed; 9. Expresses the opinion that gardening assistance of two hours per week is recommended as reasonable and necessary; 10. Expresses the opinion that ongoing assistance for dog care is neither reasonable nor necessary; 11. Recommends home delivery of shopping; 12. Expresses the opinion that care in relation to driving is not required. 1. In the end, Ms Taylor-Fick expresses the view that in relation to the physical injuries sustained as a result of the accident, Ms Jay has the capacity to work in a full-time capacity given that she is not required to drive for long distances and is able to alternate between sitting and standing on a reasonably regular basis. However, Ms Taylor-Fick expresses the opinion that the plaintiff remains unfit for work because of her psychological issues. 2. Ms Taylor-Fick then sets out her recommendations for relevant periods for gratuitous assistance. These issues will be considered further in the damages part of this judgment. 3. Ms Taylor–Fick was cross-examined in relation to her report. The cross-examination centred on Ms Taylor–Fick's analysis in her report of the plaintiff's involvement in domestic activities prior to the accident (paragraph 10 of her report) and her recommendations for past and future care in paragraph 13 of her report (pages 41-44). One area in which Ms Taylor–Fick gave evidence was concerning the plaintiff's gardening activities pre- and post-accident. It should be noted that the plaintiff's home is located on a five acre property near Orange which has four bedrooms and two bathrooms (page 22 of the report). The property has extensive gardens and treed areas: see the photograph on page 24 of Ms Taylor–Fick's report. 4. In her evidence, the plaintiff stated that her husband used a ride on mower whereas the plaintiff had undertaken hand mowing and a large area of the garden needed to be hand mown. Mr Jay had said that prior to the accident he and the plaintiff had shared hand mowing activities: T209.24. In paragraph 10.6 of her report, Ms Taylor–Fick notes that she was informed that prior to the accident Ms Jay reported that her husband was responsible for completing all of the mowing, edging, tree trimming and fence work on the five acre property whereas she did other gardening. Ms Taylor–Fick records the plaintiff as having reported to her enjoying gardening and to spending approximately 12-15 hours each weekend completing the tasks. Ms Jay told her that since the accident a lot of the garden had become overgrown and untended and "she has had to let her vegetable garden and flower gardens go", but that the plaintiff reported an interest in being able to resume some light gardening tasks in the future, although she was not doing any as at the date of the 31 October 2016 report. 5. In cross-examination Ms Taylor–Fick confirmed that she prepared her report after attending the plaintiff's home. After preparing her report, Ms Taylor–Fick said that she was not provided with any further medical evidence by the defendant. She confirmed that throughout the assessment the plaintiff appeared distressed and very teary and reported pain to her (see page 18 of her report). Ms Taylor–Fick said that the plaintiff did not report a sharp shooting pain on the left side as the plaintiff had reported to Dr Sekel. Ms Taylor–Fick said that whilst the plaintiff was emotional she did not appear to be in undue physical distress and was able to perform many activities whilst accepting that she declined to do vacuuming because of its heavy nature (page 28 of the report). Ms Taylor–Fick was taken to 10.6 of her report where she states that Mr Jay was responsible for completing all mowing and edging. She agreed that if the plaintiff in fact performed hand mowing duties over the five acre property where the ride on mower could not go, that this could substantially add to the time taken to perform the plaintiff's pre-accident activities in the garden, although she said that the plaintiff did not report this to her. Ms Taylor–Fick accepted that the plaintiff in her post-accident condition would have difficulty pushing a mower: T433.35. She accepted that this would add to the gardening activities estimate of one hour per week for the period from 26 September 2013: T433.48. 6. Ms Taylor–Fick, in answer to a question from the court, stated that she regarded the plaintiff's estimate of 12 to 15 hours per week for gardening which she sets out in paragraph 10.6 of her report, to be an exaggeration having regard to the work to be completed, particularly having regard to the period that the plaintiff said she spent in doing other domestic activities. This would have meant that the plaintiff would have undertaken domestic activities for the whole weekend having regard to her demanding job and she thought the estimate was not reasonable. Ms Taylor–Fick said that she was also of the view that having regard to the plaintiff's functionality on her date of assessment that the plaintiff could do more in the garden, particularly having regard to her stated desire to increase her gardening activities: T434; T441-442. 7. In relation to her assessments of domestic assistance at page 42 of her report, Ms Taylor–Fick said that she did take into account that the plaintiff's house was a large home with two bathrooms but stated that her adult sons had left the house and that only Mr and Mrs Jay lived there. Ms Taylor–Fick said she did not make allowances for cleaning the spa, for the regular washing of rugs on which the dogs lay (as this was not reported to her) or for vacuuming the rugs. If vacuuming in relation to the dogs' rugs mid-week was required, Ms Taylor–Fick would allow another quarter of an hour. 8. Considering the matters raised by Ms Taylor–Fick in the light of the whole of the evidence, I accept her conclusion that having regard to her viewing of the plaintiff's property that the plaintiff's assessment of having spent approximately 12-15 hours each weekend undertaking gardening tasks seems to be overstated and unreasonable. With her domestic chores this would involve the plaintiff working all weekend. However, I believe the allowances for gardening activities on pages 41-44 of Ms Taylor–Fick's report to be also understated. Some additional allowance should be made for the hand mowing activities undertaken by the plaintiff before the accident. 9. I prefer Mr Jay's evidence on this point to that recorded by Ms Taylor-Fick from the plaintiff. I found Mr Jay to be a particularly impressive and straightforward witness. I accept his evidence at T210.2 that he undertakes about five hours a week of activities after the accident which Ms Jay did outside in the garden before the accident. Some additional allowance should be allowed for the spa cleaning, the additional vacuuming, and the additional handling and washing of the dogs' rugs. Overall, I would allow an hour a week for these additional tasks. Report of Dr R Sekel 1. The defendant relied on the report of Dr Richard Sekel, a specialist in occupational medicine. He reviewed the plaintiff on 4 November 2016. 2. Dr Sekel considered the plaintiff's past medical history, her history of employment (noting that she was in a very stressful job at the time of the accident), her social history, her injuries in the accident and the treatment she has received. Dr Sekel referred to the fact that the plaintiff had urinary incontinence arising from the accident until late 2016, which has improved. The plaintiff's continuing complaints of pain are noted in detail together with her treatment from psychologists and psychiatrists for increasing anxiety and depression. Her current complaints are set out in some detail. In relation to Dr Sekel's examination of the plaintiff's back, pelvis and hips, he noted no visible or palpable abnormality of the back and no apparent embellishment. Dr Sekel noted that the displaced fracture at the junction of the sacrum and coccyx from which the plaintiff suffered, "has now clinically healed, or at least settled." Dr Sekel recommended that further localised direct treatments for left sacroiliac joint incompetence were reasonably necessary. 3. Dr Sekel expressed the opinion that the plaintiff's physical injuries were not such as to prevent her from being able to undertake administrative work, especially in an office situation where she can "stand at her own discretion" (page 18). It was noted that prolonged sitting does cause increased discomfort but that did not mean that the plaintiff was unfit for long drives. Dr Sekel accepted that the plaintiff was unfit to undertake a few of the more labour-intensive domestic chores. 4. Dr Sekel expressed the opinion that Ms Jay's symptoms would significantly improve with treatment in relation to her left sacroiliac joint incompetence. Once her physical symptoms improved he expected improvement in the level of the plaintiff's psychological function. After reviewing the surveillance videos, Dr Sekel expressed the opinion that these confirmed his view that the plaintiff did not have sufficient discomfort to prevent her from undertaking normal hours of normal administrative work. Report of Ms I Jurkowski, Rehabilitation Counsellor/Vocational Assessor 1. The defendant relied on a report of Ms I Jurkowski who is a rehabilitation counsellor and vocational assessor, dated 7 April 2017. After undertaking a detailed examination of the medical records and the plaintiff's employment history, Ms Jurkowski examined the plaintiff's current work capacity and suggested various roles for which she believed the plaintiff was suitable. These appear all to be at a much lower level than the plaintiff was undertaking prior to the accident and include facilities manager, customer service officer, inquiry clerk, office manager and education advisor. A number of these positions were advertised near the plaintiff's residential area of Orange. The following is stated: "with ongoing support from her psychiatrist, psychologist and treating practitioner, the assessor believes Ms Jay could return to work commencing 20 hours per week, upgrading to full-time within a six months period. She could currently work in roles which allow alternation of posture and roles where she is not required to concentrate for prolonged periods of time". Report of Dr PL Harvey-Sutton 1. The defendants relied on a report of Dr PL Harvey-Sutton, consultant occupational physician, dated 18 April 2017. Dr Harvey-Sutton had assessed the plaintiff on 5 April 2017. 2. After setting out the history provided, her analysis of the various reports and the plaintiff's presentation and her examination, Dr Harvey-Sutton expressed the following opinions: 1. There was no neurological loss on her examination; 2. The plaintiff's main problem was chronic pain and emotional and behavioural conditions. As to the latter, Dr Harvey-Sutton indicated this would best be assessed by a psychiatrist; 3. As to the plaintiff's pain, she expressed the opinion that more likely than not the plaintiff would continue to have significant pain for the next two years tapering to a manageable level at about three years; 4. Dr Harvey-Sutton considered whether the left hip injury of the plaintiff was caused by the accident or was an incidental finding. She said this was difficult to assess. She noted that labral tears in the hips occur not uncommonly in asymptomatic people. In the end, Dr Harvey-Sutton considered that it was more likely than not that the left hip injury in this case may have been related to the accident by way of an exacerbation and would settle in the fullness of time. This opinion is different to Dr Shatwell who felt that the labral tear was not motor vehicle accident related; 5. Dr Harvey-Sutton expressed the opinion that continued medication was required and that pain management and physiotherapy may be of benefit for a further two to three years, particularly assessment of incontinence by a specialist physiotherapist; 6. An opinion is expressed that limited domestic assistance was required after the first six months in the amount of four hours on an average basis for two years and thereafter 24 hours of assistance per annum; 7. Dr Harvey-Sutton expresses the opinion that it was unlikely that the plaintiff would require future total hip replacement; 8. There was no indication for lumbar spine surgery; 9. Supervision by her general practitioner and a pain management specialist was likely to continue to be needed with decreasing attendances for two to three years; 10. Dr Harvey-Sutton expressed the opinion that a lifelong multidisciplinary rehabilitation program and assessment by an occupational therapist, podiatrist and the need to consult with a dietician was not reasonable and necessary; 11. Home modifications were not necessary; 12. Dr Harvey-Sutton expressed the opinion that the accident related injuries have affected the plaintiff's capacity for employment and that this capacity is continuing to be impacted by her emotional and behavioural condition and pain. The view is expressed that the plaintiff will be unable to work for some two to three years. It is then stated that Dr Harvey-Sutton considers the plaintiff will be able to return to management based work/office space work; 13. Dr Harvey-Sutton expressed the opinion that the plaintiff's injuries have stabilised. In the end, the prognosis given is that it is more likely than not that the plaintiff will continue to have significant pain for the next two years tapering to a manageable level at about three years. 1. Dr Harvey-Sutton was cross-examined by counsel for the plaintiff. Dr Harvey-Sutton corrected page 12 of her report to indicate that the plaintiff would require further treatment and medication which would involve medication similar to what she has been taking for the two years after her report and then tapering off to about $1,000 or less per annum for another five years. 2. Dr Harvey-Sutton was taken to paragraph 1.5.2 on page 7 of her report and indicated that she understood from what the plaintiff said that the plaintiff was responsible for the internal domestic activities and her husband was responsible for the outside/external domestic activities at the time of the accident. It was put to Dr Harvey-Sutton that if she assumed that the plaintiff was responsible for a lot of the outside activities prior to the accident that the number of hours indicated in paragraph 1.5.2 may alter. Dr Harvey-Sutton agreed that if the plaintiff needed assistance that may change but she got the impression from what the plaintiff had said to her that her husband did the outside activities and in any case there was no sign from the plaintiff that she could not have done lawn mowing. Dr Harvey-Sutton accepted that the plaintiff had pain in her hip and complained of pain arising from her injury. However, Dr Harvey-Sutton said that the plaintiff came across as healthy and not wasted and did not impress her as a person debilitated from her pain when she examined her. 3. Dr Harvey-Sutton was then taken to page 10 of her report where she described the plaintiff's main problem as being "chronic pain and emotional and behavioural conditions" and that as to her pain she considered that it was more likely that the plaintiff would continue "to have significant pain for the next … three years tapering to a manageable level at about three years." When asked what "manageable level" meant, Dr Harvey-Sutton said that the plaintiff was able to do normal activities with pain after about two years. It was put to Dr Harvey-Sutton that if a person complains of pain for 4 1/2 years after an accident, why would she pick three years when the pain gets to a manageable level. Dr Harvey Sutton said that this was based on her experience, the injuries in question and the cases she had seen. 4. Dr Harvey-Sutton said that people can go through life with chronic pain after an accident and in assessing the plaintiff's disabilities she did not take into account psychological and psychiatric issues. 5. Dr Harvey-Sutton was taken to her estimate on page 12 of her report that four hours of domestic assistance per week was considered reasonable for the plaintiff and necessary for a further two years from the date of her report with thereafter 24 hours of assistance per annum. Dr Harvey-Sutton gave evidence that she assumed the plaintiff could not undertake normal domestic duties in her house and this was the basis for the assessment of four hours. Dr Harvey-Sutton said that she understood that the plaintiff did everything internally in the house prior to the accident including all domestic duties such as dusting, cleaning and sweeping. See also paragraph 1.5.2 of her report. She agreed that she allowed no time for duties outside the house. Dr Harvey-Sutton said that she did not understand that there was anything extraordinary that the plaintiff had in relation to domestic duties and noted that her children were adult and that she had pets. 6. Dr Harvey-Sutton was taken to page 14 of her report where she states that she considered that it was more likely than not that the plaintiff will continue to have significant pain for the next two years tapering to a manageable level at about three years and that in "some 2 to 3 years hence, I consider that she'll be fit to return to management based work-office based work." When asked about the capacity of the plaintiff to drive long distances, Dr Harvey-Sutton said that the plaintiff could do driving and that there was no reason why she could not undertake it. She said that as far as she was aware there was no restriction on the plaintiff's driving licence. Dr Harvey-Sutton said she understood that the plaintiff had difficulty sitting but this could be a dealt with by regular breaks. She said that the patients in the country still had to travel and drive distances. 7. Dr Harvey-Sutton was asked to assume that the plaintiff's complaint of pain had continued from the time of her hip arthroscopy in an unrelenting nature. She accepted that in those circumstances the pain could well go beyond her contemplated three-year estimated period: T385.13-.28. Report of Ms Hoskins-Murphy, psychologist 1. The defendant relied as part of Exhibit 1D6 on a brief report of Ms Nicola Hoskins–Murphy, psychologist, dated 6 June 2017 under the letterhead of the Dudley Private Hospital. The report related to the plaintiff's attendance at the Dudley Mental Health Unit Outpatient Relapse Prevention Programme. It was noted that the plaintiff attended all but one session of the eight week relapse prevention outpatient programme between May and June 2017. The plaintiff was reported as being very engaged in all sessions with the group setting being particularly beneficial for her. 2. It was noted that at the end of the course, her anxiety had reduced from extremely severe to severe levels and her depression and stress levels had reduced from severe to moderate levels. Further material relating to Dr Mohamed Khadra 1. The defendants as part of Exhibit 1D6 relied on materials produced by Dr Mohamed Khadra who had dealt with the plaintiff's renal problems. The plaintiff also had relied on a report from Dr Khadra as referred to above. 2. The records show that a left nephrectomy was performed on the plaintiff in August 2011 following a diagnosis of kidney cancer. There are various reports by Dr Khadra following reviews in relation to the plaintiff's kidney cancer. In a report dated 19 September 2011, Dr Khadra reported that the plaintiff had an excellent prognosis. See also the report dated 12 March 2012. In a report dated 11 March 2013, following a review on that day, Dr Khadra indicated that a CT scan showed no evidence of recurrence or metastases. In a report dated 6 March 2014, Dr Khadra noted no symptoms of any recurrence. 3. In a report dated 13 April 2016, Dr Khadra noted that a CT scan had shown a Level 3 renal lesion on 28 July 2011. Following the radical nephrectomy, clear reviews had occurred. Dr Khadra indicated that following the accident, he performed a urodynamic study on the plaintiff on 30 November 2015 which showed instability of the bladder which may or may not be related to her motor vehicle accident trauma. He started her on Betmiga to achieve some relaxation which did assist her. 4. The reports of Dr Khadra show that the plaintiff has had no recurrence of her renal cancer and has had some improvement to her instability of the bladder. Dr Khadra did not give any definitive opinion as to whether it was related to the motor vehicle accident. Conclave expert psychiatric report of Drs Roberts and Burke 1. There was in evidence a joint report of Dr Roberts and Dr Burke dated 11 April 2018. In essence, both doctors stood by the opinions which they had stated in their most recent reports. 2. The first question considered was whether, as a result of the motor vehicle accident, the doctors believed the plaintiff has a diagnosable psychiatric condition. In relation to this issue: 1. Dr Burke confirmed his prior diagnosis of PTSD, noting it to be of "delayed expression having regard for the time–course of the development of symptoms as documented in the general practice clinical notes". In his cross-examination, Dr Burke also confirmed the presence of a major depressive disorder. In the conclave report, Dr Burke referred to the prospect that the plaintiff's compromise of memory may have represented a factor preventing clarity of recollection with respect to her pre-existing psychiatric history. This was in the context of the plaintiff not having referred accurately to her pre-accident psychiatric history. Dr Burke referred to the difficulties he had experienced in obtaining a comprehensive history from the plaintiff and the fact that a four hour consultation was required. He also believed that the plaintiff focused before the consultation on matters relating to the accident and its effect on her from a psychiatric viewpoint. It was noted that in Ms Jay's further cross-examination in April 2018, she did appear to have a deterioration in her memory from her earlier court appearance; 1. Dr Roberts noted the apparent discrepancy between the plaintiff's failure to describe her psychiatric history with accuracy prior to the accident and her apparent ability to recall other matters with clarity. He called into question the prospect that a compromise of memory could represent a factor. Dr Roberts confirmed his opinion that no psychiatric condition had arisen specifically consequent upon the motor vehicle accident. He based this opinion on what he considered to represent a long-standing and debilitating psychiatric illness which predated the motor vehicle accident and was of sufficient severity to warrant pharmacological and psychological treatment as documented in the general practice clinical file. He also noted the failure of Ms Jay to disclose to himself, Dr Burke and her treating clinicians, her past history of work-related psychiatric issues. Dr Roberts expressed the opinion that this cast doubt on the extent to which it is appropriate to rely on her account of psychiatric symptomatology, its time–course or her attribution of causation, that is whether it arose from the accident. Dr Roberts also raised the delay in the re-emergence of psychiatric symptoms following a period of psychiatric improvement after the accident. 1. As stated, Dr Burke confirmed a diagnosis of PTSD and major depressive disorder consequent upon the motor vehicle accident, whereas Dr Roberts confirmed the absence of a psychiatric diagnosis arising consequent upon the motor vehicle accident (page 2). 2. Dr Burke noted that the plaintiff had been hospitalised in Dudley Hospital for two weeks in late 2017 and also the opinion of Dr Duncan who also diagnosed PTSD and major depressive disorder. Dr Roberts pointed to the fact that the recent admission to Dudley Hospital followed the cross-examination in court and the expectation of further cross-examination. He also raised the failure of the plaintiff to disclose her pre-accident psychiatric history to Dr Duncan. 3. Both Drs Burke and Roberts expressed the opinion that the plaintiff's psychiatric prognosis was very poor when one considers her failure to progress despite extensive psychiatric treatment. The two doctors differed on the cause of the poor prognosis with Dr Burke identifying the motor accident whereas Dr Roberts identified the pre-existing and ongoing major depressive disorder. 4. Both doctors expressed the opinion that the plaintiff was in need of further psychiatric treatment in the future. The doctors referred to the cost of further psychiatric treatment with Dr Burke referring to psychiatric consultations needing to continue every one to two months for two to three years and depending on progress, for a considerably longer course of treatment. A psychologist was also needed on a weekly to two weekly basis for a period of two years. Both doctors agreed on this approach. Dr Burke also indicated that having regard to the plaintiff's psychiatric history, "strong consideration" should be given to inpatient hospitalisation. Dr Roberts was of the view that a re-evaluation of the plaintiff's antidepressant treatment regime was needed. Both doctors considered that electroconvulsive therapy needed to be considered. 5. Both doctors agreed that the plaintiff's psychiatric presentation was of a nature and severity which did not permit her to engage in paid employment for the foreseeable future. 6. Both doctors also considered the issue of whether the plaintiff suffered from any pre-existing psychiatric condition prior to the motor vehicle accident. Dr Burke referred to the plaintiff's concerns in relation to her work situation and the fact that those treating her seemed to regard her as suffering from a depressive illness which he said was probably an adjustment disorder with depressed mood (or with mixed anxiety and depressed mood). Dr Roberts did not identify within the general practitioner's file that any formal psychiatric diagnosis had been made. He also noted that the general practitioner had used general terms such as depression and anxiety but said that that was common in general practice. 7. In the end, Dr Roberts was of the view that the plaintiff had suffered a major depressive disorder over a protracted period prior to the motor vehicle accident having regard to the extensive notes in the general practitioner's file and the pharmacological and psychological treatment. 8. Dr Burke expressed the opinion that the general practice notes were brief and limited with respect to the description of symptoms and were of limited value in relation to her psychiatric diagnosis. He accepted that general practitioner notes on psychiatric matters were far briefer than those of psychiatrists. 9. In summary, there was a difference between the psychiatrists as to the plaintiff's pre-accident status with Dr Roberts seeing a relapsing and remitting pre-existing major depressive disorder whereas Dr Burke did not diagnose depression but adjustment disorder with mixed anxiety and depressed mood. Both doctors considered that the diagnoses were in existence before the motor accident but Dr Burke regarded the condition as different to PTSD and major depressive disorder. The doctors had different views about whether the pre-existing condition continued with Dr Burke saying it did not as different disorders had arisen arising from the accident whereas Dr Roberts said that it did. 10. Dr Roberts expressed the opinion that the major depressive disorder that the plaintiff had prior to the accident had continued after the accident and appeared to have worsened. However, he was not of the opinion that the worsening of the condition could reasonably be attributed to the motor vehicle accident. Dr Burke accepted that the pre-accident condition probably made the plaintiff more vulnerable to her PTSD and major depressive disorder which he saw as both being as a result of the motor vehicle accident and which undermined the plaintiff's ability to work. Dr Burke also expressed the opinion that the majority of the treatment required by Ms Jay after the accident arises due to the effects of the motor vehicle accident. He considered that a percentage of about 70% to 80% of the treatment requirements related to the effects of the motor vehicle accident and 20% to 30% related to matters identified prior to the motor vehicle accident. Dr Roberts was of the view that all the treatment related to the pre-existing psychiatric condition. 11. In particular, Dr Roberts referred to the fact that the general practice notes documented that the plaintiff's psychiatric presentation improved in the period subsequent to the motor accident and only deteriorated eight months after. Dr Burke points to the fact that the full criteria for PTSD diagnosis must not be met until at least six months after the event, although some symptoms may be "immediate". Accordingly, there is a stark difference between the two psychiatrists in relation to the cause of the plaintiff's reduced ability to work on her current psychiatric condition. Dr Burke's opinion is that the plaintiff's accident related psychiatric condition is the cause of her reduced ability to work, whereas Dr Roberts is of the view that the plaintiff has not suffered an accident related psychiatric condition and any reduced ability to work arises because of her pre-existing major depressive disorder. 12. Domestic assistance provided by the plaintiff's husband was agreed by both doctors as arising by virtue of the plaintiff's psychiatric presentation which Dr Burke says is caused by the motor accident and Dr Roberts says is caused by the pre-existing non-accident related condition. Conclave cross-examination of Dr Burke and Dr Roberts 1. Dr Burke and Dr Roberts gave conclave evidence in court and were cross-examined by counsel appearing for Ms Jay and the defendants. 2. Dr Roberts was cross-examined by counsel for the plaintiff in relation to the preparation of his first and second reports. Dr Roberts was asked about his practice as to whether he read documents provided to him prior to or after a consultation. He said he had no consistent practice but his usual approach was to have the consultation before he read the documents, then read the documents and prepare his report. He was asked what his approach was if something relevant came out of his review of the documents and he said he would usually refer to it in his report. He said he did not recall referencing anything in his report or stating that there was a need to make further enquiries. Dr Roberts accepted that he had the Caro Consulting documents from Ms Anderson, psychologist, at the time he prepared his first report and had taken them into account. He accepted that the Caro Consulting documents referred to psychologist consultations in the period April to July 2013 with the plaintiff. Dr Roberts stated that the plaintiff referred to going to the consultation with the psychologist at the time of the first consultation with him but said she reported seeing the psychologist to assist her to better manage her role in the workplace. Dr Roberts conceded that he did not see the need to raise issues relating to the Caro Consulting documents in his first report. He accepted that in his first report he expressed the opinion that the plaintiff was suffering from a psychiatric condition, was unfit for work and that there was a relationship between the motor vehicle accident and that psychiatric condition. 3. Dr Roberts then accepted that between the time of preparing his first report and the time of preparing his second report he had been provided with additional information relating to the plaintiff but that did not include the transcript of the plaintiff's oral evidence. He agreed that he had consulted with the defendants' lawyers and that there had been a discussion in relation to the plaintiff's diagnosis. Dr Roberts agreed that his review of the Anson General Practice records was pivotal in an alteration in his findings as to the plaintiff's psychiatric condition and the lack of connection between it and the motor vehicle accident. 4. Dr Roberts was then taken through the general practice records in some detail by counsel for the plaintiff. In particular, he was taken to a diagnosis of a menopause condition in April 2014 by the general practitioner. Dr Roberts agreed that this is referred to on page 11 of his second report where he states that: "no comment to indicate decline in her mood appears until April 2014, eight months after the motor accident, when she became quite emotional" in the context of menopause following which she responded well to hormone replacement therapy." 5. Dr Roberts was then cross-examined in relation to the condition "perimenopause" in women which he agreed was a physical condition and may have symptoms which include mood swings, irritability, depression, anxiety, loss of confidence, hot flushes, fatigue, heavy or late periods, and the interruption of sleep which could affect the patient's activities during the day. He agreed that perimenopause was treated with medication which usually involved hormone replacement therapy but could involve treatment in some cases with anti-depressants. 6. In relation to anti-depressants prescribed to the plaintiff, Dr Roberts said that Zoloft was prescribed in 2006, Luvox in 2008 and it was not until November 2011 that Pristiq was prescribed. He agreed that there was a potential side effect of Zoloft or Pristiq on a person's emotions, which could include anxiety. 7. Dr Roberts was then taken through the general practitioner notes where there were various references from 2006 to the plaintiff having lethargy, being upset, having insomnia, and being depressed. He noted references in the notes to the plaintiff being moody, teary, menopausal and having palpitations and there being insomnia. Dr Roberts was taken to the notes for 28 November 2011, which referred to increased anxiety in the context of the diagnosis of renal cancer and Pristiq being prescribed. He also agreed that as at June 2012 there had been no reference to depression since June 2010. In relation to the general practitioner notes for August 2012, there had been no mention of the plaintiff complaining about anxiety or depression since November 2011. Dr Roberts noted the reference in the general practitioner notes on 21 February 2013 to the plaintiff having shingles on her face and for 28 March 2013 to the plaintiff being very emotional, not coping and her periods being heavier than usual. On that occasion, the dosage of Pristiq prescribed by the general practitioner was increased from 50mg daily to 100mg daily. 8. It was put to Dr Roberts that the plaintiff's symptoms which she mentioned in March 2013 to her general practitioner were symptoms which could be associated with perimenopause. Dr Roberts did not agree with this and rejected the suggestion that the symptoms which the plaintiff had referred to were the result of menopause. He referred to references which said, particularly in April 2013, that the plaintiff felt better after taking the Pristiq but had been upset when returning to work and was not coping but then there was an improvement in May 2013. The plaintiff was mentioned in the general practitioner's notes as seeing a psychologist which was "beneficial to her" and that she was "learning to cope with stress". 9. Dr Roberts was then taken to the oral evidence of the plaintiff's colleague Mr Maginnis who described the plaintiff in positive terms in relation to her abilities, her focus and her performance in difficult meetings. Dr Roberts accepted the evidence suggested that the plaintiff was focused on her job, able to handle a stressful position, was well respected by other staff and was able to work in her chosen and stressful career. Dr Roberts accepted that with the prescribing of Pristiq, the plaintiff was still able to work in her position and perform her job. It was suggested to him in those circumstances that the deterioration of the plaintiff's condition could be blamed on another factor such as trauma. 10. Dr Roberts accepted that a trauma could cause a deterioration in the psychiatric condition of a person and that such trauma could include an accident like the present accident to the plaintiff. He accepted that an accident could be the catalyst for a psychiatric deterioration. In particular, he said a trauma of an accident could in theory be a material consideration in the plaintiff's inability to work. He also accepted that chronic pain could lead to stress and anxiety particularly the plaintiff's hip pain. He further accepted that surgery to the hip could be a catalyst to the plaintiff going off work: T410-411. However, Dr Roberts did not give evidence that these various matters caused him to alter the opinion which he had formed. 11. Important evidence was given by both experts in relation to questions from the court about whether the psychiatric illness of the plaintiff was caused or contributed to by the accident. At T412.22-T413.27 the following evidence was given by Dr Roberts: "HIS HONOUR: The question, one question I'm interested in is having regard to the history prior to the accident which you set out and you've been taken to by Mr Andrews, could the combination of the accident and the pain and the effect on the plaintiff of her own difficulties performing her job and her own self‑esteem in it have given rise to the mental deterioration, is that likely or not? WITNESS ROBERTS: I don't‑‑ HIS HONOUR: I'm sorry to ask such a complex question but it's a significant issue I have to grapple with. WITNESS ROBERTS: I'd like to present a more complicated answer. The clinical notes date from 2006 and the first clinical entry makes reference to depression and we know nothing of the history prior to 2006. The role of a general practitioner is to look at the patient holistically not to look at the patient as a menopause sufferer or a thyroid disorder sufferer or a depressive patient. There are symptoms of a depressive nature which will arise in major depressive disorder, thyroid disorder and menopause and peri menopause. It's the obligation of the general practitioner looking at the patient holistically to tease out the relevancies in that package of issues. Similarly, it's the responsibility to put into context the diagnosis of the renal carcinoma. The fact that she has depressive symptoms or depression like symptoms in the context of menopause and yet the general practitioner opts for an antidepressant medication in preference to hormone replacement therapy, one must accept that the general practitioner has diagnosed a psychiatric condition not menopause otherwise the primary approach would be expected to be along the lines of hormone replacement therapy or at least consideration of hormone replacement therapy. HIS HONOUR: Is it usual not to refer the patient to a psychiatrist? WITNESS ROBERTS: It's very common for general practitioners to initiate treatment for depression in the first instance. The prospect of pain as producing an exacerbation of a depressive condition is real and it's generally accepted by the body of psychiatric opinion. There have been references made to pain in the period prior to the motor accident, in particular there's reference to bursitis of the shoulder but no reference to an association with the deterioration in mood in that context and the fundamental question that your Honour put is did the motor vehicle accident and the pain arising as a result or the pain attributed to physical injuries which in turn have been attributed to the motor accident, potentially influence the trajectory of her depression. The answer is yes but it has to be taken in the context of an eight month hiatus between the motor accident and the deterioration and the clinical annotations made contemporaneously by the treating general practitioner which indicate an improvement. It's psychiatrically untenable to suggest that an event which was so traumatic as to produce a debilitating psychiatric condition could in the immediate aftermath be followed by positivity and improvement of mood. HIS HONOUR: Could it affect, could the depression arise from the continuing pain and the continuing difficulty in working, coping with work or not? WITNESS ROBERTS: Correct. The advent of chronic pain and Ms Jay's inability to sustain work which would seem to represent an important part of her identity, those factors could potentially influence the trajectory of her depression." 1. Dr Burke was asked whether he wished to comment on the evidence given by Dr Roberts and stated the following at T413.42-T414.37: "WITNESS BURKE: I suppose I take a somewhat different view on it. The general practitioners have not made any clear diagnostic appraisal of her condition in a basic diagnostic appraisal of her condition in terms of psychiatric diagnosis. They talk about her being tearful, depressed. They talk about her being anxious plus, plus, plus, plus and the next entry, as far as I was able to read any of them, is plus, plus, plus and they clearly considered that she had symptoms of anxiety and depression. I don't think it's clear that they made any further diagnostic appraisal of her than that. As has been raised, they did not think her condition was significantly serious enough or serious as a psychiatric condition to refer her to a psychiatrist. That might clarify why it wasn't done. As far as the immediate ... (not transcribable).. goes, I would have to agree with Dr Roberts' comments. With posttraumatic stress disorder you don't normally expect a patient to come along shortly after an accident which has caused it and appear to be significantly improved in mood for example. I'm not sure whether she told me but whether I've seen it somewhere else but her explanation of that, when I put it to her, and she must have told me but I can't find it in my actual notes that she said it. My recall of that is that she said she was so relieved that she hadn't been killed, that she was pleased about things. I didn't read any other or I didn't find any other notes on that particular section in an ongoing way which referred to her mood being improved. So far as the points that you raised regarding and was raised by the barrister regarding the possible sequelae of the accident in the way of, apparent sequelae of the accident in the way of pain in the hip, pain in the lower back, pain in both thighs and the interference that that created in her being able to cope with her work, I think in her driving and I can't quite remember whether she was expected to drive around a lot of schools in that regard and bearing in mind the fact that she was a woman who, as I read it anyway, took great pride in her ability to overcome any problems that she had, might have brought about a depressive situation. Now, I know I said, "might". I'm just aware what to me ‑ of what to me are possibilities that there are other factors involved in this type of situation which relate to the deterioration in her condition which might have overcome any immediate pleasure that she has, as she put it. The fact that she had not been killed, and you could even read that another way, of course, or in the opposite way that her terror at the time of the accident, her ‑ in terms of what injury had suffered ‑ led her to think that she was in very real danger of death. So I can't really come down one way or the other. I can see an argument both sides. HIS HONOUR: In relation to the uptake in the Pristiq prior to the accident, what do you say about that? WITNESS BURKE: I imagined that ‑ I think it's pretty clear ‑ that I think the ‑ the GP involved would have increased the dose because he thought that the 100 milligram dose ‑ I think he put it up to 150, or 50 up to 100 ‑ that the dosage was not controlling her symptoms." 1. Counsel for the defendants then asked questions of the two conclave psychiatric experts, particularly focussing on Dr Burke. 2. Dr Burke confirmed that he set out on page 6 of his second report the medications which the plaintiff informed him she was prescribed as at 6 October 2017 and which she was currently taking. He also confirmed that at the consultation on 6 October 2017, the plaintiff described the intensity of the pain which she was suffering from her physical disabilities as being "breathtaking" and that she said it was becoming "more frequent" and she had been referred to a physiotherapist. 3. Dr Burke was then asked whether the absence of recent records of the plaintiff being issued with prescriptions for Lyrica, Panadeine Forte and Palexia would cause him concern. 4. Dr Burke said that he understood that the plaintiff was taking pain medication for significant pain control including Lyrica, Panadeine Forte and Palexia. He noted that a failure to mention that these were not being taken could be put down to the plaintiff being confused and her concentration being poor for the consultation. However, he accepted that as at 6 October 2017 he was informed by the plaintiff that she was taking these drugs and that they had been prescribed for her. Dr Burke said he would be puzzled by the inconsistency in what he was told with the prescribing of the drugs as the intensity of the pain referred to by the plaintiff to him suggested significant enduring chronic pain. Dr Burke said he would also wonder why she was not taking the pain control tablets if they had been prescribed for her: T417.43-T420.41, especially at T420.21. 5. Dr Burke was then asked questions about his views concerning the psychiatric condition which the plaintiff had prior to the accident. He confirmed that he disagreed with Dr Roberts that the plaintiff had a waxing and waning major depressive disorder but believed that she may have had an adjustment disorder with depressed mood which was a separate condition to a major depressive disorder: T421.36. Although he had not formally diagnosed that condition, he agreed that a stressor was involved which he understood to be structural changes and a re-shaping of the organisation of the TAFE which gave rise to a concern in the plaintiff. He said that the notes of the general practitioners prior to the accident were minimal but he saw the adjustment disorder with a depressed mood as being a possible diagnosis for the plaintiff's condition prior to the accident: T422.27. 6. Dr Burke was then taken to page 6 of his first report where he referred to pre-accident stressors and he was asked whether these were the matters he took into account for his analysis. He was asked to assume that some of the facts were incorrect. Dr Burke said he understood the stressors on the plaintiff prior to the accident as relating to pressures at work with restructuring: see T424.11 and T424.46. 7. At the further resumed conclave examination, Dr Burke was asked questions in relation to his formulation of a potential adjustment disorder with depressed mood or with mixed anxiety and depressed mood in relation to the plaintiff's condition prior to the accident. It was accepted that Dr Burke had arrived at this potential diagnosis at the time of his meeting with Dr Roberts for the purposes of the conclave. Dr Burke agreed that he was uninformed of the full detail of the plaintiff's previous psychological history at the time he prepared his first report. In his later diagnosis of a potential disorder prior to the accident, Dr Burke said that he did not recall reading the Caro Consulting notes of Ms Anderson or the general practitioner notes at that time. Dr Burke said that he believed he was relying on notes he had read from Ms Natalie Toner, psychologist. 8. Having read the Caro Consulting notes of Ms Anderson whilst in the witness box, Dr Burke expressed the opinion that the Caro Consulting notes agreed with the view he had formed that changes developing at the TAFE prior to the accident had caused anxiety in the plaintiff because of thoughts that she might be affected personally: T459.19. However, Dr Burke confirmed that he had not had access to the Caro Consulting notes when he expressed his potential diagnosis of adjustment disorder: T459.44. When Dr Burke was asked whether the plaintiff had told him about her attendances at a psychologist prior to the accident relating to work stressors in her life in April 2013, he said that the plaintiff did indicate that prior to the accident the TAFE was looking at a restructure and she was concerned in relation to it and was not happy with it: T462.19; T464.20; T465.5. 9. Dr Burke agreed that the possible diagnosis of adjustment disorder with depressed mood was a "probable diagnosis" which involved a degree of speculation: conclave report dated 11 April 2018 page 5 and T465.15. Dr Burke said that he noted that the general practitioner notes were in his view inadequate to make a confident diagnosis of the plaintiff's condition: T465.21. Accordingly he arrived at the opinion of an adjustment disorder tentatively: T465.31. 10. Dr Burke was then asked questions about his opinion expressed on page 7 of the 11 April 2018 conclave report that the plaintiff's pre-existing condition no longer exists as such "although some basic symptoms of anxiety and depression are features of her current illness/condition." Dr Burke said that he was of that view because you could not have an adjustment disorder and a major depressive disorder at the same time. He agreed that an adjustment disorder no longer persists after six months of the cessation of a stressor: T466.4; T466.21 11. Dr Burke said that he was not clear whether the stressor, being the plaintiff's concern about the restructure in TAFE, had ceased for the plaintiff but the prior illness before the accident was replaced by a more serious one: T466.28–.38; T469.33. Dr Burke expressed the view that from his review of the general practitioner notes he was not convinced that there was any pre–existing illness, particularly one that had been diagnosed: T469.49. Dr Burke also referred to the reference in the notes to the plaintiff having perimenopause. He did not think the general practitioner's notes pointed to a diagnosis of the major depression even in the early stages: T470.27. Dr Burke said that he would on the general practitioner notes not make a diagnosis of the beginnings of a major depressive illness because although worried and distressed the plaintiff was still functioning and her condition was equally consistent with the usual worries that people would have when they were going through a difficult period in their life: T472.29. Dr Burke also referred to the fact that the plaintiff returned to work and there appeared to be a level of improvement. Dr Burke said he also saw the underlying development of PTSD following the accident: T473.41–T474.13. Dr Burke confirmed that his primary diagnosis of the plaintiff's current condition was PTSD: T476.1. 12. In the light of that, Dr Burke was asked questions about the delay in time and the emergence of the PTSD. He confirmed that he did not say that the symptoms arose immediately after the accident: T477.44. Dr Burke appeared to accept that the delay in symptoms meant that the classification was PTSD with delayed expression: T478.1. Dr Burke said that he came to this diagnosis after reviewing the general practitioner notes: T478.13 and T478.46. He then referred in his evidence to the various symptoms which the plaintiff displayed in relation to PTSD including the replaying of the incident in her mind: T479.40. He also referred to obsessive rumination about it (T480.1), apprehension in crossing the road (T480.30), nightmares (T481.20), avoidance behaviour (T481.40), severe irritability and ready anger (T482.14), and other symptoms: T482. Dr Burke said that by the time he saw the plaintiff in 2015 she met the criteria for PTSD: T483.31. He said he had no doubt from the plaintiff's description of her symptoms that they had been present for a significant period of time: T483.39. 13. At this juncture of the evidence, Dr Roberts indicated that he thought some of the symptoms of PTSD were absent and he noted that the presentation to him by the plaintiff seemed to be different to that of the presentation to Dr Burke: T484.4–T485.32. Dr Roberts was concerned with the plaintiff's symptomatology of her dreams and her fear not falling within the symptoms for PTSD. 14. Dr Burke was then asked questions in relation to the evidence which had emerged from Ms Toner's reports concerning the issue of the plaintiff engaging in other activities. Dr Burke agreed that he was interested in the plaintiff telling him how she spent her day. He agreed that he was of the impression that the plaintiff was socially isolated to a significant degree: T487.19. He regarded that as an important factor: T487.28. He agreed that he would have wanted to know that the plaintiff avoided going out into the community because of fear of being judged and because of surveillance. He agreed that the plaintiff starting a Bachelor of Arts in Social Work was relevant to a diagnosis of both major depressive disorder and PTSD. When asked whether the failure to disclose that information in the consultation in October 2017 could not be excused by memory failure, he said he was surprised by not being told but mentioned the plaintiff may have been anxious during the consultation: T489.17. Dr Burke did state that he had a vague recollection of the plaintiff mentioning attending a spinning group: T489.46. He also agreed that she did not tell him that she was President of the Orange Quota Club. He said that that surprised him. He said that could not be explained by compromised memory (T490.24) although he was uncertain of her ability to switch from one line of thinking to another and that the plaintiff may have been confused: T490.28. He accepted that the lack of provision of accurate information as to the longitudinal history of the plaintiff's symptoms and daily activities cast some doubt on his opinion: T491.6. 15. In re-examination, the plaintiff's background was put to Drs Roberts and Burke including that she had worked for many years in TAFE, had achieved a senior management position, she enjoyed her work although it was a highly stressful job, she attended numerous significant meetings, she functioned in addition as a homemaker and also looked after her dogs and had regular socialising. Dr Roberts said that it was utterly incorrect to say that that functioning was not consistent with a person who was suffering a major depressive disorder. He said it was consistent with a person who has a major depressive disorder that had been treated to remission and who had been maintained on her antidepressant medication: T491.33. Dr Roberts said that such a presentation was consistent with a depressive condition that was relapsing and remitting. Her capacity to continue her life would remain until the depression returns. Dr Roberts conceded that the depression could return as a result of an incident other than a person weaning themselves off medication: T492.1. 16. When asked to assume eight months of chronic pain following the accident and an inability for the plaintiff to continue to perform her duties, notwithstanding medication, Dr Roberts accepted that it was plausible that a deterioration in the plaintiff's psychiatric history could be connected to the persistence of debilitating pain but he queried the reason for the eight month delay in the advent of symptoms: T492.40. However, he stated that if there was improvement it was utterly implausible and if there was no deterioration for eight months it was moderately implausible: T493.6. 17. Dr Burke said that PTSD with delayed expression required a delay of six months in symptoms and two months more was not unacceptable: T493.13. He could see no reason for treating the deterioration with the delay as not being caused by the accident. 18. The doctors were then asked to assume that the plaintiff had been offered surgery which she believed would assist with the pain and hoped to obtain benefit but it did not result. They were asked could that factor materially contribute to the plaintiff's ongoing depressive symptoms. Both Dr Roberts and Dr Burke said that it could and they were the symptoms which Dr Roberts referred to in the April 2018 conclave report. 19. Despite an attack on Dr Burke appearing as an advocate by counsel for the defendants, I did not gain that impression. I formed the view that Drs Burke and Roberts were each honestly providing their opinion in relation to the plaintiff's presentation and current psychiatric symptoms, but that they differed in their opinions. 20. I will consider below which opinions I prefer in the light of all of the medical evidence. Pre-accident medical notes 1. The defendants relied on pre-accident medical notes prepared by the plaintiff's general practitioners at Anson Orange General Practice and notes of Ms Rebecca Anderson, psychologist, of Caro Consulting. Dr Roberts regarded these notes as being very important to his opinions. They were also reviewed by Dr Burke prior to or during his evidence. 2. Some caution should be exercised by the court before relying too heavily on these notes. 3. In Mason v Demasi [2009] NSWCA 227 Basten JA stated at [2] as follows: "[2] First, the trial judge was invited to discount the appellant's oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others: (a) the health professional who took the history has not been cross-examined about: (i) the circumstances of the consultation; (ii) the manner in which the history was obtained; (iii) the period of time devoted to that exercise, and (iv) the accuracy of the recording; (b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings; (c) the record did not identify any questions which may have elucidated replies; (d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and (e) a range of factors, including fluency in English, the professional's knowledge of the background circumstances of the incident and the patient's understanding of the purpose of the questioning, which will each affect the content of the history." 1. This analysis has been followed in numerous later cases. See Afoa v McBride [2017] NSWCA 323 at [70]. 2. Neither Ms Anderson nor the general practitioners from Anson Orange Medical Practice were cross-examined in the proceedings. It seems clear from the notes of those practitioners which are relevant, and which are very brief, that the record is likely to be the summary prepared by the health professional. On the one hand, the plaintiff had English as a first language and also had a high standard of literacy which would assist her in conveying her problems. On the other hand, the matters relied upon by the defendants related to psychological issues where the plaintiff appeared to be upset and anxious which may have affected her accurate conveyance of her issues. 3. In accordance with Mason v Demasi, above, I approach the notes which I shall refer to with some caution. Anson Medical Centre Orange 1. The defendants tendered records from the Anson Medical Centre at Orange which the plaintiff attended. These records consisted of handwritten consultation notes and typewritten notes and records. The notes are primarily relevant in relation to the plaintiff's psychological history before the accident. 2. The notes include the following relevant entries: 1. 24 March 2006: "Heron: - upset lethargic drives from Parkes daily insomnia ?depressed". The typed notes refer to the reason for contact as being "insomnia"; 2. 5 June 2006: "Heron: depressed Zoloft 100 mg". The typed notes refer to the reason for contact with the general practitioner Dr Heron as being "depression"; 3. 19 June 2006: "Feels better on Zoloft"; 4. 5 March 2007: "Heron: Crying teary … long discussion re lifestyle issues and related lethargy." The typed notes referred to the Zoloft tablets having ceased on 5 March 2007; 5. 28 March 2008: "Tired. Depressed … long discussion re restructuring life". The reason for contact in the typed notes was "depression" and the plaintiff was prescribed Luvox tablets; 6. 21 April 2008: There is a mention of the plaintiff being tired and the typed reason for contact was "hypothyroid depression". Oroxine tablets were added and Endep in accordance with the typed notes; 7. 18 August 2008: The typed notes recorded the reason for contact as being "anxiety"; 8. 16 September 2008: The handwritten notes refer to "anxiety" and the typewritten notes refer to the prescription of Diazepam; 9. 9 February 2009: "… palpitations, moody, teary? menopausal periods N"; 10. 1 December 2009: "Tired moody period six-seven weeks late…"; 11. 8 December 2009: Lethargy again [?] depressed"; 12. 8 June 2010: "Insomnia and distressed discussed likelihood of depression Try Temaze". The typed notes referred to the reason for contact as being "insomnia" with Temaze tablets being prescribed; 13. 18 August 2011: "Await nephrectomy anxiety +++"; 14. 28 October 2011: "Crying and upset renal cancer unable to cope at all"; 15. 28 November 2011: "Still not well enough to RTW anxiety ++++ long discussion try Pristiq 50". The typed notes refer to the prescription of Pristiq tablets 50 mg once daily; 16. It appears that Pristiq at 50mg once daily was prescribed from November 2011 to at least March 2013; 17. 24 September 2012: "R shoulder pain"; 18. 8 November 2012: "R shoulder bursitis"; 19. 10 December 2012: "Tired flushes … perimenopausal"; 20. 21 February 2013: "? Shingles on maxillary branch of … facial N". The typewritten notes referred to "? Shingle along maxillary branch" with there being pain on the left side of the face which was sensitive to touch; 21. 28 March 2013: "Very emotional not coping periods heavier than usual … considering HRT". The general practitioner Dr Khin altered the prescription of Pristiq from 50mg to 100mg per day; 22. 3 April 2013: "Felt better after ↑ dose of Pristiq for a few days get stressed, upset & emotional when went back to work not coping anymore .… For referral to psychologist"; 23. 1 May 2013: "Mood improved since ↑ ed dose of Pristiq seeing psychologist → beneficial learning to cope with stress getting hot flushes night sweats not sleeping well"; 24. 6 May 2013: "… Menopause established". The typewritten notes referred to the menopause as being the reason for contact; 25. 31 May 2013: "Recurrence of shingles in LT nostrils". The reason for contact was described as "herpes zoster"; 26. 14 June 2013" "Stress +++ crying not coping anymore at work thinking of quitting job Pristiq helped initially but not anymore husband supportive ↑ Pristiq to 150mg med cert 2/52". The typewritten notes refer to the reason for contact as being "depression". The typewritten notes, however, only refer to Pristiq 50mg daily 27. ? September 2013: "Feeling much better in mood [with] ↑ dose of Pristiq. Currently on 100mg hit by a car 6/52 ago #sacro coccygeal fracture … cert [with] Pristiq at 100mg". 28. ? October 2013: "Still in a lot of pain unable to sit/stand on for longer than 15-20m". 1. Later notes refer to the plaintiff's condition in some detail after the accident. Caro Consultancy notes 1. Caro Consultancy is a psychologist's practice. The documents produced by Caro Consultancy and tendered by the defendant include a job referral form for six hours from the New South Wales TAFE. It is dated 5 April 2013. A document dated 9 April 2013 and signed by the plaintiff gives permission for Caro Consultancy to contact the plaintiff's general practitioner Dr Khin. Other documents include a suggestion that the plaintiff often felt tired, nervous, restless and depressed. The extension request form for further psychological care refers to the presenting issue being "significant stress response related to workplace and personal health stressors". The reason for the extension request was stated to be "sound progress being made in sessions to date, but there are ongoing issues, particularly around uncertainly of future given organisational restructure. Future sessions will allow for consolidation of progress to date". It is noted that if the extension was not approved that a mental health care plan would be sought from the plaintiff's general practitioner at the conclusion of the sixth session should additional sessions be required. 2. There are two relevant pages of notes from Caro Consultancy concerning the plaintiff. It appears these are notes prepared by Ms Anderson. The initial consultation on 9 April 2013 referred to the plaintiff's background in a high-pressure job in which she had struggled with depression in the context of being diagnosed with renal cancer. The plaintiff is recorded as feeling unsupported by her boss with anxiety about the cancer returning and with her job being stressful, requiring working at home on weekends and with the receipt of more than 200 emails a day. The plaintiff's goals were said to be to become able to cope with more resilience and with managing her work demands better. It was also noted that the plaintiff was anxious in relation to her job security with a restructure occurring. This is consistent with what Dr Burke recalls the plaintiff mentioning. 3. On 15 April 2013, the plaintiff is recorded as referring to her moods being improved since the last consultation but there still being issues with her workload at work. On 29 April 2013, the plaintiff in recorded as referring to her moods continuing to improve and being less teary and overwhelmed, with some success being obtained with the application of stress management strategies at work. There was a reference to anxiety in relation to a "pending spill of her position" and all executive positions in which she would have to reapply. 4. On 28 May 2013, the plaintiff is recorded as stating that workplace stress and uncertainty in relation to organisational change remained high but the plaintiff was generally managing with this. The plaintiff referred to her sleep being poor after a week of leave and with anxiety about returning to work. There is a reference to the plaintiff being more positive than previously and generally feeling she was coping better and was keen to continue with assistance. On 24 June 2013, the plaintiff was said to be currently off work on sick leave as she could not cope. She said she felt hounded by other staff and felt overwhelmed and emotional. She said she was still doing work from home. There was further reference to the uncertainty of the plaintiff's position. 5. The last notes on the file were on 18 July 2013 and refer to the plaintiff taking two weeks of sick leave but still doing work from home. The plaintiff discussed with the psychologist strategies to manage her work. The plaintiff was recorded as saying "everything feels okay for now". Various strategies were discussed with the plaintiff for managing her work and balancing her work and life. It appears that the next session with the psychologist was to be on the day of the accident. Submissions in relation to medical findings 1. Detailed written and oral submissions were made by the parties in relation to their competing claims concerning the medical findings which should be made. 2. The plaintiff Ms Jay made the following submissions, in summary, in relation to medical issues: 1. In assessing quantum, it is necessary to examine all of the evidence touching upon both the plaintiff's pre-existing work history and medical conditions and the conditions caused by the accident. There is no dispute that the plaintiff's injuries exceed 10% whole of person impairment, thus entitling the plaintiff to non-economic loss; 2. The evidence from the plaintiff is of a person who was seriously injured in the accident, had ongoing serious pain, went back to work but was unable to function emotionally because of the pain she was experiencing and the anxiety and could not perform her job to her usual high standard. This caused a substantial deterioration in the plaintiff's mental health including suicidal ideation; 3. The plaintiff's current position is that she is struggling with anxiety and the difficulty of sleeping and has an inability to function emotionally. She also has ongoing pain around the hip and a click in the hip with pain on the outside of the leg as well as other problems (paragraphs 100-103). The plaintiff has difficulty with performing activities, with her memory and with tasks around the house; 4. In the view of Drs Roberts and Burke, the plaintiff currently suffers from a major depressive condition which is serious. The court should find that the plaintiff currently suffers from a major depressive condition and is in need of ongoing treatment. The court should also find that the plaintiff has ongoing pain and discomfort which is chronic in its nature and affects all aspects of the plaintiff's daily life (paragraphs 111-112); 5. The plaintiff's medical reports should be preferred. Also the medical assessment reports of the assessors should be accepted. The opinion of Dr Shatwell on behalf of the defendant that the plaintiff Ms Jay's residual problems were exacerbated by inappropriate surgical treatment of a lesion in the left hip, was inconsistent with the opinion of all of the other medical professionals in the matter and should not be regarded as relevant. Even Dr Shatwell in his second report accepted that the plaintiff had developed a chronic pain problem. The problems associated with her employment have been amplified by the effects of the accident and her ability to manage normal duties. The court should find that the surgery to the hip was appropriate in all the circumstances; 6. The court should also find that there is residual pain in the plaintiff. Dr Harvey-Sutton's evidence was confusing but the doctor accepted that the plaintiff's main problem was chronic pain and emotional and behavioural conditions. Dr Harvey-Sutton accepted it was more likely than not that the plaintiff would continue to have significant pain in the next two years tapering to a manageable level after about three years. Dr Harvey-Sutton also accepted that it was more likely than not that the left hip injury was related to the accident; 7. The evidence of Ms Taylor-Fick in relation to the number of hours spent by the plaintiff each weekend prior to the accident gardening should be rejected. Ms Taylor-Fick also did not make allowances for other tasks undertaken by the plaintiff prior to the accident; 8. Dr Roberts accepted in his evidence that a trauma like the accident could cause a deterioration in the plaintiff's psychiatric condition. He also accepted that chronic pain by itself could cause stress and anxiety. Unsuccessful surgery was also accepted by Dr Roberts as being a catalyst for the plaintiff going off work (paragraphs 147-149). Dr Roberts conceded that the advent of chronic pain and the plaintiff's inability to sustain work which represented an important part of her identity could potentially influence the trajectory of her depression (page 150); 9. A significant issue was the question of whether the plaintiff's psychiatric injuries were materially contributed to by the accident. On the whole of the evidence the court should find that the breach of duty of care of the defendant materially contributed to the plaintiff's psychiatric condition by causing the chronic pain from which she suffered and the breakdown of her ability to function in her work environment (paragraph 159). The court should find that the defendant's negligent act or omission was necessary to complete a set of conditions which were jointly sufficient to cause the plaintiff harm. Having regard to the plaintiff's ability to maintain employment in a highly stressful job prior to the accident (albeit with the consumption of some medication), the court should find on all of the evidence that the plaintiff would have continued with her employment and that it is only as a result of the accident that the plaintiff has stopped work. Based on all the evidence the court should find that she will not return to work (paragraphs 162-163). 1. The State of New South Wales adopted the plaintiff's submissions on the medical issues in the case: paragraphs 4 (d) and 76 of the submissions dated 18 May 2018. 2. The defendants' submissions on the medical issues were, in summary, as follows: 1. Whilst the plaintiff adopts Dr Roberts' diagnosis of a major depressive disorder, the plaintiff's submissions do not address the alternative diagnosis of PTSD. The evidence as to a pre-existing psychiatric condition is not examined in the plaintiff's submissions (paragraph 40); 2. While the accident caused the anterior displacement of the distal segment of the sacrum and coccyx, the sacral injury healed such that the plaintiff returned to full duties in February 2014 and resumed running. The labral abnormality in the left hip (identified almost a year after the accident) is not related to the accident. The left sacroiliac incompetence is not established on the evidence. The plaintiff's assertion of chronic pain is unreliable and is not consistent with the objective material. The chronic pain did not affect the trajectory of the plaintiff's pre-existing major depressive order and if there had been no accident, the plaintiff would have been disabled by her pre-existing psychiatric condition anyway (paragraphs 41-42); 3. The medical reports show that the plaintiff's physical injuries improved considerably from the date of the accident until the end of 2013. Dr Thomas noted steady improvement in the plaintiff's condition. Although Lyrica had been prescribed by Dr Thomas from December 2013 the prescriptions were not presented by the plaintiff for the supply of the pain medication. The plaintiff failed in her evidence to disclose improvement and her engagement in other activities such as running. No pain medication was supplied to the plaintiff from 7 September 2013 until 17 September 2014 when Panadeine Forte was prescribed in another context; 4. There are gaps in the supply of medication for pain to the plaintiff. Medication was supplied for pain the day after the plaintiff first consulted Dr Thong; 5. Dr Shatwell's opinion should be preferred that the left hip abnormality was not caused by the accident (paragraph 51); 6. There is no left sacroiliac incompetence on the medical evidence: see the opinion of Dr Shatwell which is consistent with the opinion of Dr Bodel (paragraph 52); 7. The medical records do not support a constant chronic pain profile in 2013-2014. The foundation for the contention that chronic pain caused the deterioration of a pre-existing major depressive disorder is not supported by the objective evidence (paragraphs 54-57); 8. The plaintiff's submissions do not address the issue of PTSD (paragraphs 59-60); 9. Neither Dr Burke nor Dr Duncan carefully reviewed the time course relating to the symptoms complained of to the accident in relation to PTSD of delayed expression (paragraph 61); 10. A careful review of the medical records does not support the plaintiff's submission that her stressful occupation and her cancer increased her anxieties but did not prevent her from continuing to work successfully. The records do not corroborate the plaintiff's evidence that in 2013 she was anxious and depressed about her renal cancer (paragraph 62-64); 11. All the consultations with Rebecca Anderson, psychologist, in 2013 were personal. The plaintiff's failure to recall those consultations is implausible and difficult to believe. The plaintiff withheld this relevant medical information from numerous doctors and lied by omission. This resulted in the expert witnesses forming opinions which are flawed (paragraphs 66-68); 12. The defendant's specialist, Dr Roberts, changed his opinion when he was given a full account of the plaintiff's previous medical history. There is no evidence from Dr Duncan in response. The evidence does not support the plaintiff's contention of a causal nexus between pain and her psychiatric condition. The evidentiary material reveals the plaintiff reacting adversely to her work environment before the accident (paragraphs 70-78); 13. The plaintiff's presentation was poor. In addition to her failure to disclose the significant pre-existing psychiatric treatment, the plaintiff's inability to recall when her narrative of activities of daily living was challenged, was implausible. The cross-examination of the plaintiff created an impression that she is somewhat "histrionic" and a difficult person in the workplace. The plaintiff's evidence on all issues cannot be accepted, without significant reservation (paragraphs 79-81). Medical Findings Introduction 1. The medical issues in this case concerning Ms Jay are complex and relate to a period of over ten years. The parties have relied on a large number of detailed medical reports and a large quantity of medical notes and records. The doctors, both treating and medico-legal, have provided differing opinions on almost all aspects of Ms Jay's conditions and prognosis, including even in reports tendered by the defendants. The medical notes relied on are often brief and raise further questions as to what led to certain matters being recorded and the clinical context of the notes. The plaintiff's general practitioners both past and present were not called and thus were not cross-examined. Their notes which were in evidence and which were relied on (particularly for the period 2006-2013) thus should be approached with some care as should the brief notes of the psychologist Ms Anderson from Caro Consultancy who was also not called: see the comments of Basten JA in Mason v Demasi, above. Ms Jay 1. Many doctors relied on histories provided to them by the plaintiff Ms Jay. In relation to Ms Jay, I note the following matters and make the following findings: 1. Despite the submissions on behalf of the defendants to the contrary, I find Ms Jay to be an honest witness who was attempting at all times to give her evidence truthfully. Having observed her giving evidence on the issue, I find that she did not deliberately mislead any of the defendants' medico-legal experts or her own doctors or the court; 2. However, it is clear to me on the evidence, as Drs Duncan, Burke and Roberts, among others, state in their reports, that Ms Jay has a serious psychiatric condition. She gave her oral evidence on two occasions. On both occasions, her evidence was punctuated by teariness, upset, distress and some emotional outbursts. Her condition appeared to me to have got worse by the time of the second occasion in April 2018 as her evidence was less directed, less responsive and somewhat vaguer. I do not consider it was deliberately so. A deterioration in the plaintiff's psychiatric condition was confirmed by Drs Burke and Duncan, the latter being her treating doctor. I accept that evidence; 3. Ms Jay also gave incomplete or inaccurate medical histories to some doctors, particularly in relation to her pre-accident mental history: the histories given to Dr Burke and Dr Roberts, for example. This omission is strongly relied upon by the defendants. In my view, in the light of all the evidence and her current psychiatric condition, some caution should be exercised in relation to the reliability of all aspects of Ms Jay's evidence, particularly her medical histories and her reports of her daily activities; 4. I reject Ms Jay's evidence that when she went to see Ms Anderson, the psychologist, in April-June 2013 that it was to assist Ms Jay in dealing with the distress of her fellow workers whom she was supervising. I am satisfied on the evidence that it was to assist Ms Jay herself with her own problems and concerns, particularly concerning stress arising from her work. These concerns included concerns in relation to potential restructuring at the TAFE with possible changes to her job and/or issues with job security; 5. The period mid-2011 to August 2013 is particularly problematical in the case. Ms Jay was diagnosed with renal cancer in July 2011. This understandably caused her great and ongoing concern. It was at this time that Pristiq was prescribed to her by her general practitioner, although other anti-depressants had been prescribed earlier and there had been varied symptoms from 2006 with some large gaps in symptomology. Menopause symptoms were also referred to by her general practitioners and these may well have added to her anxious presentation. The period September 2011 to August 2013 was a worrying time for Ms Jay in relation to possible further cancer even though reports from Dr Khadra, the relevant specialist, were clear and positive; 6. As stated, I exercise caution in relation to the Anson general practitioner notes and the Caro Consultancy notes. None of the medical practitioners and the psychologist who prepared these notes was cross-examined. The notes are brief. I accept Dr Burke's evidence that from the notes, there is no clear psychiatric diagnosis, although words such as "anxiety" and "depression" are used in the notes. I accept Dr Roberts' evidence that a lack of a formal diagnosis and brief notes are not uncommon with general practitioners. There is no referral to a psychiatrist by the plaintiff's general practitioners in the 2006-2013 period, only a referral to a psychologist. The cancer scare and menopause and perimenopause are referred to in the notes. Although great reliance was placed by Dr Roberts on entries suggesting an improved mood after the accident (eg September 2013, 3 June 2014 and July 2014), the plaintiff's condition appears to have been variable and what the plaintiff precisely said and in what context to the general practitioners on the occasions relied on is not clear. Thus these notes need to be considered carefully; 7. The Caro Consultancy notes suggest some improvement in Ms Jay's presentation at various times in April-July 2013. See the entry for 18 July 2013. It is clear that although some time was taken off work, Ms Jay had returned to work by the time of the accident and had been working at home for at least part of the time she was off work; 8. After taking these matters and the medical evidence into account, and the submissions made by the parties, I do not consider that Ms Jay had a major depressive disorder, as Dr Roberts asserts, as at August 2013 prior to the motor vehicle accident. I prefer Dr Burke's opinion on this issue. The factors I rely on for that finding are as follows: 1. The lack of a formal diagnosis of major depression by any properly qualified medical practitioner prior to the accident. In reaching that view I take into account the general practitioner notes and the prescriptions for Pristiq; 2. The fact no general practitioner referred Ms Jay to a psychiatrist prior to the accident; 3. Ms Jay continuing to work at a senior level for the TAFE albeit with some time off and some time working from home; 4. Her condition being assisted by the Pristiq which she was prescribed; 5. Her performing in a highly stressful and senior job; 6. The presence of other potential stressors such as anxiety in relation to further cancer, menopause and perimenopause symptoms; 7. Her condition improving on occasions in the period 2006 to 2013 with large periods where there were no complaints recorded in notes by her general practitioners; 8. Her concerns in relation to the work restructuring; 9. Her continuing to perform her domestic chores, taking exercise and engaging in social activities; 10. The evidence of Mr Maginnis as to the plaintiff's work performance pre-accident; 11. The lack of any knowledge of her husband and son, whose evidence I accept. Also, I rely on there being no relevant discussions between the plaintiff and them. If the plaintiff was really considering giving up her job as was suggested by the defendant, I think it very likely she would have discussed the matter with her husband at the least; 12. The fact that such complaints to her general practitioner had been made over a lengthy period at various times from 2006-2013 yet Ms Jay continued to perform in her various positions; 13. The Caro Consultancy notes showing the plaintiff's condition to have varied considerably in 2013; 1. Significant criticism was levelled by the defendants at Ms Jay for inconsistencies in her reports of her daily activities between what she told Ms Toner and what she told Drs Burke and Roberts. I find that there was not full disclosure by Ms Jay in 2017 of her activities of daily living to Drs Burke and Roberts. Again, on the whole of the evidence I find this was not deliberate by Ms Jay. I believe Ms Jay answered questions asked of her by the doctors and focussed on her problems: see also Dr Burke's comments at Exhibit 1D6 page 549. However, the various activities (one unit in a Bachelor of Arts in Social Work, the spinners group and the Orange Quota Club) all show Ms Jay not being as isolated and seriously affected by her pain and psychological complaints at these times; 2. There is an issue about Ms Jay's current pain levels. Dr Burke recorded her stating to him in October 2017 that the intensity of her pain was "breathtaking" and getting more intense. This should be compared to what she told Ms Toner in 2017 and her evidence: T363.14. The plaintiff acknowledged that she told Ms Toner in July 2017 that most days she had her pain under control. There is also evidence that the plaintiff is not currently taking her prescribed pain relief medication. The evidence is consistent in my view with a chronic pain problem with variations in pain and the plaintiff able to take steps to limit her pain and make herself comfortable even though many of the plaintiff's physical injuries may have settled (see Dr Shatwell Exhibit 1D6 page 33). Obviously this ability has to be seen in the context that the plaintiff is currently not working and thus can vary her activities and functions to suit herself at the relevant time. Pre-accident findings 1. Based on my review of all of the medical evidence, and taking into account the submissions made, I make the following factual findings in relation to medical issues concerning Ms Jay in addition to those in the last paragraph. 2. I find that the plaintiff Ms Jay had the following relevant medical issues prior to the accident: 1. The plaintiff had a fractured left ankle many years prior to the accident which healed without residual symptoms or loss of function; 2. The plaintiff has had hypothyroidism for a number of years which is controlled with medication; 3. The plaintiff had symptoms of depression and anxiety about 18 years ago when there were threats of violence from a co-worker to staff at the TAFE. Pristiq was prescribed for the plaintiff and some time was taken off work by her. She consulted a psychologist. This matter did not appear to cause problems for the plaintiff in the years immediately after that; 4. The plaintiff had symptoms of anxiety and depression in periods from 2006-9 with anti-depressant medication being prescribed; 5. The plaintiff had a nephrectomy for left kidney cancer performed in August 2011 without any recurrence, post-operative symptoms or loss of kidney function. Some considerable time was taken off work by Ms Jay then. The evidence does not seem to suggest the plaintiff is at risk of further kidney cancer or a reduction in her life expectancy. The cancer appeared to have caused the plaintiff some considerable anxiety and depression symptoms, as would be understandable for any person, and appropriate medication being Pristiq was prescribed in November 2011; 6. The plaintiff worked in a stressful job prior to the motor vehicle accident. The evidence suggests that due to a number of stressful factors (including the plaintiff's kidney cancer, difficulties with stress at work, fears of work restructuring and volume of work among others), the plaintiff experienced psychological symptoms prior to the accident which led to her continuing to take the antidepressant Pristiq and the dosage being increased. I refer to my analysis above. She was seeing a psychologist Ms Anderson due to pressures at work and her difficulties coping in the months prior to the accident. The plaintiff also had shingles at times and complained of symptoms of menopause and perimenopause. Although the plaintiff complained about the stress of the work, and even apparently mentioned giving up her job to her general practitioner on one occasion (Exhibit 1D6 page 371), it seems that the plaintiff was dealing with the stresses of the job prior to the accident with the assistance of Ms Anderson. She made no mention of giving up her job to her husband, her son Warwick or her work colleague Mr Maginnis. She was seeking medical assistance. Although the plaintiff was seeing Ms Anderson, a psychologist, prior to the accident, the evidence discloses that she first saw a psychiatrist, Dr Patfield well after the accident. There is no evidence of extensive periods off work, other than relating to her kidney issues, in 2011-13. However, some time off work was taken for stress. She was still performing her demanding job at the time of the accident. She did however have a history of anxiety and depressive symptoms. See Dr Roberts' second report. As set out above, considering all the evidence I find that the plaintiff did not have a major depressive disorder prior to the accident. She may have had an adjustment disorder with depressed mood as suggested by Dr Burke, but the medical evidence does not establish this. Dr Burke also said this was only his tentative conclusion. The plaintiff has four sons, all of whom are independent and who have left home. The plaintiff has a working husband. He appears at all relevant times to have been highly supportive of the plaintiff. I find, taking into account all the evidence, particularly the plaintiff's pre-accident symptoms, that but for the accident, the plaintiff would probably not have developed any serious psychiatric condition due to the ongoing stresses of her employment which would have prevented her working in her job or led to her resigning from her position in the short or medium term. The plaintiff had a long history of successfully coping in practical terms with her work including obtaining numerous promotions. She worked in her various jobs despite the symptoms which emerged in 2006, until the date of the accident. The plaintiff sought help and was prescribed Pristiq from late 2011 following her diagnosis of renal cancer. However, despite some time off work she returned to her job. Mr Maginnis paints a convincing picture of the plaintiff's work abilities and her focus on her job. I reject the conclusions of Dr Roberts in his second report and the defendant's submissions that the plaintiff's current condition is a continuation of her pre-accident psychiatric history. Ms Jay was working in her senior and difficult job, she was not taking very lengthy periods off work, she was seeking help from her GP and a psychologist, she did not see a psychiatrist until 2015 and a senior colleague noted no relevant problems in her. These matters are in my view significant. I prefer the opinion of Dr Burke on this issue for the above reasons. However, the plaintiff, from her symptoms prior to the accident, was clearly vulnerable psychiatrically. Her pre-accident symptoms need to be taken into account and may be relevant to the date when the plaintiff may have retired, but for the accident. 1. Accordingly, in my view on the whole of the evidence and I find, there was no relevant pre-accident medical history which makes it likely that the plaintiff would have developed a similar serious psychiatric condition to that of which she currently complains. Any psychological problems pre-accident were comparatively much more limited and apparently did not impact significantly on the plaintiff's performance of her work or her home and social life. I accept and prefer the views of Dr Blom and Dr Burke on this matter for these reasons, even though both may not have had a complete medical history at the time their reports were prepared. 2. The plaintiff also seems to have had a successful social and exercise history prior to the motor vehicle accident and was very fit and undertook regular running. Physical injuries in or arising out of the accident 1. The plaintiff suffered the following physical injuries as a result of the accident: 1. A fracture of her sacrum at the S3/4 level; 2. Displacement of the distal segment of the sacrum and displacement of the coccyx in relation to the body of the sacrum; 3. Significant bruising; 4. Ligamentous disruption haematoma; 5. Resulting incontinence and numbness. I accept the opinion of Dr Korbel that the plaintiff suffered chronic urinary retention/bladder denervation as a result of the accident. However, through a trial of the drug Betmiga, the plaintiff's condition improved significantly in 2016 and this is no longer a significant problem to her. Nevertheless, this created inconvenience, embarrassment, worry and difficulties for the plaintiff for about a three year period with some improvement in the latter period; 1. Resulting numbness and pain in the left buttock and left lower limb; 2. An issue arises whether the plaintiff's hip problem which was diagnosed in 2014 was caused by the accident. The Defendants submit that it was not. A labral tear of the left hip apparently occurred which was considered to require surgery. There is a difference of medical opinion in evidence as to whether this was related to the accident or was unconnected to the accident. Dr Shatwell expressed the opinion in his reports that the hip condition was unconnected to the accident and is common in asymptomatic adults. He gave detailed reasoning in his second report for that view. In that report he expressed the opinion that Ms Jay's residual problems "were exacerbated by inappropriate treatment of a lesion in the left hip, which was …not the cause of her symptoms" and which was not caused by the motor accident: Exhibit 1D6 page 35; 3. Other doctors are of the opinion that the hip tear was likely caused by the accident or arose from symptoms which occurred as a result of the accident or was an exacerbation as a result of the accident. On this issue, I prefer the reports and reasoning of Drs Bodel (Exhibit D pages 5-6, 16), Lyons (Exhibit D page 31), Ling (Exhibit D pages 38, 43-44), Oates (Exhibit D pages 73-74) and Harvey-Sutton (Exhibit 1D4 page 318) to that of Dr Shatwell. The plaintiff had no apparent problem with her hips which was relevant prior to the accident and in my view and I find, the weight of medical opinion is clear that the hip problem was likely caused by the accident; 4. Even though labral abnormalities may be common and seen in approximately 60% of the adult population with no symptoms on MRI scans as Dr Shatwell asserts (Exhibit 1D6 page 35), here the plaintiff seemed to have problems in the hip area when Dr Lyons proposed the surgery in 2014 (see Exhibit D page 31). Further, Ms Jay noted in her evidence that she was struck more on the left side "because [she] had extensive bruising down the back of [her] left leg": T14.13-.21. The only significant event which occurred on the evidence which may have caused the tear was the accident. The problems in the hip emerged within 12 months after the accident. Dr Thomas noted improved but continuing pain in the plaintiff in April and May 2014 before the severe hip pain became apparent. I do not accept the opinion of Dr Shatwell on this issue. If I am wrong on this conclusion, then I find Ms Jay's physical problems other than her hip still caused her significant difficulties in 2014-15 and still occasionally do. I particularly refer to the reports of Dr Thomas for the February-May 2014 period prior to the hip problem emerging. 1. I find that the fracture caused by the accident has healed. I find that there is no suggestion of the likelihood of further surgery, although a hip replacement is possible. 2. The clear weight of the evidence establishes, in my view, that the plaintiff has suffered extensive and sometimes continuing pain as a result of her injuries of varying degrees of severity and intensity which has continued despite the plaintiff having a reasonable range of movements generally and being able to make herself comfortable when needed to help reduce and manage her pain. 3. The plaintiff is in the care of a pain specialist (Dr Thong) and the main body of opinion is that she should continue with receiving treatment from that specialist together with the management of pain relief. The experiencing of fairly significant pain by the plaintiff is set out in the vast majority of the medical reports and in my view is genuine although it seems to have moderated somewhat in recent times allowing her to engage in more activities and cease taking prescription pain medication. 4. Even a number of the defendant's doctors do not dispute this. Dr Shatwell indicated in his first report that further medical treatment in the form of pain management and physiotherapy may be of benefit. He expressed the opinion that the plaintiff's prognosis was uncertain. He refers to the plaintiff's "chronic pain". He seems to have altered this opinion somewhat in his second report and sees the plaintiff as having a "chronic pain problem" (even though her fracture has settled) but was fit for work from early 2014 (Exhibit 1D6 page 33). Dr Harvey-Sutton notes that the plaintiff would be unfit to work in her opinion for some two to three years and states that the plaintiff's main problem now is "chronic pain" and emotional and behavioural conditions. Dr Harvey-Sutton expressed the view in her report that the plaintiff would "continue to have significant pain for the next some two years tapering to a manageable level at about three years": Exhibit 1D4 page 317. 5. The plaintiff's doctors, both treating and medico legal, support the conclusion that the plaintiff is experiencing continued chronic pain and that pain management, including with physiotherapy assistance, is needed. I accept that evidence, although I note that the pain has improved more recently as reflected in the pharmaceutical records relating to the issue of prescribed pain relief. The defendant relies heavily on these records as showing periods where no prescribed pain relief was issued. That may be accepted. However, they also show prescribed pain relief being issued at various times up to early 2017. Psychiatric injuries arising from the accident 1. It seems to me, as established by the weight of the expert evidence, that the plaintiff's main problems are currently psychiatric and psychological, emanating from the chronic pain from which the plaintiff has been suffering and her inability as a result to work, with a significant loss of self-esteem and confidence in the context of a stressful and demanding job. In saying this, I do not wish to be thought to be disregarding the effects of the plaintiff's ongoing chronic pain problem. 2. The plaintiff's employment record shows a person who had managed to achieve a very successful career despite having four children and domestic burdens. Prior to the accident, she achieved high rank in the TAFE sector and appeared to be generally managing in that job despite the fact that it was stressful and she had some anxiety and depression symptoms. The job had clearly caused her concerns, particularly when she was the subject of threats by a fellow worker many years ago. Her continued working at a high level despite a cancer diagnosis and a nephrectomy in 2011 is in my view a good guide to her relative stoicism and ability. She was seeking professional advice in relation to her psychological problems in 2013 which seemed to primarily arise from work stresses. 3. In my view, the evidence shows that TAFE took all reasonable steps as a corporate entity to assist the plaintiff in her return to work after the accident. The plaintiff appeared to be very fond of her job and wanted to retain it. It was a position which required regular driving and was stressful. It required a high level of commitment and involved numerous meetings with other workers and supervision of other workers. The plaintiff's main complaint after the accident appeared to be with her superior's pressure, not the response of TAFE itself, which purchased special furniture for her. 4. In my view, the evidence establishes and I find that the plaintiff, primarily due to her pain and restrictions arising from the accident, was unable to cope with her job after the accident in 2014-15 despite the fact that appropriate office equipment was provided by the TAFE and the plaintiff was, for a lengthy period, given an office which gave her room to walk around, lie down (when needed) and to move the height of her desk and keyboard. The TAFE in certain periods also allowed the plaintiff to work from home to assist her. 5. In the end, I find that the plaintiff believed that the pain and restrictions which she had arising from the accident physically meant that she was failing in performing her job. She could not drive the long distances she had previously travelled. She could not sit for lengthy periods in meetings. She could not perform all her necessary tasks. She believed she was under pressure to return to her pre-accident duties. This failure to cope in her work physically, dramatically affected her self-esteem. Eventually, this caused a disintegration in her psychological and psychiatric well-being in early 2015 which led to her experiencing suicidal ideation to the extent of having a planned suicide which she did not proceed with. There is no evidence problems to this extent had occurred before the accident. I accept Dr Burke's views on this issue which seem consistent with the facts. 6. My review of the medical evidence establishes in my opinion that the plaintiff at least has severe and ongoing depression in the form of a major depressive disorder arising from the accident. This is confirmed by the reports of Drs Burke and Duncan. I prefer their views to those of Dr Roberts as being more consistent with the evidence as to the course of Ms Jay's problems and her psychiatric disintegration in 2014-15. The crucial factor which occurred was the accident and the physical injuries the plaintiff suffered. Prior to the accident, the plaintiff was coping with some difficulties with her job. After the accident, and the plaintiff's physical injuries, she was not coping. The major depressive disorder she does have is a serious one and affects the plaintiff's mental state, pessimism, concentration, social withdrawal, suicidality and capacity for work. 7. I must also consider whether the plaintiff has PTSD, particularly if I am in error in relation to the causal relevance and origin of the depressive disorder. Dr Burke described PTSD as his "primary diagnosis" in relation to Ms Jay: T476.1. Dr Roberts rejected its presence whilst accepting some symptoms of PTSD existed. Drs Duncan and Blom have also found PTSD. 8. The plaintiff submits on this point as follows: 1. Dr Burke should be accepted in relation to his diagnosis of PTSD with delayed expression; 2. The matters relied upon by Dr Burke are consistent with the plaintiff's evidence and the evidence of Mr Maginnis; 3. Assessor Dr Blom's report confirms Dr Burke's view as to PTSD. He found PTSD was caused by the accident. His view is conclusive as to the causation of the medical injury of PTSD: Pham v Shui [2006] NSWCA 373 at [96]; Spratt v Perilya Broken Hill Ltd [2016] NSWCA 192 at [41]; AAI Ltd v State Insurance Regulatory Authority of NSW [2016] NSWCA 368 at [141]-[158]; 4. Accordingly, the diagnosis of PTSD caused by the accident by Dr Blom is conclusive evidence of the fact under s 61(2) of MACA; 5. In any case, Dr Blom's view is supported by the views of Dr Duncan and Ms Natalie Toner as well as the views of Dr Burke. 1. The defendant submits as follows as to PTSD: 1. The view of Dr Roberts (no PTSD) should be preferred to that of Dr Burke (PTSD with delayed expression); 2. A diagnosis of PTSD is inconsistent with the plaintiff's longitudinal medical history. There is no record of the plaintiff mentioning PTSD symptoms to her general practitioner in 2013-4, to Ms Rae of Greenlight or to Dr Patfield. Whilst Ms Toner has diagnosed PTSD she has not considered the earlier medical history of the plaintiff in 2013-2014; 3. Whilst the plaintiff has some symptoms of PTSD, not all the required symptoms are present (Dr Roberts); 4. It is erroneous to suggest the certificate of Assessor Dr Blom is conclusive evidence as to the PTSD diagnosis for all purposes; see Allianz Australia Insurance Ltd v Serria Girgis [2011] NSWSC 1424 at [22], [25]. 1. Having reviewed the various medical opinions in the light of the other evidence, I am not satisfied on the balance of probabilities that the plaintiff has PTSD arising from the accident as she submits. In arriving at that conclusion I rely on the following matters: 1. There is clearly no suggestion that the plaintiff Ms Jay had PTSD prior to the accident; 2. The first psychiatrist the plaintiff saw after the accident was Dr Patfield. In his report dated 26 February 2015 (Exhibit D page 53), no diagnosis of PTSD is made. Dr Patfield also does not refer to the usual symptoms of PTSD although poor sleep is mentioned. There is no reference to nightmares, episodes of recurrent and intrusive thoughts as to the accident or panic attacks. His report was prepared 16 months after the accident; 3. The notes of the plaintiff's doctor who saw her from soon after the accident, Dr Thomas, also do not refer to PTSD or PTSD symptoms in the period from the date of the accident to early 2015. The only references to relevant symptoms are from 4 February 2015: see Exhibit D; 4. The psychologist Ms Rae who saw the plaintiff in September 2015 makes no reference in her report to PTSD or relevant PTSD symptoms: see Exhibit 1D8; 5. Drs Duncan, Blom and initially Dr Burke were not given full or accurate histories in relation to the plaintiff's psychological background and did not have access to the plaintiff's general practitioner notes for the period from the date of the accident to February 2015: see Exhibit D page 55, 60 and 64 as to Dr Blom. Dr Blom thus found PTSD on an incomplete history. After he was given the plaintiff's full psychological background, Dr Burke changed his diagnosis from PTSD to PTSD with delayed expression: Exhibit 1D6 page 548. Drs Duncan and Blom had not diagnosed PTSD with delayed expression; 6. Whilst Ms Natalie Toner refers to PTSD in her report dated 27 July 2017 (Exhibit E page 42), there is no reference to PTSD or PTSD symptoms in the period when the plaintiff initially consulted her. References to some symptoms are much later: see Exhibit 1D6 (volume 1): Ms Toner's notes at 199, 203 and 216-7; 7. While Dr Roberts accepts that some symptoms referred to by the plaintiff were found in the presence of PTSD, he rejects it in the end (Exhibit 1D 6 page 20). After carefully reviewing Dr Roberts' reports, particularly the February 2018 report, and his oral evidence, I am persuaded by his detailed rejection of PTSD in the light of the plaintiff's longitudinal medical history. See T484-5; 8. While I put considerable weight on the opinion of Dr Duncan as to PTSD, as he has been the plaintiff's treating psychiatrist for the last few years (see Exhibit E pages 1, 5, 8-9 and 14), he was not provided with the plaintiff's full background psychological history in making his diagnosis; 9. The absence of any reference to PTSD symptoms in the medical notes for an extensive period after the accident and the plaintiff's return to work in 2014 (albeit on a reduced and restrictive basis) does not assist a PTSD diagnosis arising from the accident. Early psychiatric and psychological reviews in 2015 do not suggest PTSD as opposed to depression as a result of a significant accident which left the plaintiff with significant pain and an inability to cope: see report of Dr Patfield Exhibit D page 54; report of Ms Rae Exhibit 1D8 pages 1 and 7; 10. For the above reasons, I prefer Dr Roberts' opinion that the symptoms for a diagnosis of PTSD arising from the accident have not been established. 1. In relation to the plaintiff's submissions concerning various Court of Appeal authorities, I reject the submission. These cases stand for the proposition that an Assessor's determination as to the degree of permanent impairment caused by the accident is conclusive. This opens the gateway for an award of non-economic loss. However, in my view they do not stand for the proposition that an Assessor's determination of certain injuries as caused by the accident is conclusive. Otherwise, the obtaining of differing medical opinions in a trial as to the cause of an injury would be a superfluous step. 2. The careful analysis by McColl JA (with whom Macfarlan JA agreed) in AAI Ltd v State Insurance Regulatory Authority of NSW [2016] NSWCA 368 at [120]-[158] is helpful on this point. Once the matter goes to court the Assessor's determination of permanent impairment is conclusive, the Assessor's medical report is likely to be also relevant and admissible on medical issues but the causation of the range of injuries asserted by the plaintiff remains to be determined by the court on the evidence, including any medico-legal evidence. I do not regard Pham v Shui [2006] NSWCA 373 at [96] and Spratt v Perilya Broken Hill Ltd [2016] NSWCA 192 at [41] as establishing the contrary. I accept the defendant's analysis of the authorities on this point and the comments in Allianz Australia Insurance Ltd v Serria Girgis [2011] NSWSC 1424 at [22], [25]. 3. The plaintiff's ongoing depressive condition is, I find, complex and it is clear that she needs continued psychiatric treatment, psychological treatment and appropriate medication for the future with her diagnosis being very uncertain. Even the defendant's psychiatric expert, Dr Roberts, noted that it was not expected that the plaintiff would improve psychiatrically in the foreseeable future. The plaintiff's presentation in the witness box was consistent with the views of the psychiatrists. The plaintiff had a wide range of depressive symptomatology in the witness box as described by the medical experts, including tearful periods, difficulty concentrating, irritability and on occasions, shouting. 4. As stated above, the plaintiff gave further evidence and was further cross-examined in April 2018 following her initial evidence in June 2017. The plaintiff appeared to me to have deteriorated in her presentation in that relatively short period of time. In particular, I formed the opinion that the plaintiff's recollection had deteriorated. It was put to the plaintiff that she did not disclose significant relevant material to doctors and she said that she did not do so deliberately. Having seen the plaintiff and having considered the various matters raised by the defendants, I accept the plaintiff's submissions in this regard. In my view, and I find, the plaintiff did not deliberately omit to tell doctors relevant information for the purposes of advantaging her case. The plaintiff's presentation in court showed a degree of lack of recollection of detail and difficulty in focusing which would explain a failure to mention information, particularly if she was not asked specifically in relation to it. Even after the second lot of cross-examination of the plaintiff, I remain firmly of the view that the plaintiff is essentially an honest witness who was doing her best to give accurate evidence but whose evidence, particularly as given in April 2018, must be viewed with some caution because of her psychiatric problems. 5. I am comfortably satisfied and I find that the plaintiff's psychiatric condition from which she currently suffers (major depressive disorder) arises from the accident, was contributed to by the plaintiff's pain condition and physical injuries and requires continued treatment with uncertain results. I also agree with the conclusion of Dr Blom, based on the plaintiff's evidence and her history, that the plaintiff's treatment for renal cancer does not appear to have impacted on her current symptomatology. Based on the medical evidence, I accept Dr Burke that it is likely Ms Jay will have future difficulty in coping with work because of her psychiatric condition. I accept the following conclusion of Dr Burke: "I consider her prognosis guarded in view of the seriousness of her combined psychiatric disorders, allied with the effects on them of the ongoing problems associated with her physical symptoms." 1. The plaintiff's presentation and illnesses are, in my view, inconsistent with the plaintiff likely being able to undertake future employment at all in the foreseeable future, particularly if extensive concentration is involved or the position is stressful or a position involves responsibility or working in a team. I find that it is highly unlikely for this reason that the plaintiff has any real current capacity for employment. Evidence of the State of New South Wales 1. The evidence shows that the plaintiff Ms Jay was at all relevant times an employee of TAFE New South Wales previously known as the TAFE Commission. The State of New South Wales, as the appropriate plaintiff, has sued under s 151Z of the WCA for an indemnity from the defendants for payments of compensation and other expenses made to Ms Jay or on her behalf, as an employee of TAFE New South Wales: see s 151Z(1)(d) of the WCA. 2. In s 4 of the WCA, "injury" is defined in the Act as meaning inter alia "personal injury arising out of or in the course of employment". Sections 10 and 11 of the WCA relevantly provide as follows: "10 Journey claims (1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly. … (2) Subsection (1) does not apply if: (a) the injury was received during or after any interruption of, or deviation from, any such journey, and (b) the interruption or deviation was made for a reason unconnected with the worker's employment or the purpose of the journey, unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation. (3) The journeys to which this section applies are as follows: (a) the daily or other periodic journeys between the worker's place of abode and place of employment, (b) the daily or other periodic journeys between the worker's place of abode, or place of employment, and any educational institution which the worker is required by the terms of the worker's employment, or is expected by the worker's employer, to attend, (c) a journey between the worker's place of abode or place of employment and any other place, where the journey is made for the purpose of obtaining a medical certificate or receiving medical, surgical or hospital advice, attention or treatment or of receiving payment of compensation in connection with any injury for which the worker is entitled to receive compensation, (d) a journey between the worker's place of abode or place of employment and any other place, where the journey is made for the purpose of having, undergoing or obtaining any consultation, examination or prescription referred to in section 74 (3), … (5A) Nothing in this section prevents the payment of compensation for any personal injury which, apart from this section, is an injury within the meaning of this Act. (6) In this section: educational institution means: (a) a trade, technical or other training school, or (b) a university or other college or school providing secondary or tertiary education. night, in the case of a worker employed on shift work, night work or overtime, has a meaning appropriate to the circumstances of the worker's employment. place of abode includes: (a) the place where the worker has spent the night preceding a journey and from which the worker is journeying, and (b) the place to which the worker is journeying with the intention of there spending the night following a journey." "11 Recess claims If a worker on any day on which the worker has attended at the worker's place of employment pursuant to the worker's contract of service or training contract: (a) is temporarily absent from that place on that day during any ordinary recess or authorised absence, (b) does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and (c) receives a personal injury during that absence, the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly." Evidence of the plaintiff Ms Jay 1. In the course of the plaintiff's oral evidence, counsel for the State of New South Wales asked questions of the plaintiff. The effect of Ms Jay's evidence relevant to the State of New South Wales' claim is as follows: 1. Ms Jay confirmed a document as representing the payments that she had received for workers compensation over the period 23 August 2013 (the day after the accident) to 24 March 2017; 2. Ms Jay confirmed a document setting out claims that the plaintiff had made for wages that had yet to be paid to her for the period 31 March 2017 to 9 June 2017; 3. The plaintiff stated that when she parked her car in Woodward Street in Orange shortly prior to the accident that she was going to see Ms Rebecca Anderson, psychologist. The plaintiff's evidence was that she was going to see Ms Anderson, who she had seen several times previously to assist her with her work and in particular in dealing with staff members in an area where she was Acting Director and who were in the area relating to the student who had died in a horse riding accident in 2009. I have rejected this evidence, as set out above. I have found that Ms Jay was seeing Ms Anderson in relation to Ms Jay's personal problems concerning her work. The notes of Ms Anderson disclosed that the plaintiff appeared to be there for personal reasons and not for reasons relating to assisting her distressed colleagues but her attendance did seem to relate to the plaintiff's stressors at work; 1. The plaintiff gave evidence that she could go to medical appointments without seeking the permission of anyone at the TAFE, her employer. She also said that she was entitled to a lunch break and could take this at any time. The plaintiff's evidence was that she had her lunch with her at the time but planned to eat it later, probably during her subsequent work meeting. 2. I accept the plaintiff's evidence on this issue. I find from all the evidence that the plaintiff was seeing Ms Anderson having left her place of employment for personal medical reasons concerning her work before intending to proceed to her second appointment which was immediately after with the Institute Director, Ms Baxter, and was clearly for work purposes. 1. The first document which recorded payments made by the TAFE in relation to workers compensation to Ms Jay became Exhibit 2D3 in the proceedings. This was updated later up to 23 April 2018 by Exhibit 2D5 to a total figure of $468,451.87. Section 151Z of the WCA 1. Section 151Z(1) of the WCA is as follows: "151Z Recovery against both employer and stranger (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation, (b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation, (c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act, (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages), (e) if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages, (e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment, (f) all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Commission." 1. A substantial issue in the proceedings is the liability of the defendants to the State of New South Wales under s 151Z(1)(d) of the WCA. Both the State of New South Wales and the defendants provided substantial written submissions in relation to the issue and also addressed orally. 2. The State of New South Wales submitted, in general summary, as follows on this issue: 1. The State seeks, pursuant to s 151Z of the WCA, the workers compensation payments made to, for and on behalf of Ms Jay for injuries she sustained in the motor vehicle accident which occurred on 22 August 2013; 2. It is submitted, as set out above, that liability should be found in the defendants and that there should be no finding or only a minimal finding of contributory negligence or only a minimal reduction for contributory negligence; 3. By its list of payments, which became Exhibit 2D5, the State has established the making of payments to, for, and on behalf of, Ms Jay under the WCA; 4. As a result of the accident, Ms Jay sustained personal injuries as set out in the submissions of counsel on behalf of Ms Jay dated 11 May 2018; 5. No case is established that the personal injuries sustained by Ms Jay in the accident did not arise out of or in the course of her employment. Ms Jay, in parking her car on 22 August 2013, was proceeding to an appointment with Ms Anderson, a psychologist, arising out of issues at work. On the whole of the evidence, particularly that the referral came under the EAP scheme and related to issues which Ms Jay had at work, the court would be satisfied that the personal injuries arose out of or in the course of Ms Jay's employment; 6. No question of the reasonableness of the workers compensation payments made to Ms Jay arises as a matter of fact or law. There is no evidence that the payments were not reasonable but in any case such an enquiry is not made if the payments are made in relation to a workers compensation claim; 7. All that is required is to determine the quantum of common law damages which are recoverable from the defendants and secondly to determine the amount of compensation which is to be paid. The amount of the indemnity provided for in s 151Z(1)(d) of the Act is limited by the determination of the quantum of common law damages; 8. The State submits that the plaintiff in a recovery action need not establish that the injuries suffered by the worker were injuries for which compensation is payable under the Act. The statutory right of indemnity under s 151Z(1)(d) of the Act operates in its own discrete context. There is no provision in s 151Z which requires an employer to prove, as a pre-condition to recovery, that the worker's "injury" is an "injury for which compensation is payable under this Act". This alleged requirement appears nowhere in the section (paragraphs 26-29); 9. In any case, the evidence clearly establishes that the injury that Ms Jay sustained in this accident was an injury for which compensation is payable under the Act under ss 9, 10 and 11 of the Act. The coverage for workers compensation is very broad as a remedial statute. The requirement of being in the course of employment must take account of the fluidity of employment circumstances; 10. All that is required to satisfy a causal relationship between employment and injury is that, but for the employment, the worker would not have been at the scene of the accident. The activities engaged in by Ms Jay were activities in the course of or arose from her employment. The evidence established that Ms Jay was able to attend to things like doctors' appointments during her working day without the need to obtain prior approval because of her position (paragraphs 34-36). After the appointment to which the plaintiff was proceeding, she was proposing to go immediately to another appointment with Ms Kate Baxter, the Institute director of TAFE; 11. The notes of Ms Anderson, psychologist, which are in evidence as part of Exhibit 1D6 show a consistent theme of work-related consultation. Even if the consultation with Ms Anderson was for a private purpose, s 11 of the Act applies as the worker was on an "authorised absence" in travelling to that appointment when the accident occurred. Ms Jay did not need to seek approval for absences from work and she was entitled to take absences for private purposes such as attending doctors. Ms Jay had an executive role at TAFE at the time; 12. In any case, the referral from EAP supports the attendance of the worker at the designated facility during Ms Jay's working day (paragraph 44). Further, the problems in issue had a link to Ms Jay's employment. The evidence was that Ms Jay was referred to Caro Consultancy under EAP and the consultation notes would support such a finding; 13. The payments made to Ms Jay were reasonable. Further, there is no requirement under s 151Z that the plaintiff must prove that each payment of workers compensation was reasonably paid. All that is required is to determine the amount of the compensation which has been made and nothing further. Even if reasonableness is required, it could not apply in respect of the payment of weekly benefits (paragraph 56); 14. The State is entitled to interest if it is successful in its claim under s 151Z of the Act. The plaintiff claims interest at the rates provided for in s 100 of the Civil Procedure Act 2005 (NSW) and will provide a schedule of the relevant calculations; 15. The State adopts the claim made by Ms Jay in her schedule of damages for the purposes of the proceedings (paragraph 76). 1. The defendants made the following submissions, in summary: 1. Section 151Z(1)(d) of the WCA is a distinct cause of action against a tortfeasor to recover compensation paid when each compensation payment is made by an employer to an employee; 2. The indemnity under the section only applies where the actual injury is created in circumstances which give rise to both an employer liability for compensation and a third party liability for damages; 3. In the event of a finding of liability, the plaintiff has not established that Ms Jay's injury on 22 August 2013 was one for which compensation is payable under the WCA or, in the alternative, the indemnity is confined to payments made for the period from the date of the motor vehicle accident to her return to full duties in February 2014 and not thereafter. In particular, the left hip abnormality was not causally related to the motor vehicle accident and there was no liability for payments made after March 2015 which were due to psychiatric injuries unconnected with the accident. Further, the indemnity is limited to the amount of damages awarded; 4. In the event that compensation was paid to Ms Jay when the employer had no liability under the WCA to do so, there can be no indemnity (paragraph 7); 5. It is wrong to suggest that the State is not required to establish why the payments were made to Ms Jay. The evidence does not establish an ordinary recess claim nor an authorised absence from work which has been permitted by the employer within s 11 of the WCA; 6. Ms Jay's assertion that the motor vehicle accident occurred when she was going to an appointment with a psychologist to address issues in relation to staff as a consequence of a student's death should be rejected in the light of all of the evidence. This is consistent with the court's finding above. The contemporaneous documents contain no reference to a consultation with Ms Anderson in the context of the management of colleagues' distress in relation to the student's death; 7. In the event payments were payable to Ms Jay under the WCA, the submission is made that the sacral injury healed by the time the plaintiff returned to work and commenced fitness activities; 8. In relation to the cessation of work from February 2015 to date, the chronic pain allegedly held by Ms Jay did not affect the trajectory of her pre-existing major depressive disorder. Even if there had been no accident, the plaintiff would have been unable to work because of her pre-existing condition; 9. Interest payable as a result of a recovery action brought pursuant to the statutory indemnity is ordered pursuant to the statutory power of the court and is not part of the indemnity. Consideration 1. The statutory indemnity set out in s 151Z(1)(d) of the WCA only arises upon the payment of compensation to the employee. Until a payment occurs, the employer does not have a cause of action against the tortfeasor. The cause of action of the employer first accrues when the first payment of compensation is made and each payment is a separate transaction which attracts the statutory right of indemnity under the section: South Eastern Sydney Area Health Service v Gadiry [2002] NSWCA 161 at [41]-[48]. See also Ausgrid v Settree Pty Ltd [2015] NSWCA 407 at [29]. 2. By the list of payments which is Exhibit 2D5 and the evidence of Ms Jay, the State has established the making of payments to, for, and on behalf of Ms Jay under the WCA. The evidence clearly established that the plaintiff Ms Jay had made a workers compensation claim to her employer in relation to the accident. 3. It appears that the State need only establish that compensation has been paid by it to an injured worker under the WCA. In a statutory indemnity recovery action, the State does not need to establish that the injury suffered by the worker was an injury "for which compensation is payable" under the WCA. There is nothing in s 151Z of the WCA which expressly requires an employer to prove, as a pre-condition to recovery against the tortfeasor, that the worker's "injury" is "an injury for which compensation is payable" under the WCA. In addition: 1. No such requirement has been stated during consideration by appellate authorities of the matters which must be determined to establish entitlement under the indemnity in s 151Z(1)(d): Grant v Royal Rehabilitation Centre Sydney (1999) 47 NSWLR 263; [1999] NSWCA 250 at [7]-[8]; Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59 at [89]-[90]; OCS Australia Pty Ltd v Cho [2010] NSWCA 85 at [4]; 2. The State's construction of the section is supported by s 151Z(5) of the WCA, which allows the recovery of compensation whether or not the compensation was paid by the employer under an award or judgment or an agreement. This contemplates the payment of compensation where an entitlement under the WCA is not established. 1. In the event that I am wrong in this interpretation of s 151Z, I proceed to determine whether Ms Jay had a right to recover workers compensation under the WCA. 2. The WCA is a remedial statute designed to provide compensation to a worker for any personal injury arising out of or in the course of employment: s 4 of the WCA in the definition of "injury"; Bird v Commonwealth (1988) 165 CLR 1; [1988] HCA 23 at [7] per the majority and at [5] per Dean and Gaudron JJ. Employee's compensation legislation is remedial in character and should be construed beneficially; State of New South Wales v Chapman-Davis [2016] NSWCA 237 at [76]. 3. Section 4 of the WCA, which sets out the definition of "injury" in the WCA which is "personal injury arising out of or in the course of employment", was considered in detail by the Court of Appeal in Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324 at [72]-[79]. The majority (Allsop P, Beazley and McColl JJA) emphasised the use of the disjunctive in the definition and stated that two quite different tests are involved, one or other of which is sufficient to be satisfied for the purposes of s 9 of the WCA. The majority held that the second limb of the definition "in the course of employment" involves a temporal element and does not of itself contain a causative element whereas the first part "personal injury arising out of" does contain a causative element. At [79] the majority emphasised that there was clear High Court authority that there was a necessity for there to be a causal element between the employment and the injury when determining whether a worker sustained injury "arising out of" employment. All that must be shown is that but for the employment, the worker would not have been at the scene of the accident: at [78]. In The Star Pty Ltd v Mitchison [2017] NSWCA 149 at [87] the Court of Appeal clarified this and stated that the worker's work must have been the reason they were at the place where the injury occurred and the employment must have caused the injury suffered. 4. On any view of the evidence, Ms Jay was to see the psychologist Ms Anderson having left her place of employment and stopping for the consultation before proceeding to her next appointment with Ms Baxter. Whilst I have found that Ms Jay was not seeing the psychologist for issues concerning distress to other employees, it is clear that Ms Jay was seeing the psychologist for stresses relating to matters arising from her employment. Accordingly, the injury was caused, in my view, to Ms Jay arising out of the course of employment. But for her employment at the TAFE, Ms Jay would not have been seeing Ms Anderson on that day in relation to her problems. Those problems arose out of her work. 5. Further, I accept the evidence of Ms Jay that having regard to her executive status at the TAFE, it was not necessary for her to seek express approval for absences from work during the course of the working day. 6. In Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; [1992] HCA 21, the High Court noted at [12] that appellate courts have upheld many awards of compensation in favour of workers "in cases where injury has occurred away from the place of work, outside of or between working hours, and while the worker was engaged in an activity which is ordinarily performed for private necessity, convenience or enjoyment": see also The Star Pty Ltd v Mitchison [2017] NSWCA 149 at [63]-[88]. 7. In the present case: 1. Ms Jay had initially been referred to the psychologist under the EAP scheme; 2. That clearly was a scheme connected to her employment; 3. The matters she was seeing the psychologist about related to her own difficulties in the course of her employment; 4. The appointment occurred between her attendance at work and on the way to an appointment with the Institute Director; 5. Having regard to her seniority, the plaintiff did not need to seek express approval to attend medical appointments during absences: T311; T351; 6. The notes of Ms Anderson of Caro Consultancy which are part of Exhibit 1D6 show a consistent theme of work-related consultations. 1. Accordingly, it would seem to me that Ms Jay was "temporarily absent from [her] place [of employment] … during any ordinary recess or authorised absence" on the day of the accident. Thus the injury fell within s 11 of the WCA. As a senior executive, Ms Jay apparently had a standing authority to take absences for private purposes such as attending doctors during the course of the working day: T311.8. 2. It would also appear that the claim of Ms Jay was a "journey" claim under s 10(3)(c) of the WCA as Ms Jay was making a journey for the purpose of obtaining medical advice, attention or treatment in connection with any injury for which she was entitled to receive compensation under the WCA. The evidence suggests that Ms Jay was referred to Ms Anderson through her work on the EAP scheme and the stresses involved clearly arose out of her employment: see Exhibit 1D6 pages 285 and 278. 3. For these reasons, in my view the injury which Ms Jay suffered on 22 August 2013 was an injury which: 1. Fell within the definition of "injury" in s 4 of the WCA; 2. In the alternative, was a valid authorised absence claim within s 11 of the WCA; 3. In the further alternative, was a valid journey claim under s 10(3)(c) of the WCA. 1. Therefore, the injury was an injury "for which compensation is payable" under the WCA: s 151Z(1) of the WCA. It follows that the workers compensation payments which have been made by the State in relation to Ms Jay, are recoverable by it under the statutory indemnity in s 151Z(1)(d) of the WCA. 2. There is no evidence that the payments made in relation to Ms Jay by the State are or have been unreasonable in any way. In noting that, I am not concluding that reasonableness of the payments must be established by the State. Such a requirement is not mentioned in s 151Z(1)(d) of the WCA. If it is a requirement, I accept the submissions made by counsel for the State that it could only apply to the workers compensation paid for medical treatment: paragraphs 55-59 and s 60(1) of the WCA. Reasonable necessity does not appear to be a requirement in respect of the payment of weekly benefits. Section 151Z(1)(d) only refers to the requirement that "the worker has recovered compensation under this Act". Otherwise, this could give rise to a further case within the case if the payment of compensation is pursuant to some sort of compromise or settlement of a matter between a worker and an employer. There is no evidence in the present case in my opinion that any payments made by the State to or in respect of Ms Jay (including in relation to medical payments) were unreasonable or reasonably not necessary (subject to some specific findings below). 3. The list of payments in Exhibit 2D5 shows the amount of the compensation which has been paid by the State in relation to Ms Jay at the date of the document. 4. In relation to the question of interest as claimed by the State on its workers compensation payments, the defendants accept that interest as a result of a recovery action brought pursuant to the statutory indemnity may be ordered pursuant to the power of the court and is not part of the indemnity: see Perrett v Sydney Harbour Foreshore Authority [2009] NSWSC 1026 at [110]-[112]. The appeal from the decision of McCallum J was dismissed: [2010] NSWCA 160. 5. I will leave it to the parties to calculate the relevant interest applicable. 6. The other matters said by the defendants in their written submissions to limit the amount of indemnity payable have been dealt with by me in relation to my factual and medical findings. Duty of care and breach 1. In Hyjer v Lopes [2018] NSWDC 8 I stated the following general principles in relation to a duty of care in a motor accident case at paragraphs 162-167: "[162] Under s 3B(2)(a) of the Civil Liability Act 2002 (NSW) ("CLA"), Divisions 1-4 and 8 and Part 1A (Negligence) apply to "motor accidents". Accordingly, in determining whether a driver of a motor vehicle has breached his or her duty of care and whether any breach was causative of any injury suffered by a plaintiff in any motor vehicle accident, the court must apply the sections in those divisions including ss 5B, 5C and 5D (relating to causation). [163] It is useful to set out some of the general principles accepted by appellate courts in relation to the obligations which a driver of a motor vehicle owes to others. [164] In Manley v Alexander [2005] HCA 79; 80 ALJR 413 the majority of the High Court stated as follows: "[11] No doubt the appellant's attention was drawn to the figure of Mr Turner standing at the side of the road and behaving in a way that suggested that he might act in some way that would require the appellant to respond. But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path. [12] It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Rd at 4.00 am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events." [165] This statement has been referred to with approval in Townsend v O'Donnell [2016] NSWCA 288 at [45]: "[45] First, the appellant did not submit that the primary Judge failed to apply the correct legal principles. Her Honour referred to ss 5B, 5R and 5S of the CL Act and clearly bore those provisions in mind. Her Honour also referred to the observations of the majority of the High Court in Manley v Alexander, where their Honours pointed out that: recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path." [166] A more expansive consideration of the duty owed by drivers was made by Meagher JA (with whom Macfarlan and Emmett JJA agreed) in Marien v Gardiner [2013] NSWCA 396 where his Honour stated as follows at [33]-[37]: "[33] The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B. [34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47–48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1). [35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48 ; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path". [36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle. [37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision." [167] Marien has also been approved recently by the Court of Appeal: Logar v Ambulance Service of NSW Sydney Region [2017] NSWCA 274 at [142]." 1. In accordance with these principles, the defendant Mr Baker owed a duty of care to the plaintiff Ms Jay as a pedestrian and as a person being near the roadway to exercise reasonable care in the driving of his motor vehicle for the plaintiff's safety having regard to all the circumstances of the case. That exercise of reasonable care requires reasonable attention to all that is happening on or near the roadway: Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 at [11]. 2. The question then arises whether the defendant, Mr Baker, breached that duty of care which he owned. 3. Sections 5B and 5C of the Civil Liability Act 2002 (NSW) ("CLA") are as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." 1. I refer to my factual findings above. These include: 1. In the light of all of the evidence, the plaintiff Ms Jay had not taken two steps or even one step in crossing the road before she was struck by the defendant's vehicle; 2. The vehicle driven by the defendant was not in the centre of his lane as he asserts but was travelling far too close to the edge of the road immediately adjacent to or just on the fog line and was proceeding southwards in a dangerous location having regard to its proximity to the fog line; 3. Mr Baker had a clear view ahead for 100m and should have seen the plaintiff wearing her three-quarter length red coat by the side of the road well before he did and at 85-100 metres from her car; 4. If the defendant had travelled in the centre of the southbound lane, it was likely that the collision with the plaintiff would not have occurred; 5. If the defendant Mr Baker had been travelling at a safe separation from the plaintiff standing beside her vehicle, which should have been clear to him, it is likely the collision would not have occurred; 6. If the defendant had seen the plaintiff from a distance of 85m to 100m as he should have, the defendant should have slowed further down, moved his vehicle closer to the centreline of the road and would have clearly avoided a collision with the plaintiff; 7. The clear cause of the accident is the failure of Mr Baker to travel in his vehicle either in the centre of the lane, or, upon noticing the plaintiff as he should have much earlier than he did, travelling closer to the centre line thus allowing a clear space between the plaintiff turning on the side of the road and his vehicle; 8. The defendant was driving his vehicle too close to the plaintiff standing by her vehicle and in a manner which was dangerous and did not have proper regard to the plaintiff's vulnerable position in the circumstances. 1. The defendant was in my view clearly inattentive and careless in not seeing the plaintiff well before he did and slowing down and moving his vehicle more towards the centre of the road. 2. I then turn to apply s 5B of the CLA to the facts of this case: 1. The risk of the defendant's vehicle striking the plaintiff and causing injury if the defendant did not drive closer to the centre line or take evasive action was a clearly foreseeable risk, being a risk of which the defendant ought to have known; 2. The risk was clearly not insignificant. The plaintiff was immediately next to her vehicle and on or near the fog line and the circumstances therefore necessitated Mr Baker slowing down and moving more towards the centre of the lane; 3. In all the circumstances of the facts of this case, a reasonable person in Mr Baker's position would have taken the precautions of slowing down, moving more towards the centre of the lane and taking evasive action including possibly operating his horn; 4. There was a high probability that a collision with the plaintiff would occur if care was not taken by the defendant to move his vehicle more towards the centre of the road and take evasive action; 5. The harm which could have occurred in striking the plaintiff with his vehicle was very serious and included even death; 6. The burden of taking precautions on Mr Baker to avoid the risk of harm by slowing down and moving his vehicle more to the centre lane and/or taking evasive action was not significant; 7. The social utility of the defendant in driving his car as he did was not such that the risk of harm created in the manner he was driving his car should be excused. 1. I take into account the principles in s 5C of the CLA which in my view do not alter the analysis which I have undertaken. 2. Taking into account all of these matters, in my view the defendant failed to take reasonable care for the safety of the plaintiff as a pedestrian near her parked vehicle on the side of the road. 3. As stated by the High Court in numerous cases and by the Court of Appeal in Marien, the standard by which reasonable care is measured is an objective and impersonal one and is to be addressed prospectively by reference to what a reasonable driver in the defendant's circumstances would have done in response to any foreseeable risks of injury or "sources of danger" to road users: Marien at [34]. A reasonable driver in the circumstances of Mr Baker would clearly have taken steps to slow down, carefully observed the plaintiff and move his vehicle towards the centre of the road so as to avoid any contact with the plaintiff. 4. I therefore find that there was a breach of the duty of care owed by the defendant Mr Baker to the plaintiff Ms Jay for the reasons which I have given. Causation 1. Sections 5D and 5E of the CLA provide as follows: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation." 1. The plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. In relation to the relevant principles to be applied concerning s 5D of the CLA, I refer to Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19]; and Curtis v Harden Shire Council [2014] NSWCA 314 at [14]-[22] per Bathurst CJ, at [189]-[198] per Beazley P and at [319]-[324] per Basten JA. 2. Under s 5D(1)(a) of the CLA, the determination of factual causation involves the application by the court of a "but for" test of causation. That is, a determination by the court that in accordance with s 5D that the negligence of the defendant was a necessary condition of the occurrence of the harm. That involves a determination on the balance of probabilities that the harm to the plaintiff in fact occurred and would not have occurred absent the negligence of the defendant: Strong v Woolworths Ltd, above, at [18]. 3. In the present case, the issue is whether the breach of duty of care by the defendant Mr Baker, caused the collision with the plaintiff at the side of the road and caused the injuries of which the plaintiff complains. That issue involves the question whether but for the breach of duty of care by Mr Baker in the present case, the collision would have been avoided and the plaintiff would not have suffered the injuries of which she complains. Clearly but for the breach, the plaintiff would not have suffered the physical injuries of which she complains. In relation to the psychological injuries, I refer to my findings above. 4. Therefore, on this analysis, causation has been established in the present case. Having reviewed all the circumstances of the case, in my view there is no reason why it is not appropriate for the scope of the defendant's liability to extend to the harm caused: s 5D(1)(b) of the CLA. There is also in my view no apparent reason why responsibility for the harm should not be imposed on the defendant Mr Baker: s 5D(4) of the CLA. Contributory negligence 1. In relation to the issue of contributory negligence, I refer to the analysis by Mahony DCJ in Calcagno v Dent [2015] NSWDC 308 at [87]-[92]. Although the decision of Mahony DCJ was overturned by the Court of Appeal (Dent v Calcagno [2016] NSWCA 289) his Honour's consideration of the principles of contributory negligence in motor vehicle accidents was not questioned: see at [58] and [91]. 2. In Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, Beazley P (with whom Barrett and Gleeson JJA agreed) stated as follows at [161]-[162]. [161] The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of ss 5B and 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case. [162] As has been remarked in various cases in this court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person's own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a)–(d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 38(3) requires the court to reduce the damages recoverable "by such percentage as the court thinks just and equitable in the circumstances of the case". 1. The decision of the Court of Appeal in Grills was quoted with approval by Gleeson JA (with whom Leeming JA and Davies J agreed) in Boateng v Dharamdas [2016] NSWCA 183 at [129]. See also the analysis of Meagher JA in the Court of Appeal in Davis v Swift [2014] NSWCA 458 at [23]-[29]. 2. Following these principles, in applying s 5R of the CLA, a court considering contributory negligence is required in determining whether a person has been contributorily negligent to apply the provisions of ss 5B and 5C of the CLA which I have set out above. 3. In my factual findings above, I found: 1. After looking in her mirror and exiting the vehicle, the plaintiff did not again look at traffic travelling in the direction where her vehicle was facing; 2. The total duration of the plaintiff's actions from opening her door on her car to finishing manually locking the door and putting the keys into her handbag was found by the experts to be likely in excess of nine seconds and probably around 12 seconds. I accept that evidence; 3. The plaintiff failed to look for traffic after exiting her vehicle and should have looked for cars travelling in a southerly direction like the defendant's car which would have assisted her in taking evasive action if she had been cognisant of the traffic travelling south. In my view this was careless and inattentive of the plaintiff. The plaintiff should, in my view, have exercised care to check the approaching traffic and not to have undertaken the turning motion which she did without seeing that it was safe in all the circumstances. In my view, it is likely that if the plaintiff had checked on occasion after exiting the vehicle she would have seen the defendant's vehicle approaching close to or on the fog line and would have taken action either to walk around the front or the back of her car or place herself flat against her vehicle. In my view such acts would have likely avoided the collision. 1. I now turn to apply the principles in ss 5B and 5C of the CLA to determine whether the plaintiff is contributorily negligent: 1. The risk is foreseeable of the defendant potentially not seeing the plaintiff or only seeing her at a time when he did not have time to take evasive action. This was a risk which in my view the plaintiff ought to have known; 2. The risk in my view was not an insignificant one in all the circumstances; 3. In my view, a reasonable person in the position of the plaintiff would have taken the precaution of looking every few seconds at the approaching vehicles and placing herself flat against the car or walking around the front or back of her vehicle until the defendant's vehicle passed; 4. Having regard to the likelihood of the defendant's vehicle being close to the fog line, the probability that a collision with her may have occurred was more than insignificant; 5. A collision with the plaintiff was potentially very serious to her as she was a pedestrian even though the defendant's vehicle was not travelling at an excessive speed; 6. The burden of taking precautions to avoid the risk of harm was insignificant to the plaintiff; 7. The social utility of Ms Jay locking her vehicle and turning around to cross the road was not of a nature to mean that she should not have taken the steps which I have indicated. 1. As I have found that evasive steps would have avoided the collision and in light of my application of the principles in ss 5B and 5C of the CLA, I find that the plaintiff did not take reasonable steps for her own safety and was thus contributorily negligent. 2. Section 138 of the Motor Accidents Compensation Act 1999 (NSW) provides as follows: "138 Contributory negligence—generally (cf s 74 MAA) (1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section. … (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. (4) The court must state its reasons for determining the particular percentage." 1. I therefore have to determine the percentage which I think is just and equitable in the circumstances of the case by which the damages to be recovered by the plaintiff, Ms Jay, should be reduced in the light of the finding of contributory negligence. I take into account the principles stated by the High Court in Podrebersek v Australian Iron and Steel [1985] HCA 34; (1985) 59 ALR 529 at [8]-[10] in relation to the issues of relative culpability and causal potency. The defendant submits that the reduction should be 65%: see revised submissions dated 15 August 2018. Ms Jay submits any reduction should no higher than 10%. 2. I take into account the background facts set out above. In determining what is just and equitable in the circumstances of the case, I make as part of the assessment process, a comparison of each party's conduct. 3. Taking into account all the circumstances of the case, in my view the acts and omissions of the defendant, Mr Baker, were far more significant than the omissions of the plaintiff. He was driving ahead in the middle of the day on a straight road in circumstances where the plaintiff was at the side of the road locking her vehicle and wearing a red coat. Although he was driving at a relatively slow speed, he should have seen the plaintiff well before he did and taken action to slow down further and move to the centre of the road or take other evasive action. In relation to the plaintiff Ms Jay, I have rejected the assertion that she had taken any step or steps to cross the road. 4. Taking into account all the circumstances of the case and the relevant acts and omissions of each of the parties, in my view the plaintiff's damages should be reduced by 15% on account of her contributory negligence. The blameless accident provisions 1. In my view, the blameless accident provisions of MACA are not relevant in the present case as I have found the defendant to be liable to the plaintiff for breach of a duty of care owed by him to her. I accept the plaintiff Ms Jay's reply submissions on this issue: submissions dated 22 June 2018 paragraph 12. 2. If I am wrong in relation to that conclusion, then it would appear to me that the blameless accident provisions of MACA apply to a pedestrian like Ms Jay: see Part 1.2 Division 1 of MACA and Davis v Swift [2014] NSWCA 458 at [33]-[36]. The accident in the present case would fall within the definition in s 7A of MACA. The damages under the blameless accident provisions may be reduced by reason of the contributory negligence of the injured person: s 7F of MACA. Accordingly, the plaintiff's damages should be reduced under the blameless accident provisions in the event that I am found to be wrong in relation to my findings concerning the defendant on account of the plaintiff's contributory negligence. 3. A question arises as to the proper percentage of the reduction. This will depend on any determination made on appeal which is contrary to the factual findings I have made. If the plaintiff Ms Jay was struck on or within one step of the fog line this is significant. The plaintiffs submitted that there should be no greater reduction under the blameless accident provisions. The defendants seek a reduction of 80%: revised written submission dated 15 August 2018. It is submitted by the defendants that the blameless accident provisions require a higher reduction than where liability has been found, relying on the analysis of the Court of Appeal in Axiak v Ingram [2012] NSWCA 311 at [83]-[90] and Davis v Swift [2014] NSWCA 458 at [44]-[52]. It is submitted that Ms Jay's conduct amounted to a serious and significant departure from the behaviour expected from a reasonable person. The plaintiffs submit that the conduct of the plaintiff Ms Jay in the present case involved common conduct where a person gets out of their car having parked it. It is submitted that the facts of this case are completely different from cases such as where there was a clear and dangerous failure by the plaintiff to take reasonable steps for their own safety. 4. The analysis requires an assessment of "how far the plaintiff has departed from the standard of care he or she is required to observe in the interests of his or her own safety": Axiak at [85]. 5. The accident was the result of both the defendant's conduct in driving his car along the road close to the plaintiff's parked vehicle and the plaintiff's conduct in being at or near her parked vehicle near the fog line. The plaintiff's conduct in remaining facing her vehicle and then turning around towards her right without checking oncoming traffic needs to be considered: Davis v Swift, above at [49]. A reasonable person would have regularly checked oncoming traffic. However, the plaintiff's conduct is not as serious a departure as the plaintiff in Axiak (running across the road without looking) or, in my view, the plaintiff in Davis (walking towards the middle of the road and then "suddenly and quickly stepp[ing] or [running] backwards without looking or turning": at [47] in Davis). There is no evidence the plaintiff was affected by drugs or alcohol. A different defendant may have avoided the collision. The accident was not inevitable. Taking these matters into account, if the blameless accident provisions apply the plaintiff Ms Jay's damages should be reduced by 25%. Damages Introduction 1. The submissions of the parties differed significantly in relation to the question of damages. The plaintiff Ms Jay submitted that she had significant ongoing pain and psychiatric injuries which were caused by the accident which led to her inability to work and the need for significant past and future domestic assistance. The defendants submitted that the plaintiff's physical complaints had largely resolved and that her psychiatric complaints were not caused by the accident but that her pre-existing psychiatric condition was the cause of her psychiatric deterioration in 2014-15. 2. In assessing damages I take into account the recent Court of Appeal judgment in Avopiling Pty Ltd v Bosevski [2018] NSWCA 146. 3. I will set out in table summary form each party's submissions on the various heads of damages. The defendants' submissions vary depending on whether the court finds the psychiatric injury was caused by the accident. Each party's submissions Head of damage Ms Jay's submission The State's submission – adopts Ms Jay's submissions The defendants' submission – 2 alternatives depending on whether the plaintiff's psychiatric conditions are held to be caused by the accident Non-economic loss $300,000 $150,000/$200,000 Past out-of-pocket expenses Final figure to be advised at the time of judgment $56,511/$132,021 Future out-of-pocket expenses $64,150/$94,150 (i) radiology $18,953.65 (ii) blood tests $2,400.68 (iii) medication $43,632.01 (iv) surgery $20,000.00 (v) pain management specialist subsequent consultations $3,928.39 (vi) general practitioner - 3-4 times per annum to age 80 $16,587.60 (vii) physiotherapy every three-six months to age 80 $2,077.05 (viii) occupational therapy every two years to age 80 $829.26 (ix) podiatry every six weeks to age 80 $4,802.52 (x) psychiatric consultations for five years $2,937.73 (xi) psychological consultations for 5 years $3,222.48 Future equipment $2,825.00 $5,000/$5,000 Past domestic assistance $13,050/$13,050 – 6 hours per week for 26 weeks from the date of the accident at $29 per hour (i) 23 August 2013 - 1 December 2013 = 15 weeks at $27.82 per hour at 10 hours $4,173.00 (ii) 2 December 2013 – 2 October 2014 equals 43 weeks at $27.96 per hour for seven hours $8,415.96 (iii) 3 October 2014 – 9 November 2014 = 5 weeks at $28 .87 per hour for 11 hours $1,587.85 (iv) 10 November 2014 - 15 September 2016 = 97 weeks at $28.87 per hour for seven hours $19,602.73 (v) 17 September 2016 to date 86 weeks at $30 per hour for 7 hours $18,060.00 Future domestic care - 7 hours per week at $30.15 per hour for 23 years to age 80 $152,209.26 $21,950/$21,949.20 Past economic loss $40,100/$158,529 at $1,822 per week (i) 28 August 2013 – 4 November 2013 at $1,822 per week = 10.57 weeks $19,259.00 8 weeks following accident - $13,510 8.10.13 -30.1.14: $7,314 (ii) 5 November 2013 – 15 September 2016 at $1,822 per week = 150 weeks $273,300.00 1.12.13 – 30.1.14: $6,905 17.10.14 – 7.12.14: $5,466 8.12.14-31.1.15: $6,905 (iii) 16 September 2016 to date at $1,822 per week = 87 weeks $154,870.00 1.4.15 to date (165 weeks) – only if psychiatric condition caused by the accident: $118,430 Sub-total $447,429.00 Minus earnings during the relevant period $146,801.14 Total $300,627.86 Superannuation on past economic loss at 11% $33,069.06 $4,411/$17,439 Future economic loss$1,200 net per week for 13 years minus 25% for vicissitudes $452,070.00 $75,000 (buffer)/$174,720 Superannuation at 12% of the net value $54,248.40 Within buffer/$20,967 Fox v Wood $36,363.00 $15,000 (to be updated) Non-economic loss 1. It is not in issue that the plaintiff Ms Jay has a greater than 10% whole of person impairment as a result of the accident. Accordingly, she is entitled to be awarded an amount for non-economic loss to be assessed by the court. From 1 October 2017 the maximum amount of damages for non-economic loss which may be awarded under MACA is $527,000: Motor Accidents Compensation (Determination of Loss) Order 2009. See also s 131 of MACA. 2. In determining the appropriate amount I take into account: 1. My medical findings which are set out above; 2. The plaintiff's past pain and the plaintiff's continuing pain, although this appears to have lessened considerably in constancy and severity in recent times, resulting in her not taking any prescribed pain relief medication since 2017; 3. Her continuing chronic pain problem referred to in various medical reports (qualified by my comments in the previous sub-paragraph); 4. Her serious psychiatric condition in accordance with my medical findings; 5. The effect of her injuries on her life, noting that in 2017 her condition appears to have improved at times allowing her to undertake various activities including the commencement of one unit in a Bachelor of Arts in Social Work and other social and connected activities. 1. However, the plaintiff's conditions are reasonably serious. Her prognosis is not certain and it is clear from her presentation and the medical evidence that she has ongoing significant psychiatric problems. I also find that currently there is no realistic prospect of her returning to work. 2. Taking into account all of these factors and the submissions made, in my view I should allow $225,000 for non-economic loss. In my view the plaintiff's submission of $300,000 does not take into account that the plaintiff's pain condition varies, that she has not been taking prescribed pain medication recently and that there have been occasional signs of improvement in her psychiatric condition allowing her to undertake some limited learning and social activities. Nevertheless, the plaintiff's current conditions, particularly the psychiatric ones, are in my view constant and debilitating. The defendants' submissions somewhat understate in my view the appropriate allowance for this head. Past out-of-pocket expenses 1. The plaintiff's past out-of-pocket expenses are continuing and it is noted that a final figure will be provided by the plaintiff when these reasons are handed down. In my view, except as stated in the next paragraphs, all the expenses set out in Exhibit 2D5 should be allowed as a result of my medical findings. 2. In relation to the various expenses claimed, the plaintiff Ms Jay's evidence confirmed the accuracy of the various payments made by the plaintiff in the 2016 proceedings. See also Exhibits 2D3, 2D5 and 2D7. In relation to the plaintiff's evidence at T310, Exhibit 2D7 establishes the relevance of the fees of Dr Brock. However there is no evidence to establish the relevance of the Shire Diagnostic Imaging expense and this should be excluded. 3. An issue arises whether more recent consultations (since early 2017) with Dr Thong should be allowed where the plaintiff has not been having scripts filled for pain medication. In my view, having regard to his reports, the pain consultations with Dr Thong consider matters other than pure analgesic relief and therefore the consultations should generally be allowed. As consultations may have been less frequent if the plaintiff had revealed not taking prescribed medication, a deduction of $300 should be made in circumstances where Exhibit 2D5 does not allow a more accurate assessment. Future out-of-pocket expenses 1. The plaintiff seeks an allowance for various likely future out-of-pocket expenses which, it is submitted, the evidence establishes. The evidence relied upon is the analysis and appendix to the report of Dr Monica Ling dated 8 February 2016: Exhibit D pages 33-50. The defendants allow a much lower figure. The defendants have referred in their submissions to a figure which allows $5,000 for equipment and various allowances depending on the link between the accident and the psychiatric conditions. 2. The amounts sought have to be assessed in the light of the whole of the evidence including: 1. The improvements in some aspects of the plaintiff's condition in 2017 which have allowed her to engage in some social activities such as commencing a unit in the Bachelor of Arts in Social Work and engaging in charitable/spinning activities; 2. Her psychiatric deterioration in December 2017; 3. Her presentation whilst giving evidence in April 2018 in the light of the most recent reports of Dr Roberts and Dr Burke and Dr Duncan; 4. My medical findings which I have set out above; 5. The plaintiff's evidence, confirming what she told Ms Toner on 27 July 2017 that most days she has her pain under control and can do whatever she needs to be comfortable: T363.12–.18; 6. The fact that the plaintiff does not appear to have obtained scripts for pain relieving medicine prescribed by Dr Thong since February 2017: Exhibit 1D6 behind Tab 9, being the PBS patient summary for Ms Jay; 7. The medical evidence which suggests that whilst the plaintiff has a continuation of chronic pain that her physical injuries have substantially settled although some variable pain continues. 1. Taking into account all of these matters, I consider the claims by the plaintiff for future out of pocket expenses to be in some cases excessive. Most need to be reviewed because of my findings. The quantification of the damages in relation to the various claims presents difficulties in the light of my findings in relation to the improvement in the plaintiff's physical complaints and pain in more recent times. This leads me to the opinion that lump sum awards are the best way to deal with the various claims. In making such lump sum awards, I take into account the need to approach this head of damages on a Malec v JC Hutton basis: Avopiling at [165]-[166]. As stated by Payne JA at [166], some future medical expenses are "subject to fewer contingencies than other categories of future economic loss". Doing the best I can on the limited evidence, I allow the following amounts: 1. Radiology - Dr Ling expresses the opinion that as the plaintiff is likely to have lifelong ongoing symptomatic degenerative joint disease at her lower back and left hip, it is likely that she will require x-rays and possible MRI or CT scans of these joints up to every 3 to 5 years to monitor her progress and to determine if any surgical intervention would be of benefit. Currently there is no suggestion in the medical evidence that surgery is advisable or likely in relation to these areas. I accept that some allowance should be made for the possibility of the need for future radiology of the plaintiff's condition. In my view the amount of $6,000 adequately allows for this possible expense; 2. Blood tests - Dr Ling states in her report that regular blood tests of Ms Jay's haematology, renal and hepatic function should be performed twice yearly to monitor the side-effects of her analgesic medications. The evidence establishes that in recent times the plaintiff has not been filling prescriptions for pain medication, at least from her pain specialist Dr Thong. It is possible that the plaintiff will need to take further pain medication in the future. Having regard to these matters I would only allow $700 for future out-of-pocket expenses under this head; 3. Medication at $51.98 per week - The plaintiff will clearly require psychiatric medication and possible pain medication if and when it is required. However, the evidence suggests that the plaintiff is not currently taking prescribed pain relief medication. The prognosis for the plaintiff's psychiatric condition is uncertain. Assessing all the evidence and the submissions made I would allow $15,000 under this head; 4. Surgery - Dr Ling states that if Ms Jay develops deterioration of her left hip symptoms, a hip arthroscopy and possible future total hip replacement may be required. Spinal surgery may also be indicated in certain circumstances. There is no current evidence this is required or is even likely in the future. Taking into account all the evidence I would allow only $8,000 for the possibility under this head; 5. Pain management specialist, subsequent consultations - The evidence shows that the plaintiff continues to consult Dr Thong. However, she appears to be more comfortable in managing her pain and there is a real prospect that pain management specialist consultations will become less frequent and possibly cease. Taking into account all the evidence and the plaintiff's apparent cessation of pain relief medication, as prescribed, since 2017, I would allow $2,500 under this head; 6. General practitioner - The plaintiff Ms Jay claims attending her general practitioner three to four times per annum to age 80. Some allowance for attending the general practitioner should clearly be required. However, the evidence establishes that psychiatric and psychological consultations should only be allowed for five years. In my view, more limited general practitioner consultations would be appropriate. I allow $5,000 as a lump sum under this head; 7. Physiotherapy - The plaintiff Ms Jay claims an allowance for physiotherapy every three to six months to age 80 at $75 per attendance. In my view an allowance for physiotherapy would be appropriate to assist the plaintiff in maintaining her core body strength and her general flexibility. I allow $2,000 under this head. 8. Occupational therapy every two years to age 80 at $120 - In my view this is an excessive amount to allow every two years but some allowance should be made for four sessions. I would allow a figure of $450 under this head; 9. Podiatry every six weeks to age 80 at $60 per session - The evidence shows that the plaintiff has difficulty with cutting her toenails. I would allow $4,500 under this head. 10. Psychiatric consultations at $330 with additional consultations twice per annum at $330 for five years - This appears to be justified on the medical evidence and I would allow the amount claimed by the plaintiff of $2,937.73 under this head without a discount; 11. Psychological consultations - In my view the medical evidence clearly establishes the need for the plaintiff to maintain contact with her psychologist as part of her mental recovery and mental health. I would allow the amount claimed by the plaintiff of $3,222.48 without a discount. 1. The total for future out-of-pocket expenses allowed is therefore $50,310.21. Future equipment 1. The plaintiff Ms Jay makes a claim for future care items and equipment relying on, it appears, the report of Dr Ling dated 8 February 2016. The amount claimed is $2,825. The defendants in their damages schedules appear to allow the amount of $5,000 relying on the report of Ms Natarsha-Fick. This also seems to be somewhat outdated. I am not satisfied on the whole of the evidence that all of the future equipment sought by the plaintiff in the submissions of her counsel is justified and reasonable in all the circumstances. I also take into account the fact the plaintiff's pain condition has improved and she has not recently been taking prescribed pain medication. I only allow $2,000 under this head which takes into account an appropriate discount on the amount claimed. Past domestic assistance 1. I have set out above the amount sought by the plaintiff in relation to past domestic assistance. The amounts claimed by the plaintiff per hour appear reasonable having regard to s 141B of MACA. Further, in my view, the periods and hours claimed by Ms Jay for past domestic assistance are established by the evidence. I find that these amounts are properly claimed. The defendants' amounts are not consistent with my findings. 2. The initial period from 23 August 2013 to 1 December 2013 of 15 weeks is established by the evidence of Ms Jay: T33.9. The amount of $4,173 is therefore allowed. The plaintiff claims $1,202.28 for the period of 43 weeks between 2 December 2013 and 2 October 2014 at $27.96 per hour for seven hours. This appears to be an error in calculation and the amount allowed should be $8,415.96 as the plaintiff's figure has not been multiplied by seven hours. In relation to the period from 3 October 2014 to 9 November 2014 being five weeks at $28.87 per hour for 11 hours the plaintiff claims $144.35. Again, this seems to have been calculated wrongly and the correct figure should be $1,587.85. As there is some doubt in the plaintiff's evidence at T33.35 as to the period, I would only allow $1,300 for that period. In relation to the period 10 November 2014 to 15 September 2016 being a period of 97 weeks at $28.87 per hour for seven hours the amount of $19,602.73 appears to be established by the evidence: see T34.1-.8. In relation to the period from 17 September 2016 to date, the plaintiff claims 86 weeks at $30 per hour for seven hours amounting to $18,060. This again would appear to be justified on the evidence: see T34-T35. This figure will have to be updated to the date of these reasons. Mr Jay generally gave supportive evidence in relation to the plaintiff's duties before and after the accident: T208-209. I accept his evidence. I found him to be an impressive witness. 3. Ms Natasha Taylor-Fick in her report and oral evidence lowered the number of hours per week which the plaintiff claimed for work done in the garden. The basis for this was that she did not believe that the plaintiff spent the time she claimed in the garden per weekend. In my view the evidence of Mr Jay is a more accurate and reliable guide to what the plaintiff did prior to the accident and I accept his evidence: see T208-210. Future domestic assistance 1. The plaintiff claims an allowance of seven hours per week at $30.15 per hour for 23 years to age 80, amounting to $152,209.26. It would seem that the correct hourly rate is $30.55 rather than $30.15. The multiplier used by the plaintiff on a 5% table is 721.2. The plaintiff submits that this amount is appropriate even taking into account the principles in Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 at [130]-[153]. 2. In my view, the evidence establishes that the plaintiff will continue to be unable to do heavier gardening and household work, including mowing, in the future. I prefer the plaintiff's medical evidence in the light of the plaintiff's evidence and the evidence of Mr Jay. However, in my view the plaintiff has had some improvement in her condition. I also think it probable that she would have obtained future care assistance in any case even without the accident prior to age 80. I take into account the analysis of Payne JA (with whom McColl and White JJA agreed) in Avopiling, above, at [130]-[136] and [153]. Looking at all the evidence including the evidence of the plaintiff and Mr Jay, I would allow six hours per week at $30.55 per hour for 18 years to age 75. The relevant multiplier is 625. Accordingly, I allow the amount of $114,562.50 (6 x $30.55 × 625). This takes into account the evidence of Mr Jay, the likelihood that future care would have been needed by 75, the possibility of further improvement in the plaintiff's physical restrictions and pain as submitted by the defendant and the need for a discount in accordance with the principles of Malec v Hutton (1990) 169 CLR 638; [1990] HCA 20 and Avopiling. Past economic loss 1. The findings which I have made in relation to the medical evidence lead me to the conclusion that I prefer the medical evidence of the plaintiff that all periods during which the plaintiff has not worked since the motor accident have been due to physical and/or psychiatric injuries arising from the accident. In this regard I prefer the evidence of Dr Bodel (Exhibit D page 7), Dr Ling (Exhibit D pages 44 and 54) and Dr Burke (Exhibit E page 24) to that of Dr Sekel. I also note that Dr Roberts appears to indicate that Ms Jay does not have any capacity to pursue employment in a sustained manner (Exhibit 1D6 Volume 1 page 21) although he puts that down to a pre-existing depressive illness. Dr Shatwell expresses the opinion that Ms Jay has been fully fit for her preinjury duties from February 2014 (Exhibit 1D6 page 34) although he notes that her prognosis for return to work is poor due to her psychological problems (Exhibit 1D6 page 35). Overall, I prefer the evidence of the plaintiff's witnesses which is, in my view, far more consistent with the plaintiff's clear limitations. I also note the defendants' expert, Dr Harvey-Sutton, states that the plaintiff would be unfit to work for some two to three years from the date of her 18 April 2017 report (Exhibit 1D4 pages 317 and 320). 2. For these reasons I allow the plaintiff's past economic loss for the periods claimed by counsel for the plaintiff in his written submissions. The plaintiff claimed $1,930 per week net for part of the first period and $1,822 thereafter. The higher figure for the initial period was not pressed in final oral submissions. The defendants allow $1,822 for net weekly earnings. In my view the figure of $1,822 should be allowed for the entire period referred to in the plaintiff's schedule: see Exhibit A page 28 being the plaintiff's tax return for the year ending 30 June 2013. The parties should consult to determine an agreed figure for past economic loss having regard to my findings. Superannuation on past economic loss 1. I agree that the rate should be 11%. Its calculation will await a determination or agreement as to the past economic loss figure having regard to my findings in the previous paragraph. Future economic loss 1. The plaintiff claims a loss of future earning capacity assessed at $1,200 net per week for 13 years minus 25% for vicissitudes being $452,070.00. 2. The award of damages for future loss of earning capacity is governed by s 126 of MACA. Section 126 of MACA provides as follows: "126 Future economic loss—claimant's prospects and adjustments (cf s 70A MAA) (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 1. In New South Wales v Moss (2000) 54 NSWLR 536 Heydon JA stated as follows at [70]–[71] and [84]: "[70] First, damages to compensate for that part of reduced economic capacity which will be reflected in the future are sometimes analysed as being one type of "general damages". Like other types of "general damages", as Fullagar J said in Paff v Speed at 559, they are "of their very nature, incapable of mathematical calculation and (although the expression is apt to be misleading) commonly very much 'at large'. They are also at large in the sense that a jury has, in serious cases, a wide discretion in assessing them". In Russell v J Hargreaves & Sons Pty Ltd [1957] QSR 440 at 445, Taylor J said: "Since … it is impossible to prescribe fixed or precise standards for the translation into terms of money of physical injuries and pain and suffering and varying degrees of physical incapacity, it is inevitable that individual opinions as to what amount may be said to constitute full compensation in any particular case will vary. Indeed within the bounds of reasonableness they may vary greatly." The field is an "uncertain" one: Breska v Lysaghts Works Pty Ltd (1956) 74 WN (NSW) 168 at 169, per Street CJ. [71] Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed at 566, per Windeyer J. Evaluation of the worth of a loss of capacity to earn — of a lost chance to earn — is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis — that the plaintiff will have undiminished capacity — which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. H Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, at 91 [1.9.18], said: "it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss … The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant's wrongful act". In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639, Brennan J and Dawson J said: "the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history". They approved Lord Diplock's statement in Mallett v McMonagle [1970] AC 166 at 176: "in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages …". The majority (Deane J, Gaudron J and McHugh J) in Malec v J C Hutton Pty Ltd said (at 643) that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry — the process of estimation of possibilities — is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on "slender material[s]": Callaghan v Wm C Lynch Pty Ltd (1962) 79 WN (NSW) 830; [1962] NSWR 871 at 877, per Evatt CJ, Herron J and Sugerman J. That language, unlike the reference to permitting "guess work or speculation" elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd (1963) 63 SR (NSW) 598 at 607; 80 WN (NSW) 999 at 1006, per Manning J. However, Menzies J said that sometimes the assessment of damages involves "guess work rather than estimation": Jones v Schiffmann (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259, per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792, per Vaughan Williams LJ. Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as "matters of prophecy or judicial guesses" in Paul v Rendell (1981) 55 ALJR 371 at 376; 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570: "when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff's handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge's assessment will be few and far between, for there is no established range or standard against which to measure the judge's award."" 1. In assessing the appropriate figure for loss of future earning capacity, I must assess Ms Jay's most likely future circumstances but for the injury. 2. In my opinion, the following matters are relevant: 1. Ms Jay was at the senior executive level. She was continuing in her job. Her four adult sons had left the family home for some time at the time of the accident; 2. Ms Jay was clearly a career focused person who indicated that she "loved" her job and apparently assessed part of her self-esteem on her success and capacity to undertake her work. Money does not appear to have been her sole motivating factor; 3. However, her work was stressful and required extensive vehicle travel throughout New South Wales; 4. Her husband also was in employment with a high paying job: Exhibit F page 70; 5. The plaintiff had clearly had problems coping with work prior to the accident and found her work to be stressful. As stated above, she had taken some time off work, was on Pristiq, and was consulting a psychologist. She had shown on and off some anxiety and depressive symptoms. Her work required extensive travel in country New South Wales. 1. Counsel for the plaintiff submits that even with these factors the plaintiff Ms Jay would have remained working until she reached 67 years of age. The defendant submits that if the court considers a closed period of loss of future earning capacity is appropriate, then it should find that Ms Jay would have left her work no later than mid 2017 because of her prior serious health conditions and the matters set out in the previous paragraph. 2. Taking into account all of these matters, whilst I think it more likely that but for the accident the plaintiff would have remained in her job for at least several years, I think it likely that she would have retired at about 60 years of age. This would have allowed her to continue to develop the garden on her property which she clearly liked doing. It would also have allowed her to focus on her fitness, social and spinning activities. It would have avoided the ongoing travel requirements in country New South Wales and allowed her to spend more time at home. This conclusion takes into account her prior health history, the fact that the job the plaintiff had was demanding, required extensive travel and she found it at times highly stressful: see also Mason v Demasi [2009] NSWCA 227 at [5]. It takes into account the plaintiff's husband's highly paid job which allowed ongoing income into the family. It also takes into account that the plaintiff liked her job despite its drawbacks. Accordingly, I find that the most likely scenario but for the accident is that Ms Jay would have continued working, taking some time off on paid leave when required, until she turned about 60. I allow $1,200 net per week for three years (multiplier 145.6 x $1,200) which equals $174,270. The issue arises whether I should take off the usual 15% for vicissitudes or some lesser or greater figure in the light of her pre-accident health issues. This is a "broad evaluative decision": at [101] in Avopiling, above per Payne JA. In my view I should not take off the usual 15% for vicissitudes (or some greater or lesser figure) as the usual risks of a different working future history are built into my finding. I note the defendant does not reduce the amount for vicissitudes for this head of damages in his schedule. 3. If I am wrong in this conclusion and it is held that it is not available, I consider that it is highly unlikely that the plaintiff would have worked past 65. In that scenario the amount allowed is as follows: multiplier 345.6 equals $414,720. Having regard to the matters which I have outlined above, in that scenario I think that a discount for 25% for vicissitudes as the plaintiff allows on her schedule of damages is appropriate. This would in my view be consistent with general principle and the analysis in [101] in Avopiling. The amount in the alternative scenario, if I am wrong in my primary analysis, is $311,040. Superannuation on future economic loss 1. Allowing 12% of the net value of the amount I have found for future economic loss, this arrives at a calculation of $20,912.40 which should be allowed for loss of future superannuation. Fox v Wood 1. The amount for this head of damages will have to be calculated by the parties following the receipt of an updated schedule of workers compensation payments after these reasons are handed down. Reduction for contributory negligence 1. The final figure for damages should be reduced by 15% for the contributory negligence found. Conclusions 1. The parties should check my calculations. The parties should bring in agreed Short Minutes of Order to reflect these reasons within 14 days. If there is continued dispute between the parties as to any damages aspect, the matter should be listed for further directions. Disposition 1. Accordingly, the orders I make are: 1. Judgment for Ms Jay against the defendant in the 2015 proceedings. 2. The defendant in the 2015 proceedings is to pay the plaintiff's costs of those proceedings as agreed or assessed. 3. Judgment for the plaintiff in the 2016 proceedings against the defendants. 4. The defendants in the 2016 proceedings are to pay the plaintiff's costs in those proceedings as agreed or assessed. 5. Liberty to the parties to apply to vary the costs orders in paragraphs 2 and 4 above within 14 days. 6. The parties in both proceedings are to bring in agreed Short Minutes of Order within 14 days reflecting the reasons for decision. In the event that agreement cannot be reached, the parties should approach the Associate to Dicker DCJ to have the matter listed for further directions. 7. The exhibits are to be retained until further order. ********** 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: 26 September 2018