Broadby v Johnson & Anor [2008] VSC 541 (3 December 2008)


IN THE SUPREME COURT OF VICTORIA		Not Restricted

MARGARET ALEXANDRA BROADBY	Plaintiff

v

STEVEN JOHNSON MARK PHILLIPS	Defendants

JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 - 27 November 2008
DATE OF JUDGMENT:	3 December 2008
CASE MAY BE CITED AS:	Broadby v Johnson & Anor
MEDIUM NEUTRAL CITATION:	[2008] VSC 541

TRANSPORT accident – Accident compensation – Assessment of damages – Benefits from other sources – Redding v Lee – Proof of quantum of benefits – Non-economic loss – Pain and suffering damages – Accident Compensation Act 1985 ss 98C, 98E, 134AB and 134A – Transport Accident Act 1986 s 93.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Richards SC with Mr M. Ruddle	Clark Toop & Taylor

For the Defendants	Mr D. Curtain QC with Ms A. Magee	Solicitor to the Transport Accident Commission

1 On 8 December 1999, Mrs Margaret Broadby, the plaintiff, was travelling home in the back of an ambulance on the Westgate Freeway when a truck driven by one of the defendants collided with the ambulance (“the collision”). Mrs Broadby was being taken home by the ambulance following her discharge from The Avenue Hospital where she had undergone spinal surgery on 1 December 1999. This surgery had been performed as a result of an injury the plaintiff suffered to her spine in the course of her employment in March 1999 (“the work injury”). The plaintiff alleges that she suffered significant injuries affecting her spine as a result of the collision.[1] The plaintiff’s claim is governed by the provisions of s 93 of the Transport Accident Act 1986 (“the TA Act”). In this proceeding, she claims pain and suffering damages only.[2] The defendants have admitted that their negligence was a cause of the collision.

2 Subsequent to the collision, the plaintiff received the sum of $167,850 pursuant to s 98E of the Accident Compensation Act 1985 (“the AC Act”). This amount was paid in respect of the work injury. The principal issues to be decided in this case are:

(a) whether the plaintiff suffered any, and if so what, injuries as a result of the collision; and

(b) if the plaintiff did suffer an injury as a result of the collision, then in what amount her damages should be assessed.

A subsidiary question is what, if any, account should be taken of the s 98E payment in any assessment of the plaintiff’s damages. For the reasons given below, there will be judgment for the plaintiff in the sum of $256,400.

3 The plaintiff was born on 28 August 1966 and is now 42 years of age. She was 33 at the time of the collision. She was educated to a Year 10 level.[3] She has one son, Paul, born on 14 January 1984. After Paul’s birth, she stayed home to look after him. Subsequently, she found employment as a console operator, managing service stations. She started part-time and, as Paul grew, she commenced full-time employment. She maintained this employment for approximately ten years. In 1996, the plaintiff became a bookkeeper for a transport company, where she remained for approximately 17 months. She then commenced work for Beacon Lighting, managing one of the company’s stores in Geelong. In approximately July 1988, she transferred her employment from Geelong Beacon Lighting to a Beacon Lighting franchise store in Sunshine. In that store, she was employed as the in-house lighting consultant. Her position was akin to that of assistant manager. Her evidence was that she loved that employment[4] and whilst normal working hours were from 9.00 a.m. to 5.30 p.m., she would arrive at 7.00 a.m. and still be there at 7.00 p.m. “pretty much seven days a week”.[5]

4 Whilst a significant attack was made on the plaintiff’s credit in cross-examination (about which I will say more below), I accept the plaintiff’s evidence that she very much enjoyed her work. Specifically, the plaintiff was asked and answered the following question:

I accept this evidence. Similarly, I accept the plaintiff’s evidence that in the years leading up to 1999, she had a busy social life, playing netball, running, going to the pictures, going to parties and social events and being active.[7]

5 The work injury occurred in March 1999. It occurred as a result of prolonged lifting work that the plaintiff was required to engage in. The circumstances of this were described by the plaintiff as follows:

The day after the stocktake, the plaintiff experienced low back pain as well as pain in the leg. She attended the clinic of her general practitioner, Dr Eqbal, on 27 March 1999. She was complaining of lower back pain and was seen by Dr Adrian Jury and treated with painkillers and rest and referred for physiotherapy.

6 Ultimately, the plaintiff was referred for a CT scan and then an MRI. An MRI report of 29 July 1999[8] concluded:

During 1999, the plaintiff made three attempts to return to work, the last being in September 1999. These attempts were unsuccessful.[9] Ultimately, the plaintiff accepted a recommendation that she undergo surgery in the form of a lumbar sacral discectomy. Surgery was performed by Mr Michael Johnson at The Avenue Hospital on 1 December. At surgery, a small fragment of loose disc material was found under the S1 root and removed. The S1 root was decompressed with a partial facetectomy. As Mr Johnson describes it, “[t]here were no intra or post operative problems and she was discharged from hospital by ambulance on 8 December 1999. At the time of discharge, she felt that her leg pain was considerably better than pre-operatively.”[10]

7 The ambulance was travelling on the Westgate Freeway at approximately 40 kilometres per hour.[11] It would appear that the truck (a large semi-trailer) side-swiped the ambulance, causing damage to the passenger side towards the rear of the ambulance. The plaintiff was lying down on the passenger side of the ambulance with her head to the front of the ambulance. The plaintiff’s right side was along the passenger side wall of the ambulance.[12] It was right against the wall.[13] The plaintiff describes the collision in the following terms:

8 There was cross-examination of the plaintiff as to different versions she was said to have given of the circumstances of the collision and contradictory answers the plaintiff gave in her evidence to this Court.[15] However, I am satisfied that the above description of the collision is the plaintiff’s best recollection of its circumstances and her true account of it. The ambulance officers, Mr Alan Downie and Mr Paul Bartlett, have a different recollection. In particular, Mr Downie’s account is different from the plaintiff’s. He gave evidence that he was seated in the back of the ambulance with the plaintiff, behind the driver (Mr Bartlett). He said he was sitting in a seat facing towards the passenger side of the ambulance behind the plaintiff’s head.[16] The plaintiff disputes this and says that Mr Downie was in the front of the ambulance. The plaintiff’s position on this point ranged from asserting that Mr Downie was lying[17] to one where she conceded that she actually did not see him sitting up the front but could hear his voice coming from the front.[18] Both ambulance officers gave their evidence in a reasonable and straightforward fashion. Both made appropriate concessions and appeared to be doing their best to give an honest and accurate account of events. I accept that they believe that their accounts are accurate. I find that Mr Downie was sitting where he says he was sitting in the back of the ambulance with the plaintiff. The defendants would then have it that, having rejected the plaintiff on this point, her evidence as to the circumstances of the collision should be rejected wherever it conflicts with the evidence of the ambulance officers.

9 However, the position is not that simple. Relevant aspects of the plaintiff’s evidence can (and should) be accepted notwithstanding the evidence of the ambulance officers (and in particular Mr Downie). The plaintiff may well have been strapped in with two straps as asserted by the ambulance officers – but denied by the plaintiff, who says that only her legs were strapped in. The fact that the plaintiff may have been strapped in does not foreclose the possibility of her moving in the manner she described in her evidence (albeit not quite as dramatically as the plaintiff would have it). Further, it is to be remembered that Mr Downie conceded in evidence-in-chief that he might have been looking out the window and would have had to turn “side on a little bit” to face the plaintiff.[19] Additionally, whilst the defendants sought to make much of matters that the plaintiff got wrong, the ambulance officers’ evidence was not free from error. The plaintiff says that she walked to the ambulance. Both officers denied this proposition in evidence. However, Mr Bartlett’s statement dated 9 June 2000[20] records that the plaintiff “walked from within the hospital to a stretcher which we lowered”. Mr Downie’s statement of 9 June 2000[21] records that what Mr Bartlett said in his statement “is true and correct in every detail”. Whilst the defendants sought to argue that Mr Bartlett’s statement could be read in two ways, I find that the plaintiff (as she said in evidence-in-chief) walked from within the hospital before boarding the ambulance.

10 The force of the impact was at least sufficient to cause the ambulance to “rock”[22] or “roll”.[23] By “roll”, I do not mean that it overturned. It rocked from side to side without deviating from its path before Mr Bartlett swerved to the right.[24] I accept that this movement would have been sufficient to cause the plaintiff to go through a turning or twisting movement as she has described, although her description of the precise range and extent of her movement may be slightly exaggerated. Having said that, the rail on the stretcher was very low[25] and it is likely that the plaintiff could have touched the floor with her left hand, even if she was strapped in.[26]

11 Much was made by the defendants of what they said was the minimal nature of the damage to the ambulance.[27] However, what (if any) forces were applied to the plaintiff’s body and/or what movements the collision caused her body to go through are the more relevant issues. Even accepting the ambulance officers’ evidence that the plaintiff was strapped in across her upper body, there is no evidence as to how tightly the plaintiff was secured. Further, merely because Mr Downie did not observe the plaintiff to go through the range of movements she describes does not foreclose the possibility of significant (in the terms of this case) movement.[28] Additionally, just because the plaintiff might have asked why the ambulance was stopping after the collision does not mean that the plaintiff was unaware of the collision. Indeed, Mr Downie fairly conceded that he thought everyone in the ambulance would have felt the collision.[29] Whilst there was a significant attack made on the plaintiff’s credit during the trial, broadly speaking I accept the plaintiff’s account of her movements caused by the collision – although insofar as she said she went over the rail, I do not accept that she actually went over the rail. I will deal with the issue of credit below. However, neither the credit issues raised by the defendants nor the evidence of the ambulance officers cause me to reject the plaintiff’s account in its entirety. For the above reasons, I find that the collision did cause the plaintiff to go through a turning or twisting movement involving her upper body to a point where she made contact with the bar and put her hand out to save herself. The question then becomes whether this movement and/or the forces that were applied to the plaintiff to cause this movement were a cause of any injury to the plaintiff. Before leaving this topic, I should note that whilst it was the evidence of Mr Downie that the plaintiff was subsequently taken to the Werribee Mercy Hospital to be checked out because that was the appropriate thing to do once an accident had occurred,[30] exhibit O (part of the ambulance officers’ records) disclosed that the reason for taking the plaintiff to the Werribee Mercy Hospital was “back pain”. Further, Mr Bartlett’s recollection of events was sufficiently unclear so that he thought (wrongly) that he was transferring the plaintiff from Bethesda Hospital, rather than from The Avenue Hospital.[31] These are further reasons why care needs to be taken before accepting the evidence of the ambulance officers on a point that does material harm to the plaintiff’s case.

12 Following the collision, the plaintiff’s evidence is that she was in a lot of pain. She had “shooting pains like somebody was stabbing [her] with a knife and it was like somebody going ... up and down [her] spine and across the bottom”.[32] The plaintiff was taken to the Werribee Mercy Hospital, where she was seen by Dr Syme. At the hospital, the history of the collision and the plaintiff’s complaint of severe lower back pain and pain down her lower left leg was taken. There were also complaints of paresthesia on the lateral aspect of the plaintiff’s left lower leg and foot. Various medications were administered between 10.55 and 14.55 (Panadeine Forte, morphine twice, Maxolon, Diazepam and Valium). The Panadeine Forte was given orally, all of the others were given by intramuscular injection. In his referral letter to Mr Johnson, Dr Syme noted that the plaintiff “appeared somewhat histrionic on arrival” at the hospital. Dr Syme explained his meaning of “somewhat histrionic” in the following terms:[33]

13 Mr Johnson arranged for the plaintiff to be transferred from the Werribee Mercy Hospital to the Epworth Hospital. On his examination of the plaintiff there was nothing specific to find, although the plaintiff did complain of sensory abnormality in the peroneal region. Rectal examination was normal with no decrease in anal tone. Because of the plaintiff’s recurrent symptoms and peroneal sensory abnormality, Mr Johnson felt it appropriate that an MRI scan be performed.[34] The MRI performed on that day was reported as follows:

The MRI was described by Mr Johnson as “totally unremarkable”. Whilst it was the plaintiff’s evidence that the MRI was performed because she had lost control of her bladder, there is no record in any note of any such loss of control. Had Dr Syme or Mr Johnson been aware of the plaintiff losing control of her bladder, it would be expected that they would have made a note of this event. The defendants contend that because there is no note, the plaintiff should not be believed on this issue and they say that this is one of the matters going to the plaintiff’s credit which should lead me to not accepting her evidence. However, the mere lack of a note of this matter does not lead to the conclusion that the plaintiff should not be believed. Whilst it is not necessary to resolve the question of whether or not the plaintiff lost control of her bladder,[35] I am not prepared to conclude that she did not, nor that her evidence on this issue was untruthful.

14 The plaintiff remained in Epworth Hospital until her discharge on 21 December 1999. At the time of her discharge, she was still in a lot of pain. She had been using a wheelchair in the hospital and, for the first couple of months after discharge, she hired a wheelchair. In mid-February 2000, she commenced using crutches. However, the crutches ultimately led to difficulties with the plaintiff’s hands, which were subsequently diagnosed as bilateral carpal tunnel syndromes. Surgical releases were performed on 9 December 2004 on the left side and on 20 January 2005 on the right side.[36] During this period, the plaintiff also had the use of a walking stick. Subsequently, she graduated to a walking frame, which she has used to this day.

15 The plaintiff describes very severe levels of pain over the years following the collision.[37] Pain levels of “10 out of 10 constant” and “far worse than childbirth” have been described by the plaintiff.[38] She has taken substantial amounts of medication. Her medications have included Endone, morphine injections, Avanza, Brufen, Valium, Mobic, Oxynorm, Panadeine Forte, Panadeine regular, Somac, Zoloft, pethidine and Stemetil injections. The plaintiff was admitted to Epworth Hospital for “pain rehabilitation” from 18 July 2005 to 4 August 2005.[39] The plaintiff also describes a four week admission in approximately October 2005 for “detox and pain management”.[40] However, she states that in about January 2006, she was “back on the morphine again”. As well as the plaintiff’s constant pain, she also describes and suffers from depression. She attempted to commit suicide on 19 November 2006.[41] Her husband left her on 25 December 2006, saying “I’ve had enough, I can’t stand it anymore, I want my life back”. They divorced on 13 May 2008. Since the collision, the plaintiff has been largely reliant upon others (her mother, her son, a neighbour, a friend and home help) for assistance in activities of daily living (cleaning, cooking, some washing and some assistance with dressing). She spends her days now going to hydrotherapy, taking the dogs for short walks (sometimes, but not every day), lying down and generally being inactive. However, in 2003 the plaintiff went to Bali; in 2006 the plaintiff made some trips to Queensland and in 2002 and 2003 the plaintiff coached an underage netball team. These are all matters relied upon by the defendants both in respect of the plaintiff’s credit and as showing that she is not as disabled as she claims to be. I will deal with these matters in greater detail below. At present, the plaintiff describes her quality of life as “non-existent”.[42] When asked[43] how much enjoyment of life the plaintiff obtained in the life she is now leading, she responded “None”.[44]

16 On 3 May 2007, the plaintiff had inserted into her a subcutaneous automated infusion device and intrathecal catheter for the purpose of better managing her pain. This device was inserted after trials that disclosed that the plaintiff might benefit from the insertion of such a device. Since the device has been inserted, the plaintiff’s pain levels have improved.[45] However, she still presents (and presented to this Court) as markedly disabled and in constant pain, requiring her to stand, move around and alter her position frequently. She clearly presents as a person who has suffered from severe pain and disability over the years since the collision and who continues to have very significant levels of pain and disability. Whilst I will deal with the medical evidence in more detail below, if one accepts the plaintiff, then she is (and has been over the last almost nine years) grossly disabled.

17 During the trial, a significant attack was made on the plaintiff’s credit. Indeed, Senior Counsel for the defendants put it that the plaintiff’s credit “is a core issue in this case”.[46] It was put that the plaintiff’s evidence about losing control of her bladder in circumstances where there was no hospital note or ambulance record of any such event (and indeed such records as exist are to the contrary[47]) is a matter that goes to the plaintiff’s credit. I reject this submission. The fact that there is no note of a loss of bladder control in circumstances where one might have expected a note is not a matter that, either alone or in combination with other matters, goes to the plaintiff’s credit. It is not that unusual an event to observe that matters which might expect to be mentioned in hospital or ambulance notes are not always recorded. I do not find that the plaintiff has lied about this issue.

18 The failure by the plaintiff to tell medical practitioners that she coached her niece’s underage netball team during 2002 and 2003 is put as a matter going to the plaintiff’s credit. Initially, the defendants made much of a line in the psychiatrist, Dr Kaplan’s report of 22 March 2004[48] that recorded the history that the plaintiff “had played netball on a social basis and had coached her niece until she had injured her back”. However, in cross-examination, the plaintiff denied giving that history to Dr Kaplan.[49] Further, when Dr Kaplan gave evidence, it became apparent that his note which formed the basis for the contentious line in his report was “social netball till her back injury, coached niece netball”.[50] A fair reading of this note is that the plaintiff told Dr Kaplan that she coached her niece in netball, rather than she coached her niece in netball until her back injury – which was not in any event the true position. I do not regard the failure by medical practitioners to record in the history sections of their reports the fact that the plaintiff coached her niece’s netball team for a period as a matter destroying the plaintiff’s credit in this case. On one view, it was a matter that she at least mentioned to Dr Kaplan. Of greater concern is the failure to mention the matter in the plaintiff’s affidavit sworn on 6 April 2004 in support of her serious injury application.[51] However, whilst the topic of recreational activities is briefly covered in that affidavit, netball (either playing or coaching) is not referred to. In the end, it is as likely as not that the topic was simply overlooked, rather than being concealed for the purposes of misleading the court that heard the serious injury application or the defendants to that proceeding. Whilst one can debate at length whether or not the plaintiff should have mentioned the fact of her netball coaching to each and every doctor or whether she deliberately concealed the fact for the purposes of trying to appear more disabled than she actually is,[52] ultimately much depends upon the view one takes of the plaintiff having seen her in the witness box and in the light of all of the known circumstances of the case. I will return to this below.[53]

19 An additional attack was made on the plaintiff’s credit in relation to trips she took to Bali in 2003 and Queensland in 2006. The plaintiff went to the Gold Coast twice in 2006 and to Townsville twice (although one of the trips to Townsville followed on from one of the trips to the Gold Coast). The plaintiff also went to the Gold Coast on a third occasion. There was substantial film of the plaintiff’s trip to the Gold Coast in July 2006. On that occasion, the plaintiff visited Sea World and took a cruise to South Stradbroke Island, which went from 9.30 a.m. to 3.30 p.m. Following the cruise, the plaintiff visited some shops. During her visit to Sea World, it appears that the plaintiff contemplated a helicopter ride, but did not actually undertake one. The film of the plaintiff shows her walking slowly with her walker at all times. She appears disabled. On one occasion, she appears to have significant difficulty getting into a car. However, on another occasion the plaintiff appears to be manipulating a case into the back of a car with her leg. That episode aside, the film, of itself, does no damage to the plaintiff’s credit. Further, fairly considered, the plaintiff’s use of her leg to manipulate the case, whilst perhaps surprising, is not of such a level as to cause me to disbelieve her in relation to her overall level of disability. Clearly, there are days when the plaintiff is better than on other days and issues as to what medication the plaintiff might have taken before engaging in such an activity have to be considered.

20 The defendants did not merely rely upon the existence of the film as of itself damaging the plaintiff’s credit. They also contended that the plaintiff’s presentation in the film was inconsistent with what she was telling doctors in and about July and August 2006.[54] Specifically, the Epworth pain program nine month review report[55] discloses that on 27 July 2006, the plaintiff gave a history in the following terms:

There are arguably discrepancies that are capable of being debated between aspects of the plaintiff’s presentation and what she has apparently said to doctors from time to time (and, indeed, in her evidence).[56] Notwithstanding these apparent discrepancies, I formed the view, when the plaintiff was giving evidence, that she was doing her best to give an honest and accurate account of her circumstances. Clearly, there are psychological issues (about which I will say more below) which have coloured her accounts to doctors over the years and may have coloured (to some extent) her evidence in this case. In the end, whether one looks at each of the items said to go to the plaintiff’s credit individually or looks at them all collectively (including her accounts of the circumstances of the collision), they do not cause me to disbelieve her. With the qualification that there are some aspects of exaggeration[57] in the plaintiff’s evidence, I accept her evidence that she has had and continues to have severe pain and restrictions of movement involving her back and legs (more particularly her left leg). Questions then arise as to whether this is organic to any and what extent, whether or not an anatomical diagnosis can be made and whether or not the collision was a cause of any injury or condition that has led to it.

21 I have already referred to some of the medical evidence. It is not necessary to refer in detail to all of the medical evidence. Broadly speaking, the plaintiff’s medical witnesses (Dr Kaplan, Mr Johnson, Dr Eqbal, Dr Clayton Thomas and Dr Reardon) accept that the plaintiff is severely disabled. The issue is the cause or causes of the disability. As Dr Kaplan expressed it:[58]

22 Dr Clayton Thomas was originally of the view that psychological factors were heavily involved in the plaintiff’s condition.[59] However, after the insertion of the intrathecal pump, he diagnosed her as suffering from “symptomatic spondylosis, with the lumbosacral disc level being the culprit”.[60] Prior to the insertion of the pump, Dr Thomas performed some trials which led him to the view that the plaintiff’s problem was organic.[61] Dr Thomas explained what he meant by spondylosis as “pain arising from discs and facets of the lower back of some sort ... we might not be able to pinpoint it precisely but that is not uncommon ...”. On the history given by the plaintiff to Dr Thomas and on the assumption that the plaintiff was doing very well prior to the collision, Dr Thomas was of the opinion that the collision was the reason for her worsened condition. As to the defendants’ suggestion that the collision was a very minor impact, he said:

23 Ultimately, Dr Thomas’ evidence was that his diagnosis of the plaintiff was that she had an organic problem, but he was unsure of precisely what the organic problem was. In terms of deterioration or improvement, he thought it would stay exactly the same over time. He was asked and answered the following questions:[63]

24 Whilst various attempts have been made to provide an anatomical diagnosis for the plaintiff’s problem (including the possible implication of the lumbosacral disc level by Dr Thomas and a partial lesion of the spinal cord at the level of approximately T5[64]), the medical evidence in this case does not enable me to conclude what the anatomical diagnosis is.[65] However, I accept that, following the insertion of the intrathecal pump, the plaintiff’s condition has been disclosed as an organic one affecting her spine, albeit with a psychological component. The defendant’s doctors,[66] who have expressed the view that there is a significant functional component and limited (if any) organic component, have not had the benefit of knowing of the trials that led to the insertion of the intrathecal pump and the outcome of the actual insertion. All of their reports predate the insertion of the pump. I specifically reject any suggestion that the plaintiff has “dramatically exaggerated” her symptoms or that any such exaggeration was “done intentionally for the purpose of highlighting and calling attention to the level of functional disability that she was experiencing”.[67] Ultimately, the defendants’ medical reports[68] were not of much assistance. Professor Kilpatrick’s final report[69] concludes “It is difficult to know how much of the symptoms are organic, that is how much of the pain does have an organic basis, and how much relates to the motor vehicle accident and how much relates to the work-related injuries”. Mr Shannon’s final report concludes that the relationship of the plaintiff’s condition to the collision is largely dependent on the accuracy of the history obtained. He then goes on to say that the prognosis for the plaintiff’s physical injury is probably satisfactory, but the prognosis for her chronic pain syndrome is poor and that a morphine pump may be a reasonable option. Mr Carey’s final report disclosed that he was “uncertain as to the pain source”. Ultimately, the conclusion I draw is that the plaintiff has (and has had since the collision) an organic problem affecting her spine. Precisely what the organic problem is, is unknown. There is a psychological component which involves depression and the prognosis for the plaintiff’s total condition is poor. The condition is severe and debilitating, and has had a dramatic effect (and continues to do so and is likely to continue to do so indefinitely) on all aspects of the plaintiff’s life. The question is whether the collision is a cause of it.

25 The plaintiff’s evidence is that she had a good result from her surgery on 1 December 1999. Her pain levels were so substantially reduced that she could hardly feel any leg pain and her back pain, after a few days, was described as “there was really nothing there”.[70] Upon her discharge from The Avenue, she said her pain was a 1 for both the back and the leg.[71] Mr Johnson described it in terms of when the plaintiff left The Avenue she was satisfactory, but when she came back into Bethesda and subsequently, she has been markedly disabled and the only intervening event in the meantime was the collision. On this basis, he concluded that the collision was the cause, or at least a significant contributing factor, to the plaintiff’s present problems.[72] I accept this evidence. Whilst he acknowledged that the post-operative period was brief, he also said that the overall statistics of discectomy disclosed that approximately 70% of people return to their previous employment following discectomy. Whilst Professor Kilpatrick concedes that many patients “following adequate surgery have a very good outcome with improvement in the sciatica”, she notes that ongoing back pain is often a problem and that even though the plaintiff states that she was markedly improved, eight days post-surgery is too early to state what the real outcome of the surgery would have been. The defendants, of course, bear the onus of any necessary disentangling.

26 From very shortly after the collision, the plaintiff has complained of back pain. Back pain was the reason for her transfer to the Werribee Mercy Hospital. At that hospital, she made complaints of severe back pain. She has consistently complained of severe pain since that time. Unlike her post-surgery admission (which was only seven days), the plaintiff was admitted to hospital after the accident for 13 days. I accept that the plaintiff would have had some form of ongoing back disability had the collision not occurred. However, the probabilities are that it would have been manageable to a point where the plaintiff would have been able to return to suitable employment. I find that the collision is the cause of the very severe disability that the plaintiff has suffered from since the collision and continues to suffer from. As I have said above, it is not to the point that the damage to the ambulance might be described as minimal or that the ambulance officers may not have been particularly impressed as to the significance of the collision. The point is whether sufficient forces were applied to the plaintiff’s body so as to cause her to suffer injury (and in particular the injuries the subject of this proceeding). In that analysis, it is to be remembered that the plaintiff had recently undergone surgery.[73] I find that sufficient forces were applied to the plaintiff’s body so as to cause her to suffer an injury to her spine resulting in the very severe disability she has suffered (and continues to suffer from) since the collision.

27 The plaintiff has suffered an organic injury to her spine. Whilst a precise anatomical diagnosis is not possible, the plaintiff has suffered a very severe disability and suffers from and is likely to continue to suffer from severe pain (albeit that the edge may have been taken off the back pain by the intrathecal pump) as a result of the collision. An appropriate allowance for the plaintiff’s pain and suffering and loss of enjoyment of life is $350,000. In making this assessment, I have taken account of the work injury and its likely progress had the collision not occurred. I turn now to consider what effect (if any) the s 98E payment has on this assessment.

28 The s 98E payment ($167,850) was paid pursuant to the plaintiff’s claim for non-economic loss under ss 98C and 98E of the AC Act. Were it not for the existence of s 134A of the AC Act, the plaintiff may have been able to commence a common law proceeding in respect of the work injury. Section 134AB(25)(b) provides that in a proceeding brought pursuant to s 134AB, payments made under s 98C or 98E are to be deducted from any judgment for non-pecuniary loss. Section 98C provides that compensation paid pursuant to that section is for non-economic loss. Section 98E entitles a worker under the AC Act to recover a larger amount under s 98E than the amount under s 98C if the worker suffers a total loss referred to in the table to s 98E.

29 The principles for determining whether or not a particular payment made to a plaintiff should be taken into account in the assessment of damages are well known. They are set out in the decisions of Redding v Lee,[74] Wollington v State Electricity Commission of Victoria (No.2),[75] Nagy v Masters Dairy Limited[76] and Insurance Australia Limited v HIH Casualty & General Insurance Limited.[77] In determining whether the s 98E payment (or any part of it) should be taken into account, the issue turns on the character and purpose of the payment. The payment is a payment for non-economic loss. Whilst it has been said that the characterisation of a benefit paid to a plaintiff as corresponding to a non-pecuniary head of damage “is likely to be treated as an indication that the plaintiff was intended to retain it in addition to the damages, because no-one can truly say that a plaintiff has been over-compensated by any amount of money in relation to such matters as pain and suffering”,[78] workers compensation payments have traditionally not been regarded as payments in respect of which it can be said there exists a relevant intention that the plaintiff be able to retain them.[79] The s 98E payment and an award of general damages in this case are both of the same character in that they are compensation for non-economic loss. Further, the AC Act does not disclose any intention that amounts paid as compensation under it should be enjoyed as additional benefits where damages paid to compensate the plaintiff in respect of the same loss are recovered. Notwithstanding the submissions of the plaintiff, the inclusions of the words “as at the date of the relevant injury” in s 98C(2) does not change this position. To the extent that the s 98E payment gives the plaintiff compensation for non-economic loss suffered as a result of the collision, it must be taken into account in the assessment of the plaintiff’s damages.[80]

30 The question becomes what, if any, part of the s 98E payment relates to the injury suffered by the plaintiff in the collision. Exhibit H and Exhibit 3 disclose how the s 98E payment was calculated. A medical panel assessed the plaintiff has having a 39% whole person impairment, which under s 98C equated with a payment of $74,250. However, the medical panel concluded that the plaintiff had a total impairment of the spine and thus, under s 98E, the plaintiff became entitled to the sum of $167,850. The medical panel assessment was conducted on 4 April 2002. In the course of the assessment, the medical panel took a history from the plaintiff concerning the work injury and the surgery at Epworth Hospital. The plaintiff told the medical panel that five days post-surgery her leg pain had almost disappeared and that she was able to walk with reasonable comfort and was discharged on 8 December 1999. The plaintiff then gave a history to the medical panel of the collision and its consequences. On the entirety of the plaintiff’s history (as it existed at that time) and having examined the plaintiff, the medical panel concluded that in accordance with Table 13 of the American Medical Association Guides to the Evaluation of Permanent Impairment (4th Edition – Third Reprint) (“the AMA Guides”), the plaintiff had a whole person impairment of 39% due to her inability to walk without assistance. However, the panel also considered that the impairment of the function of the plaintiff’s spine was severe enough to be regarded as effectively a total impairment of the spine – justifying the payment of $167,850. On the plaintiff’s history there is no doubt that part (if not the whole) of the s 98E payment relates to non-economic loss suffered as a result of the collision. It is for the defendants to show on the evidence how much of the s 98E payment should be taken into account for the collision as opposed to the work injury.[81]

31 The s 98E payment was not paid merely in respect of the consequences of the work injury. That is, it was not calculated and paid by taking out of account the consequences of the collision. This accords with the view taken in workers compensation cases that the total condition of a worker whose compensable injury is exacerbated by a subsequent event (in some cases, medical treatment) may be attributable to the original injury.[82]

32 On the plaintiff’s history and case, the suffering by the plaintiff of the total impairment of her spine occurred as a result of the collision. Had the collision not occurred, the plaintiff would not have suffered a total impairment of the spine and would have only been entitled to compensation based upon her whole person impairment pursuant to s 98C of the AC Act. There are two methods by which this might have been assessed: one was under Chapter 4 of the AMA Guides and the other was under Chapter 3. It is not possible for me to determine on the evidence either how the plaintiff’s whole person impairment might have been assessed but for the collision or what percentage such an assessment would have produced.[83] However, it is possible to say that, but for the collision, the plaintiff would have received no more than the sum of $74,250 pursuant to s 98C of the AC Act. That is, but for the collision, the plaintiff would not have been assessed as suffering a total impairment of the spine, but would have been assessed under the AMA Guides as having no more than a 39% whole person impairment (which equates with $74,250). It may be that in fact the plaintiff’s whole person impairment assessment would have been lower than 39%.[84] However, there is insufficient evidence for me to justify any such conclusion. The defendants, bearing the onus of establishing how much should be taken into account, have only established that the amount in excess of $74,250 is the amount that should be taken into account (that is, $93,600).

33 I have already determined that the appropriate allowance for the plaintiff’s pain and suffering and loss of enjoyment of life is $350,000. The defendants have established that $93,600 has already been paid to the plaintiff in respect of non-economic loss caused by the collision. This amount should be taken into account. In the circumstances, there will be judgment for the plaintiff in the sum of $256,400. I will hear the parties on the question of costs.

[1] Whilst the plaintiff alleges injuries additional to those affecting her spine, the claimed spinal injuries are her major complaint.

[2] The expression “pain and suffering damages” is defined in s 93(17) of the TA Act to mean “damages for pain and suffering, loss of amenities of life or loss of enjoyment of life”.

[3] Whilst she commenced Year 11, she did not complete it because she fell pregnant to her then future husband.

[4] Evidence that was corroborated by the plaintiff’s mother, Mrs Helsham, at T212.10.

[7] See T57.20 - .27. See also the evidence of the plaintiff’s niece, Ms Bianca Broman, at T130.15 - .29. See further the evidence of the plaintiff’s mother, Mrs Helsham, at T212 and the evidence of the plaintiff’s son, Mr Paul Broadby, at T227.22 – 228.1.

[16] His position (according to him) can be seen in one of the photographs that is exhibit 5.

[28] Indeed, Mr Downie’s actual evidence was that he did not recall the plaintiff being thrown by the impact over the railing (T318.18 - .22).

[35] Although the evidence of Dr Reardon was capable of making the issue of any loss of bladder control an important one for determining what, if any, organic problem the plaintiff suffers from, for reasons given below I have concluded that this issue is not determinative of this proceeding.

[38] See for example the report of Mr Carey dated 7 March 2007 which is part of exhibit J.

[44] However, the plaintiff did concede that seeing her son come home from work was an enjoyment.

[45] She describes the improvement in terms that the pump has “taken the edge off” her back pain (T49.8), reduced the amount of medication she was otherwise taking (T51.9) – but had no effect in relation to the leg pain (T50.17).

[53] As to actually coaching the netball side, Mr Johnson did not seem to regard that as a matter that might suggest that the plaintiff was less disabled than her presentation suggests (T205.20 - .26).

[54] Again, I should note that when Mr Johnson was asked whether taking flights to Surfers Paradise in July 2006 was inconsistent with the picture the plaintiff presented to him, he answered “not really” (T201.28 - .29).

[56] Although in fairness to the plaintiff I should note that Dr Clayton Thomas saw the video of the plaintiff’s trip to Queensland before the intrathecal pump was put in and concluded that her presentation in the video was “very similar to exactly the times I had seen her before, so there’s no discrepancy in any manner ...” (T144.29 – 145.4).

[65] It is unproductive, and not necessary for the resolution of this case, to attempt to resolve the issue of whether there was an increased right knee jerk as asserted by Dr Reardon, but as disputed by the findings made by a number of other medical practitioners. The better view of the medical evidence is that an anatomical diagnosis cannot be established – even though there is significant evidence of an organic component.

[67] Cf the report of Dr Turecek dated 1 April 2005 which is part of exhibit 7. It is noteworthy that this opinion is predicated upon the viewing of a video which was not played or produced to this Court which Dr Turecek concludes shows a “major discrepancy between her presentation at ... [his] assessment and what was observed on [that] video”.

[68] None of the defendants’ medical witnesses were called to give viva voce evidence.

[73] There is a protective effect that the muscles of the back ordinarily provide which can be lacking as a result of surgery of the kind performed prior to the collision on the plaintiff (see generally the evidence of Mr Thomas at T147.5 - .19). See also the evidence of Dr Reardon at T286.27 – 287.9.

[78] See Luntz, Assessment of Damages for Personal Injury and Death (4th Edition) at paragraph [8.1.5]. But cf Lewis, Deducting Benefits from Damages for Personal Injury (1999) at paragraphs 3.19 – 3.21 and 3.31 – 3.35.

[79] See generally Sharp v Associated Pulp and Paper Mills Limited [1989] VicRp 12; [1989] VR 139 at p.147 (and in particular the third paragraph of the additional four paragraphs added after line 26 thereof).

[83] It is too simplistic to say that because the s 98E payment relates to the total impairment of the spine and the plaintiff did not suffer a total impairment of the spine before the collision therefore the whole of the s 98E payment must be taken into account. There clearly was some entitlement under s 98C which would have persisted even if the collision had not occurred.

[84] Whilst it might be possible to come to a lower percentage by referring solely to Chapter 4, the existence of Chapter 3 and its different concepts make it impossible for this Court to determine whether or not an assessment under Chapter 3 might have produced the same or a similar lower percentage. Additionally, the possible application of what is described as “the s 3.3 direction” in Mountain Pine Furniture Pty Ltd v Taylor [2007] VSCA 146; (2007) 16 VR 659 concerning the relevance of surgery further clouds the issue. In the circumstances, had Chapter 4 been the only relevant Chapter, I would have been prepared to find in the defendants’ favour that the appropriate assessment was 29%. However, on the material it is not possible to say that an assessment under Chapter 3 would not have produced a figure of 39% (although this precise figure would be statistically unlikely). As the New South Wales Court of Appeal said in Transfield v Mastroianni (supra), the Court should not accept any invitation to speculate in favour of the party carrying the onus.

Supreme Court of Victoria

Broadby v Johnson & Anor [2008] VSC 541 (3 December 2008)