District Court

New South Wales

Case Name: XIAN QIAN v RACQ INSURANCE LIMITED

Medium Neutral Citation: [2019] NSWDC 57

Hearing Date(s): 15 August 2018, 16 August 2018, 17 August 2018 & 2 November 2018

Date of Orders: 15 March 2019

Decision Date: 15 March 2019

Jurisdiction: Civil

Before: Strathdee DCJ

Decision:(1) Judgment for the plaintiff against the defendant in the sum of $30,300.(2) Written submissions as to the question of costs to be forwarded to my Associate within 14 days of today.

Catchwords:DAMAGES – Motor Vehicle Accidents – Subsequent Motor Vehicle Accident – Non-CompensableGENERAL DAMAGES – Motor Accidents Insurance Act (Qld) 1994 – Civil Liability Act (Qld) 2003

Legislation Cited:

Civil Liability Act (Qld) 2003Civil Liability Regulation (Qld) 2014Motor Accident Insurance Regulation (Qld) 2004Motor Accidents Insurance Act (Qld) 1994

Cases Cited:

Colorado Products Pty Ltd (in provisional liquidation)[2014] NSWSC 789Hartin v Rigel constructions Pty

Ltd & Anor [2013] QSCWhitfield v Melenewycz [2016] NSWCA 235

Category: Principal judgment

Parties:Xian Qian (Plaintiff)RACQ Insurance Limited (Defendant)

Representation:

Counsel:Mr M. Claridge (Plaintiff)Mr G. O’Driscoll (Defendant)  Solicitors:JX Legal (Plaintiff)Jensen McConaghy Lawyers (Defendant)

File Number(s): 2018/00085301

JUDGMENT1 By way of a Statement of Claim filed in the District Court on 14 March 2018 the

plaintiff seeks damages arising from a motor vehicle accident which occurred

on 22 August 2013 in Queensland.

2 It is alleged by the plaintiff that at the time of the accident, she was driving a

motor vehicle in the opposite direction of a vehicle registration number 618-

HCJ, when the other vehicle travelled onto the incorrect side of the road and

collided head on with the vehicle being driven by the plaintiff.

3 Liability has been admitted by the defendant in regard to this accident.

4 The Statement of Claim further pleads that the plaintiff was involved in a

second accident on 16 October 2013 in NSW and details the injuries and

impairments that she is alleged to have sustained as a consequence of the

second accident.

5 At the commencement of the hearing I enquired of both counsel as to the

position with regard to the second accident, which occurred in October 2013,

as the injuries sustained in that accident are particularised in the Statement of

Claim.

6 Counsel for the plaintiff indicated that the second accident in October 2013 was

a blameless accident and thus the plaintiff cannot receive damages in respect

of that accident. (see Whitfield v Melenewycz [2016] NSWCA 235)

7 At the commencement of the trial, I invited Counsel for the plaintiff to address

this issue with regards to the pleadings, and he chose not to do so. However,

during closing submissions, and after counsel for the defendant had finished

his submissions, Counsel for the plaintiff sought to amend his pleadings and to

put on further evidence. Both applications were refused.

8 It was agreed between the parties that the Queensland accident is governed by

the following legislation:-

(a) Motor Accidents Insurance Act (Qld) 1994;

(b) Civil Liability Act (Qld) 2003;

(c) Motor Accident Insurance Regulation (Qld) 2004;

(d) Civil Liability Regulation (Qld) 2003.

9 It was further agreed between the parties that the substantive law affecting the

calculation of the plaintiff’s damages is governed by the law of Queensland and

the procedural law is that of New South Wales.

10 The main issue between the parties is the effect of the second accident on the

plaintiff’s physical and mental health, as it was agreed between the parties that

injuries and disabilities arising as a consequence of the second accident are

not compensable by the insurer of the other vehicle in the first accident.

11 The plaintiff’s position is that although the second accident was a more serious

one in the sense that it involved a brain injury, in actual fact the first accident

caused more serious injuries to the plaintiff’s neck, back, right shoulder,

psychological injuries and the onset of amenorrhoea.

12 The plaintiff’s case is that as at the date of trial the plaintiff has fully recovered

from the effects of the second accident, such effects are as follows:

(a) head injury/possible brain injury;

(b) aggravation of back pain;

(c) aggravation of anxiety and depression.

13 The plaintiff’s case is that her health, mental and physical, is how her health

would have been if she had not had a second accident. It is submitted that her

present situation has the continuing effects of a neck injury, right shoulder

injury, a back injury and ongoing anxiety and depression, all of which originated

with the first accident, and have remained with her ever since.

14 The defendant’s position is that the only damages that can flow from the

Queensland accident are such that flows from a minor soft tissue injury to the

cervical spine. Their position is explained as follows:-

(1) They admit the plaintiff sustained a sore neck but stated that she was cleared of any serious injury at the Gympie Hospital and discharged with simple pain killers.

(2) They admit the plaintiff sustained a minor injury to her right arm in the area of her wrist but say no abnormality was detected when examined in the Gympie Hospital.

(3) There was no injury to the back occasioned to the plaintiff in the first accident but in fact any injury to her back was occasioned in the second accident.

(4) They submit there was no injury occasioned to the plaintiff’s left hip as a consequence of the first accident, as there is no contemporaneous record of any such injury.

(5) They submit that the plaintiff has not suffered any psychological injury as a consequence of the first accident, and there has been no diagnosis of a mental disorder recognised under the DSM4 as required under the Civil Liability Act 2003 (Qld) [CLA Qld].

(6) They state that dry wrenching or shock are not injuries as they are merely reactions rather than injuries in accordance with the CLA Qld.

(7) They note the injuries that are complained of are injuries to the lower back, the neck, the knees and the left shoulder which they say all occurred in the second accident and thus are not compensable as they are causally independent of the first accident.

(8) They say that any effect of the minor neck injuries sustained in the first accident which are the only injuries compensable under the CLA Qld of Queensland have been completely subsumed by the effects of the second accident and both doctors in the conclave discussion confirmed that none of the plaintiff’s current conditions, whatever they may be, relate to the first accident.

15 The issue has recently been encapsulated by a decision of Applegarth J in

Hartin v Rigel Constructions Pty Ltd & Anor [2013] QSC at 320 in the following

terms:

‘[41]   The relevant principles are summarised by Professor Luntz, citing the authorities of Fishlock v Plummer and State Government Insurance Commission v Oakley:

‘The relevant rules where a plaintiff sustains a further injury in a distinct subsequent accident have been conveniently restated as follows:

1. where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;

2. where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and

3. where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury the subsequent accident and further injury should be regarded as causally independent on the first.’’

16 This accident falls into scenario 3, it is independent. The plaintiff has led no

medical evidence or other evidence to the contrary.

BACKGROUND

17 The plaintiff gave evidence with the assistance of an interpreter. She was born

on 26 August 1972 and arrived in Australia on 7 April 2007 on a Student Visa.

Before she arrived in Australia she had worked as a midwife in China. Upon

arriving in Sydney she commenced to study aged care in the Cambridge

College in Bathurst Street, Sydney where she obtained a Certificate 3 & 4 in

Aged Care, however, had a far greater interest in massage and obtained a

Certificate of Proficiency in Massage from the Concord Holistic Centre. These

were services for which Medicare benefits could be claimed.

18 Prior to the first motor vehicle accident on 22 August 2013 the plaintiff was in

good health doing remedial massage work throughout New South Wales and

Queensland and had specifically, not had any injuries to her neck, back, right

shoulder or hips.

19 The massage business that the plaintiff was running had commenced in 2010

and she was effectively the manager of the operation. She would make

bookings for a massage tent to be set up at various music festivals which

would normally occur on a Thursday or a Friday night and they would remain in

that position until the conclusion of the music festival.

20 The plaintiff usually did not perform many of the massages herself as she had

other people employed to do the actual massages, she was more involved in

the administrative side of the business. She employed staff to do the actual

massages.

21 Generally the events would start on a Thursday or a Friday and continue until

the Sunday afternoon. After the conclusion of the festival the plaintiff and her

colleagues would return to Sydney.

22 On the date of the first accident the plaintiff was driving from Sydney to the

Gympie Muster which was a music festival to occur in Queensland. The plaintiff

had been driving from Sydney just before the accident occurred. The plaintiff

was the one who usually drove.

23 After the collision, the motor vehicle in which she and her colleagues were

travelling had flipped over and they had to crawl out from the car. An

ambulance arrived and the plaintiff gave evidence that she told the ambulance

officers that she had a lot of pain and could not move her neck. She also

indicated she could not move her right shoulder and had pain in her lower

back. She said she was not able to communicate very well with the ambulance

officers because they did not speak Mandarin.

24 The plaintiff was taken to the Gympie Hospital where a CT scan of her neck

and head were performed. X-rays of her chest, pelvis and right wrist were also

performed at the Gympie Hospital. She recalls feeling pain in her pelvis but

was not admitted to the Gympie Hospital and left after a few hours having been

offered some over-the-counter pain killers.

25 Upon the plaintiff’s return to Sydney she saw her General Practitioner, Dr Wan,

on 27 August 2013. When she attended upon Dr Wan she told him she felt

pain in her neck, right shoulder and lower back and that she felt dizzy. The

plaintiff was recommended to undergo some physiotherapy which she did.

26 The plaintiff indicated in evidence that prior to the accident she was a very

happy person but after the accident she had trouble sleeping and she saw a

doctor because she remembered that she wished to commit suicide, she stated

“I was really anxious and I couldn’t do anything” (Transcript P21 L12).

27 The plaintiff continued to seek some physiotherapy treatment on her neck,

shoulder and back.

28 Some weeks later the plaintiff was referred by Dr Wan to a psychologist, Miss

Isabelle Ma, as she felt she was in very poor mental health. The plaintiff recalls

being put on some medication but cannot recall the names. I note there is no

report from Miss Ma.

29 The plaintiff states that she is currently using medication (Norgesic) for her

neck and for her sleep.

30 The plaintiff was asked how her condition was after the first accident, that is as

at September 2013, where she indicated that she could drive, but only for a few

minutes to take her daughter to kindy, and she did not drive when it rained or

when it was dark (Transcript P20 L13).

31 The plaintiff further stated that before the Queensland accident she had never

had any headaches or felt ill.

32 Dr Wan also referred the plaintiff to an orthopaedic surgeon at the Royal North

Shore Hospital. Her evidence was that she did not attend him as she did not

have the $200.00 to pay for the consultation. She did however continue with

physiotherapy treatment up until the second accident.

33 The plaintiff also indicated that between the two accidents she noticed that her

periods had stopped, and that she had sought medical attention for that

condition and was prescribed a strong medication. She cannot remember the

name of the medication.

34 The plaintiff was specifically asked how she felt just before the second accident

and she replied as follows:

“I feel pain in my neck, my right shoulder and my lower back” (Transcript P27

L26).

35 On the day of the second accident the plaintiff was driving with her co-workers

towards Mildura as they had booked to set up their massage tent at the Mildura

Show. She had paid a deposit of $124.00 with a balance owing of $366.00 and

she had also booked and paid for accommodation near Mildura for the duration

of the Mildura event. A Tax Invoice was tendered and marked ‘Exhibit C’ from

the Mildura show and hotel evidencing an application to conduct Chinese

herbal massage at the show.

36 The plaintiff stated in evidence that she had made another booking to attend an

agricultural show in Tasmania but did not attend because she had suffered the

second motor vehicle accident (Transcript P28 L10). A further document was

tendered and stated to be an application to run a stall at the Mildura Show

dated 14 August 2013, a document relating to a hotel reservation dated 15

October 2013 and invoices from the Royal Agricultural Society of Tasmania

dated 27 May 2013 were tendered and marked ‘Exhibit D’.

37 The plaintiff was asked questions about how she felt before she set off to

Mildura on 16 October 2013 and she indicated that she thought she was ready

to work but was not doing any physical massage work. She also gave evidence

that she had pain in her neck, back and right shoulder before the accident.

38 There were four people travelling in the car on the way to Mildura and at the

time of the accident the plaintiff was driving.

39 The plaintiff agreed (Transcript P31 L44) that it was a serious accident and that

she was taken to Wagga Base Hospital. She remained in Wagga Base

Hospital for a few days and the medical records indicate that she was intubated

and suspected to have suffered a head injury.

40 The plaintiff recalls that when she was in the Wagga Base Hospital after she

woke from her unconsciousness, she had neck pain that was the same as the

neck pain she had experienced prior to the second accident.

41 When the plaintiff returned to Sydney after her discharge from the Wagga Base

Hospital she was referred to the Hunter Brain Injury Service. The plaintiff

believes that that was because of her memory loss and dizziness.

42 The plaintiff gave evidence that her dizziness had commenced after the first

accident, and before the second accident. The plaintiff said that that dizziness

had not gone away by the time of the second car accident, and remained after

the second car accident at a level similar to that which she had experienced

after the first accident.

43 The plaintiff was asked about her power to concentrate (Transcript P35 L45).

She indicated that there was a change after the second accident in that she

couldn’t concentrate on her work. The plaintiff stated that she now can only

work up to 2 hours as after that she gets very dizzy.

44 The plaintiff continued to see her GP Dr Wan during 2014, 2015, 2016 & 2017

predominantly she says, because of problems with her neck, shoulder and

back.

45 In January 2014 the plaintiff returned to China for 3 weeks and stated that her

condition whilst she was away was still the same as it was before the second

accident.

46 Upon returning from China the plaintiff gave evidence that she was unable to

do physical jobs because of her lower back and she couldn’t stand very long.

She could not do the massage work because she used to use the elbow and

she now has no power or energy to do that.

47 By 2016 the plaintiff said she felt better, if she didn’t do any physical work but

her neck was getting worse.

48 An ultrasound of the plaintiff’s right shoulder was performed on 16 April 2016

(Exhibit A P77).

49 By 2017 the plaintiff stated that her neck and shoulder were worsening and she

couldn’t lift her right arm above her shoulder and as such she did not regard

herself as physically fit for work at all.

50 As at the first day of the trial (15 August 2018) the plaintiff indicated that she

couldn’t do much physical work. She stated that she was doing some work

assisting nurses from China to come to Australia and work in the aged care

field, and for that reason she was required to travel to and from China. She has

however subsequently closed down that business because of difficulties she

experienced with using the computer. She would feel dizzy and her neck would

hurt if she used the computer for too long.

51 The plaintiff also tried to set up a business to teach music to children, but as

she could not play an instrument that business was unviable.

52 The plaintiff indicated that after the first accident she had difficulty driving for

more than about 50 minutes (Transcript P49 L47) and did not like driving at

night.

53 The plaintiff was cross-examined about the natural herbal therapy massage

business in which she was self-employed. She indicated that she could make

$2,000-$3,000 per week in that business.

54 Patrons of the business would be charged $45 for a massage of their neck,

shoulder and back. If they wanted the whole body it would cost $180.

55 The plaintiff was cross-examined extensively about her tax returns and the

premises that she operated her business out of at 281-285 Parramatta Road,

Glebe. She indicated that she sold the shop in Glebe in 2012.

56 During cross-examination great moment was made (Transcript P75 onwards)

about the entries in the plaintiff’s tax returns with regard to the business she

was running and the shop from where that business operated from. It was put

to her that it was curious and unusual that the amount in each of the various

years’ tax returns were identical for rent.

57 The plaintiff was also cross-examined about her ability to work after the first

and second accidents. It is difficult to reconcile the evidence that she gave with

the documents that were tendered on her behalf. It did at times appear to me

that she was making it up as she went along.

58 The plaintiff gave evidence that prior to the first accident she did all of the

housework including vacuuming, sweeping, cleaning bathrooms and kitchens,

mopping and doing the washing. She stated that she ceased doing those

duties after the first accident and did not resume them after the second

accident.

59 The plaintiff’s stated that her relationship with her partner, Lindsay Jones,

changed as she found having intercourse painful. Since the accident Mr Jones

has been doing most of the housework and the cooking, and the plaintiff will

cook maybe once per month if need be, as she would feel pain and soreness in

her lower back.

60 Her partner Mr Jones gave evidence in a very forthright fashion. He agreed

that prior to the first accident, the plaintiff was vibrant and happy, but after the

first accident she became moody and had trouble sleeping. He stated that she

also started to suffer from a lack of confidence driving, and that he had to do

more driving (Transcript P90 L7-12). He agreed that he had to do a lot more

around the home as the plaintiff was unable to do so. He agreed that this was

about “three or four” hours per week (Transcript P92 L47-50). In written

submissions, Counsel for the plaintiff abandoned the claim for past and future

domestic services.

61 When cross-examined, Mr Jones gave the following evidence (Transcript P95

L9-17);

“Q.   The back pain came on after the second accident, didn’t it?

A.   She had back pain..(not transcribable)..the second accident, that’s right. But I don’t know whether she did have some back after the first. Certainly neck pain, I do remember that. But—

Q.   She only injured her back in the second. That you weren’t aware of any injuries to her lower back after the first accident, but before the second, were you?

A.   Yeah, I’d say more the second, I think.”

62 I accept the evidence of Mr Jones that the plaintiff’s back pain did not come on

until after the second accident.

63 An arrangement was made between the parties that there be a teleconference

organised by the lawyers, with the aim of producing a joint medical report from

Dr Peter Giblin qualified for the plaintiff and Dr Con Kafataris. Unfortunately,

even though a facilitator was present to help the recording of opinions, the joint

report (Exhibit 2) is of little assistance. A copy of the letter sent to the doctors

(Exhibit 3), is also of no help as the doctors agreed on precious little. The utility

of the whole process was in my view minimal (Exhibit A P12-26).

64 The ambulance notes tendered as part of the plaintiff’s tender bundle, indicate

that the plaintiff complained of pain in her right arm and hip, and then

complaints were made of tenderness and pain on right side of her neck. The

Queensland Government Gympie Hospital Nursing Assessment details the

plaintiff’s presenting complaint as “neck back arm R side pain”. Further in that

bundle of documents an entry at 8.25am on 22 August 2013 records the

following ;

“States she is sore on R side of arm, neck but declined analgesia”.

65 The Gympie Hospital Radiology Report Lookup document details the history

given as “MVA. Right neck and hip pain” (Exhibit A P27). It details x-rays were

taken of the plaintiff’s chest, pelvis and right wrist, and that CT images were

taken of her brain and cervical spine. I note that when the plaintiff was in the

Gympie hospital there was no record of any radiological examination made of

her back.

66 The plaintiff first attended her General Practitioner, Dr Wan. Dr Wan records in

his report of 27 August 2013 (Exhibit A P45) as follows;

“Thank you for seeing Xian, 41 years old for opinion and management. She had a head on vehicle collision on the 22nd of August - travelling at 60km per hour. She has had ongoing neck pain since the accident with radiation to the left hand. I will get her to have a CT scan of her neck to exclude any fractures or disc pathology.”.

67 A medical certificate issued by Dr Wan on 27 August 2013 (Exhibit A P46)

states as follows;

“This is to certify that……Xian Qian…..is suffering from moderate whiplash from a head on collision accident, sustained on the 22nd August. She has persistent neck pain with radiation and neuropathic symptoms in her left hand. I will order another CT scan of her neck. She is unable to attend work duties from Thursday, 22 August 2013 to Tuesday, 10 September 2013.”

68 A medical certificate completed by Dr Wan on 7 November 2013 (Exhibit A

P44), but referring to first initial examination on 27 August 2013 records under

Medic al diagnosis or description of injury the following;

“Whiplash injury, sustained in a head on motor vehicle collision. Post traumatic stress and unable to drive.”

69 It further records under Clinical findings the following (Exhibit A P44);

“Headaches, neck pain with right sided arm radiation/weakness. CT scan (neck) – results enclosed. Physiotherapy and psychologist”.

70 Again, I note that there is no mention of the plaintiff complaining of back pain

and nor does the doctor mention any investigation of any back condition.

71 In a referral to the Pain Clinic at Royal North Shore Hospital (Exhibit A P53) Dr

Wan, writes as follows:

“Xian Qian has sustained a head on collision with another car on the 22 August and another car accident on the 17th October 2013.

She has had persistent symptoms since the accident, including neck pain, stiffness and headaches. This has also affected her general functioning. She experiences daily posterior headache, neck pain/muscle spasm and stiffness, with right arm radiculopathy symptoms. These symptoms significantly affect her ability to function. She is unable to drive or work.

She had a MRI brain and neck scan which shows a C5/6 moderate broad based disc protrusion. She has never suffered from neck problems before.

I would be grateful for your opinion and management of this lady’s pain.”

72 It is unfortunate that Dr Wan’s report does not distinguish between the

accidents, but it is of significance that he does not mention and complaints of

back pain.

73 The report of the Rathmines Physiotherapy and Sports Injury Centre dated 8

October 2013 (Exhibit A P34) indicates that the plaintiff attended on 10

September 2013, complaining of neck pain and dizziness when driving. I note

that this attendance was 3 days prior to the second accident at the time the

plaintiff was driving.

74 The second accident occurred on 16 October 2013 and it is accepted by the

parties that this accident was the more severe of the two, with the plaintiff’s car

hitting a kangaroo and rolling over. The plaintiff was taken to Wagga Wagga

Base Hospital where she was intubated due to a declining Glasgow Coma

Scale. She was referred to the Hunter New England Brain Injury Centre after

her discharge from Wagga Hospital.

75 On the day of the second accident the plaintiff underwent a MRI of her whole

spine which reports as follows:

“There is a small posterolateral protrusion at C5/6 level causing mild central thecal sac indentation. Disc desiccation is seen at L4/5 and L5/S1 levels. No other significant disc herniation is seen. The spinal cord appears normal in signal intensity. No evidence of cord compression is seen. No obvious spinal canal abnormality is noted. No evidence of any bony or paraspinal imjury is noted.

Impression:

No definite cause of patient’s symptoms is seen.” (Exhibit A P36)

76 The Wagga Base Hospital Discharge Referral (Exhibit A P37) records under

Summary of Care the following;

“…..She was stabilized in ED and was intubated due to decreased GCS. She was extubated the following day. She complained of headache and was observed to be unable to move her right lower limb. She was investigated with CT head, cervical spine, chest, and abdomen which did not show any injuries…..”

77 A physiotherapy report (Exhibit A P112) records the date of assessment as

07/01/2014 and date of injury as 17/10/13 (the second accident) records the

following;

“Mrs Qian completed a physiotherapy screening assessment at HBIS on the 07/01/2014 following her accident in October 2013. During the assessment Mrs Qian reported physical limitations were inconsistent with her demonstrated limitations.

A vestibular assessment was completed as Mrs Qian reported episodes of dizziness initially after her accident and have continued to occur. Mrs Qian’s reported symptoms were not reproducible on vestibular assessment.

Her symptoms may be due to a decreased vision/decreased visual processing. Her case manage has been made aware of this and is planning on referring Mrs Qian to an optometrist.

At this stage physiotherapy input is not appropriate as Mrs Qian’s level of function is inconsistent with her demonstrated abilities on assessment and the nature of the accident. (please refer to her Neurospychology report for further information)

A physiotherapy assessment may be beneficial in the future once her current issues have been assessed and stabilised.”

78 The report of Dr Giblin dated 29 November 2017 (Exhibit A P136-139) states

as follows under the heading diagnosis;

“Based upon her history and examination, she has the provisional diagnosis of a soft tissue injury to her cervical spine, and right shoulder and a soft tissue in jury to her low back with referred symptoms to the right lower extremity, reasonably causally related to the subject motor vehicle accident.”

79 The report of Dr Con Kafataris dated 8 December 2014 (Exhibit 1 P9) states as

follows:

“The Claimant essentially presents with non-verifiable symptoms that she alleges were sustained in the motor vehicle accident. The physical examination is non-contributory and essentially is not consistent with what one would normally expect with a significant disc injury, facet joint injury, vertebral injury, or intraarticular pathology of the hip and knee joints. There is no evidence of radiculopathy or neurocompression. The Claimant’s symptoms are relatively non-specific and cannot be verified via objective findings either on physical examination or medical investigation.”

80 Unfortunately the transcript of joint conference between Drs Giblin and

Kafataris (Exhibit 2) is of little assistance. On my reading of the transcript of the

teleconference, the only thing they can agree on is that there was no complaint

of neck pain when they both examined the plaintiff.

81 The medical evidence presented on behalf of the plaintiff is not particularly

helpful in determining what injuries the plaintiff sustained in the first accident,

and what related injuries she continues to suffer from now. It is alleged that the

plaintiff has suffered a gynaecological injury, amenorrhea, as a consequence of

the first accident, as her periods stopped after the first accident. The letter from

Dr Steven Tan, Obstetrician and Gynaecologist of 1 June 2015 (Exhibit A P78)

addressed to the plaintiff’s GP, Dr Wan states as follows:

“Xian is 42 years of age who has been generally fit and well up till her two motor vehicle accidents in 2013. Xian developed severe stress and anxiety since her accident and is under the care of a psychologist. Xian has been unable to drive due to stress since her accidents.

Xian’s periods have been mostly absent for 18 months. She trialled a course of Progesterone which did elicit a withdrawal bleed but Xian is very reluctant to continue any hormonal therapy due to headaches and the desire to be hormone-free.

…..I have reassured Xian she is medically and biochemically well. Her amenorrhea is likely secondary to severe mental stress supressing her ovarian function.”

It is also alleged that the plaintiff has a psychological condition as a consequence of the first accident and the injuries sustained in that accident. I have seen the referral letters to Ms Isabel Tan, psychologist, but there is no report from her, or any other practitioner indicating whether or not she has in fact had any psychological injury or treatment for it.”

82 The evidence given by the plaintiff can be summarised as she feels that any

injuries she sustained in the second accident have resolved, and that it is as a

consequence of the injuries that she sustained in the first accident, that is

stopping her form working, and leave her with significant pain and disability.

83 It was apparent to me when giving evidence, that the plaintiff spoke far better

English than she suggested. On occasions she would answer the question

before it had been translated, yet on other occasions wanted every word to be

translated. This was particularly so when she was asked questions that may

not have been supported by any other evidence. She was not, in my mind, a

reliable witness, and in my view was severely exaggerating her injuries and

symptoms after the first accident, and deliberately playing down the symptoms

and disabilities she experienced after the second accident.

84 I have difficulty accepting her as a witness of truth.

85 The question of how a trial judge deals with a plaintiff’s evidence in

circumstances where the judge is not confident as to the honesty of such

evidence was dealt with by Black J in In the matter of Colorado Products Pty

Ltd (in provisional liquidation)[2014] NSWSC 789 at [10]:

“I recognise that, as the Plaintiffs point out, the credibility of a witness and his or her veracity may be tested by reference to the objective facts proved independently of the testimony given, in particular by reference to the documents in the case, by paying particular regard to his or her motives, and to the overall probabilities: Armagas Ltd v Mundogas SA [1985] 1 Ll R 1 at 57. I have also had regard to Atkin LJ's observation in Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") [1924] 20 LI L Rep 140 at 152 that "an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour", recently cited by Sackar J in Craig above at [141]. In Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34], Keane JA (as his Honour then was) similarly noted that:

"[u]sually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation."”

86 Based on all the evidence, I make the following findings:

(1) The plaintiff sustained a soft tissue injury to her neck in the first accident, which may have caused some referred symptoms into her right arm.

(2) The plaintiff was initially unable to work due to neck pain up until about mid October 2013. The plaintiff did not feel comfortable driving due to dizziness until about mid October 2013.

(3) By mid-October 2013, and certainly by at least 16 October 2013, the plaintiff had returned to driving and was capable of driving long distances. The second accident occurred when she was driving from

Sydney to Mildura. The fact that the plaintiff was driving a long distance to fulfil a pre-existing commitment is, to my mind, exemplary of her condition in at least the days prior to the second accident, being such that she could, in fact, drive long distances and work as a manager of her massage business.

(4) There is no evidence before me that the gynaecological condition is related at all, or solely to the first motor vehicle accident, or that the plaintiff is having any treatment for that condition.

(5) The only evidence that the plaintiff is suffering from a psychological condition, now, or has done after the first accident is contained in referral letters from her GP, Dr Wan, to Ms Isabel Ma psychologist. There is no report from Ms Ma or any other psychologist or psychiatrist. I am not satisfied that the plaintiff suffers from any psychological or psychiatric condition.

(6) There is no evidence to satisfy me that the plaintiff sustained a back injury in the first accident. There is no reference to her having symptoms in her back recorded in the ambulance notes, the Gympie Hospital notes, and I note that her back was not radiologically investigated at the Gympie hospital. In the days immediately after the first accident, the records and certificates from her GP, Dr Wan, make no mention of her having complained about back pain. I do not accept that the plaintiff injured her back in the first accident, nor do I accept that she suffered any injury to her right shoulder and arm.

(7) The only qualified report on the plaintiff’s behalf is that of Dr Peter Giblin. Unfortunately Dr Giblin does not make the causal connection between the plaintiff’s presenting complaints on his examination of her, with the first accident. His opinion does not distinguish between the two accidents, and as such is of little utility in my determination of the consequences of the first accident.

(8) Dr Kafataris’ report does not assist the plaintiff’s case as he is of the opinion that the plaintiff has not sustained any significant injuries in either accident and that he can see no reason why she could not return to her previous duties.

(9) The transcript of the expert evidence is of little use, and it has not persuaded me as to what injuries and disabilities flowed from either accident, cumulative or individually.

(10) Any effects of the minor neck injuries sustained in the first accident have been completely subsumed by the effects of the second accident.

QUANTUM

87 The plaintiff’s damages are to be assessed pursuant to the provisions of the

CLA and the associated Regulation (the Regulation).

General Damages

88 I accept that the dominant injury is a moderate cervical injury and falls under

item 87 of the fourth schedule to the Regulation. That provides for an Injury

Scale Value of 5 to 15. I do not accept that there should be any uplift on the

basis of multiple injuries, as I do not accept that there were any other injuries

occasioned to the plaintiff as a consequence of the first accident.

89 The applicable amounts are to be found in Table 5 of Schedule 4.

90 In making my determination I have taken into account the plaintiff’s age as at

the date of the accident and the date of the trial, the suffering that I accept that

she has endured and her likely prognosis.

91 According to the commentary to item 87 and ISV near the top of the range will

be appropriate if;

(a) there is a disc prolapse for which there is radiological evidence at an anatomically correct level; and

(b) there are symptoms of pain and 3 or more objective signs that are anatomically localised to an appropriate spinal nerve root distribution -

(i) sensory loss;

(ii) loss of muscle strength;

(iii) loss of reflexes;

(iv) unilateral atrophy; and

(c) the impairment has not improved after non-operative treatment.

92 I determine that the appropriate ISV, after taking into consideration all matters

referred to above, is 15. This realises an award of $ 24,300.00.

Economic Loss

93 The evidence in respect to the plaintiff’s pre-accident earning and post-

accident earnings was very difficult to understand. I have trouble in accepting

that the plaintiff was earning the sums she alleges prior to the first accident, as

I do not accept that she was telling the truth when giving evidence about these

matters. The plaintiff clearly understood more English than she let on as

evidenced by her answering questions in English before they had been

translated to her. I am of the view that she was either fabricating, or at least

grossly exaggerating her earnings prior to the first accident.

94 I also find that she was able to return to work by at least 16 October 2013, as

that is what she was in fact travelling to do when she had the second accident.

I find that she had no ongoing economic incapacity after that date which arose

from the injuries sustained in the first accident.

95 I do accept that between the two accidents the plaintiff’s earning capacity was

to some extent compromised as a consequence of the neck injury. Having

regard to all the evidence I believe it is appropriate to allow $5000.00 for that

period. As the plaintiff was self-employed there will be now award for past loss

of superannuation.

Out of Pocket Expenses

96 There was no agreement as to past out of pocket expenses. I note the plaintiff

tendered a Medicare Notice of Past Benefits (Exhibit E). It does not distinguish

those items claimed as related to which accident. Doing the best I can, and

based on the concession made by the defendant in its Schedule of Damages, I

will allow $1,000 for out-of-pocket expenses.

97 There is no evidence before me that the plaintiff is undergoing any medical

treatment at present for the injuries sustained in the first accident. I therefore

make no allowance for future out of pocket expenses.

98 The plaintiff is entitled to a judgment for $30,300 made up of $24,300 for pain

and suffering, $1,000 for past out-of-pocket expenses and $5,000 as for past

economic loss.

ORDERS

99 Judgment for the plaintiff against the defendant in the sum of $30,300.

100 Written submissions as to the question of costs to be forwarded to my

Associate within 14 days of today.

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