Seary v White (No 4) [2008] NSWDC 20

New South Wales District Court

CITATION: Seary v White (No 4) [2008] NSWDC 20 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 18, 19, 20, 21, 22 June, 23, 24 August, and 14, 15, 16 November 2007

JUDGMENT DATE: 8 February 2008

JURISDICTION: Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: Verdict and judgment for the plaintiff for $569,912.00

CATCHWORDS: DAMAGES - whether the plaintiff sustained any significant cognitive deficits that result from an irreversible traumatic brain injury caused by a motor accident - conflicting neurological evidence - conflicting psychological evidence as to the results of psychometric testing - MAS certificates not probative of causation - consideration of the nature, effect and duration of a psychological condition caused by the motor accident - economic loss - no direct evidence of probable earnings - evaluation of the worth of a loss of capacity to earn

LEGISLATION CITED: Motor Accidents Compensation Act 1999: s 128, s 131

Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347 Ivkovic v Australian Iron & Steel Ltd [1963] SR (NSW) 598 at 607 Jones v Schiffman [1971] HCA 52 Linsell v Robson [1976] 1 NSWLR 249 at 259 CASES CITED: Mafra v Egan (No 1) (2006) NSWDC 22 Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 639 Paff v Speed [1961] HCA 14; (1961) 105 CLR 549 at 566 Pham v Shui [2006] NSWCA 373 at [90] Qantas Airways Ltd v Lisica [2007] NSWCA 371 State of NSW v Moss [2000] NSWCA 133 at [71]

TEXTS CITED: Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, para [1.9.18],

PARTIES: Elizabeth Anne Seary (Plaintiff) Glen White (Defendant)

FILE NUMBER(S): 4757/06

COUNSEL: Mr P Webb SC and Mr Sewell (Plaintiff) Mr K Rewell SC (Defendant:)

SOLICITORS: Wyatt Attorneys (Plaintiff) TL Lawyers (Defendant:)

JUDGMENT Introduction

1. Elizabeth Seary was injured in a motor accident on 13 November 2002, and commenced these proceedings against the defendant alleging negligence. Breach of duty was admitted and the dispute before me is limited to the assessment of damages. Mrs Seary claimed that as a result of the accident she sustained permanent injury to the brain, orthopaedic injuries to her neck and back, and a secondary psychological condition. The defendant disputed the extent and effect of her injuries, and in particular denied that she suffered a traumatic brain injury resulting in any cognitive deficits.

2. The principal issues for determination in relation to Mrs Seary were: · Whether she has any significant cognitive deficits that result from an irreversible traumatic brain injury caused by the motor accident. · The nature, extent and effect of her orthopaedic and other physical disabilities. · The nature, extent and effect of her psychological condition. · The extent of any lost earning capacity. · The extent of any need for domestic care. · The extent of her non-economic loss. · An appropriate award of damages.

History 3. Elizabeth Seary was born on 21 January 1973. She was 29 at the time of the motor accident and is now 35. She had a normal, unremarkable childhood, growing up in southern Sydney, living with her parents and sisters, she being the middle daughter of three. She described herself as an average student at school, who related well to her peers, if not her teachers. She left school in 1988 after completing Year 10.

4. As a teenager and young woman she was a bright and cheerful person. Her mother described her as outgoing, happy and talkative, if slightly rebellious, having occasional 'issues' with teachers. Her older sister, Jennifer, described her as bright, chatty and opinionated. Her old schoolfriend, Stephanie Oud, described her as outgoing, confident, friendly and quick-witted, and as someone who was 'with- it' and 'on the go'. Her mother-in-law, Mrs Bringolf, knew her from the age of 14. Mrs Bringolf is someone who has worked extensively with disabled people. She described Mrs Seary as bubbly, full of life, and very creative. Her partner, Darrell Bringolf described her as confident, active, outgoing and chatty. Her sister-in-law, Jenette, described her as bright, giggly, uncomplicated and easy going.

5. Mrs Seary met her partner, Darrell Bringolf, when she was 18. They went out together and then started living together in 1992, at his grandmother's house and later in a house of their own. They have been together ever since, and now have a family with two children, Matthew and Jessica.

6. She worked in various jobs after leaving school, until mid 1990, when she started but did not finish a TAFE course. From 1991 she worked more or less continuously until the birth of her first child, Matthew, in July 1996, at the age of 23. She then had a year away from work caring for the baby. It appears that she underwent a period of post-natal depression. She resumed working on a part-time basis in June 1997, and continued working for nearly two years until the birth of her second child, Jessica, in April 1999. She had a short period of maternity leave and resumed working for some 9 months, juggling work and parental responsibilities. But it all proved too much and in May 2000 she stopped working, and spent the next 18 months at home with her children. She again suffered from post-natal depression for a period. In November 2001 she attempted to re-enter the workforce as a night-packer at Woolworth's. She stuck at this for 9 months but it proved too difficult, and from May 2002 she was not involved in any paid employment. But she did engage significantly in activities associated with the Menai Primary School, Matthew's school.

7. Her involvement in activities at the Menai Primary School from May 2002 became quite extensive. She did reading work, English tutoring for Year 3 children, and had some involvement in the P &C. She also took over the job of managing the school uniform shop, involving one or two days a week, which she reportedly did efficiently and without any difficulties.

8. The family lived comfortably from Mr Bringolf's wages, but the finances needed to be watched closely. Their social life revolved around her family and her husband's family, birthdays, Christmas and the like. They occasionally had people over or went out, but not often due to the age of the children, and because they did not have the money for restaurants or baby-sitters and the like.

9. Mrs Seary was not actively looking for work, but she said that if something had come along that fitted conveniently with her other responsibilities she would have taken it, as it was their ambition to own their own home, and her intention to eventually resume working, once the children were older. Her plan was to work two days a week once Jessica was four, and in kindergarten, then when Jessica started at school, to look for full-time work, perhaps doing the sort of registration work she had first done after school, or teaching.

10. Prior to the accident, Mrs Seary managed all the family finances, attending to the budgeting and payment of bills. Her husband's wages were paid directly into an account in her name, which was operated solely by her. She used a home computer on which she was quite proficient, and where she kept all the records.

The accident on 13 November 2002 and subsequent hospitalisation 11. Mrs Seary has no independent recollection of the accident on 13 November 2002; however there is no dispute as to the circumstances. She had parked her car in the street outside the Menai Primary School, where she was collecting Matthew after school. At about 3.30pm she was standing at the driver's door of her car as the defendant's truck, a removalist van, was passing, when suddenly the rear door of the van swung open and struck her, knocking her to the ground.

12. She was unconscious for about two minutes, but then regained consciousness. A medically trained bystander attended to her and an ambulance was called. When ambulance officers arrived some 18 minutes later, she was fully conscious, and her Glasgow Coma Score was 14/15. They observed swelling to the occipital skull and a 4cm laceration to her forehead. There were also multiple abrasions to her back and left shoulder. A neck brace and backboard were applied and she was taken to the St George Hospital. By 4.45pm she was alert and her Glasgow Coma Score was a maximal 15/15. She was not complaining of neck pain. Her multiple abrasions were attended to and the wounds at the back of her head and over her left eye were cleaned and dressed. Various tests were undertaken. These included a CAT scan of the cervical spine that showed no abnormalities, and a cerebral CT scan, the report from which recorded:

" There appears to be a very shallow surface collection overlying the right parietal region. There could be a tiny underlying contusion. There is no other evidence of any intracranial blood. No fracture of the cranial vault is seen."

13. She was diagnosed with concussion and kept at hospital for four hours under observation before being allowed to go home, for review by her local doctor.

14. Mrs Seary came under the care of her local general practitioner, Dr Komonen, who she saw on Friday 15 November 2002. His examination on that day revealed 'no distress', and that her neck and upper limbs were normal apart from some pain in the left shoulder that he later ascribed to a spasm in the trapezius muscle.

15. Over the next few days her headaches worsened and she began to experience dizziness and a ringing in the right ear. On Wednesday 20 November 2002 her mother-in-law took her back to the emergency department of the hospital after she had been found lying on the floor at home, crying. The intern who attended to her found nothing wrong, but organised a further precautionary head CT scan. This also turned out to be completely normal.

The initial post-hospital history 16. Dr Komonen continued to supervise Mrs Seary's post-accident care, and he saw her regularly over the rest of December 2002 and on 3 January 2003. According to Dr Komonen, it was not until 20 January 2003 when she saw Dr Michelle Driessen, another doctor from the practice, that she made any complaint of dizziness. Dr Driessen immediately referred her to an ENT specialist, Dr Becvarovski, who saw her the next day. The ENT specialist diagnosed left benign paroxysmal positional vertigo, as to which he anticipated a 'positive outcome'. He performed a 'particle repositioning manoeuvre', provided her with an information sheet and appropriate 'post-manoeuvre' instructions. There was a follow-up visit on 3 March 2003 when she was reported as having been asymptomatic for the previous two weeks. An examination revealed nothing abnormal, and her hearing was normal. Dr Becvarovski nevertheless ordered an MRI scan of the brain and blood tests. The MRI turned out to be within normal limits and an MRA of her cerebral vascalature was also normal. Dr Becvarovski next saw Mrs Seary on 20 May 2003. Her vertigo had resolved but there was some remaining mild dysequilibrium, which he related to the development of chicken pox. However, when he saw her again on 27 June 2003, the vertigo had returned, associated with a mild headache. He performed the Epley manoeuvre again that day and again on 16 July 2003. The initial response was again positive. However, her vertigo returned in 2004, when in April Dr Becvarovski referred her, for a 'senior opinion', to Dr John Tonkin and to Dr Phillip Chang. Mrs Seary, however, failed to consult those doctors, and did not return to Dr Becvarovski.

17. In the meantime Dr Komonen was sufficiently concerned by Mrs Seary's complaints of headache, light-headedness, intermittent dizziness, memory disturbance, and of neck pain that was persisting notwithstanding physiotherapy, that in mid 2003 he referred her for neurological and psychological assessment involving neuropsychometric evaluation.

18. At home she had become withdrawn and listless, vague and forgetful, and on many occasions 'not quite there'. She was moody and irritable. She tired easily and slept a lot, particularly in the afternoons. She was unable to concentrate and found using the computer difficult, forgetting passwords, locking herself out of programs and generally not coping. She was making mistakes, forgetting to pay bills and the like. Often the shopping and other chores did not get done. Mr Bringolf initially put it down to her not being well, but when she continued making mistakes he eventually had to take away her credit card. He involved himself directly in the family finances, reorganised the home computer for payment of accounts and took control of the family shopping and daily routine.

19. There had been other episodes of concern, including Mrs Seary attending appointments at the wrong time, getting lost, and arriving late for soccer matches. On one occasion, Mrs Bringolf received a telephone call from the school that no one had collected the children. She went to the house but Mrs Seary was missing She was eventually found around the corner in her parked car. There were also problems at the school uniform shop, where Mrs Seary was making mistakes, arriving late and not keeping the operation running smoothly as before. The situation at the school became sufficiently bad that a group of mothers from the P&C was driven to form a committee that then confronted Mrs Seary and forced her resignation from the uniform shop.

20. A neurologist, Dr Dennis Cordato, saw Mrs Seary on 12 June 2003, but found no focal neurological signs. He diagnosed a mild head injury with a superimposed concussion syndrome and said 'she still has clinically and subjectively not fully recovered'. He ordered an EEG owing to her complaints of lapses in concentration, but this proved normal. In his next report he put her memory problems down to the post concussion syndrome and 'probably a super-imposed post-traumatic stress disorder' for which he agreed she should continue with counselling. He noted other symptoms of occipital scalp pain 'referred from her neck' for which he performed bilateral greater occipital nerve blocks, involving injections of Marcaine, in August. This treatment produced benefits for just over a week then the pain returned. Nevertheless he gave her another dose in September, and this time the benefits lasted two to three weeks. He repeated the treatment in November but when these again proved ineffective he discontinued that form of treatment. So he recommended physiotherapy, to control her symptoms, and 'supplementation of a pain modifying agent'. He gave her Neurontin to take and ordered an MRI of the cervical spine, which also proved normal. He saw her again in February 2004, and now thought there might be 'occipital neuralgia' in the scalp region itself. He recommended a 'multimodal approach' to control her symptoms and suggested she trial hydrotherapy, with acupuncture to the occipital scalp region. She 'chickened out' of the acupuncture. When the insurance company would not approve continued use of Neurontin, Dr Cordato started to trial Tegretol in its place, in April 2004. She responded badly to this drug and stopped using it, but still continued to see Dr Cordato. In November 2004 he decided to stop using drug therapies, and wanted to start Botox therapy and sent her off to see a colleague, Dr Con Yiannikis for an opinion. The evidence does not disclose whether she saw Dr Yiannikis. She did, however, stop seeing Dr Cordato.

21. It is clear to me that the involvement of Dr Cordato proved to be a complete waste of time and money. His evidence as to any diagnosis has not the slightest probative value, and the usefulness of his treatment of Mrs Seary most questionable. This saga, however, is another piece of history that reinforced the views I formed, to which I will come, as to the more probable cause of Mrs Seary's problems.

22. At about the same time as she was referred to Dr Cordato in mid 2003, Mrs Seary had also been referred to a clinical psychologist, Mr Chris Lloyd. He saw Mrs Seary on 15 May and 3 June 2003 and administered psychometric tests. He also referred her to Mr Michael McMahon, another clinical psychologist, for neuropsychological testing. Mr Lloyd initially diagnosed a post-traumatic stress disorder with depression and anxiety. He also thought there was some impairment to her cognitive function due to her memory problems, but deferred formulating any strategy to assist until the specific deficits were identified by Mr McMahon's neuropsychological report (see Exhibit A at pages 113 and 132). After receiving Mr McMahon's neuropsychological report and discussing it with him in September 2003, he moved away from this assessment and limited his diagnosis to a continuing psychological condition (page 120). However, he continued to see Mrs Seary, and had some 60 consultations with her between May 2003 and 16 June 2005, when for reasons he does not explain starts referring to a brain injury (page 132). He does make a reference to reports by Dr Teychenné, which might perhaps be the source of his views in that regard (page 143).

23. Mr Lloyd's reports are long, rambling and repetitive and involve very little of objective diagnostic value. A reading of his reports indicates that much of his treatment amounted to little more than handholding and reassurance, all of which seems to have been of little ultimate benefit to Mrs Seary. There is in his material a poignant letter from Mrs Seary dated 3 September 2004 that is illustrative of their interaction, and gives further insights into her mental state (page 126):

" Dear Chris,

Where do I start? It has taken me since 24 Aug to complete this letter to you. Darrel, Joanne (my neighbour) and my Dr have all bugged me about seeing you for some weeks now. For some reason I can't seem to so I opted for this letter. I seem to be losing faith in my recovery or that any of my anxieties will go away. They are worse if anything. Maybe I can get some help through this letter. I'll try as best I can to be as clear as I can but if I wander bare (sic) with me please.

Firstly the anxiety about the trucks has worsened, I think starting a few weeks back when I had to pull over to fix my wipers on the car a truck drove past as I was doing this and I "fliped out" (sic), lucky my mum was there to help me calm down. Also there is a truck that drives around local that does not use his safety chain, every time I see him I freeze. Literally! I can't move no matter how much I will myself, until he is long out of sight. He delivers to the school so I asked Sue, she runs the canteen, to have a word with him. Don't know if this will help but it's a start.

Then there is school. I have been doing less and less there maybe because of the truck maybe something else I don't know. I am avoiding Dr's appointments and tests and even phone calls are hard.

I'm sick of being confussed (sic) and scared! I have improved some since I first started writing this as my mum came to help out for a few days but I'm still reluctant to go further than the local shop. I have gone to Miranda a few times but only alone and for a purpose, and they had me shaking the whole way there.

Please help.

Elizabeth Seary "

24. Mr Michael McMahon, a clinical psychologist, was asked by Mr Lloyd to carry out a neuropsychological assessment on Mrs Seary, which he carried out over three consultations on 18, 23 and 27 June, and sent a report dated 24 August 2003. (Exhibit A at page166ff). The defendant placed much weight on this report, and counsel for Mrs Seary was correspondingly critical of it. On the basis of his testing and observations of Mrs Seary, Mr McMahon noted inconsistent and variable results. He rejected the notion of cognitive deficits attributable to her head injury and squarely attributed her symptoms to non-organic factors, and recommended psychological therapy. He expressed his opinion thus:

"It is my opinion that Mrs Seary has not suffered any global intellectual decline as a result of her head injury on 13 November 2002. Although she demonstrates inferior verbal learning skills (relative to her ability to learn and retain visual information) and 'working' memory deficits, performance variability suggests that non-organic factors are more likely to be the cause and that further psychological therapy should lead to improvements. Should expected gains in cognitive functioning not concur with lowered levels of depression and anxiety then reassessment in 9-to-12 months time is recommended to better determine causation."

25. There seems little doubt that Mrs Seary changed dramatically and significantly following her accident, particularly during the first half of 2003. There was considerable evidence from her family and friends as to the extent to which her personality changed and as to the many and various problems and difficulties that confronted her during the early years following her accident, which I do not propose to review in detail here. Suffice it to say that, at least for that period, all those who came into contact with her, both lay and professional people, unreservedly accepted her as genuinely suffering from a debilitating condition, the effects of which were multi-dimensional and far-reaching. She clearly underwent a period of considerable adversity, as to which she did not appear to obtain much professional utilitarian assistance. Equally clearly, on my view of the evidence, there has been gradual but steady improvement from then on till the present.

26. What is less clear is the cause and extent of her problems, and the prognosis for the future.

The subsequent specialist medico-legal evidence 27. The evidence established overwhelmingly that the conventional criteria for diagnosis of a traumatic brain injury include: · Radiological evidence of structural damage to the brain. · A clinically significant period of retrograde or post-traumatic amnesia. · A clinically significant period of reduced consciousness, as to which the Glasgow Coma Scale is the usual measure. · Consistent abnormalities revealed by neuropsychometric testing.

28. Only Dr Teychenné seemed to spurn these diagnostic techniques as appropriate, and I will come to his evidence in due course.

29. It was also generally accepted by the medico-legal experts that according to conventional medical wisdom, an adult who suffers a traumatic brain injury will effect maximal recovery during the first 12 months after injury, and further recovery is not to be expected after two years (T 497.39ff).

30. The substantive dispute in this case related to the last of these criteria, namely whether the neuropsychometric testing was demonstrative of genuine cognitive deficits or not, there being insufficient evidence to satisfy anyone, other than perhaps Dr Teychenné, that a positive diagnosis could be derived having regard to the first three criteria. It was well established that Mrs Seary was unconscious for a few minutes at most, which all the doctors, other than Dr Teychenné regarded as insignificant. The Glasgow Coma scores taken by the ambulance officers and upon admission to the hospital were normal. Nor was there any evidence of a clinically significant period of either pre-traumatic or post-traumatic amnesia. The only evidence of any radiological abnormality was the reference in the CT scan taken at the hospital hours after the accident to the 'very shallow surface collection' overlying the right parietal region and the possibility of a tiny underlying contusion. It was clear that no one would diagnose that of itself as evidence of a significant brain injury, but in any event all subsequent tests carried out on Mrs Seary in relation to the brain were normal, and no abnormalities were ever evident.

31. It was also generally accepted by the medical experts that MRI is extremely sensitive in picking up small contusions or haemorrhages in the brain that can be seen after head injuries, usually those of a moderate to severe degree. But it is possible for microscopic injury to occur that cannot be radiologically detected, although such a situation is rare (Dr O'Neill at T 486.24).

32. Thus, in the absence of detectable physiological or organic brain impairment, diagnosis of the aetiology of symptoms is undertaken as an exercise of clinical judgment, based on experience, expertise, assisted by the evaluation of such evidence as there is available, including the results of neuropsychometric testing (T 221.42 - 3, 231.48 - 51).

33. Another known and accepted phenomenon is that once the initial trauma to the brain has settled the only trauma-related progress that can occur is positive progress and a person's cognitive capacity will improve, not deteriorate, over time (T 173.13ff). Thus, according to the literature, most patients with mild head injuries recover within weeks or months without specific intervention, but a percentage continue to have disabling symptoms. However, only improvement can be expected, not deterioration, so that if a patient's performance under psychometric testing in fact becomes worse, one would look to other factors to explain the lack of improvement, such as anxiety, depression or demotivation (T 173.28ff).

34. Any suggestion, however, that neuropsychometric testing can objectively evaluate the effects of any brain injury from a closed head trauma, would need to be treated with suspicion in the context of the evidence presented in this case. An extract from the article by Michael P Alexander (Exhibit G), which became a focus in these proceedings, sums up my point (at page 6):

"Because the cognitive symptoms are similar to those of the early neurologic disorder…and because they seem to flow seamlessly from the point of injury, many clinicians also assume that they must be neurologically based. When patients are sent for neuropsychological evaluation, the problem may be compounded. Not surprisingly, when patients who complain of poor concentration and memory are tested, their concentration and memory are impaired. Furthermore, they perform badly on complex executive tasks. The critical point is that these complaints, and even the neuropsychological findings, have no diagnostic specificity. They are equally compatible with diagnoses of depression, anxiety and chronic pain. Avoid the logical fallacy: because everyone with a TBI (traumatic brain injury) from closed head injury has impaired concentration, it does not mean that in everyone with impaired concentration after closed head injury the cause is neurologic."

Earlier in the article, he wrote:

"The point at which physiogenesis becomes psychogenesis is hard to establish and may be partly iatrogenic."

35. The medico-legal diagnostic debate that played out before me in this trial on this issue had Dr Teychenné, Dr Rowe and Mr Anthony arrayed in the plaintiff's camp, against Dr O'Neill, Associate Professor Reid and Mr McMahon in the defendant's camp.

36. Mr Anthony, a clinical psychologist recommended by Dr Teychenné, saw Mrs Seary on 3 March 2005, took a history and performed psychometric testing.

37. Mr Anthony did not give oral evidence, but his report of 11 March 2005 formed part of Exhibit A (at page 277). Whilst Mrs Seary's reasoning ability appeared to be intact, he found a number of 'significant cognitive defects' consistent with organic brain damage. He went on to criticise Mr McMahon's report, saying that the main tests he used were long outdated. He did not, however, suggest his results were in any way inaccurate, only that the results were misinterpreted. He in fact noted that the results of testing for intelligence and memory testing obtained by Mr McMahon were similar to his own. Contrary to the view of Mr McMahon that her performance at the 3rd percentile for verbal memory, placing her in the bottom 3% of the population, was most likely due to 'non-organic factors' in the view of Mr Anthony, it was 'highly indicative of organic brain damage'. Notwithstanding Mr McMahon's view, Mr Anthony failed to administer any of the standard reliability tests designed to detect lack of effort, or 'malingering'. The validity of his results cannot therefore be assumed. He simply dismissed her psychological problems as emotional, a result of 'some nervous disposition', merely a reaction to her physical injuries and cognitive impairments that 'could not account for the nature and severity of cognitive deficits found in assessment'. Apart from minimising her psychological condition, this opinion is at odds with the other expert evidence and literature tendered. In the result I found Mr Anthony's evidence unreliable and partisan and I was unable to accept it.

38. In 2006 the defendant qualified an expert in the field of neuropsychological assessment, Associate Professor Reid, a clinical neuropsychologist. He provided a number of reports and also gave oral evidence. He interviewed Mrs Seary and made a neuropsychological assessment on 11 April 2006. At that time he had the reports of Mr Lloyd, Mr McMahon and Mr Anthony but Dr Rowe had not yet become involved. He also had reports from Dr Teychenné and Dr O'Neill. On examination, Mrs Seary was very hesitant and behaved in a somewhat histrionic manner with what Dr Reid described as exaggerated expression of pain and discomfort. He felt that the validity of formal neuropsychological assessment was highly questionable and focussed on assessing her motivation, test taking attitudes and psychological state. The test for suboptimal motivation revealed her as not performing to the best of her ability. Dr Reid formed the view she was exaggerating her symptoms, and her problems were psychological in nature.

39. Dr Reid carried out a second assessment of Mrs Seary on 3 August 2006 and he again found a maligned performance in the motivational tests. He considered the evidence of exaggeration was compelling, to a degree where he could now state she was malingering her neurocognitive problems.

40. Dr Rowe, a clinical neurophysiologist and consulting psychologist, was then qualified on behalf of Mrs Seary. He also provided various reports and was called to give extensive oral evidence. He performed various tests on 17 November 2006. He first undertook neuropsychological testing. This was performed in unconventional circumstances involving the use of a computerised and automated format, devised by the Brain Resource Company (BRC), a company with which Dr Rowe is involved. Testing is performed by placing the examinee in a sound-deadened room with a touch screen into which answers are entered on screen. Rather than conduct a face-to-face examination, the examiner watches by means of a one-way mirror or a closed circuit television camera, and communicates via an intercom system.

41. After administering neuropsychological tests and interviewing Mrs Seary and Mr Bringolf, Dr Rowe proceeded to administer certain psychophysiological tests involving the use of EEG, designed to measure electrical activity in the brain. This process involves comparing the individual's results to a normative database kept by the Brain Resource Company. This method was said to examine functional brain topography by utilising spatial measures of baseline cortical activity and information processing activity.

42. Dr Rowe concluded:

"Mrs Seary's presentation and objective psychophysiological and neuropsychological deficits, identified by comparison with a large normative database, are consistent with a diagnosis of traumatic brain injury and persisting organic damage that has not resolved…

Although, some of Mrs Seary's neuropsychological and psychophysiological findings are not necessarily unique to traumatic brain injury, her symptoms, history, differential diagnoses, and by a process of elimination other diagnoses can be ruled out."

He went on to specifically exclude her psychological state as accounting for her neuropsychological and psychophysiological abnormalities.

He also went on to say that her persisting injury can be characterised by organic damage to the structure and the function of the brain and concluded:

"By definition, loss of consciousness and post concussive symptoms as reported, in addition to indications of possible parietal contusion, suggests organic processes and damage to the structure and function of neurons…"

43. I will return to Dr Rowe's views later, but in the meantime I record that his use of EEG in conjunction with neuropsychometric testing was dismissed by all the other experts as unproven as a diagnostic aid, and not in conventional use, clinically, anywhere else in Australia. Dr Teychenné went so far as to describe it as crude. Whilst there was some documentary support for the technique, I could not be satisfied that the use of EEG had some advantage over the traditional pencil and paper techniques such as to render it somehow more objectively reliable.

44. In his first report of 24 November 2006, Dr Rowe noted that he had been given a copy of Dr Reid's report of 3 August 2006, as to which he made little comment. (It appears he was not given Dr Reid's earlier reports of 8 May and 12 June 2006, nor was he given Mr Anthony's report of 11 March 2005). However, he wrote a report on 14 June 2007 in which he made a studied attack on Dr Reid's reports and his opinion that Mrs Seary was malingering. He then went on a long apologetic excursion in an attempt to explain away the inconsistent results obtained by Dr Reid.

45. There followed further reports and much oral evidence with each doctor defending his position and attacking the other, a detailed analysis of which is not in my view warranted in these reasons, but to the substance of which I will return later. I will content myself for the moment in observing that I found both these witnesses irritating and poor advertisements for their field of specialty. I regarded Dr Reid, however, as far more objective and practical in his approach, whereas Dr Rowe was more the academic, and an advocate rather than an impassive expert.

46. I turn now to the opinions of the neurologists qualified by the two parties: Dr Teychenné and Dr O'Neill.

47. Dr Teychenné has been a consultant neurologist for some thirty years with impressive qualifications and experience. Following an interview with Mrs Seary in January 2005 at the request of her solicitors, he wrote to them on 17 January 2005 saying (Exhibit A at page 196):

"It is apparent on my assessment of the patient that she has had significant traumatic brain injury with cognitive deficits. I would disagree with the reports that you have forwarded to me where they appear to indicate that she had not had a significant brain injury. It is apparent on my assessment that she has had a significant brain injury. I did not see any reports of the psychometric testing which was apparently normal. I would recommend that she have further psychometric testing particularly detailed testing of her memory function and detailed testing for an executive frontal lobe deficit. I would recommend Mr Anthony at Haberfield as a Psychologist who does quite thorough and detailed accurate assessments of cognitive function after traumatic brain injuries."

I formed a different view about Mr Anthony. I also noted with interest that Dr Teychenné came very quickly to a diagnosis without the benefit of any psychometric testing. Indeed he dismissed the testing as "probably not accurate" without even seeing it (page 201), because it did not fit with his view.

48. In a report of the same date (page 197ff) he referred to the contentious article by Michael P Alexander (Exhibit G), and recorded (page 198):

"In the 15% of mild traumatic brain injury patients who have not recovered they had a persistence of troubling symptoms such as headache, neck pain, dizziness and a risk of permanent, symptomatic, persistent, post-concussive syndrome symptoms, such as dizziness, headache, impaired attention, poor memory and reduced executive functions. They may be irritable, depressed and nervous. The pathophysiology of traumatic brain injury is diffuse axonal injury caused by shearing forces generated in the brain by sudden deceleration. The shearing forces disrupt fragile structures running within the long axis of the brain, primarily axons and small vessels. Axonal injury causes localised transport failures in the axon leading to swelling and often lysis of the axon with Wallerin degeneration."

49. It was clear to me that what Dr Teychenné did was form his view based solely on the history, which fitted nicely into the 15% category of patients who display persistent symptoms post-concussively, but who do not satisfy the conventional criteria for diagnosis of a traumatic brain injury. In so doing he fell into the logical fallacy against which Michael P Alexander warned in his article. The defendant's written submissions put it this way (at paragraph 24): "At its highest, Dr Teychenné's evidence might be read as a statement of opinion that a mild traumatic brain injury may occur without satisfying any of the conventional medical criteria." The reference by Dr Teychenné to 'diffuse axonal injury', however, raised an issue that assumed considerable importance at the trial, in the sense that it led to a whole body of expert evidence, written and oral, being presented to address the suggestion. Dr Teychenné went on in the report to enlarge on the concept of diffuse axonal injury, and explain why it was not detectable by conventional means:

"I suspect that the areas of diffuse axonal injury would be microscopic and thus would probably not be seen on MRI scan of the brain unless the areas were large enough to be picked up…" (page 200).

"I note that she underwent a MRI scan of the brain which did not show any abnormality. This only indicates that any diffuse axonal injury sustained by the patient was microscopic. It was apparent on my assessment of the patient that she did have a traumatic brain injury and had most likely sustained diffuse axonal injury, that is microscopic shear injuries which were too small to be picked up on MRI Scan of the brain…" (page 201).

50. Not unexpectedly, once Mr Anthony's psychometric report of 11 March 2005 came to hand, Dr Teychenné agreed with it (page 210).

51. I come, then, to Dr O'Neill, another eminent consultant neurologist with extensive experience and impressive credentials. He first provided a medico-legal report on 1 August 2005 following his examination of Mrs Seary (Exhibit 3). He carefully reviewed the documentary material, including the ambulance report, the hospital notes, and the reports of Dr Komonen, Dr Becvarovski, Dr Cordato, and Mr McMahon. He came to the conclusion that Mrs Seary had not suffered any permanent impairment of the brain. He explained (at page 4 of the report):

"Certainly the mild closed head injury as described was of enough severity to result in post-concussive symptoms and these were initially present in the form of headache, drowsiness, tinnitus and a relatively prolonged post-traumatic benign paroxysmal positional vertigo. Ultimately, however, the vertigo settled and Hallpike's testing was negative at the time of my examination. An audiogram was normal on 3.3.2003.

I can find no physical cause for the persisting complaints of headache, non-specific episodic dizziness and memory impairment and I believe there is a major psychosomatic component to continuing symptoms.

It seems neck, left arm and left leg complaints were delayed for quite some time after the accident. Indeed Dr Komonen stated that "neck examination was normal" on 15.11.2002. At examination today Mrs Seary had no evidence of neurological dysfunction arising from the cervical spine and nor would this be expected from her radiological studies wherein X rays of the cervical spine (13.11.2002), MRI of the cervical spine (16/2/04) and Nuclear Bone Scan (21.10.04) were all normal.

In short, I can find no physical cause for the continuing complaints which Mrs Seary relates to the accident of 13.11.2002."

Consistent with the iatrogenic theme of Michael P Alexander, which Dr O'Neill labelled 'maladaption' (T 575. 29ff), he went on to say:

"I believe the most important aspect of future treatment is for her treating doctors to explain that neither the nature of the injury nor the investigations provide any support that there could be any physical basis for continuing symptoms and that if she could accept this then those symptoms should eventually settle spontaneously."

Having regard to the views I formed when reading some of the treating doctors' medical reports, in particular those of Dr Cordato and Mr Lloyd, this view struck a chord.

52. Dr O'Neill therefore concluded that at that time the negative psychosomatic factors were considerable and the prognosis was correspondingly poor.

53. When Dr O'Neill provided his second report of 15 August 2007, he also had before him reports from Dr Teychenné, Mr Anthony, Dr Rowe and Dr Reid. None of this additional material caused him to change the conclusions expressed in his original report. He said (at page 4):

"In short, as indicated above, I totally disagree with Dr Teychenne in his speculation that "Mrs Seary has significant brain damage".

I thought it was interesting that on the one hand Dr Teychenne felt Mrs Seary had severe memory deficits and yet he accepted as fact that, in 2005, she was able to recall firstly (in the 2005 report) pain behind the left shoulder and numbness in the left fifth finger and medical aspect of the fourth finger "in the immediate period after the accident" and, secondly (in the 2007 report), that pain had been present in the back and left thigh from "two months after the accident". In fact, of course, there was no record of these (delayed) complaints at the two attendances at St George Hospital or, as far as I could see, in the notes of Dr Komonen at least until 2 April 2003. A precautionary plain x-ray of the neck was undertaken at initial presentation at St George Hospital and that study was normal. In the MRI scan of the cervical and lumbar spine on 16 August 2006 there were no significant abnormalities and certainly there was no radiological substrate for either cervical or lumbar radiculopathies. Dr Teychenne is certainly not regarded by his peers as an expert neurophysiologist and, as intimated in the body of my report, there is concern that his somatosensory evoked potentials are always normal with identical latencies on both sides of the body. No expert neurophysiologist would make a diagnosis of radiculopathies based purely on "recruitment patterns" in the EMG which are totally subjective. It is of interest that Dr Teychenne concluded, on the basis of his neurophysiology, that Mrs Seary had bilateral carpal tunnel syndrome (no symptoms of that in either arm), bilateral ulnar neuropathies and bilateral L5/S1 radiculopathies and yet she has no symptoms whatsoever in the right arm or leg. I believe his comments with effect to the neck, back and limbs can be totally discounted."

54. In relation to the disparate and inconsistent results of all the neuropsychometric testing Dr O'Neill said this (at page3):

"Neuropsychometric assessments are important in attempting to quantify cognitive impairments which might arise after closed head injuries. In genuine cases of cognitive impairment (usually associated with moderate to severe head injuries) it is my experience that neuropsychometric assessments are quite uniform. In contrast, in this case, there were marked discrepancies. I think the most valuable assessment was the original one by Mr McMahon who saw Ms Seary at the request of her treating psychologist…The reports of Mr McMahon and Dr Reid are in agreement with my assessment of Mrs Seary."

He expanded on this theme in cross-examination (T 553.32ff):

"…normally, if it was a mild closed head injury and there was no element of psychological malediction or abnormal illness behaviour, the psychometric reports done by competent people would be very similar and there would be no worsening of psychometric report over the passage of time…there are marked discrepancies in neuropsychometric performance which can't be explained just simply on an organic brain injury."

55. Dr O'Neill also rejected Dr Teychenné's theory as to diffuse axonal injury (at page 4):

"Diffuse axonal injury is certainly found in post-mortems of patients who die from head injury or who die after being in a vegetative state after head injury. Such patients, of course, always have obvious abnormalities on MRI brain scan. It is not clear as to what level of head injury is required to produce minimal diffuse axonal injury. Patients with (mild) head injuries do not, of course, end up requiring post mortems. It is generally accepted that MRI is extremely sensitive in picking up small contusions/haemorrhages that can be seen after head injuries, usually those of a moderate to severe degree. Dr Teychenné's comments about diffuse axonal injury in this case can only be purely speculative."

He expanded on this in cross-examination (T 571.1ff and 571.32ff):

"Any axonal injury that may have taken place purely on speculation in this mild head injury is static and could not have progressed…

It is a matter of speculation as to whether a mild closed head injury in this case resulted in any axonal injury. There is no evidence of it from the basis of the investigative studies. What should not be present, if this was a true pathological injury, is, one, a marked discrepancy in the neuropsychometric assessments, and, two, a worsening of the neuropsychometric assessments…"

56. Dr O'Neill distinguished between transient post-concussive symptoms and permanent organic brain damage (T 503.12 - 37):

Q. Can you distinguish between post concussional conditions and the symptoms of brain injury. What's the difference? A. A concussion is a sort of a - it's a medical term obviously, but its - I don't know what the dictionary says about what concussion is, but what doctors think about in terms of concussion is where there's been a head injury that might produce some headache and some nausea and some vomiting for a few days afterwards or maybe some vertigo. So there was enough severity to cause some symptoms. But usually that kind of concussion is a mild situation from which the patient is going to recover all other things being equal in terms of overall clinical assessment and tests over a matter of some days to weeks.

Q. Is it then correct to distinguish between traumatic brain injury and concussion. They're different things, is that right? A. I think, yes. A concussion is a bit of a nebulous term really. But I've explained it as how a medical person might consider it.

Q. I suppose what I was getting at is, is it accurate to say that the existence of concussion doesn't imply traumatic brain injury? A. Correct.

57. There were, therefore, diametrically opposed views as to the aetiology of Mrs Seary's symptoms amongst the experts. The reputation of psychometric testing as a reliable diagnostic tool was damaged, at least insofar as the diagnosis of organic brain damage not radiologically evident is concerned. Dr O'Neill's expectation of 'reliable uniformity' (T 496.20) was, ultimately a pipe dream.

The psychiatric evidence

58. In 2005 the solicitors for Mrs Seary retained Dr Peter Morse, a consultant psychiatrist, to provide an opinion. He provided several reports and also gave oral evidence. He first saw her on 2 February 2005 at which time he carried out some cognitive testing, in the nature of a 'mini mental state examination' (T255.18). He found 'a surprising impairment' which it was difficult to believe could be due to anything other than 'major extensive brain damage or a total lack of co-operation with the testing and/or exaggeration of her deficits.' Because he did not believe she was exaggerating, he concluded that "her performance in cognitive and other testing could be influenced by what I believe is quite definite evidence of depression and anxiety and lack of confidence", and that "this level of concussion with the subjective distress experienced can have a lasting psychological effect due to the memory of it". Whilst he did not rule out brain damage, for which there was 'subjective evidence', he preferred a diagnosis of major depression accompanied by panic attacks. He did not believe her symptoms were suggestive of a post-traumatic stress disorder.

59. It was only when Dr Morse was provided with the report of Mr Anthony dated 11 March 2005, which he accepted as evidence of brain damage causing cognitive impairment, that he varied his diagnosis. In his report of 13 June 2005, he said:

"In the light of Mr Anthony's report I am of the opinion that this is evidence of some cognitive impairment secondary to brain damage though as I mentioned in my report influenced by her anxious, depressed state..."

He was subsequently also sent Dr Rowe's reports and his view as to brain damage was reinforced, and in his report of 7 June 2007 provided a diagnosis of "Personality change secondary to brain damage", a position from which he to some extent resiled in cross-examination in the light of the video film (T 253.48 - 254.24). He never saw the results of Dr Reid's psychometric testing, which were more aligned to the results of his own tests, having regard to the disproportionate results he obtained, nor was he given Dr O'Neill's reports.

60. In my view, the evidence of Dr Morse did not advance the contention that Mrs Seary suffered any organic brain damage other than some concussional disorder, not involving irreversible brain damage, causing her confusion, headaches, nausea and vomiting, which caused, amongst other things, the need for her to return to St George Hospital on 20 November 2002. Insofar as his diagnosis of a personality change secondary to brain damage was based on the so-called conventional criteria, it was based on inaccurate and incomplete information (see the defendant's written submissions at paragraphs 123 – 126). Insofar as it was based on the results of psychometric testing, it was flawed, for the reasons I have set out elsewhere in this judgment.

61. In my view, therefore, Dr Morse's initial psychiatric diagnosis was more compelling than his altered diagnosis of personality change secondary to brain damage. In the context of the original diagnosis, Dr Morse did not believe there was any evidence that the psychological or emotional factors were playing a part in the causation, continuation or severity of her orthopaedic problems in respect of the neck, head and shoulder symptoms. He did, however, consider that her performance in cognitive and other testing could be influenced by her depression, anxiety and lack of confidence.

62. Dr Morse also considered that the subjective distress associated with Mrs Seary's concussive disorder, including it would seem the paroxysmal positional vertigo diagnosed by Dr Becvarovski, could have a lasting psychological effect. His prognosis for the 'near future' was poor and he felt she would have ongoing difficulties finding work, and would be liable to more severe depression and other emotional problems with further stresses. There should, however, be some improvement in her emotional state with less depression and improvement in social and other activities. He had doubts, however, as to whether she would ever return to her pre-morbid level of functioning.

63. The defendant also obtained specialist psychiatric medico-legal evidence. It first qualified a consultant psychiatrist, Dr Derek Lovell. He provided reports but was not required for cross-examination. He saw Mrs Seary, once, on 3 February 2004, and on the basis of the history provided felt it likely she had suffered from a post-concussional disorder and a recurrence of a major depression which first occurred after the birth of her second child, but which had abated. He excluded a post-traumatic stress disorder. He had been provided with the report of Mr McMahon dated 24 August 2004 and the reports of Mr Chris Lloyd, and concluded that the neuropsychological testing 'did not suggest significant brain damage'. I thought Dr Lovell's report and his assessment of Mrs Seary were superficial and unconvincing. I have discounted his opinion in my assessment of the issues for determination in these proceedings.

64. Dr John Sydney-Smith, another specialist psychiatrist, was qualified in 2007. He provided reports and gave oral evidence. He saw Mrs Seary on 24 April 2007. Counsel for the defendant does not deal with his evidence in his written submissions, but counsel for Mrs Seary seeks to rely on his evidence as supportive of Mrs Seary having sustained cognitive deficits as a result of her accident, and of her honesty (T 403.5). This was at odds with his report, where he described her as an unreliable historian, particularly as regards the severity of her emotional problems after the birth of Jessica. He also considered that she had been affected by the narcotic analgesics she consumed following her accident, which can affect performance on psychometric and neurophysiological testing. He considered there was no evidence of an organic personality change, and rejected the diagnosis of a Major Depressive Disorder. Rather, in his opinion, she suffered an 'Adjustment Disorder with Anxiety, Depressive and Compulsive Features, which represented an exacerbation of long-standing neurotic symptoms'. He went on to say:

"She has complained of varying cognitive problems since the accident. However, these cannot be explained on the basis of a minor head injury…Rather it is likely that they are due to her dependence on Codeine preparations, the fluctuations in her cognitive problems probably correlating with the amount ingested…only after she is withdrawn is her emotional state likely to be amenable to counselling. The withdrawal from these preparations is likely to cure her cognitive difficulties."

It cannot be said, therefore, that this doctor supported Mrs Seary's case that she sustained irreversible organic brain damage. In his second report, Dr Sydney-Smith confirms his view that the documentary evidence was supportive of a mild concussive head injury that would not be expected to produce any neuropsychiatric sequelae. Such deficits as she has exhibited are 'neurotic or drug induced or a combination of the two' (T 405.39).

65. In cross-examination, Dr Sydney-Smith conceded that the history he obtained from Mrs Seary as to her codeine intake was wrong if it is assumed that the only codeine she consumed was what Dr Komonen prescribed for her. His opinion, insofar as it is dependent on any codeine dependence is, therefore, suspect and I discount it to that extent. But it remained his view that her deficits were not the result of a traumatic brain injury (T 405.30), and as such, amenable to improvement or resolution (T 405.46 - 49).

66. Whilst Dr Sydney-Smith had not seen any of Dr Teychenné's reports, he was aware of Mr Alexander's article (Exhibit G), and dismissive of it (T 401.38). He said:

"Subsequent studies of people with a post-concussion syndrome have indicated that it probably reflects a neurotic constellation (of symptoms) rather than brain damage"

67. Dr Reid also gave evidence on the psychiatric aspects of Mrs Seary's presentation. His views on her psychiatric condition relate more to the issues surrounding to the quantification of her damages and I will return to that aspect of his evidence later.

The video film (Exhibit 1)

68. The defendant undertook video surveillance of Mrs Seary in relation to her activities during May 2007, as depicted in the film (Exhibits 1A and 1B). This shows her driving her children to school on 1 May 2007 including walking and getting in and out of her car without difficulty. On 2 May 2007 she is captured filling her car with petrol at a petrol station, paying the bill, driving a considerable distance to a shopping centre, parking and walking briskly into the shopping precinct, carrying a bag, going to the bank, travelling on an escalator, walking up stairs, returning to her car with a rolled-up picture, opening the boot, then driving back, collecting her children, and walking with them along a footpath. On subsequent days there was more film of her driving and walking. Then on 26 May 2007 there was a long segment of her at her son's soccer match at a local sports ground. She can first be seen in conversation with two men. Later, she chats animatedly with her sister-in-law whilst standing, then sitting. She appears to be bright and cheerful. She goes on a long walk around the oval, then returns to her sister-in-law where she plays with her baby in a pram. At one point she bends over and picks the baby up from the pram and carries it around. There are further instances of her bending and lifting, including lifting her own daughter, Jessica, and carrying her at waist level for about 10 paces.

69. The defendant placed great weight on the video film (Exhibits 1A and 1B). It was submitted, for example, that her presentation was contrary to the evidence about her from various family members, that she in fact can and does conduct normal daily activities. Such as driving, parking, shopping and looking after her children, without apparent discomfort or confusion. There was nothing in the film to indicate disorientation or disorganisation (paragraphs 81-82). She was shown to be capable of moving freely, both when driving and in conversation. There was no restriction of use of her neck, shoulders, arms or hands. She did not favour her right arm or guard her left arm. Her presentation in the film was in stark contrast to that in the witness box (paragraphs 43, 100-101).

Did Mrs Seary sustain cognitive impairment by reason of brain damage? 70. The primary contention made on behalf of Mrs Seary was that her accident caused significant permanent organic brain damage giving rise to ongoing cognitive deficits, including loss of memory and concentration and other attentional deficits. It was submitted that the medical evidence in support of this contention was compelling, confirmed by the evidence of numerous lay witnesses from their observations of her following the accident. "While most people recover from a mild traumatic brain injury and generally speaking pretty quickly after the accident itself, a small percentage which in Dr Alexander's paper is of the order of 15 percent and in some of the other papers is somewhat less and somewhat more, do not recover" (T 666.24 - 28). The brain damage is in the nature of a microscopic diffuse axonal shearing injury in the white matter of the brain, undetectable by objective means including contemporary radiological means such as MRI scans.

71. Hence great reliance was placed on the expert medical evidence, particularly that of Dr Teychenné and of Dr Rowe as to the results of his neuropsychological and psychophysiological testing of Mrs Seary. There was, correspondingly, an attack on the medical evidence called by the defendant, in particular the credibility of Dr O'Neill and Dr Reid and the reliability of their opinions.

72. There was also considerable reliance on medical literature. Indeed, I was at times concerned that the evidence was moving from the realm of expert opinion to the theoretical, particularly when such material was not capable of being tested by cross-examination. The starkest example of this was the reliance on the article by Michael P Alexander, put forward by some as authoritative, but criticised by others as lacking any clinical validity (eg Dr O'Neill at T 570), or as having been discredited by subsequent studies (see Dr Slack-Smith's report).

73. I preferred the evidence of Dr O'Neill to that of Dr Teychenné the issue of whether Mrs Seary sustained permanent organic brain damage

74. In my view Dr O'Neill was a more impressive witness than Dr Teychenné. His opinions were more objectively reasoned and formed, and accorded more closely with conventional medical wisdom. I have already noted, for example, the precipitate formation by Dr Teychenné of his view, based solely on the history, which fitted nicely with his interpretation of Mr Alexander's theory, without waiting for the results of psychometric testing. His subsequent unquestioning adoption of the report of Mr Anthony, once it became available, also caused me pause, having regard to my view as to the unsatisfactory nature of that report. The acceptance by Dr Teychenné of Mrs Seary's subjective complaints without question was illustrated by his discredited diagnosis of traumatic compressive neuropathy of the left ulnar nerve (see the defendant's written submissions at paragraphs 92 – 96). I disagree with the written submissions for Mrs Seary that Dr O'Neill's assessment was 'far from objective', and that he was 'unjustifiably dismissive of material contrary to his own views'. Nor do I agree that his responses to questions were 'evasive and not to the point'. In my view, Dr O'Neill strived to be scrupulously objective. He made concessions where appropriate and did not push his views from the perspective of a partisan, but from the perspective of a professional, because those views were strongly held. My assessment of him accorded with the submissions for the defendant (T 641.45ff):

"It's obvious that Dr O'Neill thought little of the diagnosis and the basis for the diagnosis made by Dr Teychenné. I don't need to labour the point. But he didn't simply sledge Dr Teychenné, he explained why the test that Dr Teychenné relied on, not only in diagnosis of brain injury, but also neck, arm and back injury, were inappropriate and meaningless tests in the context of this type of case. Notwithstanding the ferocity of Dr O'Neill's attack on Dr Teychenné his evidence, in my submission, ought to be accepted. He is an experienced and respected clinician, who obviously felt strongly about what he saw as a misuse of neurological technique, but nevertheless…has gone to pains to explain exactly why he takes such a dim view of the opinions expressed by Dr Teychenné…and everything he explains accords with conventional wisdom."

75. The defendant made submissions as to the competing evidence surrounding the various psychometric evaluations (at paragraphs 58 - 73), which I found compelling, and therefore set them out in full:

"Professor Reid explained that there is no point administering tests designed to identify cognitive deficits, if the subject fails tests designed to assess motivation [T480.18], indeed, it is contrary to conventional practice to do so.

On both occasions on which the Plaintiff was assessed by Professor Reid, she failed all "malingering tests" dismally. There can be no doubt at all about this: Professor Reid explained carefully what each test involved, what the normative standards were (in terms of expected results) and how the Plaintiff's performance fell far below norms based on gross brain injury or disease.

On 11 April 2006, Professor Reid administered the "Recognition Memory Test for Words". He explained the test in detail [T473.10]. The result suggested that the Plaintiff deliberately chose wrong answers.

Dr Reid next administered the "Trail Making Test [T476.53]. The test is childishly simple; the Plaintiff made multiple "errors", and her results were well below the established norms.

Professor Reid next administered a detailed personality inventory known as "MMPI 2". Again, having regard to the nature of the test [T479.12], the results indicated either malingering, exaggeration, or resistance to the testing procedure.

On 25 July 2006, Professor Reid administered sub tests under the "Wechsler Adult Intelligence Scale". On the "digit span sub-test", the Plaintiff performed at a lower level than subjects with known brain disease [T511.19 – 512.15].

Professor Reid administered the "Rey Auditory Verbal Learning Test". On that test, the Plaintiff produced the worst result Professor Reid had ever experienced [T512.43]. Professor Reid explained the significance of those results [T513.17], which were consistent only with end-stage neurodegenerative brain disease (which the Plaintiff certainly does not have).

Professor Reid next administered the "Rey 15-Item Memory Test". The Plaintiff's performance on this remarkably simple test was abysmal. Professor Reid described the results as "textbook evidence of maligned performance [malingering]".

Professor Reid next administered the "Recognition Memory Test for Faces". The nature of the test was explained [T515.48].

Again, the Plaintiff's performance was extraordinarily poor, Professor Reid described the scores in these terms [T516.32]: "If the scores were legitimate I would expect to see extensive brain damage, involving both medial temporal lobes, to the point that particular parts of those temporal lobes which are important in memory would almost be absent."

Whilst Professor Reid made it clear that he uses the word "malingering" sparingly [T519.16], there was simply no other conclusion to be drawn from these two assessments.

Mr Anthony's failure to administer "malingering" tests invalidates the results of his assessment, or at least casts grave doubt on their reliability.

Dr Rowe's failure to undertake testing on a face-to-face basis, or to attach any significance to the results obtained by Professor Reid and analysed above, invalidates his assertion that the use of EEG in conjunction with neuropsychometric assessment renders the results "objective".

The inconsistency between Dr Rowe's results and those obtained by Mr McMahon would, if accepted, indicate a deterioration in any brain damage from which the Plaintiff suffers, after the date of Mr McMahon's assessment, which is medically impossible.

The conclusion is, that Dr Rowe simply failed to take into account the prospect that the Plaintiff was deliberately under-performing on assessment; by eschewing the "traditional" face-to-face approach to neuropsychometric assessment, Dr Rowe may have denied himself the opportunity to assess the Plaintiff's motivation or effort.

The plain fact of the matter is that the results obtained by Dr Rowe cannot be reconciled with those obtained by Mr McMahon. Unless conventional medical wisdom is to be completely discarded, Dr Rowe's results, indicating a grave deterioration of the Plaintiff's brain injury after the assessment by Mr McMahon, must be rejected."

76. I preferred the defendant's evidence as to the psychometric evaluations of Mrs Seary. In the result, I have accepted the evidence of Dr Reid in preference to that of Dr Rowe. I was not satisfied that his use of EEG in conjunction with his testing gave the results any objective reliability, or that his technologically based modus operandi produced more reliable results than the traditional face to face technique. Indeed, it seemed to me to have a clear disadvantage when, as in this case, there was a need for subjective evaluation of the patient's motivation. I considered Dr Rowe's criticism of Dr Reid and his apologist approach to his assessment of Mrs Seary unconvincing and at times nitpicking. As I indicated above, I did not find his approach consistent with an impassive and impartial desire to find the truth. Dr Reid, on the other hand, struck me as even-handed and objective. He went to considerable lengths to give Mrs Seary as fair an evaluation as possible. He was, however, frustrated by her exaggeration and lack of motivation, and I agree with his ultimate description of her efforts as malingering (in the medical sense of the word).

77. It follows that I also prefer the evidence of Dr O'Neill, Dr Reid and Mr McMahon on this issue to the other medical evidence called on behalf of Mrs Seary, including Mr Anthony and Dr Morse.

78. I am satisfied that the validity of the results of the testing of Mrs Seary by the various psychologists was unreliable and tainted by reason of her maligned performance when undertaking them. The disparate, inconsistent and at times improbable results were such that none of them could legitimately be relied upon as a reliable diagnostic tool (see T 648.37 - 649.17). That her motivation was sub-optimal was to my mind clearly established and the evidence of exaggeration compelling. I find that she was malingering (in the medical sense) when she was undertaking the tests. The results of any testing cannot be relied upon to support a diagnosis of permanent brain damage, whether through diffuse axonal shearing or otherwise, giving rise to ongoing cognitive deficits.

79. The evidence establishes that Mrs Seary failed to satisfy any of the conventional criteria to support a diagnosis of a permanent traumatic brain injury, nor did she exhibit consistent abnormalities revealed by psychometric testing. In those circumstances I am unable to be satisfied that permanent traumatic brain injury, in the nature of diffuse axonal shearing or otherwise, may legitimately be diagnosed on the basis of the totality of the medical evidence, as it emerged in this trial.

80. The lay evidence as to observation of her behaviour after the accident is not, on its own, probative of her problems being the result of permanent traumatic organic brain damage. Suffice it to say that her problems are equally explicable on other bases. Moreover, that lay evidence does not sit entirely comfortably with her more recent presentation, including the video film, and other evidence of improvement in her problems, which is indicative of exaggeration or a maintenance of her symptoms, not only in the psychometric testing, but in other spheres. The problem, in this regard, is evaluating the extent to which this is a result of conscious motivation as opposed to psychological causes.

81. I find that Mrs Seary did not suffer permanent brain damage giving rise to ongoing cognitive deficits as a result of her accident. Rather, she suffered various temporary post-concussive problems which all resolved in time, together with prolonged left benign paroxysmal positional vertigo from which she also recovered. To the extent that her symptoms and problems, including the changes in her personality, continued beyond the resolution of these organic conditions, the explanation for their existence, the extent to which they are or are not entrenched and irreversible, and the impact on her life, including her capacity to look after herself and to work, must be looked for elsewhere, either in the psychological realm, complicated by the iatrogenic factors, or in the realm of conscious exaggeration, or in some combination of both.

The MAS Certificates 82. I need to deal with the MAS certificates, in that the written submissions for Mrs Seary indicate she purports to rely on them as evidence of various matters, including traumatic brain injury with cognitive deficits (page 21) and orthopaedic impairment (page 3), and this is a convenient point.

83. Although I admitted the certificates of the MAS assessors, I excluded their Statements of Reasons, for the reasons set out in my interlocutory judgment of 22 June 2007. (I would have excluded the certificates also had I known it would be attempted to make such use of them, for the reasons set out in that judgment, in particular the inability to test them by cross-examination).

84. In my view, the MAS certificates are not probative of causation, nor of the nature and extent of any ongoing disability, and are probative only of the fact that the relevant statutory threshold (required by s 131 of the Motor Accidents Compensation Act 1999) has or has not been satisfied for the purposes of an award on non-economic loss: Mafra v Egan (No 1) (2006) NSWDC 22 and Pham v Shui [2006] NSWCA 373 at [90]. But even if I am wrong, I still consider the certificates have no probative value in the absence of the reasons to support them.

Does Mrs Seary have any ongoing orthopaedic or other physical disabilities?

85. It was submitted for Mrs Seary that as a result of her accident she suffered a number of serious orthopaedic and other physical injuries, the symptoms from some of which persist and will be permanent. These include a neck strain with left C7 radiculopathy, and injury to her left shoulder, compression of the left ulnar nerve of the elbow, left finger numbness, an injury to her left hip and a back injury with symptoms radiating down her left leg. In addition she alleges vertigo, ongoing headaches and tinnitus. It is alleged that these ongoing disabilities impact severely on Mrs Seary's day-to-day life, her ability to carry out household and other domestic activities, operate to diminish her earning capacity, and will give rise to the need for future medical and other out-of-pocket expenses.

86. The defendant, on the other hand, submits that Mrs Seary suffered minor temporary soft tissue injuries to her neck and left upper limb, the symptoms of which abated such that she no longer suffers any significant ongoing physical disability in those areas. The defendant denies that Mrs Seary suffered any back injury at all from her accident. As to the vertigo, headaches and tinnitus, it was submitted these were post-concussive sequelae that have resolved.

87. Reliance for the submissions made on behalf of Mrs Seary was placed in particular on the evidence of Dr Teychenné and the MAS assessor, Dr Lorraine Jones. There were also support in reports from other doctors, including Dr James Bodel, Dr John Davis, Dr Thomas Rosenthal, Dr Paul Clouston and Judith Davidson.

88. It was submitted for Mrs Seary that as a result of the accident she experiences ongoing weakness in the left arm, encounters difficulty in activities involving constant use of her left arm. She has numbness within the left fifth finger and down the medial aspect of the left fourth finger, and pain over the medial aspect of the left elbow, consistent with her having sustained injury to the left ulnar nerve. She is left handed and these problems restrict her everyday activities, such as peeling potatoes, cutting up vegetables shifting furniture, heavy cleaning work and certain aspects of washing and hanging heavy clothes, doonas and blankets. She also has intermittent lower back and left hip pain, which Dr Teychenné attributes to bilateral L5/S1 radiculopathy.

89. The medical support for the existence of continuing orthopaedic and other physical problems as being a result of the accident is not convincing. Insofar as any reliance was placed on Dr Teychenné, I discount his evidence, which in my view was unreliable for the reasons already indicated. I also dismiss the evidence of Dr Bodel as unconvincing and unreliable. His reports are superficial and lacking in detailed objective clinical analysis. I place no reliance on the certificates of Dr Jones, for the reasons set out above.

90. There is no evidence that Mrs Seary suffered a low back injury from the accident. There was no complaint to the ambulance officers or whilst she was in hospital, nor any significant complaint thereafter to her general practitioner, Dr Komonen, or other treating doctors such as Dr Cordato or Dr Davis. There was nothing that suggested radiological investigation until August 2006, when an MRI scan was undertaken, and even that was normal. Only Dr Teychenné was 'undeterred by the lack of contemporaneous report of symptoms or radiological evidence' and supported her claim. I reject his evidence in any event, but for the sake of completeness I record that I prefer the evidence of Dr O'Neill on this issue and find that Mrs Seary did not suffer a low back injury as a consequence of the motor accident on 13 November 2002.

91. Turning to the complaints in connection with Mrs Seary's neck and left arm, there were repeated radiological investigations from the time of her accident, x-rays, CT scans, MRI scans and bone scans, but no abnormality was ever detected. The testing by Dr Teychenné has been discussed elsewhere and discredited. There is, otherwise, no medical compelling evidence of any injury to the neck or left arm other than a minor, temporary soft tissue injury. The video film showed Mrs Seary moving her head freely, and otherwise moving and undertaking activities without any demonstrated restrictions in the use of her neck, arms or hands. Nor did she have any trouble lifting and carrying her child. This freedom of movement was also in stark contrast to her rigid presentation on the witness box. Efforts to explain away these differences on the basis of nervousness were unconvincing. I find that there is no ongoing organic basis for Mrs Seary's complaints in respect of her neck, arms or hand, attributable to the motor accident on 13 November 2002. There were some mild soft tissue injuries, but these resolved themselves and are not productive of ongoing symptoms.

92. As to the dizziness and vertigo, the evidence is that the left benign paroxysmal positional vertigo resolved. The evidence does not support any continuing problems as having any organic medical cause. The same may be said of the complaints of tinnitus and headache. What is the nature, extent and effect of Mrs Seary's psychological condition?

93. I come then to the essence of what I have decided is the proper explanation for Mrs Seary's continuing problems following resolution of her post-concussive problems, namely the recurrence of her pre-existing psychiatric condition, triggered by the accident and its immediate and short term consequences, such as the vertigo, the headaches, the nightmares, and the effects of the physical injuries, and subsequently perpetuated, at least to some extent, by the nature of some of the medical treatment and advice she received and the iatrogenic consequences of that.

94. Each of the medical specialists, except for Dr Lloyd, rejected a diagnosis of post-traumatic stress syndrome, notwithstanding the classic picture of recurrent nightmares and reliving of the accident. But they all agreed that Mrs Seary suffered from some sort of psychological problem either stemming from the motor accident and its consequences, or exacerbated by them, even Dr Lovell, though he believed it was mild and temporary, contrary to the opinion of everyone else, and at odds with the lay evidence of her post-accident behaviour.

95. Dr Morse certainly thought there was some deep-seated problem, but unfortunately vacillated in his diagnosis. It seemed to me that Dr Sydney-Smith had the best insight into Mrs Seary, when he said she suffered an Adjustment Disorder with Anxiety, Depressive and Compulsive Features, which 'represented an exacerbation of long-standing neurotic symptoms'.

96. In my view, it does not matter how her condition is categorised, what is abundantly clear from the preponderance of the lay and medical evidence, is that Mrs Seary underwent profound emotional stress following her accident, which had a dramatic effect on her for several years thereafter.

97. It is my assessment of the totality of the evidence that she has been gradually recovering, particularly in recent times, but the issue for me is the extent to which she exaggerates her problems, either from an iatrogenic motivation, or consciously for reasons of personal gain from this litigation. Because the focus of the specialist medico-legal evidence was so dominated by the issue of brain damage and psychometric testing, this issue became to some extent subordinated.

98. The other evidence on Mrs Seary's psychological condition was that of Associate Professor Reid, the expert psychologist qualified by the defendant. It was submitted on behalf of Mrs Seary that Dr Reid's evidence on the issue was emphatic, because it was given in the context of his opinion that she was consciously exaggerating her deficits (T 672.23ff).

99. Dr Reid first touched on this question in his report dated 3 August 2006 (on page 6 at 10.3): "Mrs Seary now has an entrenched pattern of abnormal illness behaviour that has not responded to traditional forms of physical and psychological management. There has been no major change, it appears since her accident 2002 and one gains the impression that there is little hope of further improvement." 100. Counsel for Mrs Seary pursued this theme in his cross-examination of Dr Reid (T 606.42 - 608.43) and Dr Reid went further and conceded that the prospects of Mrs Seary returning to work were also slim. Whilst she was to some extent predisposed to the development of a psychological condition, Dr Reid was in no doubt that her current condition was caused by her accident:

Q. May we take it Professor that in your opinion this psychological condition or this complex of psychological conditions is causally linked to her accident? A. Yes, one needs to consider - and I'm answering your question directly if I may elaborate a little bit, one needs to consider that there may have been some predisposing factors associated with, you know, psychological stress or traumas in her life before, for example, I mentioned the possibility that it seemed that she did have a post natal depression, is that considering that there may have been some pre existing psychological vulnerabilities that following her accident that she has actually developed further psychological problems that have compounded, been compounded by her accident.

Q. Causally related to the accident? A. Yes.

Q. But in the background way you've just described of her being psychologically vulnerable to such an event? A. Yes.

101. The cross-examination then moved to the prognosis for improvement following the completion of this litigation:

Q. ... you gained the impression that Mrs Seary now has an entrenched pattern of abnormal illness behaviour and has not responded to traditional forms of physical and psychological management, there's been no major change, it appears, since her accident of 2002 and one gains the impression there is little hope for further improvement. So that is it fair to say that you don't see her making any improvement whatever the result of the litigation, is that correct? A. I do tend towards that feeling based on often studies that have shown that even when litigation is over, because of the prolonged nature is that you get such entrenched behaviours that these don't just disappear because of settlement, they help - the person's whole lifestyle has changed in a way to - from events that have occurred.

Q. I think indeed one of those studies is referred to by Dr Rowe in one of his reports, do you remember that? A. I don't remember the specific reference but yes.

102. Dr Morse wasn't quite so pessimistic, and he felt that although she would never return to her pre-morbid level of functioning, there should be some improvement "with less depression and improvement in social and other activities'. It is not possible, therefore, when considering this question of improvement to ignore the video film. Dr Reid conceded as much in re-examination:

Q. Finally, Mr Webb discussed with you towards the end of the cross-examination your views as to the plaintiff's future employability. Is that a matter which might be informed by observed behaviour outside the clinical setting? A. Certainly that would be valuable, to look at how Mrs Seary functions in her day to day life and to try and observe what difficulties she faces on a day to day basis and whether what one observes actually matches with the sorts of degree of impairments that she presents with under examination.

103. As I have previously indicated, the defendant placed great reliance on the video film. It was submitted, for example, that the flat affect with which Mrs Seary presented in the witness box was inconsistent with the video film (paragraphs 40, 43 and 44). The defendant also submitted, and this accorded with my own observation, that the long pauses when answering some questions in cross-examination were not evident during the examination-in-chief, and that this affect was less evident after the video film was shown. This delayed response was also not evident in the course of the psychometric testing by Mr McMahon, and only emerged as a phenomenon in later reports.

104. Senior counsel for Mrs Seary submitted as follows (T 670.40 - 46)

"I remember many, many years ago, when Samuels J was sitting in the Court of Appeal that he said to me that his perception of the use of films in personal injury cases was that the film was only ever as good as the plaintiff made it, meaning that it needed to contradict and strongly contradict the plaintiff in her evidence."

105. The defendant made submissions that the film did contradict, and strongly contradict Mrs Seary's evidence, most of which I agree with. I am satisfied, for example, that Mrs Seary 'can and does shop for household goods at local and large shopping centres, without apparent discomfort or confusion' (paragraph 81) and that:

"There was nothing in the surveillance film to indicate that the Plaintiff became disoriented or disorganised in her thoughts or behaviour. The Plaintiff was capable of remembering where she parked her car." (paragraph 82)

The film of the Plaintiff's attendance at her son's soccer match showed her to be anything but 'withdrawn', and showed no evidence of the Plaintiff having difficulties relating to others, not limited to her sister-in-law, but including parents of other children." (paragraph 120)

I am also satisfied that she uses an ATM (T 94.36) and regularly fills the car with petrol and pays for it (the video film). Likewise she no longer has difficulties taking the children to school and collecting them (the video film).

106. The conclusion I am compelled to draw is of improvement since the observed behaviours of family members in the early years following the accident. For example, the description of her as stiff and withdrawn at Christmas 2002 (T 160) and the subsequent description of her at Killcare as looking like an old woman struggling to get up the stairs (T 307) were no longer apt by the time of the video film. There is other evidence of gradual but distinct and progressive improvement, both in the medical evidence and in the lay evidence (see, for example, T 311, 316 and 343).

107. Having regard to the video film, the other evidence of improvement, and the evidence of Dr Reid as to Mrs Seary's lack of effort in the psychometric testing, the inescapable inference is of exaggeration of her problems.

108. I am satisfied that Mrs Seary suffered from the recurrence of an underlying psychological condition, to which she was predisposed, as a result of her accident and the subsequent post-concussive problems. But I also find that the duration and severity of that condition has not been as extreme as she would contend. It is clear that in the period immediately following her accident the combination of her nightmares, headaches, tinnitus, vertigo, panic attacks and other symptoms of anxiety and depression, together with the symptoms caused by her soft tissue injuries, all combined to interfere with her day to day capacity to cope and more probably than not interfered with her intellectual functioning, causing her forgetfulness, confusion and other problems. And even though the effects of her physical injuries and the post-concussive effects of the accident eventually abated, many of her problems nevertheless continued, to a diminishing degree, due to a combination of psychological causes and the iatrogenic factor. But overlaying her condition, conscious exaggeration developed and played an increasing role.

109. The placement of time frames on these phases of her post-accident history must to some extent be the product of impression. In my view, however, the effects of any orthopaedic injuries had probably resolved within a year, and certainly before she saw Dr Cordato in June 2003. The post-concussive problems were gone, probably by July 2003, but certainly by mid 2004 when she declined to seek "senior opinion" and stopped seeing Dr Becvarovski.

110. From that time on, the severity of her psychological condition began to progressively abate and her tendency to exaggerate, which began in mid 2003 around the time she first saw Mr McMahon, increased such that by the time she saw Dr Reid in early 2006 she was displaying an overt capacity for histrionics and consciously malingering during testing.

111. I am not, therefore, prepared to accept Dr Reid's assessment as to the probability of the severity and duration of such psychological problems as persist in its totality. Nevertheless, Mrs Seary does continue to suffer from moderately severe psychological symptoms that will continue to improve, as Dr Morse put it, with improvement in her social and other activities, though she will never entirely return to her pre-morbid level of functioning. The nature and extent of the continuing psychological condition is therefore problematic, and the evidence as to its effect lacks specificity. I make it clear, however, that it includes those types of symptoms that Mrs Seary was exhibiting prior to mid 2003, being both the consequences of her orthopaedic problems and the post-concussive effects of the accident, such as stiffness, weakness in the arm, tiredness, memory lapses, difficulties with concentration, loss of train of thought and the like. Damages

112. Elizabeth Seary was born on 21 January 1973. She was 29 at the time of the motor accident and is now 35. She has a life expectancy of some 53 - 54 years. Her remaining working life to age 65 is some 30 years. Her claim for damages is made under various heads, and it is necessary to deal with each in turn. Medical and other out-of-pocket expenses

113. The parties agreed that the past out-of-pocket expenses incurred amounted to $26,135.80. There was, however, a dispute as to future expenses. The first claim was for items of special equipment amounting to a total of $4,339.00 (page 50 - 51 of the written submissions), together with ongoing costs associated with replacement requirements, amounting to $15,533.64, a total of about $20,000.00.

114. I am not satisfied that there are any ongoing disabilities such that Mrs Seary might reasonably require any special equipment, and make no allowance.

115. Second, a claim was made for ongoing medical expenses. Having regard to the findings I have made, the basis for any allowance for future medical expenses could only relate to psychological treatment, most probably in the form of counselling, while Mrs Seary adjusts to the fact that she does not have brain damage, or any orthopaedic disabilities, and needs to resume a normal life. It is true that she has not had psychological treatment in recent times, or associated medication. Nevertheless it is apparent that properly diagnosed and advised, she will need counselling and should benefit from it, at least for the next few years. There will be associated expense in attending regularly on her general practitioner, for referrals and scrips. There may also be some need for medication, but I do not anticipate this will be substantial.

116. On this basis, having regard to the current cost of consulting a general practitioner and a psychiatrist, I allow an amount of $30,000.00 for future medical expenses, which includes an allowance for future medication.

Care 117. In the days following her accident she slept a lot and had terrible headaches. She had recurring nightmares involving flashbacks of the accident, and spiders. When she tried to get back into a routine and collected her son from the school, she was confronted with the scene of her accident, with her blood and the police markings still in place.

118. Her mother-in-law, Mrs Bringolf, came to stay and help out and effectively ran the household for several months, with the help of her husband. Mrs Seary's husband also increased his level of participation in the domestic chores.

119. The defendant submitted that Mrs Seary has not satisfied the threshold requirement for an award of damages in respect of past or future domestic care and assistance: s 128 of the Motor Accidents Compensation Act 1999.

120. As to the past, I am satisfied that in the early stages of her recuperation, Mrs Seary required substantial care and assistance. In the first 6 months or so, while Mrs Seary's mother-in-law was providing that care, the level of assistance required and provided by her and Mr Bringolf averaged, in my assessment, some 20 hours a week, consisting of cooking, cleaning and other household duties, and care and supervision of Mrs Seary herself, and the children. Thereafter the need diminished as Mrs Seary recuperated over the next 12 months, till mid 2004 when she stopped seeing Dr Becvarovski, by which time the need was less than 6 hours a week. I estimate the average need over this period at 8 hours a week. I therefore make an allowance of $22,596.00 for past care, calculated as follows:

13.11.02 - 30.6.03 (33 weeks x $21 x 20) = $13,860.00 1.7.03 - 30.6.04 (52 weeks x $21 x 8) = $ 8,736.00 $22,596.00

121. I am not satisfied that Mrs Seary had any need for domestic care or assistance, exceeding the threshold, beyond mid 2004, or that she will have any need in the future. The reality is that since mid 2004 she has been capable of attending to the majority of the required domestic chores and has in fact been attending to them (see the defendant's written submissions at paragraphs 169 - 179). Economic loss

122. It was Mrs Seary's case that she intended to return to work on a part-time basis in 2003, and then resume full-time work in 2004, but has not been able to work since her accident, and is now permanently unfit for employment by reason of her injuries and their consequences. It was submitted that the most likely employment she would have sought was as a registration clerk similar to what she had done before her children were born. Although her husband was earning enough for the family to 'get by', the budget had to be tightly managed and it was the ambition to own their own home.

123. Her intention to return to work, and that she would have done so but for the accident, was not disputed by the defendant. The opposition to her claim was put firstly on the basis that Mrs Seary had sufficiently recovered to return to work, including the work of a registration clerk, by 2004. Alternatively, her residual earning capacity should be assessed having regard to her ability to earn income in terms of the pattern demonstrated in the prior 10 years.

124. I am satisfied, however, that the psychological condition from which I have found Mrs Seary continued to suffer, and will continue to suffer in the future, has severely affected, and will continue to affect, her capacity to earn: (see paragraphs 108 - 111 above). So far as the period from her accident until mid 2004 when she stopped seeing Dr Becvarovski is concerned, I am comfortably satisfied that she was totally incapacitated for work. I am also satisfied on the balance of probabilities that she has been for all intents and purposes unable to engage in meaningful remunerative employment for the period from mid 2004 till the present time. So far as the future is concerned, I am not satisfied that she will remain totally incapacitated for all forms of work on a continuing basis, for the remainder of her working life. In my view, with time she will regain some residual earning capacity. That capacity will be limited to employment of an uncomplicated nature, not involving stress, or the exercise of functions that require the application of sophisticated intellectual skills. I am satisfied that she will never be capable of performing the duties required of a registration clerk. I also consider it unlikely she would cope as a receptionist or clerk, nor do I consider she would cope in an environment involving repetitive physical work such as process work, or as a packer. It does seem likely, however, that she will become able to undertake undemanding forms of work such as childcare or aged care. I find it is likely that the net weekly earnings she will derive in such work are $150.00, averaged over the next 35 years.

125. I turn then, to consider her likely career path but for her injuries, and the earnings it is likely she would otherwise have derived over the balance of her working life.

126. Mrs Seary was (and still is) an ambitious woman and in my view there was no basis for doubting her stated intention to return to work, and in such a capacity as a registration clerk, work she knew and enjoyed and for which she had an aptitude. That she had the required level of skill to perform the duties required was in my view established by the work she was performing at her son's school at the time of her accident (see paragraph 7 above). With the pressure of her children at home lessened by their attendance at school, she would have coped emotionally with the requirements involved in doing such work. I am satisfied, therefore, that her most likely circumstances, but for her injuries, are that she would have worked from early in 2004, once Jessica settled in school, till the age of 65, more probably than not as a registration clerk.

127. Before determining the most likely level of her earnings from such work, it is necessary to examine closely the evidence; such as it is, on the issue. There is no direct evidence of such probable earnings, and her case is put on the basis of a combination of the average weekly earnings of all employees in NSW and the Clerical & Administrative Employees - Legal Industry (State) Award, as set out in her written submissions (at pages 38 - 39). Calculations were proffered using the mid-point of both sets of figures, which produced a range for past economic loss from $82,450 to $109,340. (There was an error in the calculations at (vi) on page 41, and the range should have been calculated at $96,268 to $126,845). The range for the current loss per week was proffered as being $531.50 to $671.00 net.

128. In assessing the most likely earnings that would have been earned by Mrs Seary, but for her injuries, I had regard to the discussion in State of NSW v Moss [2000] NSWCA 133 at [71]: "…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] HCA 48; (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 [1961] HCA 14; (1961) 105 CLR 549 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. Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, para [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] HCA 20; (1990) 169 CLR 638 at 639 Brennan and Dawson JJ 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 would or could have happened and reflect those chances, whether or not they are more or less than even, in the amount of damages...". The majority (Deane, Gaudron and McHugh JJ) 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 materials": Callaghan v Wm C Lynch Pty Ltd [1962] NSWR 871 at 877 per Evatt CJ, Herron and Sugerman JJ. 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] SR (NSW) 598 at 607 per Manning J. However, Menzies J said that sometimes the assessment of damages involves "guess work rather than estimation": Jones v Schiffman [1971] HCA 52; (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) 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1947] UKHL 2; [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…"

129. The material proffered on behalf of Mrs Seary as to 'comparable earnings' was not only 'slender', but in my view did not accord with an appropriate range of parameters as to the earnings she was likely to have achieved but for her accident. Not only was it inconsistent with the pattern of her earnings in the 10 years prior to her accident, but also I was not satisfied that the bald data provided on her behalf was reflective of what her true likely earnings would have been. Reliance on the calculations proffered, based as they were on the methodology adopted, would in my view produce a skewed outcome, inconsistent with her history and likely circumstances. I consider it more probable that her likely income would have been at the bottom of the range provided for under the Clerical & Administrative Employees - Legal Industry (State) Award, if not below it.

130. I used that approach in my assessment of Mrs Seary's likely net earnings, but for her accident, as a registration clerk. My calculations are:

4.3.04 - 1.7.04 17 weeks x $405.00 net = $ 6,885.00 2.7.04 - 11.7.05 53 weeks x $421.00 net = $22,313.00 12.7.05 - 2.8.06 55 weeks x $442.00 net = $24,310.00 3.8.06 - 8.2.08 81 weeks x $460.00 net = $37,260.00 $90,768.00

131. To this sum I add occupational superannuation of $9,984.48 (at 11%) and I therefore find past economic loss in the amount of $100,755.00 (rounded off).

132. Turning to the future, there are no special circumstances that are to be taken into account, and I find therefore that the damages that would have been awarded are to be adjusted by reference to the usual 85% possibility that the events concerned might have occurred but for her injuries.

133. Consistent with my findings above (at paragraph 129 - 130), I consider that Mrs Seary is likely to have been earning, at the present time, but for her injuries, a net weekly amount of $460.00. From this I deduct $150.00, being my assessment of her residual earning capacity (at paragraph 124) producing a net ongoing weekly loss of $310.00. Applying the appropriate multiplier (822) and deducting 15% for vicissitudes, I calculate the amount of future economic loss at $216,597.00. To this I add a sum of $23,825.00 for occupational superannuation (at 11%) and I therefore find future economic loss in a total sum of $240,425.00 (rounded off).

Financial management

134. A claim is made on behalf of Mrs Seary for the cost of the future management of her financial affairs. In the absence of any finding of cognitive deficits as a result of a traumatic brain injury, the basis for such a claim is considerably diminished. Notwithstanding my finding that there is a persisting psychological condition of moderate severity, involving continuing symptoms that include problems affecting her memory and concentration, I am not persuaded, having regard to the totality of the evidence, including that of her husband and the video film, that Mrs Seary's condition, which will continue to improve, reasonably warrants the need for the management of her financial affairs or the assistance of a fund manager. I agree that the damages awarded are within her capacity to manage, and if appropriate, to invest. She also has the assistance of Mr Bringolf.

135. I find, therefore, that there is no basis for an award of damages for the cost of financial advice and assistance. Non-economic loss

136. It was not disputed that the required statutory threshold for damages for non-economic loss has been satisfied: s 131 and s 132 Motor Accidents Compensation Act 1999.

137. It was submitted for Mrs Seary that an appropriate award of damages for non-economic loss should be in the order of $325,000.00 to $381,000.00. The defendant submitted that an appropriate award of damages for non-economic loss should be $100,000.00. In the light of my findings, both sets of submissions are inapt, and the award should be somewhere in between those two extremes.

138. The defendant also submitted that Mrs Seary made concessions as to her inability to cope, frustration and unhappiness from time to time prior to her accident, and that she may have had, in any event, temporary depressive episodes consistent with her pre-accident pattern of 'cyclical depressive moods' (paragraph 134 of the written submissions). These matters should not be given undue weight, having regard to my view that but for her accident, with the responsibility for and stress caused by her young children being ameliorated by their attendance at school, the chances of recurring depressive episodes was not high. The evidence is that before the birth of her children she was a bright, active and happy person, and there is no evidence of any significant depressive episodes until her children arrived. In my assessment, with that stressor removed, she is likely to have substantially returned to her pre-children persona. Whilst I agree the pre-accident emotional episodes are matters to be taken into account, they would not have impacted sufficiently to affect, for example, her overall well-being or her ability to return to work: Qantas Airways Ltd v Lisica [2007] NSWCA 371.

139. In assessing the damages for non-economic loss for Mrs Seary, I have had regard to the totality of her circumstances. In particular, I take into account her young age. She has already suffered over 5 years of depression, worry, fear and a host of personal problems and unfortunate episodes, particularly within the first six months following her accident, all of which do not need to be repeated here. They include, however, the nightmares and the humiliating experience of being 'sacked' from the school uniform shop, the embarrassment from forgetting appointments, making mistakes and the like. She has been subjected to ongoing medical treatment of a persistent and intrusive nature, and other difficulties. She is now faced with a lifetime of disruption to a normal life and the loss of enjoyment that will produce. Her sex-life has been adversely affected. She is faced with the prospect of future psychological counselling at least for several years. She has been and to a lessening degree will be restricted in her capacity for sport and social activity. On the other hand, in my assessment the worst of her problems are behind her, and as Dr Morse said, her improvement emotionally will progress together with the improvement in her social and other activities. As the video film establishes, this process has commenced and progressed to a noticeable degree. I must also take cognisance of the fact, as I have found it, that there is and has been an element of exaggeration of her symptoms.

140. In my view an award of $150,000 is within the appropriate range, having regard to all her circumstances. I find, therefore, that her non-economic loss should be assessed at $150,000.00.

Total damages 141. The calculations as to the damages are set out in the Table below.

142. A claim was made for interest on past economic loss under s 137(4) of the Motor Accidents Compensation Act 1999. It was agreed, however, that I should defer consideration of this claim, and a finding as to the total damages, until after I had assessed the other heads of damages. Table Heads of Damage Amount Past out-of-pocket expenses $ 26,135.80 Future out-of-pocket expenses $ 30,000.00 Care $ 22,596.00 Past economic loss $ 100,755.00 Future economic loss $ 240,425.00 Non-economic loss $ 150,000.00 Total damages (provisional total) $ 569,911.80

143. I therefore find total damages, on a provisional basis subject to the addition of interest, if any, in the amount of $569,912.00 (rounded up).

Disposition

144. I defer the entry of a verdict pending the determination of any claim for interest, including the need for argument, and if appropriate, any further evidence.

145. I similarly reserve the question of costs.

146. The exhibits are to remain in court until the entry of judgment and for a period of 28 days thereafter, but may then be returned to the parties.

Note

No claim was made for interest and on 15 February 2008 a verdict was entered for the plaintiff for $569,912.00, and I directed the entry of judgment accordingly. THe question of costs is dealt with in a separate judgment.

07/03/2008 - Formatting - Paragraph(s) 27, 42, 53, 75, 101, 102, 128

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