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  • Unreported Judgment

Mandrek v Marstella

 

[2018] QSC 8

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Mandrek v Marstella & Anor [2018] QSC 8

PARTIES:

SHANE JOHN MANDREK

(first plaintiff)

KERRY FAY MANDREK

(second plaintiff)

v

THOMAS JAMES MARSTELLA

(first defendant)

AAI LIMITED

(second defendant)

FILE NO:

BS No 1297 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 January 2018

DELIVERED AT:

Brisbane

HEARING DATE:

25 – 26 May 2017; further written submissions 30 May 2017 and 1 June 2017 

JUDGE:

Douglas J

ORDER:

  1. Judgment for the first plaintiff for $377,739.95;
  2. Judgment for the second plaintiff for $306,431.32;
  3. Parties will be heard further in respect of costs.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – NON-PECUNIARY DAMAGE – GENERAL PRINCIPLES – where plaintiffs injured in motor vehicle accident – where  damages assessed pursuant to the Civil Liability Act 2003

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where first plaintiff was unemployed and second plaintiff was self-employed at the time of the accident – where plaintiffs sought damages for past and future economic loss for decreased capacity to work and lost opportunities

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – where plaintiffs sought damages for gratuitous services – where first plaintiff provided limited care to second plaintiff – where provision of gratuitous services was insufficient to meet legislative threshold

Civil Liability Act 2003, ss 55, 59

Civil Liability Regulation 2003, s 87 

Hopkins v WorkCover Queensland [2004] QCA 155, cited

Kriz v King [2007] 1 Qd R 327; [2006] QCA 351, followed

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, cited

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, cited

Rossi v Westbrook [2011] QSC 311, cited

Rossi v Westbrook [2013] QCA 102, cited

Shaw v Menzies [2011] QCA 197, cited

Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, cited

Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53, cited

COUNSEL:

J M Sorbello for the plaintiffs

W D P Campbell for the second defendant

No appearance for the first defendant

SOLICITORS:

Morton & Morton for the plaintiffs

Bray Lawyers for the second defendant

No appearance for the first defendant

  1. The plaintiffs, Shane Mandrek and Kerry Mandrek, a married couple, were injured in a motor vehicle accident on 29 November 2012.  Kerry Mandrek was then 36 weeks’ pregnant with their third child.  Liability for the incident is not in issue but the damages claimed by each plaintiff are contentious.

The first plaintiff

General damages

  1. Shane Mandrek was born in England on 6 June 1977 and so was 35 at the time of the accident and is now 40.  He trained and worked as an electrician in England and moved to Australia with his Australian-born wife in March 2011.  After a few months during which he could not find work he commenced working as an electrician in and around Lowood on the outskirts of Brisbane and succeeded in having his English qualifications recognised here after doing a brief course in South Australia. 
  2. After working until February 2012 in two electrical jobs he found unsatisfying, he later moved, probably in the middle of 2012, with his family to River Heads near Maryborough and Hervey Bay, the area where they were living at the time of the accident.  The move was made at least partly because of his wife’s liking for the area and their wish to bring up their children in a rural or semi-rural environment.  At that stage he had not found local work as an electrician.  His preference was to be self-employed in that role. At the time of the accident he had not succeeded either in finding employment or in setting himself up in his own business.  He said he was then having a bit of time off and looking for what might come along.  He was also helping his wife with a market store she had established and an internet business she was trying to establish. 
  3. In the accident he suffered an abrasion laceration on the posterior aspect of the scalp with contusions, a laceration behind the left ear and an injury to his cervical spine and disc herniation at the C5/6 level on the left side.  The orthopaedic surgeons, Dr Van der Walt and Dr Pincus, assessed him as having suffered a 15% whole person impairment due to the spinal injury and disc herniation.  They also agreed that he was capable of performing some if not all of his duties as an electrician.  Dr Van der Walt had said previously that the injury had made him less capable of doing all the work required of an electrician. 
  4. The occupational therapist, Ms Vanessa Aitken, also gave unchallenged evidence that he suffered from the following physical restrictions, namely that he:
  1. was restricted to lifting and handling loads up to nine kgs on an occasional basis and 4.5 kgs on a frequent basis;
  2. had reduced capacity to work at or above shoulder height for prolonged periods of time;
  3. was restricted in crawling;
  4. had restricted neck flexion and extension;
  5. had limited capacity to lift 10 kgs bilaterally from floor to waist height, 10 kgs from waist to shoulder height and 6.5 kgs above shoulder height;
  6. had limited capacity to lift more than 10 kgs from floor to chest height and 6.5 kgs from chest to shoulder height unilaterally;
  7. had restricted capacity when pushing/pulling medium forces; and
  8. had restricted capacity for bending or stooping for prolonged periods of time.
  1. Ms Aitken also said that he was now suited only to occupations or activities with light physical demands where work as an electrician fell within a medium physical demand category.  He had not returned to a leisure activity of kayaking since his injury. 
  2. Luckily his parents made a pre-arranged visit from England, arriving a few days after the accident and staying until about 22 January 2013.  They were able to assist the plaintiffs after the accident and when Kerry Mandrek gave birth.  After they left he did his best to help around the house but found it difficult to do so.   He was able to drive for medical appointments for him and his wife but had difficulty in turning his head because of the injury to his neck.  He needed assistance to wash his hair for some weeks after the accident. 
  3. He and his wife both agreed that he behaved more grumpily at home because of his pain than he had before the accident.  He takes one to two Celebrex tablets a day to deal with the pain.  He finds some of the physical labour associated with his work such as pulling cables significantly more difficult and painful than before the accident.  He also finds it more difficult to help around the house and yard and to lift his children and play with them.  He has difficulty in sleeping comfortably and has had several steroid injections into his neck to help with pain there. 
  4. I believed Mr Mandrek’s evidence and found him to be a credible witness, stoical and focussed on doing his best to provide for his family in spite of what had happened to him.  If anything, I suspect he minimised the effect of his injuries on his capacity to live and work. 
  5. The parties agreed that the dominant injury he suffered was the one to his cervical spine and that it fell to be assessed under item 87 of the Civil Liability Regulation 2003 with an Injury Scale Value (ISV) range of between five and 15.  It was submitted that, having regard to his age, life expectancy, the pain, suffering and loss of amenities of life he had suffered, including a significant impact the injury had had on his role as a father and husband, and because of his multiple injuries, an ISV of 16 was appropriate, equating to an award of damages of $25,100.  The defendant submitted that an ISV of no more than 15 was appropriate to allow for other injuries, leading to an assessment of $23,050.
  6. The other injuries suffered by the first plaintiff coupled with the reasonably serious nature of his dominant injury and its consequences on his daily life seem to me to be sufficient to justify an ISV of 16.  Accordingly, I shall assess his general damages at $25,100.

Special damages

  1. The parties agreed that his special damages total $7,943.95 with interest on out-of-pocket expenses of $2,634.20 at 1.35% per annum.  The period since the accident is now about five years and two months.  Accordingly, I shall assess the interest at $184.00.

Past economic loss

  1. At the time of the accident the first plaintiff had not been employed as an electrician for more than nine months but was helping his wife with the market stall and internet business that she was trying to develop.  He had also been looking for work in Maryborough near where they lived in relation to the rewiring of trains.  He did not obtain such work but did return to full time work as an electrician on 17 June 2013. 
  2. He continued in employment until 13 August 2015, when he resigned from a position at Bundaberg to obtain work closer to home. His family then lived on a small farm at Booyal, still in the Hervey Bay area.  They bought that property in October 2014.  He left the Bundaberg job because the employer wanted most of his employees to become casual with the exception of two whom he kept on full time.  That rang alarm bells in his head and when a friend told him of a new position closer to home he took the opportunity to apply for the job and was taken on by his current employer. 
  3. The parties agreed that employed electricians are paid at a higher rate when working in construction work rather than maintenance electrical work.  The present hourly rate for employed electricians in construction work was $35.00 while the present hourly rate for employed electricians working in maintenance was $27.00 per hour.  The present hourly rate paid to the plaintiff in his employment as an electrician with his current employer performing maintenance work was $30.00 per hour. 
  4. It was also agreed that he commenced employment as an employed electrician installing air-conditioning units on 17 June 2013 and that he was currently employed by a company which largely performed maintenance electrical work rather than the more lucrative construction work. A witness, Mr Rehren, gave evidence that there was plenty of construction work available to electricians living in the Fraser Coast area.  The first plaintiff’s own evidence was, however, that there would not be much industrial work in Hervey Bay.  Mr Rehren also said that working as a self-employed electrician on a part-time basis would not be viable.  Mr Mandrek appeared to accept that he would have difficulty in being a self-employed electrician with his continuing problems since the accident. 
  5. The defendant’s submission was that there was a lifestyle component to the first plaintiff’s choice of work.  There was some substance in that submission.  He lived on a farm next to his children’s school where he was able to work nearby.  His wife gave evidence that they had wanted to live on a farm or a hobby farm with their children and some animals since they first met.  Accordingly, the defendant’s submission was that his past economic loss was not significant.
  6. Mr Mandrek’s case on this component of his damages was that, absent the accident, he may have been able to do more, better paid construction work as an electrician.  The case for the defendant was that there was no evidence that such work would have been available where he lived on a full-time basis and that he did perform some such work doing air-conditioning installations in new residential constructions in any event.  Accordingly, the defendant argued that there was no substantial evidence of his past economic loss.  The defendant also submitted that there was no evidence that his injuries had caused him any unpaid work absences to date, or that he had had more lucrative electrical work which he had had to reject because of his injuries.  Nor was there evidence that he could currently work exclusively in construction related electrical work in his area for $35.00 per hour rather than in his current maintenance related electrical work for $30.00 per hour.  Consequently, the defendant argued that there was no satisfactory evidence that Mr Mandrek had suffered past economic loss. 
  7. The plaintiff’s argument was that I should allow $100.00 per week from 17 June 2013 to the present, approximately 237 weeks, amounting to $23,700 as past economic loss.
  8. Given the absence of convincing evidence about the availability of such construction work as an electrician that he may have wished to take up while working near where he lived with his young family, I am not satisfied that he has established a strong basis on which I could calculate such a claim for past economic loss beyond a relatively notional amount of perhaps $50 per week or $11,350 based on the view that he probably missed some opportunities to earn more than his basic salary.  I have made that assessment because of his relative youth, his good work history, including his natural wish to support his young family and the nature of his permanent impairment. Those are the assumptions I have made for the purposes of s 55 of the Civil Liability Act 2003.  Interest on that past loss at 1.35% for five years and two months amounts to $792.

Past superannuation loss

  1. His past loss of superannuation entitlements should be assessed at the agreed rate of 9.25% of his past economic loss, a figure that I have rounded up slightly to $1,050. 

Future economic loss

  1. Mr Mandrek’s future economic loss claim seems to me to be potentially more significant, however, having regard to the nature of the injuries he suffered and the physical demands likely to be made on an electrician over his future working life.  There was, again, unchallenged evidence from Ms Aitken to the following effect:
  1. the first plaintiff would experience significant difficulties in pursuing self-employment;
  2. even with assistance at work the first plaintiff continues to suffer significant ongoing neck pain and left upper limb paraesthesia;
  3. better management of the first plaintiff’s condition would include a reduction in working hours.  Ideally the first plaintiff would work Monday, Wednesday and Friday - allowing for “rest days” during the week;
  4. the first plaintiff has only ever worked as an electrician and is no longer fit for the full occupational demands of such work;
  5. if (and more likely when) he is forced back on to the open labour market, he would be at a significant disadvantage related to his lack of previous training or experiences in alternative occupations, his rural demographic, his ongoing (injury related) occupational restrictions and history of compensation; and
  6. as a result, the first plaintiff will endure longer and more frequent periods of time out of the workforce.  If he cannot continue in his current position, then it is likely he will work for award wages in alternative employment (the award wage bears direct relevance to those securing work in an entry-level position).
  1. Ms Sorbello submitted for him, therefore, that a significant award for future economic loss should be made bearing in mind the following:
  1. as a full time electrician employed in the construction industry the first plaintiff’s net weekly wage would be $1,033.00;
  2. the first plaintiff is suffering a current loss of $124.00 per week being the difference between his current earnings and those of an electrician engaged in construction work – a loss of $124.00 for the remainder of the first plaintiff’s working life, discounted on the 5% tables (factor = 783) totals $97,092.00;
  3. if, as Ms Aitken recommends, the first plaintiff is required to reduce his hours to part time including rest breaks, his net weekly income would reduce to $608.00;
  4. if the first plaintiff is only able to persist in his current full time employment for three years, his loss totals $288,949.40 being a loss of $124.00 per week for the next three years (145.6), plus a loss of $425.00 per week for 24 years deferred for three years (637.427);
  5. if the first plaintiff is able to persist in his full time employment for a further five years, his loss totals $263,032.00 being a loss of $124.00 per week for the next five years (231.5), plus a loss of $425.00 per week for 22 years deferred for three years (551.528); and
  6. none of the above scenarios accounts for the likely time out of the workforce the first plaintiff will have finding alternative employment in the event that he loses his current employment.
  1. Consequently, she submitted that an appropriate amount to assess his loss of earning capacity was $500 per week for the remainder of his working life of approximately 27 years.  Discounted on the 5% tables that came to $391,500.
  2. Mr Wallace Campbell for the defendants, however, submitted that I should allow only a modest global sum taking into account the lack of evidence of any past work absences, the lack of corroboration of any past work difficulties and the lack of evidence of the availability of any more lucrative work to the plaintiff which he could not do because of his injuries.  He submitted that a continuing loss of approximately $75.00 per week for 28 years to age 67 further discounted by 15% for contingencies should be allowed.
  3. It is impossible to be precise in a calculation of this type, but it does seem to me that there is real potential for Mr Mandrek to suffer significant future economic loss taking into account his disabilities and their likely effects on his future employability.  The risk that he will be unable for significant periods in the future and that he will not be able to work to the capacity previously available to him, coupled with the potential rewards available to tradesmen like him persuade me that he deserves to be compensated to a significant level.  I would assess that impairment of his earning capacity to be $400 per week which, discounted on the 5% tables for a term of 27 years, I calculate to be $313,200.[1]  I would discount that figure further, however, for the normal contingencies, by 15% leading to an assessment for future economic loss of $266,200. 

Future superannuation loss

  1. The future superannuation loss is at the agreed rate of 10% of the assessed future loss, namely $26,620.

Gratuitous services – past and future

  1. Section 59 of the Civil Liability Act 2003 provides:

59 Damages for gratuitous services provided to an injured person

  1. Damages for gratuitous services provided to an injured person are not to be awarded unless—
  1. the services are necessary; and
  1. the need for the services arises solely out of the injury in relation to which damages are awarded; and
  1. the services are provided, or are to be provided—
  1. for at least 6 hours per week; and
  1. for at least 6 months.
  1. Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.
  2. In assessing damages for gratuitous services, a court must take into account—
  1. any offsetting benefit the service provider obtains through providing the services; and
  2. periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.”
  1. The second defendant’s written submissions on this topic were to the effect that while Mr Mandrek was in need of some gratuitous care and assistance for the period immediately after the accident, and particularly within the first four weeks of that period, the evidence of Mr Mandrek, Mrs Mandrek and Ms Aitken, the occupational therapist, was insufficient to establish that the gratuitous care passed the legislative threshold.[2]  In particular, the services were not provided to Mr Mandrek for at least six hours per week for a period of at least six months after the hours for services of the same kind as those which had been previously provided to Mr Mandrek by Mrs Mandrek were deducted from the calculations of the services provided.
  2. It is significant that no diary was kept by either plaintiff of the services said to have been supplied to Mr Mandrek during the relevant periods.  Mrs Mandrek, in this context, gave evidence that the relevant parts of a report by Ms Aitken were accurate with two exceptions: that she no longer washed the cars owned by the plaintiffs, and that they no longer paid for lawn mowing.  Ms Aitken’s evidence was that she was told that Mr Mandrek’s parents provided assistance with child care, washing up dishes and other general domestic tasks to support Mrs Mandrek for about seven weeks at an average of three hours per day.  She also says that Mrs Mandrek took over the majority of the child care, domestic tasks and property maintenance for a period of approximately seven months after Mr Mandrek’s injury.
  3. During the first four weeks the evidence from Ms Aitken was that Mr Mandrek reported receiving no assistance for personal care except on a few occasions when his wife assisted him with dressing his upper body.  He also reported that Mrs Mandrek and/or his mother, while she was there, prepared his meals, undertook associated grocery shopping, laundered his own personal clothing, sheets and towels and completed the household cleaning during that period.  The landlord of the rental property they occupied at River Heads organised and paid for mowing and edging to be completed on his behalf during that period and he was driven to medical appointments and to the chemist by his wife. 
  4. From 27 December 2012 to 31 July 2013, a period of 31 weeks, Ms Aitken refers to improvement in Mr Mandrek’s symptoms and function.  She says he resumed full independence with all personal care but suffered aggravated symptoms every few days, necessitating “fetch and carry” assistance from his wife while resting.  Apparently, he also required assistance with problems with his upper body and dressing on occasions.  He said he resumed his involvement with some light domestic tasks for brief periods and continued to rely on his wife doing the grocery shopping, changing his bed linen, laundering his clothing, sheets and towels and other such items.
  5. He attempted to mow the lawn twice during the period, taking much longer than before and requiring substantial rest afterwards.  He hired a gardener to take care of the lawn mowing and edging, paying him for his work.  He resumed driving during that period but estimated that his wife provided approximately six hours of transport assistance over that period of 31 weeks.  The care provided by his wife reduced, on Ms Aitken’s evidence, from then on. 
  6. Ms Sorbello submitted that the plaintiffs’ evidence on these issues was not challenged but it was clear from Shane Mandrek’s evidence and his cross-examination that he was actively involved in helping around the house and yard before the accident and it is true to say that the evidence led through Ms Aitken does not satisfactorily distinguish between gratuitous services provided by Mrs Mandrek before the accident and those provided afterwards.
  7. In this context Mr Campbell submitted that the mowing and yard maintenance services specified in Ms Aitken’s report were not recoverable because they were not gratuitous, in the main having been paid for by the plaintiffs.  There appears to have been no claim for those expenses as special damages.  There is some evidence that Mrs Mandrek may have taken up mowing of the property at Booyal after they moved there in early October 2014 using a ride-on mower, but the evidence provides no detail of the amounts of time spent on that. 
  8. Mr Campbell also submitted that no baseline assessment of the level of services provided before the accident for Mr Mandrek by Mrs Mandrek had been made to compare with the level of services provided post-accident for him by her. 
  9. Before the accident Mr Mandrek said that he and his wife shared the housework but that she did probably more housework than he did, including her mainly doing the cooking of meals, cleaning of the bathrooms and being mostly responsible for the laundry although he would assist by emptying the laundry basket if it was full and by picking clothes up and putting them into the washing machine and giving them a wash.
  10. He mowed the garden and cleaned the cars and they both did grocery shopping and unpacking of groceries.  He submitted the conclusion from that evidence was that Mrs Mandrek did most of the domestic chores.
  11. Mr Campbell criticised Ms Aitken’s written report as proceeding on a wrong basis.  The submission was that Ms Aitken’s assessment was of Mr Mandrek’s services provided before the accident for the household rather than the services provided for him by Mrs Mandrek after excluding the services provided by her for herself or for their two children. 
  12. He also submitted that there was a legitimate inference able to be drawn from paragraph 38 of Ms Aitken’s report that Mr Mandrek had undertaken more chores around the house after the accident to compensate for Mrs Mandrek’s limited capacities then.  Those submissions seem to me to be reasonably based.
  13. Mr Campbell also analysed the medical records of the treatment of each plaintiff to argue that at best for Mr Mandrek, Mrs Mandrek provided him with only approximately nine hours of transport assistance to and from medical appointments during the six month period after the accident.  The conclusions he sought to draw from those records were not explicitly put to the plaintiffs in their evidence so I do not place as much reliance on that argument.
  14. The absence of any diary seeking to detail the services provided and to distinguish them from services provided by the second plaintiff in particular to the first plaintiff before the accident and the likelihood that Mrs Mandrek was providing gratuitous services of the same kind both before and after the accident lead me to conclude, therefore, that the first plaintiff has not established satisfactorily a proper basis for the award of damages for gratuitous services provided to him.  I am not satisfied that they had been provided for at least six hours per week and for at least six months.  The consequence is that I shall make no award for damages for past or future gratuitous services.[3]

Future expenses

  1. The submissions for the plaintiff were that allowances should be made for the installation of convex mirrors on the right and left rear view mirrors of Mr Mandrek’s vehicle to reduce the arc of neck movement required when he was driving.  Reverse sensors should also be installed into his vehicle for similar reasons.  Ms Aitken also recommended therapeutic intervention into the future for which it was submitted a global allowance of $10,000 was appropriate.  Ms Sorbello also submitted that an allowance should be made for Mr Mandrek to receive regular steroid injections into his neck and to take prescription medication including the costs of travelling to attend on those services at $30 per week discounted on the five per cent tables to amount to $28,500.  In her submission, therefore, future expenses should be awarded at $38,500.
  2. The second defendant’s submission adopted the proposed installation of convex mirrors and reverse sensors plus ongoing periodic replacement of them at $983.24 and a modest global sum for ongoing GP attendances for the prescription of Celebrex of $2,000.
  3. It seems to me that the larger sum is more likely to be an appropriate assessment of Mr Mandrek’s likely needs to those forms of assistance into the future, so I shall award the amount of $38,500 under this head of damages.

The second plaintiff

General damages

  1. Mrs Mandrek was born on 9 May 1975, was 37 at the time of the accident and is now 42.  She sustained a soft tissue injury to the cervical and thoracic spine with a deep abrasion to her left shoulder causing disfigurement.  Both Dr Van der Walt and Dr Fitzpatrick agree that she has a five per cent whole person impairment of her right shoulder but there was a dispute between them as to whether that impairment was caused by the accident.  Dr Van der Walt’s opinion was that, on the balance of probabilities, she had sustained a soft tissue injury to the right shoulder in the accident and the submissions for Mrs Mandrek were that, she having established such a prima facie case, there was an evidential shift of the burden to the defendant to disprove the relationship between the accident and the claimed injury.[4] 
  2. There was a factual issue as to when she first began to complain of symptoms in her right shoulder.  Her evidence was that she had told her general practitioners and hospital doctors from the start that she had pain in that joint.  The first record of such pain occurred on 2 October 2013 and Dr Fitzpatrick made a note that she had told her of an episode in October 2013 where she moved a box and the pain in her shoulder became much more severe and associated with a loss of range of movement.  Her evidence, and it seemed to me to be persuasive, was that she remembered moving a box in October 2014 when she and her husband moved from their first property at Hervey Bay to the property they currently live in at Booyal.  Nonetheless, Dr Fitzpatrick also expressed the view that it was likely that the pain she suffered from October 2013 arose from calcific tendonitis, which was unlikely to have occurred as a result of the accident.  She said that was a condition that could come on without trauma. 
  3. Dr Van der Walt’s view was that the symptoms of her right shoulder were consistent with having been a result of the accident.  He said that injury to one joint in such a high speed accident as she suffered was often overlooked unless there was a specific complaint made of injury to that joint.  He did not find it curious that such symptoms should be first remarked on by him about 10 months after the accident and pointed to an MRI showing a tear of that shoulder with an attendant cyst as supporting the conclusion that she suffered an injury to her right shoulder in the accident leading to tendonitis in that area.  He did not seem to place much significance on the fact that a medical examination at the Hervey Bay Hospital on 29 November 2012 included a note that the right shoulder and arms were “okay”.  He believed that was something the doctor would look at without discussing it with the patient unless there was a deformity or significant swelling of the right shoulder.
  4. It was also submitted for Mrs Mandrek that Dr Fitzpatrick’s opinion was not sufficient to rebut Dr Van der Walt’s, as it was, essentially, that the 10 month delay in reporting of the specific right shoulder symptoms made it less likely that the right shoulder condition was directly related to the accident, and that it was merely possible that the loss of range of movement in the right shoulder referred more to an episode in October 2013 rather than the motor vehicle accident.[5]
  5. Ms Sorbello also submitted that, even if that opinion was sufficient to discharge the second defendant’s evidentiary onus, then it was difficult to reconcile that opinion with Dr Fitzpatrick’s oral evidence that it was likely that the calcific tendonitis was not an explanation for the second plaintiff’s ongoing symptoms.[6]  Other evidence from Dr Fitzpatrick in her oral examination and cross-examination also, in Ms Sorbello’s submissions, supported the view that the plaintiff had suffered a labral tear to the right shoulder with a large paralabral cyst.  A significant episode was required to cause labral pathology so that there had probably been some trauma to the shoulder at some stage which she would have attributed to an antecedent trauma.  Dr Fitzpatrick’s evidence was that it was unlikely to be an intervening incident since the motor vehicle accident.  There is, as was submitted, a complete lack of evidence to suggest that Mrs Mandrek had an antecedent shoulder injury.
  6. I should also say that I found Mrs Mandrek, like her husband, to be a credible witness who did not impress me as someone who was likely to falsify or exaggerate her symptoms.  In my view, therefore, she has established to my satisfaction that the injuries to her right shoulder as well as those to her left shoulder were attributable to the accident.  In those circumstances, the parties were agreed that I should assess general damages in the sum of $11,040. 

Special damages

  1. Special damages were agreed by the parties to total $4,000.  I shall allow interest on those damages at 1.35 per cent for 5.17 years totalling $94.54. 

Past economic loss

  1. The focus of the plaintiff’s claim for past economic loss was in respect of a lost opportunity to earn more income as a swimming instructor.  Ms Sorbello submitted, however, that her claim for future economic loss should also be assessed on the basis that she now has difficulty sitting at a computer for a prolonged period of time.  Her working history included administrative roles, the conduct of her own business as a recruiter and administrative work in running her own cleaning company.  She had also worked as a piano teacher and performed administrative roles in other occupations.  So there was an argument that that would affect her in the future if she were ever to attempt to return to such employment.
  2. Before her children were born she had been in regular employment in the United Kingdom and, just before the accident, had been selling reusable nappies at local markets with her husband’s help.  She found it difficult to lift boxes after the accident but has not pursued any claim for economic loss in respect of that business.  Nor has she pursued a claim for economic loss arising out of a brief period when she worked as a car seat installer after the accident.  She had taken on that work partly because of her gratitude for the protection that the children’s car seats had provided for them in the accident.
  3. Her claim for past economic loss arising from her work as a swimming instructor was based on the effect of the accident on her ability to do more such work than she was able to do after the accident.  She said that the pain in her right shoulder in particular prevented her from doing more work than the weekend work on a Saturday which she took on after the accident.
  4. The opposition to the claim was based on an argument that the work proposed by her that she would do during the week would not have been profitable because of the expense she would have incurred in driving to the swimming school each day.  It was also argued that she had given up swimming coaching to see more of her sick parents as well as to give her arm a rest.
  5. She gave unchallenged evidence that she was offered more hours as a swimming instructor during the week but it was pointed out by Mr Campbell in his submissions that the strength of that evidence was weakened by the failure to call the swimming instructor to support the availability of the work.  Mrs Mandrek’s evidence was that the work was available Monday to Friday.  She could earn at least $22 per hour in performing the work and she said that she could organise cheap child care during the periods she would have worked.
  6. It was submitted that the financial viability of her doing the work should not be affected by the costs of child care in any event, taking into account the decision of the High Court in Wynn v NSW Insurance Ministerial Corporation[7] where it was made clear that child care expenses fell into the category of those incurred merely to provide an opportunity for her earning capacity and were private or domestic in character so that they should not be brought to account in deduction of economic loss otherwise compensable.
  7. I did not understand Mr Campbell to challenge that proposition.  Rather, his argument was that the likely cost of driving to and from the school where the swimming tuition was provided, taking into account not only the costs of fuel but the depreciation and other costs associated with driving a motor vehicle, would make the likelihood that she would pursue such an occupation unrealistic.
  8. Mrs Mandrek gave evidence, however, that she loved doing that work and was likely to be able to rely on her friends for child care as well as subsidised child care available through Centrelink.  It was also submitted for her that the costs of travel would have been incurred in any respect for the Saturday employment she had engaged in and that she would necessarily travel to Hervey Bay where the swimming school was located for other purposes such as grocery shopping, so that those potential costs should not be seen as a disincentive for her to maintain that employment.  There was also some suggestion on the evidence that work as a swimming coach may have been available at another pool closer to where she lived.  In the circumstances, it seems to me that she has established from the evidence some impairment of her earning capacity during the period between the accident and the present.
  9. The absence of evidence from the owners of the swimming school as to the likely number of hours which may have been able to be provided to Mrs Mandrek and the evidence establishing that the swimming school did not operate during every week of the year leads me to the view, however, that the claimed past economic loss at an allowance of $250 per week over the whole of the period since the accident is not appropriate.  Doing the best I can, I have assumed that she may have been able to work for eight hours a week for 40 weeks a year at $22 per hour for a period of approximately five years.  On my calculations, that leads to a figure for past economic loss of $35,200.  Interest on that loss at 1.35 per cent over 5.17 years totals $2,456.78. 

Future economic loss

  1. It was pointed out for the second plaintiff that she has a further 25 years until she is eligible to receive an aged pension.  Until now her remuneration has come largely from administrative work but did also include swimming instruction and cleaning.  Her evidence was that she now had difficulty using a computer for a long period of time because of her right shoulder and the position of her arm. 
  2. It was submitted and it seemed to be an appropriate submission, that, because of her established work ethic, once her children were at school, she would seek out greater opportunities for remuneration.  It was submitted that the impairment of her future earning capacity should be assessed at $350 per week for 25 years discounted on the five per cent tables producing an amount of $246,400.  That seems to me to be a reasonable basis from which to work in assessing her damages, taking into account the likely inhibition of her earning capacity from her injuries and her history of gainful employment in the past in a variety of administrative and other positions.  She struck me as someone with a proven capacity for employment whose capacity to engage in it has been potentially seriously inhibited by the accident.  In my view, however, that figure should be discounted for the usual contingencies by an amount of 15% as I calculated in respect of the first plaintiff.  I shall, therefore, allow the claim for future economic loss in the amount of $209,440.

Loss of superannuation entitlements

  1. The parties agreed that past loss of superannuation entitlements should be allowed at 9.25 per cent and future loss at 10 per cent.  On those figures, the past loss of superannuation entitlements amounts to $3,256 and for the future loss of superannuation entitlements, $20,944.

Future expenses

  1. The second plaintiff claimed $20,000 for future expenses based on her need for future medical treatment, pharmaceutical expenses and travel expenses totalling $15 per week for 46 years discounted on the five per cent tables amounting to $14,340 to which should be added an allowance for surgery recommended by Dr Fitzpatrick costing in the vicinity of $10,000 to $12,000.  In those circumstances it seems to be that the total claimed of $20,000 is appropriate. 

Summary

  1. I assess the first plaintiff’s damages in accordance with the following table:

Head of damage

Amount

General damages

$25,100.00

Special damages

$7,943.95

Interest on out-of-pocket expenses at 1.35% for 4.5 years

$184.00

Past gratuitous care

$0.00

Future gratuitous care

$0.00

Past economic loss

$11,350.00

Interest on past economic loss at 1.35% for 4.5 years

$792.00

Future economic loss

$266,200.00

Past loss of superannuation

$1,050.00

Future loss of superannuation entitlements

$26,620.00

Future expenses

$38,500.00

TOTAL

$377,739.95

  1. I assess the second plaintiff’s damages in accordance with the following table:

Head of damage

Amount

General damages

$11,040.00

Special damages

$4,000.00

Interest on out-of-pocket expenses at 1.35% for 4.5 years

$94.54

Past economic loss

$35,200.00

Interest on past economic loss at 1.35% for 4.5 years

$2,456.78

Future economic loss

$209,440.00

Past loss of superannuation

$3,256.00

Future loss of superannuation entitlements

$20,944.00

Future expenses

$20,000.00

TOTAL

$306,431.32

  1. Accordingly, I shall give judgment for the first plaintiff for $377,739.95 and the second plaintiff for $306,431.32 and shall hear the parties further in respect of costs.

Footnotes

[1] Using a multiplier of 783.

[2]  Relying on Kriz v King [2007] 1 Qd R 327 at 332–333 [18]; [2006] QCA 351 at [18] and Rossi v Westbrook [2011] QSC 311 at [48], an approach not disturbed on the appeal, Rossi v Westbrook [2013] QCA 102.

[3]  As to the need to keep a proper record of the tasks performed in providing gratuitous care see Shaw v Menzies [2011] QCA 197 at [73].

[4]  See Watts v Rake (1960) 108 CLR 158; [1960] HCA 58 and Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34; see also Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 and Hopkins v WorkCover Qld [2004] QCA 155 at [5] and [30]–[34].

[5]  See ex 2-G4.

[6]  T 1-69/35-40.

[7]  (1995) 184 CLR 485 at 495; [1995] HCA 53.

Editorial Notes

  • Published Case Name:

    Mandrek v Marstella & Anor

  • Shortened Case Name:

    Mandrek v Marstella

  • MNC:

    [2018] QSC 8

  • Court:

    QSC

  • Judge(s):

    Douglas J

  • Date:

    31 Jan 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 8 31 Jan 2018 -

Appeal Status

No Status