Disteldorf v Davies[1996] QDC 137

CIVIL JURISDICTION

JUDGE NASE

and

and

MACKAY

DATE 31/05/96

JUDGMENT

HIS HONOUR: This is an action by Rochelle Anne Disteldorf (the plaintiff) for damages for personal injuries sustained by her in a motor vehicle collision on 19 June 1993. When the matter was called on for hearing I was informed that liability had been admitted by the defendant by election. The outstanding issues between the parties therefore related to the appropriate award of damages.

The plaintiff suffered a soft tissue injury to her cervical spine and a soft tissue injury to the left breast and chest. The soft tissue injury to the left breast and chest has settled. She has, however, experienced continuing symptoms associated with a whiplash injury to her cervical spine. Doctor Boyce, a consultant neurologist, thought the plaintiff had undergone a process of disc degeneration at the C5/6 level and (probably) at the L4/5 level as a consequence of the accident. He thought the plaintiff will be subject to periodic headaches in the future. I accept Doctor Boyce's opinion. Indeed, the doctor's opinion was not subject to any serious challenge before me. Doctor Boyce assessed the plaintiff had suffered a permanent partial disability of 7.5 per cent of the body as a whole. I accept this estimate of the plaintiff's disability in preference to Doctor Macfarlane's earlier estimate of 5 per cent.

The principal symptoms presently experienced by the plaintiff are neck pain brought on by activity and associated headaches. The plaintiff suffers, on average, one headache per week. The headaches are moderately severe as they may take a day before being dissipated by medication. The neck pain restricts her ability to carry out heavier work or tasks such as ironing where it is necessary to look downwards while working. The symptoms experienced by the plaintiff have eased over time and now have largely stabilised.

The plaintiff is 29 years of age. The physical effects of the soft tissue injury to her cervical spine and the associated degeneration of the spine have affected many aspects of her life. Her recreational and social activities have been reduced as has her capacity to attend to household responsibilities. She is obviously a person with a strong desire to work but her symptoms restrict her capacity to work and make work a more difficult and less enjoyable part of her life.

The accident itself has also affected her. A clinical assessment by a psychologist (Mrs Britton) suggested the plaintiff has developed a phobic reaction to driving. Mrs Britton thought the plaintiff should be offered therapeutic intervention to assist her with pain management and to assist her resolve her phobic anxiety symptoms associated with driving.

An appropriate award for general damages is in the region of $20,000.00 to $25,000.00. I will allow $22,000.00 for this head of damages. Interest will be allowed on one-third of this sum.

The appropriate award for past and future economic loss was one area of dispute between the parties. The problem in the case lies in the quantification of the plaintiff's undoubted reduction in her capacity to earn. After leaving school, the plaintiff trained as a tailor. She conducted her own business as a dressmaker for some 12 months after that until her family moved to Mackay in 1989. At Mackay she worked as a shop assistant in a convenience store owned by her parents. After that business closed she accepted a position as a sales representative/merchandiser with Regal Bakeries. Her daughter was born on 11 September 1992. At that time she was employed as a cleaner by the Mackay Regional Health Authority. After her daughter was born she experienced difficulty returning to the work force. The Regional Health Authority only offered her cleaning work on a casual basis. To try to supplement her income she did child care, took in ironing and did household cleaning on a self-employed basis. It was at this time the motor vehicle accident occurred (19/06/93).

After the accident the plaintiff found part time employment as a shop assistant at the Cemetery Store (15/09/93 to 03/02/95). Initially she worked approximately 20 hours per week but later on this was reduced to approximately 10 hours per week. In February 1995 she found full time employment as a night filler with Woolworths. The position involved lifting. The plaintiff found that work physically demanding. Eventually she felt she was unable to cope with the physical demands of the work. Her neck was sore and she was experiencing headaches more frequently. In April 1995 she was offered a job as a casual check out operator, again at Woolworths. In this position she normally worked between 20 and 30 hours each week. While the duties of a check out operator were much lighter and easier to cope with than night filling, the constant standing caused her neck stiffness and headaches. She left in October 1995 when she found a part time position as a sales assistant with Target.

At the date of trial, the plaintiff was working 22 and a half hours each week at Target and four hours each Saturday morning with Just Jeans. The Just Jeans position involved both selling to the public and sewing work, altering jeans for customers.

The symptoms experienced by the plaintiff mean that she now cannot carry out any work involving lifting or labouring. Her disability therefore rules out any cleaning or other work with a labouring content such as night filling. She is able to work as a sales assistant. One concern of hers is that she now feels unable to work as a tailor on a full time basis as it is difficult for her to look down for extended periods. If the plaintiff had not been injured it is probable she could have continued working as a night filler until trial. Allowing for all contingencies, I think it is probable the plaintiff has suffered a loss in the region of $6,400.00 as a result of her inability to continue to work as a night filler.

As far as the future is concerned, the plaintiff is suffering a loss of the order of $50.00 per week as a result of her inability to work as a night filler. However, it is problematical how long the plaintiff would have chosen to work as a night filler. She is also at a disadvantage in the work force as she is now limited to work involving lighter duties and she now is probably unable to work full time as a tailor. It is not possible to define with any precision the plaintiff's future economic loss.

In the circumstances, all that can be done is to make a global assessment of this head of damages in recognition of the plaintiff's reduced capacity to earn and her disadvantage on the open labour market. In reaching that assessment it is also appropriate to keep in mind that she may be suffering a present loss of $50.00 per week representing the difference in pay between her present salary and the remuneration she would have received had she continued as a night filler. $25,000.00 will be allowed for this head of damages.

The plaintiff claimed damages for past and future domestic assistance on the Griffiths and Kerkemeyer principle. The plaintiff, because of the symptoms she experiences, finds it difficult to vacuum and mop the house and to clean the bathroom. Her husband now carries out these domestic duties for the household. The plaintiff also finds it difficult to wash and iron. She, in fact, spends about 15 minutes on each week day ironing her and her husband's work clothing. The balance of the ironing and the washing is done by the plaintiff's mother-in-law. Her husband said the cleaning and his other domestic duties takes him approximately four hours a week. The mother-in-law said she spends approximately two hours washing on Saturdays and approximately five hours ironing on Sundays. Mr Myers, for the defendant by election, argued that nothing should be allowed for the Griffiths and Kerkemeyer claim, firstly because the domestic work undertaken by the husband falls within the normal give and take of domestic arrangements between spouses living together and, secondly, because the plaintiff was in fact capable of washing and ironing if that work was spread over a longer period of time.

I agree the plaintiff could carry out more of the ironing duties. I also think the estimate of five hours represents a particularly slow rate that the plaintiff's mother-in-law chooses to adopt. I also agree some of the time worked by the husband should be regarded as falling within the normal give and take of domestic arrangements between spouses. Nonetheless, I think the plaintiff has a reduced capacity to carry out her domestic work in respect of which it would be reasonable for her to obtain paid domestic assistance. Doing the best I can to take into account the different contingencies, I think the plaintiff's need for domestic assistance will be of the order of three hours per week for the next 13 years (until her daughter turns 15 years). After this period I assess the plaintiff's need for domestic assistance to be of the order of one hour per week. These estimates are necessarily imprecise. One of the difficulties in a Griffiths and Kerkemeyer claim is the quantification of the claim. Doing the best I can, $15,000.00 will be allowed for future domestic services on the basis I have explained.

The assessment of the plaintiff's past Griffiths and Kerkemeyer claim is also difficult. In the period after the accident the plaintiff was unable to perform the domestic duties she had assumed within the family. Both the plaintiff's husband and her mother-in-law carried out the domestic work necessary to keep the family functioning. To the date of trial I assess the plaintiff's need for domestic assistance at five hours per week. Immediately after the accident, the plaintiff's need was greater. At the date of trial I have assessed the plaintiff's need to be of the order of three hours per week. On this basis, $7,220.00 will be allowed for past domestic assistance.

On the evidence, I accept the amounts claimed for future medication ($1,200.00), and future psychological counselling ($1,360.00). Special damages ($472.77) were not in dispute. The components of the award therefore are as follows:

I therefore give judgment in favour of the plaintiff in the sum of $80,662.77.

...

I order that the defendant by election pay the plaintiff's costs of and incidental to the action, such costs to be taxed.

It is further ordered that the plaintiff's costs on and from 20 February 1996 be assessed on a solicitor/client basis.