Hulstaert v Nola[1996] QDC 168

CIVIL JURISDICTION

JUDGE BRABAZON QC

and

and

BRISBANE

DATE 09/08/96

JUDGMENT

HIS HONOUR: In this case liability is admitted but the parties cannot agree about the appropriate level of compensation for Mrs Hulstaert.

She was born on 8 January 1949 and she suffered this motor vehicle accident on 9 September 1992. She was therefore 43 at the time of accident and is now 47 years old. She left school at 14, worked as a machinist for about six years and was then married. She has five of her own children and an adopted child.

She sewed at home from time to time and was paid piece rates from a manufacturer in Victoria. In 1980 she moved to Queensland and after 1983 picked up again, doing some of the same work. She shared work activities with her mother and they always did sewing for manufacturers who paid piece rates.

She received a supporting parents' benefit and was divorced by 1990. Because of her family responsibilities she began to receive a supporting parents' benefit and that has continued up to the present time as her youngest child is still only 13. The consequence of that benefit was that she could earn up to $80 a week without a penalty. The result was reflected in her 1989/1990 tax return. It seems that, on the whole of the evidence, she then earned about $60 net a week.

In the years following that 1991 to 1992, no tax return was put in, Mrs Hulstaert saying that her earnings were not high enough to oblige her to do so. She worked as a sub-contractor which seems to have been the preferred arrangement by the manufacturers, but very few financial records were kept. For example, cheques were cashed over the counter and no record kept. She did work for two companies, one called Deb's Uniforms and the other Ankh Proprietary Limited. Her reconstruction of her financial affairs has been made more difficult by some hesitancy on her mother's part in making records available. It seems, at least from a work point of view, that there has been some tension between them.

On all the evidence, and making something of an estimate, I find that her actual earnings up until the time of her accident were in the range of $50 to $60 net a week. She was strongly influenced in keeping her earnings at a very modest level by the wish not to lose her full pension entitlement. On the other hand she owned three of her own machines and was always able to do more work if she had chosen. There is no suggestion other than that she was capable in that line of work.

After her first marriage had broken up she formed another I relationship and became engaged to Mr Keith James in 1992. That was before her accident. It has proved to be a strong relationship and one that has brought her happiness. It has endured the stresses of her injuries and also, it seems, some financial stresses endured by Mr James especially in buying and running a dairy farming property near Biggenden.

By August 1992, that is shortly before the car accident, they had jointly formed the intention to move to Biggenden where he had an interest with his brother in the dairy farm. As events have happened, he now has the whole of the farm. I should say that she had no neck pain or associated difficulty before the accident. She was active in a number of recreations. She used to coach marching girls, an activity which involved fitness especially mobility to swing her arms high and to turn her head to the left and right. She enjoyed 10 pin bowling, a recreation she and Mr James shared; riding which they also shared and she sometimes played darts at the hotel.

The accident happened because a car hit her motor vehicle from behind. She immediately had a sore neck followed by headaches and pains in the shoulders and arms. Despite the usual optimistic advice given in such cases, she was in the category where her symptoms did not improve. They continued and fluctuated over a period of time and she eventually sought treatment for them. It was common ground at the trial, based on the medical opinions, that she had permanent symptoms of the whiplash kind caused by a flexion extension injury in the cervical spine.

Dr James Curtis wrote a report which is in evidence. From a medical point of view, he said that she had been in moderate discomfort following the accident with the pain being aggravated by activity or sustained sitting. Her x-rays were normal. He thought she had sustained an acute ligamentous strain of her neck which has healed with subsequent scarring. He thought she had a five per cent loss of function of her spine as a whole which is permanent and wholly attributable to the effects of her injury.

She needed conservative treatment. However some physiotherapy treatment was indicated. He recorded that she was coping with domestic activities though she had some difficulty doing so and that she had difficulty continuing with her former occupation as a home machinist. As he observed, and as the other evidence indicates, there is some impairment of her recreational and sporting activities which is likely to persist. He thought she was at an increased risk of developing degenerative changes of the neck in later years.

She was examined by Dr David Morgan on behalf of the defendant. His report is not markedly different. He accepts that her condition is a genuine one with permanent consequences leading to an impairment of about seven and a half per cent of bodily function. He had a more optimistic view of her work capacity than did Dr Curtis. He thought that she remained capable of working in a variety of sedentary jobs such as car park attendant, gate attendant or traffic warden being suitable. He thought she might find work as a shop attendant or a factory hand.

He did agree in his evidence that there may well be some difficulties in her using a sewing machine because of the relative positions demanded between the machine and her arms, neck and upper body. He thought though that she should attempt some minor modifications to see if that relieved her symptoms.

She takes various medications for those symptoms. She is having no present active treatment, her physiotherapy having stopped some time ago. She actually has not tried sewing but she is quite certain that she cannot do it and there was no real challenge to that assertion at the trial. She finds difficulty in driving her motor vehicle for more than an hour and she reports three or four painful sessions with her neck each week. She cannot sit for prolonged periods. That, it seems, is the main reason for her reluctance to attempt any further machine work.

She cannot take part in coaching the marching girls any more because of a lack of ability to demonstrate what they should do with regard to swinging their arms and turning their heads. She finds riding too uncomfortable, but she does manage to play some darts at the hotel. That, it seems, is the only recreation left to her.

In 1993 she moved to the town of Biggenden taking with her her youngest daughter. She rented a house there. The purpose of course was to be close to Mr James whose farm was nearby. In early 1996 she actually moved to the farm and started to live together with Mr James and to look after the house there. That meant that she had about two and a half years in the rented house.

They plan to marry but have not done so up to the present time. As I understand it, the real reason for that is the appreciation that she would lose the supporting parent's benefit were she to do so. Apart from that hesitation, it seems that their relationship is a strong, a successful and affectionate one and she looks forward to it continuing into the future.

As for Mr James, he is a man who seems generally fit though suffering from asthma which had an onset when he was an adult. Financially he is struggling with the property. He is assisted by a grown-up son. Mrs Hulstaert does the housework and helps him with the milking. She says that is not too difficult because the machines are attached to the cow's teats while the operator is standing in a pit, so there is not a great deal of bending and stretching. Her symptoms continue. She particularly has headaches in the morning.

I now turn to the question of economic loss which was the main controversy at the trial. The defendants submitted that she should have no compensation for any loss up to trial as it was said she had chosen to move to Biggenden and “there was no work for seamstresses in a country town”. On the other hand, the plaintiff's counsel suggested that she had a loss of about $30 a week up to the present time and also a substantial future loss. It was suggested that she should be compensated by an award in the area of $25,000 for the future.

In my opinion, it is true to say that she would have had greater difficulty in getting the sort of piece work that she had been doing after moving to Biggenden but that is not to say that her earning capacity had been destroyed by the move. I should say that I am proceeding in this case on the basis that she is entitled to be compensated for a lack or damage to her capacity which results in actual financial loss.

Even though she had not had the habit of doing it in the past, it is not hard to see that she might have done sewing of a more private nature such as for local shops which is a common place in country towns or for local residents and families. It seems to me that the greatest restraint upon her would be the continuing wish not to exceed the limit allowed under her supporting parent's benefit.

Also, it has to be taken into account that she was living in town in a rented house with one child who was going to school and had a relationship with Mr James whose farm was not producing a comfortable income. Bearing in mind her past earnings and doing the best with the somewhat imponderable nature of the past three and a half years, it is my opinion that she would probably have worked for the two and a half years at least when she was in town before moving to the farm. If we assume, that even doing work of a private nature, that she earned $40 a week that produces a loss of about $5,000. I find that to be her economic loss up to the present time.

With regard to the future, there are a number of imponderables which nonetheless have to be given concrete shape in reaching a proper view of an award. It seems likely that now that she has moved to the farm, she would not have actually worked on a regular basis in any event. She has the duties in the house to attend to and she also helps Mr James with the milking. It seems natural enough that they should do that and if she had been fitter, I would expect her like anyone in that position, to have done more jobs for him or together with him. It is obvious that they enjoy each other's company and that would be a natural thing to do quite apart from the demands of the farm which otherwise was not returning a large income to pay labourers.

However, that is not the end of the matter. Mrs Hulstaert is 47 years old and the future has to be considered. She has certainly lost a part of her capacity to earn a living and the future includes the possibility that the relationship may break down. Mr James may have an accident or become ill for some reason and not be able to contribute to her financial support providing a farm and a house for her to live on.

Also as her remaining child gets older, the supporting parent's benefit will be lost after a few more years. In short, Mrs Hulstaert may be put into the position where she needs to rely upon her own earning capacity. I am conscious of the fact that that is likely to be a low capacity in financial terms judging by the past and judging by the ready availability of social services to which she is likely to have recourse in the future should she be forced to do so.

To gain an idea of her lost capacity, it would be helpful to think of a loss of $60 a week, which is really the most that one can see as a financial loss at the present time. Over, say, 15 years at five per cent, that would produce a present loss of about $33,000. That figure has to be substantially discounted, in my view, to take into account as I have said the probability that she would not have needed to earn that income but also to give some compensation for the distinct possibility that she will have to do so for reasons of misfortune. Taking that into account and doing the best I can, I fix the future economic loss at $12,000.

In my view, her award should be made with these components: pain and suffering $20,000; interest at two per cent on $10,000 over the 3.9 years - (a figure which I do not immediately have in front of me); past economic loss is $5,000; interest at six per cent on $5,000 over 3.9 years is $1,170; future economic loss is $12,000 and agreed special damages is $1,170. I would be indebted to counsel if they would tell me the interest at 12 per cent on 10,000 over three and a half years and the actual addition of those components which will be in the area of $40,000.

MR GRANT-TAYLOR: Your Honour, allowing two per cent on $10,000 over that 3.9 years would give one $780.

MR MUNRO: I agree, Your Honour.

HIS HONOUR: Well I think that then will come because I have the other figures. I think it is $40,120.

MR GRANT-TAYLOR: Rounded off, yes, Your Honour.

HIS HONOUR: If Mr Munro agrees on the arithmetic-----

MR MUNRO: I agree, Your Honour.

HIS HONOUR: There will therefore be judgment for the plaintiff against the defendant by election in the sum of $40,120. I would like to hear if there are any particular submissions on the question of costs.

...

HIS HONOUR: There will be judgment then against the defendant by election and the costs to be paid by the defendant by election to be taxed.