Rex v Ansett Australia Ltd[1997] QDC 49

BETWEEN:

AND:

CATCHWORDS:

DAMAGES - personal injury - economic loss - effect of pensions - aged pension - wife pension - disregarded in assessing damages and interest.

National Insurance Company of New Zealand Ltd v Espagne (1961) 103 CLR 569 - applied

Redding v Lee (1983) 151 CLR 117 - applied

Camm v Salter [1992] 2 Qd.R 342 - applied

BETWEEN:

AND:

REASONS FOR JUDGMENT - MCGILL D.C.J.

Delivered the 18th day of April 1997

The plaintiff was formerly employed by the defendant at premises at Northgate where it was engaged in sorting and repacking newspapers, books and magazines. In the course of that employment on 8 May 1995 the plaintiff while lifting bundles of newspapers suffered a injury to her back for which she claims damages. Liability is not in issue but it is necessary for me to assess the quantum of her damages. The plaintiff said that while she was turning and lifting a bundle of papers her back cracked and she felt a pain in the back radiating down to her leg (transcript p.8). She took pain killers and continued that day to do some lighter work, and indeed was able to continue working the next three days before seeing a general practitioner on the fourth day (p.31, Exhibit 19), who gave her a certificate in support of a workers compensation claim. She did not return to work and last year her workers compensation entitlement was finalized by a lump sum payment.

The plaintiff had been working for the defendant for some five and a half years, describing her status as a permanent casual (p. 8). She was apparently paid at an hourly rate, and usually worked four shifts which were apparently twelve hour shifts, less times for meal breaks, working Monday, Tuesday, Wednesday and Thursday from about midday to midnight (p. 12, 32). The work however was not necessarily always available, and she said she worked typically 32 to 35 hours per week, earning some $350 - $360 per week after tax (p.8). Her position seems to be relatively secure since she started work when the facility was opened (p.75); at that time she was working much less than she was by the date of the accident, but as time went by her working hours lengthened but never became entirely regular.

The general practitioner whom she consulted gave her a course of physiotherapy, and some hydrotherapy (p.37). Her evidence was not always consistent as to the effect of this, but it seems she did not find it particularly beneficial. She was first referred to Dr Quaile, an Orthopaedic surgeon, in late June 1995. According to Exhibit 2 she told Dr Quaile that the pain had gradually subsided with physiotherapy, as had symptoms in her left thigh. She had a reasonable degree of straight leg raising although somewhat less with the left leg. Dr Quaile referred to a CT Scan taken of the lumbar spine, referred to in Exhibit 7, and concluded that this showed a far lateral disc prolapse at L3-4 level which was probably impinging on the nerve root. The opinion expressed by the Radiologist in Exhibit 7 is that there was a soft tissue mass in the region of the left nerve root L3-4, but she was uncertain as to whether this was a disc fragment or distended left nerve root due to inflammatory change or some other cause and suggested an MRI. The report also shows a minor bulge in the discette L5-S1 which was not thought to be causing any significant compression of nerve roots.

Dr Quaile expected that with further physiotherapy she would continue to improve and in six weeks or so her symptoms should have got to the point where some program for a gradual return to work could have been considered.

In fact the plaintiff did not improve to that extent, and when seen by Dr Quaile on 5 October 1995 was found to be essentially the same as in the first visit and he regarded her condition as then stable. He thought that she was unable to return to any form of work and assessed the permanent partial disability in the realm of 5%, presumably of the whole body: Exhibit 3.

The plaintiff saw Dr John Pentis for the purposes of a report on 12 March 1996. According to Exhibit 10 Dr Pentis's report, the plaintiff complained of pain if she walked any distance and some paraesthesia and a pain in the left buttock. She found the pain radiated into the leg “on occasions”. She had difficulty sitting and sleeping, or standing for long periods, and couldn't lift or carry out gardening. She was taking panadeine forte and tryptanol (for sleeping). There was some tenderness in the lumbar region, good straight leg raising, and some decreased range of movement. Dr Pentis's opinion at the time there was an injury to the lower disc, which he identified in evidence before me as the L5-S1 disc (p.51), and some soft tissue injury and aggravation of degenerative changes. He thought the plaintiff would continue to settle but did not look like returning to heavy activities, although he then thought it was too early to give a definite prognosis.

Later that year there was further investigation of the plaintiff's condition. A further CT Scan was undertaken in May 1996: Exhibit 5. The Radiologist expressed the view that there was a left sided disc protrusion of the L3-4 level which was compressing L3 nerve root, with nothing significant at the L5-S1 level. The plaintiff was seen by Dr Tomlinson, a Neurosurgeon, on 16 July 1996 where she complained of continuing back pain pain which radiated the left leg in the knee, which was constant and sometimes exacerbated, particularly when walking up and down stairs. There was some tenderness in the lumbar region on examination, and some restriction in movements and two tests, a twist test and a compression test which the Doctor said were means of detecting inappropriate complaints were reported as negative, that is to say inappropriate complaints were not illicited. Dr Tomlinson thought her symptoms were suggestive of problems with L3 nerve. He requested an MRI scan the report of which was Exhibit 6: it showed some slight asymmetry of the L3 nerve roots, but no evidence of lateral disprotrusion or a neurofibroma. There was no abnormality detected at the L3-4 level, and minimal bulging of the L5-S1 disc to the right. This prompted Dr Tomlinson to suggest further studies for which he referred the plaintiff to a Dr Todman, a Neurologist, who undertook an EMG examination on 1 January 1996. This test produced changes which were described by Dr Todman as only slight but “consistent with left L3 nerve root irritation”: Exhibit 8.

Dr Tomlinson in his report Exhibit 12 was of the view that the MRI result was consistent with a left lateral disprotrusion of the L3-4 level which had retracted over time. On the basis of all the material he expressed the view in that report that the plaintiff suffered an acute derangement of the L3-4 disc as a result of the incident on 11 May 1995 associated with left lateral disc protusion causing compression of the L3 nerve root, which was suffering continuing irritation. He assessed the symptoms of 20% total permanent partial disability, 10% for the spine, 10% for the left leg. In the witness box he explained this assessment on the basis that it lay towards the more serious end of a degree of disability which he would classify as mild (p.67). He also referred in this and further report Exhibit 13 to the possibility of surgery. In the witness box he was not firm in his support for such surgery (p.66), the plaintiff was opposed to it unless it “guaranteed” some improvement (which would obviously be impossible) (p. 13) and the other medical witnesses thought it was not indicated (Dr Martin p.17; Dr Pentis p.51). In the circumstances I think that the possibility of surgery and any possible consequent improvement should be disregarded.

The plaintiff was seen again by Dr Pentis on 6 March 1997 to provide an updated medical report. She was said to be no better than when seen in 1996, she had difficulty bending and twisting, walking any distance, or either standing or sitting for any length of time, and could not lift or drive a car. She was suffering pain in the left side and paraesthesia radiating down the back of the left leg. There was still some tenderness around the lumbar spine, good straight leg raising on both sides, and slight decrease in the range of movements of the spine. He would assess her incapacity at 10-12.5% loss of efficient function of the spine, and said that she was unable to undertake heavy manual work or activities that required repetitive bending and straining. In the witness box he expressed the view that she would be able to carry out a light job, although this may involve putting up with some pain (p.46). He thought that she could undertake most day to day activities although they might take longer than would otherwise have been necessary, although anything which would involve continuous bending, such as cleaning the bathroom properly, would be beyond her (p.46). He thought that people with this sort of injury tended to work out in time what they could do and what they couldn't do, and developed a way of accommodating themselves to the pain (p.52-3).

He agreed that the plaintiff's symptoms on clinical presentation, and indeed as described to a Dr Martin (whom the plaintiff had seen at the defendant's request) were not indicative of problems with the L3 nerve because they did not correspond with the distribution of that nerve, being much more general, although he thought this might be attributable to problems at other levels, particularly L5 S1 level which he had initially thought was effected, the clinical presentation being more consistent with difficulties at that level. I think the effect of his evidence was that it might be inappropriate to proceed on the basis that the plaintiff had not suffered any injury other than some interference with the L3 nerve root.

The plaintiff saw Dr Bruce Martin, an Orthopaedic surgeon, 9 September 1996. She reported to him that the only treatment she had received was physiotherapy, that although this had “got me walking” it had overall not been helpful, and at times would aggravate her pain. I should say that the plaintiff denied having told Dr Martin that the physiotherapy achieved this result, although she then seemed to concede that it did assist with her mobility at the time (p.75). She complained to Dr Martin of pain from the waist to the left buttock, lateral left thigh, with a consistent throbbing pain in the left flank area, like a toothache. The pain might be exacerbated by for example turning too quickly, or by housework, prolonged standing or sitting. She was unable to walk very far, or do any gardening, or to mop or vacuum.

Dr Martin thought the plaintiff did not appear to be in any distress, and seemed able to bend easily, and produced a good straight leg raising on each side of 100°. He thought that her complaints and aspects of her presentation were inappropriate. He thought there was a gross discrepancy between them and the clinical and radiologically detectable pathology. Dr Martin noted no evidence of quadriceps muscle weakness, the muscle served by the L3 nerve, no thigh wasting, no inhibition of the knee jerk: Exhibit 17. He was sceptical as to the incurrence of any significant injury on 8 May 1995, and thought that, on the basis of his observation examination and the medical reports which were available to him, that there was no genuine disability as a result of any spinal condition. On the other hand he thought that if her symptoms were to be accepted at face value she had a level of disability of the order of 50%. Dr Martin expressed the view in a further report Exhibit 17, and in the course of his oral evidence (p.16), that a disc protrusion does not retract, at least one which is sufficient to cause nerve root compression. He did however concede that sometimes a protrusion will suffer some loss of fluid which would cause it to shrink (p.23), and it may be that the argument here is about just what is meant by the term “retracted”. I should say that both Dr Pentis and Dr Tomlinson expressed the view a disc protrusion could retract, Dr Tomlinson supporting this opinion with reference to articles in the medical literature where cases of this having occurred was said to have been demonstrated radiologically (p.59). Dr Pentis conceded that an MRI scan was more reliable than a CT Scan, although as he said the only was to be certain of what really is going on is to open up the back and have a look (p.49).

I have difficulty in accepting that the explanation for the discrepancy between the CT Scan conducted in May 1996 which reported a disc protrusion which was compressing the L3 nerve and the MRI conducted in July 1996 which showed no abnormality at that level, can be explained by a retraction of the disc occurring during that two month period, given that, if the CT Scan report in Exhibit 5 is accurate, the disc was still protruding and compressing the left L3 nerve root some twelve months after the original injury. Although it may well be the case that discs can retract at times, I prefer the explanation that the MRI provided a more accurate picture of the state of the plaintiff's back.

As I have said Dr Tomlinson thought there was no inappropriate response, although to some extent he checked for it (p.59-60). Dr Pentis thought that here was some exaggeration of the symptoms, in a way that he thought was typical of medico legal cases: he expressed the opinion in effect that some 90% of such cases tended to report their symptoms rather more fully and colourfully than other patients with similar injuries (p.54). I rather took it from this that Dr Pentis thought it was appropriate, in this case as in many other cases, to take the patient's complaints of symptoms with a grain of salt when making an assessment of disability, and I rather suspect that it is not uncommon for Judges to do the same thing. Indeed, it appears that the other Doctors who have assessed the degree of disability have done the same thing, since Dr Quaile's assessment was 5% and Dr Tomlinson's assessment was 20%, in each case substantially less than the 50% which Dr Martin said would be appropriate if the plaintiff's complaints were accepted at face value.

I suspect that Dr Martin may have been inclined to put too much emphasis on the discrepancy between the plaintiff's complaints and the physical signs and concentrate too much attention on the question of whether the clinical presentation was consistent with problems with the L3 nerve root, without perhaps considering the possibility that chronic pain associated with that nerve root could have produced referred pain or more generalised pain in other areas, a proposition advanced by both Dr Pentis (p.54) and Dr Tomlinson (p.65). There is also the possibility suggested by Dr Pentis that the plaintiff's actual injury was not confined to the L3-L4 level.

The plaintiff gave her evidence in a straight-forward manner, and at times became somewhat upset at the suggestion that her complaints of pain were not genuine. She walked to and from the witness box with the aid of a walking stick (which Dr Pentis thought was not indicated with her condition), and appeared to be holding her spine in a somewhat artificial position, but Dr Tomlinson was of the view that this might have been a reaction to pain in the spine (p.69), and Dr Pentis also thought that this was not necessarily suspicious (p.55). There was nothing about the plaintiff's presentation or manner or the substance of her evidence which caused me to have any grave doubts about her reliability, but there was some inconsistency in her evidence, and there has also been some inconsistency in the different complaints of pain that she has made from time to time, and I am not prepared to accept everything she says at face value. I think the appropriate approach for me to adopt is the one that I would attribute Dr Pentis, of taking her evidence with a grain of salt. In other words I think there is some exaggeration of her symptoms, but that otherwise her evidence is generally reliable. I do not think there is the sort of exaggeration that Dr Martin suspects. I think the plaintiff does suffer real pain continuously, with the pain becoming worse on occasions when something has aggravated it, and that this does interfere with and restrict her ordinary activities of life (p.9).

The plaintiff was born 30 June 1941 (Exhibit 2) and is therefore now 55. She is married living with her husband who is now in his early 70's, and also with a 21 year old daughter who was said to be mildly disabled (p.10, 41). She had other children who have left home. She had been working for the defendant for some five and a half years before the day of the accident, and prior to that for a few months in a similar position with another company. Before that she had not been in employment for some eighteen years, while she was caring for her children (p.10). Earlier still there had been periods when she had worked as a nurse's aid. She originally left school at the age of twelve, although subsequently she was able to complete to junior standard. She has no experience in clerical work, and no computer skills, and she said that she was not a good scholar (p.11-12). She told me that the effect of the accident was to interfere with her ability to do gardening, and to prevent her from following in previous recreation of ten pin bowling which she had formally undertaken weekly (p.14). In the light of the evidence as a whole I accept that the plaintiff is suffering some constant pain but that it is relatively mild. The assessment of degrees of pain is very difficult matter, and it is one where I think I should be particularly guided by the evidence of the medical witnesses who have the opportunity of seeing large numbers of people who are suffering pain. I think that the assessment of Dr Tomlinson, that he would regard the plaintiff's disability as towards the heavier end of mild, and the evidence of Dr Martin that the plaintiff did not appear to be in any distress when he saw her (Exhibit 16 p.3), and the assessment of Dr Pentis that the plaintiff would still be able to work as long as heavy duties lifting and bending were avoided, as significant. I accept that at times things occur which aggravate the plaintiff's condition and that this does produce more severe pain. I think it likely that as time goes on the plaintiff will learn to cope better with her pain, and learn in a sense to rebuild her life around it. That will reduce the functionally disabling effects of the pain. On the other hand I think it likely that as this occurs and as she becomes less preoccupied with avoiding things that cause pain she is likely in fact to suffer more pain, particularly if as I think is likely to happen she ultimately does obtain some form of light employment, and I am making allowance for this in the assessment in the future for pain and suffering. The plaintiff's x-rays show some very early signs of degeneration of the spine; in this regard I prefer the evidence of Dr Pentis (Exhibit 10) to the evidence of Dr Martin (Exhibit 16) who thought there was none. Nevertheless this is not a case where one would expect the plaintiff to be suffering significant back symptoms in the short term in any event, and I think that apart from the accident the plaintiff would probably have been symptom free in the medium to long term, although obviously she may well have developed back problems in any event as she became older.

I assess damages for pain and suffering and loss of amenities of $25,000, which I attribute to $10,000 to the past. In making this assessment I have had particular regard to the following decisions: Fernandez v Epoca Constructions Pty Ltd (Mt Isa Plaint No. 11 of 1992, Daly DCJ, 25/11/94); Snowden v Bells Transport (Cooroy) Pty Ltd (Plaint 1696/90, McLauchlan DCJ, 26/8/94); Noonan v Gardner (Rockhampton Plaint 84/94, Nase DCJ, 17/11/95); Johnstone v McDonald (Bundaberg Plaint 40/95, Forde DCJ, 29/11/95); Roberts v Samford Rural Services (Plaint 1568/92, Kimmins DCJ, 78/94); Coyne v Samootin (Plaint 3310/96, McGill DCJ, 13/12/96).

Interest is to be calculated on the $10,000 less the payment of $1,851.25 made by way of disability settlement: Exhibit 14: see Haines v Bendall (1991) 172 CLR 60. I allow interest on $8,150 at 2% for 1.9 years which I round off to $300.

Economic Loss

The plaintiff was at the date of the accident earning about $350 per week after tax: p.8. Her position seems to have been relatively secure, but the amount of time she had to work depended on the level of work to be done, so that there was some element of risk involved in the employment. She said that she proposed to continue to working until she was 65(p.13) although under cross-examination she expressed this as 60-65 (p.42). The work she was doing sounds to be quite heavy, and indeed the plaintiff described it herself as doing a man's job: p.12. Dr Tomlinson would not have expected the plaintiff to be doing that sort of work for ten years past the time of the accident: p.70. I think it would be more realistic to assume that the plaintiff would have only been doing this sort of heavy work for perhaps seven years after the date of the accident, although she would then have been able to move into lighter work, and I think it likely the plaintiff would have been in some form of employment until age 65, subject to the ordinary vicissitudes of life. The position now is that the plaintiff doesn't feel that she can do any work, and has not sought employment since the time of the accident: p. 72. Dr Pentis thought that the plaintiff would be able to do light work: p.46. Dr Tomlinson was of the same opinion, although he thought that it would be in practice difficult for her to obtain a suitable job: p.66. In the light of this evidence I am not persuaded the plaintiff's earning capacity has been destroyed, or that she will never work again, but I think it is appropriate for me to take into account that it would be difficult for her to obtain employment which was within her remaining capacity, and that her current capacity would be for work which was much lighter than the work she had been doing, gave her more flexibility in terms of adjusting her posture as required, and did not involve much in the way of bending or lifting. I do not consider the circumstances imposed upon the defendant an onus of showing that there is a job or jobs available which the plaintiff is capable of carrying out. Apart from anything else, the plaintiff's evidence was that she has not sought to locate any employment which is within her remaining capacity: p.72.: See Adsett v Noosa Nursing Home Pty Ltd (Appeal 223/95, Court of Appeal, 6.12.96, unreported) per Pincus J.A. at p.9, McPherson J.A. agreeing. In the circumstances I think that the appropriate approach is to make only a relatively small reduction in the damages which would be awarded if her earning capacity had been wholly destroyed to take into account residual earning capacity. Counsel for the plaintiff did not submit that the plaintiff was unable to work at all, since the evidence showed she was capable of light work, but he asked me to take into account that it would be difficult for her to get any kind of job, and I think this is the correct approach.

One matter which arises in relation to the question of economic loss is that, because of the age of the plaintiff's husband, she has for some time being qualified to receive a pension, which is payable because she is the spouse of a person to qualify to receive an aged pension. She described this as a wife's pension (p. 12) and said that it had been reduced although not eliminated when she went to work. The effect of her ceasing work has been that she is now receiving the full pension again, and she said that at the moment this was paid to her at the rate of $292 per fortnight: p.40. She had a long period off work, before she returned to work in order to supplement the pension. Counsel for the defendant submitted that the availability of this pension should be taken into account in assessing how long the plaintiff was likely to continue at work, and although I think there is some force in that submission it is not a major consideration given that the plaintiff had returned to the workforce after the entitlement to the pension arose.

The effect of a pension on the assessment of damages for economic loss has been the subject of some authority over the years. The traditional approach has focussed on the question of whether the legislative intention was that the benefit of receipt of a pension of this nature should go in diminution of the defendant's responsibility to pay damages, and on that basis it has been held that various social security benefits should be disregarded: National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569; Lindquist v Maier [1980] Qd.R 203 (widow's pension). This equates pension entitlements with things like charitable gifts or private insurance payments, and is in my opinion a somewhat artificial approach to take given the nature of something like the aged pension. The reasoning is based on the presumed intention of the legislature and subsequently there have been some substantial provisions introduced into the social security legislation which provide for many of these payments to be recouped out of a damages award. It was suggested by Thomas J. in Camm v Salter [1992] 2 Qd.R 342 at 347 that the test framed in Espagne's case (supra) is no longer appropriate to the legislative scheme, and I would with respect entirely agree. The fact is that the plaintiff was always qualified to receive this pension and because she was not receiving an income the rate of which the pension was paid was higher than it would have been had she been working.

The fundamental principle of compensatory damages is that the plaintiff is entitled to full of this evidence I am not persuaded the plaintiff's earning capacity has been destroyed, or that she will never work again, but I think it is appropriate for me to take into account that it would be difficult for her to obtain employment which was within her remaining capacity, and that her current capacity would be for work which was much lighter than the work she had been doing, gave her more flexibility in terms of adjusting her posture as required, and did not involve much in the way of bending or lifting. I do not consider the circumstances imposed upon the defendant an onus of showing that there is a job or jobs available which the plaintiff is capable of carrying out. Apart from anything else, the plaintiff's evidence was that she has not sought to locate any employment which is within her remaining capacity: p.72. : See Adsett v Noosa Nursing Home Pty Ltd (Appeal 223/95, Court of Appeal, 6.12.96, unreported) per Pincus J.A. at p.9, McPherson J.A. agreeing. In the circumstances I think that the appropriate approach is to make only a relatively small reduction in the damages which would be awarded if her earning capacity had been wholly destroyed to take into account residual earning capacity. Counsel for the plaintiff did not submit that the plaintiff was unable to work at all, since the evidence showed she was capable of light work, but he asked me to take into account that it would be difficult for her to get any kind of job, and I think this is the correct approach.

One matter which arises in relation to the question of economic loss is that, because of the age of the plaintiff's husband, she has for some time being qualified to receive a pension, which is payable because she is the spouse of a person to qualify to receive an aged pension. She described this as a wife's pension (p.12) and said that it had been reduced although not eliminated when she went to work. The effect of her ceasing work has been that she is now receiving the full pension again, and she said that at the moment this was paid to her at the rate of $292 per fortnight: p.40. She had a long period off work, before she returned to work in order to supplement the pension. Counsel for the defendant submitted that the availability of this pension should be taken into account in assessing how long the plaintiff was likely to continue at work, and although I think there is some force in that submission it is not a major consideration given that the plaintiff had returned to the workforce after the entitlement to the pension arose.

The effect of a pension on the assessment of damages for economic loss has been the subject of some authority over the years. The traditional approach has focussed on the question of whether the legislative intention was that the benefit of receipt of a pension of this nature should go in diminution of the defendant's responsibility to pay damages, and on that basis it has been held that various social security benefits should be disregarded: National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569; Lindquist v Maier [1980] Qd.R 203 (widow's pension). This equates pension entitlements with things like charitable gifts or private insurance payments, and is in my opinion a somewhat artificial approach to take given the nature of something like the aged pension. The reasoning is based on the presumed intention of the legislature and subsequently there have been some substantial provisions introduced into the social security legislation which provide for many of these payments to be recouped out of a damages award. It was suggested by Thomas J. in Camm v Salter [1992] 2 Qd.R 342 at 347 that the test framed in Espagne's case (supra) is no longer appropriate to the legislative scheme, and I would with respect entirely agree. The feet is that the plaintiff was always qualified to receive this pension and because she was not receiving an income the rate of which the pension was paid was higher than it would have been had she been working.

The fundamental principle of compensatory damages is that the plaintiff is entitled to full compensation of the loss he sustains as a result of the defendant's wrong: Hungerfords v Walker (1989) 171 CLR 125 at 143. This generally involves a comparison between the position in which the plaintiff would have been if the wrongful act had not occurred and what relatively represents the position in which the plaintiff is or will be after the occurrence of the wrongful act: The Commonwealth v. Amann Aviation Ltd (1991) 174 CLR 64 at 116. See also Keddell v Regarose Pty Ltd [1995] 1 Qd.R 172 at 178. It seems to me to be inconsistent with this fundamental principle not to take into account the effect on the rate of which the pension is paid when assessing the plaintiff's economic loss. This has been recognised for example by Gibbs C.J. in Redding v Lee (1983) 151 CLR 117 at 122, but as His Honour pointed out the authorities do not always apply that principle. In the same case Deane J. regarded the situation as an anomaly: p.167.

In the case of unemployment benefits, the position is now clear that as a result of the amendments in 1986 they should not be taken into account, except for the purposes of assessing interest on past economic loss: Muscat v Statewide Industries Pty Ltd [1988] 1 Qd.R 637; Dabinett v Whittaker [1989] 2 Qd.R 228. Unemployment benefits are now called a “newstart allowance” which is a “social security benefit” as defined in section 23(1) of the Social Security Act 1991 (Commonwealth), and is therefore a “compensation affected payment”: section 17(1). Such a payment is not payable during what is described as the lump sum preclusion period - section 1165 - and if lump sum compensation is received and a compensation affected payment has been received the secretary of the department may determine by notice that there is a liability to repay the amount specified in the notice: section 1166. An award of damages is lump sum compensation, and although the calculation of the lump sum preclusion period does not necessarily precisely follow the basis of any assessment of damages (particularly when a claim is settled without proceeding to judgment) there is a clear expression of a legislative intention that people who receive compensatory damages should not also receive unemployment benefits, and that it is the liability of the Commonwealth to pay the benefits which should be reduced. There is in the Act a discretion to override these provisions in terms of future entitlements, which has accumulated some authority, but that is not relevant for present purposes.

The Parliament has now amended the Act so as to equate the aged pension with unemployment benefits, but only in respect of a situation where lump sum compensation is received after 20 March 1997 (which will be the case) and where the provisional commencement day for the aged pension is also on or after 20 March 1997: section 1163(11). The fact that this amendment was made however, detracts even further from the justification of the reasoning in Espagne (supra). The provisional commencement day is the date upon which an application is first made for the aged pension, or, if the person making the application is not qualified to receive it at the time when the application is made, on the day when the applicant first qualifies for receipt of the pension: section 46. It seems somewhat unsatisfactory for there to be a situation where benefits under the Social Security Act can be divided into those which are refundable in the event of the payment of lump sum compensation (and therefore are not to be taken into account when assessing damages) and those which are not refundable in the event of the recovery of lump sum compensation (and are, in accordance with the principle in Espagne, not to be taken into account when assessing damages).

The present plaintiff receives a wife's pension, which does not appear to be within the definition of compensation affected payment in section 17(1) of the Act unless it is paid to a woman because her partner is in receipt of a disability support pension, a disability wage supplement, or an invalid pension: s.17. The amount is the same as the age pension: s.1064. The wife pension is being phased out, and no women will qualify for one after 30 June 1995: s.146v(1). Thereafter it will be necessary to come within some other provision of the Act, and the suggested alternatives are all within the definition of compensation affected payment in s.17(1). The plaintiff became qualified to receive a wife pension on the basis that her husband received an age pension: s.147(1). There is a similar provision in relation to a provisional commencement day. The fact that a wife pension payable on some grounds is a compensation affected payment explains s.148(1)(b). No doubt the fact that the wife pension is being phased out anyway explains why it was not made a compensation affected payment when the age pension became one. It seems therefore that an entitlement to a wife's pension based on an aged pension is not effected by the compensation recovery provisions in parts 3.14, unless it is by virtue of some effect on the entitlement of her husband to receive an aged pension.

I have not been able to find any authority which considers the question of whether the principle in Espagne applies to a wife's pension, or indeed an aged pension, but there is a general statement in the judgment of Mason and Dawson J.J. in Redding v Lee (supra) that generally speaking pension and superannuation benefits are not to be taken into account in assessing damages, and in this respect differ from payments which can be seen as a substitute or partial substitute for wages, such as unemployment benefits: pp. 138-139. Approaching the matter on this basis, it seems to me that a wife's pension is properly put in the former rather than the latter category, and I would, with some reluctance, conclude that the application of the principles laid down by the High Court requires in the present case that I ignore the wife's pension when assessing both past and future economic loss. The reasoning in Camm v Salter (supra) would appear to lead to the conclusion that it is appropriate to ignore it also when assessing interest on past economic loss.

With regard to past economic loss the plaintiff has not worked since the end of the week in which the accident happened. I am satisfied that the plaintiff's failure to work during that period was caused by the injury suffered: Medlin v SGIC (1995) 69 ALJR 118. There is no plea that the plaintiff has failed to mitigate her loss, and in any case on the evidence I am not persuaded that the plaintiff has unreasonably failed to obtain employment during the period up to trial. There is no evidence of the earnings that the plaintiff would now be making if she was still in the job, so it is appropriate to proceed on the assumption that the level of $350 per week nett would have continued. The relevant period from 15 May 1995 to 18 April 1997 is one hundred weeks, but some allowance should be made for holidays which I assume would be unpaid since she was a casual worker, and I therefore allow past economic loss in the sum of $34,000. Interest on $17,543 (allowing for the gross weekly worker's compensation benefits of $16,457: Exhibit 14) at 5% per annum over 1.9 years with some rounding comes to $1,665.

With regard to future economic loss, as I have indicated earlier in my opinion if the accident had not occurred the plaintiff would probably have been doing heavy work for perhaps another five years, and thereafter some lighter form of employment for perhaps another five years. There also must be some allowance for the ordinary vicissitudes of life, and some allowance for the residual earning capacity of the plaintiff. I do not think that a large allowance should be made for this, given the difficulty that the plaintiff would face in finding suitable employment, but I think some allowance should be made as I am not pursuaded that the plaintiff will never do any paid work in the future. On the whole I think that if I allow a loss of earning capacity of $350 a week for the next five years, without any discounting, but nothing thereafter, the over-compensation during the next five years and the under-compensation thereafter will in terms of present value effectively cancel out and the outcome will be an assessment which is fair to both parties. The present value of $350 per week over five years, discounted at 5% per annum, is $80,740, which I would round down to $80,000.

Special damages are agreed at $3,500 together with an agreed interest component of $88: p.4. It was agreed that in lieu of a Fox v Wood component the plaintiff should receive a sum of $200 as the cost of an application for reassessment, and I allow that sum: p.5.

The remaining issue is one of gratuitous care provided by the plaintiff's husband. The plaintiff's evidence was that her husband spent about five or six hours a week in doing what I take to be things which the plaintiff says she cannot do for herself now p.10. This included washing every day, vacuuming every second day, doing grocery shopping and ironing, cleaning of the bathroom and toilet. Dr Pentis on the other hand was of the opinion that the plaintiff could cope with chores such as vacuuming provided they were done in short stints, although it was reasonable to have a bit of help for more strenuous activities like cleaning bathrooms and showers: p.46. It must be remembered in the future I would expect ordinarily the plaintiff will no longer be in employment, or at least not in employment as time consuming as she otherwise would have had, and will therefore have ample time to deal with household tasks in a way which although more time consuming places less of a strain on her spine. I accept the evidence of Dr Pentis on this matter, and I would assess the plaintiff's reasonable need for domestic assistance as a result of her injuries at two hours per week. The agreed rate for such assistance both past and future is $10 per hour: p.5. I therefore allow $2,000 for past care and assistance (allowing a small amount for extra care at the beginning of the period) and allow interest on this at 2% for 1.9 years rounded to $75. I allow future care and assistance of two hours per week at $10 per hour over a period of fifteen years, discounted at 5%, which with some rounding is $11,000.

Conclusion

The assessment of damages is therefore as follows:

I therefore give judgment for the plaintiff for $134,943.84 together with $2,128 by way of interest.