DISTRICT COURT OF QUEENSLAND

1. [1]
   On 6 October 1997 the first plaintiff was crossing the pedestrian overpass over the Ipswich Motorway adjacent to Goodna Railway Station when her foot slipped and she began to fall: p. 9. She grabbed one of the vertical rails within the balustrade on the side of the footbridge and was able to avoid falling to the ground, but she immediately felt a pain in the top of the left thigh. She suffered an injury to the gluteus medius muscle in the vicinity of the area where it is attached to the left hip. This is a painful condition, and she has been in pain ever since. By this action she claims damages in respect of that injury, and her husband claims damages for loss of consortium. The action against the second defendant was discontinued in March 2002. The first defendant accepted liability on the second day of the trial, but it remains to assess quantum.

2. [2]
   The plaintiffs at the time lived not far from the railway station, although the journey home required climbing a hill: p. 14. She limped home, her leg being very sore, and had an early night: p 12. The next morning the leg was still sore but she walked as usual to the railway station and caught the train to work, although the pain kept getting worse, and she was not able to complete a full day’s work. She came home to see a doctor, but was not able to get an appointment until the next day. During the night she woke screaming, and by this time she could not move the leg at all. The pain was quite intense: she said she felt at the time that it was worse than childbirth (she has two children).

3. [3]
   The following day she was able to get to a doctor. The treatment he prescribed was four weeks at home lying in bed as much as possible, with the use of ice and pain killers to dull the pain, and using crutches if she had to get up to go to the toilet: p. 13. For the latter part of the four weeks she was able to get up to some extent and became a bit more mobile (p. 121), and after the four weeks she returned to work, although her duties were changed so that she did not have to go out of the office.

4. [4]
   The plaintiff^[1] then worked, and has worked since the accident, for the Australian Taxation Office^[2], generally in the debt recovery section.  Prior to the accident she was involved in recovery procedures which required her to be out of the office frequently, filing or serving documents, attending meetings, or instructing officers of the Australian Government Solicitor:  p 6.  After the accident she gave up the work which would have taken her out of the office, and just worked from a desk:  p. 13.  However, the pain was still present and she took another three days sick leave in November 1997.  She also undertook physiotherapy, apparently commencing in March 1998 and continuing until 18 April, recommencing in May 1999 and continuing until September 1999.  (There may have been some earlier physiotherapy not covered by Comcare:  p 13).  Although at this stage the plaintiff was still working full time, she was finding it very painful by the time she returned from work, and some nights she would cry herself to sleep:  p 13. 

5. [5]
   In order to make it easier to get to and from work, the plaintiff purchased a new, automatic car on 16 December 1997 (Exhibit 2) which the plaintiff used to drive to and from the railway station: p. 14, p. 114. It cost $29,000: p. 26. That use of a clutch would cause increased pain (p. 14) was confirmed by Dr Gillett: Exhibit 1. Her husband has a utility he drives to work: p. 114.

6. [6]
   The plaintiff continued to work full time^[3] until July 1998 when she left work (p 15) in order to give birth to her second child:  she returned to part time work in June 1999 (p 17) and has been working part time ever since.  She remains technically a full time employee, and the reduced hours are by agreement and negotiated for twelve months at a time, but this is apparently readily available.  Originally she was working 4 hours a day five days a week:  more recently she has increased this to 25 hours a week:  p. 17.  Nevertheless, she said that she thinks this is the most that she can cope with given the continuing pain.  She has had her workstation adjusted by Occupational Health and Safety people, but it made no difference:  p. 55-6. 

7. [7]
   The pain has never gone away, and apart from some reduction during and after the initial few weeks after the accident (p. 67), it has not abated. She has to some extent learned to avoid doing things which particularly aggravate the pain, and there are some particular movements which cause problems (p. 14, p. 48), but doing practically anything except lying down causes pain (p. 17), and doing any particular thing for any length of time seems to make the pain worse. At best she has a dull ache: p. 13. Often by the time she goes to bed she has a throbbing pain: p. 17 and see p. 27.

Medical evidence

8. [8]
   The nature of the plaintiff’s injury was explained by Dr Gillett, an orthopaedic surgeon, who examined the plaintiff for the purposes of a report in June 1998 and again in October 2001: Exhibit 1. His diagnoses of the injury to the gluteus medius muscle was confirmed by an MRI scan on 10 October 2000, so there is no doubt the plaintiff has suffered a genuine injury. The injury is a tear in the muscle, one of three which are involved in hip motion: p 44. The particular injury is one that has only been clearly identified in recent years. It was originally noted by researchers who observed the condition in connection with hip replacement operations. The condition is one which can produce chronic pain (p 44) for reasons that are not yet clearly understood, and is a difficult condition to treat in general: p. 45. Her complaints are characteristic of most patients he saw with chronic pain from this condition: p. 51.

9. [9]
   Dr Gillett would not recommend surgery for the condition in the plaintiff, or indeed in any other patient now, because of the risk of complications. He said when he was younger he did this surgery and the results were not good: p 45. He said that effectively all movement could stir up the pain, because the hip is involved in most things that one does: p 45. He said that the plaintiff can do various things, but that there will be more pain generated for her by doing them: p 47. The condition will not become worse, and indeed activity, even painful activity, does not actually make the underlying condition worse, just more painful, but given the time that has passed there is only a small chance, less than 20%, of further improvement: p 52. He assessed 5% permanent impairment of lower limb function. I accept that.

10. [10]
    The plaintiff was also seen on 19 May 1999 by Dr Myers, a physician, for the purposes of a report: Exhibit 1. Dr Myers did not have the benefit of the later MRI, and attributed the plaintiff’s injury merely to severe soft tissue injury. Dr Myers also thought that the pain was likely to be permanent, and assessed the enduring disability at a 4% loss of function of the left lower limb. He was not cross-examined.

11. [11]
    The plaintiff was seen by an occupational therapist, Ms Stephenson on 22 October 2001 for the purposes of a report:  Exhibit 1.  The complaints to Ms Stephenson were essentially the same as the complaints made by the plaintiff in the course of her evidence.  Ms Stephenson, who is quite familiar with the work undertaken by officers in various sections of the Australian Tax Office in Brisbane (p. 142), agreed that the plaintiff was capable of sedentary work in that environment up to her limit of five hours a day, although she would be more comfortable working only four hours per day:  p. 137.  Because of her chronic pain, it was unrealistic to expect her to work for a full day:  p. 140.  Her assessment was that the plaintiff had been trying hard when performing the various tests that she had administered:  p. 138.

Analysis

12. [12]
    For practical purposes therefore the effect of the injury on the plaintiff is going to depend a great deal on her pain tolerance. What she is able to do will be whatever generates as much pain as she is prepared to tolerate. The plaintiff is doing various things such as going to work which would be likely to make her condition more painful, but she puts up with that because of her desire to continue to work. Because of her pursuit of that desire, she is left with less ability to persevere to do other things which also aggravate the pain. She now receives considerable assistance in doing housework, and some more strenuous recreational activities are now avoided. To some extent she perseveres with gardening, partly because she can take it at her own pace and stop when she feels she needs to, and no doubt partly because it is an activity she particularly enjoys: p. 70.

13. [13]
    Therefore there are a series of trade-offs involved (p. 51): there is only so much pain that she can tolerate, and therefore there is only so much activity which she can undertake. Not all activities generate the same amount of pain, but all activity generates some pain, and it is a matter of working out the appropriate mix and overall balance.

14. [14]
    It is therefore unhelpful to point out for example that she could undoubtedly do all the housework herself if she was prepared to tolerate the pain generated by doing so. She may well be able to tolerate this, if she gave up work. Conversely, she may be able to work full time but then be unable to do anything at home: p. 47. But while she is persevering with work to the extent that she is, that reduces her ability to cope with other things and hence generates a need for assistance in the home. She is in pain working five hours a day and does not think she could work full time now: p. 74. That was supported by the evidence of Ms Stephenson: p. 140.

15. [15]
    Prior to the accident the plaintiff had some interest in bush walking, would occasionally go camping, and was developing an interest in golf, which the second plaintiff plays: p. 22.^[4]  She has tried golf since the accident, but found it too painful.  She said that this was because of the swinging motion required, rather than walking, since they have the use of a golf buggy (p. 65), although her husband did not recall that a golf buggy had been used and thought that the problem was her walking (p. 117).  I suspect that he had simply forgotten about the buggy.  For whatever reason however, I accept that the plaintiff cannot now enjoy golf.  She and her husband socialise still to some extent (p. 64), although even the extent to which they can do that is reduced, and they have avoided more physically strenuous activities.  The pain has adversely affected their physical relationship:  p. 22, p. 109.

16. [16]
    I am prepared to accept generally the evidence of the plaintiff and her husband, although like many plaintiffs there was I suspect something of a tendency to emphasise the adverse effects of the injury as fully as possible. There were some minor points of inconsistency in the evidence of the plaintiffs, but nothing that caused me any real doubt as to its general reliability. Generally I accept the evidence of both of them; I do not think there is any matter of importance on which they differ, but if there were I would have preferred the evidence of the first plaintiff. Indeed I generally accept the evidence of all witnesses. I do not think there was any real inconsistency between the evidence of the first plaintiff and that of any of the other employees of the Tax Office, but if it were necessary to resolve any conflict I would prefer the evidence of the first plaintiff.

17. [17]
    The plaintiff was born on 5 June 1964, and is now 38 years of age: p. 5. She has two children, sons aged 19 and 4: p. 5, p. 14. The pain restricts what she can do with the younger son and she finds it difficult to pick him up: p. 24. She married on 3 August 1991 (p. 108); her husband is in full time employment, working an evening shift of 3.00pm to 11.00pm:  p. 110.

18. [18]
    Overall, the injury to the plaintiff was a very painful condition for a few weeks until it settled, and thereafter a condition which continued to produce pain, which was always present at least at a low level, and which became worse with activity, particularly persistent activity of the same kind. There are some particular movements which aggravate the pain, but doing almost anything for any length of time is going to aggravate it to some extent. The only thing which really eases the pain is lying down. The plaintiff perseveres with various things including her work on a part time basis, and some work around the house, but is limited both in what work she can do and in what she can do around the house by the pain and the limits of her ability to tolerate it.^[5]  There is only quite a small chance of improvement, and the best that the plaintiff can expect is that as her younger son becomes older there will be less effort involved in caring for him, in for example lifting him up.  There has been some loss of function in the left leg, but the principal impact of the accident has been the persistent pain.  It has also significantly interfered with the plaintiff’s pre-accident recreational activities.  In all the circumstances, I assess general damages for pain and suffering and loss of amenities at $35,000, of which I apportion $10,000 to past.  That will carry interest at 2 per cent for five years.

Economic loss

19. [19]
    The first defendant argued that the first plaintiff had not suffered a loss of work because of this injury, but rather because of the second child. The plaintiff remained in full time work until shortly before that child was born, notwithstanding the injury in her pregnancy and had always intended to take some time off work after the birth of the child, and to work for some time on a part time basis thereafter: p. 74. The plaintiff said her intention had been to have a full year off work with the baby and then do part time work for 12 months and hopefully negotiate a further 12 months of part time work after which she would work full time: p 15.^[6]  Under cross examination however she conceded that when she had originally applied for her maternity leave she had indicated that she would not be returning to full time work for 5 years: p. 60, Exhibit 5.

20. [20]
    There is also the consideration that the second plaintiff was working shift work, and started work at 3:00 pm (previously 2:00 pm). Accordingly if the plaintiff worked only in the mornings she would be able to return home before he had to leave for work, and in that way there would always be one of them available to mind the child. Apart from any question of whether that was better for the child, it had the advantage of avoiding childcare costs. The defendant submitted that even if the plaintiff had not had her injury she would not have returned to full time work by now anyway, or at least for some time later than 3 years after the birth of her son.

21. [21]
    One complication is that an arrangement like that is not necessarily something decided definitely in advance. In circumstances where part time contracts can be negotiated year by year, and where there seems to be a certain amount of flexibility about the working hours anyway, it may well have been open to the plaintiff to change her mind about what she was going to do. For example, if the opportunity arose for her to obtain promotion, but she had to work full time in that position if she obtained it, she may well have decided that it was worth taking that step, even if she had otherwise intended to do the work part time for somewhat longer. For example, she did not ultimately take the full 12 months maternity leave: she returned to work about one month early, in order to be involved in, and presumably trained for, some change in the office computer system: p 17. It is also worth noting that the plaintiff did increase her hours from 4 to 5 hours a day because of economic considerations notwithstanding her injury and the difficulty that this was causing her (p 17), so that, had it not been for the injury, there was some economic imperative to work longer hours and perhaps even full time.

22. [22]
    Three people who work for the Tax Office with the plaintiff gave evidence. Ms Heston is the head of a section and is on executive level 1: p. 130. She has known the plaintiff for about eight years (that extends prior to the accident) when she had brought the plaintiff into a team she was in charge of, and had found her work excellent: p. 131.^[7]   She had subsequently moved to other areas, but had also subsequently brought the plaintiff into teams which she was managing:  p. 131.  She had become a close friend of the plaintiff:  p. 132.  She was of the opinion that the plaintiff would have no problem obtaining a full time APS3 position, and that her prospects were very good of getting a permanent appointment to APS4 level, although that would depend on her being suitable for a particular vacancy that came up:  p. 132.  At one point she was acting at the APS5 level:  p. 134.  The plaintiff was working under her supervision from February to September 2001, and a couple of weeks before the trial began again to work under her supervision:  p. 133.  She spoke quite positively about the plaintiff’s ability and the quality of the work that she did.

23. [23]
    Ms Jones is a team manager working at the Upper Mt Gravatt office; the plaintiff was a member of her team from about July to December 2000: p. 145. The plaintiff was working part time during this period and indeed there was an extension of her part time status for a further 12 months at that time: p. 146.^[8]  Ms Jones said that the reason given for requiring further part time status was that the plaintiff had a young child she was caring for in conjunction with her husband and she wanted to be able to be home to take over care of the child when her husband went to work.  Ms Jones believed that they were sharing a vehicle at that time as well:  p. 146.  She recalled that the plaintiff was having some difficulty in coping with the work being done at that stage, although that was because of changes associated with the new tax system:  p. 148.  Ms Jones spoke to her on occasion about the amount of sick leave she was taking which was impacting on her work performance:  p. 149.  The plaintiff had complained about food intolerances, and also said that stress was a factor:  p. 149.  She had not been aware of the plaintiff’s having suffered an injury in a fall in October 1997, or of any continuing problems with her left hip:  p. 149.  That was not the cause of any particular sick leave.  The plaintiff’s work performance improved quite a bit over the next couple of months:  p. 150.  She said the plaintiff had told her that she (the plaintiff) wanted to move into the city office because transport arrangements would be easier for her, it would free up a vehicle for her husband to use and she would be able to work for an extra hour per day:  p. 150. 

24. [24]
    The plaintiff said however that the real reason why she sought a transfer from the Mt Gravatt office was that she did not get on with Ms Jones, and did not want to work under her any more: p. 54. If that was so, it is understandable that she would give some other reason to Ms Jones, and the supposed difficulty with the car could well have been a convenient excuse. The plaintiff said that at the time her husband had his own car, so that there was no such problem: p. 54. The plaintiff also conceded that she may well not have complained to Ms Jones about the difficulties she was experiencing because of the pain. On the whole I do not think this is a matter which really impacts on the plaintiff’s credibility. If there were such a personality clash, what Ms Jones was told was not necessarily accurate or complete.

25. [25]
    When the plaintiff transferred into the city office in December 2000 she worked under Ms Dobbie, who is another team leader: p. 155. The plaintiff had told Ms Dobbie about her injury, and she arranged for Human Resources to do an assessment of the workstation: p. 158. Since then she had worked with Ms Dobbie, or been seconded to another area: p. 158. There had been one occasion which she could recall when the plaintiff had been off work sick because of the injury: p. 155. She did take a lot of sick leave,^[9] but generally for infections and things like that:  p. 159.  She had no complaints about the plaintiff’s work:  p. 161.

26. [26]
    I accept that since the accident the plaintiff’s effective work limit has been five hours per day. In relation to past economic loss the question is whether but for the accident the plaintiff would have returned to full time work sooner.^[10]  It may be that the plaintiff would have remained away from full time work until this year so that she could look after her younger son in the afternoons, until he started at pre-school, or it may be that she would have returned to full time work at an earlier stage.  It is possible that she would have remained in part time work until next year in any case.  If that were the situation, there has been no past economic loss, but I think there is a significant prospect that but for the accident the plaintiff would have returned to full time work at an earlier stage, possibly even as early as July 2000.  I think it is plausible that when the figure of five years was nominated in the form when applying for maternity leave, it was seen as a precautionary figure, on the basis that it would be easier to ask for a longer period and then reduce it later if things worked out well.

27. [27]
    If the plaintiff’s intention which she referred to in her evidence had worked out, she would have returned to full time work about three years after the youngest son was born, that is in about July 2001. Had that occurred, she would have earned about $10,000 net per year more assuming she was still working on an APS3 level, compared with the income she in fact earned in the period after July 2001. It may be that her loss would have been greater than this, if she returned to full time work earlier, or if she was able to obtain an APS4 position, and it may be that her part time work would have involved more hours sooner, although that is more doubtful because to some extent the increase in the number of hours was made possible by the move from the Mt Gravatt office to the city office. On the other hand, it is possible that the plaintiff would have continued to work part time after July 2001 even without the injury. There is the consideration that working part time and fitting in with her husband’s shift work saved child care costs, so there was some offsetting advantage in working part time, and she may well have preferred to care for him herself longer anyway.

28. [28]
    On the whole, I think that the possibilities that the loss may be less than $10,000 are less significant than the features which suggest a possible loss greater than $10,000 per annum. The relevant period for past economic loss is now 15 months, and in all the circumstances I think a reasonable allowance for that period taking into account all the factors referred to earlier is $15,000. That will carry interest for one year at 4 percent.

29. [29]
    With regard to future economic loss, I accept that the plaintiff would but for the accident have worked at the Australian Taxation Office until retirement (p. 63), as indeed she very likely will anyway. She is obviously generally well regarded there, and (subject to her physical problems) is generally happy working there. I think it likely that she will continue to work there in any event notwithstanding her injury, so for practical purposes it is a matter of comparing her earning level now with what it would have been but for the accident. There will have to be some adjustments to that figure at the end of the day to take into account the possibility that something different might have occurred.

30. [30]
    The plaintiff’s income is currently $25,362 gross per annum (Exhibit 1, document 1) or about $20,000 net per annum. If she were working full time at Level 3 she would be earning $40,207 gross per annum (Exhibit 6) and if she had been promoted to Level 4, up to $44,645 gross per annum: Exhibit 1. In the light of the evidence it is quite possible that she would have already achieved a permanent Level 4 position, or if not that she would achieve one in the not too far distant future, and it is certainly possible that she would at times be acting at Level 4 prior to achieving such permanent employment. It is also possible that she might ultimately have achieved an even higher level; she has at some point been acting in a Level 5 position. On the whole therefore I think it appropriate to calculate future economic loss on the assumption that but for the accident she would have been working in a Level 4 position, because the prospect that that would not yet have occurred may be regarded as balanced by the prospect that she might at some time before retirement otherwise have been promoted beyond Level 4. On Level 4 she would have been paid (in due course) $44,645 gross per annum, or about $32,000 net. This gives a loss of $12,000 per annum net. Assuming a typical retirement age of 60, the plaintiff has almost 22 years working life ahead of her.^[11] 

31. [31]
    There are however some features which justify some reduction in the prima facie position. Some allowance should be made for the vicissitudes of life, which in the present case would include the possibility that there would have been some additional time lost in the future but for this accident because the plaintiff and her husband chose to have another child. Some allowance needs to be made also for the small possibility that the plaintiff’s condition will improve in the future, or perhaps that she will become better at managing it as her young child becomes older, and so the pressure to reduce her work to four hours per day would be eased, and she may even be able to increase it to six hours per day. In all the circumstances therefore I think a reasonable figure for future economic loss is $120,000.

32. [32]
    A claim was made for loss of benefit of additional superannuation contributions. Conventionally a figure of 6 per cent of the total allowed for economic loss past and future is allowed on this basis, and I will allow $8,100 for this.

Gratuitous care

33. [33]
    With regard to gratuitous care, during the first four weeks the plaintiff required a good deal of assistance, she could do virtually nothing for most of that period. The plaintiff and her husband said that he took over doing virtually all of her chores around the house during that period, with the plaintiff’s son helping in the afternoons while her husband was at work; her husband did not take any time off work because of the plaintiff’s injuries. No doubt her husband did a lot at weekends too such as keeping the house in order and washing and so on. The plaintiff’s estimate was that her elder son did about one and a half hours extra per day (p. 24) and her husband did about 10 hours per week looking after her and doing things that she otherwise would have done herself: p. 25. After the first four week period she was able to do more, but her elder son was looking after himself anyway and was helping by doing some cooking, and her husband was doing all the laundry and the vacuuming: p. 25. Later after things settled down the elder son was doing perhaps one to two hours extra per week to help her and her husband was doing seven to ten hours per week: p. 26. Her husband’s estimate was three hours per day average over the week, and that there was no real reduction after that first four week period: p. 112. Both of these figures were only very rough estimates and neither claimed to have systematically analysed the period of assistance required.

34. [34]
    It is important to bear in mind that all this time the plaintiff’s husband was away from home and at work from early afternoon until late at night, so that any assistance provided would only have been in the mornings to the middle of the day, or at weekends. Any assistance required in the evening would have been provided by the son. I accept that since the accident the husband has taken over the washing and the heavier cleaning and has otherwise helped out generally more around the house. In the period while the plaintiff was not at work her son was helping out quite a bit, particularly with the evening meals and that he still does more in the evenings than would otherwise have been the case, although on a continuing basis there has been more of a drop-off in his assistance than in the assistance of the husband.

35. [35]
    There is also the consideration that after the younger child was born there was a lot more work to be done, so there was more help required by the plaintiff. On the other hand, the assistance the husband gave with the younger child once the plaintiff returned to work was to some extent attributable to the fact that their working hours were not overlapping so that the child could be cared for by one or other of them, rather than because of a need to assist the plaintiff in caring for the child.

36. [36]
    On the basis of the evidence of the plaintiff and her husband, and bearing in mind the evidence of Ms Stephenson of the extent to which the plaintiff was in need of care, and to some extent taking into account what I would think would be a reasonable period of time to do various things which were referred to in the evidence as matters where the plaintiff required assistance, my assessment is that during the first four week period the plaintiff needed a total of 22 hours per week assistance; this is roughly two and a half hours a day during week days and five hours a day at weekends, on the assumption that cleaning and washing would have been done at the weekends. There would have been a bit less assistance required at the end of that period, but that is an average figure. Since the four week period the plaintiff has required on average less assistance per week, an average of 10 hours per week, which is also a reasonable basis for an assessment of future care needs, although some discounting needs to be applied, bearing in mind that as the younger son grows up she will have less need of assistance, there is some small possibility of improvement, and some allowance should be made for the ordinary vicissitudes of life. Once the plaintiff stops work she will have a greater capacity to do more for herself in the home. In making these assessments, I am assuming that the plaintiff will continue to work as much as she can. That has the effect of reducing the economic loss she would have suffered, but does mean that she has less capacity to do things around the house, and therefore has a greater need for assistance. It is not helpful to say that she would be able to do these things at home without assistance if she were not working; it is not appropriate to assess economic loss on the basis that she is still working part time, but assess gratuitous care on the basis that she is not working.

37. [37]
    The rates for assistance were agreed between the parties at $10 per hour to June 1998, $11 per hour to April 1999, $12.86 per hour to June 2001, and $13.30 per hour thereafter. On the basis of these figures, the past gratuitous care comes (with some rounding) to $30,000, which will carry interest at 4 per cent per annum for eight years, and for future gratuitous care a reasonable allowance is $70,000.

Other claims

38. [38]
    The amount refundable to Comcare is recoverable and covers medical expenses, physiotherapy, and wages lost in the period immediately after the accident. The amount is $6,093.87, and was I thought not controversial (p. 16); in any case it is a reasonable amount. The plaintiff also claimed an amount for pharmaceuticals; there was evidence that the plaintiff spends about a dollar a week on Panadol (p. 26) most of which is for her although not all of it: p. 71. She had also purchased a massage unit for $40 (p. 27) although it was not very effective. There was no medical evidence to support the purchase of the massage unit and I will not allow it. I think that some reasonable allowance should be made for painkillers, and I will allow $250 for the past and $1,000 for the future, No doubt the consumption of painkillers was greater in the period immediately after the accident.

39. [39]
    The first plaintiff also claimed the cost of purchasing a small motor vehicle. It was claimed that this was required because the plaintiff could no longer walk to and from the station, and that an automatic vehicle was necessary because driving a manual vehicle would aggravate her condition. I accept the need to drive an automatic rather than a manual car is a product of the accident, and that the plaintiff had a greater need for transportation after the accident because of her condition.

40. [40]
    It is common for a person who is very seriously injured and as a result requires special modification of a motor vehicle to receive as damages the cost of performing that modification, although usually not the total cost of the motor vehicle, even if the effect of the injury has been to increase the need for motorised assistance for transport: GIO NSW v Mackie [1990] A Torts Rep 81-053 at 68,214.  There was no medical evidence justifying the purchase of the motor vehicle, although I accept that walking is painful for the plaintiff and that it would be painful for her to walk to and from the station.  However, I do not consider that that in itself justifies awarding as damages the cost of the motor vehicle.  Counsel for the plaintiff did not refer me to any authority in support of the claim, or even an example of another decision where such a claim has been successful.  In these circumstances I am not persuaded to award damages for the whole cost of the motor vehicle.  I would have awarded as damages any extra amount incurred in acquiring an automatic rather than a manual vehicle, but there was no evidence that there was any such cost.  Automatic transmission used to cost more once, but I do not know whether it still commonly does, and I am not prepared to take judicial notice that it does, or guess at the extra.  Accordingly this claim fails.

Claim by the second plaintiff

41. [41]
    The second plaintiff claimed for loss of consortium. This anomalous remedy^[12] provides compensation for all the practical domestic disadvantages suffered by a husband in the consequence of his wife’s impaired bodily condition:  Toohey v Hollier (1955) 92 CLR 618.  Some of the areas traditionally included, medical expenses incurred by the husband and the costs of replacing her domestic assistance in the home of the wife, are now commonly allowed, directly or in effect, as part of the wife’s damages,^[13] as has been the case here.  Damages may also be recovered for reduced capacity to render conjugal support and assistance, and to participate in recreational activities, and for loss of conjugal relations.  Mere matters of sentiment however are not compensable on this basis.  In recent times relatively modest awards have been made for loss of consortium:  Lebon v Lake Placid Resort [2000] QSC 49 at [65].

42. [42]
    In the present case there has been some reduced capacity of sexual activity, but it has not ceased entirely (as in Lebon).  The plaintiff is still able to provide general emotional support and companionship, although the range of recreational activities has been curtailed.  It is necessary also to bear in mind that the loss for which the second plaintiff is being compensated is the equivalent of only a small part of the adverse effects of the injury on the first plaintiff.  In all the circumstances, I assess damages for loss of consortium at $3,500.

Summary

43. [43]
    I therefore assess damages for the first plaintiff as follows:

44. [44]
    There will therefore be judgment that the first defendant pay the first plaintiff $261,200, which includes $11,200 by way of interest, and the second plaintiff $3,500. I will circulate these reasons and invite submissions in relation to costs, but unless another order is appropriate I will order the first defendant to pay the plaintiff’s costs of and incidental to the action to be assessed.