Hook v Boreham[2006] QDC 279

DISTRICT COURT OF QUEENSLAND

1. [1]
   The Plaintiff was injured in a motor vehicle accident on 12 December 2003 at Goodwood, Bundaberg. Liability has been admitted, and the trial concerned the measure of Mrs Hook’s damages. Assessment of those damages is to be undertaken under the Civil Liability Act 2003, and the Civil Liability Regulation.

2. [2]
   Mrs Hook’s vehicle was stationary when the First Defendant’s vehicle struck it from behind with some force, as a photograph of the damage to her car confirms^[1].  She felt immediate pain in the area of her chest under the seatbelt and was helped from her vehicle by the other driver.  She telephoned her husband who was there quickly (the accident occurred only 400 metres from her home).

3. [3]
   She was examined by ambulance officers at the scene and allowed to go home with her husband, but within a short time she began to experience neck and low back pain and attended the Bundaberg Hospital, where x-rays were performed. The neck x-ray was normal and she was discharged with medication. She also had bruising and swelling to her left lower leg and complained of widespread muscular pain.

4. [4]
   The primary issues concern her claims for past and future economic loss, and gratuitous care. The Plaintiff says that she was seeking employment when the accident occurred and, but for her injuries, would most probably have found it and been employed. She also claims a need for fairly extensive domestic assistance from her husband and children as a consequence of her injuries. Both assertions are disputed by the Defendant.

5. [5]
   Mrs Hook was born on 20 February 1951, outside Australia. She came here after she met her husband, in 1987. They have two children – Adam, born in December 1987 and Karen, born in April 1991. At the time of the marriage her husband worked as a coal miner but he later suffered a back injury which has prevented him working at all, and he receives a disability pension. She has cared for him but did not receive any benefits in the nature of a carer’s pension. She has been in receipt of a parenting payment.

6. [6]
   In the past she has been employed in a corner shop, as a nanny and babysitter, and in a watch factory. When she met her husband she was working as a housemaid in Hong Kong. She has had virtually no paid employment in Australia. In 2002 she worked packing fruit for a couple of days but was unable to continue, she says, when she couldn’t arrange reliable transport. In 2003 she began doing volunteer work at a retirement home as a kitchen hand and that continued up to the time of the accident. She had also been working on a volunteer basis sorting goods at St Vincent De Paul for about three hours a day, one day a week. It was her expressed intention to seek full-time work when her daughter finished primary school at the end of 2004. To that end she believed she had put her name down for paid employment at the retirement home, called Pioneer Lodge.

7. [7]
   Mrs Hook was an impressive witness. She was quietly spoken and her English was less than perfect but sufficient to convey her meaning and, I thought, to indicate she was taking care to give honest answers. I am satisfied, in particular, that she had no significant neck problems before the accident (there is some evidence of pre-existing degeneration in the cervical spine); that she genuinely intended seeking paid employment when her youngest child finished primary school; that she had a genuine belief the relevant authorities at Pioneer Lodge were aware of her interest in obtaining paid work; and, that before the accident she performed almost all household domestic tasks – but, after it, she required considerable assistance. Her husband’s evidence was corroborative in this respect, in the sense it was tolerably clear he expected her to perform all household domestic chores without any assistance (although he did help from time to time, on fairly rare occasions); and, that there was a division of labour in the household whereby he looked after the garden, and grounds.

8. [8]
   The calculation of an award for general damages is covered by the Act, under which the Court must assign an injury scale value (ISV) for Mrs Hook’s injury.  In calculating an ISV, the Regulation^[2] explicitly provides that the extent of whole person impairment is an important consideration, but not the only one. 

9. [9]
   I was provided with reports from the Plaintiff’s GP Dr Pyefinch, who referred Mrs Hook to an orthopaedic specialist, Dr Licina.  He thought she had suffered a soft tissue injury to the neck and some pain due to aggravation of pre-existing multi-level disc degeneration, and some symptoms in her low back and right arm.  He thought she was “…straightforward and genuine, with no symptom over stated or abnormal illness behaviour”^[3].

10. [10]
    Another orthopaedic specialist, Dr Van Der Walt, examined her in June 2004, and May 2006. In his opinion she had suffered soft tissue injuries to her cervical and lumbar spine, and was now suffering chronic pain. In respect of her neck she fell in the DRE cervical category II range, with a 5-8% whole person impairment although her severe symptoms suggested 8%. Although she complained of low back pain, he assessed her in the DRE category I range with a 0% impairment.

11. [11]
    Another specialist, Dr Pincus, saw her in March 2005. He thought she had a category II injury in the cervical spine with a 5% whole person impairment, of which 3% was attributable to the pre-existing cervical degeneration, and 2% to the accident. He did not think there was any permanent disability in the lumbar spine. Dr Pyefinch also noted complaints of pain in the area of the abdomen, and diagnosed a soft tissue injury.

12. [12]
    There have been some psychiatric sequelae: a psychiatrist, Dr Lovell, assessed a 3% whole person impairment and another psychiatrist, Dr Gray does not appear to disagree.

13. [13]
    It was contended, for the Defendant, that because ambulance records^[4] do not mention any neck injury nor any injuries to the lumbar spine those claims ought not be accepted.  As Dr Van Der Walt explained, however, there is nothing unusual in circumstances where injuries and symptoms were masked by other, more immediate pain and did not manifest for a few hours^[5].  I also found Dr Van Der Walt’s evidence more persuasive in other respects: in particular, in the absence of any history of pre-existing problems or symptoms from the degeneration in the cervical spine, he believed the Plaintiff could have gone for many years without problems^[6].

14. [14]
    The legislation focuses upon the notion of a “dominant” injury, i.e. the one with the highest ISV range. Here, that could be either the soft tissue injury to the neck, or the psychiatric problems as both have an ISP range of up to 10, but I accept it is more sensible to look to the neck, from which the psychiatric symptoms flow, at least partially. It is then necessary to consider whether the maximum ISV for that injury is sufficient to compensate the Plaintiff for all the injuries sustained and, too to consider whether or not there should be an uplift of 25% to take account of the additional injury^[7].  Having regard to the Plaintiff’s quite serious psychiatric symptoms I think the uplift is appropriate, leading to an ISV of 13 and an award of $15,200.  The Act does not permit interest on this head.

15. [15]
    Special damages are agreed at $11,342.02. The parties also agree that interest should only be allowed on $1,570.50 at 2.705% - to the present date, (allowing 2.75 years), $117.

16. [16]
    The question of past and future economic loss is much more contentious^[8].  The Plaintiff claims $25,000 for the past (at the rate of $250 per week) and $35,000 for the future, while the Defendant urges the conclusion that the Plaintiff was only undertaking voluntary work to satisfy Federal Government requirements associated with her parenting allowance and was not genuinely bent on a return to the workforce.  For the reasons given earlier, I accept the Plaintiff as a witness of credit and I am satisfied, in particular, that she had a genuine intention to return to work. 

17. [17]
    Evidence from a potential employer, Mrs Hazell, indicated work was readily available at her orchard and herb business at a net rate of about $500 per week. There was also evidence that domestic and kitchen workers could earn $400 - $440 net per week. Mr Williams, Counsel for the Plaintiff realistically left a period of 6 months immediately after the accident out of his calculation, and also discounted potential earnings from work in the orchard business by as much as 50%.

18. [18]
    I do not think that is unrealistic. It is plainly important to give proper weight to those factors which militated against a full-time return to work. Mrs Hook had not been in permanent paid employment for over 15 years. Her husband appeared to have an expectation that she would perform much the greater part of domestic work and care for the children, who were still being educated. At the date of the accident she was 52. She had some pre-existing degeneration in her cervical spine which, as Dr Van Der Walt fairly conceded, carried some risk of future symptoms. Mrs Hazell’s evidence, although brief, suggests the work associated with her orchard is demanding and it is a reasonable hypothesis that, in view of her age, Mrs Hook would have found it challenging and might have been more likely to pursue domestic or kitchen work.

19. [19]
    On any view these contingencies are significant. Having due regard to all of them, I think an award should be made but in a way which gives greater weight to them than Mr Williams allows. They are more fairly reflected by assessing past economic loss at a rate equal to about half potential earnings as a domestic, i.e. $200 per week, and for only 2 years - $20,000. No claim is made for interest on this head.

20. [20]
    For the future, Mr Williams advanced a claim of $35,000 calculated on an anticipated future working life of 11 years, at $100 per week on the 5% discount table, less 15% (and a further discounting). While that discounting is substantial I think that, as with the past, it fails to give proper weight to the significant contingencies that must tell against this Plaintiff. Those contingencies dictate that nothing more than a global award is warranted, measured by reference to the relatively small prospect she might have continued working for many years in what are, on any view, occupations demanding substantial physical effort. I think an award of $20,000, reflecting a discounting of about 50% of a figure based on a continuing loss of $100, is an appropriate measure of that relatively low level prospect.

21. [21]
    It is also reasonable to allow a loss of superannuation benefits on the basis of 9% of the awards for the past and the future (for two years), i.e. $3,600.

22. [22]
    Dr Lovell thought the Plaintiff would benefit from further treatment in the nature of cognitive behavioural therapy. Mrs Hook said she would undergo further counselling if she could afford it^[9] and she has shown a willingness to avail herself of treatment when and where it is proffered, and has benefited from intermittent physiotherapy, and medications.  An award of $3,000 under this head will afford compensation for reasonable outgoings.

23. [23]
    The parties agreed that if any award is to be made for gratuitous services it should be at the rate of $18.00 per hour; and, that this claim is subject to s 59 of the Act in its current form which does not permit an award unless the need for services arises solely out of the injury, and they are provided for at least 6 hours per week, and for at least 6 months.  The legislation also turns its face against the simple continuance of services which were already being provided as part of ordinary domestic arrangements, or would have been even if the injury had not been suffered.  A helpful discussion of these provisions appears in Carol v Coomber (supra) at paras [63-69], and I respectfully adopt the conclusions expressed there by McGill QC, DCJ.

24. [24]
    Some relevant findings have already been expressed. I am satisfied, in particular, that Mrs Hook required more than 6 hours per week assistance for more than 6 months, and that some need for assistance has continued; and, that her claim is not excluded for the reasons appearing in s 59(2) and (3). Otherwise, as frequently occurs in these cases, there is some conflict in the evidence about the extent of the Plaintiff’s need, addressed by the Plaintiff herself, her husband, various medical specialists and an occupational therapist, Mrs Walters. These conflicts were, I thought, fairly addressed by Mr Williams in his final submissions when he made calculations at the rate of 7 hours per week, discounting the figures provided by Mr and Mrs Hook which suggested 12-14 hours per week.

25. [25]
    The need for discounting arises because, as Mrs Hook frankly and fairly conceded^[10] her symptoms fluctuate and there are times when she is able to perform some household tasks including cooking, washing the dishes, and washing clothes and putting them out, but there are other times when her symptoms prohibit some of those activities; but I remain satisfied that since the accident her husband has generally looked after tasks like mopping, vacuuming, and sweeping and cleaning.  Up to the time of trial an allowance of 7 hours per week at the agreed hourly rate would have attracted an award of over $16,000 which Mr Williams further discounted, again I think fairly, to $15,000.  The award for past care should attract interest at 2.705% for 2.75 years - $740.00.

26. [26]
    For the future he advanced a claim of $20,000 on what was described as a ‘global’ basis but, for the reasons already traversed in respect of future economic loss there are significant discounting factors to be applied, in the nature of contingencies which might have interrupted Mrs Hook’s ability to perform heavy domestic work regardless of injury. Mathematical precision is impossible but any award, while warranted in the circumstances, must give proper obeisance to those contingencies including the fact that Mrs Hook is now over 55 and, although she still has some domestic pressures – the need to care for her teenage children – it is plain she is able to manage some aspects of her former domestic work. When all of those matters are taken into account, an award of $10,000 is, I think, appropriate in that it accommodates those contingencies (and other factors including the maturity of her children when, ordinarily, the burden upon her would ordinarily be expected to lighten or be shared to a greater extent).

27. [27]
    These calculations may now be summarised:

28. [28]
    There will therefore be judgment for the Plaintiff against the Defendants in the sum of $98,999.02. Unless another order is appropriate, I will also order that Defendants pay the Plaintiffs costs of and incidental to the action to be assessed.