Lee v Richards and the Transport Accident Commission
[2008] QDC 257
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Lee v Richards and the Transport Accident Commission[2008] QDC 257
- Add to List
Lee v Richards and the Transport Accident Commission[2008] QDC 257
Lee v Richards and the Transport Accident Commission[2008] QDC 257
DISTRICT COURT OF QUEENSLAND
CITATION: | Lee v Richards and the Transport Accident Commission [2008] QDC 257 |
PARTIES: | AMELIA KATHLEEN LEE Plaintiff AND JULIA SARAH RICHARDS First Defendant AND TRANSPORT ACCIDENT COMMISSION Second Defendant |
FILE NO/S: | BD3341/06 |
DIVISION: | |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 31 October 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19, 20 June 2008 |
JUDGE: | McGill DCJ |
ORDER: | Judgment for $167,742 with costs. |
CATCHWORDS: | DAMAGES – Personal Injuries – measure of – injury to neck – economic loss – future paid care |
COUNSEL: | L. R. Smith for the plaintiff R. D. Green for the defendants |
SOLICITORS: | Trilby Misso Lawyers for the plaintiff The second defendant was not represented |
- [1]The plaintiff was injured in a motor vehicle accident on the evening of 23 June 2003[1]when the vehicle that she was driving was struck on the right side by the defendant’s vehicle which had failed to stop at a stop sign: p 11. Liability was admitted on the pleadings, and some aspects of the plaintiff’s quantum have been agreed between the parties, but the balance, particularly the question of economic loss, remains in issue.
- [2]Following the accident the plaintiff was taken by ambulance to the Nambour Hospital. She was initially trapped in the wreckage, and had to be freed before she could be removed from the scene: p 11. At the hospital a 2 mm laceration was noted above the right eye, and arrangements were made to have x‑rays because of a complaint of pain in the neck.[2]There was also bruising in various places. X‑rays did not reveal any fracture. The laceration was cleaned. The plaintiff was given a soft collar and analgesics and was subsequently discharged into the care of her parents: p 12.
- [3]Two days later she saw a general practitioner, Dr Bierman.[3]She had substantial limitation in neck movement because of pain, was very tender over the lower cervical spine and along both sides laterally. She also had small lacerations on the face, right forearm and left lower leg, and extensive bruising and abrasions from the seatbelt. There were no neurological signs in the limbs. He recommended that she continue with the analgesics and referred her for physiotherapy. She began physiotherapy on 2 July 2003 and continued until 10 September, although there were subsequently some sessions of hydrotherapy which had begun in late July.[4]
- [4]At the initial consultation the physiotherapist noted that she had fallen down some stairs in March or April, which caused some problems with her lower back, which had resolved, but there had not been any previous problems with the neck. At that stage she was taking three Nurofen per day to control the pain. She had aching in the cervical spine and had some difficulty using the left arm to pick up objects or to elevate overhead or extend behind. She would sometimes wake at night if she lay on her left shoulder. Movements of the spine were restricted, and she was tender on palpation generally.
Background
- [5]The plaintiff was born on 26 September 1983: p 5. She completed her schooling on Bribie Island where her father was a truck driver and her mother ran a surf shop, where she worked at weekends: p 6. She completed year 12 in 2001 but did not attain an OP and did not do well as school; she failed Biology, English and Home Economics. While growing up her principle recreations were dancing and surfing: p 7. She had an aunt who taught dance and so she took it seriously, but while she was at school she developed a problem with one knee and ultimately gave up dancing.[5]She wanted to be a hairdresser, and after she had a gap year, she enrolled at a hairdressing college in early 2003: p 9. She had moved with her parents to Palmwoods in March 2002, but while attending the college she stayed initially with an aunt.
- [6]The course at the college took 15 months and had she completed it she would have been able to take a position as a third year apprentice, on 75% of the wage for a qualified hairdresser.[6]By the time of the accident she ought to have been about a third of the way through the course, but her studies had been somewhat disrupted because of other medical problems she had had. As a result she had attended for only about two of the five months (p 38), and according to her records had passed only one of the 32 units which overall made up the course.[7]
- [7]The person now running the academy, who was not running it at the time and was not personally familiar with the plaintiff, thought that losing that much time would be likely to interfere with her progress through the course (p 63), but there was no very clear evidence as to just what effect this would have, such as whether it would mean that she would be delayed by three months or by 12 months. There is unfortunately no evidence as to whether, given the medical problems she had suffered prior to the accident, she was otherwise progressing successfully through the course up to that point. There is nothing to indicate that, had the accident not occurred, she would not have been able to complete that course satisfactorily, although probably some time later than mid 2004.
- [8]While at Bribie Island the plaintiff had been seeing a general practitioner, Dr Robinson, at least since 1999, and even after they moved away from Bribie Island she went back to see her in April and May 2003.[8] The plaintiff went back to see Dr Robinson again on 14 July 2003 and Dr Robinson obtained a report from the physiotherapist; at this stage the physiotherapy was continuing. The plaintiff saw Dr Robinson again in August and September 2003. I do not have a report from Dr Robinson, although the plaintiff said that she was told by Dr Robinson that she would have to give up hairdressing because of the injury to her neck: p 14.[9]
- [9]Although the plaintiff felt the physiotherapy and hydrotherapy did help (p 14), she has been left with some continuing problems in the neck, with some restriction on movement and tightness or pain when she engages in anything more than mild physical activity, which can also produce significant headaches.[10] The neck appears to have stabilised in this state. According to the medical reports the condition is likely neither to deteriorate nor to improve. In general, I accept the plaintiff’s evidence.
Medical evidence
- [10]The plaintiff was seen on 20 July 2004 by orthopaedic surgeon, Dr Pentice, for the purposes of a report to her solicitors: Exhibit 1 document 13. At that time she had some continuing symptoms, and was found on examination to have a slightly decreased range of forward movement in the neck with tenderness on palpation and with some muscle actions. Dr Pentice was of the opinion the plaintiff had sustained soft tissue musculo-ligamentus injuries to the cervical region of the spine in the accident, which have caused pain and inconvenience. Her injury had settled to an acceptable degree with time but had left her with residual problems which would continue to cause difficulties and affect strenuous activities above shoulder level.[11]He estimated the incapacity at 5%-7.5% loss of efficient function of the spine as a whole, on the basis that she was in category 2 DRE of the AMA 5th edition Guide. He did not consider she was unable to work because of the injury (p 75) but did think working as a hairdresser could stir up her symptoms, because such work puts a strain on the cervical musculature: p 77.
- [11]The plaintiff was seen by another orthopaedic surgeon, Dr Gillett, on 1 August 2006 for the purposes of a report to the second defendant: Exhibit 4. At that stage there were also continuing symptoms, including headaches, with movement of the neck generally good but a little limited. On examination there was discomfort in the extremes of motion of the neck, though no muscle guarding, spasm or asymmetry. Dr Gillett also thought the plaintiff was suffering ongoing musculo-ligamentus injury involving the cervical spine. He expected that condition to continue, and to require analgesics from time to time. He believed that she could work as a salesperson, but there would be difficulties with lifting tasks and he thought an occupation as a hairdresser would cause increased symptoms; while she would be able to work in that capacity she would have pain and discomfort and probably lose some time from employment.
- [12]In his opinion the application of the AMA scales meant that she was in category DRE 1 rather than DRE 2, which produced an impairment of 0%.[12]As he explained the operation of the scales, a person could be in DRE 1 even if that person was, say, quite unable to turn the head to the right: p 18. Even allowing for the fact that the scales measure impairment rather than disability, this is a serious deficiency in the operation of this scale; Dr Gillett described it as an anomaly: p 19. The practical effect of this is to confirm my belief that these scales are of little or no use for anything that courts have to decide, except in circumstances where their use is mandated by legislation. In terms of the things that matter, it seems to me that the opinions of the orthopaedic surgeons were essentially the same.
- [13]The plaintiff was seen by an occupational therapist, Ms Stephenson, for the purposes of a report dated 13 February 2006.[13]In her opinion the plaintiff is restricted in heavy lifting, prolonged static standing and sitting and overhead reaching. She also noted difficulties in performing some activities in daily living. The plaintiff at that time was unemployed, but had expressed interest in working in the retail industry, and Ms Stephenson suggested management training because she would be less likely to require lifting in such a position and would be able to move about and vary her posture to minimise pain. She expressed the view that the plaintiff would need to be selective about future employment because of her restrictions in lifting and static standing. In oral evidence Ms Stephenson confirmed her opinion that, because of the plaintiff’s difficulties with working with her arms elevated, she would not be suitable for working as a hairdresser: p 92. She requires help with domestic matters, particularly if she were living alone or if she had children: p 79. I accept her evidence, which was not effectively challenged.
Employment history
- [14]Prior to the accident the plaintiff’s only employment had been in the family business on Bribie Island. The plaintiff stayed enrolled in the hairdressing academy until soon after she finished her physiotherapy; she then withdrew from that course because of the way she was feeling physically, because of the extent to which her symptoms were persisting, and because of what she had been told by Dr Robinson: p 14. She was not very happy about that, because that was what she had wanted as a career, and she was sad and upset about the fact that it appeared she would not be able to pursue that career. In around October 2003 she began to look for work (p 16) and initially obtained a job in a fish and chip shop which only lasted one day, apparently because the decision to hire her was overruled: p 17.
- [15]The first job of any significance[14]that she had after the accident was with Kmart, where she began work on 22 November 2004: Exhibit 5. She worked there as a casual retail assistant, working initially on the cash registers, although she was subsequently given other duties: p 17. She was able to avoid the heavier lifting associated with work at that store, and she remained there until December 2005, when she left in order to take up what she saw as a better job as a small appliance salesperson at an electrical retailer at Kawana Waters: p 18.
- [16]The plaintiff said that she disclosed her inability to do heavy lifting when she obtained that employment,[15] and she was supposed to be only selling small appliances, although that included microwaves and she did experience difficulty if she had to carry a microwave. That job lasted for a little less than a month; towards the end she had some time off work because of ill health, and her employment was then terminated because her sales performance did not meet expectations.[16]She was then unemployed until June 2006 when she worked making sandwiches in a take‑away food shop for a couple of months (p 21), before obtaining employment as a casual sales assistant at a mobile phone shop in Maroochydore: p 22. She later transferred to a shop at Kawana Waters, and that employment is continuing. She became a full‑time sales assistant on 3 September 2007: p 25.
- [17]The sort of work the plaintiff does in this job sounds fairly undemanding, although even then some special allowance has been made for her by what seemed to me to be a particularly understanding store manager. I would not expect there to be much heavy lifting involved in a shop selling mobile phones, but to the extent that there is, the plaintiff is not called upon to do any.[17]She does not do any of the heavier cleaning tasks (p 9), and the ordinary policy of such stores of not providing somewhere for staff to sit down in the shop has been modified because of the recognition that she does need to sit down from time to time: p 5. Even so, there have been occasions when she has had to take a break from work because of her symptoms, or sometimes take a day off.[18]
- [18]This is a matter of more significance for this plaintiff than for a plaintiff who rarely has any time off work, because she does suffer from other medical conditions which do lead to time off work.[19]She has a recurring problem of tonsillitis, and she also is prone to staph skin infections. Indeed, these and other matters make up the bulk of the entries in her medical records since 2003. Of course, a musculo-ligamentus injury to the neck which is producing ongoing symptoms is not likely to lead to attendances at a doctor anyway, unless perhaps that is necessary for the purpose of obtaining a medical certificate; all she needs by way of treatment is rest and analgesics, and she can deal with that herself. Accordingly it is not surprising that most of her medical attendances are related to other matters.
- [19]The plaintiff at the present time is working full‑time with a sympathetic employer in undemanding work, which is a little better remunerated than work as a level 3 hairdresser on the award. It is possible that she will able to move into a managerial position in the retail industry in the future, and that this will be able to protect her working environment from the sort of demands which are particularly likely to aggravate the symptoms, although I suspect that these days at least in the case of small business most managerial people are physically active in the businesses anyway. Her current manager did not think she could cope with the demands of a managerial position.[20]There was evidence that she has some interest in ultimately opening her own business, a retail clothing business, where she would be able to protect herself against any of those difficulties (p 27), although whether it would be possible to make money in this way is difficult to say. I have no evidence on the matter; my impression is that selling clothing is a very risky way to make money, and that many such businesses either fail or survive while generating very little profit. Whether such a business, if successful, would be more or less profitable than a hairdressing salon was not dealt with by the evidence, and I cannot say. Prior to the accident the plaintiff’s ambition was eventually to have her own salon: p 10. Such a business may, of course, also fail.
- [20]It is not difficult to conclude that the plaintiff in fact gave up her study of hairdressing because of the injury suffered by her in the accident. If but for the accident she would have completed the course, worked as a hairdresser and, perhaps, ultimately owned her own salon (p 10), her economic loss is reflected by the difference between that situation and the situation the plaintiff now finds herself in. The amended defence of the second defendant filed 6 February 2008 did not include a plea that the plaintiff had failed to mitigate her loss by continuing with her hairdressing studies, or returning to hairdressing subsequently. Nevertheless, during submissions when the argument was advanced that the plaintiff had not acted reasonably in abandoning her hairdressing studies, an application was made for leave to amend to include a plea that the plaintiff had failed to mitigate her loss.
Application to amend defence
- [21]The application was for leave to insert paragraph 6 in the amended defence in the following terms:
“Further as to paragraph 6 of the plaintiff’s statement of claim, the second defendant says that the plaintiff has failed to mitigate her loss in that:
- (a)the plaintiff did not make any attempt to return to her hairdressing studies at Wynne‑Hoelscher;
- (b)the plaintiff did not make any attempt to undertake practical work at a hairdressing salon in the course of the said studies.”
- [22]Counsel for the plaintiff opposed the application, although frankly conceded that the trial would not have been run any differently had that pleading appeared in the amended defence. There was no evidence of any notice requiring mitigation of damages under s 53 of the Civil Liability Act 2003. In relation to an allegation of failure to mitigate, the onus of proving that the plaintiff has acted unreasonably in failing to take a particular step lies on the defendant.[21]In the present case, practical work at a hairdressing salon had been arranged to commence immediately after the time when the accident occurred: p 9, p 64. Obviously in that period in the immediate aftermath of the accident the plaintiff would have been quite unable to undertake such work, even if she had ultimately recovered to the point where she could do hairdressing work, and it was plainly not unreasonable for her to miss that placement. Had she been ultimately able to resume hairdressing, this would I suspect have been of no particular consequence, except that it would probably have slowed down her progress through the course.
- [23]As to attempting to return to the hairdressing studies, the position here was that the plaintiff had been advised by a trusted general practitioner that she should not do so, and there was no evidence that any other medical advice to the contrary had been given to the plaintiff at about that time. In circumstances where the plaintiff had received such advice, and where notwithstanding the course of physiotherapy she was continuing to experience symptoms which she thought were going to cause difficulties with her doing hairdressing,[22]in my opinion the defendant has not discharged the onus of showing the plaintiff acted unreasonably in failing to return to her hairdressing studies at that time. Some might have persevered in the teeth of such medical advice, but in circumstances where such advice had been given I do not think it was unreasonable for her to abandon hairdressing at that point.
- [24]For what it is worth, the medical evidence before me was uniformly to the effect that hairdressing would cause additional difficulties for the plaintiff. Although this material was not available to the plaintiff at the time, it suggests that had she taken expert advice at a more specialised level than a general practitioner she would probably have been told that she could expect difficulties in pursuing hairdressing and that it would be better for her to pursue some alternative career which did not require the sort of actions which would provoke her symptoms. The best the evidence is for the defendant on this is from Dr Gillett who was of the view that the plaintiff could do hairdressing but with additional symptoms so that she would require extra time off work, and I do not think it is unreasonable for a person to decline to pursue a particular occupation in those circumstances. However, that is really academic, because that advice was not in fact provided to the plaintiff at the relevant time.
- [25]In those circumstances, making the amendment would be a waste of time, and the application for leave to amend the defence is refused.
Assessment
- [26]General damages were agreed at $8,600: p 3. In addition out of pocket expenses with the exception of pharmaceuticals are agreed at $712.10: p 3. With regard to pharmaceuticals, the plaintiff’s evidence was that this varied but that typically a $5 box of Nurofen lasted two to four weeks, and in addition a tube of Nurofen gel which costs $7 to $8 lasted two months: p 31.[23]This is the equivalent of $130 per annum, but the usage was somewhat heavier in the period following the accident before the bruising settled, so I will allow $750 for past pharmaceutical expenses. That produces a total for past expense of $1,462.10, in respect of which interest is payable on all but $115.25, an amount refundable to the Health Insurance Commission.[24]That leaves a balance of $1,346.85, to carry interest, in respect of which the agreed rate is 3.01%. I will allow interest on $1,346.85 at 3.01% from 23 June 2003, which comes to $216.89.
Past economic loss
- [27]I accept the plaintiff wanted to be a hairdresser, and that, but for the accident, she would have eventually completed the hairdressing course; I am not persuaded that would probably have occurred by May 2004, in view of the delay that had already occurred, and there was a risk of some further delay because of recurrence of medical problems. However, I think it likely that by the end of 2004 the plaintiff would have qualified and obtained employment as a hairdresser; most of the graduates of the college obtain employment readily as a level 3 apprentice: p 58-9. Typically thereafter the trade qualification as a hairdresser takes 12 months, although there is a good deal of variation: p 59. Hairdressers are usually employed under the hairdressing award, a copy of which is document 4 in Exhibit 1. Some allowance could be made for contingencies, but subject to that it is appropriate to assess past economic loss on the basis that that is what would have happened to the plaintiff had the accident not intervened.
- [28]The effect of the award is that she would have received net $339.90 per week while working as an apprentice, and I will proceed on the basis that that would cover the first half of 2005, giving a net income for that period of $8,837.40. For the second half I will assume she was paid as a level 4 apprentice which under the award means a net income of $396.68 per week, or income for this half year of $10,313.68. Thereafter she would have worked as a hairdresser, which appears to correspond to a level 3 in the award. This produces a net income of about $485 a week net during 2006[25]which gives an annual figure of $25,220. The plaintiff’s submissions were based on the plaintiff’s advancing to a level 4 hairdresser in time, but as I understand the award that is simply a hairdresser in the process of obtaining a dual competency (that is, able to cut hair on both men and women) and the plaintiff said nothing about any intention to qualify in this way. I think the appropriate level would remain level 3.
- [29]In 2007 the net figure was apparently $497.60, producing an annual figure of $25,875.20. For 2008, taking into account adjustments to the award and the tax rates, the appropriate figure appears to be $527.20 net per week, which to the date of judgment comes to $23,196.80. This produces total hypothetical earnings as a hairdresser starting an apprenticeship at the end of 2004 of $93,443.08. That figure should then be discounted to some extent for contingencies, including possible periods of unemployment, but in the circumstances[26]no great deduction should be made on this basis, and I will simply round the figure down to $90,000.00. One of the possible contingencies is that the plaintiff might have been able to qualify as a dance teacher and obtain some income from that had the accident not occurred. She had in mind prior to the accident qualifying in this way (p 11), although she had not done anything to that end (p 42); she could not qualify and do this work now because of her physical limitations: p 28.
- [30]Evidence of the plaintiff’s actual earnings since the accident appears in Exhibits 2 and 3, and, in respect of the period from 1 July 2004, in the tax returns: Exhibit 1 document 6. These show a net income for the period to 30 June 2007 of $42,149. There was further net income identified in Exhibit 2 from 1 July 2007 to 11 May 2008 of $25,571.29. Since then the plaintiff has been working on a full‑time basis, and appears to earn ordinarily $1,035.50 net per fortnight, although in some fortnights there was also provision for commission.[27]The irregularity of this commission was not the subject of evidence but the copies of the pay slips in document 9 suggest that it may be payable monthly, and that it is not usually as high as it was for April 2008. Since commencing full‑time employment with her current employer in September 2007 the plaintiff has earned an average of $597 net per week.[28]On the whole, doing the best I can I will assume an effective net income of $597 per week from 11 May to the date of judgment.[29]This produces a total for that period of $14,925, so that the actual net earnings since the accident are $82,645.29. Accordingly past economic loss is the difference, an amount of $7,355.
- [31]I will allow 9% of this, $662, for loss of superannuation benefits. In calculating interest on past economic loss it is appropriate to give credit for Centrelink benefits received in an amount of $7,966.84.[30]Accordingly, there is virtually no net loss, and I will not allow any interest.
Future economic loss
- [32]At the moment the plaintiff is actually better off than an employed level 3 hairdresser, though that makes no allowance for the prospect of advancement. The plaintiff’s current manager did not think that the plaintiff had any real prospect of advancement, particularly because of the additional demands on a person in a more senior position which she did not think the plaintiff could accommodate: pp 3‑4. I accept this evidence. It may be that in time simply because of her level of practical experience the plaintiff could obtain other employment in a more senior role which was not as demanding; conversely she may be able to pursue her ambition to start her own business, though whether that would make things less demanding on her physically or be more remunerative is I think doubtful.
- [33]The plaintiff is still relatively young, only 24, and the accident happened really before she had had any opportunity to develop any career. The plaintiff is I suspect now doing about as well as she is likely to do in view of the continuing difficulties suffered by her. Indeed, I find that she is able to cope with full‑time work at the present time only because her current store manager is so accommodating. Without that, she would probably not be working full‑time. Accordingly her future economic loss comes really from two matters: first, the loss of the opportunity that she formerly had to do better than she is currently doing through pursuing a career in hairdressing to a managerial level, or in her own salon, and second, the risk (which I think is quite high) that in the future she will not be able to obtain such satisfactory employment, because she will be unable to find as sympathetic an employer. Obviously neither of these are matters which are susceptible of any sort of calculation.
- [34]With regard to the first of these, the prospects of being able to do a lot better either through obtaining a managerial position in a hairdressing business, or opening her own salon was not the subject of evidence. This is understandable, and does not mean there were no such prospects. Had the accident not intervened, the plaintiff would probably have gone on to manage or own a hairdressing salon, and may well have made a lot more money than would have been made by a level 3 hairdresser. I think such a future would have been more promising for the plaintiff than any sort of retail store with which she could now cope in what little prospect of advancement remains for her. All I can do is allow a lump sum which is bound to be arbitrary, and I will allow $50,000, which is probably conservative.
- [35]With regard to the second aspect, my distinct impression was that her current manager is particularly considerate of her difficulties, and if she lost that employment (or manager) for any reason it would be difficult to obtain equivalent employment. She would probably be unable to work full time in her current position without the special consideration she receives from her present manager. It is clear from the medical evidence that any more physically demanding work would not be available to her, although there are no doubt a range of activities she could still pursue, mostly low paid activities.
- [36]One could look at this by making allowance for some additional period of unemployment in the future, because of the added difficulty of obtaining such a favourable position,[31]or an amount of a weekly loss for a normal working life of 30 years on the basis that usually the loss would be less than that but sometimes it will be more, perhaps a lot more. She is currently earning about $30,000 net per annum, and would have been earning about $27,500 net per annum as an employed hairdresser. At that rate an extra three years unemployment comes to $82,500. Conversely, a net loss per week of $100 for the balance of her working life (30 years), which I suspect is conservative, discounted at 5% comes to $82,200.[32]In all the circumstances I will allow $80,000 for this aspect of future economic loss, producing a total allowance for future economic loss of $130,000, which I will discount for contingencies to $120,000.[33]I will allow 9% of $90,000,[34]$8,100, for loss of future superannuation benefits.
Other matters
- [37]The plaintiff has as a result of the accident lost to some extent the capacity to look after her home and do some things around the house. She has difficulty with heavier cleaning tasks, picking up heavy things or anything that involves working with her hands elevated. In the past this has not caused her any expense, because she was living at home until November 2004 and subsequently has been living in shared accommodation, currently occupying a two‑storey townhouse with two other people: p 15. In that shared accommodation she has been able to arrange things so that the heavier work is done by the other two: p 66. If this assistance were not available, she would pay someone for such assistance: p 16. Her estimate of the amount of paid assistance she would require in such circumstances is two to three hours a week, and the reasonableness of at least two hours a week assistance was confirmed by Ms Stevenson: p 79.[35]
- [38]The agreed rate for future paid care and assistance is $18 per hour. If she were to incur that expense for two hours a week for 56 years (to age 80) this discounted on the 5% tables would come to $36,000. It is likely, however, that part of this care will be provided gratuitously, either because of a continuation of the current arrangement, or if the plaintiff marries and the care is provided by a spouse. There are likely to be times where such services are not provided gratuitously, even if the plaintiff were still house sharing or married, and a reasonable allowance should be made for the prospect that for some time in the future the plaintiff will not be in receipt of gratuitous services. There is also the possibility that the plaintiff at some time in the future may be in need of additional care, for example, if she found herself living alone with young children to care for. In all the circumstances I consider that a reasonable allowance for future paid care is $15,000.
- [39]The plaintiff will require future medication, presumably at something like the current rate of $130 per annum. In addition, the plaintiff has sought an allowance of $300 per annum in order to accommodate physiotherapy and other similar specific responses to relief acute exacerbations of pain. There was no evidence that the plaintiff has been making any particular use of these therapies in this way in the past, but it is reasonable to expect that some use might be made of them in the future in the event of any significant exacerbation of her condition. Some allowance should also be made for occasional visits to a GP in connection with this problem, although as I said I would not expect that this would occur very often, because there would in practice be little that a GP could do, except perhaps order physiotherapy. I think on the whole a reasonable allowance for these matters is $200 per annum. That produces a cost for future treatment of $330 per annum, which if discounted at 5% per annum for 56 years is $6,346.
Summary
- [40]Accordingly the plaintiff’s damages are assessed as follows:
- (a)Pain and suffering and loss of amenities (agreed) $8,600.00
- (b)Past economic loss $7,355.00
- (c)Loss of past superannuation $662.00
- (d)Future economic loss $120,000.00
- (e)Loss of future superannuation benefits $8,100.00
- (f)Future paid care $15,000.00
- (g)Future treatment $6,346.00
- (h)Special damages $1,462.10
- (i)Interest on special damages $216.89
TOTAL $167,741.99
- [41]There will therefore be judgment that the second defendant pay the plaintiff $167,742 which is inclusive of $216.89 by way of interest. I will hear submissions, but unless some other order is appropriate I will order that the second defendant pay the plaintiff’s costs of and incidental to the action to be assessed.
Footnotes
[1]This is the date in both pleadings, the ambulance report and the records of the Nambour Hospital: Exhibit 1 document 18, see also document 20. The date of 21 June 2003, put to the plaintiff on p 11, was apparently an error by counsel, continued in his written submissions. This error has also infected the medical reports.
[2]Exhibit 1 document 18.
[3]Exhibit 1 document 19.
[4]Exhibit 1 document 17.
[5]This produces no significant continuing symptoms: p 9.
[6]Exhibit 1 document 15.
[7]Dwyer p 62. In isolation this is meaningless: it may be that no student would have completed more than one unit after two months, or even after five months. It may be as well that the records are incomplete: p 64.
[8]Exhibit 1 document 20
[9]This evidence, which was objected to, is admissible only as evidence the plaintiff was told this by Dr Robinson, not as the doctor’s opinion: p 13.
[10]Plaintiff p 28; her condition varies quite a bit, and she can go days or weeks without pain: p 32, p 43.
[11]He said (p 75) that he thought she had worked around her difficulties, although at the time he saw her she was not in employment. I assume he meant “worked” in a broader sense.
[12]He did give her 2% for pain, out of a possible 3% contemplated by the authors of chapter 18 of the AMA guide, on whom I would pronounce Mr Bumble’s curse.
[13]Exhibit 1 document 14.
[14]There was a brief period as a telemarketer: Exhibit 1 document 10.
[15]Plaintiff p 18; confirmed by McCormick p 12.
[16]McCormick p 12; she was also taking too many sick days, although not specifically because of her neck problems: p 14.
[17]Plaintiff p 24; Coppin p 3.
[18]Coppin p 3: this happens three or four times a month.
[19]In evidence she referred to migraines occasionally, fewer than she used to have (p 20), tonsillitis (p 33) for which she had been hospitalised, eczema and staph infections of the skin (p 35), and asthma (occasionally) p 41.
[20]Coppin p 3-4.
[21]Luntz “Assessment of Damages for Personal Injury and Death” 4th edition 2002 para 1.10.2.
[22]Plaintiff p 14; she had already had some practical experience at the college of the physical demands of hairdressing: p 9.
[23]In context she was speaking about medication for neck related symptoms.
[24]Exhibit document 3.
[25]The award was increased on 1 September 2006, and the taxation rates changed on 1 July 2006; this is an approximate figure which is I think sufficient given that the final result will be discounted anyway.
[26]There is some skill shortage in the industry: Dwyer p 58. It may be that there was some chance of payment above the award rates.
[27]Exhibit 1 document 9. For example, in the fortnight ended 27 April 2008 an allowance of commission increased the net income to $1,560.54.
[28]I adopt the calculation in p 18, note 93 of the submissions for the plaintiff.
[29]A period of 25 weeks.
[30]Exhibit 1 document 10.
[31]Damages should be assessed on the assumption that the plaintiff will make proper disclosure to prospective employers: Ballesteros v Chidlow [2006] QCA 323.
[32]Using Luntz “Assessment of Damages of Personal Injury and Death” (4th Ed 2002) table 2, 5% column.
[33]I am not discounting much because for a 25-year-old allowing a working life of only 30 years is a modest starting point.
[34]I should not allow this loss on that part of the future economic loss which comes from the loss of the opportunity to open her own salon.
[35]See also Dr Gillett p 19.