Bannister v Healey[2012] QDC 237

DISTRICT COURT OF QUEENSLAND

Facts

1. [1]
   The plaintiff was born on 4 May 1990 and is currently 22 years of age. On 21 March 2009 she was injured in a boating accident that occurred in the Broadwater at Southport.  She was a passenger in a three metre aluminium dingy which was struck by a 17.3 metre charter vessel which had proceeded under power directly towards and over the dingy.  The defendant was the master, owner, operator and person in charge of that vessel which at the time of the accident had in excess of 30 passengers on board including a number of female entertainers who were at that time, topless.

2. [2]
   At the time of the collision the defendant was not manning the helm of the boat but was on the lower deck in the vicinity of the topless entertainers. His absence from the helm meant that no-one was either manning it nor keeping a look out ahead.

3. [3]
   The accident occurred at about 2.30 pm. The plaintiff and the other two occupants of the dingy tried without success to attract the attention of someone on the larger vessel and after realising that the larger vessel remained on a collision course they jumped into the sea in order to avoid being hit. The charter boat motored into the dingy and ran over the plaintiff causing personal injury.

History of the matter

4. [4]
   Default judgment was entered on behalf of the plaintiff on 18 November 2011 as the defendant had failed to file a notice of intention to defend.

5. [5]
   On 23 May 2012 Judge Noud DCJ ordered that this matter be set down for an assessment of damages pursuant to Part 8, Rule 509 of the Uniform Civil Procedure Rules 1999 (Qld).

6. [6]
   The defendant did not appear at the assessment of damages hearing.

The plaintiff’s injuries

7. [7]
   Following the collision, the plaintiff was transported to the Gold Coast Hospital. Examination revealed a haematoma over the lumbar region. CT scans of her brain, cervical spine and lumbar spine were performed which showed that she had suffered fractures of the right transverse processes of L2, L3 and L4.

8. [8]
   The plaintiff was admitted into hospital overnight for observation and subsequently discharged into the care of her general practitioner.

9. [9]
   As a consequence of the accident and the injuries that she suffered the plaintiff has developed an adjustment disorder which continues to the present day.^[1]

The evidence of the plaintiff^[2]

10. [10]
    The plaintiff was educated until Year 10 at the Beenleigh State High School.  She experienced learning difficulties at school and was in special classes throughout her school years.

11. [11]
    After leaving school, the plaintiff had limited work experience. She worked briefly as a volunteer for a charity that helped disadvantaged people in the community. She has also assisted her mother from time to time in her mother’s cleaning business.

12. [12]
    Immediately following the accident and for a period of approximately six months the plaintiff could not seek employment because of her injuries.

13. [13]
    She has, since then, undertaken courses in hospitality and child care and has tried to undertake child care work experience. She found however, that she was unable to continue with the work experience as she was unable to lift heavy items (including children) because of her back injury.

14. [14]
    In early 2010, she worked packing large sheets of powder coated metal parts in a metal fabricating workshop for approximately three days. During that time her back symptoms were aggravated by standing, twisting and lifting the sheets of metal.

15. [15]
    In April 2010, she commenced employment as an office administrator but found that her back symptoms were aggravated by the end of each week because of long periods of sitting. She worked for a three month probationary period but was released at the end of that term.

16. [16]
    In July 2011, she commenced employment as a checkout operator at Woolworths Supermarket, Browns Plains and she continues in that job to the present date. She currently works two days per week for five hours each day. She says that she cannot work any longer than five hours per day because when she has done eight hour shifts it has resulted in increased back pain. She would like to obtain four days work per week but for the present time that has not been offered to her. She currently earns, on average, $200.00 net per week.

17. [17]
    Prior to the accident the plaintiff had planned to become a child care worker but due to her back pain is now unable to undertake that occupation.

18. [18]
    She has also considered undertaking training as a nail technician or other beauty therapist work but to the present time has been unable to afford the fees required to enter the training courses. The accident has impacted upon the plaintiff’s enjoyment of life and enthusiasm for activities as well as her relationship with her partner. Since the accident her back pain has restricted her physical activity and she does not go out as much as she did prior to the accident.

19. [19]
    Due to a lack of exercise and as a consequence of some of the medication that she has been required to take she has put on a significant amount of weight. She also now engages in social functions less frequently than prior to the accident. Insofar as past care and assistance is concerned, the plaintiff required significant assistance in the performance of most functions for the first couple of weeks following the accident. She estimates that her partner spent approximately two to three hours each day during that period of time assisting her. She further estimates that for the next six to seven months her partner would spend approximately three to four hours per week performing tasks that she had previously performed.

20. [20]
    Furthermore, her mother came to her house generally about three times per week for approximately twelve months after the accident. Her mother would then assist her for two to three hours on each occasion.

21. [21]
    The plaintiff noted that approximately twelve months after the accident the level of care and support that she required decreased somewhat although she continues to have difficulty in bending down and she struggles to lift anything heavy.

Expert evidence

22. [22]
    A number of expert witnesses have provided medico-legal reports and were called to give evidence in this matter. Those witnesses are:

• Ms Debbie Anderson, Clinical Neuropsychologist, Report dated 20 August 2010;^[3]
• Dr Alston Unwin, Consultant Psychiatrist, Report dated 28 October 2010;^[4]
• Dr Scott Campbell, Neurosurgeon, Report dated 3 March 2011;^[5] and
• Mr Stephen Hoey, Occupational Therapist, Report dated 23 July 2012.^[6]

Ms Anderson’s evidence

23. [23]
    Ms Anderson noted that the plaintiff had suffered a “a very high level of psychological distress and anxiety with her conviction that she was going to die or that she may be paralysed as a result of her injuries”.^[7]

24. [24]
    Ms Anderson further noted that the case is complicated by the plaintiff’s pre-morbid learning difficulties and limited formal education. She is of the view that the plaintiff had significant pre-existing learning difficulties which were characterised by poor concentration and subsequent difficulties with acquiring verbal academic skills throughout her education. She further noted that it was possible that the plaintiff’s pre-existing concentration problems may have been aggravated by her ongoing psychological symptomatology arising from the accident and its consequences.^[8]

25. [25]
    Ms Anderson is of the view that the plaintiff’s overall intellect is in the low average to borderline range with slightly stronger non-verbal skills.^[9]

26. [26]
    She diagnosed the plaintiff as suffering from an adjustment disorder as a result of the trauma that she experienced and is of the opinion that she requires further treatment from a clinical psychologist. She noted that the plaintiff will face substantial limitations in the workplace and that she will not be able to rely heavily on her physical abilities as she likely would have done were it not for the accident.^[10]

27. [27]
    Ms Anderson assessed the plaintiff’s adjustment disorder with an associated impairment of 7 per cent (Appendix 2-PIRS).^[11]

Dr Unwin’s evidence

28. [28]
    Dr Unwin also believes that the plaintiff is suffering from an adjustment disorder, which in his opinion, has become chronic, with an impairment of 7 per cent PIRS.^[12]  He believes that she is suffering extreme depression, stress and moderately severe anxiety.

29. [29]
    He is also of the opinion that the plaintiff’s adjustment disorder impedes her ability to obtain and maintain employment.^[13]

30. [30]
    He has recommended that the plaintiff receive counselling or psychotherapy by an experienced professional once a week for three to six months.

31. [31]
    Finally, when asked if he found the plaintiff to be a credible patient on examination Dr Unwin said that he gave her many ways in which to exaggerate her symptoms or her problems but she “took the other path”.  He formed the view that she was credible as far as he could judge.^[14]

Dr Campbell’s evidence

32. [32]
    Dr Campbell noted that the plaintiff had no history of lower back pain prior to the accident.^[15]

33. [33]
    He found after clinical examination that the plaintiff’s lumbar spine revealed a decreased range of movement by 20 per cent in all directions. He said that the plaintiff’s back pain had become chronic and was “unlikely to improve any further at two years post injury”.^[16]

34. [34]
    He opined that the plaintiff should be able to perform work of a sedentary nature in the future and anticipated that the plaintiff would have no difficulties working as a bar attendant or gaming attendant.^[17]

35. [35]
    He found that the plaintiff suffered from DRE Category II Lumbar Spine injury, compatible with a diagnosis of a chronic soft tissue musculo-ligamentous injury. He confirmed that the radiology showed that the plaintiff had suffered several undisplaced lumbar fractures.

36. [36]
    Dr Campbell assessed the plaintiff as suffering a 7 per cent whole person impairment, rating her towards the top of the range due to the severity of symptoms and the effect of symptoms on the activities of daily living. In his opinion the impairment was likely to be permanent.^[18]

Mr Hoey’s evidence

37. [37]
    Mr Hoey is of the view that the plaintiff is now precluded from heavy or repetitive lifting. He noted that forward bending and sustained sitting or standing are now considered to be aggravating factors. He believes that the plaintiff only has a capacity for sedentary employment.^[19]

38. [38]
    Mr Hoey noted that the plaintiff’s pre-existing intellectual difficulties would have limited her employment options to low or semi-skilled physically demanding occupations.^[20]

39. [39]
    He opined however, that the plaintiff is now physically unsuited to full-time work in any occupation that she would have otherwise been suited to prior to the accident and was of the view that her occupational restrictions will likely cause her to suffer economic disadvantage. At paragraph 43, page 14 of his report, Mr Hoey said:

“The unwavering reality is that workers with chronic injury are underemployed and earn lower wages than their counterparts without injury.  She was already restricted (in my opinion) to work of a low or semi skilled, physically demanding nature (related to her pre-existing learning difficulties).  Now physically unsuited to these types of jobs she is at a significant disadvantage on the open labour market.”

40. [40]
    Mr Hoey also noted that the plaintiff, in February 2011, had successfully undertaken certificates in Hospitality, Responsible Service of Alcohol and Responsible Service of Gaming.^[21]

41. [41]
    Insofar as her current occupation is concerned Mr Hoey said:

“Resultant of her ongoing pain and functional restrictions it is my view that this lady has a maximum tolerance of some 20 to 25 hours per week in this occupation (ie working no more than 4 or 5 hours per day).

Ms Bannister’s ability to continue working in her current role will be dependant upon her capacity to manage her ongoing symptoms as well as the continued empathy of her employer and/or work colleagues.  Restricting her working hours and/or delegating aggravating work tasks (where possible) may go some way to assisting her to manage her symptomatology.  In my view, she should consider changing occupations if she is to work in excess of 25 hours per week.”^[22]

42. [42]
    Mr Hoey agreed with Ms Anderson’s opinion that the plaintiff’s pre-existing learning difficulties would have limited her employment options to low or semi- skilled physically demanding occupations. He said that the pool of jobs for which she would have been qualified would have included occupations at the skill level 4 or 5 of the Australian Qualifications Framework which includes work as a cleaner, factory process worker or labourer, agricultural or horticultural labourer, teacher’s aide, housekeeper, bar attendant, waitress or carer for the aged or disabled. As a consequence of her back injury however Mr Hoey is of the view that the plaintiff is now physically unsuited to full-time work in any of these occupations. He specifically noted that notwithstanding that she holds certification for work in the hospitality industry, it is his view that such an occupation requires regular heavy lifting (eg of kegs, beverages, trays of glasses and furniture), prolonged periods of standing and walking (ie while serving customers at a bar or waiting on tables) and frequent forward bending and crouching (eg to restock fridges or clean). He believes that the occupational demands of work in that industry exceed her physical capacity.^[23]  At paragraph 43 Mr Hoey said:

“She was already restricted (in my opinion) to work of a low or semi- skilled, physically demanding nature (related to her pre-existing learning difficulties).  Now physically unsuited to these types of jobs she’s at a significant disadvantage on the open labour market.  To have a chance of securing (and maintaining) employment she will require an empathetic employer and (related to her restrictions) she will certainly need to be selective in the type of work that she takes on.  Such realities limit the type (and number) of jobs available to her in the labour market for which she is reasonably qualified.  I believe her to be more vulnerable on the labour market than she was pre-accident.”^[24]

43. [43]
    Mr Hoey also believes that the plaintiff has an ongoing need for care and assistance around the home and in his assessment she will require one hour and 15 minutes assistance per week. He also recommends that a further allowance of one to two hours per week should be given to allow for flare ups in her condition.^[25]

Other witnesses

44. [44]
    Three other witnesses have provided evidence in this matter:

• Michelle Bannister, the plaintiff’s mother;^[26]
• Daniel Banks, the plaintiff’s partner;^[27] and
• Garth Dickson, Director and Managing Chief Executive Officer of Village Kids Children’s Centres.^[28]

Michelle Bannister’s evidence

45. [45]
    Ms Michelle Bannister confirmed that her daughter experienced learning difficulties as a child and was placed in specialist learning classes in junior school and had significant difficulties learning to read and write.^[29]

46. [46]
    Ms Michelle Bannister also confirmed that both she and Mr Banks provided significant care and assistance to the plaintiff following the accident. She estimated that she attended upon her daughter’s residence two to three times per week for approximately 12 months following the accident spending two to three hours with her daughter on each visit. During those visits she would undertake general cleaning, washing, shopping, and transporting her daughter to places that she needed to attend including medical appointments. She further noted that after a period of about 12 months her daughter’s mobility improved and she did not require as much physical care and assistance.^[30]

47. [47]
    Ms Michelle Bannister has also commented upon the changes to her daughter’s personality that she has noted since the accident occurred. Those changes are consistent with the diagnoses of Ms Anderson and Dr Unwin.

Mr Banks’ evidence

48. [48]
    Mr Banks stated that for the first month following the accident he had to provide a large amount of care and assistance to the plaintiff. That care consisted of tasks such as helping her shower, helping her get into bed and helping her to the toilet. He also did the cooking, most of the cleaning and washing.^[31]

49. [49]
    He further estimated that for the first 12 months following the accident he would have provided the plaintiff with 4-5 hours care per week, but that after 12 months her condition improved slightly and that level of care reduced. He estimates that following the first 12 months he has provided the plaintiff with between 2-3 hours of assistance per week.^[32]

Mr Dickson’s evidence

50. [50]
    Mr Dickson has been involved in the Child Care Centre industry since 1996. He has provided evidence as to the types of physical activities that are regularly required of child care workers.

51. [51]
    Prior to giving evidence Mr Dickson was appraised of the plaintiff’s present circumstances, including her restrictions and limitations. He in fact met the plaintiff the day before he gave evidence. In his assessment he would be unable to employ the plaintiff in the child care industry due to those restrictions and limitations. He confirmed, as one would expect, that the job can be physically demanding.

52. [52]
    Mr Dickson also produced to the Court the Child Care Award Rates of Pay for the various levels of child care.

Damages for pain and suffering

53. [53]
    The assessment of damages is governed by the provisions of the Civil Liability Act 2003 (Qld) and Civil Liability Regulations 2003 (Qld).

54. [54]
    There is no doubt that the plaintiff suffers from a predominant injury to her lumbar spine. She has submitted that the injury would fall under Item 93 of the Civil Liability Regulations 2003 (Qld) – moderate lumbar spine injury – soft tissue injury.  Item 93 provides the following:

“An ISV of not more than 10 will be appropriate if there is whole person impairment of 8 per cent caused by a soft tissue injury for which there is no radiological evidence.”

55. [55]
    As I have already indicated, Dr Campbell is of the opinion that the plaintiff has suffered a whole person impairment of 7 per cent. The plaintiff has submitted that an ISV of 10 is an appropriate assessment, taking into account the effect of this injury upon the plaintiff, which is now in excess of three years old and given the fact that the plaintiff initially sustained fractures of the right transverse processes of L2, L3 and L4. I agree with this submission.

56. [56]
    Part 2, Division 1, Section 3 and Section 4 of the Civil Liability Regulations 2003 (Qld) provide guidance where a plaintiff has suffered multiple injuries.  Section 3(2) provides that:

“To reflect the level of adverse impact of multiple injuries on an injured person, the Court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the Court would assess for the dominant injury only.”

57. [57]
    Section 3(2) must be read in conjunction with section 4. Section 4 states:

“4. Multiple injuries and maximum dominant ISV inadequate

(1) This section applies if a court considers the level of adverse impact of multiple injuries on an injured person is so severe that the maximum dominant ISV is inadequate to reflect the level of impact.

2. (2)
   To reflect the level of impact, the court may make an assessment of the ISV for the multiple injuries that is higher than the maximum dominant ISV.

3. (3)
   However, the ISV for the multiple injuries—

1. (a)
   must not be more than 100; and

Note—

the Act, section 61(1)(a), an ISV is assessed on a scale running from 0 to 100.

(b) should rarely be more than 25% higher than the maximum dominant ISV.

4. (4)
   If the increase is more than 25% of the maximum dominant ISV, the court must give detailed written reasons for the increase.

5. (5)
   In this section—

maximum dominant ISV, in relation to multiple injuries, means the maximum ISV in the range for the dominant injury of the multiple injuries.”

58. [58]
    The plaintiff has submitted that given her age, education and particular circumstances, an uplift of the dominant injury is appropriate to take into account her psychiatric injury remembering that both Ms Anderson and Dr Unwin concluded that the plaintiff was suffering from an adjustment disorder that constituted a PIRS assessment of 7 per cent whole person. The plaintiff has submitted that her ISV should be uplifted to an overall rating of 15 (this submission clearly takes into account the note attached to section 3(2) of the Civil Liability Regulations 2003 (Qld) which states “if each of the multiple injuries were assigned an individual ISV and these ISVs were added together, the total ISV would generally be too high”).

59. [59]
    Of course, to lift the ISV to 15 would mean that the uplift is increased by greater than 25 per cent of the predominant injury. The plaintiff submits that this is an appropriate case in which to do so. She submits that the following factors are relevant to the issue:

1. (a)
   Her young age;

2. (b)
   Her learning difficulties and the fact that she may find a psychological injury more difficult to deal with than a similar plaintiff without learning difficulties;

3. (c)
   The fact that the injury occurred three years ago and she still has ongoing symptoms which require antidepressant medication; and

4. (d)
   The fact that the psychiatric injury itself would fall within Item 12 of the regulations – moderate mental disorder and would attract an ISV of 7.

60. [60]
    I accept that the psychiatric injury if assessed by itself would fall within Item 12, although in my opinion it would attract an ISV of 6 given that the PIRS assessment of 7 per cent falls directly in the middle of the appropriate range for that category.

61. [61]
    In relation to (b) above, whilst I accept that commonsense would suggest that a person with learning difficulties may find a psychological injury more difficult to deal with than a person without that disability, there is no actual evidence to that effect before me and in my view it is an issue which would require evidence before I could make such a finding.

62. [62]
    Notwithstanding that difficulty, it is nevertheless my view that to appropriately reflect the plaintiff’s disabilities that are relevant to the accident and its consequences, an uplift of greater than 25 per cent is required. The reasons for that are:

1. (a)
   The plaintiff’s adjustment disorder is now considered to be chronic;

2. (b)
   The plaintiff is still only 22 years of age;

3. (c)
   The accident occurred almost three and a half years ago; and

4. (d)
   The psychiatric injury if assessed by itself would attract an ISV of 6.

63. [63]
    For these reasons it is my view that an uplift of ISV to 13 is both appropriate and necessary to truly reflect the level of impact that these injuries have had and are continuing to have on the plaintiff. In my view anything less would be inadequate.

64. [64]
    Accordingly the plaintiff is awarded $15,200.00 for general damages with interest to be calculated at the rate of 2% on $7,600.00.

Past economic loss

65. [65]
    The plaintiff has submitted that had the accident not occurred she would have found employment shortly after March of 2009 and that it would have been employment similar to that which she currently enjoys, and it would have earned her a net income of approximately $200.00 per week.

66. [66]
    She submits that by adopting that methodology, she would have notionally derived an income in the 2009 financial year of $3,800.00. Her actual income for that period was nil.

67. [67]
    The plaintiff has said that following the accident for a period of approximately six months she could not seek employment because of her injuries.^[33]  I accept the plaintiff’s evidence in that regard given the attempts that she has made since the accident to obtain and maintain employment in difficult circumstances and the courses she has successfully undertaken in an attempt to improve her prospects of employment.  I also accept the evidence of Dr Unwin that she impressed as a patient of credit and was not prone to exaggeration.

68. [68]
    I find it a little difficult however to infer that were it not for the accident she would have obtained employment from at about the time of the accident despite the fact that she had been unemployed throughout the year up until that time. In my view, it would nevertheless be reasonable to assume that the plaintiff would have been able to find employment of this nature by the beginning of May 2009. She has therefore notionally suffered the loss of approximately eight weeks’ income for that financial year as a result of this accident.

69. [69]
    The plaintiff has adopted a similar methodology for the 2010 financial year. Her actual income for that year was $4,024.00 and by application of the above methodology it is reasonable to assume that her notional net income for that year would have been $10,400.00.

70. [70]
    The plaintiff’s evidence is, but for the accident, she would have pursued a career in child care. On 25 August 2010, the plaintiff commenced training for a Certificate III in Child Care with Australia Childcare Career Options.^[34]  Through that course she received the opportunity to engage in work experience as a child care assistant with the Kidi Kingdom Child Care Centre at Woodridge.  Unfortunately, she was only able to attend that child care centre for one day as she was unable to bend down and lift play equipment and/or children because of her back injury.

71. [71]
    The plaintiff has submitted that on the balance of probabilities, but for the accident, she would have commenced employment as a child care support worker on or about 1 October 2010 whilst completing her Certificate III in Child Care. In that position, she could have earned, as an unqualified children’s services employee, an average net weekly income in her first 12 months of employment of $560.30 per week. In her second 12 months, her net weekly income would have increased, in accordance with the award to $579.10.^[35]

72. [72]
    Furthermore the plaintiff submits that the court would be satisfied, on the balance of probabilities, that had she not suffered her back injury, she would have obtained her Certificate III qualification in two years. Given the opinions of Mr Hoey and Ms Anderson that the plaintiff was vocationally suited for child care work despite her learning difficulties I infer that each held the view that she was capable of passing the Certificate course.  Accordingly I accept the plaintiff’s submission that she would have obtained her Certificate III qualification in two years.

73. [73]
    A summary of the plaintiff’s past economic loss as detailed in her Further Statement of Loss, is detailed below:

74. [74]
    The plaintiff has claimed the difference between her notional past economic loss and her actual earnings for that period. For the reasons outlined above I accept that this is a reasonable submission in the circumstances with the qualification that, for the reasons outlined in paragraph [68] above, the amount for the year ending 30 June 2009 should be limited to $1,600.00. The plaintiff is therefore awarded $48,980.00 for past economic loss.

Future economic loss

75. [75]
    The plaintiff has submitted that future economic loss can be calculated in one of two ways. The first, and the method urged upon the court by her, involves the court finding that a precise calculation of her future loss of earning capacity can be made. It is submitted that she would have derived a net income of not less than $650.00 per week in the child care industry or in similar employment, and as she currently earns only $200.00 net per week she will suffer, at a minimum, a loss of earning capacity of $450.00 net per week. She submits that, applying Luntz, 4^th Edition, Table 4B, the relevant multiplier is 927.3.  Therefore, on a $450.00 net per week loss, it is alleged that a future economic loss claim amounts to $417,285.00.  The plaintiff then submits that a conservative discount rate of 20 per cent should be applied to the assessment of future loss which produces the sum of $333,828.00.

76. [76]
    The plaintiff submits in the alternative that if this court is of the view that a specific calculation of future economic loss is not appropriate, then a global assessment of future economic loss as an alternative method can be adopted.

77. [77]
    In that regard the plaintiff has referred to the evidence of Mr Hoey that the net weekly wage for a bar attendant is $678.00,^[36] the net weekly wage for a factory process worker is $578.00^[37] and the net weekly wage for a carer for the aged or disabled is $671.00.^[38]  Mr Hoey is of course of the view that the plaintiff is now precluded from obtaining employment in those occupations.  Where his evidence conflicts with Ms Anderson’s (i.e.: as to the plaintiff’s capacity to work as a bar attendant or gaming attendant) I prefer the evidence of Mr Hoey.  He has provided specific reasons for his opinions and has evidenced an understanding of what is required of someone who works in such an occupation.  Ms Anderson did not do so.

78. [78]
    The plaintiff submits that the net rates of pay for these occupations are similar to that which the plaintiff would receive, if she had pursued a career in child care, although I note that the net weekly wage for a factory process worker is in fact significantly less.

79. [79]
    In support of this alternative approach the plaintiff has referred the court to two matters, Hughes v Grogan & Anor^[39] and Hoppe v Burns.^[40]  Hughes v Grogan & Anor is a case with circumstances similar to those in the present matter.  The plaintiff was 22 at the time of judgment.  She had intellectual issues and learning difficulties.  She sustained a significant fracture to her dominant left arm.  She also had a psychiatric injury.  Past economic loss was calculated on a notional basis.  The plaintiff submitted that, but for the accident, she would have obtained work as a cleaner earning in the vicinity of $460.00 per week.  Justice A Lyons found that the plaintiff was capable of some light work and made an award calculated at the rate of $200 per week over 43 years, totalling $187,640.00.

80. [80]
    The plaintiff in this matter has submitted that she has taken more positive steps before and after the accident to indicate a possible career path then was present in Hughes.  She relies upon the volunteer charity work that she undertook after leaving school, and the courses that she has undertaken in hospitality and childcare and the one day’s work experience at a child care centre.  It is submitted that features such as these were absent in Hughes and that the distinction would warrant this court in awarding a larger amount for future economic loss than was made in Hughes.

81. [81]
    In Hoppe v Burns the plaintiff was 33 years of age at the time of injury and 37 at the time of judgment.  The plaintiff in that matter submitted that he would have, were it not for the injury suffered in the accident, qualified as an electrician earning a net weekly wage of $695.00.

82. [82]
    The plaintiff in that matter however had been convicted of Centrelink fraud, had suffered injuries prior to the accident which were significant, and had a negative personality which would have impacted upon his future employment. It was noted as well that his pre-accident employment and motivation were poor.

83. [83]
    McMeekin J found that whilst the plaintiff in that matter had a reasonable chance of qualifying as an electrician, the chance was reasonably remote because of his pre-accident history, credit and character flaws.

84. [84]
    Notwithstanding those issues his Honour assessed the plaintiff’s future economic loss claim at $170,000.00 after applying a 15 per cent contingency.

85. [85]
    Bearing those matters in mind the plaintiff in this matter has submitted that if a global approach is preferred, the court should award a sum of $300,000.00 for future economic loss after taking into account contingencies.

86. [86]
    In my view this is a case in which a precise calculation of the plaintiff’s future loss of earnings can be adopted. I do not accept however that the plaintiff would suffer, at a minimum, a loss of earning capacity of $450.00 net per week. I do accept that the likelihood is that she would have embarked upon employment in the childcare industry and that she would have maintained that employment after successfully completing the requisite course.

87. [87]
    The amount of $450.00 a week however is based upon the premise that the plaintiff will earn no more than $200.00 net per week into the future. She has indicated however, that she would like to work more frequently but to the present time extra work has not been offered. She says that she can work for a maximum of four days per week although not for any longer than five hours per day. Were she to obtain that amount of work then she would of course double her present income.

88. [88]
    Taking that uncertainty into account, in my opinion an appropriate figure upon which to base any calculation is one of $300.00 per week for 43 years.

89. [89]
    Accordingly the figure for future economic loss should be calculated on that basis and discounted by 15 per cent to allow for the usual contingencies. I therefore assess the loss at $239,241.00.

90. [90]
    I should indicate that even if I had adopted the alternative global approach I would have arrived at a similar figure taking into account all relevant considerations.

Loss of superannuation benefits

91. [91]
    The plaintiff is entitled to loss of superannuation benefits on past and future economic loss at the rate of 9 per cent.

92. [92]
    The plaintiff is awarded $4,408.00 for loss of past superannuation.

93. [93]
    The plaintiff is awarded $21,532.00 for future loss of superannuation.

Past care and assistance

94. [94]
    Evidence of past care and assistance has been placed before the court by the plaintiff, her mother Michelle Bannister and her partner Daniel Banks.

95. [95]
    Michelle Bannister said:

“For approximately 12 months following the accident, I would attend upon my daughter’s residence two-three times per week …on each occasion I would spend two-three hours with Nikki.”^[41]

96. [96]
    Michelle Bannister said that she would undertake any general cleaning that needed to be attended to, do the washing and take the plaintiff to any doctor’s appointments or shopping that the plaintiff needed to attend to.^[42]

97. [97]
    Michelle Bannister said that after the initial 12 month period following the accident, the plaintiff’s need for physical assistance reduced although there remained a need for emotional assistance to be provided.

98. [98]
    The plaintiff has submitted that assessing her mother’s evidence at its lowest, for a period of 12 months following the accident, Michelle Bannister provided the plaintiff with a minimum of four hours care and assistance per week. I accept that this is a reasonable submission in light of the evidence.

99. [99]
    It is further submitted that Michelle Bannister has provided a further two hours of care per week for the period commencing 12 months post accident until the present. The evidence reveals however, that for that period of time most of Michelle Bannister’s assistance was directed to the provision of emotional support either in person or over the telephone.^[43]

100. [100]
     The plaintiff and her partner Daniel Banks have also provided evidence that following the accident Mr Banks took a week off work to care for the plaintiff. After that he would finish work at approximately 3.00 to 4.00 pm each week day and Mr Bank’s estimated that he provided the plaintiff with between four to five hours’ assistance each week every week for 12 months following the accident.^[44]  The plaintiff estimated that Mr Banks spent approximately three to four hours per week performing tasks that she had done prior to the accident for a period of six to seven months post accident.^[45]

101. [101]
     Mr Banks also estimated that following the first 12 months until the present, he provided the plaintiff with between two to three hours of assistance per week.^[46]

102. [102]
     Given the nature of the injuries suffered by the plaintiff I accept that she required the care and assistance that has been detailed by Michelle Bannister and Mr Banks and that they are each credible and accurate witnesses in their assessments of time.

103. [103]
     Section 59 of the Civil Liability Act 2003 (Qld) regulates the award of damages for gratuitous services provided to an injured person.  It requires that the services be provided or are to be provided for at least six hours per week for at least six months, as long as the services were not being provided for the injured person before the breach of duty happened.

104. [104]
     It has been established in Kriz v King,^[47] that once the threshold has been reached (i.e. six hours per week, six months post accident), damages may be awarded even if less than six hours a week are provided.

105. [105]
     There is no doubt that the threshold has been reached in this matter.

106. [106]
     Mr Hoey reports that domestic assistance could be provided at an hourly rate of $39.00 by commercial operators or at the award rate of $22.21.^[48]  The plaintiff has submitted that the conservative rate of $22.21 should be the rate which is adopted.  I accept that submission.  Accordingly, for the period from 21 March 2009 to 21 March 2010 I award the amount of $3,328.00 for past care and assistance (eight hours per week x 52 weeks x $22.21).

107. [107]
     There is however an inconsistency in the evidence regarding the amount of care that has been provided by Mr Banks from 22 March 2010 until the present time. As indicated, Mr Banks’ estimates that he has spent two to three hours per week during that period of time providing care and assistance to his partner. I note however that the care and assistance about which he speaks includes washing, cleaning, cooking and general household chores. One would assume that he would have some responsibility for performing some of these chores irrespective of her state of health. Mr Hoey in his report has noted that as at the date of his report (23 July 2012) the actual assistance being provided to the plaintiff was approximately one hour and fifteen minutes per week. In arriving at that figure Mr Hoey disentangled the percentage of chores that pertained only to her.^[49]  I prefer Mr Hoey’s evidence in that regard and have no reason to infer that the plaintiff required more than one hour and fifteen minutes per week approximately during the period of time commencing on 22 March 2010 until the present.  Accordingly, the plaintiff will be awarded the sum of $2,082.00 for the care and assistance she has received from Mr Banks from 22 March 2010 until the present (1 ¼ x 75 weeks x $22.21).

108. [108]
     Insofar as the plaintiff’s claim for care and assistance from her mother for the period from 22 March 2010 until the present I note that no authority has been cited in submissions showing that the provision of emotional support falls within this category. Furthermore, the evidence of Michelle Bannister regarding that period of time is vague in the extreme. She said:

“After a period of about 12 months, Nikki’s mobility improved and I did not need to provide as much physical care and assistance, however her emotional needs increased.  Nikki was finding it very difficult to cope emotionally and she was getting upset a lot.  I would often go around to see Nikki’s house or spend long periods on the phone with her.”^[50]

109. [109]
     Michelle Bannister also said at paragraph 28 of her affidavit:-

“Nikki’s mental health is a great cause of concern to me and requires me to spend a great deal of time with her, attending to her emotional needs.”

The plaintiff on this topic said:-

“As a result of the accident, I have become very emotional.  I continue to rely on my mother for emotional support and spend a lot of time talking to her, either in person or on the phone.”^[51]

110. [110]
     The plaintiff also said at paragraph 56 of her statement that she believed that she will continue to need the support of her mother, primarily for emotional support.

111. [111]
     No other evidence has been placed before the court as to the nature of this support and in those circumstances the evidence is inadequate to provide a foundation for the award of the damages sought even if such an award could be made under this head of damage.

112. [112]
     In summary, I award a total figure of $5,410.00 for past care and assistance.

113. [113]
     Interest is to be calculated on this amount at the rate of 2.765% which is $149.60.

Future care and assistance

114. [114]
     Mr Hoey notes that not only is the plaintiff currently being provided with assistance of one hour and fifteen minutes per week, but he is also of the opinion that an allowance of an additional one to two hours per week should be made for future care to allow for flare-ups in her condition and difficulties with task completion.^[52]

115. [115]
     The plaintiff has submitted that a figure of two hours total per week would be appropriate and reasonable in the circumstances. I agree with that submission.

116. [116]
     The plaintiff has accordingly submitted that an award for future care and assistance in the amount of $17,506.35 would be appropriate in the circumstances applying the 5 per cent tables through to age 65 taking into account a 15 per cent discount for contingencies. This is a reasonable submission in the circumstances and I will order accordingly.

Future medical and associated treatment

117. [117]
     Dr Unwin has attested that the plaintiff would benefit from either a psychiatric or a psychological consultation once a week every week for three to six months.^[53]

118. [118]
     The plaintiff has conservatively and reasonably claimed a period of three months and has relied on the costings contained in Dr Unwin’s report.^[54]

119. [119]
     Accordingly the figure for future medical and associated treatment should be calculated on the basis of $230.00 per treatment for 12 treatments which gives a figure of $2,760.00.

Special damages

120. [120]
     The plaintiff has incurred the following special damages:

1. (a)
   Health Insurance Commission  $1,030.00

2. (b)
   Gold Coast Hospital Charge $1,995.00

3. (c)
   Medical and chemist expenses $1,000.00

 Total $4,025.00

  ═════

121. [121]
     I see no reason not to allow the amount claimed.

Summary

122. [122]
     The plaintiff’s damages can be summarised as follows:

Summary of Assessment of Damages

Orders

123. [123]
     There will be judgment for the plaintiff in the sum of $364,112.88.

124. [124]
     I order that the respondent pay the plaintiff’s costs of and incidental to this assessment at the standard rate.