Good v Czislowski[2013] QDC 68

DISTRICT COURT OF QUEENSLAND

1. [1]
   This proceeding was concerned with the assessment of damages for the plaintiff, Ms Good, resulting from personal injuries suffered by her as a result of a motor vehicle accident. Liability was admitted. At trial, the plaintiff contended for total damages in the sum of $272,207.56 and on behalf of the defendant $24,218.55. For the reasons set out below damages are assessed at $148,946.00.

Background

2. [2]
   The plaintiff is a married woman born 20 June 1943 and was only two days shy of her 63^rd birthday when she was involved in a motor vehicle accident on 18 June 2006. At the date of trial, the plaintiff was some three months shy of her 70^th birthday. At the time of the accident, the plaintiff and her husband were retired and there is no claim for economic loss. The parties were agreed that a woman of the plaintiff’s age had a statistical life expectancy of 18 years. However, there was considerable debate about the state of health of the plaintiff at the time of the accident.

3. [3]
   On 18 June 2006, the plaintiff was riding her pushbike along Elizabeth Street at Hervey Bay when she was struck by the bullbar of a Toyota Land Cruiser. She fell to the ground with sufficient force to fracture the helmet she was wearing. It was pleaded that by reason of the negligence of the driver of the four-wheel drive that the plaintiff suffered injuries including:

1. (i)
   extensive bruising;

2. (ii)
   injury to cervical spine;

3. (iii)
   injury to the chest-wall;

4. (iv)
   injury to the sternum.

4. [4]
   That those injuries were suffered by the plaintiff was admitted by the defendants, but it was alleged that each of them was more limited, temporary, and superficial than alleged. According to the defendants, the plaintiff’s claims “are grossly exaggerated”^[1].

The issues

5. [5]
   The two central and interrelated issues to be determined are:

1. (i)
   the impact of the accident on the health of the plaintiff, and, in particular, the level of past and future care required;

2. (ii)
   the state of health of the plaintiff at the time of the accident and the level of past and future care that would have been required in any event.

General health of plaintiff

6. [6]
   The picture the plaintiff painted of her physical health prior to the accident was to the effect that, having regard to her age, she was in relatively good health and carried out all the domestic duties associated with the household (cooking, cleaning, ironing, etcetera) and also carried out all of the yard work including gardening, edging and lawn mowing. The plaintiff’s husband said that he hated this work and that it interfered with his painting. He was an artist, who had some commercial success. The plaintiff and her husband went shopping together for groceries. The plaintiff required assistance in carrying out her activities when heavy objects had to be moved or she had to be assisted in reaching high places. The plaintiff’s  house was described as being a large two-storey residence with very neat and well-kept lawns and gardens. In addition to enjoying working in the house and gardens the plaintiff said that she enjoyed swimming, aqua aerobics and rode her bike every day for up to 14 kilometres.^[2]The plaintiff also said that prior to this accident she used to drive, but no longer does.

7. [7]
   In her evidence-in-chief, the plaintiff said that she had no particular health problems, but had suffered Hashimoto’s Disease (a thyroid condition) diagnosed approximately 17 years ago.^[3]The plaintiff stated that, provided she undertook her prescribed medication, that disease caused her no problems in her day-to-day affairs.

After the accident

8. [8]
   Immediately following the accident, the plaintiff complained that “everything was hurting”^[4]but, in particular, she suffered agonising pain in the chest area. For at least one month, the plaintiff suffered terrible pain as a result of the accident including in the area of both shoulders, knee, and persistently in the chest area. Generally speaking, the severe bruising to the plaintiff had largely resolved after a period of about one month, as did her neck injury. In respect of the neck injury, it was said, “the plaintiff does not suggest that the neck injury is particularly troublesome or causes any great problem.”^[5]However, there is to my mind no doubt that the injury to her chest (the sternum injury) was much more serious.

9. [9]
   According to Dr Fraser (the orthopaedic surgeon relied on by the defendant), the most likely diagnosis for this injury was a fracture to the sternum. According to him, the plaintiff displayed “excessive” symptoms and, in his opinion, the matter should have resolved itself within a “few months”.^[6]It may well be the case, as Dr Fraser opined, that such an injury would, in most cases, resolve in a few months. However, I am sufficiently satisfied that this was not the case for the plaintiff and that Dr Fraser’s assessment failed to adequately take into account the true nature and impact of the sternum injury suffered by her.

10. [10]
    The medical documents record the plaintiff attending on numerous occasions complaining of pain in her chest and rib areas. That these complaints were treated seriously by the various medical practitioners she attended is attested to by the numerous tests and treatments she was subjected to. In addition to a number of x‑rays, on 23 February 2007 the plaintiff underwent a bone scan^[7]and on 5 March 2007, a CT (sternum).^[8]Also, on 18 April 2007, an MRI (sternum).^[9]Fearing cancer might have been the underlying cause, the plaintiff, on 21 August 2007, was subjected to a barium swallow and on 29 April 2008, a radionuclide bone scan.^[10]

11. [11]
    On 1 July 2008, the plaintiff was examined by Dr Matar, a thoracic surgeon. It was his opinion that, “my overall conclusion then has to be that this unusual situation did arise from the accident and the changes that we are seeing in the bone as a direct consequence of trauma to the area …”.^[11]

12. [12]
    On 24 July 2009, the plaintiff was examined by Dr Van der Walt, an orthopaedic surgeon. Dr VanderWalt recorded that the plaintiff had told him that prior to the accident she was extremely active physically and spent a great deal of time gardening and that that hobby was now severely restricted as she was unable to do any mowing and/or pruning. At page 10 of his report, Dr VanderWalt recorded:^[12]

“… she also has radiological evidence of significant injury to her sternum and anterior chest-wall and left clavicle.

The fifth edition of the AMA’s ‘Guides to the Evaluation of Permanent Impairment’ was consulted.

I believe that she suffered soft tissue injuries to her cervical spine with the accident in question. These symptoms have been overshadowed by painful symptoms affecting her chest wall.

Using Table 15-5 on page 392, I would place her injury in the DRE of cervical category II. This implies a 5% to 8% impairment of the whole person. There is certainly a clinical history of injury with findings which show asymmetric loss of range of motion and there are non-verifiable radicular complaints.

I would allot 5% whole person permanent impairment to this injury.

She suffered injuries to her sternum. The ‘Guides’ recognise impairment from chest wall injuries only when the chest wall injury results in deformity of such magnitude, that respiratory or cardiovascular function is compromised by deformity. Generally therefore the ‘Guides’ do not allow for any percentage partial permanent impairment.

Her pain is so severe that I believe that she has neuropathic pain. Neuropathic pain results from damage to or dysfunction of the peripheral or central nervous system, rather than stimulation of pain receptors.

She may benefit from advice at a Pain Clinic, in an institution which specialises in the management of chronic pain.

Using the pain section of the ‘Guides’ I would allot an additional 3% whole person permanent impairment as a result of injuries sustained with the accident.

This gives her 8% whole person permanent impairment.”

13. [13]
    A number of matters arose out of Dr Van der Walt’s report. First, on viewing surveillance footage taken of the plaintiff, he conceded that it was unlikely that the plaintiff was suffering neuropathic pain. Second, he had tended to overstate the extent of the plaintiff’s neck injury and/or failed to properly take into account any precondition that the plaintiff had. Third, otherwise his diagnosis in respect of the plaintiff’s sternum injury was broadly consistent with other evidence.

14. [14]
    After a referral from a Dr Ghafoor from the Urangan Medical Centre, the plaintiff was again examined by a Dr Klestov, a consultant in arthritis and rheumatic diseases. Dr Klestov recorded that the plaintiff presented as being tender on the sternoclavicular and parasternal regions on deep palpitation, but otherwise her musculoskeletal system was unremarkable. The doctor prescribed medication for “parasternal acute episodic chest-wall pain” and recorded:^[13]

“I thought the above presentation was suggestive of likely inflammatory connective tissue disease which has been provoked by several traumatic incidents in the last six years.”

15. [15]
    Just what constituted the “several traumatic incidents” referred to by Dr Klestov was not made particularly clear. However, on any objective reading of his report,^[14]it seems tolerably clear that the accident, if not the sole cause of that symptomology, was to a significant extent the major contributing factor.

16. [16]
    In this context, I also accept the opinion of Dr Van der Walt to the effect that, while there is a degree of uncertainty about the source or cause of the pain, there is no doubt that there is a relationship between the plaintiff’s sternum pain and the accident.^[15]

17. [17]
    The evidence given by the plaintiff concerning the pain, suffering and inconvenience caused by her chest injury is not only corroborated to a material extent by the medical evidence, but in certain respects, also by the surveillance footage taken on behalf of the defendants. The surveillance was quite extensive. It showed the plaintiff riding her bike, shopping with her husband, shopping alone and present in the yard of her home. While this footage showed the plaintiff was quite capable of riding her pushbike and enjoying other activities associated with that riding (e.g. stopping for coffee) it did not show the plaintiff carrying out any work in the garden. Given the extent of the surveillance undertaken it seems likely to me that if the plaintiff was in fact carrying out those activities she would have been observed.

Calculation of general damages

18. [18]
    Pursuant to s 61 of the Civil Liability Act2003, if damages are to be awarded by a court in relation to an injury arising after 1 December 2002, the injured person’s total general damages must be assigned a numerical value, the “injury scale value” (ISV), on a scale running from 0 to 100. That scale reflects 100 equal gradations of general damages from a case in which the injury is not severe enough to justify any award of general damages to a case in which the injury is of the gravest conceivable kind. Pursuant to s 61(2), the court must state the factors on which the assessment is based that justify the assessed ISV.

19. [19]
    The plaintiff’s case is complicated by the fact that multiple injuries are involved. Section 3 of Schedule 3 of the Civil Liability Regulation 2003 provides for the assessment of general damages where there are multiple injuries. It states:

“(1)Subject to section 4, in assessing the ISV for multiple injuries, a Court must consider the range of ISVs for the dominant injury of the multiple injuries.

3. (2)
   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.”

20. [20]
    In Munzer v Johnston^[16]McMeekin J relevantly said:

“This case concerns multiple injuries. In such a case it is necessary to determine the dominant injury as it is defined, have regard to the range of the ISVs applicable to that injury and determine where in the range of ISVs provided for that injury it should fall, and determine whether the maximum ISV in that range (‘the maximum dominant ISV’) adequately reflects the adverse impact of all the injuries. If the maximum dominant ISV is not sufficient then the ISV may be higher but not more than 100 and only rarely more than 25% above the maximum dominant ISV selected.

Additionally, in assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case; Schedule 3 s 9. The examples provided of other matters are the injured person’s age, degree of insight, life expectancy, pain, suffering and loss of amenities of life. In assessing an ISV for multiple injuries, the range for, and other provisions of schedule 4 in relation to, an injury other than the dominant injury of the multiple injuries can be considered.

The extent of whole person impairment is an important consideration ‘but not the only consideration affecting the assessment of an ISV’:  Schedule 3 s 10. The dictionary defines ‘whole person impairment’ in relation to an injury as an estimate

…expressed as a percentage, of the impact of a permanent impairment caused by the injury on the injured person’s overall ability to perform activities of daily living other than employment. …”

21. [21]
    In this case, it is clear that the dominant injury is that to the plaintiff’s sternum. Schedule 4 of the Regulations relevantly deals with chest injuries. Item 38 of Schedule 4 deals with moderate chest injuries and prescribes a scale of 11 to 20. Examples of a moderate chest injury include:

“The injury will involve serious traumatic injury to the chest or organs in the chest cavity, causing moderate disability and on going medical problems.

Examples of factors affecting ISV assessment are said to include:

• Duration and intensity of pain and suffering;

• The degree of permanent impairment of lung or cardiac function, as evidence by objective test results;

• The need for a temporary tracheostomy for short term air-way management…”

22. [22]
    Item 39 of Schedule 4 deals with minor chest injury and provides for a scale of 0 to 10. Examples of a minor chest injury include:

“A relatively simply injury, for example, a single penetrating wound, causing some tissue damage but no significant long term effect on lung function… A rib or sternum fracture causing serious pain and disability for weeks, without internal organ damage and permanent disability...”

Item 39 also provides that an “ISV at or near the bottom of the range will be appropriate if there is a soft tissue injury, with full recovery within a couple of weeks.” 

23. [23]
    On behalf of the plaintiff, it was contended that the sternum injury was a moderate chest injury. On behalf of the defendants, it was asserted that it was a minor chest injury. The defendants’ assessment is, in my respectful view, primarily based on Dr Fraser’s assessment of the plaintiff. And, while I accept that the plaintiff was prone to exaggerate the extent of the injuries she suffered as a result of the accident and to understate her health problems prior to the accident (both of which are discussed below) I do not consider that her description of the impact of the sternum injury was exaggerated to the extent of disbelief.

24. [24]
    The medical evidence together with the evidence of the plaintiff, and her husband leads me to conclude that the sternum injury she suffered, while not leading to permanent disability, has caused the plaintiff material bodily disability from the date of the accident through to the present and it will continue to do so into the future albeit, most likely, at a decreasing level. In my opinion, the sternum injury could fairly be described as a serious traumatic injury to the chest which has caused moderate disability and ongoing medical problems. Accordingly, I consider the plaintiff’s sternum injury to be properly classified as a moderate chest injury.

25. [25]
    In this regard, I was made aware that in the plaintiff’s statement of loss and damage^[17], her claim for general damages was $15,200 based on the injury constituting a minor chest injury. However, it is relevant that this document was executed by the plaintiff on 30 September 2008. It is clear by reference to the medical evidence and the plaintiff’s own evidence that the sternum injury has proved to be more problematic than was envisaged at the time that document was prepared and executed.

26. [26]
    It was submitted on behalf of the plaintiff that an ISV at or about the middle of the prescribed range would be reasonable in all the circumstances (i.e. ISV 15) , but that it should be marked up by 25% to an ISV 18 having regard to the other injuries. Based on this approach, the plaintiff claims $22,800 for general damages.

27. [27]
    The plaintiff still suffers, as a consequence of the sternum injury, acute debilitating pain but, providing that her injury is not aggravated, it is not constant, but episodic in nature. In this context; however, I accept that activities including any form of heavy lifting and heavy gardening work and in particular lawn mowing, would exacerbate the plaintiff’s sternum injury and as a consequence she no longer carries out those activities.

28. [28]
    On balance, I consider that the plaintiff’s claim for an assessment of 15 is reasonable. However, I do not consider the other injuries suffered by the plaintiff to justify a 25% “uplift”.

29. [29]
    The plaintiff’s bruising, whilst extensive, appears to have healed relatively quickly. The same could be said for any knee and shoulder injuries. Also, it seems tolerably clear, particularly by reference to the surveillance footage, that the plaintiff has no significant residual limitation of movement concerning her cervical spine. It was not suggested, by way of example, that it prevented her from carrying out any domestic tasks including shopping and yard work and, as already observed, it has not limited her ability to ride to enjoy her past time of bike riding. On balance, whilst I consider the other injuries do justify an uplift, it should be a relatively modest one in all the circumstances. I consider an uplift of 12.5% to be appropriate. Accordingly, general damages are assessed in the amount of $20,400^[18]. There are no other matters that warrant a higher or lower assessment of general damages.^[19]

Past and future care

30. [30]
    Whilst it is agreed that the appropriate allowance on an hourly rate for past and future care was $30 per hour and that the plaintiff’s life expectancy was 18 years, there was a remarkable discrepancy in the parties’ assessment of the level of care required.

The defendants’ primary position was that the plaintiff did not establish an entitlement to damages for care. Their fallback position was that in respect of future care, a global of allowance of $5000 was appropriate and in respect of past care an allowance of $13,524.

31. [31]
    According to Mr Mellick, in support of his primary position, the plaintiff did not pass the threshold test prescribed in s 59 of the Act which relevantly provides:

“(1)Damages for gratuitous services provided to an injured person are not to be awarded unless—

1. (a)
   the services are necessary; and

2. (b)
   the need for the services arises solely out of the injury in relation to which damages are awarded; and

3. (c)
   the services are provided, or are to be provided—

1. (i)
   for at least 6 hours per week; and

2. (ii)
   for at least 6 months.

3. (2)
   Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened. …”

32. [32]
    In this context, I was referred to passages from the judgment of the Court of Appeal in Shaw v Menzies & Anor.^[20]In Shaw the Court said^[21]:

“The Civil Liability Act was introduced in 2003. The requirements for any award of damages for gratuitous services provided to an injured person thereafter are clear:

• the services must be necessary;
• the need must arise solely out of the injuries;
• the services were provided for at least six hours a week for at least six months after the injury.

Accordingly, a plaintiff who includes a claim for damages for gratuitous care must adduce sufficient evidence to meet each of those thresholds. It has been a long-standing practice that solicitors advise clients making a claim for damages for personal injury, particularly where the claim includes a component for gratuitous care, to keep a weekly diary recording tasks and time to perform them by family members. As this case has demonstrated, failure to have some system, because of the requirements of s 59, may mean that a deserving plaintiff may not cross those thresholds.”

33. [33]
    The plaintiff’s evidence that she did the vast majority of the domestic work and yard work for the household was not seriously challenged. I am satisfied that this is not a case where, as it was in Shaw^[22], the plaintiff and her husband shared equally a number of domestic duties. Further, there is no evidence that the services the plaintiff said she did about the household were in fact done by someone else.^[23]

34. [34]
    It is true that the plaintiff did not keep a diary and that is unfortunate. However, Shaw is far from authority for the proposition that in all cases a personal written record is required.

35. [35]
    In this context, I was also referred to the decision of Daubney J in Land v Dhaliwal.^[24]Unlike Land (and the cases referred to in the relevant discussion) this is not a case where there is no probative evidence on the issue of services. Both the plaintiff and her husband gave evidence and both sides relied on the expertise of occupational therapists.

36. [36]
    On the medical evidence (excluding that of Dr Fraser) and the evidence of Ms Aitken, I am satisfied that the requirements of s 59 of the act have been met. The claim for care is based on a need for necessary services arising solely out of the accident related injuries. Further, the plaintiff required the provision of those services well in excess of the proscribed 6 hours per week for at least 6 months.

37. [37]
    Based primarily on the reports of Ms Aitkin, the plaintiff claims $106,724.04 for past care and $96,084.38 for future care.

38. [38]
    The plaintiff was seen by Ms Aitkin on 4 December 2009 and 14 February 2013. Ms Aitkin is qualified both as an occupational therapist and as an ergonomist. It is clear from her report that she carried out a number of tests and made a number of physical observations concerning the plaintiff. However, it also seems tolerably clear that, to a large extent, her opinions were significantly influenced by the plaintiff’s self reporting of what she was able to do before and after the accident. During her evidence in chief, the plaintiff was asked to confirm that the matters she reported to Ms Aitkin were true and “basically accurate”.^[25]

39. [39]
    In her original report, Ms Aitkin assessed the cost of past gratuitous care by reference to four discrete periods:^[26]

Period 1: 18/06/2006 – 17/07/2006 (4.28 weeks)

Period 2: 18/07/2006 – 07/07/2008 (102.98 weeks)

Period 3: 08/07/2008 – 10/07/2008 (0.42 weeks)

Period 4: 11/07/2008 – 04/12/2009 (73.14 week)

40. [40]
    The hours of care were assessed by Ms Aitkin to be:^[27]

Period 1: 25.99 hrs/wk.

Period 2: 19.08 hrs/wk.

Period 3: 9 hrs/wk.

Period 4: 18.08 hrs/wk.

41. [41]
    On this basis, Ms Aitkin assessed the total cost of past care up to 27 January 2010 to be $71,621.02.^[28]Future care was initially estimated to be 6.83 hours per week.^[29]

42. [42]
    On 27 February 2013, Ms Aitkin prepared a supplementary report. After referring to Dr Van der Walt’s assessment of the plaintiff, including his opinion that she suffered a “significant injury to her sternum, anterior chest wall and left clavicle, and… soft tissue injuries to the cervical spine, and neuropathic pain, attracting a total of 8% whole person impairment”.^[30]Ms Aitkin then went on to “assume’ that the following conditions “have resolved”:

• Right carpal tunnel release

• Left carpal tunnel release

• Right wrist symptoms

• Right ankle symptoms

And that the following health conditions have continued to be symptomatic

• Neck strain

• Sternum/clavicle

• Right hip bursitis

• Lower back

As I understand it, Ms Aitkin then proceeded on the basis that the right hip bursitis and lower back symptoms were not associated with the accident. After discounting her original assessment to take account of those non-accident related injuries, Ms Aitkin reduced her assessments for past and future care by 1.29 hours per week.^[31]

43. [43]
    On balance, I consider that Ms Aitkin had still over-estimated the plaintiff’s need for past and future care as a consequence of this accident because her assessment proceeded on an erroneous assessment of the true non-accident related health of the plaintiff including Dr Van der Walt’s initial assessment of the plaintiff’s neck injury and diagnosis of “neuropathic pain”.

44. [44]
    As to the second of those matters it is largely self explanatory. Dr Van der Walt, after viewing the surveillance films, considered that there was nothing to suggest that the plaintiff was still experiencing neuropathic pain and that she “would have improved” since his initial diagnosis.^[32]And, in respect of the neck injury, it has been conceded by the plaintiff to have been relatively minor and “not particularly troublesome”.^[33]

45. [45]
    As to the first, as mentioned above, Ms Aitkin’s opinions were, to a significant extent in my view, reliant on the plaintiffs reporting of her physical condition and capacity before and after the accident. I do not consider the plaintiff to be an entirely reliable reporter. Rather, I found her at times to be prone to over state the impact of the accident in some areas and not wanting to accept a number of her pre-accident health issues. By way of examples, she became somewhat evasive and/or forgetful when confronted with her past medical history concerning her joint degeneration treatment and previous neck symptoms.^[34]

46. [46]
    The plaintiff’s carpal tunnel symptoms were described as “very severe” (but with good prospects of successful surgery) by Dr Muller, an orthopaedic surgeon.^[35]She complained of “persistent pain/swelling” of her right wrist and ongoing problems (since 2011) with her right ankle to Dr Klestov.^[36]Finally, in this context it is clear that the plaintiff had real difficulties with her right hip and “locking” of her left thumb.^[37]

47. [47]
    Notwithstanding these observations, which clearly affect the overall reliability of the plaintiff as a witness, I am satisfied that, in the main, she was a creditable witness albeit one who was overly house proud and reluctant to admit to or accept the physical limitations placed on her due to her age and pre-existing health issues.

48. [48]
    In this context, it is relevant that the plaintiff was examined by numerous doctors, including specialists, none of whom, with the exception of Dr Fraser, suspected that the plaintiff was feigning her chest injury. It was an injury that was clearly distressing to the plaintiff and of concern to her treating doctors. Also, when confronted with the surveillance footage the plaintiff made a number of concessions damaging to her case concerning her ability to turn her head and raise her arms above shoulder height. A deceitful witness would not have been likely to so readily make such frank concessions. Finally, on this topic, I consider it significant that despite the level of surveillance none showed the plaintiff carrying out any gardening or yard work. If she had done so it is very likely she would have been observed. The unchallenged evidence is that she did this work and enjoyed doing it. The most likely explanation as to why she was not observed carrying out these activities is that she is prevented from doing do because of her sternum injury.

49. [49]
    The plaintiff reported to Ms Aitkin that she was now capable of carrying out a number of lighter or less strenuous domestic activities but not those involving reaching overhead (e.g. when cooking and shopping) and that now her husband did all physical grocery shopping.^[38]Apart from the surveillance footage showing the plaintiff riding her bike without any apparent discomfort, it also showed her shopping without her husband and, on a few occasions, reaching for items overhead, again without any apparent discomfort. After viewing these films Dr Van der Walt agreed that having regard to her age the plaintiff seemed to be “pretty active” and revealed no overt demonstration of pain.^[39]These observations were broadly consistent with those of Dr Fraser^[40]and Mr Zietek^[41]after viewing the footage.

50. [50]
    In cross-examination, Ms Aitkin gave evidence that while she took into account the time estimates given by referrals, in providing her estimates to the courts she adopted a reasonable and realistic approach.^[42]While it was put to Ms Aitkin that her “care regime” was grossly exaggerated^[43]no alternate regime was put to her. Nor were the time estimates she assigned to the identified tasks seriously challenged. Instead Ms Aitkin’s cross-examination focused on her failure to properly address the plaintiff’s non-accidental related health problems and her true capacity to carry out domestic tasks. On balance, I have concluded that the times Ms Aitkin allocated to each task are reasonable. However, as already observed, her overall assessments have to be discounted for other reasons.

51. [51]
    According to Ms Aitkin, she initially considered that the plaintiff would require in the order of 0.08 hours for personal care, 4.75 hours for domestic assistance and 2 hours for gardening and mowing.^[44]The second and the third estimates were reduced to about 3.9 hours and 1.5 hours upon review.^[45]

52. [52]
    On the medical evidence supported by the surveillance footage and that of the plaintiff herself, I have reached the following conclusions. First, there is no need for any future personal care.^[46]Second, the plaintiff is capable of performing significantly more domestic work than allowed for by Ms Aitkin. Third, the plaintiff is still not capable of carrying out the majority of the gardening and lawn work that she once did and enjoyed.

53. [53]
    Taking these factors into account together with an allowance for the probable need for some level of assistance in the future, having regard to the plaintiff’s age and health, regardless of the accident, I consider it appropriate to discount Ms Aitkin’s allowance for future domestic assistance by 50% and that for gardening and mowing by 25% which I will round off to 3 hours per week. This allowance strikes an adequate balance in my view of the plaintiff’s ongoing improvement in respect of her accident related injuries and her age and non-accident related health issues.

54. [54]
    In reaching this conclusion, I am comforted to at least some extent by the evidence of Dr Van der Walt and Mr Zietek. Whilst it was probably not strictly within Dr Van der Walt’s area of expertise he considered that the plaintiff would be likely to require 1-2 hours of assistance.^[47]Mr Zietek stated in his report that the plaintiff might benefit from “in the order of 2-3 hours of assistance with the completion of domestic chores”.

55. [55]
    It was contended on behalf of the defendants that Mr Zietek resiled from his original position after he saw the surveillance footage.^[48]I do not accept that submission for a number of reasons. While it is true that Mr Zietek expressed reservations about the plaintiff’s presentation, on any objective reading of his report, those reservations would have been factored into his assessment of what she could do and what she would probably need assistance with. Also, no reasonable explanation was given as to why the ability of the plaintiff to ride her bike from time to time would mean that she no longer needed assistance with the tasks identified in paragraph 12(c) of his report. Finally, it was tolerably clear to me from his cross-examination that Mr Zietek really stood behind his original assessment.^[49]

56. [56]
    It is perhaps convenient here to deal with certain evidence concerning the plaintiff’s sternum injury and her current bike riding. There is no doubt that the plaintiff suffered a significant sternum injury as a consequence of the accident, just as there is no doubt that she is now riding her push bike on a fairly regular basis without any apparent pain or other difficulty. There was some conflicting evidence about whether or not riding the bike would exacerbate the sternum injury given by Ms Aitkin and Mr Zietek. I do not consider their evidence to be particularly persuasive as the evidence falls beyond their areas of expertise and seemed to be largely based on their own personal experiences as recreational bike riders. On the other hand, Dr Van der Walt was sufficiently qualified to express an opinion on the matter in my view. He considered that the surveillance footage was not inconsistent with the plaintiff’s complaints as bike riding did not place any particular pressure on the sternum.^[50]

57. [57]
    There was also an argument advanced on behalf of the defendants to the effect that, because at least into the foreseeable future, the plaintiff’s husband would be the primary care provider and he also benefitted from the assistance he provided (eating, wearing clean clothes and enjoying a neat and tidy household, et cetera), the allowance for past and future care should be discounted to “offset” those benefits to him.^[51]I do not accept the submission. This is not a case where the plaintiff or her lawyers have made an assessment of the level of care required.  The issue was addressed by experts in the relevant field. In this context, notwithstanding my discounting of Ms Aitkin’s assessments, I respectfully consider the following observation of the Court of Appeal in Shaw v Menzies & Anor^[52]to be pertinent:

“While it is true that it will be necessary to assess the needs of a plaintiff in the context of his own situation, nonetheless, in regarding the injured plaintiff as an isolated unit whose injuries generate a need for services to him, the approach in Van Gervan v Fenton, confirmed in CSR v Eddy, is by reference to the cost of providing those services generally in the market. It would not, therefore, appear consistent with that authority to argue that in a family context a shorter period of time would (or should) be devoted to a plaintiff’s needs when consideration is being given to group tasks than the market cost of servicing those needs. Sensibly that assessment must be done on the basis of satisfying those needs as a single unit. This must be so, even more compellingly, when considering future care. Families break down, illness in a partner might intervene, children’s needs change and so on. There was a tendency, evident on the appeal, of substituting the lawyers’ personal understanding (or, more accurately, lack of understanding) about domestic tasks, rather than to defer to an acknowledged expert in the area. There was no sound reason advanced to depart from the model proposed by Ms Stephenson.”  (footnotes deleted)

58. [58]
    Accordingly, my assessment of damages for future care is $52,032.00 (625 x 3 hours x $30.00 per hour x 0.925).

Past care

59. [59]
    As is the case with assessing future care requirements there is a degree of imprecision involved in these kinds of assessments.

60. [60]
    Taking into account her revision of her initial report Ms Aitkin’s assessment of past care would be: Period 1, 24.7 hrs/week; Period 2, 17.79 hrs/week; Period 3, 16.71hrs/week; Period 4, 16.79 hrs/week.^[53]The purported level of accuracy of two decimal places brings an artificial sense of precision to these types of assessments in my view. That said however, save for her failure to make sufficient allowance for the plaintiff’s non-accident related health issues, I found Ms Aitkin’s assessment to be a more detailed and objective assessment than that of Mr Zietek.

61. [61]
    The medical evidence, as I understand it, is to the effect that in the early stages following the accident, in the order of three months, the plaintiff would have been extremely limited in what she could do. That evidence, together with the surveillance footage also makes it tolerably clear that since then, the plaintiff’s accident related injuries have improved significantly, notwithstanding that she still suffers acute chest pain from time to time. Accordingly, I consider the evidence requires a significant reduction in the level of care required after the first 16 months following the accident.

62. [62]
    On balance, I consider that an appropriate, global estimate for past care, including the 6 month deductions conceded by Mr Morton, to be:

• 1 month at 24.7 hours per week = $2,766.00;

• 3 months at 15 hours per week = $5,040.00;

• 12 months at 9 hours per week = $13,104.00;

• The balance at 5 hours per week = $38,080.00;

• Total = $58,990.00.

Aids and assessment

63. [63]
    In her second report, Ms Aitkin identified a number of items which would, in her opinion, assist the plaintiff in her day to day life.^[54]These items ranged from elastic shoelaces to a stepladder with a handrail. The plaintiff claims a number of these items, in part, on the basis that if they were not used the claim for future care would be increased by nearly 350%.^[55]

64. [64]
    The evidence does not support this claim. I agree with Mr Mellick, there is no evidence that the plaintiff had considered let alone purchased many (if any) of the suggested items. I also consider the allowance for future care adequately addresses the plaintiff’s future needs.

Physiotherapy

65. [65]
    I accept that soon after the accident the plaintiff would have been likely to benefit from physiotherapy. However, I am not satisfied that the only residual injury directly related to the accident, the sternum injury, would materially benefit from physiotherapy. Accordingly, I will allow only $283.00 for this item including interest.

Pharmaceuticals

66. [66]
    Past records reveal an expenditure rate for prescription medication of about $1.08 per week. A claim for future medication is made based on 2.5 packets of Panadol per week. Given the plaintiff’s other health issues it is more likely than not that, even if the accident had not occurred, she would resort to medication such as Panadol on a fairly regular basis.

67. [67]
    On balance, I consider the claim for past and future pharmaceuticals ($2,750 and $6,250) should be discounted significantly. Whilst I recognise the plaintiff’s expenditure of those items would have been materially greater more proximate to the accident, I propose to adopt a global approach and discount these items by 50%. This results in an amount of $4,500.00, which I mean to include any interest thereon.

Health Insurance, Past and Future Travel, et cetera

68. [68]
    The plaintiff also claims:

• HIC refund $8,327.45;

• Gap payment $635.76 plus interest thereon of $73.04;

• Past travel $1,860.00 plus interest thereon of $213.70; and

• Future travel $2,500.00.

69. [69]
    The HIC refund claim is based on the total of the medical expenses itemised in exhibit 14. Save where expressly challenged, Mr Mellick admitted the entries contained therein.^[56]As I understand Mr Mellick’s submissions some 19 entries between 24 July 2007 and 7 February 2013 totalling $1,959.80 and 923 kilometres were challenged. Mr Morton was prepared to concede only one entry of $92.75.^[57]

70. [70]
    The entries challenged covered medical attendances concerned with a wide range of medical issues and complaints. The most significant controversial entries were concerned with a bone scan^[58]and a medical review by Dr Klestov.^[59]

71. [71]
    As already addressed, the exact nature of the plaintiff’s sternum injury symptoms have perplexed a number of specialists whose opinions and/or concerns have ranged from a fracture to cancer.

72. [72]
    Given the uncertainties associated with the exact nature of that injury and its result and symptoms, I consider the bone scan claims dated 16 and 18 August 2010 to be justified as is the case of the claim concerning Dr Klestov dated 29 March 2012, 19 April 2012, and 26 July 2012. I have also reached the same conclusion concerning the x-rays taken in respect of the chest and thoracic spine.

73. [73]
    In respect of the other items challenged, I accept that the link between the items claimed and the accident related injuries has not been sufficiently established.

74. [74]
    On my calculation, the plaintiff’s claim for HIC refund should be reduced by $592.55 to $7,734.90. The “gap” difference is reduced by only $62.35 to $573.41.^[60]

75. [75]
    In respect of travel, I consider only a very minor reduction is warranted in respect of past travel (say 10%). Given the continuing uncertainty surrounding the plaintiff’s sternum injury, I consider the allowance of future travel to be reasonable.

76. [76]
    Accordingly, in respect of these items I find as follows:

• HIC refund - $7,734.90;

• Gap - $640.00 including interest;

• Past travel - $1,866.00 including interest; and

• Future travel - $2,500.00.

  Summary of Damages

• General damages:$20,400.00;

• Future care:$52,032.00;

• Past Care:$56,224.00;

• Physiotherapy:$283.00;

• Pharmaceuticals:$4,500.00;

• HIC refund:$7,734.90;

• Gap:$640.00;

• Past Travel:$1,866.00;

• Future Travel:$2,500.00.

77. [77]
    Accordingly, damages are assessed in the sum of $148,946.00.