Sabidussi v Young[2017] QDC 146

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 1 December 2013, the plaintiff was a front seat passenger in a vehicle driven by her friend, Lynette Raines. They were travelling north along David Low Way at Sunrise Beach. The first defendant was driving in a southerly direction along David Low Way. His vehicle suddenly veered to the right and crossed over the raised median strip and into the path of the vehicle driven by Ms Raines. Ms Raines was taken by helicopter to the Royal Brisbane and Women’s Hospital. She later died as a result of her injuries. The plaintiff was trapped in the vehicle. The Queensland Fire and Rescue Service cut her out of the car and she was taken by ambulance to the Nambour General Hospital.

2. [2]
   By this proceeding the plaintiff claims damages for the injuries she suffered as a result. Liability is admitted. With the exception of special damages, all aspects of the plaintiff’s claim are in issue.

The issues

3. [3]
   The parties are agreed that the plaintiff suffered a major depressive disorder, a soft tissue injury to the lumbar spine and an injury to the right knee.^[1]

4. [4]
   The issues to be determined include the nature and extent of those injuries and whether the plaintiff also sustained an injury to her left knee.

The plaintiff’s background

5. [5]
   The plaintiff was born in 1977. She was 36 years of age at the time of the accident. She is 39 years of age at the present time. She resides with her partner Mark Dix and their two daughters at Coolum Beach. The eldest child was born on 29 March 2012. The younger child was born on 21 July 2013.

6. [6]
   The plaintiff completed year 11 at the Bowral High School in New South Wales. She left school in 1994.

7. [7]
   In 1995, having finished her school education, the plaintiff worked in a coffee shop for about 6 months and then in a clerical position at an insurance company.

8. [8]
   In 1997, the plaintiff travelled to England, where she worked at licenced premises. In September 1997, she obtained employment as a licenced house manager. She also worked in kitchen management.

9. [9]
   The plaintiff returned to Australia in the year 2000. In December 2001, she commenced work as a bar duty manager in Bowral. She remained in that position until January 2003.

10. [10]
    In 2003, the plaintiff moved to Coolum Beach on the Sunshine Coast. In March 2003, she set up a restaurant at Woombye in the hinterland with her then partner. They operated the restaurant from March 2003 to July 2006, when the business was sold.

11. [11]
    The plaintiff then moved to the Gold Coast. In October 2006, she obtained employment as a sales assistant and stock controller at a retail company. In 2009, she returned to Coolum. She remained working for the same retail group, having obtained a transfer to its Maroochydore store. The employer faced financial difficulties, which led to the plaintiff’s position being made redundant in July 2011. She then worked as a kitchenhand at a golf club until Christmas 2011. She did not return to work after that. As I have mentioned, the eldest child was born on 29 March 2012.

Medical treatment

12. [12]
    The plaintiff was taken by ambulance to the Nambour General Hospital. The report from the Queensland Ambulance Service notes that the plaintiff complained of mild cervical and lower lumbar tenderness.^[2]

13. [13]
    The clinical notes of the hospital indicate that the plaintiff complained of right lateral neck pain and right lateral lumbar pain. The hospital notes also state that the plaintiff suffered a small abrasion over the right cheek to the nose, a mark over the sternum and a right lateral knee abrasion.^[3]The plaintiff was discharged from hospital later the same day.  The hospital reports states that “examination was unremarkable other than reported neck pain and minor tenderness to palpation.”^[4]

14. [14]
    The plaintiff consulted her general practitioner, Dr Maria Avelino, on 2 December 2013. Dr Avelino’s notes state that the plaintiff survived with minor injuries only, with bruising over her right lateral arm, left side of neck and lower abdomen. Dr Avelino advised the plaintiff of the need for counselling. She prescribed temazepam and diazepam. Dr Avelino also completed a GP mental health care assessment and plan and referred the plaintiff to Madonna Hirning, psychologist.^[5]

15. [15]
    The plaintiff commenced seeing Ms Madonna Hirning, psychologist, on 3 December 2013. The clinical notes of a consultation on 20 June 2014 note that the plaintiff’s presentation was tearful. The notes state that the plaintiff was avoiding driving, experiencing flashbacks several times per week, was hypervigilant, tearful and easily upset.^[6]

16. [16]
    At the next consultation on 16 July 2014, the plaintiff indicated that she had tried to study hairdressing but the pressure was too great. Ms Hirning noted that the plaintiff’s mood was “up and down – irritable at times.”^[7]

17. [17]
    In a consultation on 18 August 2014, Ms Hirning noted that the plaintiff’s presentation was “bright, happy, mood good, stable.” Nevertheless, the plaintiff complained of some anxiety and that she thinks about her deceased friend which makes her sad and upset.^[8]

18. [18]
    During a consultation on 15 June 2015, Ms Hirning completed a “PTSD checklist” which indicated that the plaintiff continued to be troubled by disturbing memories, thoughts or images. The checklist also indicated that the plaintiff was troubled by irritability and angry outbursts.^[9]

19. [19]
    During a consultation on 11 August 2015, the plaintiff reported that her mood was a bit better, but nevertheless she was very up and down.^[10]

20. [20]
    During a consultation with Ms Hirning on 19 October 2015, the plaintiff presented as upset and tearful. She reported a recent low mood, increased irritability and sensitivity.^[11]

21. [21]
    The plaintiff’s last consultation with Ms Hirning appears to have been on 2 November 2015.^[12]On 16 March 2016, the plaintiff’s general practitioner, Dr Avelino, completed another GP mental health care plan and referred her to another psychologist, Mr Ambrose McKinnery.^[13]The plaintiff said that she consulted Mr McKinnery.^[14]

22. [22]
    In recent times, the plaintiff said that she has been seeing a psychiatrist, Dr Fionnuala Dunne, at the Buderim Private Hospital.^[15]The plaintiff said that she had last seen Dr Dunne in January 2017.  She said that although she had cancelled an appointment, she intended to continue to consult Dr Dunne.^[16]

The plaintiff’s physical injuries

Injury to the right knee

23. [23]
    The plaintiff claims that she suffered an injury to the right knee, including aggravation of pre-existing chondromalacia of the right patella.^[17]The defendants contend that the plaintiff did not suffer such an injury as a result of the accident.

24. [24]
    The plaintiff’s evidence is that her knees were crushed in the accident.^[18]She said that both knees were damaged and they were bruised.^[19]The progress notes from the Nambour General Hospital state that the plaintiff suffered a right lateral knee abrasion.^[20]A diagram depicting the injury has a note that it was a superficial abrasion.^[21]When asked in cross-examination whether the injury to her right knee was “a superficial abrasion, like a graze”, the plaintiff said “yeah. They were – both of them were bruised.”^[22]She went on to say that the dashboard crushed up on her knees, but her right knee healed faster than the left.^[23]

25. [25]
    The plaintiff presented as an honest and genuine witness. She became emotional at times. The real question is whether her evidence concerning the injury to the right knee is reliable.

26. [26]
    In Guirguis Pty Ltd & Anor v Michel’s Patisserie System Pty Ltd & Ors,^[24] Fraser JA, in discussing the assessment of the credibility of witnesses, said:

“[50] Most experienced judges subscribe to the view expressed by Goff LJ in Armagas Ltd v Mundogas SA (The “Ocean Frost”) that it is essential ‘when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities’. Goff LJ was referring to cases of fraud, but the statement is of general application. As Goff LJ observed in the same passage:

‘It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.’

[51] This is not a recent revelation. About 60 years earlier, for example, Atkin LJ, after observing that ‘an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour’, confirmed that trial judges were encouraged ‘to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.’”

27. [27]
    In Withyman v State of New South Wales,^[25] Allsop P referred to the discussion of the credibility of witnesses by Lord Pearce in Onassis and Calogeropoulos v Vergottis:^[26]

“‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

28. [28]
    As I have already mentioned, the Nambour General Hospital notes describe the injury to the right knee as a superficial abrasion. The plaintiff attended the Peregian Family Medical Centre on 2, 3 and 19 December 2013. The notes of these consultations do not show that the plaintiff complained of an injury to either knee.^[27]

29. [29]
    The plaintiff was examined by Dr Prue FitzPatrick on behalf of the defendants on 10 July 2015. Dr FitzPatrick prepared a report dated 17 July 2015^[28] and a supplementary report dated 5 May 2017.^[29]Dr FitzPatrick said that the plaintiff did not report any symptoms in her right knee at the time of the examination.  Further, the plaintiff completed a pain diagram where she marked pain over the left knee but made no markings over the right knee.^[30]

30. [30]
    The plaintiff called Dr John Pentis, orthopaedic surgeon. Dr Pentis examined the plaintiff on 24 November 2014 and he provided a report dated 2 December 2014.^[31]The plaintiff complained of pain in her right knee region.^[32]She made no major complaints about problems with her left knee.^[33]In relation to the plaintiff’s right knee, Dr Pentis expressed the opinion that she had aggravated a pre-existing chondromalacia of the patella.^[34]He explained that chondromalacia is a quite common condition, particularly in females.^[35]Dr Pentis agreed that he had not separated out a level of impairment in relation to the plaintiff’s pre-existing condition and the condition of the right knee that he said was caused by the accident.^[36]

31. [31]
    If I was satisfied that the plaintiff suffered an aggravation of a pre-existing injury to her right knee, the assessment of that injury would be problematic, having regard to the fact that Dr Pentis did not separate out the level of impairment caused by the injury.^[37]

32. [32]
    Although the plaintiff described the injury to her right knee as she perceived it to be, I am not satisfied that her evidence in that regard is reliable. The medical records to which I have referred are sufficient to indicate that the plaintiff suffered no more than a superficial abrasion to the right knee. The plaintiff has failed to establish that she sustained an injury to the right knee or an aggravation of a pre-existing injury to her right knee as a result of the accident.

The left knee

33. [33]
    Dr FitzPatrick’s examination revealed the following:

“With regard to the left knee, there was physiological alignment.  Ms Sabidussi had a normal gait.  She was able to heel walk and toe walk.  There was patellofemoral crepitus in both knees, probably more marked on the right than the left.  There was no J-tracking.  There was no effusion in the left knee.  The range of movement was from full extension through to 150 degrees of flexion.  There was tenderness over the posteromedial joint line, not over the patellofemoral joint.  McMurray’s test was negative.  Clarke’s test was negative.  Ligaments were intact.”^[38]

34. [34]
    Dr FitzPatrick diagnosed patellofemoral pain in the left knee. Using Table 17-31 of the AMA Guides to the Evaluation of Permanent Impairment, 5^th edition, she assessed this injury as a 2 per cent whole person impairment.^[39]Dr FitzPatrick said that no impairment was assessable on the basis of range of movement using Table 17-10, nor was impairment assessable on the basis of Table 17-33.^[40]

35. [35]
    Dr Pentis made no assessment of the plaintiff’s left knee. The plaintiff had made no major complaints to Dr Pentis about any problems with her left knee.^[41]

36. [36]
    In the circumstances, I accept Dr FitzPatrick’s assessment of the plaintiff’s injury to her left knee.

Soft tissue injury to the lumbar spine

37. [37]
    Dr FitzPatrick and Dr Pentis agree that the plaintiff suffered a musculoligamentous injury to her lumbar spine.

38. [38]
    Dr FitzPatrick conducted detailed testing as follows:

“With regard to the lower back, pain was localised to the left iliolumbar region.  Cough impulse was negative.  Ms Sabidussi was able to flex such that her fingertips were within 3cm of her toes, to 70 degrees with the inclinometer.  Extension was to 10 degrees.  Lateral flexion was to 45 degrees bilaterally.  Pseudorotation to the left slightly aggravated the lower back pain.  Ms Sabidussi had a normal gait.  She was able to heel walk and toe walk.  Reflexes were brisk and equal in the knee and ankle jerks.  Sensation was intact in the lower limbs.  Straight leg raising was to 70 degrees bilaterally, with a negative sciatic stretch.  There was no wasting of the lower limbs.”^[42]

39. [39]
    Dr FitzPatrick concluded that investigations of the lumbar spine are unremarkable. She stated that the injury is musculoligamentous in nature. She said that there was a well-preserved range of movement in the lumbar spine on examination and no evidence of neurological deficit in the lower limbs.^[43]

40. [40]
    Dr FitzPatrick concluded that the lumbar spine injury fell within DRE Category I, with a 0 per cent permanent impairment rating.^[44]

41. [41]
    Dr Pentis said that on examination of the plaintiff’s lower back, there was tenderness over the iliac crest laterally on the left hand side, slight loss of flexion, extension was decreased and rotation was stiffish.^[45]He also found lateral flexion was equivalent on both sides, straight leg raising of 90 degrees on the right, 90 degrees on the left, jerks were present at the knees and the ankles, motor and sensory function was normal and no gross wasting.^[46]

42. [42]
    Dr Pentis provided no specific measurements to justify his findings. He concluded that the plaintiff sustained an aggravation of a pre-existing injury.^[47] He assessed the plaintiff’s impairment using the AMA Guides to the Evaluation of Permanent Impairment, 5^th edition, Table 15.3 as a 5 per cent lumbar whole person impairment, due to the restricted guarded range of movements, signs and symptoms.^[48]However, he agreed that he had not noted any significant muscle spasms or guarding.^[49]

43. [43]
    In relation to the issue of the aggravation of an earlier injury, Dr Pentis explained that the plaintiff’s only previous back problem occurred three months after giving birth. He assumed the pain arose from the pregnancy and its effects rather than being a long term problem.^[50]

44. [44]
    Dr FitzPatrick seems to have conducted a very detailed examination of the plaintiff and provided specific measurements to support her conclusions. Dr FitzPatrick pointed out that Dr Pentis was not specific in the ranges that he obtained.^[51]In the circumstances, I accept Dr FitzPatrick’s evidence that the plaintiff suffered a lumbar spine injury that falls into DRE Category I with a 0 per cent permanent impairment rating.

Psychological injury

45. [45]
    The plaintiff called Dr Gary Larder, psychiatrist, and Dr Simone Shaw, clinical psychologist and neuropsychologist. Dr Larder examined the plaintiff on 5 March 2015 and prepared a report dated 16 April 2015.^[52]Dr Shaw examined the plaintiff on 8 May 2015 and prepared a report dated 28 May 2015.^[53]

46. [46]
    The defendant called Dr Alfred Chung, psychiatrist. He examined the plaintiff on 22 June 2015 and prepared a report dated 8 July 2015.^[54]

47. [47]
    Dr Larder diagnosed the plaintiff as having a major depression. He said that the plaintiff was not diagnosed with a head injury arising from the accident or with post-traumatic stress disorder.^[55]Dr Larder assigned the plaintiff a PIRS (Psychiatric Impairment Rating Scale) rating.  He explained that the PIRS focuses on six areas of function.  He said that the plaintiff’s self-care and personal hygiene are not impaired by psychiatric symptoms.  However, the plaintiff has mild restrictions in her social activity levels.  Further, her psychiatric disorder impairs travel function to a mild extent.  These are all aspects of daily living.  As to social functioning, Dr Larder stated that the plaintiff’s function in personal relationships is impaired and her social life is restricted.  She has a mild impairment of her concentration.  She is coping with a mild degree of difficulty in her role as a homemaker and mother. Dr Larder assigned a PIRS of 5 per cent based on the plaintiff’s condition at the time of his examination, but he considered that her condition had warranted a PIRS of 8 per cent.  The reduction of 3 per cent was based on the improvement in the plaintiff’s depressive symptoms resulting from treatment.  Dr Larder expressed the opinion that it was more probable than not that the plaintiff would respond to treatment and achieve remission of her depressive illness.^[56]

48. [48]
    Dr Chung expressed the opinion that the plaintiff did not present with symptoms consistent with a post-traumatic stress disorder or major depressive disorder.^[57]He noted that the plaintiff may previously have satisfied the diagnostic criteria for post-traumatic stress disorder.  He said that the plaintiff’s presentation on examination on 22 June 2015 was not consistent with Dr Larder’s diagnosis of a major depressive episode.  He considered that the plaintiff’s treatment with anti-depressant medication and ongoing psychotherapy had been effective to reduce her psychological and psychiatric symptoms.^[58]

49. [49]
    Dr Shaw stated that based on the plaintiff’s self-report, presentation and responses to psychometric questionnaires, she did not appear to currently meet the criteria for a Diagnostic and Statistical Manual of Mental Disorders, 5^th  edition (DSM-5) disorder, because her symptoms appeared to be subclinical in nature.  However, Dr Shaw said that it was likely that subsequent to the accident, the plaintiff met the criteria for a psychological disorder being either a major depressive disorder, acute stress disorder or post-traumatic stress disorder.  However, she added that there was insufficient evidence during her assessment to confirm that diagnosis.^[59]

50. [50]
    I am satisfied based on the plaintiff’s evidence, the clinical records of her treating psychologist and the opinions expressed by Dr Larder and Dr Shaw that the plaintiff has suffered a major depression. There is insufficient evidence to conclude that she also suffered a post-traumatic stress disorder.

Assessment of damages

51. [51]
    The assessment of damages is governed by Chapter 3 Civil Liability Act 2003 (“the Act”) and the Civil Liability Regulation 2014 (“the Regulation”). 

52. [52]
    Section 61 of the Act provides that if general damages are to be awarded, the court must assess an Injury Scale Value (“ISV”) from the range of ISVs for particular injuries set out in Schedule 4 of the Regulation. General damages includes damages for pain and suffering or loss of amenities of life.^[60] Section 62 requires that general damages be calculated by reference to the calculation provisions applicable to the particular period when the injury arose.

53. [53]
    The plaintiff suffered multiple injuries. It is therefore necessary in this case to determine the dominant injury.^[61]The assessment of the ISV for multiple injuries may be higher in the range of ISVs that would be assessed for the dominant injury alone.^[62]   If the level of adverse impact of multiple injuries is so severe that the maximum dominant ISV is inadequate, an assessment that is higher than the maximum dominant ISV may be made.^[63]However the ISV for the multiple injuries must not be more than 100 and should rarely be more than 25 per cent higher than the maximum dominant ISV.^[64]

54. [54]
    The extent of a whole person impairment is an important consideration but not the only consideration that is relevant to the assessment of an ISV.^[65]A court is required to give greater weight to a medical assessment of a whole person impairment percentage that is based on the criteria for assessment provided by AMA 5 than to a medical assessment that is not based on that criteria.^[66]

55. [55]
    Schedules 5 and 6 of the Regulation relate to the method of assessment of a psychiatric impairment. In assessing an ISV, a court must give greater weight to a PIRS report provided under Schedule 5 than to another medical assessment.^[67]

General damages

56. [56]
    The plaintiff’s dominant injury is the psychological injury. I have accepted Dr Larder’s opinion of the extent of the plaintiff’s major depression. He assessed a PIRS rating of 5 per cent. However, he explained that there was an allowance in the PIRS system for the effects of treatment. In circumstances where medication is keeping a person well, the assessor can add 1 to 3 per cent to the final impairment score.^[68]Dr Larder assessed the effect of psychiatric treatment as being 3 per cent, which resulted in an overall PIRS of 8 per cent.

57. [57]
    Based on a PIRS rating of 8 per cent, the plaintiff’s psychological injury should be assessed under item 12, Schedule 4 of the Regulation which relates to moderate mental disorders. The example of such an injury in item 12 is a mental disorder with a PIRS rating between 4 per cent and 10 per cent. The ISV range for a moderate mental disorder in Item 12 is 2 to 10. Having regard to Dr Larder’s PIRS rating of 8 per cent, which is at the upper end of the range of 4 to 10 per cent in the example in item 12, I would assess an ISV of 8.

58. [58]
    The plaintiff also sustained injuries to her lumbar spine and left knee. Section 3 of Schedule 3 of the Regulation permits an assessment higher within the range of ISVs for the dominant injury. The ISV in item 12, Schedule 4, can be up to 10. An ISV of 10 is sufficient to reflect the level of adverse impact of the plaintiff’s multiple injuries. It is therefore not appropriate to make an assessment that is higher than the maximum dominant ISV.

59. [59]
    Having regard to the plaintiff’s multiple injuries, I assess an ISV of 10. Applying Schedule 7, Table 5, item 2, the award for general damages is $14,850. Interest cannot be awarded on general damages.^[69]

Special damages

60. [60]
    The amount for special damages has been agreed at $8,855.84. However, this amount includes rehabilitation expenses of $3,685.94 paid by the second defendant. This amount must be deducted. There is also a Medicare refund of $3,370.10 to be paid by the plaintiff.^[70]Interest on special damages has been agreed at $29.70.^[71]

Past economic loss

61. [61]
    The plaintiff said that she planned to return to work the year following the birth of her second child.^[72]The second child was born on 21 July 2013.^[73]The plaintiff’s Further Amended Statement of Loss and Damage claims a loss of $335 per week.  The plaintiff submitted that at the rate of $335 per week for 170 weeks being a period from early 2014 until the time of trial results in a loss of $56,950.^[74]Alternatively, the plaintiff submitted that if the conclusion is reached that she would not have resumed employment until a time later than early 2014, then past economic loss should be assessed by reference to that date.

62. [62]
    The defendants submitted that the plaintiff has not established that any impairment that she may have has resulted in monetary loss because irrespective of the accident, her intention was to remain at home caring for the children and not to return to paid employment.^[75]Alternatively, the defendants submitted if the conclusion was reached that the plaintiff did intend to return to work at some point after the accident and before the trial, then a global award of $5,000 would be appropriate.^[76]

63. [63]
    The plaintiff must establish not only that she has suffered a loss of earning capacity, but also that the loss of earning capacity is or may be productive of financial loss.^[77]

64. [64]
    Section 55 of the Act provides:

55  When earnings can not be precisely calculated

1. (1)
   This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

2. (2)
   The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

3. (3)
   If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.

4. (4)
   The limitation mentioned in section 54(2) applies to an award of damages under this section.

65. [65]
    A difficulty in accepting the contentions made by the defendants is that the plaintiff had shown a clear intention to return to work. She gave evidence, which I accept, that she was keen to get back into work in the year following the birth of her second child, as she had always been a hard worker.^[78]She said that she enrolled in a hairdressing course in July or August 2014.  She was not able to complete the course.  She said that she got 6 months into the course and had trouble concentrating and she was unable to complete her first practical examination due to her pre-existing carpal tunnel syndrome.^[79]

66. [66]
    The plaintiff had experience in the retail sector, but she said she was fearful that she would not be able to deal with customer complaints.^[80]Another indication that the plaintiff was intending to return to paid employment is that she did actually apply for a position at Woolworths.^[81]

67. [67]
    The psychologist, Madonna Hirning, expressed the opinion that:

“Ms Sabidussi’s condition will definitely present challenges in functioning effectively in a workplace.  I believe that in her current condition she would function well only on very light hours and in a very supportive and understanding environment.  Her hypervigilance, irritability and labile moods would mean that her coping capacity will vary greatly and be easily triggered by difficult clients or negative interactions with co-workers.  She would have trouble concentrating for long periods of time and would be easily tired.  If her symptoms were triggered or exacerbated she would most likely have trouble maintaining her productivity.  I do believe that soon it would be helpful to Ms Sabidussi’s condition for (her) to commence work, but only under the conditions specified above.  That is, small hours with a gradual increase over time in a small and nurturing environment and in a job where there is not high pressure for speed or high level of output and where a lot of support is provided.”^[82]

68. [68]
    I accept that had it not been for the injuries the plaintiff sustained in the accident, she would have returned to part-time employment sometime early in 2014. The plaintiff submitted that she would have earned approximately $635 net per week, which is approximately half of the average weekly earnings in Queensland for the relevant periods in accordance with Table 13 of the Australian Bureau of Statistics Catalogue. Alternatively, it is submitted that a figure of about $500 net per week could be adopted, which is approximately what the plaintiff earned in the 2011 financial year.

69. [69]
    It an agreed fact that the plaintiff’s earnings from employment since the 2009 financial year are:^[83]

70. [70]
    Although it is difficult to be precise as to exactly when the plaintiff would have returned to paid employment, I consider that allowing $335 per week for approximately 170 weeks is reasonable. In the circumstances, I do not consider that it is necessary to make any additional allowance for the period between the date of trial and the date of judgment. The period of 170 weeks is sufficient to compensate the plaintiff for past economic loss. This results in an award of $56,950 for past economic loss.

71. [71]
    Interest on past economic loss calculated at the appropriate rate pursuant to s 60(2) and (3) of the Act amounts to $1,174.60.^[84]

Past loss of superannuation

72. [72]
    The plaintiff claims past loss of superannuation at the rate of 9.5 per cent.^[85]An amount for past superannuation will be awarded at the rate of 9.5 per cent, which is $5,410.25.  Interest on that amount is $111.60. 

Future economic loss

73. [73]
    The plaintiff claims a global amount of $200,000 excluding superannuation.^[86]A further claim is made for future loss of superannuation of $19,000.^[87]

74. [74]
    The defendants submitted that there should be no award for future economic loss.^[88]Alternatively, it was submitted that a global award of up to $40,000 was appropriate with a further allowance for lost superannuation of $3,600.^[89]

75. [75]
    The plaintiff continues to experience pain and discomfort in her left knee and lower back.^[90]Since the accident she has become socially withdrawn, anxious and has difficulty concentrating.^[91]

76. [76]
    Dr Pentis expressed the view that the plaintiff’s injuries would affect her ability to return to heavy work, especially where lifting, squatting, or negotiating uneven ground was involved.^[92]

77. [77]
    Dr FitzPatrick considered that the plaintiff could undertake any work for which she is suitably qualified.^[93]

78. [78]
    Dr Larder said that the plaintiff’s overall function had been impaired by a psychiatric disorder to a mild extent.^[94]

79. [79]
    Dr Shaw said that from a psychological perspective, the plaintiff’s ability to perform the duties and responsibilities of a stay at home mother were not likely to be impaired in the future.^[95]However, Dr Shaw expressly stated that she was not qualified to provide an estimate of the plaintiff’s loss of earning capacity.^[96]

80. [80]
    Dr Chung said that the plaintiff was not incapacitated to engage in employment or study due to a psychiatric disorder.^[97]

81. [81]
    The defendants called Wayne Johanson, the manager of Job Placement Services Pty Ltd. He provided a report dated 8 February 2017.^[98]Mr Johanson considered that the plaintiff had gained skills and experience in the retail sector that were keenly sought after by employers on the Sunshine Coast.  However, he said that the labour market was dominated by the need for junior employees in the retail sector because of the lower rates of remuneration for workers under the age of 21.  He said that certain employers in the retail sector require and prefer mature workers due to their skills, experience and qualifications.^[99]He also said that there were not many employers that were sympathetic to those with physical or psychological impairments.^[100]

82. [82]
    Mr Johanson said that if the plaintiff disclosed to a prospective employer that she was experiencing psychological and physical problems, she would not be as “competitively employable” as a person without such impairments.^[101]However, he pointed out that larger organisations have policies requiring the employment of people with injuries, disabilities and impairments.^[102]

83. [83]
    The plaintiff’s loss of earning capacity cannot be precisely calculated.^[103]Nevertheless, I am satisfied that she will suffer financial loss having regard to her age, work history and the nature of her physical and psychological limitations.^[104]In those circumstances, the assumptions on which any award is based and the methodology used to arrive at it must be stated.^[105]

84. [84]
    The following factors are relevant to the assessment of a global amount for future economic loss:

1. (a)
   the plaintiff is presently 39 years of age.  She will reach the normal retirement age of 65 in a little over 25 years;

2. (b)
   the plaintiff continues to experience pain and discomfort in her left knee and lumbar spine;

3. (c)
   the plaintiff continues to experience psychological symptoms such as anxiety, diminished concentration and social withdrawal;

4. (d)
   the plaintiff’s current psychological symptoms will make it difficult for her to find and maintain employment in the retail sector;

5. (e)
   the plaintiff is likely to respond to treatment and achieve remission of her depressive illness;^[106]

6. (f)
   at the present time, the plaintiff is at a disadvantage on the open labour market because of her psychological and physical impairments;

7. (g)
   the plaintiff’s psychological condition will improve considerably with the benefit of counselling and she should be in a position to resume employment in the foreseeable future;

8. (h)
   the plaintiff’s minor physical injuries will not prevent her from returning to employment.  

85. [85]
    The plaintiff’s pre-accident income from employment lead me to conclude that future economic loss should be based on a loss of $500 per week. I would allow a period of three years, although I consider that there is a reasonable possibility that the plaintiff may be able to return to work earlier. Adopting the 5% multiplier for three years (146) amounts to $73,000. I will round that amount up to $75,000.

86. [86]
    Loss of superannuation contributions should also be awarded. At the rate of 9.5 per cent, this results in an award of $7,125.

Gratuitous care

87. [87]
    The plaintiff claims $18,720 based on assistance for 6 hours per week for 2 years at the rate of $30 per hour.^[107]

88. [88]
    An award for gratuitous services is governed by s 59 of the Act which provides:

59 Damages for gratuitous services provided to an injured person

1. (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.

2. (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.

3. (3)
   In assessing damages for gratuitous services, a court must take into account—

1. (a)
   any offsetting benefit the service provider obtains through providing the services; and

2. (b)
   periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.

89. [89]
    In order to meet the threshold requirement in s 59(1)(c), the plaintiff must establish that she needed care and assistance for at least 6 hours per week, for at least 6 months. Mr Canceri, for the plaintiff, concedes that the evidence on this aspect was imprecise.^[108]

90. [90]
    The plaintiff said that a friend, Helen Murdoch, assisted her with more difficult chores including cleaning the bathroom. When asked how often Ms Murdoch assisted with cleaning the bathroom, the plaintiff said that it was probably once a month, “maybe… a little bit more these days.”^[109]The plaintiff also said that her partner, Mark Dix, assisted with cooking and vacuuming.^[110]The plaintiff also said that Mr Dix assisted her getting changed after the accident.^[111]

91. [91]
    Mr Dix said that prior to the accident, he mowed the lawns and undertook other outdoor tasks.^[112]However, he said that after the accident he assisted with clothes washing, vacuuming, washing the children and cooking.^[113]

92. [92]
    Dr Larder said that the plaintiff required “domestic assistance or handyman assistance in the past from her partner and from friends for up to 10 hours per week [maximum in the first few weeks after the incident].”^[114]

93. [93]
    The plaintiff is required to establish the threshold requirements in s 59(1) of the Act.^[115]As the plaintiff has failed to establish the need for gratuitous services for at least 6 hours per week and for at least 6 months, no award can be made.

Future commercial care

94. [94]
    The plaintiff claims a global amount of $50,000 for future commercial assistance. Mr Canceri, for the plaintiff, pointed out that the threshold requirements in s 59(1) of the Act in relation to gratuitous care do not apply to a claim for damages for future commercial assistance.

95. [95]
    The plaintiff has not established a need for future commercial care. Dr FitzPatrick gave evidence, which I accept, that the plaintiff does not require paid or gratuitous assistance with domestic chores or personal tasks in the future.^[116]Dr Pentis did not suggest that the plaintiff required ongoing care as a result of her physical injuries.

96. [96]
    At the time that Dr Larder wrote his report on 16 April 2015, he considered that the plaintiff may have required some domestic assistance in the near future. However, he added that it was improbable that the plaintiff would require domestic assistance far into the future.^[117]

97. [97]
    Dr Shaw considered that any need for domestic assistance would predominantly be due to the plaintiff’s physical injuries rather than her psychological symptoms.^[118]

98. [98]
    Dr Chung said that the plaintiff did not require paid or gratuitous assistance with domestic chores or personal tasks in the future.^[119]

99. [99]
    The plaintiff has not established any need for future commercial care.

Future expenses

100. [100]
     The plaintiff claims the amount of $20,000 for future expenses.^[120]The defendants submitted that a global allowance of up to $7,000 was appropriate.^[121]

101. [101]
     Dr Larder, Dr Shaw and Ms Hirning all considered that the plaintiff would benefit from continued psychological counselling.

102. [102]
     Dr Larder recommended supportive psychotherapy which included engagement in a treatment plan, organic screening and psychoeducation. He recommended 15 to 20 sessions of outpatient care at $350 per consultation for at least 12 months. He said that it was not possible to determine the exact nature and extent of the treatment the plaintiff needed, as that depended on her progress in treatment over the next 12 to 18 months. He said that medication may cost $37.70 per item for up to 12 months. Accordingly, the psychotherapy sessions would cost between $5,250 and $7,000. Medication expenses would be in addition to that. Dr Shaw recommended monthly treatment sessions for a period of 12 months.^[122]The total cost for 12 months would be $2,820.

103. [103]
     Ms Hirning considered that the plaintiff should have access to psychiatric intervention in the form of psychological therapy when required and medication as assessed by her treating doctor. She said that the plaintiff should have at least one session of psychological therapy per fortnight if required, which would cost $336 per month. She said that once the plaintiff’s symptoms began to resolve, access to 12 sessions per year at a cost of $2,016 would be adequate.

104. [104]
     In the circumstances, I consider that the plaintiff’s claim for a global allowance of $20,000 for psychological care and pharmaceutical expenses is appropriate.

Summary

105. [105]
     In summary, I assess the plaintiff’s damages as follows:

Orders

106. [106]
     There will be judgment for the plaintiff against the second defendant for $185,821.05.

107. [107]
     I will hear submissions from the parties as to costs.