Hughes v Grogan[2007] QSC 46

SUPREME COURT OF QUEENSLAND

LYONS J: 

Facts

1. The plaintiff was born on 12 February 1985 and is currently 22 years of age. On 14 September 2002 the plaintiff was injured in a motor vehicle collision, which was caused by the negligence of the first defendant. At the time she was in the rear passenger seat of the vehicle which collided with a vehicle in front. Instinctively she put her left hand out to brace herself. She sustained an injury to the left elbow with a fracture of the distal left radius.

2. As a result of the collision, the plaintiff was taken by ambulance to the Gold Coast Hospital, where she was admitted for a period of four days. Whilst at the Gold Coast Hospital, the plaintiff underwent surgery to her left elbow, which consisted of an open reduction and internal fixation. There was evidence of an ulnar nerve injury at this time. Further surgery was carried out on the plaintiff’s left elbow at the Royal Brisbane Hospital in December 2002, to remove screws from the fracture site. The plaintiff has continued to experience difficulties which can be directly attributed to this accident.

3. The parties have agreed to the issue of liability but were unable to reach an agreement as to quantum at the compulsory conference on 26 April 2005. The parties accordingly seek a determination as to the quantum of damages with respect to the injury to the plaintiff as a result of the negligence of the first defendant.

Issues raised in relation to the plaintiff’s credibility 

4. Serious issues as to the credit of the plaintiff have been raised by the second defendant. Essentially the second defendant contends that the plaintiff is lying. In particular the second defendant refers to the fact that in many of the reports of the health professionals the plaintiff has given inconsistent histories in relation to her degree of impairment, her pain levels, use of analgesia and her academic performance prior to the accident.

5. The second defendant also raises a number of inconsistencies between the evidence adduced in cross examination and the histories given in the various reports. In order to determine the issue of credibility it is necessary to examine some of the background facts in relation to the plaintiff.

Issues in relation to the plaintiff’s intellectual functioning

6. The plaintiff’s undated school record from the Somerset Hills Primary School^[1] indicates that she attended there from 1991 to 1997.  The records show that in grade six the plaintiff scored Ds in the standard subjects of English, Mathematics, Social Studies and Science and that she had a “Learning difficulty Level 5 (Ascertained)”.^[2]  The record notes that in grade seven the curriculum was totally modified for her individual needs. 

7. The plaintiff then attended Wavell Heights State High School until grade 12 and her record card at this school also indicates “learning difficulties level 4”.^[3]  About a month prior to the accident the plaintiff transferred to the Hendra Secondary College due to ongoing difficulties at the school in respect of her attendance and performance.  The evidence reveals that the plaintiff was clearly “wagging” school on a significant number of occasions as well as being cheeky and disrespectful to her teachers.  In his evidence at the hearing the occupational therapist Stephen Hoey stated:^[4]

“I think importantly, and it’s not expressed explicitly in the report here because its only come to my attention in further reading the notes, this young woman when she was ascertained in the education system when she was younger was level five which means she is borderline intellectually disabled person…In reviewing the notes retrospectively it’s very, very clear to me one is the education system failed this young woman because in blaringly bold lights was an ascertainment of level five, which is mild intellectual disability.”

8. The transcript of Mr Hoey’s evidence in relation to the plaintiff’s intellectual functioning and behaviour at school, records the following interchange with counsel for the second defendant:^[5]

“So what you are saying is that she had a hugely prejudicial background in terms of future employment even before this accident occurred?—Prejudicial inasmuch as with blaring lights was this ascertainment.  The government policy is we hop in and help these young people once they are ascertained.  No-one did anything of the like.  That is why I suggest we have a young woman plagued in her work in the past by poor academic record and non-attendance at school or acting out because she just wasn’t bright enough to be there.  Level five ascertainment means this young woman probably had a grade six mathematical or English capacity trying to compete with girls in grade 10, 11 or 12.”

9. The exit statement from the Hendra Secondary College in 2002 is an objective and contemporaneous record of the plaintiff’s level of functioning at the time of the accident. In relation to English communication subjects the statement summarises the level of difficulty which the plaintiff experienced as follows:^[6]

“Samantha seldom demonstrates an accurate recognition of audience and purpose and she is unable to compose written texts as they are usually fragmented, incoherent and very brief.  Samantha has problems in participating in speaking activities.  She is able to use basic vocabulary and language conventions but makes significant errors which hinder meaning.”

10. In addition, an analysis shows the plaintiff’s progress reports from Wavell State High School during her secondary school years contain many of the following comments. In a 1998 report in relation to Maths “has difficulty applying cognitive skills in core topics”.^[7]  This report further states in relation to English that she has problems in relation to comprehension and significant failure to complete tasks on time.^[8]

11. In relation to Mathematics in semester one of 1999 it is noted that the plaintiff is “unable to apply knowledge to problems, has difficulty remembering basic rules”.^[9]  In 1999 a further comment made in relation to a citizenship subject was that the plaintiff had problems with accurate recall and understanding and that her insight was lacking “when investigating problems and issues”.^[10]

12. A further comment in relation to a business subject was “recalls, describes and explains very little information”.^[11]  Another in relation to Science in the same semester states that the plaintiff “demonstrates little ability to recall and apply scientific knowledge”.^[12]

13. The evidence at the hearing also established that the plaintiff had significant difficulties with complex words and ideas. At one point she was asked “Can you tell me what angle you have lost?” in terms of the loss of movement in her elbow and it was clear that the plaintiff did not understand the question.^[13]  At another point the plaintiff was asked if she had a “set regime”,^[14] and it was also clear that she did not understand what that meant.  A further difficulty involved an understanding of the word “comply”.^[15]

14. The plaintiff also had to check what counsel meant when he used the term “rebellious behaviour”.^[16]  The plaintiff also struggled to understand what the word “intermittent” meant^[17] and did not understand the words “specific restrictions”.^[18]   The plaintiff also indicated at the hearing that she signed an affidavit in relation to the claim for Griffith v Kerkemeyer damages without understanding a word of what the affidavit meant.  Under cross examination the plaintiff agreed that she “does not have a clue what it means”.^[19]

15. When asked questions involving general knowledge or information it was also clear that the plaintiff did not have a good appreciation of some fairly basic matters. In particular, she did not understand how much she currently received from Centrelink. She also did not understand what would be involved in being a Teacher’s Aide. The cross examination also revealed that the plaintiff struggled with abstract concepts and complex questions. I note in particular that when counsel for the second defendant was asking her to understand two different concepts she had difficulty in understanding what was being asked.^[20]

16. There is also a tendency for the plaintiff to simply agree when she does not understand a complex question and this was evidenced in the cross examination of the plaintiff at the hearing.^[21]  In this regard I note the following excerpt from the Queensland Equal Treatment Benchbook:^[22]

“However, research also suggests that people with intellectual disabilities may have more difficulty with leading or closed questioning.  They may be more likely to acquiesce particularly if they do not understand the question.”

17. As to whether the plaintiff has been deliberately lying, which is essentially the contention of the second defendant, I am not satisfied that this has been established on the evidence. Many of the inconsistencies can be explained in terms of the plaintiff’s reduced level of intellectual functioning and her impaired communication skills.

18. I am satisfied that the evidence establishes that the plaintiff has significant difficulty with her memory and also has substantial problems in processing and communicating information. The plaintiff’s evidence at the hearing indicated that she still has substantial difficulty in relation to communication, memory and recall. She also has significant difficulty in relation to understanding concepts and words. The plaintiff’s evidence at the hearing indicated that she remembered very few of the doctors she had met and that she had very little recall of the appointments and what she had said to the doctors.^[23]

19. Having seen the plaintiff give evidence I accept that the plaintiff’s poor memory at the hearing in relation to these medical appointments was genuine. Given her significant limitations in this regard, I accept the submission from the plaintiff’s counsel that the plaintiff should be regarded as a witness doing her best to give an honest account of herself.

Can the plaintiff’s evidence be relied upon?

20. The second defendant submits that the inconsistencies in the evidence throw up a number of issues of credit which serve to seriously undermine the reliance that could be placed on the evidence that the plaintiff has given.

21. I accept that there are some differences in the information set out in the reports by the various health professionals which indicates that these professionals obtained different information from the plaintiff on what are essentially similar issues. However, in light of the information in relation to the plaintiff’s intellectual functioning and her poor memory, I am satisfied that the discrepancies go to an issue of intellectual functioning and do not reflect on her honesty.

22. I am not satisfied that the different information set out in the various reports seriously undermines the plaintiff’s credibility. An explanation of the variation is put forward by Dr Andrew Byth in his evidence. When Dr Byth was asked about an inconsistency between the known facts and the report that he had prepared, Dr Byth said the following:^[24]

“In retrospect it may have been the way I questioned her on that topic so far as I wasn’t expecting to find anything particularly untoward in that part of her developmental history.  I usually just ask patients was there any problems in your teens or any rebellious behaviour and perhaps, the – perhaps I, sort of skimmed over the rather over that rather than going into detail.  It might have been the way I questioned her rather than her, you know, deliberately getting involved in a response in that area.”

23. I am satisfied that, despite some inconsistencies as to the degree of pain and level of limitation, there is a consistent body of evidence that the plaintiff has experienced a traumatic injury which has caused her significant pain and has restricted her life and prospects to a large degree. I accept that the subjective accounts of the plaintiff’s level of pain have been honest accounts.

24. The major inconsistencies occur in relation to the level of care the plaintiff states she required at various times during the last four years. The inconsistent accounts generally occur when she is being asked to indicate a level of care she required at a particular point in the past. A recent statement may contain a figure or an estimate which may not accord with something she has said in the past. The evidence also indicates that the plaintiff would often make a broad general statement which she would then qualify on closer questioning.^[25] 

25. In coming to specific findings therefore greater reliance has been placed on evidence from the plaintiff which has been obtained contemporaneously and which is substantiated by objectively ascertainable facts.

Nature of injury

26. The undisputed medical evidence clearly establishes that the plaintiff sustained a significant fracture to her dominant left arm. In his 8 December 2003 report, Dr Todman concluded that the mechanism of the injury included a severe comminuted fracture of the distal left radius which also involved the ulnar at the left elbow. He reported that the fracture had been treated appropriately with internal fixation but that the ulnar nerve injury remained moderately severe with constant pain centring on the left elbow.^[26]  The pain at the time of that report extended to the upper arm and forearm, required regular Panadeine Forte and had some features of neuropathic pain.^[27]

27. The report of the occupational therapist Stephen Hoey based on both an interview and some objective assessment indicates that in June 2003 the plaintiff was unfit for lifting bilateral loads, unfit for lifting loads with the upper left limb and hand and precluded from both the forceful and repetitive use of the upper left limb and hand. He considered that at that time the plaintiff was capable of occupations in the sedentary range only.^[28] 

28. Consistently throughout all the medical reports is a reference to nerve injury including pain as well as sensory loss and weakness. The sensory loss is in the fourth and fifth fingers and the weakness is in the intrinsic muscles of the left hand which is the plaintiff’s dominant hand. There is also consistent reporting that this has had a severe effect on left hand function and she has mainly been required to use her right hand for day to day activities. The plaintiff describes a level of pain during the period up to the end of 2003 as being in the 8-10 range and indicated that because of this level of pain she continued to wear a sling throughout 2003.^[29] 

29. The plaintiff states that she still experiences pain in her arm particularly around the elbow as well as shooting pains and a loss of feeling from her elbow to her little finger.^[30]  The plaintiff gave evidence that whilst she can lift a small can or book she really cannot use her arm to any significant extent.^[31]  In terms of her current pain she states that currently it can get as high as six or seven but can be just a two or a three at times.

30. When Jodie Ottley, the occupational therapist working for EKCO, who had been engaged by the second defendant, examined the plaintiff in October 2003 she concluded that she was “presenting with restricted-significantly restricted use of her left upper limb” and she considered that she had “ulna nerve palsy”.^[32]  I consider that this assessment corroborates the evidence of the plaintiff as to the extent of her injury some 12 months after the accident.

31. Dr Coleman the orthopaedic surgeon who specialises in disorders of the upper limb who was called by the second defendant also gave evidence that “there is clinical evidence of a local compression of the nerve of the elbow which has been confirmed on two lots of nerve studies…”.^[33]   Dr Coleman also gave evidence that “She has a 25 per cent motor deficit of the ulna nerve because she had grade 4 power…..that was equivalent to eight per cent loss of function of her arm.”^[34]

32. The plaintiff gave evidence that since the accident she had worked at Media Technologies putting CDs into cases and that she had done this using one hand. She also works voluntarily on a Saturday at a furniture store where she handles “phone-ins and greet the customers and … the cash register”^[35] for about four hours.

33. Mr Hoey’s later reports^[36] confirmed his earlier assessments and also indicated that the plaintiff was also precluded from use of vibrationary equipment and the manipulation of smaller objects.  In his report prepared a week prior to the hearing Mr Hoey concluded that his assessment accorded with the contention of Dr Saines that the plaintiff was capable of “employment in a light sedentary position, (such as clerical or shop assistant etc) which does not include heavy labouring or prolonged hours of repetitive activity with the left upper limb”.^[37]

Level of assistance required

34. After the accident the plaintiff indicated that she experienced considerable pain and needed a lot of assistance from her mother for a considerable period which given the nature of the injury which was sustained I accept. The plaintiff described this level of care as “Everyday. Everything”.^[38]  Initially this included toileting, dressing, showering as well as having all the cooking, washing and cleaning done for her as she was unable to do any of it.  The plaintiff also indicated that she does not drive and has been hesitant to do so since the accident “because I have been scared since the accident”^[39] and relies on her friend Sophie to drive her everywhere. 

35. I accept that given the nature of the injury the plaintiff has received considerable assistance from either her mother or Sophie particularly in relation initially to self care and lately in respect of other activities of daily living.

36. The plaintiff moved in with her friend Sophie in March 2003 and she has been providing the assistance the plaintiff requires since that date. The surveillance videos shown to the court evidenced the fact that the plaintiff has a significant functional disability in her left arm and that she was accompanied, assisted and driven around by her friend Sophie. A detailed discussion of the actual care claim in relation to both past and future care is set out later in these reasons.

Has there been a failure to mitigate?

37. The second defendant has also specifically pleaded that there has been a failure to mitigate by the plaintiff. Section 54(3) of the Motor Accident Insurance Act 1994 (the “Act”) provides that in assessing damages for personal injury arising out of a motor vehicle accident the court must consider whether the claimant has failed to take reasonable steps to mitigate damages and if it appears that the claimant has failed to take reasonable steps then the claimant’s damages can be reduced to an appropriate extent to reflect the failure.

38. In this regard the second defendant has the onus of proof. The second defendant must also show that the plaintiff’s conduct was unreasonable and that the course of conduct the second defendant alleges should have taken place would in fact have made a difference. The principle is discussed by Luntz in these terms:^[40]

“…the basic principle on which the whole law of damages rests is that the plaintiff is to be placed, so far as money can do it, in the same position as if the wrong had not been committed.  In British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd, it was held that this principle is qualified by another, which imposes on the plaintiff a duty to take all reasonable steps to mitigate the loss consequent on the breach and debars the plaintiff from claiming any part of the damage due to neglect to take such steps.”

39. This allegation is essentially made against a background of four major issues:

(1)failure to attend physiotherapy and occupational therapy between November 2002 and March 2003;

(2)breaking appointments with EKCO Services on 10, 16 and 18 December 2003;

(3)declining an express offer by Suncorp “to fund vocational and  educational initiatives” on 23 November 2004;

(4) making no attempt to find employment.

40. Whilst it is apparent from the evidence that the plaintiff did not attend some physiotherapy and occupational therapy appointments between November 2002 and 10 February 2003, I note that the plaintiff did attend extensively at the hospital during this period in relation to other appointments. In particular I note that she attended at the fracture clinic on 18 November and was scheduled for surgery on 11 December which was cancelled. She subsequently underwent surgery on 16 December 2002 and attended a follow up on 30 December. She also attended at Orthotics and Prosthetics on 21 November and 2 December 2002 when she was fitted with an elbow extension orthosis. She did attend the occupational therapist on 19 November 2002. The plaintiff states she believes she attended all appointments as required. The medical records show that the plaintiff was at the hospital on 12 occasions in the period November 2002 to March 2003.

41. There is a period of some five weeks between December 2002 and 10 February. The attendance note for her visit to the Physiotherapy Department when she did attend on 10 March 2003 records “has trouble getting here-finances/transport.”^[41]  Given that this period in question is during the Christmas holiday period and there is a contemporaneous note of her difficulties in attending due to transport and finances I am not satisfied that this behaviour satisfies the burden of proof that the second defendant has in establishing a failure to mitigate.  There is no evidence that attending appointments during this period would have made a significant difference in any event given that the existing treatment had not had a substantial impact.

42. In relation to the breaking of the appointments with EKCO on 10, 16 and 18 December 2003 it is clear that the first appointment was broken due to an incorrect address and that the subsequent dates are the attempts at rescheduling the one appointment rather than three separate appointments. The plaintiff did phone to reschedule the appointment but at that point EKCO would not reschedule further appointments on the basis of a policy not to rebook after three missed appointments.

43. Turning to the submission that the plaintiff has failed to mitigate due to her failure to undertake further operations it is clear from Luntz^[42] that if a form of treatment has become common then this would make it easier for the second defendant to discharge the legal burden of showing that it was unreasonable for the plaintiff to refuse to allow the condition to be improved.  However in relation to surgery it is also clear that whilst there are a few cases where the plaintiff’s refusal to undergo treatment has been held unreasonable “mostly however the courts have been reluctant to find that a refusal to undergo seriously invasive treatment is unreasonable”.^[43] 

44. The further surgery was referred to by Dr Coleman as surgery to remove the plate and screws and “decompress the nerve”.^[44]  Dr Coleman gave evidence that there was only a 50 per cent chance that surgery would improve the plaintiff’s condition and that the best prospects of recovery were in cases where there has not been a fracture or a long history.^[45]  I note both those factors are present in this case.  In addition Dr Coleman also stated:^[46]

“Can I just say that the main concern with doing surgery is that the problem has been there for several years and it is quite recognised after about three years you get scarring within the nerve and that is why there is uncertainty as to whether it will get better.”

45. Furthermore the neurologist Dr Saines did not recommend the surgery and stated “It wouldn’t be strongly recommended because it’s not my feeling that we would necessarily gain more recovery.”^[47]

46. In the circumstances therefore I am not satisfied that it was reasonable to require the plaintiff to undergo further surgery.

47. I am also not satisfied that a failure to take up the offer of rehabilitation on the terms suggested by the second defendant constitutes failure to mitigate given the plaintiff had suggested an alternative which was equally appropriate and given she indicated a willingness to participate.

48. In all of the circumstances therefore I am not satisfied that the second defendant has fulfilled its evidential onus to establish that the plaintiff has failed to mitigate her injuries.

Level of impairment

49. There is broad agreement amongst the medical specialists that the plaintiff has been left with a 13 per cent impairment of her whole person related to her left elbow injury.^[48]  I note that Dr White agrees with 13 per cent assessment but would allow another three per cent to five per cent to reflect the loss of function of her dominant arm.  I also note that Dr Todman gives a 30 per cent impairment of the whole person to reflect both the fact that it is the plaintiff’s dominant arm and to reflect the plaintiff’s significant functional disabilities, however this assessment is not supported by the other assessments.  I accept that there is a likelihood that the plaintiff will develop arthritis in the elbow and I also note that there is scarring.  The second defendant has also conceded that a 13 per cent impairment of the whole person is appropriate and in accordance with the assessment of impairment arrived at by the orthopaedic surgeons Dr Robinson, Dr Coleman and Dr White^[49].

50. I am therefore satisfied that on an objective analysis of the evidence a 13 per cent impairment of the whole person can be established in relation to the physical injuries.

51. The plaintiff also has a genuine psychiatric disability as a result of the accident. The psychiatrists have indicated that the plaintiff has developed a secondary depression as a result of the accident, her ongoing pain and her loss of social contacts. In particular I note the report of Dr Byth of 28 April 2004 where he notes that after the second operation in December 2002 “she began to ‘feel depressed’, and missed seeing her friends and their families. She was disappointed to miss schoolies week with her friends, particularly as she had already paid for her accommodation.^[50]  When travelling in motor vehicles she felt ‘scared’ and would only go with drivers she trusted.  He also noted that at times the plaintiff felt like “chopping her arm off” and was very self conscious about her arm.  He also noted that she had depressive thought content with ideas of reduced self worth and pessimism.  Furthermore he stated that:^[51]

“Her thought content involved a preoccupation with pain, weakness and numbness in her left elbow and hand.  She was upset by the restrictions this placed on her potential for work, study and home activities.”

52. An objective assessment of the surveillance videos supports the view of Dr Byth that the plaintiff was depressed and the observation by Dr Todman that she appeared to have a flattened affect during the course of the consultation. Dr Byth also viewed the surveillance tapes and stated in his October 2006 report that “I thought they were consistent with her stated physical symptoms and depression.”^[52]

53. Dr Byth concludes that the plaintiff has an “Adjustment Disorder with Depressed mood” and agreed with Dr Lovell’s report in this respect, however he specifically rejected Dr Lovell’s finding that the plaintiff had “abnormal illness behaviour”. Dr Byth recommended specialist psychiatric treatment for twelve months because the plaintiff has continuing subjective distress from depression and because her case is complex, as it involves the interaction of pain and depressed mood. In particular he considered that she needed counselling, anti depressant medication and specialised pain management. Both psychiatrists agreed that the adjustment disorder was of mild severity with Dr Lovell considering it to be five per cent whole person impairment with Dr Byth considering it to be more in the range of seven and a half per cent.

54. I accept that the appropriate figure in this regard is a whole person impairment of five per cent but that with the treatment plan suggested by Dr Byth and with the resolution of this case the plaintiff’s condition in this regard should steadily improve over time.

General damages for pain, suffering, loss of amenities and scarring

55. It is accepted that the plaintiff suffered a painful injury and underwent surgery on two occasions. There is objective evidence of injury and an ongoing impairment in relation to the left arm. The plaintiff also had a significant period of convalescence and has been left with scarring on her elbow which whilst not obvious at a distance is nonetheless in evidence. The plaintiff has experienced considerable pain and her activities have been significantly restricted. As has been indicated there is a 13 per cent impairment of the whole person in relation to the physical injuries and a mild psychiatric injury of five per cent

56. The plaintiff has indicated a figure of $60,000 is the relevant figure whereas the second defendant has indicated a figure of $45,000 is more appropriate. Having considered decisions such as Townsend v BBC Hardware Pty Ltd^[53] and Cervelli v Russo & Suncorp Metway Insurance^[54] I am satisfied that given the subjective distress of the plaintiff and what Dr Byth refers to as the interplay between the plaintiff’s pain and her depressed mood I consider that the appropriate figure is more than the amount suggested by the second defendant.   

57. In particular in coming to an appropriate figure the subjective element of the effect of the injuries on the plaintiff is the relevant consideration and not the effect of the injuries on a hypothetical reasonable person. The decision of Taylor v Walawski^[55] endorsed the approach that the plaintiff’s particular personal response caused by factors such as frustration, depression, loneliness and interpersonal difficulties are the relevant factors.  Accordingly I consider the figure of $55,000 together with interest is the appropriate award. 

58. Interest is to be calculated on half this figure at the rate of two per cent which gives a figure of $2429.17.

Special damages

59. The amount of special damages representing the plaintiff’s compensable damages and out of pocket expenses has been agreed between the parties to be an amount of $1,057.75.

The economic loss claim

60. The issue of economic loss essentially relates to a question of a person’s commercial employability. As Mr Hoey states:^[56]

“Employability is about having the capability to gain initial employment, maintain employment and obtain new employment if required.  This capability is a complex interaction of the applicant’s education, work history, training, vocational aptitudes, physical capacity and presentation at interview.” 

61. Mr Hoey referred to Dr Saines’ assessment that the major impediments to the plaintiff’s employment were her lack of qualifications and essentially her lack of application and stated that these were in fact the two key issues in relation to the plaintiff’s employability.

62. It is clear from the evidence that lack of qualifications is the core consideration in relation to the plaintiff’s employability in that she has none due to her low academic achievements prior to the accident. As Mr Hoey states:^[57]

“Realistically this woman of low academic achievement was only ever going to work in low skilled, physically demanding occupations.    Apart from the symptoms of her adjustment disorder, she does not strike me as a person inclined to sales or customer service success anyway.  In my opinion the likely working future of [the plaintiff] would have been as a cleaner, factory or process worker, housekeeper, fruit or vegetable farm labourer, supermarket night filler or aged, disabled or child care worker.  She is no longer fit for any work in these occupations.”

63. Mr Hoey concluded that the plaintiff’s pre accident capacity to earn an income was in low skilled and physically demanding occupations but that she was now precluded from access to these occupations. As a general guide Mr Hoey indicated that the net weekly income of cleaners is $460 and retail sales assistants is $474.80. He also made the very relevant comment that the plaintiff will now likely suffer potential discrimination from potential employers related to her occupational restrictions and history of a compensation claim: “Her time out of the workforce and inability to work in heavy occupations will draw attention to her difficulties and compensation claim.”^[58]

Past economic loss

64. In relation to the plaintiff’s past economic loss counsel for the plaintiff contends that damages should be assessed on the basis that if the accident had not occurred the plaintiff would have finished school in 2002 and done poorly. It was then submitted that the plaintiff would have then taken another six months to find a job in Coles or K Mart or as a process worker. Using the figures submitted by Mr Hoey it was contended that the plaintiff has lost $63,700 together with interest of $2,460 on the basis that allowing for some discounting she would have earned approximately $350 per week for the last three and a half years.

65. I accept that the plaintiff would have had some difficulty initially finding work on finishing school and that she would have ultimately obtained employment in one of the fields highlighted by Mr Hoey. I consider however that in the last four years the plaintiff would not only have taken six months to find employment but would in all likelihood had further periods of unemployment when she was changing jobs or between employment due to the fact that much of this work is temporary and short term.

66. I do not however accept the submission by the second defendant that because she was receiving some AUSTUDY payments in high school (as does a large percentage of the high school population) this earmarked her as a future welfare recipient. However I consider that given the nature of the work the plaintiff would have been likely to have been involved with $350 per week is too high and that a figure of $300 would be more accurate.

67. There are approximately 188 weeks from June 2003, which is some six months after leaving school, until mid February 2007. I consider a further 10 weeks should be deducted for likely unemployment which gives a figure of 178 weeks. Accepting a figure of likely wages of $300 per week this gives a figure of $53,400.

68. I accept the second defendant’s submission that the appropriate rate to calculate the interest in accordance with s 55E of the Act is 2.765 per cent.  Interest is then calculated on the sum of $17,810, (which is the figure arrived at when the Social Security payment of $35,590 is deducted from the figure of $53,400) and this gives a figure of $492.45.

69. There is then a figure to be added for past loss of employer’s contributions to the plaintiff’s superannuation which would have otherwise been made by an employer pursuant to the Superannuation Guarantee (Administration) Act 1992 calculated at nine per cent of the claim for past economic loss which is $4806.

Future economic loss

70. In relation to future economic loss the second defendant submits that due to the plaintiff’s lack of skills and her poor motivation there should not be any large award when it comes time to gauge the plaintiff’s compensable entitlement for impairment of her earning capacity in the future.

71. The plaintiff however submits that had the accident not occurred the plaintiff would have earned the amount of $460 to $475 per week as a cleaner or process worker and that with appropriate discounting therefore an amount of no less than $350 per week should be calculated over the balance of the plaintiff’s notional work life of 43 years.

72. I accept that as a result of the plaintiff’s accident she is not commercially employable on a full-time basis. She is only able to do light sedentary work and is only likely to get casual work. Given the nature of the work the plaintiff was likely to have been employed in and given the vicissitudes of life in relation to this type of employment I consider a greater discounting factor should be considered and I am satisfied that the appropriate starting figure is $300 per week.

73. The plaintiff however does have some residual earning capacity. Given that the plaintiff has successfully managed some light work I accept that she is capable of some work and indeed should be able to obtain such employment. I therefore consider that the figure of $300 per week should be reduced to $200 per week to reflect this. Accordingly I consider that a figure of $200 per week for 43 years is the appropriate calculation.

74. Accordingly the figure for future economic loss should be calculated on the basis of $200 per week for 43 years which using the five per cent Tables gives a figure of $187,640.

75. A figure of nine per cent also needs to be included to cover the future loss of employer’s contributions to superannuation which is $16,887.60.

Past care

76. Turning then to the calculation of the care claim which relates to the care that the plaintiff has required in the past it has been agreed between the parties that in relation to this past care a figure of $16 per hour is the appropriate figure. Counsel for the plaintiff submitted that the plaintiff needed significantly more care in the first year or two following the accident than she currently does. However, on the basis of the plaintiff claim that she currently needs at least one and a half hours per day of care the plaintiff’s submission is that using this figure as a starting point the plaintiff conservatively needed an average of 14 hours per week over the entire four year period. The plaintiff submits therefore that in relation to past care an amount of $46,500 together with interest of two and a half per cent on this amount is appropriate.

77. The second defendant however submitted that the plaintiff is far less disabled than she submits and that an amount of $2,294 together with interest of 2.765 per cent on this amount is appropriate.

78. Whilst there are some inconsistencies there is a consistent body of evidence indicating that the plaintiff required assistance in the range of 16 hours per week initially from September 2002 to mid October 2002 which then reduced to 14 hours per week until 14 December 2002 when it increased back to 16 hours per week after the plaintiff had additional surgery. The plaintiff then considered she needed 14 hours assistance per week until it reduced down between 2004 and 2006.^[59]  Dr Todman in his report of 8 December 2003, some twelve months after the accident, concluded that the plaintiff’s “functional incapacity is quite pronounced” and he considered that at that time “She continues to require a carer with at least two hours care per day for the foreseeable future”.^[60]  Mr Hoey’s report of 24 June 2003 endorses this figure of 14 hours per week.

79. I consider that the combined effect of this objective evidence together with the plaintiff’s evidence establishes that the plaintiff required an average of 14 hours per week care for two years from the date of the accident. I consider that this care was necessary given the plaintiff’s subjective care needs at the time given her complex behaviours which have been referred to by Dr Byth. This level of care is also substantiated by the number of medical appointments the plaintiff was still attending some 12 months after the accident and the contemporaneous reports in the medical notes of the level of care the plaintiff states she required.

80. The figure for past care for the two years from September 2002 until October 2004 is therefore $16 x 14 hrs which is $224 per week for 104 weeks which is $23,296.

81. In relation to the care from October 2004 until today Mr Hoey’s report of 29 August 2005, which is almost three years after the accident, indicates that at that point the plaintiff was currently receiving some six and a half hours of personal and domestic care and services per week and on his objective assessment he concluded this was reasonable. Dr Todman in his report of 14 September 2005 indicated that the plaintiff’s symptoms had stabilised by that time and that he noted the plaintiff continued to have difficulty dressing and undressing as well as with washing and cleaning.

82. On the basis of the plaintiff’s advice to Dr Byth that her care needs reduced after October 2004 and Mr Hoey’s previously mentioned report, I consider that the level of care the plaintiff required reduced down to six and a half hours per week from October 2004. Whilst I note the plaintiff’s affidavit of October 2004 which set out a level of care of three hours per week from January 2003, I accept the plaintiff’s evidence that she actually did not understand what she was signing and there is no evidence as to how such a figure was arrived at given it is at odds with some of the contemporaneous medical reports. I accept however that from October 2004 there was an acceptance that a lesser level of care was required and I consider that the figure of 6.5 hours arrived at by Mr Hoey in August 2005 commenced from October 2004.

83. The period from October 2004 until February 2007 is approximately 122 weeks. Six and a half hours per week at $16 per hour is $104 per week. This multiplied by 122 weeks is $12,688. This gives a total figure for past care of $35,984.

84. Interest is to be calculated on this amount at the rate of 2.765 per cent which is $962.57.

Future care

85. In relation to future care the plaintiff might require, the plaintiff’s counsel has submitted that the plaintiff requires 10 hours per week of care at an agreed hourly rate of $18 for future care, which produces a figure of $170,000 after being discounted. Counsel for the second defendant submits however that although an amount for gratuitous future care may be payable it is submitted to be $18 per hour for one and a half hours per week for 60 years and discounted at five per cent producing $27,000.

86. Counsel for the second defendant however submits that this amount is more than offset by the expectation that the plaintiff’s carer will continue to be paid her Carer’s Allowance by Centrelink at a rate of at least $94.70 per fortnight and as such s 55D(4)(a) of the Act precludes any award for damages in this regard.  I am not satisfied that this is in fact the correct interpretation of this section.  I have had no authorities referred to that support this proposition and particularly no submissions in relation to the meaning of the word “offsetting”.  In any event there is no evidence before me that a person is even entitled to a Carer’s Allowance when the level of care is below 14 hours per week. 

87. The essential issue I need to determine is what level of assistance is still required some four years after the accident. The plaintiff’s submission is that she still needs substantial assistance and that this level of assistance will be required in to the future because she requires assistance with dressing, showering as well as household tasks and transportation.

88. Whilst accepting the plaintiff believes she requires this level of care and I note Dr Byth’s report^[61] where he states “I did not detect any exaggerated pain behaviours to suggest abnormal illness behaviour”, I do not consider that there is sufficient evidence that this level of care into the future is either necessary or reasonable given the extent of her injuries. 

89. On the basis of Mr Hoey’s report I accept that it is reasonable to conclude that the care required in August 2005 of six and a half hours per week continued until the date of hearing. However I do not consider there is sufficient evidence that this level of care will continue into the future particularly given her advice to Dr Byth in October 2006 of improvement.

90. Whilst I note Dr Lovell’s evidence of abnormal illness behaviour^[62] I also note Dr Byth’s specific rejection of this diagnosis on the basis of her “willingness to minimise her physical symptoms, to gradually reduce her dependence on other people, and to try to return within the physical constraints of her injury, to a more normal lifestyle”.^[63]  Accordingly I do not consider that there is sufficient evidence to make a finding of abnormal illness behaviour.

91. The plaintiff has claimed that reducing the calculation for future care down to approximately 10 hours per week from 14 hours is a sufficient discount for the usual contingencies. Whilst I accept that the plaintiff’s beliefs about the level of care she currently requires are genuinely held I do not consider that the level of care she states she requires is objectively sustainable into the future. I note Dr Saines’ evidence that currently he considered the plaintiff could attend to most domestic tasks particularly light sedentary domestic tasks^[64] but I accept that the plaintiff does need assistance with dressing, washing her hair, lifting, opening jars and food preparation as well as transportation.  

92. I do not consider however that a figure of 10 hours per week has been established as the time required to provide this level of assistance. I do not consider that there has been sufficient particularisation or substantiation of this level of care as neither of her carers, namely her mother or her friend Sophie, have given evidence as to the specific care required.

93. As previously indicated I consider that the level of care the plaintiff has required has in fact reduced down to six and a half hours per week hours since October 2004. In relation to future care I consider that this figure could be for no more than two hours per week with driving, heavy lifting and food preparation making up the major component of this care. In particular I note that the treatment plan proposed by Dr Byth will address the interaction of the plaintiff’s pain and depression and this should address the plaintiff’s dependant behaviour in this regard.

94. In relation to future care therefore two hours per week at the agreed hourly rate of $18 gives a cost of $36 per week which after applying a multiplier of 60 years on the five per cent Tables (1012.2) produces a figure of $36,439.20.

Treatment

95. In terms of future treatment that the plaintiff will require, the second defendant submits that specific amounts should be allowed as follows $4,000 - Future Occupational Rehabilitation Expenses; $5,800 - Future Surgery; $4,240 - Future Psychiatric Treatment; and $4,292 - Future Aids and Appliances.

96. The plaintiff however has preferred a global approach to the issue of future treatment and submitted that an amount of $10,000 is appropriate. In the circumstances I accept that given the uncertainties in relation to future treatment particularly surgery a global approach is more appropriate and I will allow the figure of $10,000.

97. Accordingly I would allow the follow amounts by way of compensation.

99. There consider therefore that there should be judgment for the plaintiff against the second defendant in the amount of $405,131.13.

100. I will hear submissions in relation to costs.

Other matters

101. Given my examination of the plaintiff’s intellectual functioning as set out in these reasons I have concerns as to the plaintiff’s ability to understand the nature and effect of complex financial decisions in relation to the management of this award of damages. These concerns are based in particular on the plaintiff’s cognitive deficits, her short term memory problems, her communication difficulties and her admission that she signed a document without understanding what it meant. Whilst the plaintiff may be able to manage day to day financial matters there must be serious concerns about her ability to manage a large damages award into the future given this award must be managed carefully. Accordingly consideration should be given to an application for the appointment of an administrator pursuant to the Guardianship and Administration Act 2000.