Hick v Frisby[2008] QSC 161

SUPREME COURT OF QUEENSLAND

[1] MCMEEKIN J: In this action the plaintiff, Chernita Hick, claims damages for personal injuries suffered in a motor vehicle accident that occurred on 20 August 2004, a few weeks after her 17th birthday[1]. Liability is not in issue.

[2] The accident plainly involved very substantial forces. Mr Crow of counsel, who appeared for the plaintiff, tendered photographs of the motor vehicle in which Ms Hick was travelling taken after the accident.[2] They show a motor vehicle torn apart. Ms Hick’s mother was killed in the accident.

[3] It is not in contest that Ms Hick suffered serious injuries. Those injuries are set out in the plaintiff’s statement of claim[3] as follows:

(a) head injury with scalp laceration;

(b) a fracture dislocation of the left shoulder including fractures of the left scapular, acromion, and coracoid process;

(c) injury to the thoracic spine including fracture of the spinous processes of T1 and T2;

(d) fractures of the left first rib;

(e) a right sided pneumothorax;

(f) a comminuted fracture of the right scapular and fracture of the neck of the right humerus;

(g) an injury to the lower back including a comminuted burst fracture of the vertebral body of L5;

(h) soft tissue injury to the cervical spine;

(i)            psychological injury including chronic depression and anxiety;

(j)                 scarring.

[4] The factual issues agitated at trial were principally:

(a) the likelihood of degeneration occurring in the lumbar spine over the next 7 to 10 years;

(b) whether there had been optimum treatment of Ms Hick’s disabilities and especially whether psychotherapy treatment and a pain management program would make a significant difference;

(c) the extent of Ms Hick’s pre and post accident earning capacity;

(d) whether Ms Hick required domestic care and assistance and if so the true extent of her accident caused  need.

Ms Hick and Mr Payne

[5] Before turning to those issues it is necessary that I say something about the plaintiff and her de facto partner, Mr Anthony Payne. Both impressed me that they were doing their best to give an honest account of their lives and the difficulties that Ms Hick has. Ms Hick was often distressed and tearful in giving her evidence. She clearly deeply misses her mother. In assessing her testimony it is also necessary that her difficulties in communication be borne in mind. These have been recorded during her school years and were described by an assessor as severe.[4] Professor James explained that she found it extremely difficult to explain what her feelings were.[5]

[6] Mr Grant-Taylor of senior counsel, who appeared with Mr Ashton for the second defendant, submitted that I should make an adverse finding as to Ms Hick’s credit principally by reason of differing answers that she has given over the years to various experts retained by the parties as to her consumption of alcohol and “recreational” drugs. The difficulty in drawing such an inference from out of court statements is that I am in no position to judge the manner in which the interrogator put the question or the way in which the plaintiff may have perceived it. When one is dealing with issues that the plaintiff might well have thought were peripheral to the main purpose of the examination and personal in nature I am not too critical of a certain lack of candour. There is no doubt that at some point Ms Hick did inform her examiners of her consumption of alcohol and drugs and it is on the basis of her later answers – and answers not said to be false – that she is criticised.

[7] She is criticised too for a response recorded by Ms Purse concerning the circumstances of her leaving a place of employment. Again I am in no position to judge what was said on the earlier occasion, whether the answer recorded is verbatim or an inaccurate summary and whether any inaccuracy is the plaintiff’s fault or that of the recorder. In this case it is said that her sworn testimony (that her accident caused injuries caused her to miss shifts and her employment was consequently terminated) was true but her answer to Ms Purse (that she chose to resign) false. Thus the version recorded by Ms Purse was not only inaccurate but had the obvious potential to decrease rather than increase her damages. It seems an odd basis to contend that her sworn testimony is unreliable.[6] 

[8] I do not think that an adverse view of her credit in respect of her sworn testimony is at all justified.

[9] Mr Payne appeared to me to be an intelligent young man who had put some thought into the life decisions he has had to make. He appeared to have a keen sense of responsibility for the welfare of his partner. It is significant that he has given up his remunerative employment as a boilermaker /welder for employment as a wardsman at the local hospital – employment more congenial to looking after Ms Hick. Significantly his credit was not attacked.

Degeneration

[10] Dr Cook, an experienced orthopaedic surgeon, expressed in very strong terms[7] his belief that there was a very high degree of probability that the injury to the lower back would lead on to degeneration of the discs above and below the site of the injury (L5) within 7 to 10 years. He explained his reasons for holding that view in detail.[8] Amongst other things he had not seen such a fracture not lead on to degeneration in over 30 years of practise although he conceded the possibility.[9]

[11] For Dr Cook the significant point was that the injury (a comminuted burst fracture of a vertebral body) must by its very nature cause disruption to the annulus fibrosis surrounding the disc as the annulus was attached to the bones that were so severely disrupted.

[12] Dr Nutting, who was called by the defendant and who is also an experienced orthopaedic surgeon, did not expressly disagree with Dr Cook’s opinion but rather said that he did not know what the future held for the plaintiff.[10] The injury was not a common one and there were multiple factors bearing on the issue.[11] He did agree that the injuries suffered made it plain that the plaintiff had been subjected to “really severe forces”[12], and that the L5 vertebral body was now abnormal as a result of the accident. That abnormality was clear from the CD of the X ray pictures[13] which Dr Cook used to demonstrate the fracture and the impact on the disc spaces and the discs.[14] Dr Nutting agreed that the L5/S1 disc space was “certainly narrower than one would expect” and that most of the disc material had displaced into the vertebral body.[15] He concluded that Ms Hick had an abnormal motion segment, that there would be stiffness in the spine and adaptive measures at other levels of the spine.[16] Importantly he accepted that it was more likely than not that there would be damage to the annulus fibrosis of the surrounding discs with such severe damage to the bony structures.[17] Whilst he qualified that by reference to the plaintiff’s youth and that in a young skeleton the ligament would be stronger than bone that does not seem to me to meet the point. All depends on the degree of force imposed on the structures.

[13] There can be no certainty. However both doctors impressed me with their emphasis on the very substantial forces that must have been imposed on Ms Hick’s body in this accident. Both accept that the L5/S1 disc has been disrupted. Both accept the probability of damage to the annulus fibrosis of surrounding discs. It was significant that when the 7 to 10 year degeneration point was squarely raised with Dr Nutting he did not disagree but rather conceded that Dr Cook’s opinions deserved respect.[18]

[14] In my view the probabilities favour Dr Cook’s views.

[15] The significance of this finding is that Ms Hick is likely to have increasing symptoms of low back pain, an increasing need for domestic assistance in the years ahead, and a diminished capacity for work in the longer term.[19]

Psychotherapy Treatment/Pain Management Clinic

[16] Ms Hick has been diagnosed as suffering from an adjustment disorder with anxiety and depression. Earlier she probably had a more significant condition as the reports of Professor James and Mr Salzman show. If so that has ameliorated. It is probable that her psychiatric difficulties play a part in her presentation and her perception and experience of her disabilities.

[17] All relevant experts agree that Ms Hick has not yet had appropriate counselling to help her deal with these significant psychiatric difficulties. It is not that counselling has not been attempted but rather that Ms Hick did not wish to continue after four sessions with a psychologist, Ms Blom. She explained her reluctance in terms of not trusting anybody, and not believing that the proposed treatment would do her any good.[20] This reluctance was probably a product of her pre-morbid personality[21] or her psychiatric condition consequent upon the accident[22]. Professor James thought that there remained reasonable prospects of persuading Ms Hick to again attempt counselling, reflecting the rapport that he had established.[23] Even so he thought that the prognosis remained guarded.[24] Dr Alcorn, although of the view that Ms Hick would probably benefit from further counselling, was pessimistic of the prospects of getting her to attend.[25] Mr Salzman pointed out that counselling is not necessarily beneficial to all.[26]

[18] Given Ms Hick’s entrenched opposition to any counselling or the like treatment Mr Crow argued that she should be assessed without any expectation of improvement through these possible treatment modalities. Mr Grant-Taylor on the other hand submitted that Ms Hick would have failed in her duty to mitigate her loss if she did not attend on such treatment. As to that latter point a plaintiff does not fail to mitigate their loss when their failure comes about involuntarily – in this case by reason of a pre morbid condition or the injuries caused by the subject accident. In such a case the defendant fails to discharge the onus upon it of demonstrating that the failure is unreasonable.

[19] In Dr Alcorn’s view a comprehensive pain management programme should be attempted.[27] He thought that there was a likelihood of “some benefit” in her overall function.[28] Dr Cook was guarded in his evidence as to the benefits of such a programme based on his experiences with patients in the past.[29]

[20] To an extent the debate is of little consequence. No expert could predict with any degree of certainty the likely benefit to be gained from the proposed treatments.[30] As well the passage of time has probably made success less likely.[31] Whether there will be any significant improvement in her actual functioning is debateable. With successful counselling Ms Hick’s mood would no doubt improve and this would assist her in being more positive and active. However her opposition to counselling as being of any use to her seemed entrenched and heartfelt.[32] It is unlikely that her present attitudes will change. She will not get to the point of establishing rapport with a therapist until they do.  At best a pain management programme might assist Ms Hick to better manage her physical disabilities as Dr Cook[33] and Dr Alcorn[34] described. Any positive consequences from the treatments proposed are likely to be outweighed by the increasing problems from the degenerative process discussed above.

The Civil Liability Act

[21] The assessment is governed by the provisions of the Civil Liability Act 2003 (CLA) and the Civil Liability Regulation 2003 (“the Regulation”).

[22] The effect of those provisions is to require a court to assess an injury scale value (“ISV”) for the injury from the range of injury scale values stated in schedule 4 of the Regulation in order to determine the level of general damages (as defined) in accordance with the rules laid down in s 6 of the Regulation. [35]Section 51 of the CLA defines “general damages” as damages for

(a) pain and suffering;

(b) loss of amenities of life; or

(c) loss of expectation of life; or

(d) disfigurement.

[23] Section 62 of the CLA provides for the calculation of general damages according to the assessment of the ISV and the formulae set out in s 62.

[24] Whilst the regulations indicate that the purpose of the elaborate scheme set out there is to promote consistency in awards[36], sight must not be lost of the overriding purpose of the ISVs prescribed – to reflect the level of adverse impact of the injury on the injured person.[37]

[25] The court is required to have regard to the guidance provided by the provisions in Schedule 4 concerning its use in so far as they are relevant to the particular case but is not necessarily limited to those factors: Sch 3 s. 8.

[26] This case concerns multiple injuries. In such a case it is necessary to determine the dominant injury as it is defined[38], have regard to the range of 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.[39] 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.[40]

[27] 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.

[28] The extent of whole person impairment is an important consideration “but not the only consideration affecting the assessment of an ISV”: Sch 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.

[29] An adverse psychological reaction to an injury is treated merely as a feature of the injury and is not separately assessed unless the reaction amounts to a mental disorder.[41]

[30] Schedules 5 and 6 concern the method of assessment for a psychiatric impairment rating (PIRS). There is no suggestion in this case that the relevant experts were not appropriately qualified and trained, or that their assessment ratings were not in accord with the legislative requirements: see Sch 3 s 6; Sch 5 ss 4 and 12.  

General Damages

[31] The first step in the process of arriving at an award in cases of multiple injuries is to identify the dominant injury. Mr Crow’s primary submission was that the injury to the lumbar spine was the dominant one. He contends for Item 90 (“extreme lumbar spine injury”) of Schedule 4 to the Regulation whereas Mr Grant-Taylor submitted that Item 92 (“moderate lumbar injury”) was appropriate.

[32] In my view Item 90 is not appropriate for two reasons. Firstly, Ms Hick does not have gross limitation of movement. Secondly, there are aspects of the injury which better suit its categorisation at a lesser level as I will discuss below.

[33] The categorisation of the injury is complicated because the fracture does not fit within the AMA Guide to assessment[42] which Guide the legislation indicates is to be preferred.[43] The example and comment provided in Item 91 (serious lumbar spine injury) refers to a degree of compression of at least 25%. In Ms Hick’s case the degree of compression is not so great.[44] However the orthopaedic surgeons each expressed the view that the degree of compression did not reflect the true nature of this injury.[45] Here the significant points are the damage to the vertebral end plates, the displacement of disc material into the vertebral body, the probable damage to the annulus fibrosis of L4/5 and L5/S1 discs, and the potential for problems in the future. That potential does not seem to me to be adequately met by the description of the injury as a compression of 25 % of the vertebral body.

[34] Dr Nutting thought that the plaintiff had an “abnormal motion segment” as a result of the injury sustained.[46] An injury involving a change in “motion segment integrity” is sufficient to meet the criteria in Item 91. Mr Grant-Taylor submitted that because the degree of compression was less than 25% Item 91 was excluded. I do not accept that the Regulation should be construed in that way. Whilst the reference to 25% appears in the example and comment regarding the ISV it is not used in a prescriptive sense, as is the motion segment integrity criterion.  So much is evident from the text and see s 8(3) of Sch 3 of the Regulation.  As Dr Cook explained this injury was more severe than a simple 25% compression fracture would indicate.[47] It would be perverse if an injury resulting in symptoms more serious than those expected from a simple 25% compression fracture was required to be assessed in a less serious category than the latter.

[35] The whole person impairment assessed by the orthopaedic surgeons in respect of the lumbar spine injury was 5% (Dr Nutting) and 6% (Dr Cook). Consideration of the references to impairment ratings that do appear in Sch 4 suggests that so modest a whole person impairment as assessed here should not be categorised as serious.  By way of example Item 91 of Sch 4 can be compared with Item 93. In the former an ISV at the top of the range (which range is 16 to 35) is said to be appropriate for a failed fusion of vertebral bodies inter alia causing a whole person impairment of 25%. Item 93, which deals with moderate lumbar spine injury but of a soft tissue nature, refers to an ISV of not more than 10 for a whole person impairment of 8%.

[36] However that seemingly modest impairment rating is largely explained by the inapplicability to this injury of the AMA guides used to arrive at the impairment rating. In addition to that qualification it must be borne in mind that the impairment rating, whilst important, is not the only consideration: Sch 3 s 10.

[37] Balancing all these factors I categorise the injury to the lumbar spine as falling within Item 91 of Sch 4. The range of ISV is 16 to 35. If the only injury suffered was that to the lumbar spine I would assess an ISV of 25 ie somewhere around the middle of conceivable lumbar spine injuries that can be described as in the Item.

[38] In assessing an appropriate ISV I am entitled to have regard to other relevant matters: Sch 3 s 9 Regulation. They include the plaintiff’s age (20 years), the degree of her pain and suffering and the impact on her enjoyment of the amenities of life which I will deal with below, that the symptoms are life long and that she has a long life expectancy, and the other injuries that she has suffered. As to that last matter the injuries are extensive.  Those injuries are, with the whole person impairment assessments in brackets, as follows: fractures of the spinous processes of the thoracic spine (Dr Cook: 8%; Dr Nutting: 0% but note his acceptance of Dr Cook’s categorisation in cross examination[48]), soft tissue injuries to the cervical spine (Dr Cook: 3%; Dr Nutting: 0% although he accepted the presence of a soft tissue injury[49] and made an unspecified allowance in a 3% general allowance for the residual medical condition[50]), an impairment to the left arm (Dr Cook: 3%; Dr Nutting: 5% - despite his view that there had been a more serious injury than he had initially thought – a dislocation of the humeral head, unrecognised by him until seeing X-rays immediately prior to trial – he did not change his assessment[51]), an impairment to the right arm (Dr Cook: 0%; Dr Nutting: 1%) a fracture of the first left rib, scarring (Dr Cook: not considered; Dr Nutting: 3%), a pneumothorax, and a psychiatric condition (Dr Alcorn: 7%; Professor James: 10% - each using the PIRS model).

[39] Ms Hick has suffered a fracture of the spinous processes at the TI and T2 levels of her spine which fractures seem to have healed without loss of structural integrity. An ISV of between 10 and 15 is appropriate for one such fracture: see Item 92 of Sch 4. That injury alone would warrant an ISV of 10, there being no complaint of present symptoms. An ISV of 4 seems appropriate for the soft tissue injury to the cervical spine there being headaches and ongoing pain (Item 89).  The left shoulder injury involved a severe fracture and dislocation.  There is a continuing complaint of pain and weakness. I think that it falls towards the bottom end of Item 96 “Serious shoulder injury”. I assess an ISV of 20. The injury to the right shoulder involved fractures of the scapular and humerus with reasonable recovery. It falls into the minor shoulder injury category and I assess an ISV of 5. The chest injuries, although serious when sustained, were minor in their result, fall within Item 39 of schedule 4 (range 0-10), and I assess an ISV of 5. The scarring is to several areas of the body and is distressing to Ms Hick. Part 7 of the Schedule is applicable. It notes that scarring is brought into account in the ISVs allowed in relation to many of the physical injuries in the Table. I think that applies to the most significant of the scars ie to the shoulder area. Again I would allow an ISV towards the bottom of the range (0-25) bringing into account the location of the scars and the distress caused. I assess an ISV of 5. For the mental disorder Item 12 of Schedule 4 is applicable. Most of the factors mentioned in the general comment to Part 2 (insight, age, life expectancy and impact of the disorder) favour an assessment at the higher end of the range (2 to 10). Bearing in mind the PIRS impairment ratings I assess an ISV of 10.

[40] The injury to the lumbar spine is therefore the dominant injury.

[41] The impact of these many injuries on the plaintiff’s life has been profound. They are set out in her statement.[52] She is in daily pain principally in her back, neck and left shoulder and suffers bad headaches. Her ability to endure sitting, standing and driving is greatly restricted. She has weakness of her left arm limiting her ability to carry out normal daily activities. Her consumption of pain killing medication is high and contrary to her long term interests. She has the prospect of future surgery to remove the fixation device from her left arm. She would like to have children but she fears the effects of the injuries will limit her capacity to do so and to properly care for them. The potential overlapping effect of multiple injuries referred to in sch 3 s 3(2) is plainly of considerable relevance to the spinal injuries but not so much to the other discrete areas affected.

[42] To take account of all these relevant factors that I have discussed I am satisfied that the maximum dominant ISV (35)[53] does not sufficiently reflect the impact of all these injuries especially on so young a person. I assess an ISV for these multiple injuries at 44 – an approximate 25% uplift on the maximum dominant ISV.[54]

[43] Application of s. 62(i) of the CLA results in an award of $78,320.00.

Past Economic Loss

[44] There are obvious difficulties in assessing the potential earning capacity of a 17 year old yet to leave school. Ms Hick missed some 7 weeks of schooling as a result of her injuries. Ms Hick’s school records show that she was awarded three VHA’s for English Communication, Business and Computer Studies and a HA in Hospitality in each semester of her senior year.[55] The academic content and demands of the subjects she studied were not explored. Testing showed Ms Hick to fall within the range of average intelligence. 

[45] Whilst one might have a degree of scepticism concerning the second semester results given the long period away from school[56] there is no reason to doubt the accuracy of the first semester results.  As Mr Salzman said such results suggest that Ms Hick “was highly capable of performing well” and that she had “no obvious … deficits or emotional deficits … that would have impaired her ability to perform well”.[57]

[46] Ms Hick had communication difficulties at school and this may have impacted on her earning capacity, but if so I think to only a very minimal degree. My own observation of her suggested that whilst she probably did have difficulty in communicating her feelings, as Professor James noted, she appeared to cope reasonably well with a detailed cross examination.

[47] The plaintiff in my view has exhibited admirable stoicism in pursuing employment since leaving school. She has had seven positions. She has worked part time as a kitchen hand, cleaner, housekeeper, console operator and office worker cum cleaner and full time as a retail shop assistant. Her present employment is performed with the assistance of a sympathetic work mate and involves cleaning that falls at the lighter end of the range.

[48] The plaintiff claims $20,628 under this head.[58] Mr Grant-Taylor and Mr Ashton for the second defendant concede a global figure of $10,000.[59] One assumption underlying the plaintiff’s claim is that the plaintiff would have earned $500 net per week from the day she left school. No evidence was led as to the availability of employment to an untrained 17 year old that would have supplied such an income. As a full time retail shop assistant at Batros between January and June 2006 Ms Hick earned a net weekly average of about $370[60] which undermines the assumption considerably. I note too that under the “Clerical Employees Award - State 2002” the full time weekly wage for a 17 year old is $314.10 gross.[61]

[49] A second assumption that the plaintiff makes is that she would necessarily have been in full time employment had the accident not occurred. No evidence was led to show that any full time positions were available to her. There is no reason to think that Ms Hick would not have worked as a cleaner, shop assistant or the like had the accident caused injuries not intervened, although she may have preferred work in the clerical line given her VHA in Business and Computer Studies.

[50] She has certainly lost positions as a result of her accident caused impairments. It seems clear that because of her impairments she has struggled with each of the jobs that she has attempted.  She has frequently missed shifts. For example in her current employment Ms Hick has lost 38 days work which she attributes to the pain that she suffers on a daily basis.[62] I do not have precise evidence of her hourly rate save that it is in the order of, but less than, $18 per hour.[63] Ms Hick has therefore lost something approaching $3,420 since September 2007.

[51] There is no reason to think that Ms Hick would not have maintained employment at Batros but for the injuries. She averaged $400 net per week in the period from 1 July 2006 until her termination. If she had maintained her average earnings from March (when she finished at Batros) to September (when she started at Queensland Health) then she would have earned about $3,800 more than she did.

[52] There are many imponderables. But for the accident and its consequences Ms Hick may have obtained better paying employment or more full time employment than she has been able to. In the circumstances it seems to me that the defendant’s concession is as sound an assessment as can be made.

Future Economic Loss

[53] The plaintiff is currently working 5 hours per day 5 days per week and earning about $486 per week net.[64] She consumes up to 12 Nurofen per day. Her de facto performs the bulk of the household chores. As I mentioned earlier she receives assistance from her work mate such that she performs only the lighter tasks.[65] In my view, even bearing in mind the prospects of improvement from counselling or a pain clinic, which I think are remote, this is not a sustainable earning capacity in the longer term.

[54] In this regard it is necessary to say something about the views of Dr Burke, an occupational physician. He expressed the view that there were few restrictions on Ms Hick’s employability. Mr Grant-Taylor and Mr Ashton in their submissions expressly disclaimed reliance on Dr Burke’s views. There were good reasons for doing so. I am not at all sure that Dr Burke appreciated the full gravity of the orthopaedic injuries suffered. His claim that the lumbar spine injury involved a common fracture[66] was at odds with the views of the two very experienced orthopaedic surgeons called. He dismissed the notion of there being a probability of degeneration in the lumbar spine.[67] He expressed surprise at the suggestion that Ms Hick’s psychiatric problems would restrict her capacity to work full time over the next five years[68] – a view held by the psychiatrists called. Effectively he was at odds with the orthopaedic surgeons, the psychiatrists, and the occupational therapist in their assessments. His dismissal of Ms Hick’s claims of being restricted, in pain, and in need of assistance must involve either a non acceptance of the validity of her complaints, an assumption that she ought to be sufficiently stoical to bear her multiple disabilities and perform at higher functional level, or a view that treatment now will improve her level of functioning to a remarkable degree.  I disagree with each of those views.

[55] The second defendant contended for an award of $150,000, the plaintiff for $500,000. The defendant’s submission drew a distinction between the next five years and the period thereafter. That was so because of the psychiatric evidence of difficulties Ms Hick will have in maintaining employment in the next five years. [69] The submission presupposes the certainty that treatment will take place and that it will be effective in significantly ameliorating Ms Hick’s symptoms. Neither assumption in my view is justified. Rather there must be an allowance for the possibility of such treatment occurring and being effective, the prospect of which I do not rate highly.[70]

[56] The plaintiff pointed to the statistical average adult wage of $901 per week as reflecting Ms Hick’s probable long term earning capacity. Mr Crow pointed to the grades achieved at high school to justify so high a wage.  The submission might have more force if there was cogent evidence as to the academic content and demands of the courses in question.  As evidence of her incapacity in a practical sense he relied on Ms Hick’s dismissal from six positions over the three and half years since she left school and her significant difficulties in maintaining her present position.

[57] No authority was cited for the view that the average adult wage as determined by the Australian Statistician is any guide to a particular individual’s earning capacity. I do not accept it as a reliable guide here.

[58] Ms Hick gave evidence that prior to the subject accident she had ambitions to become a secretary in an office or a chef after leaving school.[71] She had applied for work at the local Mitre 10 store at Mackay as an office receptionist/secretary prior to the accident. There is evidence that she had the aptitude to perform such work.[72] She had taken no steps to qualify as a chef and no evidence was led to suggest any particular aptitude in that regard.  The probabilities in my view favour a finding that but for the accident Ms Hick would probably have in the longer term sought to work as a secretary or receptionist.

[59] Her capacity to perform that work is undoubtedly adversely affected. She has those limitations identified by Ms Purse in relation to keyboard work[73] as well as a limited concentration span and poor organisational abilities. In saying that I make clear that I accept Dr Alcorn’s view that it is not a question of her cognitive abilities that limits her.[74]  Rather it is the interference of the pain that she suffers from her physical injuries that in my view interferes with her concentration and so limits her further.  I doubt that whatever communication difficulties she now has would have adversely affected her ability to perform such work.  Ms Hick is now best suited to part time light semi sedentary work[75] - probably clerical work of some sort.[76] To maintain employment even at that level she will need a reasonably understanding employer. She will be an unreliable employee and so at greater than the usual risk of dismissal for unsatisfactory attendance and performance. She is unlikely to achieve promotion.

[60] Under the clerical employees award for the Mackay division the gross weekly wage ranges from $571 to $725 depending on age and seniority.[77] The Queensland Public Service Award is to the like effect - the lowest rate under that award is $374 per week. With modest promotions to say a Level 3 an administrative officer can earn approximately $750 per week.[78]

[61] Assuming a progression from the most basic level with promotions to eventually obtaining employment commensurate with a Level 3 officer under the Public Service Award say by age 35 and then no further promotion after that time then over 45 years Ms Hick could have earned in the order of $510,000 when discounted as required.[79] Her loss is reflected by discounting that potential for residual earning capacity (bearing in mind her prospects of improvement through treatment or simply effluxion of time easing Ms Hick’s psychological difficulties, possible adaptation to her impairments over time, and the probability of degeneration adversely affecting her earning capacity) and the contingencies of life.[80] In my judgement a discount of 40% best reflects the probabilities.

[62] I therefore allow $300,000 for loss of future earning capacity.

Gratuitous Care

[63] Very substantial claims are made for past and future domestic assistance based on the principles identified in Griffiths v Kerkemeyer[81] and Van Gervan v Fenton[82]. The past claim is based on a need for 12 hours assistance per week and the future at 15 hours per week.

[64] Mr Grant-Taylor essentially questioned the plaintiff’s motivation.  Her evidence about her sleeping habits, which is probably not accurate, and the evidence as to her use of cannabis gave him some good grounds for doing so. Two things outweighed those considerations to my mind. Firstly I was impressed with Mr Payne as a man of some sound common sense. He gave up good paying work and altered his lifestyle to cater for Ms Hick’s disabilities. While affection can blind one to the imperfections in one’s partner I am confident that he would not have taken these steps if  there was any doubt in his mind about her willingness to perform as well as she can. Secondly, I was impressed with Ms Hick’s attempts to maintain employment. Few indeed would have persevered as she has done.[83] Her attitude in that regard is totally at odds with any lack of motivation to do her best.

[65] Ms Purse who is an experienced occupational therapist opined that in the average household there were some 21 hours of domestic chores to be completed each week.[84] At present Mr Payne performs most, if not essentially all, such tasks. He speaks of performing tasks that take up about 24 hours per week[85] - roughly equivalent to Ms Purse’s views concerning the average household.  Ms Purse assessed a need for 10 hours assistance each week with a further 2 hours organisational assistance. Professor James thought that there needed to be more organisational assistance – in the order of 5-6 hours.[86] 

[66] Mr Grant-Taylor pointed out that in respect of the vast bulk of the tasks Mr Payne’s work around the home was for his benefit as well as that of the plaintiff. The submission made was that there ought to be a halving of the amount claimed of 12 hours per week not only to reflect the factual situation but also to accord with the requirement in s 59(1)(b) of the CLA that the need for services arise “solely out of the injury in relation to which damages are awarded”.

[67] Mr Crow made a strong submission for an allowance for organisational assistance claiming that Ms Hick was “extremely reliant upon other persons to organise her”.[87] Whilst the opinions of experienced experts are valuable I place more reliance in this case on the evidence of the daily lives of the plaintiff and her partner. I did not have the impression from the evidence of Ms Hick and Mr Payne that Mr Payne provided any significant organisational assistance. I do not propose to allow any component for that in the past.

[68] Whilst the services provided clearly encompass a benefit to Mr Payne the discounting exercise should be done on the full extent of the services, not on the 12 hours that Ms Purse says is needed. No claim is made for the period prior to January 2006. I propose to allow the claim at 10 hours per week over 134 weeks.

[69] There is a dispute as to the hourly rate that should apply and behind that a dispute as to the relevant principle. The plaintiff contends that the market cost of supplying services must be the measure. Whilst that can be accepted as accurate as a general statement it is plain, as the defendants contend, that it is qualified. There are observations in several cases to the effect that the market cost of services may be too high to be the reasonable value of the services: eg see Van Gervan v Fenton[88]; McChesney v Singh[89]. The task is to arrive at an objective monetary value of the loss, the loss being the need for services.  It is a question of fact in each case: Goode v Thompson[90].

[70] The defendants concede $20 per hour. The plaintiffs contend for $25 per hour relying on the evidence of Ms de Campo both as to the requirements under the Award relevant to carers and as to the amount she pays her cleaner. It seems to me to be artificial to apply an Award relevant to Level 2 carers who are required to provide personal as well as domestic services. The services required here could be supplied by a cleaner or domestic.

[71] The wage paid to an independent contractor living outside the home must of necessity include some compensation for time and expense incurred in travelling to and from the employment. That is not a factor here. Bringing that factor into account, and adopting Ms de Campo’s cleaner’s rate as the only relevant evidence on the point, I propose to allow the claim at $20 per hour.

[72] I will allow $26,800 for this head of loss.

Future Domestic Assistance

[73] The claim for the future involves some different considerations.

[74] Mr Grant-Taylor suggested in his cross examination of Ms Hick that with modern labour saving devices such as clothes dryer and dishwasher, and with the use of a long handled broom, she could probably cope with many of the tasks presently performed by Mr Payne. To some extent she agreed.[91] The difficulty is that Ms Hick had no experience of the utility of such devices and cannot necessarily know what effect they will have on her capacities. Ms Purse is presumably well aware of the efficacy of such devices and brought them into account.  Further Ms Hick conceded in cross examination an ability to do certain individual tasks. The difficulty with that evidence is that it takes no account of her endurance or her capacity to perform the tasks on a regular and consistent basis.[92] She fatigues more easily and her pain levels increase through the day. Nonetheless there is some merit in the point and a moderation of the claim is called for.

[75] Secondly, the relationship between Mr Payne and Ms Hick may not last. It is only some 2.5 years old.  The assumption that services will of necessity be provided over the next nearly 70 years[93] by someone living in and sharing the home may well prove to be false. Ms Hick, with her many disabilities, may not always have the good fortune of having a partner so willing to carry the burden of the domestic chores. It is here that the evidence of the experts is of particular assistance.

[76] It follows from that consideration that the halving that Mr Grant-Taylor contended for in respect of the past is not so valid for the future. As well there is the prospect that the need for organisational assistance will become more relevant. The discount to the commercial rates proved is not necessarily valid in the longer term. The commercial rates proved equate to a figure of about $35 per hour.[94]

[77] Thirdly, a claim is made for an increased need for services when and if Ms Hick has the care of an infant. To the extent that the claim relates to the infant’s needs as opposed to Ms Hick’s needs then it cannot be recovered: CSR v Eddy[95]. There is no precise evidence as to what that increase will be[96] but it is a factor to be borne in mind.

[78] Fourthly, account must be taken of the increasing impact of degeneration of her lumbar spine – a factor difficult to quantify[97] but which should increase the allowance.

[79] Fifthly, there is a certain perversity in a plaintiff, employed as a cleaner, claiming damages in order to have cleaning work done in her home.  The fact is that because of her impairments Ms Hick is particularly unsuited to employment as a cleaner. More congenial employment in a clerical line should enable her to be more active in the home.

[80] Finally, I note that Ms Purse carried out her assessment in November 2006. Professor James noted an improvement in Ms Hick’s psychiatric condition between November 2006 and February 2008.[98] It is probable that Ms Purse assessed Ms Hick at a time when her presentation would have been at a lesser level than it is now, given that improvement. I bear in mind the prospect of continuing improvement whether through counselling, a pain management programme, or simply the effluxion of time which has had some effect already.

[81] Balancing out these various factors as best I can, and acknowledging a necessary imprecision, I will allow the sum of $255, 250 under this head of loss.[99]

Future Medical Expenses

[82] A claim is made for about $30,000 under this head of damages.

[83] Ms Hick has the prospect of future surgery for removal of the fixation devices in her left arm. The cost of that is $2,000.  It is advised by the orthopaedic surgeons and I assume the surgery will be undertaken.

[84] Ms Hick consumes substantial quantities of medication including Nurofen, Panadene Forte and Brufen. Whether consumption will continue at present rates is questionable – it is harmful in the longer term. Balanced against that must be the effect of advancing degeneration in her spine. Ms Hick currently spends about $15 per week on medication.[100] As well there is the occasional need for scripts and hence the cost of attendance on a medical practitioner.

[85] A claim is also made for the cost of psychological therapy in the sum of $5,000. Given my earlier findings I do not propose to make any separate allowance for this item. If undertaken the cost could well be substantial – in the order of $5,000. If successful this should be offset by a reduction in consumption of medication of a like amount.

[86] I will allow $15,000 under this head of loss.

Agreed Items

[87] Special damages are agreed at $2,462.20.

[88] Loss of superannuation is to be assessed at 9% of the amounts allowed for past and future loss of earning capacity.[101]

[89] Interest on past items of loss should be at 3.17%.[102]

Summary

[90] In summary I assess the damages as follows:

Orders

[91] There will be judgment for the plaintiff in the sum of $719,017.20.

[92] I will hear from counsel as to costs.