Hooper v King[2011] QSC 324

SUPREME COURT OF QUEENSLAND

[1] MCMEEKIN J: The plaintiff, Vivien Barbara Hooper, claims damages for personal injury suffered on 8 August 2006 in a motor vehicle accident. The first defendant’s vehicle ran into the rear of the plaintiff’s stationary Land Cruiser whilst the plaintiff was waiting to turn right off the Bruce Highway. Liability is admitted. I am required to assess damages.

[2] Ms Hooper was born on 16 August 1952. She was a few days off her 54th birthday when injured and is now 59 years of age.

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

[4] The parties differ widely in their submissions. The defendant contended for an award of $54,550 and the plaintiff for an award of $809,383.55. Essentially the defendants’ argument is that the plaintiff’s claims for economic loss and the provision of care ought to be assessed at a fairly minimal level because of the impact that pre-existing degenerative change of the lumbar spine would have had upon her had the subject accident not occurred.

[5] I will assess each head of loss in turn.

General Damages

[6] The plaintiff was plainly a sincere person, honest in her presentation.  She was supported in her claims as to her disabilities by her daughter and the friends who were called.

[7] The defendants referred to the report of Dr Licina, an orthopaedic surgeon who saw the plaintiff in January 2007. The doctor commented that at the time of his examination “the assessment was clouded by marked abnormal illness behaviour[1]”. He reported that the plaintiff had each of the Waddell’s criteria. In a context of a significant psychiatric injury these comments are unsurprising and do not suggest any reason for doubting the plaintiff’s honesty.  The orthopaedic surgeons called expressly accepted that the symptoms reported were consistent with the diagnosed condition.[2]

[8] The plaintiff suffered an injury to her lumbar spine, facial scarring and psychological consequences as a result of the subject accident. The psychological problems have included a Post Traumatic Stress Disorder (“PTSD”) and a driving phobia.

[9] Following the accident the plaintiff was taken to the Gladstone hospital and admitted. She was discharged two days later on the 10th of August 2006.

[10] The plaintiff has continued to complain of severe lower back pain. The pain extends into her right leg as low as her ankle and into her left buttock and thigh. The pain is aggravated by driving, sitting, standing or working for extended periods. The plaintiff used a walking stick for approximately 12 months after the accident and, at the time of trial, was still using a walker for support. She takes a variety of medications to ease her pain, uses a TENS machine and heat packs and as well “Norspan” patches. Her sleep is disturbed. Her legs can “go”.

[11] The facial injury has healed but with some scarring of which she is conscious. She covers the scar with make-up. It was not obvious to me in the court room. The plaintiff has had extensive treatment in an effort to get over her psychological difficulties. Her problems have included mood swings and anxiety, particularly when driving.

[12] The parties are agreed that a maximum dominant ISV of ten is appropriate. I am not sure that they agreed on the injury that merited the attribution. The plaintiff referred me to Schedule 4 of the Regulations, items 21 (moderate mental disorder with an ISV range of 2 to 10), 22 (minor facial scaring with an ISV range of 0 to 5) and 93 (moderate thoracic or lumbar spine injury – soft tissue injury with an ISV range of 5 to 10).

[13] Two orthopaedic surgeons were called, Doctors Nave and FitzPatrick. The doctors conferred prior to trial and provided a joint report in which they agreed on a 5% impairment as being the appropriate level of impairment using the preferred AMA guidelines. Dr Flanagan, a consultant psychiatrist, has provided a psychiatric assessment. Using the PIRS assessment system he assessed a 5% impairment attributable to the psychiatric injuries. His opinion was not contested and hence I record my acceptance of the PIRS assessment as the legislation requires.[3] He concluded that altering medication or the provision of further psychological treatment would be unlikely to benefit the plaintiff.

[14] The difference between the parties has centred on the percentage uplift that ought to be applied. The defendant concedes that a 25% uplift is appropriate and the plaintiff seeks a 75% uplift.

[15] I have set out my understanding of the methodology that is required to be adopted under the CLA to assess damages where multiple injuries have been suffered in Allwood v Wilson & Another [2011] QSC 180.

[16] It can be debated as to whether it is the psychiatric or the orthopaedic injury that merits the maximum dominant ISV and a strong case can be made for either injury. There is a similar level of impairment assessed for each. Arguably the impairment rating has little to do with the consequent disability as each has had a very significant impact on the plaintiff. The impairment ratings are not the only relevant consideration in the assessment.[4] It needs steadily to be borne in mind that the ISV is intended to reflect “the level of adverse impact of the injury on the injured person”.[5]

[17] I am mindful too that the evidence is plain that there was pre-existing degeneration and in those circumstances “the court may have regard only to the extent to which the pre-existing condition has been made worse by the injury.”[6] The plaintiff was formerly an active asymptomatic woman enjoying her life and is reduced to a person in permanent pain needing a walker to ambulate. There is no evidence that she would have eventually ended up in her present pitiable state.

[18] Given the high levels of pain that the plaintiff reports and the consequent inability to ambulate with any degree of comfort I attribute an ISV of 10 to the lumbar injury. The driving phobia has made life very difficult for the plaintiff as it restricts her capacity to live independently. It has proved resistant to treatment. In my view a similar ISV applies to the psychiatric injury. The injuries to the lower back and face are of course separate and distinct injuries but it seems probable that the PTSD has impacted  on the plaintiff’s perception and ability to cope with her pain and in that sense there is an overlap with the psychiatric condition. I would assess an ISV of 2 for the minor facial scaring.

[19] In my view it is plain that an uplift is justified, as the defendants concede. Section 4(3)(b) of schedule 3 of the Regulations provides that the ISV for multiple injuries “should rarely be more than 25% higher than the maximum dominant ISV”. In my view, given that the symptoms of the driving phobia are quite separate and distinct from the symptoms of the lumbar spine injury and given that the injury scale values for the psychiatric and lumbar spine injuries are closely comparable there should be a 50% increase in the ISV assessment. I therefore assess an ISV of 15 and award damages of $18,000.[7]

Past Economic Loss

[20] Section 55 of the CLA is relevant and provides:

“When earnings can not be precisely calculated

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

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

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

[21] I will set out the factual basis on which I proceed, the assumptions that I have made, and my methodology.

[22] The plaintiff completed her apprenticeship as a hairdresser in 1971 and then maintained employment, largely as a hairdresser, until 1993. She had qualified as a senior hairdresser. As well she had performed some waitressing and bar work and ran a kitchen at the Kingaroy Hotel. In 1993 she ceased work to care for her children. One witness, Mrs Vivash, herself an experienced and competent hairdresser, said after perusing the plaintiff’s employment history that she was a “very good hairdresser”.

[23] It had been the plaintiff’s intention to return to employment once she was free of the demands of raising a family. She kept her hand in as a hairdresser performing haircuts for friends and family. Over the years she has undertaken various TAFE courses. In 1997 she undertook studies in computers and Certificates of Administration. In 2004 she undertook a STEPS course. By 2006 her son was about 17 years of age and her daughter 14 years. The plaintiff felt ready to return to the workforce and commenced to make enquiries about returning to work. She had applied for two hairdressing positions, had attended an interview and had been offered part time work 2 days per week at a salon in Gladstone just prior to the subject accident. The accident intervened before she could take up employment. The plaintiff had several motivations to take up work prior to the accident. They included that she was not needed at home by the children, her husband was often away working and so she saw work “as an opportunity to form social networks, earn some extra money and use [her] experience to help others”.[8]

[24] Since the accident there has been a further reason for the plaintiff to seek work. Her husband fell ill and died from cancer on 30 December 2008. The plaintiff was left in poor financial circumstances with one child still at boarding school in Brisbane. That child, her daughter Lucy, has gone on to study a Bachelor of Education at QUT. The plaintiff explained that her husband had little or no insurance and modest superannuation which was used to pay off debts. Assuming that she was in good health, the plaintiff had every reason to obtain and maintain employment after the accident.

[25] The evidence from the two hairdressers called, Ms Sandy Turner and Mrs Vivash, suggest strongly that the plaintiff had excellent prospects of obtaining employment as a hairdresser had she been fit to do so. Her qualifications and experience would be highly sought after. She would be useful to any business, not only in using her skills as a hairdresser for their clients but also to train apprentices and young hairdressers. Mrs Vivash said, and I accept, that her long absence from hairdressing would mean that she would not come with an established clientele and that would be a disadvantage and probably mean that she would not obtain fulltime employment from the outset. It is very likely that a hairdressing salon would first employ her part time to check on her performance and skills and give her time to build up a clientele before she was in a position to command full time work. Effectively the plaintiff had set out on that course prior to the accident.

[26] The defendants’ objection to any substantial award being allowed for past economic loss is that there is good reason to think that the plaintiff would not have been physically able to carry out that work. The defendants point to pre accident thyroid problems and a degenerative condition of the lumbar spine.

[27] The defendants did not contend that the plaintiff had any realistic residual earning capacity.

[28] I turn then to the principal issue between the parties.

[29] The orthopaedic surgeons were agreed that there was extensive pre-existing degeneration in the lumbar spine. The plaintiff said that in the years leading up to the accident she was asymptomatic. She was supported in that claim by the observations of her friends and family. There is no medical record of her complaining of symptoms in the lumbar spine for several years prior to the accident. There is a debate about the significance of entries made in the general practitioner’s notes in the period from 1999 to 2002. I will turn to that issue in a moment. But it seems clear that there is no evidence of any difficulties with the lumbar spine for at least four years prior to the subject accident. The defendants’ contention was that had the plaintiff attempted to return to the reasonably arduous work of a hairdresser, requiring as it does the adoption of postures that might place some strain on her back, that there ought to be a finding that she was highly unlikely to maintain employment for any significant period.

[30] The principles that guide me in my approach to such an argument were explained in Smith v Topp [2003] QCA 397 [38] and Hopkins v Workcover Qld [2004] QCA 155. Those cases in turn discuss the principles established in Watts v Rake (1960) 108 CLR 158, Purkess v Crittenden (1965) 144 CLR 164 at 168 and Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 642-643.

[31] Those cases stand for the proposition that there is an evidential burden on the defendant to show “with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to the nature and future development and progress, were likely to be”.[9] Where proof is necessarily unobtainable to achieve that level of precision then Malec requires that I assess the degree of probability that an event might occur and adjust damages to reflect that degree of probability.

[32] As I have mentioned, the defendants emphasised the history of problems of back pain recorded several years before the subject accident. As well there are references in those records to numbness in the right leg. The clearest entry is that of November 19 2001 when Dr Dolan, the plaintiff’s usual general practitioner, recorded “back pain lower back – difficulty bending down and getting up”. A TENS machine was apparently prescribed. Thereafter there are several entries referring to pain in the right renal area. Indeed the very next entry, which however is some months later (April 12th 2002), speaks of “pain in the R renal area again”. There was a symptom recorded of the plaintiff losing power in her legs at that time. The plaintiff associated the pain with a kidney problem that she had previously had diagnosed and in respect of which she had had surgery in 1999. The precise cause of the pain was never established. It may have been back pain consequent upon an aggravation of the underlying degenerative condition, as the defendants contend, but the evidence, it seemed to me, established the possibility not the probability of that. Whatever be the explanation of the pain, the significant point is that the complaint disappears from the medical record after 2002 and several witnesses spoke of being unaware of any complaint of back pain by the plaintiff, or restriction from any apparent back problem, in the years leading up to the subject accident.

[33] With that background, I turn then to the opinions of the orthopaedic surgeons.

[34] In her initial report, Dr FitzPatrick had concluded that the extensive pre-existing degenerative change “would make it difficult for [Ms Hooper] to stand for a prolonged period of time”.[10] Dr Fitzpatrick thought that the motor vehicle accident had not significantly altered this. In her later report Dr Fitzpatrick said that the degenerative change “would make it difficult to undertake work that would involve repetitive bending or heavy lifting or even perhaps standing for prolonged periods of time”[11]. Again she expressed the view that the motor vehicle accident had not significantly altered this condition.

[35] Dr Nave did not address the hypothetical question of Ms Hooper’s capacity to engage in hairdressing work had the accident not occurred in his initial report. In the joint report prepared by the two surgeons they concluded:   “upon discussion, Dr Nave and Dr FitzPatrick agreed that the pre-existing degenerative change could easily have impacted adversely on her ability to work as a hairdresser but the injury itself did not have a significant effect on sedentary employment”[12].

[36] In the course of her evidence, Dr FitzPatrick maintained her view that by reason of the extent of the degeneration present and given the physical demands placed on the hairdresser, and given Ms Hooper’s age, that whilst “she may have coped” Dr FitzPatrick thought that it would have been “difficult for her”[13]. Dr FitzPatick conceded that flexibility in her hours and in the spacing of clients would assist.[14] She accepted too that if the plaintiff was engaged more in a teaching role then that would “increase her likelihood of being able to return to the workforce”[15]

[37] Dr Nave’s evidence was to much the same effect in my view. He accepted that with the radiological demonstration of degeneration that it would be “quite likely” that the plaintiff would find it “very difficult” to stand for 8 to 10 hours a day at hairdressing.[16] He accepted that the degeneration “could have been a problem” and it may have been that she could only manage part time.[17] He perhaps was more tentative in his views, accepting that Ms Hooper “may have had some difficulty of getting back to work in the absence of the accident” and “it’s certainly possible it could have been” a difficulty.[18] As I understood Dr Nave’s view, he was not greatly influenced by the history set out in the general practitioner’s notes.

[38] In summary, there was a real prospect that the plaintiff’s pre-existing degeneration would have prevented her from working full time as a hairdresser. She may have been able to work part time depending upon the level of symptoms experienced but that cannot be known. A teaching role would probably have been within her abilities irrespective of the onset of symptoms. She was well motivated and asymptomatic immediately prior to the accident. All the evidence suggests that the plaintiff was “not one for sitting around idle” as one witness put it.[19]

[39] A significant matter that should not be overlooked is that the plaintiff had two strings to her bow. She could work both as a senior hairdresser and alternatively as a teacher in a hairdressing salon. Whilst the degenerative condition may have come against her as a hairdresser, and probably would have, it was of much less significance should she have pursued a career as a teacher. Because of this I think it appropriate that I moderate the discounting that ought to apply to her claims.

[40] Given her asymptomatic condition immediately prior to the accident and given the job offer that she had it seems likely that the plaintiff would have commenced part time employment at around the time of the accident and sought to work her way into fulltime employment as the years passed. Given the illness of her husband that commenced to be symptomatic in 2008 it is probable that the plaintiff would have had an economic imperative to maintain fulltime employment.

[41] I do not overlook the difficulties that Mrs Vivash has spoken of in coming back to hairdressing after several years of absence. But given the plaintiff’s excellent credentials and long experience it can be confidently predicted that she would have mastered any changes fairly readily. Plainly Mrs Vivash did so successfully. Ms Turner’s evidence establishes that there was a substantial demand for senior hairdressers in Gladstone, where the plaintiff lived, at the time of the subject accident and since.

[42] The evidence of Ms Turner was that a senior hairdresser could earn $1050.00 per week gross.

[43] I assess the past economic loss at $115,000.[20] I have assumed initial employment at two days per week for about 6 months, then three days per week for about 18 months and then full time work from early 2009. I have assumed four months out of the workforce whilst the plaintiff cared for her husband whilst he was seriously ill, as she in fact did and as I gather would have been her wish whether working or not. I have discounted the figure arrived at by about 35% to allow for contingencies and the expenses involved in maintaining employment.[21] The significant contingency is the possible onset of significant back pain.

[44] A secondary issue that the defendants agitated related to the plaintiffs thyroid problems. She has been diagnosed as having “Reidels Thyroiditis”. The plaintiff was commenced on prednisone in April 2003 and has been under the care of a specialist ever since. The plaintiff’s symptoms have flared from time to time. The defendants have summarised the entries in the medical records relating to her thyroid problems in a document that I received after submissions were made, which I have marked Exhibit 11. There is no evidence that the symptoms that the plaintiff experiences would have impacted on any employment. Nonetheless the plaintiff appears to suffer from pain and occasionally nausea and I have endeavoured to bring that into account in setting the appropriate discounts.

Future Economic Loss

[45] The considerations relevant to the future claim are much the same as for the past. A greater discount is justified because of the greater chance that, with time and increasing age, the degenerative condition could become significantly symptomatic.

[46] The defendants’ submission was that I should allow only $25,000 for both the past and future components of economic loss. I reject the defendants’ approach. While there was certainly a reasonable chance that the plaintiff would suffer symptoms of back pain once she took up hairdressing, that prospect was not certain, and if it occurred would not have necessarily precluded her from employment.

[47] The plaintiff’s submission was that I should allow a loss of $700 per week for 6 years and discount that by 20% to allow for contingencies and then allow a further sum of $350 per week for a further 5 years, again discounted by 20%. This would take the plaintiff through to age 70. No evidence was led of any person working as a hairdresser through to age 70. Ms Turner had only one employee in her forties and none in their fifties working in her salon. She agreed that generally speaking the predominant weighting was towards younger people being employed in the hairdressing profession.

[48] It is relevant that the plaintiff has no savings to fall back on and more than likely would have continued to work for as long as she was physically able. Nonetheless hairdressing is a physically arduous profession and she was particularly vulnerable to the development of symptoms. It seems to me likely that she would eventually have reduced her hours to a part time level and more probable than not that she would have restricted herself to teaching.

[49] I allow $130,000 for future economic loss. In arriving at that figure I’ve adopted a net weekly wage of $859, which reflects my calculation of the net after tax income adopting a gross weekly wage of $1050, applied that over 6 years (multiplier 271) and discounted by 45%. It is possible that the plaintiff may have worked for a longer period[22] – she probably would have had some economic imperative to do so - but that is balanced by the fact that she may not have been as fit as I have assumed for as long as I have assumed.

Loss of Superannuation benefits

[50] The plaintiff contended, and it was not opposed, that s 56 of the CLA requires the loss of superannuation benefits, both past and future, to be assessed at 9% of the amounts that I have allowed for past and future economic loss.

Past domestic service

[51] Damages can be awarded for the provision of gratuitous services to an injured person pursuant to the principles identified in Griffiths v Kerkemeyer[23] and Van Gervan v Fenton.[24] It is necessary for the plaintiff to satisfy the preconditions laid down in s 59 of the CLA before damages can be awarded. Section 59 provides:

"Damages for gratuitous services provided to an injured person

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

(a) the services are necessary; and

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

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

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

(ii) for at least 6 months.

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

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

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

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

[52] The defendants contend that the plaintiff failed to meet any of the criteria laid down in ss 59(1).

[53] I should say at the outset that the various witnesses who were called to support this aspect of the claim were patently honest. That they had rendered assistance to the plaintiff from time to time cannot be doubted. However it is true, as the defendants contend, that the estimate of the time spent in assisting the plaintiff needs to be scrutinized carefully. No contemporaneous record was kept and witnesses were asked to recall events long after they had taken place. As the Court of Appeal observed in Shaw v Menzies & Anor[25] a plaintiff who neglects to keep a weekly diary recording tasks and times taken by friends and family members, a practise which is often urged by solicitors acting for such plaintiffs, can run into difficulties, no matter how deserving.[26]

[54] That there are difficulties here is manifest from the plaintiff’s own evidence. When challenged that one of her estimates in the schedule was a “guess” the plaintiff responded: “It is a guess. I can’t say whether it’s more or less. I really can’t remember coz there was so much turmoil – in everything – since that accident that I can’t recollect dates, hours, to an exact time I’m afraid.”[27] And, unlike the situation in Shaw, no evidence was lead from an occupational therapist. I will attempt then the necessary scrutiny.

[55] The plaintiff’s claims are detailed in a schedule to her quantum statement.[28]

[56] There are the usual difficulties in attempting to determine what was done to assist the plaintiff for an accident created need and what was done to assist other family members or indeed what was done in pursuit of their own interests.[29] Further I have the strong impression that many things were done for the plaintiff out of love and affection for her that she could have reasonably coped with. As Mr O'Driscoll, counsel for the defendants, submitted these are matters for the plaintiff to disentangle.

[57] An example of the problems is in a claim made for 80 hours of assistance through a six month period when the plaintiff’s husband was diagnosed with cancer and she was attempting to provide care for him. The schedule refers to a friend, Ms Dorothy Hughes, making 8 trips to assist the plaintiff with washing, cleaning, cooking and shopping. Whilst the estimate of 10 hours for each visit might be a reasonable estimate, it is far from clear how the time was spent. The impression that I had from Ms Hughes was that her significant attendance was in the 5 to 6 days prior to the plaintiff’s husband’s death and her assistance was more directed to assisting the plaintiff with her husband[30]. Ms Hughes spoke of her husband coming out to the plaintiff’s property but this was to assist with jobs where the plaintiff “could not mechanically fix” things like lawn mowers and tractors. I take it Ms Hughes is telling me that the plaintiff lacked the mechanical knowledge or expertise. Thus it was not the accident caused injuries that necessitated Mr Hughes’ assistance.

[58] That is not to say that the plaintiff did not need some assistance with domestic chores. I can readily accept that the plaintiff would have some difficulties with heavier aspects of household cleaning and hanging out heavier items after washing. Dr Nave recorded the limitations that Ms Hopper reported in January 2008 as follows:  “In relation to housework, she said this is limited and she can only do about 2 hours at the most at a time. She can do cooking in stages. She shops with help in relation to lifting. Vacuum cleaning causes severe pain. Cleaning of the showers also aggravates her pain and she does hanging the washing in stages.”[31] Dr FitzPatrick recorded in July of 2008 that despite often living alone because Mr Hooper was away at work, nonetheless Ms Hooper was “able to wash, dress and feed herself…when her family comes home she struggles to lift the heavy washing baskets.”[32] Thus the domestic care needed relates principally to the provision of assistance with the heavier domestic cleaning tasks and vacuuming. On average I will allow one hour per week for the provision of such services, acknowledging that in the first months after the accident, the plaintiff’s need was greater.

[59] The plaintiff has the support of the orthopaedic surgeons in this regard. In their joint report the doctors said:  “with regard to domestic assistance with activities of daily living, Dr Nave felt that domestic assistance in the early stages would have been appropriate and Dr FitzPatrick would agree with this. In Dr Fitzpatrick’s opinion, this assistance would have needed to have continued for a period of 4 weeks, for 4 hours per week. The assistance would primarily be directed towards heavier duties of cleaning. Dr Nave, however, felt that on the basis of the stated pain levels, domestic assistance would have been required for much longer. He opined that the length of time could not be scientifically calculated and an occupation therapist’s input would be relevant.[33]

[60] Thus Dr FitzPatrick would not support a need for longer term domestic assistance for tasks such as cleaning, cooking, washing or gardening. Dr Nave considered that the stated pain levels might well require further assistance. In my view it is difficult to see how the plaintiff could manage the heavier tasks if one accepts that she is in significant pain, as I do. 

[61] For these domestic tasks I will allow 4 hours per week for the first 4 weeks following the accident, thereafter reducing gradually down to 1 hour per week. I readily accept that the various witnesses have assisted the plaintiff to a much greater degree than that but in my view this has not been related to an accident created need as opposed to their wish to provide assistance and comfort for the plaintiff out of affection for her.

[62] The plaintiff is on stronger ground in relation to her claim for a need for assistance with driving. There are two problems. One is that she suffers back pain when driving and this can become debilitating. She told Dr Nave that after driving for three hours she would be “somewhat bent over”[34]. She told Dr FitzPatrick that after four hours of driving she “is crippled by pain”[35].

[63] The second problem is psychological. She has a driving phobia. She has received extensive treatment, particularly from Ms Elizabeth Norris, a Psychologist, but nonetheless is left with a persisting problem. Given her statements to Dr Flanagan and the observations of Ms Hughes, it would seem that the plaintiff is easily panicked, particularly in traffic.

[64] Given her physical and psychiatric problems, it is entirely reasonable that the plaintiff has been provided with assistance with driving. Mr O'Driscoll submitted strongly that I should not make that finding because the plaintiff had demonstrated a capacity to drive. It is certainly true that the plaintiff has driven and on occasions for hours at a time and will no doubt do so in the future. However, it seems to me it all comes down to questions of reasonable necessity. I am not prepared to find that the plaintiff’s need for domestic assistance for tasks in and about the home is “necessary” within the meaning of the legislation, beyond the finding that I have already made. That is so because it seems to me the plaintiff could attend to these tasks albeit that she would do so more slowly than she would have pre accident and even though they might cause her some pain. The difficulties that the plaintiff has with driving it seems to me are of a different order. Panic attacks when driving could potentially lead to serious injury and death. Driving until one is crippled with pain is not, on any view, reasonable.

[65] The only real issue, to my mind, is whether the estimates made of the time provided are soundly based.

[66] Ms Hughes, the plaintiff’s friend, was a mature woman not given, I thought, to over statement. When questioned about the driving assistance that she had rendered she indicated that she had driven the vehicle for the plaintiff four to eight times a month for purposes such as shopping and medical treatment. She was dealing with the period between the accident and the move to Captain Creek which occurred in October 2007 – a period of about 14 months. In the schedule VBH2 to Exhibit 2 the plaintiff estimated that Ms Hughes had assisted her on approximately four occasions each month and averaged the assistance at 5 hours per week. Obviously the duration of the journey would depend upon the destination. The estimate of four times per month would seem to be at the bottom end of the range that Ms Hughes thought appropriate. As a result I am satisfied that that is a conservative estimate.

[67] There was a further reason for Ms Hughes assisting the plaintiff and that was to assist her with the lifting of heavy groceries.  That too was an accident created need. There was no evidence that, absent the accident, the plaintiff would have required such assistance. Indeed, the defendant relied on Dr FitzPatrick who would not have accepted such a need even in the plaintiff’s injured state.

[68] The time taken by Ms Hughes could vary from four hours to seven hours depending on the journey and the task.

[69] In the circumstance I am satisfied that the estimate set out in schedule VBH2 for the assistance rendered by Ms Hughes in the period from 8 August 2006 to October 2007 of an average of five hours per week over 59 weeks is made out.

[70] I note that combined with the assistance that I consider the plaintiff needed for domestic tasks the plaintiff has satisfied the threshold laid down in Section 59(1)(c), namely that the services be provided for at least 6 hours per week and for at least 6 months.  That being made out it is irrelevant that the care needed might drop below that level at other times.[36]

[71] A further claim is made for driving assistance after the move to Captain Creek for the period from October 2007 to June 2008. The claim here is restricted to the trips that the ladies undertook to Bundaberg; a total of 60 hours is claimed. It is apparent from the evidence that occasionally Ms Hughes had an interest in going to Bundaberg as well but I do not see that as detracting from the claim. The plaintiff would have needed to have got assistance from somebody to undertake her trips. She travelled to Bundaberg principally for shopping because items are cheaper there than at Agnes Waters and she could buy in bulk. As I have mentioned, the plaintiff, as well, required assistance with the lifting of heavier items. The claim seems to me to be reasonable.

[72] A claim is then made for assistance provided by Ms Hughes between December 2008 and the present. This claim relates to emotional support, as well as assistance with domestic tasks and driving. I have already made the allowance that I am prepared to make in relation to domestic assistance. The balance it seems to me relates to the supportive relationship between the two friends and is not allowable under this head of loss.

[73] Similarly in relation to the claims made for assistance provided by Mr Chris Hooper and Ms Lucy Hooper to the extent they relate to domestic tasks. I have made what allowance I am prepared to in relation to domestic assistance.

[74] However in relation to Ms Lucy Hooper and claims made with respect to the assistance rendered by Mr Gary Rampton and Ms Leslie Campbell there needs to be some allowance for assistance with yard maintenance, gardening and assistance with heavy groceries. With regard to some of the work performed by Mr Rampton, such as chain-sawing and lifting cement, I have no evidence that the plaintiff was capable of doing these tasks before the subject accident and, in the absence of evidence, I am reluctant to make a finding that, had the accident not occurred, she would be likely to have undertaken such tasks. Ms Hooper lives on a 40 acre property and keeps about three quarters of an acre under close maintenance around her home. I propose allowing one hour per week for gardening and yard maintenance.

[75] Ms Leslie Campbell provides assistance in the form of driving and grocery shopping. Her statement suggests that she spends about one and a half hours each week in those tasks assisting the plaintiff and on occasions drives her to Gladstone or Bundaberg, a trip taking between 5 and 6 hours. Ms Hughes has also assisted with driving from time to time although her capacity to provide assistance fell away when she suffered from cancer herself. 

[76] Two matters complicate the assessment. One is the absence of any contemporaneous record so that all the evidence relating to times is, at best, an approximation. Secondly, the plaintiff has had extensive treatment and it would seem that her capacity to drive, or her ability to tolerate her symptoms, has improved over time. Doing the best I can I allow two hours per week for driving and assistance with grocery shopping in the period from October 2007 to the present.

[77] In summary I will allow:

(a) Four hours of domestic assistance for four weeks;

(b) Two hours of domestic assistance for a further four weeks;

(c) Thereafter one hour of domestic assistance for 265 weeks through to the present;

(d) One hour of assistance with gardening and yard maintenance from January 2008 to the present – taken as 199 weeks;

(e) Five hours of assistance per week with driving and grocery shopping in the period from August 2006 to October 2007 -59 weeks;

(f) Two hours of assistance with driving and grocery shopping for the period from October 2007 to the present - 156 weeks.

[78] There is a debate as to the hourly rate that should be allowed. The plaintiff contends for a rate of $27.50 per hour for the past and $40.00 per hour for the future. The defendants contend for a rate of $18.00 per hour.

[79] The defendants base their submission on the actual rate charged to the plaintiff by cleaners who worked for her in Benaraby between October 2006 and July 2007. The difficulty with the defendants’ submission is that the person who was providing the cleaning services ceased to provide them because of her own difficulties and the plaintiff was unable to find anyone to replace her. The fact that one person was prepared to provide cleaning services at that rate does not establish a market rate. It is some indication but hardly conclusive, particularly given the fact that the plaintiff could not replace her. As well, the plaintiff no longer lives in Benaraby and has not done so since October 2007 and so, even if the cleaning rates actually charged did form a proper basis for an assessment of market rates, this evidence would not justify applying them past that date.

[80] The plaintiff has provided evidence from a property manager with PRD Nationwide Realty as to the rates they are charged for cleaning, house and yard maintenance and lawns. The plaintiff’s submissions are based on those rates.[37] That seems to me to be the best evidence that I have as to market rates which, as the authorities show, is what should guide me in making the appropriate assessment.

[81] The PRD Nationwide figures to not deal with driving. Ozcare Gladstone Community Carers[38] advised that the normal hourly rate for travel time is $55 per hour. The adoption of $27.50 per hour would seem to be appropriately conservative.

[82] Adopting the hours that I have previously set out, I allow $30,000 for past gratuitous assistance.

Future Gratuitous assistance

[83] According to the orthopaedic and psychiatric evidence the plaintiff’s present condition is more or less stable. Various psychiatric medications and treatments could be attempted but Dr Flanagan thought that they would be unlikely to succeed. There is no reason to think that the plaintiff’s physical capacity is likely to change significantly.

[84] For reasons already explained I will allow four hours per week assistance - one hour for domestic assistance, one hour for gardening and yard maintenance and two hours for driving and grocery shopping.

[85] The plaintiff has a life expectancy of nearly 30 years. There needs to be discounting for the prospect that the plaintiff may have had symptoms from her degenerative back condition irrespective of the accident that would have necessitated some assistance in any case. She may have become disabled through age and as well her thyroid problems may come against her or cause her to need assistance from time to time. There is the further prospect that, as she ages, the plaintiff may not wish to live on a 40 acre block, nor live in a community remote from the larger provincial towns. Her need for driving assistance would then be reduced. In my judgement there is a significant chance that these matters could have come to pass.

[86] Doing the best I can I allow $85,000.[39]

Future treatment costs

[87] The plaintiff sought substantial amounts for future pharmaceutical expenses, psychiatric treatment costs and pain management treatment costs. I will not allow future treatment costs that are unlikely to have benefit. It is a matter for the plaintiff whether she wishes to pursue these possibilities but I cannot see how they should reasonably sound in damages. If I was to allow for pain management expenses I would expect there to be a corresponding reduction in the need for pharmaceuticals.

[88] Apart from those points, the defendants’ main complaint about the claim was that the need for pharmaceutical expenses would probably have arisen in any case because of the degenerative back condition. There should be an allowance for that consideration.

[89] The plaintiff’s claim in respect of future treatment costs is set out in schedule VBH3 to Exhibit 2. The costs of medication, assuming no health care card, are $36.13 per week. That assumes that all existing treatments will continue. As best I can see there is no evidence on the point. It assumes too that the degenerative condition would not have become symptomatic and required some level of treatment had the accident not occurred. Given that I assume that the plaintiff would have pursued employment then it was more probable than not that she would have had some symptoms of pain. There is a further assumption of a need to attend a general medical practice each fortnight at an average cost of $30 per week. A significant reason for that attendance is the need for the Norspan patches. They have not been consistently successful and there is no warrant to assume that the plaintiff will persevere with them. There is a further assumption that the plaintiff will continue to live 100 kilometres away from the nearest general practitioner’s practice. A claim is made for $55 per week for travel costs. I am not prepared to assume that each of those assumptions will be valid for the balance of the plaintiff’s life.

[90] There is no accurate way of measuring the likely future treatment costs. To allow for the various contingencies I will adopt the plaintiffs claimed costs but discount by 50% and allow $70,000.

Special Damages

[91] It was not in dispute that the plaintiff had expended $22,896.14 (see schedule VBH1 to Exhibit 2). The defendants submitted that I should allow only $10,000 inclusive of interest.

[92] There are two reasons for the difference. First, the defendant contends that there must be significant discounting for the prospect that the plaintiff may have needed to expend significant monies on treatment costs had the accident not occurred. There is no evidence to support a substantial discounting. I accept that the plaintiff will more likely than not develop symptoms had the subject accident not intervened, particularly if the plaintiff had pursued a hairdressing career as I have assumed but it seems to me highly unlikely that she would have reached anything like her present state. Some modest discounting is called for.

[93] Secondly, I was informed that one item in particular was contested and that was the cost of a therapeutic spa at $9,455. Ms Hooper says that it is of benefit to her. There is no direct medical evidence to support its use. The submission was made that the spa “acts like a physiotherapist” and causes muscles to relax and hence reduces pain and reduces a need for narcotic analgesics and the like. The evidence does not support that submission.

[94] There is hearsay evidence contained in the medical reports that the spa was recommended by a specialist but no direct evidence of that. For so significant an expense it seems to me to be reasonable to expect the plaintiff to provide adequate proof that the spa was reasonably required and likely to be beneficial in some permanent sense. What evidence there is suggests that there was no drop off in a need for any medication following the acquisition of the spa, if anything to the contrary. I will allow $12,000 under this head of loss.

Summary

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

Orders

[96] There will be judgment for the plaintiff in the sum of $501,000.14

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