Winters v Bishop[2014] QSC 312

SUPREME COURT OF QUEENSLAND

BACKGROUND

1. The plaintiff was born on 14 August 1980 and is now 34 years of age. She claims damages against the first and second defendants for personal injuries arising out of a motor vehicle accident on 31 October 2007. The plaintiff was struck and knocked to the ground by a motor vehicle, while she was walking across a pedestrian crossing at the Brisbane Airport where she worked.  The first defendant was the driver of the vehicle.  The second defendant is the third party insurer of the vehicle.

2. Liability is admitted, leaving quantum as the sole area of dispute. While the nature of the head and elbow injuries sustained by the plaintiff was not in issue, there was dispute as to the extent of the plaintiff’s psychiatric injury; whether the plaintiff suffered a personality change due to her injuries. Also in dispute were matters going to the quantification of damages, in particular, whether the plaintiff’s resignation from the Brisbane Airport Corporation (BAC) was causally connected to her injuries and how general damages and economic loss should be quantified.

EVIDENCE

The plaintiff’s employment history prior to the accident

3. The plaintiff was born in Cooma, New South Wales.  She performed very well at school and was in the top 5%.  She completed a Bachelor of Town Planning from the University of New South Wales in 2003.  As part of her town planning course, she did work experience with the South Sydney Council in the development assessment department and the strategic planning department.  She continued to work in the latter department after the work experience period was completed.  During her thesis year she worked assisting senior planners and managers at Parsons Brinckerhoff, a multi-disciplinary company engaged in private consulting work. 

4. Upon graduation, she worked in Sydney for some months for Jackson Teece, an architecture company doing urban design work.  In about May 2004, she worked as a construction approvals coordinator with Sydney Airport Corporation Limited (SACL).  After working there for about two years, she started to seek a more diverse role.  She did not think that there was much opportunity for that at SACL.  She was prepared to move interstate if necessary to obtain such a position. 

5. The plaintiff was successful in applying for a position as an Infrastructure Planner at BAC. That position entailed more diverse work than her previous role at SACL. In addition to development work, it involved infrastructure work and precinct planning. She commenced work at BAC in May 2006, reporting to Mark Willey, who was the head of Airport Planning.

6. The plaintiff’s evidence was that, in about mid 2007, after she had been at BAC for about a year, she was promoted to a position with the title Landside Planning Manager. She said that the change in her title was a recognition of the fact that the work she was doing was that of a manager. She said that, as part of the discussion of what the role of Landside Planning Manager would entail, it was indicated that there was to be a performance review in six months (at the end of 2007) when her pay would be renegotiated. No specific figures were mentioned, but there was discussion about the need to raise her salary.

7. The plaintiff’s evidence was that as Landside Planning Manager, she was responsible for the development of the landside (as opposed to the airside) precincts of the airport, including the infrastructure, road systems, layout, land use and building designs. She was involved in negotiating with the Brisbane City Council where the BAC’s interests were affected (such as where CBD developments impacted on flight paths) and in relation to various neighbourhood plans. She also sat on various committees, including the Infrastructure Committee of the Australia TradeCoast Committee. Her work concerned major development plans requiring Federal Government approval and liaising with BAC’s property department (for example in relation to the development of plans concerning the Novotel Hotel and the airport’s central parking plan). In addition to liaising with the Federal Government, her role required her to undertake community consultation and, once approval was obtained, to work with the property department to ensure that the design accorded with the approval. The plaintiff’s evidence was that Mr Willey allowed her a large degree of autonomy in her role.

8. The plaintiff estimated that about 40 to 50% of her work involved dealing with external consultants, such as Connell Wagner, later known as Aurecom. One of the people she worked with at Aurecom was Trinity Graham, who was a technical director in the Water Services Department. Ms Graham gave evidence that she had regular contact with the plaintiff between 2006 and 2010. The plaintiff would outline the work that was required to be done by Aurecom and would manage the work to be undertaken. In that regard, the plaintiff was the key person involved in liaising with the various departments of BAC to facilitate the work being carried out. Ms Graham’s evidence was that the plaintiff’s communication skills were very good, clear and direct.  The plaintiff had the capacity to deal with people and resolve conflict.  Ms Graham sat in meetings with the plaintiff on a number of occasions where differing opinions were expressed and observed that the plaintiff interacted well in those meetings and was on good terms with everyone.  She considered that the plaintiff was good at achieving outcomes and in working under deadlines.

Personal relationships pre-accident

9. The plaintiff met Robert Winters at the University of New South Wales, where they were both studying the same degree.  They married in March 2006.

10. The plaintiff described her relationship with Mr Winters as a good one that was “pretty equal”. Both the plaintiff and Mr Winters gave evidence that they were career focused and regarded their careers as relatively equal. They both considered the BAC job offer was “a great opportunity” for the plaintiff and her career development and something they “couldn’t ignore”. Mr Winters was willing for both of them to move to Brisbane so that the plaintiff could take up the BAC job.

11. When the plaintiff commenced at BAC, Mr Winters was still working with Landcom, a New South Wales State developer.  He continued there until about August 2006, when he was able to obtain a job in Brisbane as a project manager with APP Corporation (where he is presently a senior project manager).  The plaintiff and Mr Winters eventually bought a house in Bardon in August 2007.

12. Mr Winters described the plaintiff as a sociable person who made friends easily. They had an active social life with a good circle of friends. They had talked about having children in the future, but nothing was set in stone. At that time, career was at the forefront of their minds. Mr Winters said he considered that he and the plaintiff had a great relationship and a great life, with a “huge disposable income”, which allowed them to travel regularly. He saw his and the plaintiff’s careers as being much more advanced than their peers’ from university. The happy relationship between the plaintiff and Mr Winters was confirmed by the evidence given by the plaintiff’s family.

Hospitalisation and period prior to return to work

13. The plaintiff was admitted to the Intensive Care Unit of the Royal Brisbane Hospital on 31 October 2007 and moved to the ward on 2 November 2007. On 9 November 2007, she was admitted to the Brain Injury Rehabilitation Unit (BIRU) at the Princess Alexandra Hospital.  The Princess Alexandra Hospital Discharge Summary recorded that the plaintiff had a Glasgow Coma Score of 7 at the time of the accident, and 9 on arrival at hospital. She suffered a seizure and had post-traumatic amnesia for 12 days, indicating a severe traumatic brain injury, which was confirmed by a CT scan showing significant damage to the left fronto‑temporal and parietal regions of the brain.

14. In hospital, the plaintiff had no insight into the extent of her injuries. Her first memory after the accident was of trying to escape from the Royal Brisbane Hospital.  Almost the first thing she told Mr Winters was that she wanted a divorce; something that had never happened before.  The plaintiff believed she should not be in hospital and was angry with Mr Winters for not acting to release her from hospital.  She erroneously thought that was in his control.  There was in fact a minimum stay required in the BIRU of four weeks.  Mr Winters endeavoured on numerous occasions to explain this to the plaintiff.  There was an occasion in that period when he did agree to take the plaintiff home for an overnight stay, during which she fled into the street and was involved in an altercation with Mr Winters.  The police were called to assist in returning the plaintiff to the BIRU.  Mr Winters said he had never witnessed such behaviour from the plaintiff previously.  She had never been aggressive to him before the accident.

15. Mr Winters joined the Brain Injury Association to learn more about the difficulties associated with the plaintiff’s condition and behavioural issues.  The plaintiff’s belief that Mr Winters was not “on her side” coloured the plaintiff’s attitude towards him.  She removed Mr Winters as an authorised visitor.  She also removed him as a friend from her Facebook account and altered her relationship status to indicate that they were no longer together. 

16. The plaintiff was discharged from the BIRU on 6 December 2007.  The discharge report noted that the plaintiff appeared to have “reduced insight into her frustration management difficulties”.  Sue Campbell (occupational therapist) and Dr O'Dowd (clinical neuropsychologist) were assigned to assist with rehabilitation.  Ms Campbell’s report of 10 January 2008 noted that the plaintiff’s employer was keen for her to return to the workplace, and that in her absence no-one had taken on her duties, resulting in a backlog of work.  She noted that the nature of the plaintiff’s work was complex and required liaison with a number of stakeholders.  Ms Campbell emphasised the need for the plaintiff to resume work duties gradually, and recommended there be strategies to review the work completed and close monitoring of the plaintiff’s return to work.

17. The plaintiff’s evidence was that during this period she was extremely tired all the time, and had short-term memory difficulties and time concept problems which affected her organisation. She felt “angry and erratic and out of control”. She had only a very minor sense of smell, which disappeared completely after a time, affecting her sense of taste. She was unable to do any household chores. She was not allowed to drive. If she needed to get somewhere, she would take a taxi or Mr Winters would take her. 

18. Mr Winters described the period from the plaintiff’s discharge from the BIRU until her return to work on 14 January 2008 on a graduated basis as a very difficult time. It was made more difficult because they were also moving house at the time. Mr Winters described the actual transfer of house to Bardon as “just one of those terrible days you want to forget”.  The plaintiff tried but was not able to assist in any real way with any of the moving.  The relationship became increasingly problematic, with the plaintiff being aggressive towards Mr Winters; there were instances of her locking him out of the house.  There was also a dispute as to where they would spend Christmas 2007.  They were supposed to spend Christmas with his family, but the plaintiff wished to go to her family at Orange.  They spent it separately in part, with the plaintiff turning violent towards Mr Winters on their return home journey.  Mr Winters’ evidence was that during that time the plaintiff’s behaviour was erratic, aggressive and violent, with discretionary spending out of control.

The period following the plaintiff’s return to work at BAC in 2008 and 2009

19. On 14 January 2008, the plaintiff returned to BAC on a graduated return to work program. It was apparent that she still lacked insight into the extent of her problems. At the time, she thought that she was “perfectly capable”. However, during the first couple of months, the plaintiff struggled. She said that she felt like everyone was “constantly judging and watching” her. She was “constantly tired and exhausted”. She also had trouble remembering to do things. When she got to a certain level of fatigue, she had difficulty having coherent conversations. She said that her reading was generally fine, but she was not sure whether she was interpreting what she read appropriately or not. Writing would take her longer because it took longer to construct a sentence and she would forget words. To help with her memory, she kept detailed lists. She was very concerned that she was going to make a terrible mistake. In hindsight, she thought that her behaviour towards other employees was “pretty horrible”. She described feeling that her “filter” as to what was appropriate was “broken”. She could be very direct, blunt and rude.

20. It is evident from Ms Campbell’s second progress report that by March 2008 there were concerns at the plaintiff’s workplace about the plaintiff’s behaviour. It was reported that the plaintiff’s behaviour was inflexible and rigid and that the plaintiff was having difficulty accepting feedback constructively and not as a criticism. Mr Willey was reported as having major concerns, including as to the plaintiff’s tendency to be preoccupied by historical issues, her behaviour at the workplace and that, when she was tired or under pressure, she had difficulty communicating her position clearly.

21. Raelene Corner was hired to work at BAC. When the plaintiff first met Ms Corner, she took offence at Ms Corner’s reference to the accident and reacted negatively. The relationship became a troubled one. The plaintiff said that would not have occurred previously as she would have found a way to get on with Ms Corner.

22. The plaintiff returned to full-time hours by early October 2008 and the official recovery phase with WorkCover ended on 31 October 2008. The plaintiff felt that, unlike the situation before the accident, Mr Willey was very judgmental of her and was constantly micromanaging her. She thought he had no trust or respect for her and that he was pushing her into aviation, which was not her area.

23. The plaintiff said that by 2009 she had started to return to the type of work she had been doing previously, but she was not given the same degree of control. Her evidence was that she still understood the technical work, but she would miss things or not know how to explain it as well anymore. Her short-term memory had improved, but it was “still not great”. There were ongoing interpersonal issues between the plaintiff and Ms Corner, resulting in a caution being given to the plaintiff on 28 October 2009.  As to her relationship with Mr Willey, the plaintiff gave evidence as follows:

“… well, Mark had, by that time, had washed his hands of me and so I think I was – Terry was overseeing me by that stage.

What’s Terry’s last name?‑‑‑Rossitto.

Did you ever need to have meetings with people?‑‑‑I know that Mark and my relationship had deteriorated so badly that he and I had meetings with Kirsty, who was the OH&S person.  She was sort of the go-between because of my accident, and things like that, at that stage.”

24. The plaintiff said that eventually her relationship with Ms Corner improved, but her relationship with Mr Willey never improved, and the performance review that had been discussed in July 2007 never occurred.

Relationship with Mr Winters during 2008 and 2009

25. Mr Winters’ evidence was that, although the plaintiff returned to work in January 2008, she did not seem to him to be much better. There were continuing episodes of anger and aggression over trivial matters.

26. In June 2008, the plaintiff underwent surgery for a left elbow problem related to the accident, which resulted in her being away from work for a period. By this time, the relationship between the plaintiff and Mr Winters was such that they commenced couples counselling with Penny Gordon. The plaintiff was still feeling very fatigued. She was not contributing much around the household and there were regular arguments about that.

27. There was a trial separation period in 2008. The plaintiff said that after the trial separation, their relationship improved and they were reconciled for a period. It seems however that the plaintiff’s behaviour remained volatile. The plaintiff recalled, for example, attending a family wedding and having a fight with Mr Winters’ sister, with whom she had previously got on well.  The plaintiff and Mr Winters travelled abroad, but the holiday was marred by her aggressive behaviour.

28. The plaintiff said that before the accident, she and Mr Winters both knew they would have children. After the accident, when the matter was discussed, Mr Winters told the plaintiff that it was not a good idea.  He felt they were struggling and he did not have confidence in the plaintiff’s capacity to care for a baby.  He told the plaintiff that they would have to consider termination if the plaintiff became pregnant.  The plaintiff said that after that their intimacy ceased.

29. Mr Winters’ evidence was that the plaintiff’s problems with fatigue continued into 2009. There were times when Mr Winters found it hard to get her out of bed. The plaintiff’s problems with mood, anger and aggression made for a challenging environment. Mr Winters was not happy in the relationship throughout 2009. He said he felt that the plaintiff wanted to hang onto the relationship for the sake of appearance. They separated again towards the end of 2009. In December 2009, Mr Winters advised the plaintiff that he did not wish to resume their relationship and they ultimately divorced. 

30. The plaintiff considered that if she had not had the accident she and Mr Winters would still have been married. Mr Winters’ evidence supported that view.

2010

31. In early 2010, the plaintiff started to experience some numbness in her right leg which necessitated non-injury-related back surgery in May 2010. During this time she was off work for a period. She enrolled in a Masters of Urban Design at QUT and used the time she was off work to undertake two subjects achieving good results. She did not continue with the degree, however, because, once she returned to work she found she was too tired to both work and study. (She contrasted that with her final year at university when she was completing a thesis, while working four days a week at Parsons Brinckerhoff, and working at the Australian Jockey Club, playing hockey and seeing her friends).

32. On 2 July 2010, the plaintiff resigned from BAC. The plaintiff said that, at the time, she was extremely unhappy at BAC. She felt that that was never going to change and that everyone was always going to see her as Zoe before and Zoe after the accident. The plaintiff said:

“I resigned because I did not feel like I was ever going to get the same type of job responsibility and enjoyment I had back from before the accident to after.  I also decided that no one’s opinion of me was going to change no matter how much I improved or how much I worked to improve.  And also [Robert and my] relationship had fallen apart, my relationship with a lot of my friends and my family had fallen apart and basically ran away.”

33. She said that at the time she was not coping well with her split from Mr Winters and felt very erratic, out of control and had no care about what happened to her or anyone else.

34. On 28 July 2010, she left for London.  She took a break and travelled to the USA and then to Australia for her brother’s wedding before returning to London.

Employment post BAC

Initial employment in London

35. The plaintiff applied for project-oriented and planning jobs but felt she struggled to put forward the information she needed in job interviews. She said she applied for more than 50 jobs and received five interviews. Having unsuccessfully applied for jobs in her professional field, she started looking at other options and ultimately obtained bar work at the Queen’s Head Pub, where she worked four to five days a week full‑time. 

36. In London the plaintiff lived alone in an apartment, but found she needed assistance with household chores from a friend.  She later moved in with her friend because she needed the help.  She avoided cooking chores by eating a lot of takeaway and food from the pub.  She did not socialise outside of work and spent her days off catching up on sleep.

Position with Chartered Institute of Building

37. The plaintiff subsequently obtained employment as a Policy and Ambassador Development Manager with the Chartered Institute of Building (CIOB) in London, commencing on 28 March 2011.  This was a part-time position (three days per week from 9.00 am to 5.00 pm).  The plaintiff said that she stopped “feeling erratic”, although she was still fatigued.  The plaintiff found her fatigue was easier to manage because she was only doing part-time work and a couple of shifts at the pub.  Except for one or two people, those she mixed with had not previously known her.  This made her feel better because she “wasn’t getting the before Zoe and the after Zoe all the time”.

38. The plaintiff’s position with the CIOB was covering an employee on maternity leave and was due to expire in February 2012. She decided to look for a job in Australia as she was feeling homesick.

Position with Tourism Western Australia 

39. The plaintiff successfully applied for a position in Perth with Tourism Western Australia (TWA) as a Development Manager, commencing on 27 February 2012.  The plaintiff said that due to memory problems she still had to utilise strategies, such as using lists, and she dealt with her fatigue by having meetings in the morning when she was not too tired.  But if she was “thrown a couple of curveballs” work wise it could “wipe [her] out” for a week and she would spend her weekends sleeping.  The plaintiff used various strategies to manage her fatigue.  Her job allowed flexi-leave so sometimes she would adjust her hours so she could finish early or take a flexi day off to catch up on sleep.  She found that every third weekend she needed to spend catching up on sleep.  Initially, she lived with a friend Jaclyn Dowdell, who helped with such things as cooking meals.  When she lived on her own, she managed by having groceries delivered and eating takeaway.  She paid for a cleaner as she found that household chores fell by the wayside because she was either too fatigued or her time-concept problems made it difficult to remember when she last cleaned.  She led a fairly restricted social life.

40. At one stage, the plaintiff was accused by another employee of bullying, an allegation which was found to be unwarranted. The plaintiff said that the matter created an issue with “opinion perception”.

41. Derryn Belford, the Executive Director of Infrastructure and Investment at TWA, gave evidence that the plaintiff’s conduct while not bullying had been inappropriate.  No action was taken but the plaintiff was counselled.  Ms Belford said that the plaintiff was filling in for someone on maternity leave and her contract was due to end on 27 February 2014.  She investigated the possibility of an early pay out of the plaintiff’s contract.  She said it gave the plaintiff the opportunity to go home for Christmas 2013 and start looking for work for the next year.  But she also saw it as an opportunity to stem the disruption the plaintiff’s behaviour was causing within the workplace.  Ms Belford needed to obtain approval from the CEO for that course, which she did.  The plaintiff took the option of being paid out, and left in December 2013.

42. Evidence about the plaintiff’s work performance at TWA was given by Mr Sweet, the director at TWA, who was involved in engaging the plaintiff, and by Ms Chetty, an investment manager with TWA, who worked closely with the plaintiff. 

43. Mr Sweet’s evidence was that he considered that the plaintiff’s performance under pressure was not good. She often complained of getting fatigued and had a lot of sick leave. She would ask to go home early because she was tired and had headaches. Mr Sweet did not consider that the plaintiff lived up to her CV, which gave a picture that she was able to strategise, problem solve and deliver a project. In his view, the plaintiff was more reliant on instruction and required a lot more guidance than he had expected.

44. Ms Chetty gave evidence that soon after the plaintiff commenced work she observed irregularities, temper tantrums and strange behaviour. The plaintiff would flare up with regard to small issues and everyday challenges. She would make inappropriate comments to clients. There were times when the plaintiff looked and acted very tired, so much so, that she would tell the plaintiff to go home. She said that she thought the plaintiff was able to deliver under pressure, but said that “you could see that it took its toll on her physically and possibly mentally because sometimes she … looked spent and … stressed”.

Subsequent employment

45. The plaintiff moved back to Orange for a period at the start of 2014 to live with her parents and be with her mother who was ill.  While looking for work, she completed a Diploma in Project Management.  She obtained a job with the Orange City Council as a graduate level town planner. 

Present employment

46. Since June 2014, the plaintiff has been employed by McLachlan Lister as a senior consultant. Her current hours of work are 8.30 am to 5.00 pm.  Her role varies, but currently she is engaged in the tenancy coordination for the fit out of the MLC Centre.

47. She said she found that she needed to sleep on weekends to cope with her work, but hoped that would improve after a few months at her new job. She said that she did not expect to progress beyond her current position; she became too tired and said things that she should not.

Plaintiff’s current condition

48. The plaintiff’s evidence was that she still had short-term memory issues but coped by writing lists. She also still found it difficult to find the right words to use in conversation, but had found ways of adapting. Her organisational skills had improved through strategies she had developed. She said her problem with voicing her views about people in inappropriate ways had improved, but she still sometimes sounded harsh or blunt without realising it. She still felt fatigued, but was used to that being her normal state, and was managing matters so that she could function. She had problems with motivation. She described it as not being ambitious anymore, whereas before the accident she felt that she was extremely ambitious and good at her job.

49. The plaintiff said she had not had another serious relationship since her divorce and expressed concerned about her capacity to develop such a relationship. She was better at controlling her anger, but still had difficulty with regard to personal relationships. She had lost contact with many friends. She continued to suffer from headaches and took codeine-based drugs to relieve the pain. She still had no sense of smell and her sense of taste had generally changed.

50. Mrs Cameron, the plaintiff’s mother, gave evidence that since the accident, she has noticed three main changes in the plaintiff: mood swings, memory problems, and lethargy and exhaustion.  In respect of the mood swings, Mrs Cameron referred to the plaintiff’s volatile behaviour over Christmas 2012, which involved fights and tantrums over trivial matters.  She also described the period at the beginning of 2014, when the plaintiff lived with her parents in Orange before she found her current job in Sydney, as being like “walking on eggshells”.  Mrs Cameron said that the plaintiff was upset that she did not have a job, a marriage or a house and would never have children.  The plaintiff no longer showed interest in family events, whereas prior to the accident, it was the plaintiff who would organise those events and remind everyone of them.

51. Mr Cameron, the plaintiff’s brother, also gave evidence of the change in the plaintiff’s behaviour after the accident. He said that he noticed changes in respect of the plaintiff’s temper, concentration and organisational skills and motivation. Mr Cameron observed that very small problems made the plaintiff very irritated.  Recently, after the plaintiff moved back to Sydney, she stayed with Mr Cameron and his wife.  He noticed that she would often sleep until midday, and it was very difficult to get her up to participate in anything.

Expert medical evidence

Dr O'Dowd, clinical neuropsychologist

52. In her first report of 22 January 2008, Dr O'Dowd noted subtle relative declines or disturbances in the plaintiff’s mental control, working memory, verbal/visual attention, higher order cognitive language abilities and frontal executive functions. The plaintiff also displayed and reported clinically significant signs of ongoing psychological distress, including mild to moderate symptoms of depression and performance anxiety. Her psychological distress was thought likely to be associated with growing insight into her ongoing cognitive functional difficulties, as well as her high expectations and uncertainty about her capacity to perform her former high level work duties and the personal relationship tensions with her husband and family. Dr O'Dowd noted that the plaintiff only had partial insight into her functional difficulties and that her awareness was likely to increase as she resumed some of her previous work duties, so that it was crucial that she was provided with appropriate support.  She stated that, given that the plaintiff was “someone who has extremely high expectations of herself”, her psychological adjustment would need to be closely monitored and managed.  She considered that the plaintiff was likely to continue to achieve significant cognitive and emotional functional gains, but that a reassessment in 18 months was required. 

53. In her further report of 3 February 2009, Dr O'Dowd opined that most physiological brain repair was likely to have taken place and that the plaintiff’s recovery from her brain injury could be considered relatively stable and stationary. Dr O'Dowd stated that the subtle relative declines and disturbances previously referred to were less prominent, but that they continued to impact on the plaintiff’s behaviour in less structured busy environments. Dr O'Dowd noted that the plaintiff demonstrated a much greater awareness of her functional difficulties and appeared to be utilising strategies and taking steps to minimise their impact on her work performance and psycho-social functioning. Dr O'Dowd observed that the plaintiff’s heightened psychological distress noted in the 2008 assessment appeared to have settled. However, the plaintiff acknowledged that she continued to be more susceptible to stress in the workplace and had less confidence in her capacity to fulfil her high level work duties. She was also more susceptible to fatigue and her cognitive functional difficulties were much more pronounced when she was tired. 

Dr Goode, occupational physician

54. Dr Goode provided a report dated 15 December 2008 in which he stated that the plaintiff “now only appears to be left with relatively minor impairment of executive functioning … and some relatively minor emotional changes, and this hasn’t prevented her returning to her quite demanding job, as well as her usual activities of daily living at home and sport. Only incremental further improvement would be anticipated with this injury component …” In giving evidence, Dr Goode acknowledged that he did not obtain any account from Mr Winters or family members for the purpose of his report.  Nor did he investigate any conflicts the plaintiff was having at her workplace, since none were mentioned by the plaintiff.

Dr Todman, neurologist

55. Dr Todman noted in his report of 4 August 2009 that the initial CT head scan showed subdural haematoma affecting the left frontal temporal and parietal regions. Following discharge from hospital, she was quite debilitated, being very tired and fatigued with headaches and dizziness. She also sustained an ulnar nerve injury. The plaintiff complained of ongoing symptoms from the accident. She had problems with memory and concentration; her memory was not as sharp as it used to be and she had to use lists as an aid. She had difficulty with multi‑tasking and high level cognitive abilities.  There also had been a change in mood; she had become angry and suffered mood swings.  There was still general fatigue.  Headaches occurred infrequently.  There had been a loss of smell due to an olfactory nerve injury and a reduced sense of taste.  There was a 5% increased risk of post‑traumatic epilepsy.  Dr Todman assesses the brain injury as amounting to a 10% whole person impairment in accordance with the AMA 5 Guidelines, with 3% impairment relating to damage of the plaintiff’s olfactory nerve. 

56. Dr Todman noted in his report of 17 August 2009 that a further MRI scan confirmed changes consistent with a brain injury due to the accident.  They were reasonably extensive and involved both frontal lobes and temporal lobes and were consistent with the memory and cognitive symptoms which had occurred since the injury.  Dr Todman’s oral evidence was to like effect.  He considered that the plaintiff had done remarkably well considering the life-threatening injury she had sustained.  But he opined there were still “reported symptoms and difficulties both in the home and work environment” which he thought were probably likely to continue in the future.

Dr Cantor, psychiatrist

57. Dr Cantor provided reports dated 12 October 2009, 19 January 2011 and 14 April 2011. Dr Cantor did not diagnose adjustment disorder. His diagnosis was of a cognitive disorder not otherwise specified, with a mood disturbance due to brain injury. Dr Cantor considered that the plaintiff would be particularly vulnerable when placed under occupational stress, when fatigued and when required to perform multiple tasks at once.  There was some possibility that under pressure she could lose emotional control and disadvantage her career prospects for doing so.  He considered the plaintiff had the capacity to achieve highly in her career, but that it would take considerably more effort for her to do so and, given that the plaintiff is an ambitious individual, she was unlikely to achieve quite as highly as she would have done had it not been for the accident.

Dr Troy, neuropsychologist

58. Dr Troy provided reports on 10 June 2009, 11 April 2011, 14 April 2011 and a memo on 30 July 2014. There was also a joint report with Dr Field dated 17 May 2013. Dr Troy initially diagnosed mild neurocognitive disorder secondary to organic brain injury.  In her second report, after reviewing inter alia statements from Mr Winters, the plaintiff’s mother and work colleagues, she further diagnosed a personality change due to an organic brain injury, combined type.  The personality change included features of lability, aggression and some mild disinhibition. 

59. Dr Troy considered that the plaintiff had suffered a change in her previously characteristic personality pattern and that the personality change was a direct physiological consequence of the head injury. The disturbance had caused clinically significant stress and impairment in social, occupational and other areas of functioning, contributing to the breakup of her marriage and reducing her ability to cope with workplace and other stressors. Dr Troy did not consider that the plaintiff presented with any symptoms of adjustment disorder when seen on 19 May 2009, nor of post‑traumatic stress disorder.  She agreed with Dr Cantor’s diagnosis of cognitive disorder not otherwise specified, but she stated that her view was that the emotional disturbance was more consistent with personality change rather than with mood disturbance.  Dr Troy assessed the plaintiff as suffering from a 14% whole person impairment.

60. Dr Troy was cross-examined about the plaintiff’s decision to leave BAC and as to whether the plaintiff could have transitioned to another place of employment locally, given her cognitive abilities at the time doing work as a town planner. Dr Troy stated that the plaintiff’s adjustment difficulties had to be taken into account.  Her clinical opinion was that the plaintiff’s resignation resulted from her inability to cope with her role.  In particular, the plaintiff was unable to cope with the high level dynamic, executively demanding components of a managerial position.  Thus, while the plaintiff was able to deal with the “nuts and bolts, technical things”, she was unable to manage such matters as regulating her responses, containing impulsitivity, and acting appropriately within the context.  She struggled with “thinking things through, especially dynamically, thinking on her feet … were the things that she couldn’t do”.  Dr Troy opined that, notwithstanding all her skills, knowledge and expertise, the plaintiff was not “actually able to utilise that in a goal-orientated way at the high level that she had been before”.  Dr Troy was asked how she reconciled that view with other comments she had previously made in her report to the effect that she did not consider the plaintiff’s deficits were at a level to compromise her ability to function in her then current position.  Dr Troy responded by explaining:

“What I did say was that that was qualified, that she would have more difficulty … being as efficient and in – coping with stressful situations and dynamic situations, which, as it turned out – as it evolved, were very much an important part of her role.  So that’s the part that she couldn’t manage, not the technical aspects.”

61. Dr Troy was asked about the plaintiff’s employment at TWA and her ability to work for a period before relationships with her colleagues disintegrated. Dr Troy opined that she would expect that, as the plaintiff’s resumé grew with very short-term positions, she would not be able to achieve or gain employment in high level managerial roles, and would be relegated to work involving more technical skills instead of strategical management skills, with which she experienced difficulties.

Dr Field, neuropsychologist

62. Dr Field provided reports dated 4 and 15 December 2011, in addition to the joint report with Dr Troy. Dr Field accepted that the history indicated that the plaintiff had suffered a moderately severe head injury. Dr Field accepted that the plaintiff had impairment of working memory and of mental flexibility evident on testing, which was compatible with frontal lobe damage. The poor delayed recall of a word list on AVLT would also correlate with temporal lobe damage. Dr Field diagnosed the plaintiff as suffering from an adjustment disorder with mixed anxiety with depressed mood.

63. She did not agree with Dr Troy’s diagnosis of personality change due to an organic brain injury, opining instead that the plaintiff demonstrated an exacerbation of pre‑morbid personality characteristics as a result of the brain injury.  Dr Field assessed the plaintiff as suffering from a 10% whole person impairment which she reduced to 8% because of her assessment of pre-morbid personality defects.  Dr Field considered that there was evidence that the plaintiff’s head injury had accentuated pre-existing personality traits.  Dr Field appeared to have made her diagnosis influenced by a reference report from Mr Gunek, the plaintiff’s superior at SACL, which she referred to in her first report.  Dr Field maintained her diagnosis, having considered a subsequent statement provided by Mr Gunek, and statements from Mr Chan (who had also worked with the plaintiff at SACL) and Ms Christensen of BAC.  Dr Field proceeded on the basis that those statements were accurate.

EXTENT OF THE PLAINTIFF’S INJURIES

64. There is no dispute that the plaintiff suffered a significant brain injury that has left her with extensive scarring involving both frontal lobes and temporal lobes, more pronounced on the left. Nor is it disputed that the plaintiff also suffered the ulnar nerve injury (from which she has now fully recovered). The major area of dispute concerned whether the plaintiff suffered a personality change due to the injuries from the accident or whether, as the first defendant pleaded, the plaintiff’s behavioural problems were caused by an underlying personality trait which was not caused or contributed to by the accident: see paras 4(f), (i) and (m) of the defence.

Did the plaintiff suffer a personality change due to the injuries from the accident?

65. This issue raises the difference in diagnosis between Dr Troy and Dr Field. In examining that difference in opinion, it is convenient to consider first the information that Dr Field had regard to in reaching her diagnosis.

66. In his reference report Mr Gunek referred to the plaintiff as an intelligent person, with good planning skills, working under a very high workload. She was self directed and able to see problems and to identify solutions. In particular, she was able to “come up with a satisfactory compromise approach” in respect of planning disputes with the commercial department (there having traditionally been a problem between the two departments) to the extent that he no longer heard of those types of issues. He stated that he regarded the plaintiff’s strengths as her “intellect and capacity to do more”, and commented, she “will progress”. He identified as “possible development needs” that the plaintiff had a direct communication style, which on occasions created conflict. He felt that she needed to work on her diplomacy. Nevertheless, Mr Gunek was at pains, when giving oral evidence, to make it clear that he was not suggesting that the plaintiff “was naturally argumentative with everybody in the organisation”.  He accepted also that a direct communication style could be an effective skill, if the plaintiff was able to harness it as she gained experience and matured.

67. As for the statement by Mr Chan that was provided to Dr Field, it described the plaintiff’s personality as moody and short tempered.  It stated that the plaintiff was a person whose behaviour was “too extreme”, who did not get along with her workmates and who was very vocal about expressing her opinions.  He also stated that the plaintiff was a bit fiery and erratic, especially when under pressure.  I note that Mr Chan’s description of the plaintiff did not accord with that provided by Mr Gunek in his reference and oral evidence.

68. There clearly was some discord between the plaintiff and Mr Chan. The impression that I gained from hearing Mr Chan’s evidence was that he gave a much more muted picture of the plaintiff’s alleged negative personality traits than that set out in his statement.  When asked to illustrate the behaviour he was referring to, he stated that, on occasions when he sought assistance from the plaintiff in doing particular work, she would ignore his request or ignore his direction.  However, the evidence indicated that the plaintiff was under a heavy workload at SACL, dealing with over 200 construction approvals each year, many of which were for large construction projects. That she would resist additional work from Mr Chan can perhaps be understood.  Mr Chan also said in his evidence that the plaintiff was a strong, independently-minded individual, who could at times be moody and abrupt.  I note that when the plaintiff joined SACL she was 23, and considerably younger than Mr Chan, who had been working at SACL for many years.  It appears that Mr Chan took the view that he was the plaintiff’s “boss”.  The plaintiff however did not accept that she was obliged to report to Mr Chan.  And Mr Gunek did not give evidence contradicting the correctness of the plaintiff’s understanding.  The discord between Mr Chan and the plaintiff appears to have had less to do with personality issues and more to do with competitive rivalry and tension arising from whether the plaintiff should report to Mr Chan.

69. As for Ms Christensen, I agree with the plaintiff’s submission, that her evidence was, at best, equivocal and unsatisfactory as to the nature of the plaintiff’s alleged personality problems. Her statement indicated that prior to the accident the plaintiff could at times be immature in her interactions with other employees and sometimes made inappropriate comments and made people uncomfortable. However, in giving evidence, Ms Christensen was unable to recall “the specifics”, commenting that it was just her perception.

70. I accept the plaintiff’s submissions that the prominence given by Dr Field to the plaintiff’s “pre-existing personality traits” proceeded on incorrect assumptions based on the statements of Mr Gunek, Mr Chan and Ms Christensen, which were not borne out by their evidence. Furthermore, Dr Field’s conclusion as to what she considered to be pre-morbid personality traits was inconsistent with evidence given by the plaintiff’s colleagues, Ms Clarke and Mr Sparkes, and by Mr Winters and the plaintiff’s family.

71. Ms Clarke was the Airport Environment Manager at BAC and worked with the plaintiff from 2006 to 2010. She described the plaintiff before the accident as having a happy demeanour and as an approachable person. Although younger than the other managers, the plaintiff would ask pertinent questions. She said the most notable change in the plaintiff’s demeanour after the accident was that she was angry all the time; she would come to Ms Clarke’s desk quite often and “vent” a lot of frustration. The plaintiff could not always communicate what she wanted to say and she was sometimes angry and aggressive as a result. In a couple of meetings after the accident, the plaintiff wanted to have the last word, in circumstances where it was not appropriate. The plaintiff was also quite short with people, which was different from how she had behaved previously. Before the accident, Ms Clarke never observed the plaintiff making tactless comments, or failing to pick up on social cues. 

72. Mr Sparkes was the Property Development Manager at BAC and worked with the plaintiff from 2006 until she left. He described the difference in the plaintiff pre and post‑accident as being that she became more defensive when asked probing or detailed questions and that she would withdraw from discussion, which impeded efficiency at the workplace.

73. There is clear evidence from her work colleagues and family, which I accept, that the plaintiff underwent marked changes in her behaviour and presentation pre and post‑injury.  Given that the assumptions made by Dr Field’s opinion were shown to have been flawed, I prefer the diagnosis of Dr Troy.  I am satisfied that the plaintiff suffers from a personality change due to an organic brain injury from the accident.

Other symptoms

74. I accept counsel’s submissions that in the period of her recovery, the plaintiff suffered severe and sustained symptoms and impacts arising from her injuries associated with poor memory, being angry and erratic and out of control, fatigue, aggression and violent behaviour, poor money management, lack of motivation, poor organisational skills, problems with impulse control, being very direct, very blunt and inappropriate, frequent headaches, and altered sense of smell and taste. I find that the damage to the plaintiff’s brain manifested itself in a significant alteration in her behaviour, particularly in the short-term. This included short-term memory loss, lack of inhibition, changes in mood, fatigue and difficulty with multi‑tasking and high level cognitive abilities.

75. The evidence from the plaintiff’s family was that the plaintiff had always been a very motivated person, even as a teenager pursuing part-time work at Big W. Mr Winters’ evidence was of the plaintiff as a very career-focused individual.  It is clear that the plaintiff now struggles with motivation.  There is also ample evidence that the plaintiff’s concentration and organisational skills have been impaired.  I also find that the plaintiff has and continues to have difficulties with fatigue.  I note that Dr Todman dismissed the view that the plaintiff’s fatigue stemmed from treated pernicious anaemia.  I find that the plaintiff’s condition post‑accident has manifested in a series of incidents and events reflecting behaviour which has been aggressive and volatile.  These types of incidents commenced soon after the plaintiff’s injury.  They are chronicled in the plaintiff’s submissions and were not the subject of dispute.

QUANTUM

General Damages

76. General damages are assessed in accordance with s 61 of the Civil Liability Act 2003 (CLA) and the Civil Liability Regulation 2003.  The plaintiff referred to the approach to assessing damages for multiple injuries described by McMeekin J in Allwood v Wilson [2011] QSC 180, which I adopt in this case.  His Honour stated at [19]-[21]:

“I am required to assess an injury scale value (‘ISV’) for the injuries from the range of injury scale values set out in Sch 4 of the Regulation in order to determine the level of general damages (as defined) in accordance with the rules laid down in Part 2 of Sch 3 of the Regulation.

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

Whilst the regulations indicate that the purpose of the elaborate scheme set out there is to promote consistency in awards, 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.” (footnotes omitted).

77. The defendants submitted that Item 104 (minor elbow injury) was an appropriate category for the plaintiff’s elbow injury. In relation to the plaintiff’s brain injury, the defendants submitted, somewhat weakly, that Item 8 (minor brain injury) with an assessment at the top of the ISV range of 6-20 was apposite. The defendants also accepted, however, that Item 7 (moderate brain injury) with an ISV of 20-25, could be seen as exemplifying the plaintiff’s situation, in which case it was submitted that an award of no more than $35,000 was appropriate.

78. I consider, as submitted by the plaintiff, that Item 7 is the most apposite category for the plaintiff’s injuries. The commentary about the appropriate level of ISV for that item states:

“An ISV of 21 to 25 will be appropriate if there is reduced concentration and memory, or reduced mood control, and either or both –

•Reduced capacity for employment

•A noticeable interference with lifestyle and leisure.”

79. The evidence clearly demonstrates that the plaintiff has reduced concentration and memory and also reduced mood control. (I note the range in the expert evidence as to a whole person impairment of 10% by Dr Todman to 14% by Dr Troy.) I am also satisfied that there is reduced capacity for employment and a noticeable interference with the plaintiff’s lifestyle and leisure. I accept the plaintiff’s submission that, given her youth and the significant consequences of her injuries on the enjoyment of the amenities of life, including the loss of her relationship with Mr Winters and the possibility of commencing a family with him, the injury falls at the top of the range and that a 25% uplift to an ISV of 31 is appropriate.  This results in a general damages award in the sum of $47,200.  

Economic loss

The plaintiff’s career intentions

80. The plaintiff gave evidence as to her career intentions and goals. She was nearly 26 years of age when she commenced work at BAC and nearly 27 when she became the Landside Planning Manager at BAC.  Her evidence was that by that stage she had “generally worked out what [she] wanted to do long-term”.  The plaintiff said she intended to continue at BAC for about five years until she could become as senior as possible and then look for a team manager or senior manager role at a consultancy firm.  That role would have involved managing a project team in the private sector.  She would have wanted to reach that role by her early 30s.  To her knowledge, Mr Winters was currently a Senior Project Manager at APP.  She would have expected to be at a similar level by this time.  From her knowledge of the industry, she estimated that she could obtain an annual salary of $130,000 to $150,000, depending on the company.  By her late 30s to 40, the plaintiff hoped to progress to be at the level of a director or at the level of running a department.  She estimated that this would involve a salary of $175,000 to $200,000. 

Evidence as to remuneration

81. Ms O'Connor, the HR advisor at BAC, gave evidence (by reference to ex 24) about remuneration for various planning division roles, including the positions of Landside Planning Manager and Planning Manager. Ms O'Connor’s evidence was that from a company remuneration policy perspective, BAC would have aimed to pay the plaintiff as a Landside Planning Manager within the mid percentile of $113,298 and the 75^th percentile of $129,005^[1] as at November 2007.  The plaintiff’s PAYG summary showed that her gross income for 2007/2008 was $80,342.  Ms O'Connor explained that, following a corporate restructure in 2009, the equivalent of the Infrastructure Planner/Landside Planning Manager became the Airport Development Planner and the current equivalent of the Senior Planning Officer became the Planning Officer Design.  The plaintiff’s position of Landside Planning Manager and Ms Corner’s position of Planning Manager would now both be included in the role of Airport Development Planner, and were on around the same salary level.  But it did not necessarily follow that the Landside Planning Manager and Planning Manager would be paid the same amount. 

82. Mr Mander-Jones, a director of infrastructure at Donald Cant Watts Corke (DCWC), Australia’s largest privately-owned cost and project consultancy, gave evidence.  He stated that DCWC employed planners as project managers.  Having considered the plaintiff’s CV, he believed she would have had the potential to pursue a career in project management.  He considered the plaintiff’s work at BAC was very good experience because of the major infrastructure project aspect it involved, with many projects ongoing at any one time.  He indicated that a person in the plaintiff’s situation (with good personal skills, good experience in negotiation and communication and good experience from BAC) was the sort of person his firm would look for as a senior project manager.  For someone in their early 30s that position would attract a salary of approximately $130,000, progressing over the years to $180,000 (as a base salary) per annum, depending on the ambition of the individual.  If the person obtained a position as a director in their early 40s, they could earn in excess of $200,000.  There were only few such positions.  (He indicated that of the 120 professional people employed by DCWC about 5% were earning in the range of $200,000.)

83. Mr Paul, a director of Contec Recruitment, gave evidence as to the prospective employment or career path of the plaintiff. He saw the plaintiff’s past employment experience with BAC as a positive in terms of making the move to the private sector. He stated, for example, that it would be attractive to developers who wanted to develop areas within BAC control for example. His evidence was that a Senior Project Manager managing a team and acting in a consultancy role could attract a salary of about $150,000 to $200,000 per annum.

84. Evidence of salary earnings was also given by Mr Sparkes and Ms Clarke. Mr Sparkes’ evidence was that after leaving BAC he obtained work as a Property Development Manager reporting to the Property Team Leader.  His evidence was that his current salary was $127,000 base in an overall package of around $160,000.  Ms Clarke was, as already stated, Airport Environment Manager at BAC at the time the plaintiff worked there between 2006 and 2010.  She gave evidence that, in terms of management structure at BAC, she was then on the same level as the plaintiff.  She subsequently became the Project Manager for the Airport Master Plan and recently transitioned to the position of Aeronautical Capacity Manager.  She said that the changes in positions did not involve pay increases.  Her current base salary was $135,000, in a package of $180,000 to $190,000.

Past economic loss claim

85. The plaintiff claimed the amount of $259,751.82 for past economic loss as follows:

1. $29,663.57 being weekly benefits from WorkCover Queensland for the period the plaintiff was off work and on a return-to-work programme.

2. $10,000 for the period to 2 July 2010 in relation to the loss of the opportunity for renegotiation of salary after performance review.

3. $220,088.25 for the period post 2 July 2010 to the present (being loss of earnings on the basis that the most appropriate comparator of earnings for that period was Mr Winters).

Past economic loss to 2 July 2010

86. There was no dispute as to the plaintiff’s claim in relation to the total weekly benefits paid by WorkCover of $29,663.57 for the period from 30 November 2007 to 3 October 2008.

87. As for the plaintiff’s claim for loss of the opportunity for an increase in the plaintiff’s income for the period to 2 July 2010, given that at the time the plaintiff ceased employment with BAC she was earning approximately $103,000 per annum, the plaintiff submitted that any increase was likely to have been relatively modest and no more than $10,000 per annum.  That sum was claimed on a global basis.

88. The defendants denied that the plaintiff’s salary would have increased in December 2007, and also asserted that, in any event, any increase would not have exceeded the increase in salary that she did receive: see para 11 of the defence. The plaintiff did not dispute that BAC had an incentive scheme under which the plaintiff would be paid a percentage of her base salary contingent upon her achieving certain performance objectives.  In that respect, the plaintiff did not dispute that by letter dated 11 August 2008, BAC advised her of an increase in the variable component of her salary of $3,976.50, representing 5% of the base salary (ex 7).  Nor did she dispute that by letter dated 19 August 2009, BAC advised her of a $4,167.35 payment (representing 5% of the base salary) following an assessment of her performance by BAC for the 2008/2009 financial year.  However, the plaintiff did not consider that the increases were in fact performance based.

89. In contending that no loss of income was demonstrated in relation to the period to 2 July 2010, the defendants argued that there was no evidence as to discussions concerning the renegotiation of salary on a performance review in December 2007 other than that of the plaintiff.  Mr Willey was not called to confirm the conversation, or to state that it was BAC’s intention to increase the plaintiff’s salary upon a performance review and to what extent.  Nor was there documentary evidence to support the contention, and it was not suggested to the two employees from the Human Resources section of BAC (Ms O'Connor and Ms Christensen) that that was to occur.  However, I note that the plaintiff’s recollection was not directly challenged; it was not put to her that there was no such discussion.  I also note that contrary to what was argued in the defendants’ submissions, the plaintiff did not state in her evidence that the discussions were with Mr Willey but only that they were with her employer. 

90. Taking into account that the plaintiff was not challenged about her recollection of the discussion, and given the evidence of Ms O'Connor as to the salary range as at November 2007 for the position then held by the plaintiff and the plaintiff’s pre‑accident work capacity and demonstrated ability to progress, I accept the plaintiff’s submissions that some increase was likely beyond that paid to her.

91. I accept that the sum of $10,000 is appropriate to reflect that lost opportunity.

Past economic loss after 2 July 2010

92. The plaintiff’s claim for past economic loss to 2 July 2010 proceeded on the basis that, but for her injuries, it was likely that she would have remained at BAC for some years before moving into the private sector. She would have expected to be in a team manager or senior manager role at a consultancy firm by her early 30s. She intended, by the time she was in her mid-30s to 40, to move into the position of Director or higher.

Was the plaintiff’s resignation from BAC causally related to the accident?

93. It is convenient first to address a matter raised by the defendants in para 15 of their defence. The defendants contended that the plaintiff’s resignation from her employment with BAC was not causally connected to her injuries from the accident. Rather, it was submitted that her resignation resulted from an independent decision by the plaintiff to leave for unrelated reasons.

94. Relevant to the issue of causation is s 11 of the CLA which provides:

“(1)A decision that a breach of duty caused particular harm comprises the following elements—

(a)the breach of duty was a necessary condition of the occurrence of the harm (factual causation);

(b)it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).”

95. The plaintiff submitted that, in this instance, proof of causation under the CLA did not substantially alter the common law principles and in that regard made reference to Medlin v State Government Insurance Commission (1995) 182 CLR 1 and Blaxter v Commonwealth [2008] NSWCA 87 at [36], [37], [47]-[50].  In Medlin the High Court observed (at 6) that the question as to:

“… whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience … And that remains so in a case such as the present where the question of the existence of the requisite causal connection is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage. … The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision. ...”. (footnotes omitted)

96. In Medlin, the High Court observed (at 11) that the issue that arose for determination in that case was not whether the plaintiff should have continued in his University post or whether his decision to retire was not “reasonable” but whether, in the context of what was reasonable between the plaintiff and defendant in determining the defendant’s liability in damages, the premature termination of the plaintiff’s employment was the product of the plaintiff’s loss of earning capacity, notwithstanding that it was brought about by his own decision to accept voluntary retirement.

97. The plaintiff’s evidence-in-chief as to why she resigned from BAC has already been referred to. The plaintiff was also cross-examined extensively about that evidence. The plaintiff rejected the suggestion that after the accident she was reasonably happy working at the BAC, and that what caused her to become unhappy was firstly, being formally counselled in October 2009 in respect of her behavior towards Ms Corner, and secondly, the circumstances of her marriage breakdown around that time.  The plaintiff was emphatic that her difficulties at work were related to the accident, not her marriage breakdown, but stated that, in any event, the relationship breakdown occurred because of the accident.

98. When it was put to her that she resigned from BAC without any pressure being applied from her employer, the plaintiff responded:

“I disagree with that in regards to if you think anyone told me directly to leave – no.  Do you think it was a workable workplace and a healthy workplace for me to work in at that time – no.”

99. The plaintiff accepted that her resignation letter was to the effect that she had decided to further her career and special knowledge by accepting a position overseas in London.  However, she explained that she had not accepted any position and that she just said that so she would not have to answer questions about why she was leaving.  The plaintiff rejected the notion that she left for London to satisfy a long-held ambition to travel.  She stated:

“I went to London because then it was the only place I could go where it wasn’t me getting judged for before and after the accident.  I ran away from everyone – my family, my workplace, my ex‑husband, my friends and the current situation.” 

100. In disputing the causal connection between the plaintiff’s injuries and her resignation from BAC, the defendants argued that, although it might be accepted from “anecdotal evidence” (referring to the evidence of Ms Clarke and Mr Sparkes) that the plaintiff had some behavioural issues at BAC after the accident, it was also apparent that the plaintiff remained competent in the discharge of her duties. In that regard, it was said that the plaintiff had been performing full-time duties for over 18 months and there was no evidence from anyone who supervised the plaintiff that her work during that period was substandard.  Moreover, she had reported to Dr Cantor (see report of 12 October 2009) that she was then working five days a week (8.30 am to 6.00 pm) and there was no evidence by way of leave records or otherwise, that the plaintiff was struggling with her hours of work.  I do not consider that these submissions should be accepted.  As I have already stated, I find that the plaintiff had significant problems with fatigue while at BAC.  She spent considerable time sleeping, when not at work, in order to deal with that.  Moreover, for much of that time period, the plaintiff lacked insight into the extent to which her injuries were impacting on her, which reflected in her self-reporting to medical practitioners as to her situation.  Those reports must therefore be viewed with caution.  Nor can the evidence of the plaintiff’s behaviour by Ms Clarke and Mr Sparkes be rejected as mere anecdotal evidence.  I am satisfied that there were behavioural and personality changes evident in the plaintiff after the accident that impacted on her work performance.  I am satisfied that they were of a significant nature.

101. The defendants referred to Dr Troy’s assessment in May 2009, that the plaintiff’s neurological deficits were “not at a level where they would compromise her ability to function in her current position, or impair her ability to train for other positions she may have been capable of completing prior to the accident”. But Dr Troy qualified that opinion and explained that qualification in giving oral evidence, as has already been outlined.  Dr Troy reiterated in her report of 14 April 2011 that the plaintiff’s initial problems in performance, and persisting difficulties in interactions with Ms Corner, had made her work situation more stressful and was straining her ability to cope.  Indeed, the evidence of the plaintiff’s interactions with work colleagues suggests that, by October 2009, her superiors had sufficient concern about her interaction, at least with Ms Corner, that a caution was warranted. 

102. Nor can much store be placed (as the defendants sought to do) on the fact that the plaintiff was able to complete two subjects of a Masters of Urban Design degree in 2010. The plaintiff’s evidence, which I accept, was that she was able to complete those subjects because she had time off work while recovering from her back operation.  She was not able to continue with her studies due to fatigue once she resumed normal working hours.  I note that the possibility that the plaintiff would not complete the degree being “increased by her injury” was in fact alluded to by Dr Cantor in his report of 12 October 2009. 

103. I accept the plaintiff’s account as to why she resigned from BAC. In the circumstances, I am satisfied that the plaintiff’s resignation was a reasonable response to her inability to cope with her situation at BAC and that that inability was causally related to the injuries from the accident and their sequaele.

Was Ms Corner an appropriate comparator for the period since 2 July 2010?

104. The defendants submitted that the best measure of the plaintiff’s loss since her resignation was to be made by reference to what Ms Corner earned in that time. Ms Corner, it was argued, was a truly comparable employee to the plaintiff.  In that regard, reliance was placed on evidence given by Ms O'Connor.  Her evidence was that the salaries for the position of Planning Manager held by Ms Corner and that of Landside Planning Manager held by the plaintiff were similar.  The defendants also relied on the following comparison of their earnings from 2008 to 2010.

105. The plaintiff’s earnings for the financial years 2008 to 2010 were as follows:

106. For the same period Ms Corner earned the following:

*Commenced employment 29/01/2008

107. It was agreed between the parties that the plaintiff’s net income over the period since she left BAC was $179,157.  Since that time, Ms Corner had earned a total of $289,086 as follows:

*As agreed between the parties

108. Although arguing that Ms Corner was the most apposite comparator, the defendants submitted that, the difference between the plaintiff’s and Ms Corner’s total earnings for the period since the plaintiff left BAC should not be seen as reflecting the quantum of the plaintiff’s loss. This was because, even if the plaintiff’s resignation from BAC could be seen as a reasonable one, there was no basis to find that the plaintiff could not have sought and obtained alternate work as a town planner. The defendants did accept that there was a possibility that such alternate work might not have remunerated her as well, particularly with respect to allowances provided by BAC, and in those circumstances submitted that an amount of $10,000 per annum would be a sufficient allowance for this head of loss.

109. The plaintiff disputed the proposition that Ms Corner was an apposite comparator to the plaintiff. It was pointed out that Ms Corner took many years to reach the same position the plaintiff had attained at BAC in 2008 and was much older at the time she reached that level. The plaintiff’s counsel further argued that the evidence showed that the plaintiff was a young professional woman of exceptional capacity, intelligence, drive and ambition. It was submitted that the plaintiff was very young to be recruited to her position at BAC. In the position she held at SACL, she had also been given a significant degree of responsibility for a person of her age. (After she left, her job was taken over by older people and her superior, Mr Gunek, expected her to progress.) It was submitted that, even assuming no advancement within the BAC, the plaintiff would likely have been in the 75^th percentile (given her experience and, by this stage, length of service, as well as pre‑injury capacities) of the income bracket identified in the BAC documents.  It was argued that the bright future which the plaintiff had ahead of her at the time of the accident was a product in part of her experience and technical knowledge.  This was reflected post‑accident by her being to obtain work notwithstanding her disability, such as with CIOB, TWA and McLachlan Lister, albeit, that her capacity to perform in those roles and maintain employment proved to be severely limited because of her disability.  Similarly, the plaintiff’s willingness and desire to advance her career was demonstrated by her commencement of a Masters of Urban Design, at which she was initially successful, although ultimately it proved to be beyond her capabilities.

110. There is weight in those submissions. Although the plaintiff’s evidence was that she intended to remain at BAC for a period, I do not consider that Ms Corner’s earnings are a suitable comparative for that period or at all. That the plaintiff and Ms Corner’s income over the period prior to the plaintiff’s resignation were similar is not to the point. The defendants’ submissions fail to take into account that, but for the accident, the plaintiff was very likely to have advanced in her career, as indeed Mr Gunek expected her to.  The plaintiff was clearly, professionally speaking, more ambitious and capable of greater advancement (even within BAC) than Ms Corner, who was content to remain in a quite defined planning position and came to that role after a considerably longer period than the plaintiff.   

Was Mr Winters an appropriate comparator for the period since 2 July 2010?

111. The plaintiff submitted that for the relevant period the best “comparator” in relation to the plaintiff was Mr Winters. In support of that submission, it was argued that their careers before the accident were very similar. They started from the same degree at the same university and moved quickly out of planning work into broader project planning work. They were ambitious about their achievements and their career, wanting to move into project work in the private sector and their earnings were almost identical.

112. As to their respective earnings, the following comparative table of their taxable income for the 2006 to 2009 financial years was relied upon:

* year of move to Brisbane

** jump in income following re-negotiation of contract

113. The plaintiff also submitted that other witnesses, with similar backgrounds or working in the same industry as the plaintiff, were currently on salaries either at or in excess of the relevant comparator, Mr Winters (for example Ms Clarke and Mr Sparkes).  It was further submitted that the evidence of Mr Mander-Jones, Mr Paul, Mr Vann and Mr Buckley also supported quantification of the plaintiff’s prospective income at the same level as that of Mr Winters.

114. Accordingly, in respect of the period between 2 July 2010 and the current time, the plaintiff’s submission was that her income was likely to have increased at a similar rate to Mr Winters. His income in the four years between 30 June 2010 and 30 June 2014 was as follows:

YearGrossTax Net5% of Gross

WithheldBenefits

30 June 2011$123,853$35,676$88,177$6,179.15

30 June 2012$128,440$38,123$90,317$6,422.00

30 June 2013$137,614$41,182$96,432$6,880.70

30 June 2014$139,588$41,730$97,858$6,979.40

Totals$372,784$26,461.25

115. The defendants argued against this approach and advanced four matters as to why a finding that the plaintiff would have followed a similar career path and earned at a similar level to Mr Winters ought not to be made.

116. Firstly, it was argued that Mr Winters had obtained a diploma in project management, whereas the plaintiff had not sought a qualification in that regard. I do not consider that a weighty matter.  Mr Winters’ evidence was that it was not a significant factor in assisting him in his employment. 

117. Secondly, the defendants contended that the income tax returns from 2005/2006 revealed that Mr Winters’ gross salary was always greater than that of the plaintiff’s. This was said to be highlighted in the 2008/2009 financial year when the plaintiff earned $86,052 compared with Mr Winters’ $110,091. In my view, the evidence as to the respective earnings of Mr Winters and the plaintiff does not indicate a significant difference, until 2009 when Mr Winters re-negotiated his contract. 

118. Thirdly, the defendants submitted that, by the time Mr Winters had moved to Queensland in 2006, he had already been working in private enterprise in project management at Landcom.  When he moved to Brisbane in 2006, he obtained another position with a private project management firm, APP.  The plaintiff, it was submitted, only had experience in planning roles during her time in Sydney and was predominantly involved in planning (albeit of a more diverse character) at BAC.  In oral submissions, the defendants accepted that it was difficult to say that the plaintiff would not have been able to make the transition.  But it was submitted that the transition would not have been an easy one and the plaintiff would not have been commanding the type of salary of Mr Winters.  It is true that Mr Winters had made the transition to the private sector earlier than the plaintiff was intending to.  Nevertheless, there was, as counsel for the plaintiff submitted, evidence to support the plaintiff’s contention that she was well placed to make that transition successfully.  I would accept, however, that there was a possibility of the plaintiff’s initial salary on her transition being somewhat lower than that of Mr Winters, who had already made the transition some time previously. 

119. Fourthly, it was argued by the defendants that the plaintiff, irrespective of her injury, may have had difficulty working collaboratively in a team environment and in that regard the defendants relied on evidence of Mr Gunek, Mr Chan and Ms Christensen.  For the reasons already given, I do not accept that the plaintiff had personality traits that pre-existed the accident that would have precluded or impeded advancement in her career.

120. It follows that I do not accept that there is weight in the defendants’ argument that Mr Winters was not an appropriate comparator. To the contrary, I consider that it serves as an appropriate guide for quantification for this head of damages.

121. Nor do I accept the defendants’ submission that there ought to be some discounting in the quantification of loss under this head on the basis that the plaintiff ought to have sought alternative work as a planner in Australia.  The evidence of the plaintiff under cross-examination was that she did seek employment in Australia^[2] and in England in her chosen field upon her resignation; she sought what employment she could.  And, in any event, there was no plea of failure to mitigate.

122. Using Mr Winters’ net earnings as a comparative, the plaintiff claimed $220,088.25, being the difference between the total income generated by Mr Winters to trial ($399,245.25) compared with that of the plaintiff ($179,157). For the period thereafter (from 8 August 2014 to 1 December 2014) the difference between their respective earnings was agreed at $7,648.^[3]  This yields a total of $227,736.25 for the period from 2 July 2010.  I consider that there should be some deduction to reflect contingencies and the possibility that on her transition the plaintiff’s salary may have started at a somewhat lower level than Mr Winters.  An allocation of $200,000 in my view is appropriate for past loss for the period from 2 July 2010.

123. When that figure is added to the award of $10,000 for the period to 2 July 2010, the total award for past economic loss (leaving aside the WorkCover benefits), is $210,000.

Interest on past economic loss

124. The appropriate rate for interest is 1.745 %, being half the of the ten year bond rate for the relevant quarter (3.49%): see s 60(3) CLA.  It is to be calculated over 4 years 5 months.  I award interest on past economic loss damages of $210,000 at 1.745% calculated over 4 years 5 months, yielding $16,185.

Past superannuation

125. The plaintiff’s claim for loss of superannuation benefits on the award for past economic loss of $210,000 is allowed at 9.25%. I award $19,425 for that claim.

FUTURE ECONOMIC LOSS

126. The plaintiff claims future economic loss on three bases:

(a)Impairment of the plaintiff’s residual earning capacity: It was claimed that the plaintiff’s ongoing employability in her current role was likely to be unsustainable, given changes of employment, and she would therefore be vulnerable on the open labour market;

(b)The plaintiff’s loss of opportunity to proceed further in her career, and generate income the equivalent of a Senior Project Manager managing a team in excess of $150,000 per annum;

(c)The plaintiff’s loss of opportunity to proceed yet further in her career and become a Project Director, earning $200,000 to $250,000 per annum.

127. The plaintiff claimed $862,500 for future economic loss in respect of those three areas of loss identified as follows:

• As to the first two categories of loss, the plaintiff argued a sum of $1,000 per week should be allowed, being $300 (referable to (a)) and $700 (referable to (b)).  This was claimed for a period of 36 years (885 multiplier) based on a putative working life to age 70.  This yielded $885,000 as a primary sum for future economic loss, which it was accepted should be discounted by 15% for standard contingencies to yield $752,250.

• As for the third category of loss, it was argued that there should be an allowance of $500 per week for a period of 25 years in 11 years’ time (885 – 444 = 441 multiplier) yielding $220,500.  The plaintiff acknowledged that that sum should be reduced by 50% for the contingency that the plaintiff might not have achieved that amount of income, reducing the sum allowed for that component to $110,250.

128. The plaintiff relied on the principles stated in Norris v Blake [No 2] (1997) 41 NSWLR 49 at 73 and Doughty v Cassidy [2004] QSC 366 at [34]-[35] as applicable in the assessment of damages for future economic loss in the present circumstances.

(a)Impairment in Residual Earning Capacity

129. Following the plaintiff’s return from London, she has been able to generate income in the region of $100,000 per annum.  In the financial year ended 30 June 2013, the plaintiff’s earnings with TWA were the sum of $90,384 gross, or approximately $60,744 net, equating to about $1,168 per week.  Currently at McLachlan Lister, the plaintiff earns $115,000 per annum, inclusive of statutory superannuation of 9.25%, and net income of $76,117 per annum ($1,470 net per week).

130. The plaintiff submitted that there was a risk, which should be assessed at 20% of her current net residual earning capacity, that she would be unable to maintain her current employment consistently into the future and that there would be times when she would be out of work and have difficulty obtaining alternative work.

131. Whilst the defendants did not dispute that the plaintiff’s residual earning capacity may be interrupted by reason of her disability, it was submitted that the chance of that occurring was not great by reference to what had occurred thus far. The defendants argued that the plaintiff faced only a small prospect of being out of work altogether in the future, which should be assessed as no more than 10% of her current annual net salary, which it was argued should be projected over a period of 33 years on the basis of a putative working life to age 67.

132. In advancing their submissions, the defendants argued that the plaintiff had not to date lost any employment by reason of her disability. It was contended that the TWA job, which was a fixed term contract, was replacing an employee on the maternity leave, and the plaintiff was not terminated, but given the choice of working there until the end of her contract. The defendants’ submissions misrepresent the reality of the situation however. It is apparent from Ms Belford’s evidence that the plaintiff was “encouraged” to leave earlier because of problems that she was generating within the workplace. Such workplace difficulties were not isolated ones – the plaintiff’s post-accident employment at the BAC was also plagued by workplace problems. Mr Sweet gave evidence that the plaintiff’s performance did not live up to her CV.  It may be that the plaintiff remains capable to some degree of building work relationships and acquiring positive references, as the defendants argued. But that does not detract from the plaintiff’s argument as to the extent of the plaintiff’s vulnerability in the workplace.  In that respect, the plaintiff pointed to Dr Troy’s concerns as to the plaintiff’s prospects of being able to sustain continued employment in circumstances where she would not be able to “achieve or gain employment in those high level managerial roles”.  Additionally, Mr Hoey, occupational therapist, in his report of 23 May 2010, observed that the plaintiff was likely to be more vulnerable in her chosen profession given her head injury and the sequelae.   

133. On the evidence before me, including the evidence as to the plaintiff’s period at BAC after the accident and at TWA, I consider the defendants’ submission understates the extent of the plaintiff’s vulnerability. The loss should be assessed at 20% of the plaintiff’s current annual net salary of $76,117, namely $293, rounded up to $300 per week. I do not consider that there is any basis for adopting a putative retirement at 67 years of age as contended by the defendants. The assessment should be made for a period of 36 years (885 multiplier) on the basis of a putative working life to age 70, as put forward by the plaintiff. That yields a primary amount of $265,500 ($300 x 885) which, as the plaintiff submitted, should be discounted by 15% for contingencies, yielding $225,675.

(b)Loss of opportunity to follow intended career path

134. The defendants contended that the plaintiff’s performance at TWA indicated that she was capable of full-time employment at a relatively high level. While it was accepted that the plaintiff’s career progression was at risk, that was ascribed to the plaintiff’s behavioural traits unrelated to the accident. As is already apparent, the risk in career progression in my view arises from the plaintiff’s injuries due to the accident.

135. The defendants alternatively argued that quantification of that loss should be based on the most recent salary package of Mr Winters (of approximately $140,000 plus superannuation).  The defendants argued that, on a direct comparison between Mr Winters’ present net earnings and those of the plaintiff, there was currently an annual loss of $21,336 after tax or $410 per week.  That loss it was submitted should be discounted to reflect that there was only a 50% prospect of the plaintiff achieving career earnings in line with Mr Winters.

136. One difficulty with the quantification urged by the defendants is that it failed to take into account that Mr Winters’ future expectation was of earning more than his current salary. The plaintiff submitted that, given the evidence as to the likely income available for a Project Manager within the industry, the plaintiff’s prospects of employment, had she not been injured, were that she would have been capable of generating income in excess of $150,000 per annum plus benefits. However, the plaintiff was content to rest her claim on the basis of a lost capacity to generate income of $150,000 per annum plus an allowance for benefits (agreed at 5%). It was argued that such a package would result in approximately $2,200 net per week (rounded off from $2,193).^[4]  The plaintiff’s quantification of loss proceeded on the basis that, at best, her ongoing employability was likely to generate approximately $1,470 per week, and rounding off the difference to $700 net per week.^[5]

137. I consider that there is ample evidence to support the figure of $150,000 put forward by the plaintiff. It comfortably falls within the range referred to by the relevant witnesses to which I have referred. I am also satisfied that there is also ample evidence of the plaintiff’s prospect of reaching a position that would command such a salary. The loss of opportunity to pursue her intended career path should be calculated over a period of 36 years on the basis of a putative working life to age 70 ($700 x 885 multiplier = $619,500). I agree with the plaintiff’s submission that a discount of 15% is sufficient to reflect contingencies. That results in an award of $526,575.

(c)Loss of opportunity to achieve at the highest echelon of her profession

138. The plaintiff also sought some allowance for the prospect that she may have been able to progress in her career to earn at the high income earning bracket of $200,000 to $250,000 per annum.

139. The plaintiff’s quantification of this loss was advanced on the basis that Ms Ryan’s earnings were an example falling in the middle of that range.  She is currently 42 years of age and an Assistant Coordinator General in the Department of State Development, Infrastructure and Planning.  Her current gross salary was in the order of $220,000, and converted to an after tax amount of $142,253 per annum or $2,736 per week.  On that basis, the plaintiff quantified the loss of opportunity as $500 per week^[6] for a period of approximately 25 years in 11 years’ time (441 multiplier) yielding $220,500, reduced by 50% for the contingencies to $110,250.

140. The defendants submitted that the evidence of Mr Vann, Mr Mander-Jones and Mr Buckley indicated that only approximately 5% of town planners earned at that level and argued for a much greater discount.

141. I accept that there is evidence suggesting that only a small proportion of town planners achieved a salary in the order of $220,000. However, the plaintiff was clearly a very intelligent person who was highly ambitious and capable. At SACL she had demonstrated at a young age an ability to undertake a heavy workload to a high standard. When she commenced at BAC she was still quite young and took on a demanding role, which she again performed to a high standard. There is however a good deal of speculation involved in this assessment of loss. Doing the best I can on the evidence, I would award a global sum of $80,000 for this head.

Conclusion

142. The total award for future economic loss is $832,250 comprised of:

(a)$225,675 for vulnerability on the open market.

(b)$526,575 for loss of opportunity to follow the intended career path.

(c)$80,000 for loss of opportunity to earn at the highest echelon.

LOSS OF FUTURE SUPERANNUATION BENEFITS

143. It was agreed that loss of superannuation benefits on future economic loss should be allowed at the rate of 11.3%. I allow $94,044 for loss of superannuation benefits on future economic loss of $832,250.

DOMESTIC CARE AND ASSISTANCE

Past care

144. The plaintiff claimed for past care at $22 per hour (being the admitted rate) as follows:

(a)For the period from December 2007 to July 2008 of 26 weeks (being 30 weeks less 4 weeks for the period of separation) ten hours per week, making $5,720.

(b)For the 18 month period thereafter to the time of her separation from Mr Winters at the end of 2009 of 78 weeks, six hours per week, making $10,296.

(c)Thereafter, three hours per week on an ongoing basis (266 weeks).

145. Section 59 CLA 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.”

146. The defendants referred to CSR Ltd v Eddy (2005) 226 CLR 1 as authority for the proposition that a plaintiff, who is prevented through personal injury from providing gratuitous services to another person, cannot recover damages for the commercial value of those services.  The defendants accepted that the evidence indicated that Mr Winters took over the plaintiff’s share of household duties in the six months following her discharge from the BIRU.  However, it was argued that the duties he was performing were as much for his benefit as they were for the plaintiff’s.  However, the defendants’ primary argument was that the s 59 threshold had not been met, but that if a finding to the contrary was made, it was submitted that the plaintiff’s gratuitous care claim should be limited to six hours per week for the first six months prior to the initial separation (at $22 per hour), making a total of $3,432.

147. The evidence of both the plaintiff and Mr Winters was that they shared the household chores prior to the plaintiff’s injuries.  Mr Winters’ evidence was that they each spent about three hours per week on those chores, which included cleaning, vacuuming, mopping of floors, washing, drying and ironing and general domestic duties.  Cooking was split fairly evenly and he would do about three hours a week while the plaintiff would do about 2.5 hours per week.  The plaintiff paid the bills and did most of the administration for the house.  She also did the grocery shopping.  The plaintiff’s evidence was that they would spend an hour to an hour and a half each day on household chores and do about two hours cleaning on Saturdays.  She also spent an additional hour per week on bills, budgeting and administration. 

148. Mr Winters’ evidence was that in the period between when the plaintiff came out of hospital in December 2007 and the middle of 2008, the plaintiff made no contribution to the housework. He said, “She was tired and just wanted to sit in front of the TV most nights and do nothing”. Mr Winters did the housework and cooked the meals.  The issue of the allocation of housework tasks caused dispute between the plaintiff and Mr Winters and was discussed with the marriage counsellor.  Setting schedules for who was to do what work was unsuccessful.  In relation to the household chores, Mr Winters said that very little changed in the course of 2008.  The plaintiff was unable to drive until May 2008, whereas before the accident the plainitff did most of the driving as she had the car for work. 

149. The plaintiff’s evidence was that she no longer did grocery shopping because of her fatigue. Most nights she did not cook meals but ate takeaway.

150. The defendants pointed to the report of Ms Campbell of 10 January 2008 as suggesting that by January 2008 the plaintiff had resumed paying bills using internet banking and was preparing some meals and following recipes. In fact, the report stated that the plaintiff, at Ms Campbell’s request, had been preparing “some meals” and following recipes with no reported difficulties. It did not suggest a resumption of previous chores. The defendants also submitted that by 16 June 2008, the plaintiff was capable of living completely independently of Mr Winters (during their one month trial separation).  In contending that the plaintiff demonstrated an ability to live independently from that time, the defendants referred to the report of Dr Goode, dated 15 December 2008^[7]  Dr Goode stated that the plaintiff was managing her usual household activities.  But as I previously noted, he did not speak to Mr Winters and I would not place reliance on the plaintiff’s account to Dr Goode in December 2008.

151. I find that the threshold required by s 59 CLA is satisfied.  I consider that an allowance of six hours should be made for the period from December 2007 to the plaintiff’s separation in December 2009 (less four weeks for the period of the trial separation).  An allowance should thus be made for 104 weeks (26 weeks and 78 weeks) at six hours per week, resulting in $13,728. 

152. For the period thereafter of 266 weeks, I consider that the plaintiff’s need for assistance gradually lessened and I would average it over that period at two hours per week, resulting in an award of $11,704.

153. The total award is therefore $25,432.

Future Care

154. The plaintiff claimed $69,634 for future care, on the basis, it was said, of three hours per week at a cost of $27.50 per hour to normal life expectancy (54 years – multiplier 993) less 15% for contingencies.

155. The defendants argued that the only basis for an allowance for future paid services was in the interests of maintaining the plaintiff’s employment, particularly at times when she is fatigued. The plaintiff’s evidence was that when working in Perth she engaged a cleaner once every three weeks at $45 (equating to $15 per week), so that she could deal with fatigue and continue to work.  I consider that an allowance for the continued use of the services of a cleaner on that basis is reasonable.  The allowance should be made for the balance of the plaintiff’s putative working life over 36 years (885 multiplier).  This yields an amount of $13,275.  There should be some discount for the contingency that at times the plaintiff will not require the service.  I consider an allowance of $12,000 is appropriate.

SPECIAL DAMAGES

Past special damages

156. In respect of special damages the plaintiff claims out-of-pocket expenses of $30,728.69 as follows:

157. The defendants did not dispute these claims except for two items included in the out of pocket expenses. The first concerned the claim for lawn mowing services of $975 for the period from October 2009 to July 2010. In respect of that claim it was submitted that the plaintiff was unlikely to have ever mown her own lawn, given her inexperience in that task. Also for at least part of the period, the plaintiff would have been precluded from performing it by reason of her spinal condition. I accept that submission.

158. The other item disputed was the claim of $715 for grocery delivery service for the period from 29 August 2012 to 30 November 2013. Relying on Dr Goode’s report, it was submitted that the plaintiff from early on demonstrated an ability to perform grocery shopping. The plaintiff accepted in her evidence that at the time that she saw Dr Goode in December 2008 she had the use of a car to travel to work and that she used to do the grocery shopping on her way back at the supermarket at the airport for a period. She was unable to continue to do so subsequently due to fatigue. I accept that evidence.

159. The award for special damages is $29,753.69

Interest on out of pocket expenses

160. I award interest on out of pocket expenses of travel expenses ($174.40), pharmaceutical expenses ($1,163.41) and out of pocket expenses ($2,592). Interest is allowed at the rate on 1.745% on the amount of $3,930 (rounded off) paid by the plaintiff over a period of 7.1 years, yielding $487 (rounded off).

Future specials

161. The plaintiff claims for the future cost of the anti-depressant medication. In their submissions the defendants did not cavil with an allowance of $6,000. Given that it was more than the amount put forward by the plaintiff, I will allow that amount.

FUTURE MEDICAL TREATMENT

162. Dr Cantor recommended ongoing psychological counselling and anti-depressant therapy for the plaintiff. The plaintiff claimed $10,580 for counselling and $3,200 for speech therapy.

163. Dr Troy recommended that the plaintiff may need up to three sessions per year of counselling. The cost for such counselling is $200 per session ($600 per year or $11.50 per week). I would allow that sum for a period of 36 years (multiplier 885), yielding $10,180 (rounded off).

164. The plaintiff seeks an allowance for speech therapy sessions to assist in controlling her tone of voice and expression. It is appropriate to allow for the cost of six sessions per year at $120 ($14 per week) for five years in the sum of $3,250 (rounded off).

165. I allow $13,430 for future medical treatment.

Conclusion

166. The following is a summary of the assessment of damages:

Order  

167. There will be judgment for the plaintiff in the sum of $1,335,870.26. I will hear the parties as to costs.