AB v Keanes - [2019] NSWDC 693

District Court

New South Wales

Medium Neutral Citation: AB v Keanes [2019] NSWDC 693
Hearing dates: 29-30 October 2019
Date of orders: 20 November 2019
Decision date: 20 November 2019
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the plaintiff in the sum of $77,768.31.
(2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
(3) Liberty to the parties to apply within 14 days to vary the order in (2) above or to correct any mathematical errors in my calculations.
(4) Exhibits to be returned in 28 days.
(5) Pursuant to section 77 of the Civil Procedure Act 2005 (NSW), the amount referred to in order (1) is to be paid to the NSW Trustee and Guardian for investment on behalf of the plaintiff until she attains the age of 18 years.

Catchwords: Torts – negligence – motor vehicle accident – liability not in issue – extent of injuries to child pillion passenger on a motorcycle – extent of residual disabilities and injuries in issue – whether plaintiff has established a need for past or future commercial or domestic assistance – whether a loss of future earning capacity established
Legislation Cited: Civil Procedure Act 2005 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Cairncross v Hewagama [2018] NSWDC 166
Fegin bht Rozenauers v Lane Cove House Pty Ltd [2007] NSWCA 88
Graham v Baker (1961) 106 CLR 340
New South Wales v Moss (2000) 54 NSWLR 536
Russell v Rail Infrastructure Corporation [2007] NSWSC 447
Sretenovic v Reed [2009] NSWCA 280
Category: Principal judgment
Parties: AB by her Tutor BB (Plaintiff)
Lynette Keanes (Defendant)
Representation:
Counsel:
A Canceri (Plaintiff)
D Hanna (Defendant)
Solicitors:
CMC Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2018/00374331

Judgment

In these proceedings, the plaintiff, AB, seeks by her tutor mother damages under the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) for personal injuries suffered by her in a motor vehicle accident which occurred on 1 April 2016 in Penrith in Sydney.
The plaintiff, who was then 12 years of age, was travelling as a pillion passenger on a motorcycle being driven by her father. She was wearing a motorcycle helmet at the time. The motorcycle was travelling along Parker Street at the intersection of Glebe Place in Penrith when the defendant’s motor vehicle drove from Glebe Place into the intersection and collided with the motorcycle.
Liability for the accident is not in issue. There is also no question of contributory negligence.
The case in summary therefore, is one for the assessment of damages to which the plaintiff is entitled. The plaintiff has not reached the impairment threshold of greater than 10% which permits the award of damages to her for non-economic loss under s 131 of the Act.
The plaintiff claims damages for:

Past and future out-of-pocket expenses;

Future loss of earning capacity on a buffer basis;

A loss of superannuation benefits which should be taken into account as part of the award of the buffer; and

An amount for claimed past domestic care and for future commercial care.

The court has had the benefit of oral evidence from the plaintiff, her mother and her father. The court has also received numerous medico-legal reports which provide contrary opinions in relation to the plaintiff from doctors and occupational therapists.

The pleadings

The proceedings were commenced by the plaintiff filing by her tutor mother a Statement of Claim on 5 December 2018. The Statement of Claim essentially pleads the matters which I have referred to above. It is pleaded that the insurer of the defendant issued a notice under s 81 of the Act admitting breach of duty of care. As stated, breach of duty of care is not in issue. It is pleaded that by reason of the breach of duty of care and negligence of the defendant, the plaintiff suffered a number of injuries including numerous soft tissue injuries to the cervical spine, thoracic spine, lumbar spine and her arms together with fractures of the left wrist, right femur, bones in the right foot and a psychological injury.
An Amended Statement of Particulars was filed by the plaintiff on 28 October 2019 repeating the injuries set out in the Statement of Claim and asserting that the plaintiff has continuing pain and restrictions in various parts of the body together with a psychological injury. As the case developed and from the medicolegal reports, it is clear that the main areas of continuing problems to the plaintiff are the left wrist, right leg in the hip area and a psychiatric injury.
I have already referred to the heads of damage claimed by the plaintiff. The plaintiff, in addition, makes a claim for the cost of funds management as the plaintiff is a minor.
In a Defence filed on 5 March 2019, the defendant admits negligence, asserts the plaintiff does not have an entitlement to damages for non-economic loss and does not admit the extent of the injuries claimed by the plaintiff.

Issues

At the commencement of the hearing, counsel for the plaintiff handed up a schedule of issues which asserted that the issues in the case were as follows:

“1.  The nature and extent of the injuries the plaintiff sustained in the relevant motor vehicle accident.
2.  Quantum of the plaintiff's past out-of-pocket expenses.
3.  Quantum of the plaintiff's future out-of-pocket expenses/treatment expenses.
4.  Quantum of the plaintiff's future economic loss.
5.  Whether in the past the plaintiff's accident-related injuries have created a need for her to receive gratuitous attendant care services exceeding the threshold imposed by s 141B of the Motor Accidents Compensation Act 1999 (MACA), and if so, the quantum of damages for such services.
6.  Whether the plaintiff’s accident-related Injuries have created a need for her to receive domestic assistance in the future and whether such assistance is likely to be provided on a commercial basis. If there is a need, the quantum of damages for future commercial assistance.”

Factual background

I will set out the factual background in the matter. Unless I indicate to the contrary, the facts referred to constitute my factual findings in the matter.
The plaintiff was born in February 2004 making her 12 years of age at the date of the motor vehicle accident on 1 April 2016 and 15 years of age at the date of the final hearing. The plaintiff’s tutor is her mother BB who is a driver for special needs children. The plaintiff's father CB, who was very seriously injured in the motor vehicle accident on 1 April 2016, was previously a train driver but has not worked since the accident due to his injuries. The plaintiff has a younger sister several years younger than her.
The plaintiff's parents sold their house at the beginning of 2016. It was proposed to build a second storey on the plaintiff's father's parents’ house, which ultimately occurred. Due to space limitations, following the sale of the family home prior to the accident, the plaintiff, her sister and her mother moved in with the maternal grandparents while the plaintiff’s father moved in with his parents. In due course, when the renovation of the house was completed, the plaintiff and her immediate family moved into the top storey of the father's parents’ house while the grandparents lived on the ground floor living area.
At the time of the accident, the plaintiff had shortly before completed her primary schooling and was in Year 7 at her high school where she is currently a Year 10 student. Accordingly, the accident caused a substantial interruption in the plaintiff's schooling. Other interruptions were caused by the need for ongoing medical and allied health attention.
The plaintiff was diagnosed with juvenile epilepsy in 2007 when she was three years of age. This condition continues until the present day. The condition is controlled with the plaintiff taking regular medication. It has not prevented her attending schooling or participating in schooling or sporting activities. The condition initially involved seizures and eye rolling but has progressively improved. The plaintiff occasionally has what are described as “absences” where she stares and mumbles for a short period. The plaintiff consulted a specialist Dr Antony in relation to the seizures and remains under that doctor’s care. In 2015, Dr Antony recommended the plaintiff undergo a neuropsychological assessment. This was completed by a Dr Hodge and the plaintiff was diagnosed with a specific learning disorder with an impairment in mathematics.
As stated, at the beginning of 2016 the plaintiff commenced high school. The accident, which has been described above, occurred on 1 April 2016. Police and ambulance officers attended the scene of the accident. The plaintiff was conveyed by ambulance to the Children's Hospital at Westmead where she was admitted. The plaintiff remained at Westmead Hospital from 1 April 2016 to 11 April 2016.
The plaintiff suffered a number of soft tissue injuries and abrasions in the accident. She also suffered a number of fractures. Dr Davis, the medicolegal specialist retained on behalf of the plaintiff, summarised in his report dated 7 May 2019 the plaintiff's injuries in the accident as:

A comminuted fracture of the right femur;

A fracture of the left wrist;

A fracture of the left scaphoid;

Multiple general trauma;

A Lis Franc fracture of the right foot involving the bases of the second to fourth metatarsals and nearby bones.

On 2 April 2016, the plaintiff had surgery for her right mid shaft femur fracture by Dr Brian Martin involving an open reduction and internal fixation with an intra-medullary nail. The plaintiff also had surgery to the fractures of the radius and scaphoid in her wrist involving a closed reduction with the insertion of K-wiring. The fractures in the right foot were treated by the plaintiff being placed in a special boot.
The plaintiff was discharged from Westmead Children's Hospital on 11 April 2016. She was non-weight bearing on her right leg, was given crutches and also a wheelchair to use when necessary.
The femoral nail was subsequently removed in October 2016. The K-wires were removed from the plaintiff's radius in May 2016. The plaintiff was absent from school for about two-three months because of the accident.
Following the accident, the plaintiff commenced sessions with a psychologist and a physiotherapist. A number of physiotherapy and psychology sessions occurred which were of benefit to the plaintiff.
In May 2017, the plaintiff fractured her right fifth finger whilst playing basketball which was treated with the insertion of a pin. It is not suggested this causes any ongoing difficulties for the plaintiff.
The plaintiff was referred to a psychologist because of difficulty sleeping, nightmares and anxiety: Exhibit A page 355. This referral was from the plaintiff's general practitioner. After several consultations, the psychologist reported in March 2017 that there was progress with the plaintiff and from a psychological perspective she had returned to her pre-injury status (Exhibit A page 361). The view was formed that the plaintiff no longer required further treatment and her file was closed: Exhibit A page 363. See also Exhibit A page 369. The accident was clearly traumatic for the plaintiff from the documents in the psychologist’s file: Exhibit A page 423. The plaintiff was, and remains, very concerned about the ongoing medical condition of her father who was seriously injured in the accident.
More recently, the plaintiff has commenced further sessions with a different psychologist.
The plaintiff's bi-yearly reports at high school were in evidence. The plaintiff is not a strongly academic student and has difficulties with mathematics in particular. She is an average student. Her reports, however, show her to be a cooperative and pleasant student who tries her best. The accident has caused the plaintiff to have many absences from school: Exhibit A pages 489-493. The plaintiff's condition of epilepsy is referred to in the school records as part of her individual health care plan: Exhibit A page 501 and at page 506. The plaintiff's mother noted in a document dated 9 February 2019:

“AB has more absences when she is stressed or hot. So just something to look out for while playing sport etc. Her absences usually lasts 5-10 seconds. She will stop talking or mumble words and stare”: Exhibit A page 509.

I have already stated that the plaintiff is an average student. This is confirmed by her reports for the first semester of the year of the accident: Exhibit A pages 526-535. The teacher’s reports are positive in relation to the plaintiff.
In Years 9 and 10 the plaintiff has undertaken a course in Child Studies in which she is interested. The plaintiff has done particularly well in this subject: Exhibit A page 586 and Exhibit B page 10. This is an indicator that the plaintiff may well be suitable in the future to undertake further childcare studies and childcare work. This is considered further below.
The plaintiff's more recent reports also refer to her participating in sport. Her report for semester two 2018 for Personal Development Health and Physical Education includes the following comment: “In the practical arena, she displayed sound movement skills in the netball, basketball and softball units”. In her school report for semester one 2019 which is Exhibit B in the proceedings the following comment is made by her teacher in the same unit:

“During practical lessons, AB’s engagement and participation has improved drastically and she has shown a fantastic dedication to refining her skills. AB is to be congratulated on maintaining a positive approach to learning and is encouraged to maintain this effort in the coming semester.”

As stated, the plaintiff was referred to a physiotherapist and received treatment in 2016. In a report to the plaintiff's general practitioner, Dr Popovic, dated 22 September 2016, the plaintiff’s exercise physiologist stated as follows:

“AB has progressed well through exercise physiology sessions for the management of her left wrist and her right hip injury following a motor vehicle accident. She is now able to run around with her friends at school, and does not have any pain in her wrist or leg. AB has improved significantly through her treatment … AB and her parents are happy with her progress. She has been given a home-based program to continue with for self-management.”

Notes by Mr Webster, the physiotherapist, for 15 August 2016, refer to the plaintiff running with friends at school and jumping and hopping. The following is stated: “wrist and leg has been really good”. Similar notes are recorded by the exercise physiologist Ms Kerr: see Exhibit A pages 711-713.

Evidence for the plaintiff

Oral evidence

Oral evidence was given in the proceedings by the plaintiff's parents and by the plaintiff herself. It was clear from the presentation of the plaintiff in court that she was extremely anxious and initially very upset at the prospect of giving evidence in court. After some short adjournments, the plaintiff was able to give her evidence although it was primarily responsive to directed questions being asked by counsel for the plaintiff. There was no cross-examination by counsel for the defendant with the concession that no point would be taken that matters had not been put to the plaintiff in cross-examination.
Having seen each of the witnesses, I accept that they were honest witnesses who were doing their best to give their evidence truthfully. I was particularly impressed with the evidence of CB who, despite very serious injuries in the accident and ongoing disabilities, gave his evidence in a forthright, reasonable and objective fashion.
No oral evidence was given by the three witnesses supporting the hours referred to in Ms Cogger’s report for the various periods for past domestic assistance.
All witnesses supported the plaintiff being interested in a future in childcare. Evidence was given that the plaintiff had recent school work experience at a childcare centre and her mother said she “loved it”. The plaintiff was also positive in relation to this experience despite being initially anxious but said that when she returned home at the end of the day she had pain in her wrist and in her right leg.
There was some evidence before the court that the plaintiff's mother, who was born in 1982 and is thus only 37 years of age, had a heart attack on 25 October 2019 and a coronary artery stent was inserted. There was no medical evidence as to the effect on BB in the future and she said she hoped that she would return to her normal duties.
BB gave some evidence about the plaintiff's epilepsy and myoclonic seizures since 2007. She gave evidence that the plaintiff was under the care of a paediatric neurologist, Dr Antony, and the plaintiff now had short “absences” for a couple of seconds which involved her eyes rolling or merely staring. This occurred in the afternoon on her observation, when the plaintiff was tired.
BB gave evidence that until the neuropsychological assessment by Dr Hodge in September 2015 she did not know about the plaintiff's special learning disability in mathematics but said the plaintiff had always been an average student with her abilities in mathematics being on the lower side. She gave evidence which the plaintiff confirmed, that the plaintiff probably wished to continue until Year 12.
In relation to the accident, BB said that when the plaintiff was discharged on 11 April 2016 she had a boot on her right foot and had one crutch and a wheelchair to use.
BB gave evidence that prior to the accident, CB did most of the outside domestic activities and she did most of the inside domestic activities. She said that the plaintiff enjoyed mowing the lawns prior to the accident, looked after her bedroom and assisted with the washing on occasions. When the family moved to her parents’ house after their house was sold and while the renovations were going on to the paternal grandparents’ house, the maternal grandparents undertook the lawn mowing and BB assisted with domestic duties. The plaintiff AB did not assist with the mowing at the maternal grandmother's house.
After the accident, BB said that the plaintiff went back to school after two and a half to three months with a cast on her left wrist but with the boot removed and using a crutch. While she suggested that the plaintiff had a wheelchair at school for long distances, this was denied by the plaintiff in her evidence.
BB gave evidence of the plaintiff having pain in her leg after walking a long distance including when attending the Vivid display in 2017 in the city of Sydney which involved the plaintiff eventually “collapsing” and crying. She also said the plaintiff complained about aching in the wrist particularly if she used it a lot and in winter.
BB gave evidence about noticing a mental change in the plaintiff after the accident. The plaintiff became from her observation very depressed, which she described as including not talking and staying in her room. She said the plaintiff was now receiving psychological counselling every two to three weeks with Mr Boyce and that provided some assistance.
BB said that she now did all of the domestic activities for her family but her mother-in-law did the gardening. She said that the plaintiff assisted with mowing every now and then but it was mainly done by her husband. She said the plaintiff assisted her with washing the dishes and laundry.
She gave evidence of the plaintiff using a box of Panadol in about a week and Nurofen not as often. The plaintiff gave evidence that she rarely used the analgesics as she was “stubborn” and did not like to use them.
BB confirmed that the plaintiff had stopped physiotherapy.
In relation to the plaintiff’s fracture to the right finger in May 2017, BB said the plaintiff had a pin inserted and it was no longer causing her any problems.

In cross-examination, BB confirmed that prior to the accident CB did most of the mowing and AB took over from him on occasions and enjoyed it. Now, BB said that CB could mow the lawns but not in one go.
BB gave evidence that the plaintiff had always loved children. She said the plaintiff had done some babysitting before the accident and had continued with babysitting after the accident including for money and that the plaintiff enjoyed it. She confirmed that the plaintiff had decided to go on to Year 12. In relation to the plaintiff’s motivation after the accident, BB said that the plaintiff tried but she was withdrawn.
BB confirmed that the plaintiff commenced school sport again after the accident towards the end of 2016 and played volleyball and basketball and enjoyed them. She agreed that the injury to the plaintiff's right finger occurred whilst playing basketball. She also agreed that the plaintiff helped with cleaning around the house and other homemaking skills. She said she had no worries about the plaintiff eventually living independently and being able to cope.
In relation to the lawns, BB said AB commenced mowing them in 2018 and enjoyed it but her husband took over the task about six months ago. She confirmed that the plaintiff walked to school unattended which she thought was about one and a half kilometres. CB supported that assessment of the distance.
The plaintiff initially gave evidence that she was undecided whether she would continue to Year 12 but said in the end that she would probably do so. She said her best subject was childcare which she enjoyed and she liked looking after small children and did that before the accident.
The plaintiff confirmed that when she went back to school she was on crutches and was not using a wheelchair.
The plaintiff gave evidence that she had problems with pain in her right leg and her left wrist. In relation to her right leg, she said the leg became sore after she was walking for 30 minutes. She said this also affected her ability to stand and sit for periods longer than 30 to 40 minutes. The plaintiff asserted that her walk had changed and sometimes she limped and did not walk straight. She said she probably had pain every day in her left wrist and right leg. The plaintiff said she was anxious and nervy in a car and did not like going past the accident site. She said she was seeing psychologist Mr Boyce who was helping. She said she felt sad although upon questioning from the court said she was happy with her friends at school. She referred to her school childcare experience where she looked after preschool children aged between two to five which she said she liked. She said she wanted to work within childcare in the future and hope to complete a TAFE course.
The plaintiff said that she “sometimes” took Panadol for her pain but she did not often take it.
The plaintiff said that prior to the accident she assisted with domestic chores when she was asked and only when directed. She said she undertook the lawn mowing in the old family house but did not like it. She said she did not do lawn mowing at her grandmother's house. She said she commenced lawn mowing again in 2018 to help out a bit but it hurt too much and her father took over. Inside the house, the plaintiff said that she helped with dishwashing and laundry and enjoyed it and could do cooking when she wished to.
CB gave evidence in relation to his family circumstances and his injuries in the accident. He said that the plaintiff’s epileptic “absences” only lasted a couple of seconds and were not easily recognised unless you were in a conversation with her. He confirmed that the plaintiff wanted to return to school to complete Years 11 and 12.
CB said that prior to the accident at the family's own house, the plaintiff did a little bit of lawn mowing but he did most of the mowing and the domestic duties were mostly done by his wife. In relation to their current house, he said that his wife did the domestic duties at the first storey of the house where the family lived but that the plaintiff did a little bit of lawn mowing and light duties around the house.
CB said that the plaintiff was not a complainer and it took some time to extract from her that she had pain. He noted that she had a limp if she walked any distance. He also noted that the plaintiff could not play the guitar because of her left wrist. He said the plaintiff had a lot of difficulty talking about the accident. Since the accident he described her as having “shutdown” and being more quiet and reserved.
In cross-examination, CB said that prior to the accident he mostly did the mowing and AB assisted him sometimes. He also occasionally assisted with domestic duties in the house. He said that after his injuries in the accident, care was provided to him by his wife and on some occasions his mother with travel issues. In relation to the plaintiff, he agreed that it would be beneficial for the current proceedings to be completed.
In relation to the plaintiff's work experience in September 2016 at the childcare centre, he said it was the happiest he had seen her for a long time. Initially, she was anxious, but then was happy with the experience and wanted to continue with childcare. He said the feedback from teachers was that the plaintiff was a good student who was polite and did the work and tried her best. He agreed that the plaintiff did school sports such as volleyball and basketball and physical education. He also agreed that the plaintiff walked to school each day which was about one and a half kilometres.

Medicolegal reports

The plaintiff tendered as part of Exhibit A a number of medicolegal reports.

Report of assessor Dr Myers

The plaintiff relied on the reasons for decision of MAS assessor Dr Paul Myers dated 18 August 2017. Dr Myers considered the plaintiff's physical injuries and determined that the injuries caused by the motor vehicle accident gave rise to a permanent impairment which was not greater than 10%. The injuries considered by him appeared to consist of the physical injuries referred to in the Statement of Claim and arising from the accident: see Exhibit A pages 19-21.
The plaintiff reported to Dr Myers that at the time of the accident she was fit and well but “had some neurological issues which caused her to have occasional absences prior to the motor vehicle accident”: Exhibit A page 21. The plaintiff told Dr Myers that she had no symptoms in the cervical, thoracic and lumbosacral spine. She also complained of no symptoms in the shoulders or hips. In relation to her right thigh where she had the fractured femur, the plaintiff told Dr Myers that she has pain when she walks for a long period of time and that her left wrist hurt “sometimes”: Exhibit A pages 21-22. Dr Myers conducted a detailed clinical examination (Exhibit A pages 22-25) and described the plaintiff as open and very compliant during the examination. He noted a number of scars on the plaintiff arising from her various procedures. Dr Myers commented on the various radiological studies with which he was provided.
In his conclusions, Dr Myers noted the various injuries and fractures and stated that the plaintiff had been involved in a significant accident. He concluded that there was no evidence of specific injury to the thoracic or lumbar spines from the motor vehicle accident and no evidence to suggest a left or right shoulder injury either directly or as a result of any cervical spine issue. He stated as follows:

“She did have fractures of the left wrist as noted above.
I have no evidence that she has any issues with the left or right hip, nor any reason to suspect that she should have any secondary injury or restriction of either the left or right hip because of a lumbosacral spine matter.
There is no evidence to support this and there is no medical reason to suspect that she has any secondary hip issues because of the lumbosacral spine.”

Dr Myers found that the injuries caused by the motor accident were a fracture of the right femur, a fracture to the left wrist, fractures to the right foot, soft tissue injury to the cervical spine and skin scarring. He found there were no continuing injuries caused by the accident to the thoracic spine, lumbar spine, left or right shoulders or right arm and left or right hip arising from a lumbar spine injury.

Report of Assessor Dr Newlyn

The plaintiff was assessed by Dr Thomas Newlyn, psychiatrist, as part of an MAS assessment. Dr Newlyn’s report is dated 7 September 2017.
Dr Newlyn noted that there was no psychiatric history other than a specific learning disorder for mathematics before the motor vehicle accident. He said the plaintiff developed psychiatric symptoms immediately following the accident on 1 April 2016 including developing anxiety and becoming more socially withdrawn. Dr Newlyn diagnosed an adjustment disorder with anxiety and found there was no depressive condition: Exhibit A page 43. In his report, he referred to the plaintiff’s seizures (Exhibit A page 33). He also records the plaintiff’s difficulties when asked to describe the present effects from the physical injuries.
The plaintiff reported to Dr Newlyn that she was feeling better and sleeping well. He noted that the family interaction was positive and the plaintiff's parents were supportive. On page 7 of his report, reference was made to the plaintiff's letter written soon after the accident which became Exhibit C in the proceedings and showed great anger and anxiety by the plaintiff. It was noted that age-appropriate household chores were completed by the plaintiff after her mother asked her repeatedly. The plaintiff stated that she always had a concentration problem that was not particularly worse since the accident and worked at recreational and scholastic activities at an average pace. She said her school performance and attendance had not deteriorated since the motor accident.
Dr Newlyn referred to the neuropsychological assessment in 2015 which he states as showing:

“…that she had variable intellectual abilities ranging from well below average to average with relative difficulties in mathematics. She met diagnostic criteria for the diagnosis of a Specific Learning Disorder with Impairment in Mathematics”: Exhibit A page 42.

Dr Newlyn noted that the plaintiff developed anxiety and became more socially withdrawn after the accident and that this anxiety and social withdrawal continues at a mild level. He was of the view that this justified a diagnosis of adjustment disorder with anxiety.

Medical certificate of Dr Chua

The plaintiff tendered her Personal Injury Claim Form which was accompanied by a medical certificate of Dr K Chua dated 8 April 2016: Exhibit A page 12. The certificate referred to the various fractures which have already been outlined.

Report of Dr Davis

The plaintiff relied on a report of Dr Davis dated 7 May 2019. Dr Davis is an occupational medicine specialist and the assessment occurred on 6 May 2019.
Dr Davis noted the plaintiff's medical history as being unremarkable apart from suffering with epilepsy since the age of two. The current medications noted were epilepsy medications together with Panadol or Nurofen “as necessary”. Dr Davis noted that the plaintiff was right sided dominant: Exhibit A page 46. I have already set out above the injuries which Dr Davis summarised as arising from the accident. The plaintiff complained of continuing pain in the left wrist which was aggravated with pushing up, wringing, heavy carrying or overuse. She also complained about pain around the right hip which was aggravated with long periods of walking with the pain also being aggravated if the plaintiff ran or jumped. Significantly, in relation to the commercial assistance claim, the plaintiff's father who attended the consultation informed Dr Davis that she assisted with activities around the house and that she was now able to mow the lawns: Exhibit A page 48.
Upon examination, Dr Davis noted good stability of the radio-ulnar joint of the left wrist with a full range of movement of both wrists in all planes. He noted mild tenderness to palpation over the right hip. However, he noted no loss of range of the hip or continuing abnormalities in the plaintiff’s foot. After reviewing the radiological investigations, Dr Davis diagnosed a fracture of the distal left radius, fracture of the scaphoid, fracture of the right femur and a Lis Franc injury to the right foot. His opinion was that the treatment was appropriate which the plaintiff had received.
In relation to work capacity, Dr Davis noted the plaintiff was a student but expressed the opinion there would be some degree of limitation in her activities after schooling due to her requirement to avoid forced or repetitive action with her left wrist as well as long periods of ambulation or standing. The plaintiff was in his view not suitable to perform any overtime in keyboarding activities. He expressed the view that if the radial fracture was intra-articular, which later evidence established to be the case, then the plaintiff was expected to develop degenerative changes and further restrictions with time particularly with regard to keyboarding or the use of force which may impact on her continuing employment capacity.
In relation to domestic assistance, Dr Davis expressed the opinion that while there was no requirement to provide the plaintiff with any form of domestic assistance at this time as she resides at home and does perform some of the domestic chores, she was likely to develop degenerative changes in the left wrist in the future which would require some paid commercial domestic assistance. He outlines his opinion as to the hours needed.
In a further opinion dated 7 May 2019, Dr Davis assessed a permanent impairment only because of the plaintiff’s scarring.

Report of Mr Herrera

The plaintiff relied on a report of Mr V Herrera, psychologist, dated 1 July 2019, following an assessment on that day. The assessment was conducted by means of the administration of tests of emotional functioning together with an interview. In the history, Mr Herrera noted that the plaintiff stated she had no trouble adapting to high school and she had a number of friends and got on well with her teachers. She rated herself as an average student who had experienced difficulty with memory and concentration. While the plaintiff was considering the possibility of attending TAFE, she did not consider herself to really be academically minded: Exhibit A paragraph 62.
In relation to her past history, Mr Herrera does not refer to the plaintiff’s epilepsy. The plaintiff noted that although she initially saw a psychologist after the accident she began seeing another psychologist in April 2018 and felt that the treatment was helping her. The plaintiff referred to having in 2016 flashbacks and nightmares with the latter starting to reduce after approximately two years with them now not occurring often. Mr Herrera reports a history of the plaintiff being left with constant pain when she becomes active. This is inconsistent with other medical evidence. In relation to medication, the plaintiff confirmed that she took medication on a needs basis, usually once or twice a week, which was consistent with the report of Dr Davis.
Following setting out her psychological symptoms including nightmares, fear of being in a car and feelings of isolation and being overwhelmed emotionally, Mr Herrera diagnosed post-traumatic stress disorder: Exhibit A page 69. It is noted that this conclusion is inconsistent with the psychiatric evidence from the psychiatrists. He strongly recommended the continuation of psychological therapy. He held reservations that even after 12 months that the plaintiff’s psychological position would be significantly improved: Exhibit A page 72.

Report of Dr Korber

The plaintiff relied on a report of Dr John Korber, radiologist, dated 8 October 2019. Dr Korber considered the opinion of Professor Cumming in his report of 30 August 2019 that his review of the x-rays did not show that the fracture of the plaintiff’s wrist involved the articular surface. After reviewing the various radiological films, Dr Korber noted a screw remaining in the plaintiff’s wrist which was “slightly proud” but probably still in the plaintiff's cartilage. He expressed the view that the fracture of the distal radius entered the radio carpal joint. He disagreed with Professor Cumming’s opinion in his 30 August 2019 report that the fracture did not involve the articular surface of the wrist and stated that there was no doubt that the fracture entered the radio carpal joint. It is noted that after seeing further x-rays, Professor Cumming had retracted this opinion and accepted that the fracture did involve the articular surface of the wrist.
Dr Korber stated that it was beyond his expertise to suggest whether the plaintiff was likely to develop degenerative changes in her wrist.
Accordingly, Dr Korber's opinion essentially is consistent with the revised opinion of Professor Cumming.

Report of Ms Cogger

The plaintiff relied on a report from Ms N Cogger, occupational therapist, dated 27 September 2019 following an assessment on the previous day.
The summary of Ms Cogger's report is at Exhibit A page 75. This includes a summary of the plaintiff’s injuries and initial treatment which is consistent with the other evidence. Ms Cogger states that the plaintiff reported difficulty with crouching, repetitive push/pull movements and avoided lower limb movement. Reduced lifting capacity in the left hand and sitting capacity were noted. Ms Cogger observed the plaintiff heavily using her dominant right hand which she stated may cause a risk of developing an overuse injury.
Ms Cogger recommended commercial assistance with domestic and gardening tasks in Section 8 of her report. Certain equipment was also recommended.
At paragraph 4.4, Ms Cogger notes that prior to the accident the plaintiff was responsible for cleaning her own room and making her bed but that her mother did the majority of the domestic chores. At paragraph 4.5, it is noted that the plaintiff enjoyed mowing the lawn and would mow the lawns when needed at her paternal grandparents’ home. At paragraph 5.1.5, it is recorded that the plaintiff reported that she takes Panadol daily when she gets home from school. This is inconsistent with the report of Dr Davis and the report of Mr Herrera who had analgesic relief only when necessary. It is also inconsistent with the plaintiff’s own evidence.
In relation to the personal activities of daily living recorded, it is noted that the plaintiff does not run as this increases her pain. This is inconsistent with the plaintiff’s sports as reported to Professor Cumming and the plaintiff’s school reports. It is also inconsistent with the exercise physiology reports from 2016.
At paragraph 5.4.5 of the report, it is noted that due to the gap in her schooling the plaintiff fell behind at school and her mother is recorded as stating that she has never caught back up. This is inconsistent with the report of Dr Davis. Fairly frequent pain is recorded: paragraph 5.4.7. At paragraph 5.4.11 the plaintiff's interest in working in childcare is noted. See also paragraph 6.7 where working with preschool level children is stated to be a potential suitable option as it would involve avoiding repetitive lifting.
Ms Cogger makes recommendations for various assistance including vocational counselling and functional capacity evaluation, ongoing treatment from a psychologist and a pain management programme: paragraphs 6.7-6.9. Ongoing commercial assistance with domestic and gardening tasks is recommended: paragraphs 6.10 and 8.2. Gratuitous assistance in the past is also outlined as recommended in paragraph 7: see paragraph 7.9.4. These recommendations are substantially disputed by the occupational therapist retained on behalf of the defendant.

Evidence for the defendant

Medicolegal reports

As indicated above, the defendant also relied on a number of medicolegal reports. The defendant tendered the certificates and reasons of Dr Myers and Dr Newlyn which had also been tendered by the plaintiff.

Reports of Professor Cumming

The defendant relied on several reports from Professor William Cumming, orthopaedic surgeon. Professor Cumming is a highly experienced orthopaedic surgeon with extensive experience in dealing with orthopaedic issues relating to children including 20 years of practice at the Children's Hospital in Sydney.
Professor Cumming’s first report was dated 28 March 2019 after an examination on that date. The history set out in the first report noted that the plaintiff was away from school for two months after the accident and has returned to all activities at school. The current symptoms complained of by the plaintiff were that she gets an ache at the top of her right leg and a pain in her left wrist including when she plays volleyball or sport. She reported that her injury to her right foot affecting her toes was without symptoms. Professor Cumming set out the plaintiff's background of epilepsy and that her epileptic condition had not altered since the accident.
The plaintiff informed Professor Cumming that she was able to do her share of activities around the house within her abilities and that she had returned to all sports and all activities at school. Her father, who accompanied the plaintiff, noted that she may complain of pain in her left wrist with activities at home such as ironing although Professor Cumming noted that the plaintiff was right dominant: Exhibit 1 page 3. Upon examination, Professor Cumming noted the plaintiff’s scars and that she had a full range of movement of all articulations of her upper limbs with the exception of her range of movement of her left wrist which was restricted on the right side. The plaintiff also had a full range of right hip movement. Professor Cumming stated that no cause for any right hip or left wrist region pain was identified.
After reviewing the various x-rays available to him, Professor Cumming set out the plaintiff's various injuries: Exhibit 1 page 9. He found that the right femur fracture has proceeded to sound union without any clinical evidence of ongoing abnormality and similarly there was no clinical evidence of ongoing abnormality with the left wrist. He noted some slight limitation of movement with the left wrist. However, the range of movement of the left wrist was in Professor Cumming’s view within normal limits.
Professor Cumming expressed the opinion that there were no significant disabilities although the plaintiff gets discomfort in her left wrist and some occasional pain when playing volleyball. However, the limitation of extension of the wrist was in the Professor’s opinion, within normal limits. Professor Cumming noted that the plaintiff had returned to all activities at school including in physical education and she could run in the corridor on examination. He was of the opinion that there was not “any ongoing disability of significance in the three areas injured in particular, i.e., the right femur, the left wrist, fractured radius, scaphoid and the right foot”: Exhibit 1 page 12. He was also of the view that the plaintiff may have intermittent symptoms with heavy stress activities to her left wrist. As it was on the non-dominant side, he was of the view that this would not influence the plaintiff's career prospects. He said the plaintiff did not require physiotherapy in the future. He also stated that it was not uncommon for children or adults who have a fracture in the region of the joint to have some symptoms for a period of up to five years with significant physical or emotional stress. He saw no need for review by a physiotherapist, general practitioner or orthopaedic surgeon. He also saw that the injuries would place no stress on the plaintiff’s back or limbs and thus there would be no effect on her capacity to work. He also saw no reason for any need for future domestic assistance for the physical injuries.
In his second report dated 16 August 2019, Professor Cumming expressed the opinion that it was almost certain that the plaintiff would go through life without significant residual problems but he had some concerns about her wrist: Exhibit 1 page 15. He said his opinion was not altered as to future care by reviewing the opinion of Dr Davis.
In his third report dated 30 August 2019, Professor Cumming expressed his view following a review of some x-ray films that the fracture of the distal radius in the wrist did not involve the articular surface. After later seeing additional radiological evidence, he altered this view. He disagreed with Dr Davis that the plaintiff was likely to develop degenerative changes in her wrist: Exhibit 1 page 20. In particular, he noted in his report dated 20 September 2019 that the plaintiff had apparently returned to full and free activity which in his view was significant and she had a good range of movement. Overall, he was of the opinion that the plaintiff had a good prognosis in relation to the wrist: Exhibit 1 page 23.
In his 18 October 2019 report following a review of further radiological evidence and the report of Dr Korber, Professor Cumming accepted that the fracture of the wrist had entered the articulation part of the wrist. Professor Cumming accepted Dr Korber’s view but still believed that it was likely that in view of the plaintiff's age and the improvement in the injury, that the prognosis was good. He stated:

“There is a less than probability that she will develop symptoms in her wrist in later life because the fracture has been anatomically reduced in a young person capable of moulding. Furthermore, she is reaching the stage of skeletal maturity and I do not think that any epiphyseal cross union is likely to be a significant problem for the future for the production of any deformity … There is also a slightly greater chance that AB may have symptoms in later life but I am still of the opinion that it is likely to be improbable.
I am an orthopaedic surgeon of 60 years’ experience including some 20 years at the Royal Alexandra Hospital for children and ongoing care of trauma throughout that practical lifetime.
I have never seen a patient (as a child who has suffered an upper extremity intra-articular fracture of the radius) present in later life with related symptoms to that injury, even when that fracture has involved the articular surface and the growth plate”: Exhibit 1 pages 28-29.

The fact that Professor Cumming agreed with Dr Korber’s view as to the fracture of the articular surface of the wrist, is confirmed in a letter to Dr Korber from Professor Cumming dated 18 October 2019: Exhibit 1 page 31.

Reports of Dr Rikard-Bell

The defendant relied on two reports of Dr C Rikard-Bell, psychiatrist.
In the end, the plaintiff adopted the opinions in the reports in support of her case.
In his first report dated 14 September 2017, Dr Rikard-Bell noted the plaintiff’s past medical history and the absence of any previous psychiatric problems. On examination, Dr Rikard-Bell noted anxiety, a reactive affect and the absence at the time of examination of continuing nightmares. Dr Rikard-Bell was of the view that the plaintiff had an adjustment disorder with anxiety and that the symptoms were mild. He noted that the plaintiff did not want any future psychological treatment at that time, although he was of the view that another six treatments would be helpful. He was of the view that her future work capacity had not been impaired.
In his second report dated 7 June 2019, following a re-examination on 21 May 2019, Dr Rikard-Bell noted ongoing anxiety and depression and that the plaintiff had seen a new psychologist due to unresolved issues. The plaintiff was particularly concerned about the future of her father and had episodes of feeling down and not coping well. During the examination, at times the plaintiff was quite distressed when talking about her father's injuries and she described her mood as generally happy with but with some depression at times.
Dr Rikard-Bell diagnosed a persistent and continuing adjustment disorder with some anxiety and depressive symptoms: Exhibit 1 page 53. He stated:

“I believe overall the prognosis is a little guarded in that her father continues to be unwell and in pain. AB feels responsible for her father and this is creating some uncertainty for her future”: Exhibit 1 page 55.

Dr Rikard-Bell recommended another 12 sessions with a clinical psychologist at a cost of $250 per session.
The plaintiff’s psychologist, Mr Herrera, recommended an additional 24 to 36 treatments.
In oral submissions, counsel for the defendant accepted that this was an area in which the court would lean to be generous and to grant the plaintiff an appropriate sum to have the necessary treatments which were likely to be more than what Dr Rikard-Bell recommended.

Report of Mr Misczuck

The defendant relied on a report of Mr Mateusz Misczuck, occupational therapist, dated 17 October 2019 following an assessment on 8 October 2019.
In his executive summary of his report (Exhibit 1 page 57), Mr Misczuck notes that the plaintiff was responsible for mowing the lawn prior to the accident at her own house. The oral evidence suggested that whilst the plaintiff did this on occasions it was more to assist and the father was also involved in the mowing.
He noted the plaintiff reporting pain and discomfort in her right femur from squatting or prolonged walking and pain in her wrist during sustained postures. Despite this, he said she was independent with all personal care activities and had assisted her mother in the completion of domestic chores and had returned to mowing the lawn.
Mr Misczuck supported past assistance for two periods up to 12 May 2016 but no substantial assistance after that date. At paragraph 7, Mr Misczuck referred to the plaintiff's current physical symptoms and the opinion of the plaintiff's mother that her anxiety and depression as a result of the accident continues to be her main symptoms: Exhibit 1 page 66. Mr Misczuck considered Ms Cogger's report in paragraph 10 of his report. He was of the view that Ms Cogger’s timeframes for domestic assistance were excessive and based on self-reporting and did not fully consider how the plaintiff’s roles had changed since moving into her maternal grandmother's house. His analysis is set out from Exhibit 1 pages 69 and following which includes that until September 2016, the plaintiff's mother was primarily responsible for the completion of domestic activities.
Past gratuitous care was considered reasonable only for those periods when the plaintiff was non or partial weight bearing and recovering from her accident related injuries.
In part 17 of his report, Mr Misczuck analyses Ms Cogger’s report in detail and does not support her recommendations for equipment, treatment and future gratuitous assistance: Exhibit 1 pages 88-89.

Submissions

Counsel for the plaintiff provided lengthy submissions in writing. In summary, the plaintiff submitted:

The accident in which the plaintiff was involved on 1 April 2016 was a serious motor vehicle accident;

The plaintiff was subject to a number of procedures following her numerous fractures including an open reduction and internal fixation with an intra-medullary nail to her right femur;

Dr Davis was of the view that the plaintiff would have degenerative changes in the future;

That opinion of Dr Davis should be accepted: paragraph 11;

The medical evidence supported the plaintiff's complaint of ongoing pain and discomfort in the left wrist and right leg: paragraph 13;

Although Mr Herrera had diagnosed a post-traumatic stress disorder, the alternative diagnosis by Dr Newlyn and Dr Rikard-Bell of an adjustment disorder with anxiety should be preferred;

The plaintiff's psychological condition will mean that the plaintiff will continue to be troubled by psychological symptoms well into the future: paragraph 23;

Although the oral evidence did not support the conclusions of Ms Cogger in her report, the report should nevertheless be accepted;

The plaintiff's injuries caused by the accident included the fractures to the right femur, left wrist, toes on the right foot, scarring and an adjustment disorder with anxiety and depressive features: paragraph 32;

The plaintiff's right leg and left wrist injuries continued to be symptomatic and restricted her capacity for certain physical activities;

Amounts should be allowed for future treatment expenses for analgesics, a pain management programme, vocational counselling and a functional capacity evaluation and psychological treatment for 36 sessions: paragraphs 40-42;

In relation to loss of earning capacity, the plaintiff's most likely future circumstances but for the injury was a career in childcare. It was very unlikely that the plaintiff would attend university after high school absent the accident. Alternatively, the plaintiff would be involved in work having a significant manual component but for the accident: paragraph 56. The opinion of Dr Davis should be preferred that the plaintiff will have limitation in her activities due to her injuries and continuing development of degenerative changes in the left wrist affecting her earning capacity: paragraphs 59 to 60. The diminution in the plaintiff's earning capacity is or may be productive of financial loss and a buffer in a significant amount should be awarded in the sum of $250,000 which takes into account loss of superannuation and contingencies;

Amounts should be awarded for past gratuitous domestic assistance and future domestic and commercial assistance as recommended by Ms Cogger: paragraph 65-78;

Amounts should be awarded for the costs of funds management.

The defendant submitted, in general summary, as follows:

No submission was made that the evidence of the plaintiff or CB and BB should not generally be accepted;

Despite the serious nature of the accident, the plaintiff had made a significant recovery;

Having regard to his experience and eminence including his extensive expertise in relation to children, the opinions of Professor Cumming should be clearly preferred to those of Dr Davis. In particular, Professor Cumming should be accepted that it was not more probable than not that there would be future degenerative changes in the plaintiff's wrist. Professor Cumming’s opinion that it was not unusual for someone following a fracture to have complaints for up to five years should also be accepted. There was no evidence to suggest that the plaintiff's physical or mental conditions would be productive of financial loss;

It should be accepted that the plaintiff has an adjustment disorder with anxiety and depressive features as stated by Dr Rikard-Bell. The court should be generous in awarding an amount for proper treatment for this condition;

The oral evidence did not support Ms Cogger's opinion in relation to past or future domestic or commercial assistance. Ms Cogger's report should be rejected;

Having regard to the fact that the plaintiff only took occasional over-the-counter analgesics, a sum for a pain management programme was inappropriate. In addition, the sum for suggested vocational training and advice was inappropriate as it was clear that the plaintiff was interested in a career in child-care;

No amount should be awarded for the cost of funds management having regard to the limited amount of the damages to be awarded.

Factual findings

I have already set out a number of factual findings above. I find the plaintiff was involved in a serious motor vehicle accident on 1 April 2016 as a pillion passenger on the back of a motorcycle driven by her father. I find that she was taken by ambulance to Westmead Children's Hospital. I have already set out my factual findings above in relation to her treatment whilst at Westmead.
The plaintiff was discharged from hospital on 11 April 2016 and, as I have indicated, in due course undertook a course of physiotherapy and obtained psychological assistance.
I find that the plaintiff returned to school in June or July 2016 still wearing a cast on her wrist and with the assistance of a crutch. Although the plaintiff did not commence school sport until the end of 2016, I find that by September 2016 the plaintiff informed both her physiotherapist and exercise physiologist that she was doing well, was running and was jumping and hopping: Exhibit A pages 713 and 733.
I find that the plaintiff will continue to complete Year 12 at her current school. It is highly likely that the plaintiff will then do a TAFE course and seek a career in childcare which she strongly likes. Her parents support this career future.

Medical findings

Having regard to the medical evidence, I find that the plaintiff sustained the following physical injuries in the accident:

Various soft tissue injuries which have not continued to cause her any problems;

Various abrasions which have not caused the plaintiff any continuing problems;

A comminuted fracture in the mid-shaft of the right femur which was surgically treated with an open reduction and the insertion of an intra-medullary nail which has since been removed;

A fracture through the left distal radius including the articular surface as well as an undisplaced fracture of the left scaphoid which was surgically treated with K-wires which have since been removed;

Fractures involving the right foot including a number of the toe bones which have since healed and which give the plaintiff no further problems;

Scarring to the right leg and left wrist;

In relation to psychiatric injuries, an adjustment disorder with anxiety and depressive features.

In substance, I accept the submissions of the plaintiff in paragraph 32 of the plaintiff’s written submissions which are generally consistent with the expert medical opinion in the case.
I accept the plaintiff's evidence that she continues to have problems and pain with her right leg and left wrist. The pain in the right leg occurs following walking for more than 30 minutes or standing or sitting for lengthy periods. The plaintiff had pain in her right leg following her recent work experience at a childcare centre at the end of the day. The plaintiff also has problems with her left wrist following repeated or excessive use.
There is an issue between the parties as to whether it is likely that the plaintiff will have degenerative problems with her left wrist in the future. Dr Davis is of the opinion that she will. Professor Cumming is of the opinion that she will not. Overall, I prefer the opinion and analysis of Professor Cumming on this issue having regard to his extensive experience and expertise, particularly with children. I also accept the opinion of Professor Cumming that the plaintiff’s injuries are unlikely to affect her employment through generally placing strain on her back and limbs. There is no evidence to support this: Exhibit 1 page 12.
There is a significant issue between the parties as to whether the plaintiff’s other current physical symptoms will be ongoing and, if so, for how long. Dr Davis has stated the opinion that they will be. Professor Cumming in his reports states that it is not uncommon for children or adults who have a fracture in the region of the joint to have some symptoms for a period of up to five years with significant physical or emotional stress: Exhibit 1 page 12. He is of the view that the plaintiff's injuries will not affect her capacity to work. In a later report (Exhibit 1 page 29), Professor Cumming, while accepting that there was a slightly greater chance that the plaintiff may have symptoms in later life because the fracture involved the articular surface of the wrist, was still of the opinion that it was improbable that she will have continuing symptoms and he had not seen a patient present in later life with related symptoms to that injury even when the fracture has involved the articular surface and the growth plate. See also Exhibit 1 page 28 last two paragraphs. The defendant submits that this opinion should be accepted. The plaintiff submits that the fact that Professor Cumming has not seen a patient with such continuing symptoms does not suggest that a patient would not have presented to their general practitioner or other doctors for support with continuing problems.

While I reject Dr Davis' opinion that it is likely that the plaintiff will have degenerative changes in the wrist in the future, as I prefer Professor Cumming’s opinion on this issue, in my view based on the whole of the evidence, it is likely that the plaintiff will have some continuing physical symptoms in her left wrist and right hip for a number of years. This is for the following reasons:

As submitted by the plaintiff, although patients may not have presented to Professor Cumming complaining of ongoing mild pain they may well have presented to their general practitioner or other medical practitioners with continuing symptoms. Professor Cumming is a senior specialist. It is likely mild pain symptoms would have been taken to a general practitioner not someone like him. The plaintiff herself has not recently consulted an orthopaedic specialist about her continuing pain;

At Exhibit 1 page 11 Professor Cumming refers to the fact that there was no ongoing disability “of significance”. This does not rule out the continuing presence of physical problems in the wrist and right leg in the future of a less significant nature;

Professor Cumming at Exhibit 1 page 26 notes that from an orthopaedic surgical point of view the injury was a “high-energy injury with a gross displacement of the distal fragments of the wrist injury”. He later refers to the area where there was a fracture on the articular surface as being “a load-bearing area of significance for the future”;

The plaintiff has had continuing problems in both areas over several years. While it is true that she is only 15 and, as Professor Cummings states, she has not yet reached the stage of skeletal maturity (Exhibit 1 page 28), the continuation of the symptoms over such a lengthy period of time suggests an ongoing condition of mild intermittent complaint for some period;

However, I accept that the symptoms will likely reduce. It is noted that the opinion by Professor Cumming at Exhibit 1 page 12 was given without access to all of the radiological evidence. At Exhibit 1 page 28 Professor Cumming expresses the view that the wrist is not likely to be “a significant problem for the future” which does not rule out some continuing difficulties.

In summary, while I accept that the evidence does not support that the plaintiff's condition in her hip and wrist will degenerate, the evidence on balance supports a continuing problem in the plaintiff in her hip and wrist for the future for an uncertain period which is likely to be several years.
In relation to the plaintiff’s psychiatric problem, the evidence establishes that the plaintiff has an adjustment disorder with anxiety and depressive features. I prefer the opinions of Dr Newlyn and Dr Rikard-Bell to that of Mr Herrera. I find that the plaintiff does not have post-traumatic stress disorder and this was not pressed by counsel for the plaintiff. The plaintiff's presentation in court and the most recent opinion of Dr Rikard-Bell establish to my satisfaction that the plaintiff’s prognosis for the future is uncertain and she may require a lengthy period of treatment with the results still being uncertain. Her recent anxiety symptoms before she commenced at her work experience (when she was physically sick) support the fact that the condition is more than the mild symptoms found by Dr Rikard-Bell in his first report.
In relation to the competing occupational therapist reports, I strongly prefer the opinion of Mr Misczuck to that of Ms Cogger. First, Ms Cogger’s factual basis for her claim for past domestic assistance in relation to the plaintiff's alleged domestic duties performed prior to the accident was not supported by the oral evidence. Secondly, the oral evidence established that the plaintiff's father now undertakes the outdoor mowing not the plaintiff. In addition, the plaintiff completed mowing as a 12-year-old only occasionally before the accident and the services are not provided in relation to her own premises. The plaintiff will remain living with her parents for the foreseeable future and after that there is no indication of where she will live and she may well live in a unit. Thirdly, in my view the evidence does not support the hours of domestic assistance set out by Ms Cogger in relation to the third period in her report: paragraph 7.8 at Exhibit A page 89 and paragraph 7.9.4 at Exhibit A page 91. There was no oral evidence from the plaintiff or from BB that services were provided for these hours. The reports from the physiotherapist and exercise physiologist for September 2016 provide objective evidence which is directly inconsistent with Ms Cogger's recommendations.
Fourthly, even taking into account her mother's recent heart issues, in my view there is no evidence supporting the recommended domestic assistance in the future. The plaintiff's mother undertakes most of the domestic duties presently with some assistance from CB as he is recovering. The plaintiff herself also provides domestic assistance seemingly at a rate greater than before the accident. As indicated, I have preferred Professor Cumming’s opinion to that of Dr Davis in relation to the suggestion of future degenerative changes.
The plaintiff gave evidence that she only occasionally takes Panadol and tries to avoid it. In those circumstances, I do not support Ms Cogger's recommendation of a pain programme. The pain the plaintiff complains about is neither chronic nor disabling and she does not take prescription painkillers.
I also reject the suggestion of vocational counselling. It seems clear from all the evidence that it is highly likely that the plaintiff will continue with a childcare career. However, the plaintiff may obtain some benefit from some consultations with a physiotherapist in relation to exercise activities and lifting techniques which will assist her in undertaking activities in her childcare activities. I allow a sum of $500 for this.
There was also no oral evidence supporting the equipment recommendations of Ms Cogger. I prefer the reasoned opinion of Mr Misczuck that these recommendations are not warranted.

Consideration

Duty of care and breach of duty of care

It was not in dispute that there was a breach of duty of care by the defendant.

Contributory negligence

No contributory negligence was alleged against the plaintiff.

Causation

It was not disputed that the injuries which I have found above were caused by the accident. In other words, but for the accident, the injuries which I have found would not have occurred. Causation is thus not in dispute.

Damages

Non-economic loss

There is no claim made by the plaintiff for non-economic loss as she has not exceeded the threshold under s 131 of the Act.

Past out-of-pocket expenses

The past out-of-pocket expenses were agreed at $12,047.07.

Future out-of-pocket expenses

I have rejected above the plaintiff's claim for the cost of a pain management programme. I have also rejected the claim for vocational counselling and a functional capacity evaluation. I have allowed the sum of $500 for her physiotherapy advice and the development of an exercise programme.
The plaintiff has occasional needs for non-prescription analgesia and possibly anti-inflammatory medications. Her evidence was that she sought to avoid taking these. Having regard to that evidence I allow $300 only under this head.
Additional amounts are sought for consultations with a general practitioner and an orthopaedic surgeon in the future. The plaintiff on all the evidence is receiving no current treatment. I can see no need for any review by an orthopaedic surgeon. I allow $500 for ongoing review by her general practitioner when needed.
The plaintiff seeks the sum of $7,100 for further psychological counselling. This is on the basis of the recommendation of Mr Herrera for 36 sessions opposed to the 12 sessions recommended by Dr Rikard-Bell.
In submissions, counsel for the defendant said that the court should err on the side of generosity for this head of damages and said that the sum could be somewhere between $10,000 or $15,000. BB said that the cost of a session was $185.
Erring on the side of caution, having regard to the lengthy duration of the plaintiff’s psychological problems, the more recent report of Dr Rikard-Bell, Mr Herrera’s opinion as to the number of recommended consultations, the plaintiff's presentation in court and the evidence of her parents, I allow the sum of $8,000 which permits a number of consultations for a period of two to three years.

Future loss of earning capacity (inclusive of superannuation)

Counsel for the plaintiff submits that the plaintiff has suffered a substantial loss of future earning capacity and that the amount of $250,000 should be awarded as a buffer: see paragraphs 44-64 of the plaintiff’s written submissions.
The defendant submits that no amount should be awarded for a loss of future earning capacity or, if that submission is rejected, the amount awarded should be an amount which does not exceed $10,000 or $20,000.
I take into account:

The plaintiff’s pre-accident interest in children and her baby sitting;

The oral evidence relating to the plaintiff’s great interest in childcare after the accident, including her recent work experience at a childcare centre;

The plaintiff’s undertaking of studies in childcare at school and her success in those studies;

The plaintiff's desire for a career in childcare which is supported by her parents;

The plaintiff’s ongoing epilepsy condition and her “absences” as described by her parents and in the medical evidence: see Exhibit A pages 739-741;

The plaintiff’s current psychological condition and the uncertainty in the prognosis as to her future arising from this condition;

The plaintiff’s ongoing problems with her left wrist and right hip as I have found above;

The plaintiff’s otherwise modest academic performance and, in particular, her difficulties with mathematics.

Any award of damages for loss of future earning capacity under the Act is regulated by s 126 of the Act which provides as follows:

“126  Future economic loss—claimant’s prospects and adjustments MAA)
(1)  A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2)  When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3)  If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

The defendant relied on the decision of Fegin bht Rozenauers v Lane Cove House Pty Ltd [2007] NSWCA 88. There, the Court of Appeal refused leave to appeal in relation to a decision by the trial judge not to award a 16 year old plaintiff who had been injured in her fingers when she was four years old damages for loss of future earning capacity. The trial judge found that the plaintiff was interested in a career in law having regard to her father being a solicitor. Although the trial judge found that the plaintiff had difficulty in extensive typing or keyboard work, her Honour also found that the plaintiff would have been unlikely to engage in occupations of this nature, irrespective of the injuries. Even accepting the plaintiff’s difficulties in keyboard entry, on the evidence the trial judge was not persuaded that the plaintiff was likely to suffer any economic loss as a consequence.
The Court of Appeal noted that it was open to a trial judge to assess damages by way of a buffer in circumstances in which the impact of the injury upon the economic benefit to be obtained from exercising earning capacity after injury was difficult to determine. The Court of Appeal stated as follows in paragraphs 25 and 26:

“[25] The claimant was not entitled to recover damages for loss of future earning capacity unless she established both impairment in capacity and that such impairment may be productive of financial loss: Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1 per Deane, Dawson, Toohey and Gaudron JJ at 3; Graham v Baker (1961) 106 CLR 340 at 347.
…
[26] In the absence of evidence that the claimant was at risk of interruption to her employment occasioned by her reduced capacity to type for extended periods without a break, or that any reduction in her efficiency on this account might occasion her financial loss, it was not necessary for the Judge to deal with these submissions more fully than appears in the judgment. As a matter of common experience, a professional person (or a person employed in a managerial role) may work more efficiently if he or she has well developed touch-typing skills. Nonetheless, to posit that a person in employment of this description who has difficulty typing for sustained periods without a break may suffer financial loss arising from this circumstance may be thought somewhat fanciful.”

The plaintiff submitted that when one considered the plaintiff’s wrist and hip as well as the persistent adjustment disorder, there was no doubt that the diminution in the plaintiff’s earning capacity “is or may be productive of financial loss” within Graham v Baker (1961) 106 CLR 340 at [347]. The plaintiff also quoted the detailed consideration of this issue in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [22]-[36].
Section 126 of the Act does not depart from or vary the general common law principle that the compensable loss to a plaintiff is not a loss of specific income but the loss of capacity to earn income in the future which “is or may be productive of financial loss”: Graham v Baker, above, at 347; New South Wales v Moss (2000) NSWCA 133; (2000) 54 NSWLR 536 per Heydon JA at [71]; Allianz Australia, above, at [24]. Unlike in many cases, in the case of a child, there is no evidence of past earning capacity which provides an evidential basis to assess the loss of future earning capacity. It is accepted that the plaintiff in establishing a diminution in earning capacity is not required to identify with precision the value of the loss.
In New South Wales v Moss, above, Heydon JA stated as follows at [84]:

“84 An illustration of the court's readiness to award damages for diminution of earning capacity arises when very young children are injured. Strictly speaking it would be impossible to prove that the child would have had an earning capacity as an adult or would have exploited it. But it is conventional to rely on the occupations, attitude to life and work histories of parents and other relatives: Kalo v Bristol Omnibus Co Ltd [1975] 1 WLR 1054; Gowling v Mercantile Mutual Insurance Co Ltd (1980) 24 SASR 321; Bullock v Miller (1987) Aust Torts Reports 80-128; Burford v Allan (1992) 60 SASR 428. See also the position in England described in McGregor on Damages, 16th ed, para 1381-para 1382.”

I also note his Honour’s helpful analysis at [70]-[71] in Moss.
In Sretenovic v Reed [2009] NSWCA 280, McColl JA stated as follows at [79]-[81]:

“[79] I turn then to the issue of future economic loss. The primary judge’s finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent’s future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded.
[80] Compensation for lost earning capacity is awarded because diminution in an injured plaintiff’s earning capacity “is or may be productive of financial loss”: Graham v Baker [1961] HCA 48 ; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72 ; (1981) 150 CLR 402 (at 412).
[81] It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that “a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”.”

It appears from the reasoning of the Court of Appeal in Sretenovic, that a plaintiff must show an injury caused by the accident, the impact of the injury upon the plaintiff is to detrimentally affect the economic benefit to the plaintiff from exercising the earning capacity after injury and the effect of the impact is difficult to determine. It seems to be the position that the award of a buffer or cushion is available in a situation where the precise loss to the plaintiff is difficult to determine and there is a “smallish risk” that the plaintiff's existing employment prospects will be limited or the plaintiff’s capacity to earn in the future has been clearly compromised but how that will affect the earning capacity is uncertain.
Similar statements were made by Justice McColl in Allianz Australia, above, at [16]-[19]. There her Honour stated that the award of a buffer for future economic loss is limited to circumstances where earning capacity has unquestionably been reduced but its extent is difficult to assess. Her Honour also noted that the task of assessing damages including a buffer for loss of earning capacity is “necessarily impressionistic”. See also the comments of Basten JA at [27]-[30] and Macfarlan JA at paragraph [66]-[67]. Basten JA at [25] confirmed that a claimant must establish a diminution in earning capacity resulting from the injury to obtain an award under this head. His Honour also noted that in calculating the damage to a capacity to carry on various careers, it is an exercise in estimation of possibilities, not proof of probability.
Both the plaintiff and the defendant submit that the plaintiff’s most likely future circumstances but for the injury would be a career in childcare particularly with smaller pre-school children. An alternative noted by the plaintiff is work which did not require a high level of cognitive ability, especially numerical ability, such as work having a significant manual component to it: paragraph 56 of the plaintiff’s written submissions.
Based on the evidence:

The plaintiff although being only 12 years old at the time of the accident, had already shown a particular interest in looking after young children and had undertaken babysitting;

Dr Hodge, the neuropsychologist, who carried out an assessment of the plaintiff in September 2015 prior to the accident noted that the plaintiff's progress across all key learning areas was in the average range with the exception of mathematics. Dr Hodge noted that the plaintiff was described as “helpful and hardworking who enjoys caring for younger children”: Exhibit A page 791;

Since the accident the plaintiff has shown a great interest in childcare, undertaking studies at school and school work experience in a child-care centre. Her father noted how happy she was during her work at the child care centre although she had initial serious anxiety about starting there;

There is no prior earnings to consider in the present case as the plaintiff was a child when she was injured;

Taking all of the above matters into account I find that the plaintiff’s most likely future circumstances but for the injury would be to work full time in a childcare centre after completing a TAFE course in childcare. However, having regard to the evidence of the plaintiff’s epilepsy and her “absences” I find that it is very unlikely that the plaintiff would undertake the care of babies as opposed to toddlers and older aged pre-school children. Counsel for the plaintiff appeared to accept this in oral submissions.

As I have found, the plaintiff clearly has continuing problems arising from her injuries in the accident:

The plaintiff’s adjustment disorder with anxiety and depressive features which was diagnosed by Dr Rikard-Bell and Dr Newlyn in 2017 and continues in existence with Dr Rikard-Bell emphasising the need for future treatment. The medical evidence establishes that this is partly linked to the plaintiff's concern about her father's condition. Her father was seriously injured in the accident. He gave oral evidence to the court and has had, on the face of it, a remarkable recovery. However, I find that the father was not a complaining type and he referred to his ongoing psychological and psychiatric treatment;

Her continuing problems with her right hip and with her left wrist. The plaintiff gave evidence about these areas being sore at the end of her day working in childcare for a recent work experience.

The plaintiff’s psychological problems have been longstanding and, it appears, have recently become somewhat more problematic leading to the recommendation for further consultations by Dr Rikard-Bell and Mr Herrera. It is uncertain whether the treatment contemplated will lead to a resolution of the plaintiff’s psychological problems. As they appear to be partly linked to the plaintiff's father's situation, it would seem that it is likely that the symptoms will continue for some time. There is no suggestion that the plaintiff will not continue to live with her family for the foreseeable future. The plaintiff’s problems with her wrist and her leg also appeared to be continuing.
The psychiatric injury alone is likely to affect the plaintiff’s earning capacity for some time. It is likely to continue to make the plaintiff anxious, probably suffer stress in dealing with some parents at the childcare centre or difficult children and may likely lead the plaintiff initially only working part-time or at reduced hours. As an additional but entirely separate factor, the plaintiff, having regard to the longstanding nature of the problems, may have additional difficulties with her wrist and her leg. These would be a further factor which would be likely to lead the plaintiff to work part-time or in reduced duties for a closed period. However, the psychiatric issue, having regard to its persistence is sufficient alone to be considered relevant to a loss of future earning capacity.
Accordingly, I find that there have been injuries arising from the accident and which are likely to affect the plaintiff’s future earning capacity by reducing it for a closed period. In the light of the authorities I have referred to, I think that there is at least a smallish risk that the plaintiff’s reduced earning capacity will result in less earnings in the future as a consequence of the injuries. The extent of that reduction is unclear. Difficulties of assessment of precise loss should not stand in the way of the court awarding a buffer. In my view, it is appropriate to award a buffer in the present case. However, having regard to the amount allowed for future treatment and the medical evidence of Professor Cumming, I do not think the buffer should be anywhere near that sought by the plaintiff. Nevertheless, I think the defendant’s suggestion of $10,000-$20,000 if I find the requirements for a buffer satisfied is also inadequate. Taking the factors into account which I have set out above, I allow a buffer in the amount of $50,000 representing a likely closed period of reduction in earning capacity productive of financial loss until the plaintiff reaches her early twenties. This includes an amount for superannuation lost and a reduction for the usual contingencies.

Future commercial domestic assistance

I have preferred above the occupational therapist retained on behalf of the defendant to the opinion of Ms Cogger in relation to the need for future domestic and commercial assistance. I prefer the opinion of Professor Cumming that no such assistance is necessary. The lawn mowing is now completed by the plaintiff’s father. The need for other domestic assistance is in my view not established.

Past domestic assistance

Under s 141B(3) of the Act, no compensation is to be awarded to a plaintiff for attendant care services unless the services are provided for at least six hours per week and for a period of at least six consecutive months.
In my medical findings I preferred the occupational therapist retained on behalf of the defendant to the report of Ms Cogger on behalf of the plaintiff. Although extensive attendant care services were provided to the plaintiff shortly after the accident, I am not satisfied having regard to the objective evidence and the oral evidence that services were provided for at least six hours per week to the plaintiff for a period of at least six consecutive months. The objective evidence from the physiotherapist and the exercise physiologist suggests that the plaintiff had made a reasonable recovery by September 2016 although the nail was removed the next month. There was no evidence from CB or BB to support the claim. Accordingly, no amount should be allowed.

Cost of funds management

There was agreement between the parties that the appropriate percentage in relation to the cost of funds management was 9%. The plaintiff submitted that it was appropriate to award an amount for the costs of managing the damages awarded. Reference was made in paragraph 79 of the plaintiff’s submissions to two authorities. Reliance was placed on the decision of Russell DCJ in Cairncross v Hewagama [2018] NSWDC 166 at [60] to award the costs of funds management. The two authorities referred to by counsel for the plaintiff seem to justify the award of an amount for funds management because of the expenses that would be incurred in administering the plaintiff's judgment moneys on her behalf. This was the approach taken by Bell J in Russell v Rail Infrastructure Corporation [2007] NSWSC 447. Judge Russell followed this approach. Although the defendant argued against it on the basis that the sum involved was small and the Public Trustee would administer it anyway, I propose to follow the decisions of Justice Bell in Russell and Judge Russell in Cairncross in the absence of contrary appellate authority. Accordingly, 9% of the damages awarded in the other heads should be added to the sum. There are no obvious reasons why the plaintiff should pay for the funds management costs because she is a child rather than the negligent defendant.

Total of damages

Non-economic loss

No claim

Past out-of-pocket expenses

$12,047.07

Future out-of-pocket expenses

$9,300.00

Future loss of earning capacity

$50,000.00

Future domestic/commercial assistance

$Nil

Past domestic assistance

$Nil

Cost of funds management

9% of the damages awarded in

the other heads equalling

$6,421.24

TOTAL

$77,768.31

Determination

In the light of my conclusions I make the following orders:

Judgment for the plaintiff in the sum of $77,768.31.

The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

Liberty to the parties to apply within 14 days to vary the order in (2) above or to correct any mathematical errors in my calculations.

Exhibits to be returned in 28 days.

Pursuant to section 77 of the Civil Procedure Act 2005 (NSW), the amount referred to in order (1) is to be paid to the NSW Trustee and Guardian for investment on behalf of the plaintiff until she attains the age of 18 years.

**********

Decision last updated: 22 November 2019

Medium Neutral Citation:	AB v Keanes [2019] NSWDC 693
Hearing dates:	29-30 October 2019
Date of orders:	20 November 2019
Decision date:	20 November 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff in the sum of $77,768.31. (2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed. (3) Liberty to the parties to apply within 14 days to vary the order in (2) above or to correct any mathematical errors in my calculations. (4) Exhibits to be returned in 28 days. (5) Pursuant to section 77 of the Civil Procedure Act 2005 (NSW), the amount referred to in order (1) is to be paid to the NSW Trustee and Guardian for investment on behalf of the plaintiff until she attains the age of 18 years.
Catchwords:	Torts – negligence – motor vehicle accident – liability not in issue – extent of injuries to child pillion passenger on a motorcycle – extent of residual disabilities and injuries in issue – whether plaintiff has established a need for past or future commercial or domestic assistance – whether a loss of future earning capacity established
Legislation Cited:	Civil Procedure Act 2005 (NSW) Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Cairncross v Hewagama [2018] NSWDC 166 Fegin bht Rozenauers v Lane Cove House Pty Ltd [2007] NSWCA 88 Graham v Baker (1961) 106 CLR 340 New South Wales v Moss (2000) 54 NSWLR 536 Russell v Rail Infrastructure Corporation [2007] NSWSC 447 Sretenovic v Reed [2009] NSWCA 280
Category:	Principal judgment
Parties:	AB by her Tutor BB (Plaintiff) Lynette Keanes (Defendant)
Representation:	Counsel: A Canceri (Plaintiff) D Hanna (Defendant) Solicitors: CMC Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2018/00374331

Non-economic loss	No claim
Past out-of-pocket expenses	$12,047.07
Future out-of-pocket expenses	$9,300.00
Future loss of earning capacity	$50,000.00
Future domestic/commercial assistance	$Nil
Past domestic assistance	$Nil
Cost of funds management	9% of the damages awarded in the other heads equalling $6,421.24
TOTAL	$77,768.31