Anderson v Broome Helicopter Services Pty Ltd - [2012] WADC 158

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ANDERSON -v- BROOME HELICOPTER SERVICES PTY LTD [2012] WADC 158

CORAM: STAVRIANOU DCJ

HEARD: 15-17 MAY 2012

DELIVERED : 8 NOVEMBER 2012

FILE NO/S: CIV 1381 of 2010

BETWEEN: JENNIFER ANDERSON
Plaintiff
AND
BROOME HELICOPTER SERVICES PTY LTD
Defendant

Catchwords:

Damages - Personal injury - Extent of loss of earning capacity - Turns on own facts

Legislation:

Civil Aviation (Carriers Liability) Act 1959 (Cth)
Civil Aviation (Carriers Liability) Act 1961 (WA)

Result:

Judgment for the plaintiff in the sum of $448,378

Representation:

Counsel:

Plaintiff: Mr B G Bradley
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Bradley Bayly Legal
Defendant: Carter Newell

Case(s) referred to in judgment(s):

Malec v JC Hutton Pty Ltd [1960] HCA 20; (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Montemaggiori v Wilson [2011] WASCA 177
Paul v Rendell (1981) ALR 469
Villasevil v Pickering [2001] WASCA 143

STAVRIANOU DCJ:

Introduction

The plaintiff, Jennifer Anderson, is aged 59 years, having been born on 25 May 1953.
On 12 May 2008 Mrs Anderson was a passenger in a helicopter flying in the Kimberley region when it crashed near the Imintji Store. The store is located on the Gibb River Road about 220 km east of Derby.
Mrs Anderson claims damages for personal injury arising out of the crash.
Liability in negligence is admitted and the matter came on for trial as an assessment of damages.
The principle issues are:
1.The injuries suffered;
2.The condition of Mrs Anderson's left foot;
3.The extent of Mrs Anderson's incapacity;
4.The effect of Mrs Anderson's husband's capacity for employment;
5.Mrs Anderson's employment intentions;
6.Mrs Anderson's loss of earning capacity.

The crash and its sequelae

At about 9.30 am the flight left the store. On board were the pilot, Mrs Anderson, her husband Stanley and another passenger, Jodie Newman. The helicopter passed over some nearby gorges and then came in to land near the store. As it did so it went out of control and crashed to the ground.
Immediately after the crash Mrs Anderson was upside down. She was eventually able to undo her seat belt and crawl out of the cockpit. Rescuers arrived at the scene and she was taken back to the store. She felt sore all over and was worried about her husband. She had a laceration where a tooth had penetrated her lip. She was given painkillers and made to lie flat on the cement floor of her home.
At about 5.00 pm the Andersons and Jodie Newman left the store and travelled by troop carrier and plane to Derby Hospital where they arrived at about 10.00 pm. Mrs Anderson was examined and prescribed painkillers. She remained in hospital overnight and the next day was taken to the Broome Hospital where she was again examined and x‑rayed.
After a few days in Broome and a night in Derby, the Andersons returned to the store. Mrs Anderson agreed to complete a return to work programme at the store on light duties. She made a claim for workers compensation which was accepted and she received weekly payments from the date of the crash.
Mrs Anderson has been reviewed by a number of medical specialists including Dr John Ker, specialist physician, Dr Daniel Alcorn, consultant psychiatrist; Dr Michael John Weidmann, neurosurgeon; Dr Rupert Leigh Atkinson, neurosurgeon; and Dr Desmond Williams, orthopaedic surgeon. She has also seen a psychologist and been prescribed antidepressants.

Mrs Anderson's background, work history and evidence

Mrs Anderson was born in Queensland. When she left school she commenced a four‑year hairdressing apprenticeship which was completed in 1971.
In 1972 Mrs Anderson purchased a hairdressing salon which she operated on a full‑time basis. In 1975, following the birth of her first child, she worked part‑time and then subsequently sold the business. She was then employed as a hairdresser initially part‑time and then full‑time.
In 1980 Mrs Anderson ceased hairdressing and with her first husband operated a pizza shop until 1981. At that stage she resumed part‑time hairdressing.
In 1984 the Andersons were married.
From about 1983 to 1985 Mrs Anderson operated a canteen business. This came to an end when she moved house because of a transfer in Mr Anderson's employment.
In late 1988 Mrs Anderson purchased a hairdressing salon which she operated on a full‑time basis. The business expanded into different locations. In 1992 she sold the business and moved with her husband to the Gold Coast. There Mrs Anderson resumed hairdressing working three to four days per week and then operated her own business. Her son had contributed some money to the purchase. The intention was to build the business and eventually sell it, which they did.
In 1995 the Andersons commenced working a bread round. This was full‑time. Unfortunately Mr Anderson became ill and in 2002 she left the business and resumed part‑time hairdressing three days per week. She also did some full‑time relief work. She continued hairdressing until March 2006 when she and her husband began a trip around Australia.
The trip was in a camper trailer. The intention was that it would be for 10 months which coincided with a period whilst their son was on an overseas' exchange. Mrs Anderson gave evidence that whilst she was on the trip she would do some hairdressing. This was on an 'odd job' basis. During the trip the Andersons acted as relief caretakers at a wilderness camp for about eight weeks. The camp was in a very remote location in the north‑west of Western Australia.
By about August 2006 the Andersons had arrived at Imintji. They expressed an interest to the owner in obtaining employment at the store. Before they arrived home the store owner telephoned them about possible employment as store managers. At the time they were in Grafton. They were asked if they would be prepared to effectively turn around and return to work during the wet season. They would not do so because Mr Anderson had already arranged work. However, they did agree to begin work at the store in March 2007. In about November 2006 they arrived back in Queensland. Mrs Anderson obtained short‑term employment with a dog breeder and Mr Anderson commenced employment with an internet company. Mrs Anderson gave evidence that she obtained the short‑term employment rather than return to hairdressing because it would be unfair to the hair salon proprietor to only work for a short period of time.
In about April 2007, as agreed, the Andersons began their employment at the store.
The store serviced a local Aboriginal community as well as tourists and was open from 7.00 am until 5.00 pm seven days a week including public holidays. Mrs Anderson's duties in the store varied. She cleaned, cooked and served customers and also acted as the assistant manager for Centrelink. She worked at the store until the middle of November 2007 when she and her husband went on holidays. In about April 2008 they resumed employment at the store. Mrs Anderson's income was $1,012.50 gross per week.
Mrs Anderson's evidence was that when she got back to the store after the crash she had constant pain in her back. She said that she was 'taking it out on everyone and I was getting cranky with people when I ‑ I'm not normally like that'. She was unable to resume her normal duties. In this initial period following the crash she was prescribed painkillers by the Royal Flying Doctor Service. She also attended a psychologist and counsellor.
On 28 August 2008 the Andersons were reviewed by Dr Ker in Perth. He advised them to cease working at the store and thereafter in September 2008 they made their way back to the Gold Coast. There Mrs Anderson consulted her general practitioner who prescribed antidepressant medication. She was subsequently referred to Dr Paul Ohmsen, a sports and exercise physician, who first saw her on 17 November 2008. Dr Ohmsen concluded that Mrs Anderson's symptoms were predominantly related to the cervical spine, thoracic spine and left shoulder.
Dr Ohmsen noted in February 2009 that Mrs Anderson had impingement symptoms related to injuries sustained in the crash and that her left shoulder problems had become chronic. As a result on 23 February 2009 he injected the left shoulder. She subsequently developed a frozen shoulder and on 25 March 2009 Dr Ohmsen again injected the left shoulder.
Between 12 December 2008 and 12 October 2010 Mrs Anderson attended upon a psychologist for review and assessment upon the referral of her general practitioner.
In about early 2010 Mrs Anderson settled her claim for workers compensation arising out of the crash and used part of the proceeds to purchase a hairdressing salon. She ran the business for about three months but found it difficult lifting her arms. The business lost money and eventually was sold in late June 2010 after a period of operating of three months. Mrs Anderson was asked in examination‑in‑chief why she got out of the business. She said it was losing money to start with and she 'would have ended up very broke'. She has not attempted to work since the sale.
I am satisfied that Mrs Anderson's operation of the business in 2010 was a genuine attempt by her to resume employment. Whilst there were financial factors relating to the decision to close the business, I am satisfied that a further reason why she got out of the business was because, as she said, 'she could not do it physically and mentally'.
Mrs Anderson was asked about applying in 2010 to run a store in South Arnhem Land. She said that Mr Anderson had applied for the store as he was trying to find work. It was not because she believed that she was capable of working. There was no response to Mr Anderson's application.
Mrs Anderson gave evidence that she continues to have pain under her right rib and around her shoulder blade, neck and lower back. She also has very little strength in her arms compared to what she had prior to the crash.
The Andersons travelled by caravan from Queensland for the trial. It was their intention to do caravanning, camping and driving around Australia. Mrs Anderson explained in evidence that she does not do much of the driving. However she does do most of the cooking. Mr Anderson puts some washing on the line.
Mrs Anderson accepted that she was now a lot better than she was following the crash. The antidepressant medication, which she continues to take, had helped her condition. She takes painkillers. She gave evidence that before the crash she enjoyed sports including tennis.
In cross‑examination it was put to Mrs Anderson that the history she provided to Dr Weidmann was inaccurate in that she had not told him she had driven across the top of Australia. He had recorded a history that Mrs Anderson was not able to travel long distances in a car. In her evidence Mrs Anderson explained that 'you say it's long, but you take your time driving it. You don't get in the car and drive a week to get there'. She reiterated it was the truth that she could not travel long distances.
Mrs Anderson was also cross‑examined about the history which she provided to Dr Ohmsen. Mrs Anderson was asked why she had not complained to him of low back pain. Her explanation in evidence was she had told him 'back' and had not identified nor sought to distinguish thoracic pain. She explained that she was not a medical practitioner.
Dr Ohmsen recorded a history in his report of 14 December 2011 that Mrs Anderson was able to return to some regular social tennis once a week. In evidence she said this had been on two occasions only.
Counsel for the defendant submitted that Mrs Anderson had been less than forthcoming in her evidence in terms of her capacity. Reliance was particularly placed upon questions concerning hairdressing work subsequent to the sale of the business in 2010. It was submitted that because of what are described as evasive answers Mrs Anderson's evidence, particularly in relation to future employment intentions, should not be accepted.
Mrs Anderson was cross‑examined in relation to income earned subsequent to 30 June 2010. She was specifically asked about 'cashies for doing the hairdressing'. Her response was 'I haven't been hairdressing. I can't hair‑dress'. In that part of the cross‑examination she did say that she had done hairdressing for her sons, herself and her husband. Soon thereafter she responded no to a question whether she had cut hair anywhere else since she sold the hairdressing salon.
Mrs Anderson was subsequently asked about entries recorded by Mr Anderson on a blog in relation to a 2010 caravan trip they had gone on.
The relevant entry (dated 11 August 2010) was:
Jen was busy doing her hairdressing after putting up signs in the caravan park.
Mrs Anderson readily agreed that what was written in the blog was correct. When asked in cross‑examination she said she had 'forgotten about that'. I accept her explanation. Mrs Anderson did not deny she had done hairdressing. She volunteered she had done haircuts in the family. The questions as to 'cash jobs' followed on from questions related to business income.
Mrs Anderson was subsequently cross‑examined about whether she had tried part‑time hairdressing. She said she would not be able to do that, and that on the trip she had only done two haircuts. The haircuts she performed were in the context of Mrs Anderson travelling and staying at a caravan park. The haircuts were thus in an informal rather than a business setting.
I accept that Mrs Anderson's shoulder injuries affect her ability to carry on employment as a hairdresser. The medical evidence on that issue is clear. In the circumstances her evidence of not having done hairdressing work (apart from her sons and Mr Anderson) subsequent to the sale assumes less significance than it might otherwise. Further, when asked about the blog she readily accepted that she had done hairdressing subsequent to the sale.
Mrs Anderson was also asked about the entries on Mr Anderson's blog concerning activities engaged in on the trip. She explained that the trip had been on bitumen throughout save for a section on the Gibb River Road to Imintji. She agreed that during the trip she was able to participate in a range of activities including climbing a rock which she was able to do with Mr Anderson's help. She explained she took her time.
I accept that Mrs Anderson is restricted in her capacity to engage in a range of recreational, social and sporting activities. It is the case that she suffered significant injuries including injuries to each shoulder.
Mrs Anderson has a reasonably stable employment record. She does not contend she is totally unfit for any form of employment. I accept that she cannot do hairdressing and has problems with her spine. The history Mrs Anderson related to medical practitioners was generally consistent with her evidence. I accept the explanations she gave in evidence in relation to any inconsistencies and that the explanations are reasonable in all the circumstances. Generally there was no suggestion of any inappropriate presentation to medical practitioners. In this respect Dr Atkinson did note variable restriction in range of neck movement. However he did attribute this to her adjustment disorder, anxiety and depression. Mrs Anderson was a reliable and truthful witness and I accept her evidence. It did not appear exaggerated, was consistent and not materially affected by detailed cross‑examination.

Other non‑medical evidence

Mr Anderson confirmed in his evidence much of Mrs Anderson's evidence. I accept that he was a truthful and reliable witness.
Mr James Bernard Gorey is the chief executive officer of the corporation which now owns the store. He gave evidence that the Andersons were in 'the higher rating number/people that I've employed in stores'.
Mr Gorey, whose evidence was unchallenged, regularly visited the store prior to the crash. He had an opportunity to observe the Andersons performing their duties. He described that they were in 'the higher rating number/people that I've employed in stores'.
Mr Gorey visited the store after the crash. He observed Mr Anderson to be physically hampered and quite sore. Mrs Anderson was quite stressed. He asked them if they needed more time off work. In the weeks that followed he continued to visit the store. He saw Mrs Anderson continue to exhibit emotional stress.

The medical evidence and injuries suffered

As counsel for the defendant properly conceded, there is no issue and I am satisfied that in the crash Mrs Anderson suffered the following injuries:
1.Compression fracture of the T7 vertebrae;
2.Traumatic injury of the right facet of the mid cervical spine and left upper cervical spine with facet joint pathology;
3.Fracture of the lower right ribs;
4.Traumatic injury to the left shoulder joint and tendon with tendinopathy;
5.Traumatic injury to the right shoulder joint;
6.Fractures of the nasal bones;
7.Lacerations of the lips;
8.Bruising to the left leg;
9.Adjustment disorder with depression.
The medical evidence comprised oral evidence and reports tendered without objection. There were three principal controversies in relation to the medical evidence. First, whether Mrs Anderson suffered a bony injury or partial crush fracture of the L1 vertebra in the crash. Secondly, the cause of any problems in the lumbar spine. Thirdly, whether the cause of any disability is the condition of Mrs Anderson's feet.

Lumbar spine

Dr Ker first saw Mrs Anderson on 28 August 2008. Mrs Anderson did not complain about lower back symptoms, however she did complain of ongoing neck pain but more specifically central mid‑thoracic pain. She had reduced capacity to lift or bend. Dr Ker at that time had a radiological report relating to the thoracic spine. He noted clear evidence of a compression fracture of the T7 vertebra with loss of height anteriorally. In his view Mrs Anderson's previous rib fractures and the fracture of the T7 vertebra had united. There was in his view a degree of pain commensurate with the injury. It was his view the Andersons were unfit to undertake manual duties in the management of the store. Whilst function might improve, he was not confident it would be sufficient to allow them to undertake work at a rural roadhouse.
When Dr Ker next saw her on 28 November 2011 results of a bone density scan performed on 11 February 2009 were available to him. The scan in his opinion identified spinal pathology not only related to the T7 vertebra but also an injury to the first lumbar vertebra. The scan provided evidence of altered isotope uptake in that vertebra consistent with bony injury.
Dr Ker was referred to a report of bone densitometry measurements performed on 18 April 2012 which indicated the presence of osteopenia. He explained that osteopenia referred to increased fracture risk as opposed to degeneration in the spine. It was his view that the location of increased technetium activity in the L1 vertebra was more suggestive of trauma than degeneration. When asked about whether the findings could be indicative of developmental factors rather than trauma Dr Ker gave evidence that it was hard to reconcile developmental aetiology of the first lumbar vertebra when it was nine months after a major trauma in that bone and in the T7 vertebra. Dr Ker gave evidence that he could not account for lack of symptomatology except to say that it happens. He opined that a recent scan did show degenerative change and was quite in keeping with Mrs Anderson's age.
In a report dated 31 December 2010 which was in the form of a questionnaire Dr Judd in response to a question, 'Please advise the disability and/or medical condition' he stated 'Past helicopter crash, back pain, neck pain, side pain, depression/anxiety, immobility'.

Dr Weidmann examined Mrs Anderson on two occasions. He wrote a report dated 3 August 2010 following Mrs Anderson's attendance upon him on that date. He did not make any findings at that stage in relation to the lumbar spine. He noted neck pain, thoracic pain, chest pain and left thigh discomfort.
Dr Weidmann was asked in evidence about a CT scan of Mrs Anderson's lumbosacral spine performed on 11 April 2012. The specific finding contained in the report of the scan was a crush fracture of the L1 vertebral body. He gave evidence that the fracture was consistent with the mechanics of the crash in that it was a vertical compression force on the vertebral column. It was in his view much less likely to be due to other factors.
Dr Weidmann was asked about pain or disability arising from the lumbar spine. He noted a history that the thoracic pain 'radiated down a little bit'. This in his view was not unusual and considered that may possibly have been due to the L1 injury. He agreed that that was speculative and that Mrs Anderson had not complained to him of low back problems.
Dr Weidmann explained that upon examination of the cervical spine there were non‑specific findings of diffuse tenderness posteriorly. In cross‑examination Dr Weidmann was asked about the cause of anterior wedging at L1. He was asked about the loss of height of 30% and whether that could be age‑related degenerative change. He noted the presence on testing of a degree of osteoporosis. Because of that he considered it could be an age‑related crush fracture due to osteoporosis.
On 27 October 2010 Dr Judd referred Mrs Anderson to Dr Ohmsen for review. In his letter of referral he noted the existence of 'a thoracic and lumbar fracture injury'.
Desmond Williams, orthopaedic surgeon, examined Mrs Anderson on 11 April 2012 and 17 April 2012 and wrote a report dated 1 May 2012. The radiological report following the examination of the lumbar spine showed what Dr Williams described as a significant fracture at the L1 level. There were two wedging fractures. The first one was in the thoracic area with a 30% loss of height and a second fracture of L1 with, again, a 30% loss of anterior height. In Dr Williams' view the mechanism of Mrs Anderson being suspended and having her body thrown forward in flexion in the crash was consistent with both fractures.
Dr Williams was cross‑examined in detail about the lack of recording by other medical practitioners of any lumbar symptomatology. Dr Williams observed that at no time had there been any radiological examination of the lumbar spine.
Dr Williams explained that Mrs Anderson was probably symptomatic the whole time. What Mrs Anderson was saying was she had 'pain back here'. It was his evidence there was no history of another significant injury that created an L1 wedging fracture. It was his view that the wedging fracture at the lumbar level required a flexion injury. It was quite consistent that both wedging fractures related directly to the helicopter incident.
It was Dr Williams' opinion that because there was a wedging fracture of the vertebral body, that is a crush of the vertebral body, it had nothing to do with arthritis. It was a significant wedging fracture at each of the T7 and L1 vertebral levels.
Dr Atkinson gave evidence on behalf of the defendant. He examined Mrs Anderson and wrote reports dated 12 August 2011 and 7 October 2011.
In Dr Atkinson's view the subsequent report obtained relating to the L1 fracture contained classical findings of age‑related degenerative changes in the lumbar spine. He did not consider the observable slight wedging of the spine was a result of the crash. The main problem was at the thoracic level. However he could not completely exclude what he described as pretty minor wedging at L1. He gave evidence this could just as well be as a result of degenerative change as post–traumatic.
Dr Atkinson was asked about the bone density report of 11 February 2009 and the radiological report of 11 April 2012. He agreed it was not unusual to get multiple crush fractures in a helicopter crash. However it was also possible to get crush fractures at a later date in older people from minor injuries.
Dr Ker was the first of the specialists to see Mrs Anderson and provided advice in relation to her treatment. His opinion was based in part upon the nature of the trauma suffered in the crash. His opinion is supported by Dr Williams and Dr Weidmann. Dr Williams explained that the T7 vertebra where there was a fracture and pain is in close proximity to the L1 vertebra. There had been no radiological examination or otherwise of the lumbar spine until February 2009 where the scan revealed the increase in technetium uptake.
I prefer the evidence of Dr Ker and Dr Williams. Dr Atkinson accepted that it was a possibility that the fracture had been caused in the crash.
Dr Ker's view accords with common sense. The crash was severe. The helicopter fell to the ground from 100 feet. The impact was significant. The lack of complaint as to lumbar spine symptoms can be understood in the light of the proximity of the two vertebrae. It was unlikely that Mrs Anderson could have distinguished the precise location of the pain when she presented to medical practitioners. The scan of February 2009, nine months after the crash, demonstrated changes which were consistent with trauma to the L1 vertebra. There is no evidence of other trauma to the spine. Prior to the crash Mrs Anderson was working full‑time. There was no evidence of any prior problems with the back. I do not accept that Mrs Anderson's complaint of pain in the lumbar spine is a result of any pre‑existing condition including any degenerative change.
I am satisfied that in the crash Mrs Anderson did sustain a fracture to the L1 vertebra and this is the cause of the problems in the lumbar spine.

Feet

The defendant pleads that if there is any loss it is as a consequence of physical disabilities unrelated to the crash and in particular left foot osteoarthritis (and right foot pain) which restricts her walking more than 20 ‑ 30 m.
The defendant's case is that past loss of earning capacity should be calculated to 10 May 2011 being the date when Mrs Anderson obtained a disability parking permit. The defendant's submission in relation to this issue begins with a consideration of the written application and documents prepared in support of that permit.
The application was completed and signed by Mrs Anderson's general medical practitioner, Dr Benjamin Judd. The application contains a number of answers by him to specific questions. In a box headed 'Primary condition that affects ability to walk', he wrote 'L foot osteoarthritis'. In an adjoining section referring to the secondary condition affecting Mrs Anderson's ability to walk appears 'spinal injury'. In response to a question, 'What distance, with or without mobility aid/s, do you expect the applicant to walk?', he wrote '20 ‑ 30 m'. Next to the question he wrote 'Note: This Q needs rewording – ambiguous'. In response to a further question of 'When walking why does the applicant stop/rest', he wrote 'Pain in R foot and back'. The form completed by Dr Judd is ambiguous as his own notation suggests.
Mrs Anderson did have left foot pain when she saw Dr Judd. She described in her evidence that it was a bit of arthritis and the trouble had 'only sort of come about out of the blue'. It was her evidence that the 'pain eases and goes'. She said in evidence she did not think it would prevent her working. She had other pains in her foot that were worse.
Mrs Anderson gave evidence she had told Dr Judd about some difficulty pushing a trolley and lifting groceries. She said not so much the foot but her back pain was the problem. Her explanation of difficulty pushing a trolley of groceries is consistent with her incapacity. Dr Williams also reviewed a radiological report of the feet. In his view Mrs Anderson did not have any significant pathology of either foot. He did note a mild collapse of the longitudinal arch.
Dr Williams noted there was no significant focal pain. Mrs Anderson had an awareness of the existence of a bunion bump. In his view there were no clinical problems in the feet. He gave evidence he would be very surprised if Mrs Anderson could not walk more than 20 or 30 m. He explained that if he had been told that she could not walk that distance he would have examined her further and find out what was wrong. Dr Williams examined the left foot, took a history and arranged radiological examination which revealed no abnormality. There were no significant findings on clinical or radiological examination. There was pain and tenderness associated with a bunion which had no impact on Mrs Anderson's functioning.
I am not satisfied that Mrs Anderson is restricted by any injury to the feet. Dr Judd regarded the question in the application for a permit to be ambiguous. The document and his answer needs to be considered in that circumstance. Moreover, the evidence of Dr Williams and Mrs Anderson, which I accept, supports the conclusion that there is no disabling pathology in either foot.
I am not prepared to accept the condition of Mrs Anderson's left foot is disabling.

Other medical evidence

Dr Ohmsen provided a report dated 14 December 2011 in which he noted Mrs Anderson will have some permanent disability in terms of chronic pain related to her cervical and thoracic spine. This will impact upon her functional capacity. She will in his view have some long‑term left shoulder stiffness. There was marked reduction in shoulder abduction. Dr Ohmsen noted in his report that Mrs Anderson's cervical spine, shoulder and thoracic spine continued to be irritable in that they were easily aggravated with daily living activities and any sporting activities. This was expected to be a long‑term phenomenon. In his view Mrs Anderson would be likely to need long‑term management with appropriate analgesia.
Dr Ker reported on 30 November 2011 the presence of pain and stiffness at the cervicothoracic junction. Mrs Anderson also had a degree of low back pain with a curtailed capacity to bend and lift. She had curtailment of her left shoulder movement where she had a capsulitis. In his view she was not fit to return to work as an assistant store manager in a role involving manual handling. She was also not fit to work as a hairdresser because of the requirement to have her upper limbs in an elevated position. He could see no likelihood of her being able to extend her capacity for these forms of work in the foreseeable future. He considered pharmacological treatment to control pain was appropriate as well as antidepressants.
Dr Williams considered the prognosis was poor with regard to Mrs Anderson's functional capacities because of her cervical, thoracic and lumbar impairment and the right and left shoulders. She has functional limitations with the spine with lifting and bending activities and in the shoulders with lifting and above shoulder activities. Dr Williams concluded that Mrs Anderson's work capacity would be limited to part‑time light sedentary work at a desk or bench level with flexibility in the workstation.
Dr Weidmann provided a written report dated 14 December 2011. He concluded that Mrs Anderson's symptoms will persist in the foreseeable future and it was unlikely she would benefit from either radiological or medical examinations. He did not consider she required any formal domestic assistance. In his view her employment options were limited as a result of her cervical and thoracic symptoms. This included work as a hairdresser because of prolonged bending and standing.
Dr Alcorn concluded in his report of 27 March 2011 that Mrs Anderson had suffered an adjustment disorder with depressed mood and anxiety. The likely cause of the disorder was the ongoing perception of pain. She could perform part ‑time sedentary work of an undemanding nature (e.g. static ticket collection or carpark attendant).
Dr Alcorn also wrote a report dated 15 April 2012 following a consultation on 13 December 2011. His diagnosis of adjustment disorder with depressed mood and anxiety was unchanged. He considered it was reasonable for Mrs Anderson to continue on antidepressants for the next two to three years. In his view Mrs Anderson's ability to work full‑time in semi‑sedentary occupations will be limited largely by her pain complaints but also affected by matters associated with the psychiatric disorder, such as sleep disturbance impacting on her fatigue and work endurance.
Mrs Anderson was reviewed on 12 August 2011 by Dr Frank Varghese, consultant psychiatrist. He wrote a report dated 12 September 2011. He concluded Mrs Anderson developed major depression in the aftermath of the crash and its physical sequelae. It was in remission at the date of consultation but Mrs Anderson continued to have an adjustment reaction to her ongoing physical problems. There was in his view also an atypical anxiety disorder and atypical depression. The problems were in his view as a result of the crash. He considered her current psychiatric problems of themselves did not result in an inability to carry out the work duties of employment. Mrs Anderson's disability in his view stemmed from physical factors. He considered she should continue on antidepressants and may benefit from psychotherapy.
When Dr Atkinson first saw Mrs Anderson he considered that it was unlikely she will return to employment. In his view there was a variable restriction in the range of movements of the cervical spine and a 30% reduction in the range of movements of the thoracic and lumbar spine. He attributed the variable restriction to her adjustment disorder, anxiety and depression. In his view Mrs Anderson was able to return to full activities of daily living independent of her husband. He further opined she was unlikely to return to employment. In his report of 7 October 2011 Dr Atkinson considered Mrs Anderson's condition was stable and stationary. The crush fracture of the thoracic spine in his view can be associated with present pain.
Other than as identified above, the medical evidence adduced as to Mrs Anderson's disabilities and incapacity is essentially consistent. All of the practitioners have essentially opined that Mrs Anderson is only fit for sedentary or light duties, is unfit for hairdressing and unfit to work in a store.
To the extent there may be any difference or inconsistency between the various practitioners I would prefer the views expressed by Dr Ker who was the first practitioner to have seen Mrs Anderson. His views received significant support in the evidence of Dr Williams.

The effect of Mr Anderson's capacity for employment

The defendant pleads that any loss arises as a consequence of the injuries suffered by Mr Anderson in the crash and his inability to engage in employment. He is now aged 62 years.
Mr Anderson's principal injury was a compression injury of the C6 vertebrae which gave him severe pain down the right arm.
It was Mr Anderson's evidence that when he returned to the store after the crash it was on light duties. He said 25% of his duties after the crash were clerical and administrative. Mr Anderson gave evidence that Mrs Anderson did not do a lot physically when they returned to Imintji. On occasions she would be stacking shelves and had done some cooking but not as much as previously.
It was Mr Anderson's evidence that he physically could do 60% of what he had done previously at the store in that position. It was his evidence he could do light work but would have to avoid heavy lifting. He was capable of performing the administrative side of the duties but the more physical parts of the duties created problems. He had not returned to work as manager at the store because he could not do the full job. He could return to the job without Mrs Anderson but on condition that he was the manager only. The pain in the arm radiated down from his neck. It stopped him from doing a number of things including lifting. He gave evidence his claim for compensation arising out of the crash was made on the basis he was incapacitated for employment to which he is now suited by reason of his age, education and experience. He accepted he was not physically able to return to work at the store.
Mr Anderson agreed in cross‑examination that between December 2009 and April 2010 he had worked as a casual night‑filler. This was a maximum of 10 hours per week.
The defendant submits that because Mr Anderson could not operate the store as manager there was no reasonable prospect Mrs Anderson would have continued to remain at the store given its location. She would have rather returned to Queensland with Mr Anderson.
In Medlin v State Government Insurance Commission (1995) 182 CLR 1, Deane, Dawson, Toohey and Gaudron JJ said:
6.For the purposes of the law of negligence, the question 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 ((9) See Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268 at 277 ‑ 278; March v Stramare (E & M.H.) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515, 522-523; Bennett v Minister of Community Welfare [1992] HCA 27; [1992] HCA 27; (1992) 176 CLR 408 at 412-413, 418-419, 428.). 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. In such a case, the "but for" test, while retaining an important role as a negative criterion which will commonly (but not always) exclude causation exclude causation if not satisfied, is inadequate as a comprehensive positive test ((10) See, e.g., March v Stramare (E & M.H.) Pty Ltd (1991) 171 CLR at 515 ‑ 519, 522 ‑ 524). If, in such a case, it can be seen that the necessary causal connection would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular 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. It will be seen that, on the plaintiff's evidence, the present was such a case.
7.Nor can the question of causation of damage in a negligence action be automatically answered by classification of operative causes as 'pre-eminent' or 'subsidiary'. Regardless of such classification, two or more distinct causes, without any one of which the particular damage would not have been sustained, can each satisfy the law of negligence's common sense test of causation ((11) See, e.g., March v Stramare (E and M.H.) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506). This can be most obviously so in a case where a 'subsidiary' cause operates both directly as a cause of the particular damage and indirectly as a contributing component of a 'pre‑eminent' cause. As will also be seen, the findings of the learned trial judge left open the likelihood that the present was such a case.

I am satisfied that the injuries suffered by Mrs Anderson in the crash are a cause of her loss.
I do not accept that because Mr Anderson was also injured and incapacitated in the crash that Mrs Anderson does not have any entitlement to damages. The loss and damage suffered by Mrs Anderson is her loss and not her husband's. The loss is something which she has suffered. Any loss of capacity is hers, and is recoverable by her from the tortfeasor (see Assessment of Damages for Personal Injury and Death (4^th ed, Luntz (1.4.5) at p 48)).

Employment intentions

In 2006 the Andersons were offered a position at the store to commence at the beginning of the wet season in November. At that stage they intended to return to employment in Queensland and I am satisfied they did not intend to retire from employment.
The Anderson's employment at the store was for a term of one year commencing on 31 October 2007 together with a two‑year option. They were regarded as competent employees. Prior to the crash there had been no indication given by the Andersons to Mr Gorey that they wished to leave Imintji.
Mrs Anderson gave evidence that she did miss her family whilst working at the store but she did get over that. Mrs Anderson said that whilst she missed her children and grandchildren this did not mean that she would not have stayed in the Kimberley. There was because of the nature of the operation of the store and opportunity to take time off. Store managers were entitled to annual leave. Further, because of seasonal fluctuations between about December and February, store managers could take additional leave. Indeed, in November 2007 the Andersons had been able to do so and had returned to Queensland for family reasons.
It was Mrs Anderson's evidence that it was definitely open to her to return to hairdressing if she had not been injured. However she had no intention of doing that. She said she enjoyed trips with her husband and it was their intention to 'keep going and even if we didn't stay at Imintji, we had thought about even trying somewhere else'. She explained the money was good at the store and they were able to put away money for retirement. They had no set plans as to a retirement age.
Mr Anderson gave evidence that in 2008 he and Mrs Anderson had plans to take six weeks' leave together with any time accumulated. They had plans for an eight to 12‑week European holiday.
It was Mr Anderson's evidence that the store business grew when he and Mrs Anderson began operating it. Turnover increased. He described his work as 60% physical and 40% clerical. He said he and Mrs Anderson loved the work. He described how they loved the area and hoped to be there as long as possible. They were both involved with the community.
Mrs Anderson is not totally disabled. Since the crash she has been able to travel extensively with Mr Anderson.
I am satisfied that but for the crash Mrs Anderson would have continued in her employment at the store.

Assessment of damages

Mrs Anderson did suffer significant injuries in the crash. She has injuries principally to her spine, neck and shoulders. She has developed an adjustment disorder with depressed mood and anxiety. Dr Alcorn has noted and I accept there has been improvement with time and her disorder is stable.
The injuries have impacted upon Mrs Anderson's social, recreational and sporting activities and reduced her ability to undertake a range of physical activities. I accept her evidence that she has and does suffer pain as a result of her injuries.
Subsequent to the crash Mrs Anderson attempted to work at the store. This was unsuccessful. Dr Ker had recommended cessation of work at the store. In 2010 she unsuccessfully attempted to resume employment as a hairdresser.
I am satisfied that Mrs Anderson is restricted in her capacity to engage in employment involving lifting and bending activities. I accept she is not fit to return to employment as an assistant store manager in a rural community working normal hours. She is unable to work as a hairdresser because of the requirement to have her arms elevated.

General damages

Subsequent to the crash Mrs Anderson had pain and soreness in her ribs, her left shoulder, neck, back and her left leg. When she returned to the store she was in pain. Her condition has since improved. She still does have pain around the right rib, under her shoulder blade and in her back. She is left with very little strength in her arms.
Mrs Anderson continues to take medication.
The defendant submits no more than $50,000 is appropriate. It is the case, as counsel for the defendant submitted, that she is not unable to do anything. She has been able to travel extensively. After the crash she did return to employment at the store, albeit unsuccessfully. Her description of her present incapacity accords with the medical evidence.
I consider for pain, suffering, distress, loss of enjoyment of life and other items generally referred to as loss of amenities, Mrs Anderson would be entitled to $55,000.

Loss of earning capacity

In Medlin v State Government Insurance Commission [3], the High Court identified that a court in assessing loss of earning capacity must be satisfied as to two matters:
The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injuries. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the 'diminution of ... earning capacity is or may be productive of financial loss' (Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347).
I accept that Mrs Anderson has lost earning capacity because of the injuries suffered in the crash. The injuries brought about the end of her work at the store.
The formulation of Mrs Anderson's claim for past and future loss assumes 12 weeks leave per year of which eight are unpaid. I consider it reasonable to proceed on that basis. Whilst Mrs Anderson had a contract of employment, its term including a renewal was to expire on 31 October 2010. Mr Gorey confirmed the contents of an undated letter from the corporation which outlined Mrs Anderson's remuneration was $39,000 per annum together with a housing allowance of $5,200 and superannuation at the rate of 9% from 31 October 2007. As part of the package there was also an agreed food allowance of $5,200 (ts 194).
The claim for past loss of earning capacity was particularised at trial as:
1.Past Loss of Earning Capacity
$1,012.60 gross pw x 44 weeks pa (including 4 weeks paid leave)
$44,550 gross per annum
Less tax    $7,365
$37,185 net pa $715 net pw
12.05.2008 – 15.05.2012
208 weeks x $715 net  $148,720
Plus Fox v Wood
(i)Year ending 30 June 2008          $976
(ii)Year ending 30 June 2009       $8,052
(iii)Year ending 30 June 2010       $1,572
$10,600
$159,320
Mrs Anderson's income tax returns for the period 1 July 2005 to 30 June 2010 show annual incomes (excluding interest) as follows:
30 June 2006: $6,299
30 June 2007: $6,034
30 June 2008:       $28,822
30 June 2009:       $44,567 (workers compensation payments)
30 June 2010:       $16,588 (workers compensation payments of $31,215,
business loss of $14,677)
The defendant's submission is that the assessment of loss of earning capacity should not proceed on the basis of Mrs Anderson's role at the store. The defendant's case is that past loss should be assessed at $62,158 on the basis of a nett weekly income of $454 for a period of 137 weeks from 1 October 2008 to 10 May 2011 when Mrs Anderson obtained her disability parking permit. Reliance is placed upon the fact that Mrs Anderson has had a capacity for modest work and that she has not been forthcoming as to earnings or work performed. The defendant submits $50,000 is an appropriate award for all heads of past loss including superannuation and interest.
Mrs Anderson is now 59 years of age. Her husband is 62 years old. They enjoy the outdoors and travel. Their children and grandchildren are primarily located in Queensland and Mrs Anderson enjoys being with her family. The seasonal nature of the employment enabled Mrs Anderson to see her children. The nature of employment at the store suited a couple. There could be a division of labour with Mr Anderson performing heavier tasks such as unloading supplies. Prior to commencing at the store hairdressing had been Mrs Anderson's primary vocation.
Employment at the store was a valuable opportunity for Mr and Mrs Anderson. They were good workers and had demonstrated a capacity to work in the business. Subsequent to the crash Mrs Anderson tried to continue her employment at the store.
In the years prior to commencing at the store Mrs Anderson's income was modest. In the year ended 30 June 2006 her nett weekly income was $110. In the 2007 year it was $98. In the 2008 year it was $454.
Mrs Anderson's evidence, which I accept, was that at the date of crash her gross weekly income was $1,012.50 gross per week.
In supplementary submissions filed after trial Mrs Anderson's claim for past loss of earning capacity was put on the basis that her nett weekly wage between 12 May 2008 and 31 August 2008 was $806 and for the period from 1 September 2008 to trial was $682.
The claim as particularised in the submissions was:
•      12 May 2008 to 31 August 2008:
16 weeks x $806 net pw =   $12,896
•      1 August 2008 to 15 May 2012
$682 net pw (average) x 197 weeks =             $134,354
•      Plus Fox v Wood    $10,000
$157,850
I accept that Mrs Anderson would have continued working at the store but for the crash. Given the regard that Mr Gorey had for the Andersons as employees I am satisfied they would probably have secured a renewal at the expiration of the initial 12‑month term. It was his evidence the owner of the store wanted the Andersons to continue as managers.
Between the date of the crash and the end of September 2008 when she returned to Queensland Mrs Anderson worked in the store and received weekly payments of workers compensation. The period in question is 20 weeks. During this time she did attend for treatment. She was also during this time reviewed in Perth by Dr Ker.
Mrs Anderson's evidence was that for the first week or so after the crash she had basically worked from the house and used walkie talkies. She tried but was unable to resume her normal duties at the store. Both counsel submitted that I should in the circumstances make a global award for this period. Doing the best I can, I consider an award of $5,000 would be appropriate.
In my view it would be reasonable in calculating past loss from 1 October 2008 to utilise a nett weekly figure of $682 as claimed. That sum represents in the circumstances a proper measure of the loss suffered by Mrs Anderson because of the diminution of her earning capacity caused by the injuries suffered in the crash.
For the 214 weeks between 1 October 2008 to 8 November 2012 Mrs Anderson has been unfit to resume employment at the store.
The calculation is as follows:
214 weeks x $682 =$145,948
The award for past loss of earning capacity is therefore $150,948.
I would allow past loss of superannuation as follows:
$44,500 x 214/52 x 9% (superannuation rate) x 85% (fund costs and taxation) = $14,009
There should also be an award of interest on each component of past loss. The calculation may be affected by payment of workers compensation. I, accordingly, grant liberty to apply in relation to interest generally.
The traditional form of calculation of future loss of earning capacity involves application of an appropriate multiplier to a nett weekly loss. Mrs Anderson's calculation is based on a nett weekly loss of $750.50 being the current nett rate for an assistant manager ($55,000 gross per annum, $750.50 nett per week for a 44‑working week year). In eight years' time Mr Anderson will be 70 and because of that it is submitted future loss should be calculated by application of a multiplier of 377.7 resulting in a sum of $283,463 (377.7 x $750.50).
The defendant's submission is that there should be no award for future loss of earning capacity. Alternatively, a modest sum of $15,000 ‑ $20,000 to represent possible loss is appropriate.
Lord Diplock in Paul v Rendell (1981) ALR 469, 471, expressed the matter of assessment of economic loss as follows:
... The assessment of economic loss involves the double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured.
In Malec v JC Hutton Pty Ltd [1960] HCA 20; (1990) 169 CLR 638 the approach to the assessment of the likelihood of future or potential events occurring was dealt with by the High Court. Deane, Gaudron and McHugh JJ in their joint judgment said (642 ‑ 643):
... When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred.
If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.
The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v McMonagle [1970] AC 166 at 174; Davies v Taylor [1974] AC 207 at 212, 219; McIntosh v Williams [1979] 2 NSWLR 543 at 550 - 551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.
Brennan and Dawson JJ stated that the ascertainment of future earning capacity involves an evaluation of possibilities as distinct from establishing a fact as a matter of history. Their Honours said (639 ‑ 640):
Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past.
Whilst Mrs Anderson did say she intended to work for as long as possible, there was no evidence of any intention to work beyond 65 years or until Mr Anderson attained any particular age. The Andersons had no set plans as to retirement age. In the circumstances I consider it reasonable to calculate her loss of capacity for a further 5 1/2 years to age 65 years.
On the basis of a diminution of earning capacity of $750.50 nett per week the calculation of future loss of capacity would be:
$750.50 x 245 (multiplier applicable to 5 1/2‑year period) = $183,872
It is the case the burden of the medical evidence is that Mrs Anderson has some retained capacity. No specific employment for which she is suited and which is within her capacity has been identified. Further, her capacity to obtain employment is limited given her age, experience and qualifications and the nature of the duties she is capable of performing. There was no evidence as to the availability of work within her capacity or the remuneration that might be received.
In Montemaggiori v Wilson [2011] WASCA 177 Buss and Newnes JJA said in relation to assessment of loss of earning capacity [31] – [33]:
Whilst it is desirable for a plaintiff to call precise evidence of what he or she would have been likely to earn but for the injury, where earning capacity has unquestionably been reduced the failure to call such evidence, particularly in relation to future loss, does not mean that the plaintiff is not entitled to damages or is entitled only to nominal damages: State of New South Wales v Moss (552, 554). But where evidence ought to have been available, it is hard for a plaintiff who fails to call evidence, or calls incomplete evidence, to complain of a low award: State of New South Wales v Moss (552); Minchin v Public Curator of Queensland (93).
Where an injured plaintiff has suffered a loss of earning capacity, such as a total loss of capacity to earn in an occupation in which he has previously been employed, the court should do its best to place a value on that loss, even in the absence of evidence, or where there is uncertainty in the evidence, as to the availability of employment within the plaintiff's residual capacity or the amount which could be earned in such employment. Thus, for example, in Bowen v Tutte (1990) Aust Torts Rep 81‑043, it was held that in the absence of any evidence of the availability of suitable employment for an injured plaintiff, or of earnings which could be derived from such employment, a trial judge may, in an appropriate case, assess the plaintiff's residual earning capacity at a percentage of his or her pre‑accident earning capacity. And in Pene v Murphy [2004] WASCA 103, it was held that the appellant's loss of earnings should be assessed as a percentage of his pre‑accident earning capacity as there were considerable uncertainties associated with his prospects of obtaining work within his residual capacity. But as the court made clear in that case, such an approach is not appropriate in every case; in the end the question is one of fairness.
Once the plaintiff has proved that they have lost their pre‑accident earning capacity and have been unable to find alternative employment, or that their condition has prevented them finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings: Thomas v O'Shea (1989) Aust Tort Reps 80‑251, 68,701 – 68,702; Setton v Eves [2006] WASCA 3 [27].
Mrs Anderson has made unsuccessful attempts to return to work at the store and as a hairdresser. Her capacity to work as a hairdresser and as an assistant manager have been destroyed by the crash. Her age, experience and qualifications and failed attempts to resume employment make it reasonable for Mrs Anderson not to have sought further employment subsequent to the sale of the hairdressing business in 2010.
In the circumstances I do not consider it appropriate to make any reduction for retained earning capacity.
The discount for ordinary contingencies is rarely more than 15% and usually between 5% and 10%: Villasevil v Pickering [2001] WASCA 143, 38. The employment at the store was in a remote location. She may have decided to return to her family in Queensland. There is a chance Mrs Anderson may not have had her employment renewed either initially when the first term of one year expired or subsequently. She may not have continued to work until she attained the age of 65 years either because of a desire to return to Queensland or because of ill health. These factors all lead me to conclude that a deduction of 20% for contingencies is appropriate.

The loss after deduction of 20% for contingencies is $147,097.

Future loss of superannuation benefits

Mrs Anderson's gross weekly loss is approximately $895.
At the rate of 9% to age 65 years and after deductions for fund costs and taxation, the sum of $16,774 ($895 x 0.09 x 245 x 85/100) is derived.
The allowance after contingencies is $13,419.

Past and future loss of employment benefits

Mrs Anderson's conditions of employment included weekly payments of a food allowance of $100 and a housing allowance of $100.
The claim for past loss is particularised as follows:
5.Past Loss of Employment Benefits
Food allowance  $100 pw
Housing allowance                 $100 pw
40 weeks pa x 4 years             $200 pw        $32,000
The claim for future loss is particularised as follows:
6.Future Loss of Employment Benefits
40 weeks x $200 ($8,000 / 52 = $6,153 pa)
$118.32 pw x 337.7 $39,956
The defendant's submission is that some allowance must be made in relation to periods when Mrs Anderson has in the past been residing rent free and when she has been living in a caravan. The evidence of Mrs Anderson was that she had been house‑sitting for a period subsequent to the crash and had also been travelling and living in a caravan for some of the time. The Andersons continue to travel around Australia in a caravan. I would in the circumstances make only a very small award of $2,000 for future loss. Past loss is difficult to quantify because of a lack of precise evidence.
In my view a global assessment for past and future loss is appropriate. In my view an award of $20,000 is reasonable in all the circumstances.

Past and future gratuitous services

The claim in relation to past and future loss is for three hours per week. A rate of $25 per hour is agreed.
Mr Anderson has since the crash provided some assistance with household duties. He puts washing on the line and makes the bed. He described that he now does 'pretty well all the cleaning'. He said time spent on domestic tasks varied between two and four hours per week. Some limited assistance was also provided by Mrs Anderson's daughter. It is unclear precisely how many of the hours referred to by Mr Anderson related to services performed for Mrs Anderson because of her incapacity to look after herself. It is however clear that Mrs Anderson can perform some duties and has been able to travel around Australia for some time since the crash. In the circumstances a broad global approach is appropriate.
I allow $5,000 for past gratuitous services and $5,000 for future gratuitous services.

Future treatment

Mrs Anderson seeks to recover the cost of medication and the cost of occasional reviews. She continues to take antidepressants and painkillers. The claim for medication is $6,139 ($37.55 per month for 27 years) and $10,000 is claimed as a global sum for the treatment.
The defendant contends that $5,000 for future medication expenses, pharmaceutical expenses and occasional visits to a psychiatrist is appropriate. In my view, an appropriate global allowance would be $7,500.

Fox v Wood

$10,600 is allowed as agreed.

Special damages

$19,805 is allowed as agreed.

Summary of award

I consider Mrs Anderson is entitled to a judgment of $448,378 as follows:
General damages: $55,000
Past loss of earning capacity:  $150,948
Past loss of superannuation: $14,009
Past and future loss of employment benefits: $20,000
Future loss of earning capacity:  $147,097
Future loss of superannuation: $13,419
Past and future gratuitous services: $10,000
Future treatment:    $7,500
Fox v Wood: $10,600
Special damages: $19,805
Total:$448,378