Athanassiou v Hanekamp

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ATHANASSIOU -v- HANEKAMP [2009] WADC 8

CORAM: DEANE DCJ

HEARD: 3-13 NOVEMBER 2008

DELIVERED : 30 JANUARY 2009

FILE NO/S: CIV 2639 of 2005

BETWEEN: LAUREL FAYE ATHANASSIOU
Plaintiff
AND
ROBERT BESSEL HANEKAMP
Defendant

Catchwords:

Personal injury - Assessment of damages - Two motor vehicle accidents - Defendant liable in negligence for first accident - Whether there was an ongoing pain state resulting from injuries allegedly sustained in first accident which was a material contributing cause of second accident and its resulting injuries - Degree of recovery following first accident - Ongoing capacity for work

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Defendant liable for first accident and resulting injuries only - Defendant not liable for second accident and resulting injuries - Cause of action for second accident dismissed - Damages assessed for first accident only

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr D Burton

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: SRB Legal

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

Bennett v Minister for Community Welfare (1992) 107 ALR 617
Jongen v CSR (1992) Aust Torts Reports 81-192
Lisle v Brice [2002] 2 Qd R 168
Lyle v Soc [2009] WASCA 3
Medlin v State Government Insurance Commission (1995) 182 CLR 1
NSW Insurance Ministerial Corporation v Myers (1995) 21 MVR 295
Southgate v Waterford (1990) 21 NSWLR 427
Telstra Corporation Ltd v Smith (1998) Aust Torts Reports 81-487

DEANE DCJ:

The pleadings

In this matter the then 43-year-old female plaintiff was a passenger in a vehicle in the early evening of 6 September 2002 when it was struck to the rear by a motor vehicle driven by the defendant ("the first accident"). The fact of this collision and that it was caused wholly by the negligence of the defendant is admitted.
As a result of that collision the plaintiff alleges she sustained a number of injuries being:
(a)L5-S1 disc degeneration with a generalised mild central and intracanal disc bulge with a central radial fissure involving sciatica;
(b)right disc bulge abutting the origin of the right S1 nerve root;
(c)T12/L1 disc bulge without compromise of the neural structure;
(d)soft tissue injury to the cervical and lumbar spinal region;
(e)neck injury with pain radiating into the right upper limb together with headaches;
(f)post-traumatic stress disorder and major depressive disorder.
In its amended defence the defendant denies each of the alleged injuries and in the alternative says that the plaintiff merely sustained a soft tissue injury to the cervical and lumbar spine which was of negligible severity and the symptoms of which were transient. It is alleged that the plaintiff had made a complete recovery from any injuries which she may have sustained in that motor vehicle accident before 28 March 2003, when she was involved in a second motor vehicle accident ("the second accident").
The plaintiff alleges that by reason of the injuries alleged following from the first accident she suffered significant head, neck and lower back pain which distracted her and caused the second accident in which she was involved. That second accident resulted in the plaintiff suffering additional injuries. It is not necessary to detail the circumstances of that second accident at this point as they will be canvassed in considerable detail in the course of these reasons. For the same reason it is not necessary to refer at this point to the extensive injuries which the plaintiff suffered as a result of her involvement in that second accident, other than to note that the defendant denies the plaintiff was suffering any symptoms prior to the second accident which were causally related to the first accident.
The defendant denies that the second accident had any causal relationship with the alleged injuries suffered by the plaintiff arising out of the first accident and claims that the plaintiff merely sustained a soft tissue injury to the cervical and lumbar spine of negligible severity resulting in transient symptoms from which the plaintiff had made a recovery well before the second accident on 28 March 2003. Further and in the alternative, the defendant denies that the plaintiff was suffering from any symptoms prior to the second accident which were causally related to the first accident and denies that the second accident has any causal relationship with the alleged injuries sustained by the plaintiff arising out of the first accident. Further or in the alternative, if such a causal relationship is found to exist the defendant says the second accident was caused solely by the plaintiff's negligence which amounted to a supervening causally independent event severing the chain of causation. In essence the defendant pleads that the plaintiff was negligent in parking her vehicle at the top of an incline of a driveway at her home in an unsafe and inappropriate position by allowing the rear wheels of the automatic vehicle to overhang on the inclined driveway and further that she failed to adequately or at all secure the vehicle by placing the gear in the park position and/or securing the hand brake firmly or at all. In these circumstances the defendant alleges that the plaintiff knew or ought to have known she should have taken preventative measures to ensure the vehicle was properly and safely secured in those circumstances because the incline on the driveway posed a foreseeable risk that the vehicle could possibly roll down the incline if not properly secured. In reference to the circumstances of the second accident that occurred the defendant says the plaintiff recklessly placed her body in the path of the vehicle in an attempt to stop it rolling down the incline of the driveway causing her to trip and fall and become pinned underneath the vehicle when she ought to have known that to undertake such an activity was inherently dangerous and unsafe. It is said that the plaintiff should have checked that the vehicle was properly secured before alighting from it.
The defendant pleads further and in the alternative, if any causal relationship is found to exist between the first and second accidents then the plaintiff's action of placing her body before the vehicle in an attempt to stop it rolling down the incline constitutes a novus actus interveniens severing the chain of causation and therefore the second accident was a causally independent supervening event severing the chain of causation. In addition the defendant pleads further and in the alternative that the risk and likelihood of the plaintiff sustaining injuries in the circumstances was not reasonably foreseeable on the part of the defendant and the likelihood of the plaintiff sustaining such injury or loss was far too remote a consequence of the defendant's negligence arising from the first accident. The defendant also pleads further and in the alternative that if the plaintiff did sustain injuries in the second accident as a consequence of the first accident, then such injuries were caused solely by or alternatively contributed to by the plaintiff's contributory negligence as previously pleaded but also because the plaintiff knew or ought to have known if she was suffering from "pain" that it was unsafe and inappropriate for her to drive a motor vehicle to and from work on 28 March 2003. It is further stated that given the plaintiff's allegation that she was suffering pain in the head, neck and lower back which "distracted" her, then the plaintiff knew or ought to have known that she should not have driven the motor vehicle and that she should have made alternative arrangements to get a lift home so that she did not have to drive her motor vehicle to and from work on 28 March 2003.
As a result of the injuries allegedly suffered in both the first and second accidents it is said that the plaintiff has required consultation, review and treatment with a range of persons in the past including her general practitioner, physiotherapist, occupational physician, psychiatrist, orthopaedic surgeon, psychologist and pain specialist as well as associated investigations by way of scans and x-rays and treatment including physiotherapy, hydrotherapy and exercise programmes. It is claimed that she has required a range of medications addressed at dealing with her medical condition in the past and further that as a result of the second accident she was hospitalised and required surgery as well as treatment by a plastic surgeon.
During the course of the trial and after the evidence was completed it was apparent that the defendant did not take issue with the serious nature and range of injuries suffered as a result of the second accident, but again stressed that it was in no way causally related to the sequelae of the first accident. It was reiterated that in the event the causal connection was found to exist, the second accident arose solely out of the negligence of the plaintiff which amounted to a supervening causally independent event severing the chain of causation.
The evidence of the plaintiff in particular, which will be referred to in the course of these reasons, reflects the particulars of alleged restriction being both physical and socio-domestic. It is said that she suffers a range of problems such as lethargy, poor concentration, difficulty with ambulating and a number of restrictions relevant to personal grooming and self-care tasks. It is alleged that she suffers pain and discomfort sitting or standing for prolonged periods and that she experiences pain in numerous areas of her body as well as difficulty with sleeping. Further, it is alleged she suffers post-traumatic stress disorder, depression and associated anxiety.
The plaintiff claims for general damages, past and future loss of earning capacity, past and future loss of superannuation, special damages, past and future gratuitous services, future medical expenses and interest where applicable.
The plaintiff's position was that at the time of the second accident on 28 March 2003 she was suffering and had continued to suffer the effects of the injuries allegedly sustained in the first accident and further it was the pain associated with those earlier injuries that was capable of and did interfere with the plaintiff's cognitive functioning and capacity in relation to her concentration and ability to maintain attention to the task at hand, in this case the control of the motor vehicle of which she was in charge at the time of the second accident. Put another way, the question according to counsel for the plaintiff was whether the plaintiff's pain distracted her from carrying out her normal daily activities in the sense of the activities associated with the circumstances of the second accident. It was put that not only was it possible that this occurred but further it was the best or most likely explanation for what occurred relevant to the plaintiff's management of the motor vehicle at the time of that accident.

Evidence of the plaintiff

At time of trial the plaintiff, who was born on 29 August 1962 was 46 years of age. She married her husband on 6 September 1981 and together they have three daughters who are now grown up. The plaintiff also has two grandchildren. The plaintiff as her résumé at p 62 and following of the plaintiff's book of objects/documents attests completed her Achievement Certificate at Mirrabooka Senior High School in 1977 and in 1979 she received a Certificate of Commercial Studies from Balga TAFE. Her work history commenced in 1979 when for 12 months or so she worked as a clerk in a law firm in Perth. In 1981 and 1982 she was a clerk typist for some insurance brokers/insurance services. In 1982 she worked as a marketing officer for a finance company and as she explained in her evidence in 1983 she commenced having her family and was engaged for the next 10 years or so in raising her children. By 1993 she was in a position where she returned to work on a part-time basis. Her work history thereafter is detailed in her résumé. In 1993 and 1994 she worked on a casual basis as a customer service officer and she did a similar job including data entry between 1995 and 1997. In 1997 and 1998 the plaintiff was employed as a records officer/clerk at the Department of Productivity and Labour Relations. She gave further evidence as to how she came to be in that and following positions up until the time of her first relevant motor vehicle accident on 6 September 2002 and her engagement in employment after that time, to which reference will later be made.
In respect of the first accident the plaintiff's evidence was she was a passenger in the front seat of a motor vehicle driven by her husband. About 6.50 pm that evening they were in Guildford Road on their way to celebrate their wedding anniversary at a social event. Their middle daughter Megan was in the rear of the vehicle. The plaintiff told the Court that her husband was slowing down to turn right into Pearson Street when he suddenly accelerated. The plaintiff was turning to her right to query her husband about his driving actions when their vehicle was hit from behind and it lunged forward causing the dash mat to fly up towards the plaintiff's face and so she put her hand up to her face. There was no evidence as to the speed of the defendant's vehicle immediately prior to the point of impact. The plaintiff, however, described the impact as "violent". Immediately following the collision her daughter was screaming somewhat uncontrollably in the back of the vehicle which concerned the plaintiff. The plaintiff said her body was "jarred", albeit that she was wearing a seat belt. The car was pulled into a nearby driveway and initially the plaintiff could not alight as her door was jammed shut. Her husband managed to open the door and she exited the vehicle, feeling pain in her neck and low back region as well as pain radiating into her right arm and right leg. Police attended the scene and the plaintiff feeling unwell cancelled the social event planned for the evening and went home, where she placed hot packs on her areas of pain and went to bed. By this time she was feeling a burning pain in her neck which was radiating into her right arm and right hand. She also was experiencing low back pain and pain in her right leg and foot.
Later in her evidence the plaintiff explained that she had suffered injuries in previous motor vehicle accidents sometime prior to this. The first occurred the day after her wedding on 7 September 1981 when the vehicle in which she was travelling was hit from behind by a "P" plate driver. The plaintiff had five weeks off work as a result. Most unfortunately approximately five weeks after the plaintiff returned to work she was involved in another collision where a "P" plate driver again drove into the rear of the vehicle in which the plaintiff was travelling and once more she required some time off work. Both of those accidents resulted in the plaintiff suffering a whiplash type injury and after the second of those accidents she had the meniscus in her left knee removed. She received a combined payment of damages in settlement of those two claims. Her husband received damages for his claim for the first accident, but her daughter abandoned her claim. Her evidence was that she had fully recovered from the effects of the injuries sustained in both those motor vehicle accidents by 1983 but did not return to work for family reasons at that time. The plaintiff did mention another work related accident, although it did not involve a motor vehicle, which she suffered in March 1997. Her employer at that time had bought some baby equipment into the workplace and the plaintiff fell over a bassinette injuring her right shoulder and this subsequently required surgery.
On 7 September 2002, still suffering pain following the first accident the plaintiff attended her general practitioner Dr Hsu who organised a CT scan and prescribed anti‑inflammatories and pain‑killers for the plaintiff. She was also prescribed Diazepam to assist her to sleep and was told it would make her drowsy but was not cautioned against driving a vehicle when taking this drug. He also organised for the plaintiff to undergo physiotherapy. Initially the plaintiff said the following Monday, Tuesday and Wednesday she returned to work but by Wednesday, the pain she was suffering was interfering with her concentration and her ability to sit and so on that day she returned to see her general practitioner. On the second day of her evidence the plaintiff corrected this evidence and said she did not go to work on the Monday or Tuesday. At that time the plaintiff was working eight hours per day on Monday, Tuesday and Wednesday of each week, therefore she was working 24 hours per week. As a result of that attendance Dr Hsu certified the plaintiff unfit for work and she did not return to work until 20 January 2003.
In the intervening period the plaintiff underwent sessions of physiotherapy and hydrotherapy, both of which she found were quite beneficial in reducing her pain state. She had a short break from the hydrotherapy sessions due to an infection she picked up from the pool water in which she was exercising and this required the administration of antibiotics before it cleared and she could return to hydrotherapy. In December 2002 Dr Hsu sent the plaintiff for an MRI scan. Neither the CT or MRI scans showed any neural impingement.
The plaintiff told the Court that during this period she was experiencing difficulties functioning in her domestic environment, including difficulties in coping with personal grooming and hygiene tasks. As a result her husband had to do all the cleaning and cooking for the household and assist the plaintiff with personal hygiene needs such as washing, drying and brushing her hair, washing her legs and feet and generally assisting her in daily tasks as she could only sit or stand for 10 to 15 minutes at a time. Her children were also of some assistance in supporting her in this regard. Between the motor vehicle accident on 6 September and Christmas of 2002 the plaintiff estimated that she received family assistance to function in the region of 35 hours per week. During this period she was sleeping poorly, suffering nightmares and experiencing pain.
From Christmas 2002 the plaintiff began to feel strongly that she needed to return to work, despite her pain state and felt that she could do so. The pain state she was experiencing in this time to Christmas included neck pain, pain radiating down her right arm, pain in her lower back radiating into her right leg and the toes of her right foot as well as the ball of that foot. On occasion pain would radiate into her left leg and left knee as well as her left arm and she was suffering headaches. She was experiencing pain in the right side of her neck under her right ear and pain from this region as well as the other side of her head radiating up into the occipital region. She was also experiencing tingling in her right arm as well as numbness and on occasion her right hand would swell which was particularly problematic given that she is right hand dominant. She noted that on occasions her big toe in her right foot would "jump" and she also had a burning sensation in that foot. As a result of the pain that the plaintiff was experiencing during this period she became depressed, as her pain state was interfering with her normal functioning and life as well as preventing her from working and enjoying an active normal social life. During this period she was receiving sickness benefits but could not recall if she actually took sick leave from work.
The plaintiff's distress during this period was added to by the fact that she felt she was not able to contribute financially to the family and they were quite reliant on her ability to be able to do so. She was concerned that Christmas was approaching and the household financial situation was somewhat strained and grim.

It would appear from the plaintiff's evidence and a document that she referred to that she commenced keeping a diary, though not containing entries on a daily basis, at the suggestion of a solicitor she consulted in October 2002, shortly after the first accident. The purpose of the diary was to record how she felt and to monitor any progress she may be making. The plaintiff's evidence was that the diary was kept for her own benefit and information.
On 20 January 2003 the plaintiff having consulted Dr Hsu began a graduated return to work. It was proposed that she would work for one hour per day on Monday, Tuesday and Wednesday of each week with a view to building up that gradually to two hours per day and so on. Prior to the first accident the plaintiff had driven herself to work in her car, which she had purchased in 2000, but she was unable to do so for a time following her return to work. She could not walk the distance to take public transport to her place of work at 1 Havelock Street in West Perth and so her husband would drop her at work each time she attended and pick her up when she completed her work for the day.
At the time of the first accident the plaintiff explained that she was employed as a Wage Line inquiry officer with the Department of Consumer and Employment Protection. This involved her becoming familiar with work entitlements and associated legislation and then sitting at a computer terminal wearing a headset answering calls from members of the public or the public service that needed such information. It was a challenging job requiring training and concentration so that one would always be up to date with the changing relevant legislation. When the plaintiff returned to work in January 2003 she was not immediately able to carry out this particular activity as she needed to be re-trained in order to become updated with changes to legislation which had occurred during her absence from work. She said she experienced difficulty in concentrating.
The plaintiff said that on her return to work her employers were most accommodating and soon provided her with a slope or reading board as well as a foot stool and a modified workstation to assist her to carry out her work. Nonetheless she found it difficult sitting at a desk given her pain state and also moving files to peruse them. She found it difficult to read materials relevant to legislative changes, even though she was supplied with a slope board. This activity caused her considerable neck pain and exacerbated problems in her right arm when she was required to move files. In addition she continued to suffer pain in her back so that she could only sit for 15 minutes at a time and she had difficulty concentrating because of her pain state and associated headaches.
The plaintiff's husband's work commitments increased, which then prevented him from driving her to work. Dr Hsu obtained an Acrod sticker for the plaintiff's vehicle which allowed her to park immediately in front of her place of work so she did not have to walk very far. Even after she returned to work for a time the plaintiff continued to undergo physiotherapy and hydrotherapy to assist in alleviating her pain state. Not only did the plaintiff experience physical difficulties in carrying out her job when she returned to work but she also said her attendance on Wednesdays at weekly staff meetings was a source of some embarrassment as she was constantly having to get up and down and she found it difficult to concentrate on what was occurring at the meeting.
In relation to the plaintiff's domestic circumstances after her return to work, she said that her husband was still carrying out most, if not all of the domestic duties required in the house as she was tired, in pain and having difficulty sleeping. The plaintiff attempted to carry out some domestic tasks such as preparing food for cooking and placing washing in the machine, but this was with some difficulty. She said she was suffering some small additional stress in the work environment on her return because she was ambitious and hoping to progress in her career but found that in her absence employees more junior to herself had been promoted. The plaintiff did not say if they were part‑time or full‑time employees. She was having difficulty working two hours per day three days per week and this worsened when her physiotherapy was ceased due to the insurer withdrawing funding for it. Despite Dr Hsu's entreaties it did not re‑commence and so he prescribed stronger pain relief medication for the plaintiff as well as Diazepam to assist her to sleep. However, because the plaintiff was concerned to appear alert at work she said she did not take any strong medication on the days that she worked and she avoided taking Diazepam on the night before a day she was due to work. She would however take Panamax for pain.
On the recommendation of Dr Suthers the plaintiff commenced attending a gym programme she believed in March 2003. As to the mileage to consult Dr Hsu and attending other medical appointments the plaintiff kept a record of travel expenses on her personal computer, it would seem, commencing at a time very proximate to 6 September 2002, Exhibit 8. Initially she said she commenced keeping the record as from 7 September 2002. She thought Dr Hsu suggested she do so but was unsure as it may have been a physiotherapist. After an overnight adjournment the plaintiff corrected her evidence and said she would have commenced making the entries from about 21 September 2002 based on her previous experiences of being involved in accidents in 1981 and 1997 and she thought it was important to do so.
It would appear that Dr Suthers did not impress the plaintiff because she said that her review by him on 7 February 2003, when she was accompanied by her husband and daughter Megan, involved him asking her a great many questions but conducting an extremely cursory physical examination of about five minutes duration. Whilst she and her husband were present during his dictation of this report as well as his other reports the plaintiff's recollection was that as the doctor's voice was extremely soft she could not hear what he was saying nor could her husband, but neither of them raised this with Dr Suthers. On her return from that review she was in considerable pain and went to bed. Subsequently she received a copy of Dr Suthers' report relevant to that review and said it contained a number of errors with respect to her date of birth and her position or title at work which she raised with her solicitors. She was also unhappy that he made a comment regarding her being overweight as this was an issue about which she was quite sensitive, given that since the time of the first accident she had put on weight as she was unable to exercise by walking daily which was something she had done prior to 6 September 2002. However at the time of that review she did tell Dr Suthers that she felt better then than immediately after the first accident.
By March 2003 the plaintiff was disappointed regarding what she perceived as her lack of progress or rehabilitation since the accident in September 2002. This was not a view shared by her general practitioner Dr Hsu so it appears.
The plaintiff's second accident as previously indicated was on 28 March 2003. In the week prior to that date she had taken a couple of days off work as a result of her pain state and Dr Hsu certifying her unfit for two days. She was finding it difficult to concentrate at work as she was up and down constantly with her pain state, which included constant headaches. The plaintiff persisted in going to work, however, as she felt that in order to obtain a promotion that was what she had to do. The exercises she was undertaking at the gym and hydrotherapy were minimal and she did not feel that they reduced her pain state, rather they made it worse.
In the week of her second accident the plaintiff's evidence was that she worked on the Monday, Tuesday and Wednesday for two hours per day, at considerable cost to her physical state. In fact on Wednesday, 26 March she was in pain and so she attended Dr Hsu on that date and also in order to re-visit the issue as to whether or not on Friday, 28 March she could, it not being an official work day for the plaintiff, attend a work team building exercise which was to be held in Kings Park. She felt it would be detrimental to her chances of promotion if she did not attend. It was determined that she could attend and it was planned that the following week the plaintiff would attempt to increase her working hours to three hours per day for three days a week.
The plaintiff drove to work about 11.00 am on 28 March and having had lunch at approximately 12.00 noon the team building exercises began in Kings Park. These exercises consisted of both non‑physical activities and physical activities, the latter in which the plaintiff did not participate. About 50 staff were involved but the plaintiff was not able to be specific as to who they were. She found over the afternoon that her pain was increasing and she developed a headache. She noted pain in her back radiating into her right leg as well as pain in her neck and explained that her whole physical state deteriorated over the course of the afternoon. She agreed she spent from 12.30 pm to 5.00 pm walking around and sitting down. As a result at the end of the exercises and debriefing she declined to stay for a drink and social gathering. She explained to the executive director, Mr Brian Appleby, who was also present at the exercises that she was in considerable pain and therefore intended to go home, take some pain-killing medication and go to bed. They had some brief discussion concerning the plaintiff's plans regarding her work attendance the following week. In mid 2005 the plaintiff told Dr Hayward, a neuropsychologist, that on the day in question she was in a divisional meeting at work and in pain so her boss told her to go home.
It is common ground that the plaintiff drove her vehicle home to her address in Alexander Drive where she had lived for the previous 12 years. She conceded she did this in peak hour traffic around 5.00 pm and it involved dealing with about nine sets of traffic lights. The plaintiff could recall nothing of the journey home that afternoon. Various photographs being Exhibit 2(1) to (3) depict the driveway which is on a noticeable and relatively steep incline up to a flat carport area which abuts a garage door behind which is the garage. The plaintiff did not park her vehicle in the garage as there was usually another car there. Instead it would appear she followed her usual habit of simply driving up the driveway and parking her vehicle in the carport. Generally the plaintiff's habit was to park her car in that manner, put the handbrake on, place the vehicle in park, turn off the ignition and alight from the vehicle in order to go into the house. It is not in dispute that on 28 March she failed to put the handbrake on or place the vehicle in park. Her evidence was that up until 28 March 2003 she had never experienced any difficulty in parking her car in that manner. The plaintiff's last memory of that day is talking to Mr Appleby prior to leaving the team building exercises. Her next memory was waking up in the intensive care unit ("ICU") at Royal Perth Hospital ("RPH"). She explained that it was necessary in order to access the front door of her home to walk around the back of the parked vehicle in the carport and then up a step and along a verandah which, by implication, is what she intended to do on 28 March but as a result of what occurred she did not achieve this aim.
When the plaintiff awoke in ICU she had a tube in her throat and was feeling extremely thirsty. Despite the medication she had been administered she was in a great deal of pain and found it too difficult to move. Her recollection was that she was in ICU for just over a week. She detailed her injuries and pain state as best as she could recall. She had pain in her buttocks and her shoulders were very painful which apparently related to a broken clavicle. The injuries she had suffered included a fractured skull, a fractured eye socket, a fractured sternum, broken ribs, her lungs had collapsed and her liver was lacerated in three places. In addition her right femur was shattered and she understood that she had also suffered a hip fracture. She had sustained burns to both buttocks and her left leg and also referred to what she described as a large hole in her lower back above her buttocks. Some of the injuries that the plaintiff described are graphically illustrated in a series of photographs, Exhibit 1(1)-(12). She explained that in relation to the hole in her back there was a piece of equipment called a vacuum assisted closure machine which was in place whilst she was in RPH as well as later when she was discharged to Shenton Park Rehabilitation Hospital and beyond that for a time after she was discharged to her own home. The plaintiff agreed that most of her scarring has faded to a degree since the photos were taken – but it is still visible and she is sensitive about others seeing it.
Returning to the level of domestic assistance that the plaintiff required between her return to work on 20 January 2003 and her second accident on 28 March, she said that had reduced to four hours per day or 28 hours per week. She could perform very little by way of domestic tasks or personal hygiene tasks during this time.
Whilst in RPH the nursing staff changed the plaintiff's dressings and moved her when required to prevent bed sores forming. She found being moved was quite agonising and it was impossible to find a comfortable position as she was forced to lie on her right side which was the side on which she had a broken leg. She particularly remembered whilst in RPH suffering great pain when some staples were removed from the graft area on her buttocks, in the absence of pain relief medication. In fact she said that several months later she found that one of the staples had been left in that area. She developed nausea whilst she was in RPH and said that this problem has persisted to date. Pain was associated with a rod being placed in her right leg to deal with her broken femur and the associated bone grafts were also difficult to bear. She was in RPH for approximately three months before being discharged to Shenton Park Rehabilitation Hospital where she remained for approximately one month. During this entire period she said her husband attended her on a daily basis and not only assisted considerably in taking care of her physical needs, but also supported her emotionally. Two of the complainant's close friends also visited on alternative days in order to assist her.
When the plaintiff was discharged to her own home she required the use of a wheelchair as well as a walking frame as she was not permitted to fully weight bear on her right leg. Her husband had to undertake all of the domestic tasks and continued to assist her with personal hygiene matters such as washing and dressing, in addition to dealing with the dressing of some of her wounds. The plaintiff had to be assisted to the toilet during the night as she was unable to complete this task by herself.
Despite treatment to her right leg the plaintiff says that it is now shorter than her left leg and as she described it "kicks out" to the right at an angle of about 25 degrees causing her to rock noticeably when she walks, even with the wearing of orthotic shoes. In addition to the plaintiff's husband assisting her when she was discharged to her own home, Silver Chain also came and dressed the plaintiff's various wounds or changed the dressings. In March 2004 the plaintiff attended hospital relevant to her complaints of ongoing nausea and she also required a 1½ week stay in hospital relevant to severe back pain in July 2004. She had surgery on her right leg the following year in July 2005. She also attended various medical practitioners regarding her pain state and these included attendances at psychologists and neurology clinics as well as a gastroenterology clinic to which appointments her husband took her. The plaintiff estimated that between July of 2003 or thereabouts when she was discharged home to approximately July 2005, her husband assisted her in personal and domestic tasks between five and six hours per day or between 35 and 42 hours per week. Thereafter it reduced slightly to four hours per day following her recovery from surgery to her leg, which the plaintiff estimated was in about November or December 2005.
After detailing her work history after her return to part-time work in approximately 1993 the plaintiff explained that following her work accident in 1997 she was required to undergo rehabilitation. She then worked in a number of positions in government departments it would appear on a part-time basis. By 2002 when her eldest child was at university and her daughter Megan was doing her TEE the plaintiff determined that she was going to commence looking for full-time employment. She was interested in working in the Wage Line area because Mr Appleby indicated to her that this would be a wise move from a career perspective, given that it could possibly lead to a job as a compliance officer, which was attractive to the plaintiff. The Court was advised at the time of the first accident in September 2002 the plaintiff was earning $649.35 net per fortnight, however it is to be noted that in the plaintiff's closing schedule of damages at trial it is said the plaintiff was working part-time (24 hours per week) as a Wage Line enquiries officer earning on average $327.33 net per week and so this is the figure I shall accept. In July 2008, however, she formally resigned from the public service in order to access her superannuation.
According to the plaintiff her current symptoms include headaches, blurred vision, random problems with hearing loss, shoulder problems, difficulties in her forearms and wrists, constant nausea and neck pain as well as pain radiating into her right arm and right hand. She reiterated that her right hand experiences shooting pain from time to time and it swells. The pain in her right hand and neck has persisted from the time of the first accident. She currently suffers pain in her right hip and at the site of the break in her right leg. There is pain in her right knee and lower back pain which radiates into her right leg and toes. She told the Court that the pain in her lower back has remained fairly constant since the time of her first accident in 2002, in the sense that it has not worsened. However before the second accident the plaintiff did not suffer any problems with either her eyesight or her hearing, nor did she have any pain in her buttocks. She now experiences pain in the area of scar tissue and where the sites of skin grafts are located, relevant to the injuries she suffered in the second accident.
Currently the plaintiff maintains she experiences difficulty in concentration, problems with her memory and on occasion she becomes confused. As a result of all of these difficulties the plaintiff says she suffers from depression which is also related to her inability to enjoy the life she formerly enjoyed and her inability to contribute in a meaningful way either physically or financially to the household.
In addition the plaintiff says she experiences seizures whilst sleeping in the sense that her body "jerks" which is problematic because it tends to keep her husband awake and it wakes her up. She has been prescribed medication being Clomazepam which has reduced but not eradicated the seizures. She also experiences episodes where she described that her body becomes rigid and she begins to shake. During these episodes she is unable to speak and all her movements are involuntary. She has no warning of when she is about to experience one of these episodes. The plaintiff is unable to walk around the home without the aid of sticks and it is her habit to use crutches when she is out of the family home, for example, to walk around and climb stairs. She can only walk on flat ground and considers it too dangerous to walk on footpaths. She also has the use of a motorised shopping scooter which she finds useful when she accompanies her husband to the shops.

The plaintiff's family and social life she says has been compromised in the sense that it is now much more restricted. She and her family now attend social outings such as the beach, the park and movies far less frequently. Similarly the plaintiff now attends restaurants and visits friends less frequently, because it is difficult given her pain state and her problems with sitting for prolonged periods. She was an avid reader in the past but now finds it problematic to carry out this activity as she is unable to hold a book up without difficulty and reading exacerbates her neck pain. Her lack of concentration also is problematic in this regard. She no longer drives a motor vehicle, relying on her family for transport and indeed she has a quite deep fear of motor vehicles. Her sleeping patterns are still very disturbed and she experiences nightmares involving a range of matters relevant to both her accidents and their sequelae. Although the plaintiff regards her husband as extraordinarily supportive and she still enjoys great companionship in their relationship, her physical state and depression is such that their sexual relationship is almost non‑existent.
The plaintiff and her husband went on a family holiday to Bali in 2005 but she found the plane flight painful due to her inability to sit for long periods. Whilst she utilised a wheelchair in Bali and enjoyed the holiday, there were still difficulties from a physical perspective relating to her pain state. In 2007 the plaintiff and her husband flew to Hong Kong for another holiday, which again was difficult in terms of the length of the plane trip. Her movement in Hong Kong was restricted to a degree because of her pain state and the need to use her wheelchair. From there they flew to Singapore and took a boat cruise, which the plaintiff found a little easier to manage, albeit that again she was not able to engage in all of the activities available on that cruise given that, for example, she could not travel out on the "tenders".
From a domestic perspective the plaintiff's evidence was that she attempts to assist with household chores but with very limited success. She is able to assist in the preparation of vegetables for cooking and place washing in a machine but she cannot hang out washing, she cannot mop or vacuum or if she attempts to do so she is bedridden for two or three days, nor can she make a bed. She cannot assist with cooking given that it is too dangerous if, for example, she were to have a seizure whilst holding a hot item. The plaintiff's husband still assists her with personal hygiene tasks and, for example, he washes her back, legs and feet as well as drying her after her shower and assisting her with washing and drying her hair. He helps the plaintiff to dress in the sense of helping her to place clothing on the lower half of her body. He creams the areas of scarring on the plaintiff's buttocks and also deals with a heel wound that she still has.
The plaintiff is no longer able to use her computer at home to create graphics as she used to previously enjoy, given that she cannot sit for very long at the computer station and she finds using the mouse painful. Whilst she is still able to use a computer, it is on a relatively limited basis due to her pain state and concentration problems.
In the intervening period between the first and second accidents the plaintiff attended upon Dr Hsu who provided her with a number of medical certificates relevant to periods of unfitness for work, which the plaintiff then faxed to her place of work as is evident from Exhibit 15(1)‑(10). The plaintiff reiterated in cross-examination that when she left the team building exercise at Kings Park at around 5.00 pm on Friday, 28 March 2003 she was in great pain including stabbing back pain, a throbbing headache and neck pain and it was this pain that caused her to be distracted to the point that she failed to properly secure or park her vehicle when she returned home. Therefore she suggested it was this pain which in that way caused her second accident, because her condition at that time severely adversely affected her concentration and cognitive skills. She explained that this was the situation in her mind relevant to causation of the second accident when she was in RPH. She believed that on 14 April 2003 when she had been discharged to the general ward and had been there for a few days a police officer came and interviewed her regarding the second accident and what she could recall of it. Until reminded of it at trial the plaintiff said she had forgotten about this. She was shown a copy of a handwritten statement signed by her dated 14 April 2003, Exhibit 16, where there is no mention of any distraction caused by a pain state relating to the occurrence of the second accident. The plaintiff in part said in Exhibit 16 the last thing she could remember was being at a training session in Kings Park and the next memory she had was waking up in ICU at RPH. The plaintiff stated she could not remember driving to her home, parking the car and then the car rolling back over her as that was all a blank. She then went on to detail the injuries she received as a result of the second accident and then noted that she was on the road to recovery. Overall though it is brief, the contents of the statement are in clear order and some detail, e.g. as to the plaintiff's injuries, how she attended the training session on 28 March and what she understood the hospital planned in terms of transferring her for rehabilitation and when that would likely occur. Later in relation to this the plaintiff said when she saw the police officer and gave the statement she was self-medicating with pain relief of some type and she was in her words "a bit out of it" at times and further none of her fractures or burns had healed as at 14 April and she really had no idea as to how alert she was when she spoke to the police officer and signed Exhibit 16.
The plaintiff agreed that on 30 October 2003 she was required to attend a consultation with Dr Suthers as a result of which he produced a report. She said at that appointment the doctor asked her about the second accident, but she had no idea at trial what she told the doctor at this point in time. The plaintiff accepted as at that date she had inquired as to whether she was covered by any insurance or could make a claim in relation to the second accident and had been informed that she could not do so. That aspect of the matter is covered in a remark in the doctor's report. There is no reference to the plaintiff advising Dr Suthers that the second accident was caused by the severe pain state she was in at that time and her explanation for this was that the doctor did not ask her about that specifically, he merely asked her what had happened and she simply responded by answering the questions that were put to her. If she had been asked the specific question the plaintiff suggested she would have answered it. This is despite the fact that the plaintiff agreed she had never thought other than her pain from the first accident caused the second accident and this had been her belief since she awoke from her coma in RPH. The plaintiff also agreed that in a letter dated 21 July 2003 from her then solicitors to Dr Hsu there was no question posed as to the second accident being caused as a result of the pain arising from the first accident, nor was there any seeking of clarification regarding that issue. The plaintiff made the point that she was not responsible for writing any letters coming from her solicitor's office and she further stated that she did not see copies of those letters before they were sent to the various recipients, the suggestion being that the contents had nothing to do with her. However, in a letter, Exhibit 19, from her then solicitors to Dr Williams of 9 November 2004, sent in accordance with her instructions, it was pointed out that the plaintiff's position was that she was on pain-killers suffering from the aftermath of the first accident at the time of the second accident and therefore it was the plaintiff's instructions that the second accident would not have occurred had she not had the first accident. This would appear to be the first occasion upon which this theory or assertion was contained in a letter to a medical practitioner or in any documentation.
Following the first accident by 27 September 2002 according to Dr Hsu's notes her dosage of Diazepam had been reduced and she had advised Dr Hsu that her condition was slightly better and by 1 November 2002 she agreed she must have advised Dr Hsu that her symptoms were improving and this included an improvement in her neck pain and an easing of her back pain. In addition there is a notation that as at that date she was able to straight leg raise to 90 degrees on one side and 75 degrees on the other side. As at 20 December 2002 the plaintiff reported to Dr Hsu that she felt her neck and lower back pain were better and he noted on examination a range of motion of the neck was better. At about this time the plaintiff also reported to Dr Hsu that paresthesia in her right arm was becoming less severe and also reducing in frequency. It is common ground that on 20 January 2003 the plaintiff returned to work on a graduated basis and at that time the physiotherapy was assisting with back pain, so it had not worsened and in addition the plaintiff was trying to wean herself off analgesics. In February 2003 the plaintiff was willing to follow Dr Suthers' suggestion and undertake the Jump rehabilitation programme or at least try to do so. She told the Court that prior to her second accident and almost immediately following the first accident she was experiencing nightmares but this was not a matter that she considered necessary to discuss with Dr Hsu and further she did not believe that she needed to consult a psychiatrist regarding the issue. Certainly there is no mention of it in Dr Hsu's notes, although on review at 24 December 2002 he noted a report of poor quality of sleep and poor concentration. The plaintiff referred to the fact she had made notations in her diary regarding nightmares. She commenced keeping the diary proximate to the first accident. Dr Hsu commented that he had reviewed the plaintiff five times between 20 December 2002 and 27 March 2003, being the day before the second accident and he concluded that the plaintiff was making further progress in relation to her physical recovery, although the plaintiff maintained that her symptoms at that stage or during that time fluctuated and that her recovery was in her view slow.
In a consultation with Dr Suthers on 7 February 2003 the plaintiff reiterated that her condition had been slowly improving and that she was assisting with the preparation for cooking purposes at home. Whilst Dr Suthers noted in that report that the plaintiff was able to wash her own hair, he said that was an error and that it was her husband who was doing that. The plaintiff denied that despite consulting a solicitor very shortly after her first accident and commencing to keep record of travelling expenses thereafter that she was litigation focused. Although the plaintiff conceded that she would have advised Dr Suthers prior to her second accident that she was feeling better than at the time when she had the first accident, she said it was unlikely that she would have told him as he notes in his report in quotation marks "she feels heaps better now" and in that sense she said any comment she made with respect to this issue had been taken out of context by Dr Suthers and in addition he had not noted the precise question that he had asked her to elicit a response of this type. Further in his report of February 2003 Dr Suthers noted that the plaintiff was working on a graduated basis in a return to work programme and he did not anticipate that the problems she had would be long term and further that in his opinion the plaintiff should be able to return to her former pre-accident duties within a period of two months or so, although she would continue to have some ongoing pain. The plaintiff took issue with that assessment and maintained that her recovery was a fluctuating and unpredictable process, stating that perhaps on the day in question when she saw Dr Suthers she was in essence having a good day. When the plaintiff was reviewed by Dr Suthers proximate to trial on 1 October 2008 in his presence and in the presence of her husband it is noted that the plaintiff had what is described as a "turn" or seizure from which she recovered normally without any apparent significant impact on her health. Again the plaintiff took issue with this or the suggestion that it was something of relatively minor nature. Notwithstanding, tests by various neurologists and medical practitioners have not isolated the exact cause of this condition. The plaintiff conceded that when she returned to work after the first accident her condition was improving but the symptoms were still in existence and on some days her physical pain and lack of concentration would be worse than on other days.
Certainly by July 2005 the plaintiff had undergone a bone graft to her right femur which by November that year had in effect successfully healed and by that same date her fractures to the sternum had resolved and to a degree the problems with her clavicles had resolved, although she was still experiencing pain in the right clavicle. Her fractured ribs had healed as had the lacerations to her liver, albeit that she still suffered nausea of unknown cause. It was in that year, although it is not clear whether it was before or after November that the plaintiff went with her husband and two daughters on the family holiday to Bali which she previously mentioned. There then followed the trip with her husband to Hong Kong and Singapore in 2007. By 15 April 2008 when the plaintiff was reviewed by Mr Hardcastle he noted that she had made a reasonable physical recovery and in his opinion the plaintiff was able to return to clerical duties on a part-time basis provided she was given a modified workstation. The plaintiff refused to accept, however, that she was fit to return to work performing clerical or administrative office duties in a sedentary situation as at July 2005 because she maintained she was still suffering considerable health problems. She did not believe that a modified workstation and an opportunity to have regular physical breaks would have accommodated her particular problems, particularly as she maintained she has trouble with concentration and memory as well as eyesight and hearing difficulties. Notwithstanding the plaintiff's recovery after her 1981 accidents and subsequent damages payout as well as the 1997 work related accident and associated second schedule damages payout of $8,401.08 on 5 December 2000 she denied that if her current claim was settled to her satisfaction that she would return to some form of office work commensurate with her qualifications, training and experience.

Chantel Hawkins

Ms Hawkins was a 15-year-old young woman who happened to be waiting at a bus stop in Alexander Drive around 5.45 pm on 28 March 2003 when she observed the plaintiff's involvement in the second accident. She was standing across the road from the plaintiff's carport and driveway which she agreed was relatively steep. She was separated from the plaintiff's property by four lanes of traffic and a median strip in the middle but it would appear she had a relatively clear and uninterrupted view of what occurred.
She observed the plaintiff get out of her car, she could not see whether she locked the vehicle or not and walk to the rear of the car. There the plaintiff stopped on a side-on view to Ms Hawkins and placed her bag on the boot of the vehicle in about the middle of it. She was facing towards the front door area of the house at that stage. Ms Hawkins then observed the car begin to roll backwards towards the plaintiff who then turned to face the boot of the car directly and she appeared to place both her hands on the boot but the vehicle kept rolling down the driveway and when it was about three-quarters of the way down the plaintiff appeared to trip and fall under the vehicle feet first. The vehicle kept moving with the plaintiff underneath it and came to stop in the middle of Alexander Drive. In view of what she had seen Ms Hawkins very quickly took the mobile phone that another passenger at the bus stop had on display and she rang triple 0 for assistance. She noted that people, who were obviously the plaintiff's husband and two daughters, then came out of the house and ran down to the car to render assistance. Very shortly after this Ms Hawkins, who found the event understandably traumatic, caught her bus. It was necessary for her to review her statement several times before giving evidence because she explained that as it was traumatic she had essentially put it or tried to put it out of her mind.
Sometime after this Ms Hawkins happened to see one of the plaintiff's daughters on "Facebook" and Ms Hawkins added the daughter to her list and then the plaintiff apparently added Ms Hawkins from there. At one point the plaintiff did contact Ms Hawkins and suggest they meet for coffee and discuss the accident because the plaintiff did not have any recollection of it, however for reasons which are not clear this meeting did not occur. This contact by the plaintiff was by means of a computer through this site, despite the plaintiff saying using a mouse was very painful for her.
Ms Hawkins' evidence confirmed, in the absence of the plaintiff's lack of recollection, the most likely scenario and events immediately preceding and following the second accident after the plaintiff alighted from her vehicle. It could not and did not purport to address in any way the plaintiff's physical, emotional or cognitive state at that point in time or preceding that time.

Mr Robert Davey

The evidence and findings of Mr Davey were not in dispute at trial so it was not necessary for him to be called as a witness. He holds a Bachelor of Science degree and has qualifications in motor vehicle accident reconstruction in combination with other relevant experience including investigation training. Mr Davey was aware of the background to this matter, and was also privy to a range of relevant information concerning the second accident.
For the purpose of the preparation of his report Mr Davey attended the plaintiff's residence and viewed the site where the second accident occurred. He took various measurements and a series of photographs as well as preparing a plan reflecting his observations. He undertook a number of tests at the site involving the plaintiff's vehicle, it is unnecessary to refer in any detail to these. It was Mr Davey's conclusion after examining the vehicle in situ, that the rear axle of the vehicle was situated very close to the crest of the driveway and he considered that unless the plaintiff's vehicle was parked almost directly next to the garage door, almost touching it, the rear wheels of her vehicle would be positioned over the crest of the carport and onto the slope of the driveway. He concluded that if the vehicle was positioned approximately 20 to 25 centimetres from the garage door it would become very unstable and begin to move rearwards of its own accord when subjected to a minor rocking motion within the vehicle. It would appear that this observation was made on the basis that the vehicle was not in park and the hand brake was not on. He said if this occurred on the rearward force generated by the gradient of the driveway slope, static friction having been overcome, the vehicle would then accelerate unabated towards Alexander Drive. Relevantly Mr Davey concluded in the light of his observations and tests that the plaintiff's vehicle would roll backwards and down the slope if the driver failed to apply either the hand brake or put the transmission into park. If either of these actions had been performed he concluded that the potential risk of injury arising from the parking of the vehicle could have been avoided.

Aileen Louise Elliott

Ms Elliott is a public servant and in 2002 and 2003 she was a clerical support officer for the department in which the plaintiff was working. She knew the plaintiff and they were friends, although they did not work in the same area as the plaintiff worked as a Wage Line inquiry officer. They were in separate offices on the same floor of the building but on days when the plaintiff was at work she would walk past Ms Elliott's office and they would chat, which is how the plaintiff came to tell Ms Elliott that the plaintiff was suffering pain. Ms Elliott did not have any information nor was she privy to any information which suggested the plaintiff was not a good worker, however she was not involved in working in the same area nor was she a supervisor or a person who had anything to do with assessing the plaintiff's work. In this respect her evidence was of limited value.
Ms Elliott recalled the team building exercise on 28 March 2003 at about which 40 or 50 employees attended. She remembered the plaintiff attending the exercises, but did not pay any particular attention to the plaintiff or what she was doing throughout the course of the afternoon. Ms Elliott herself stayed for the social aspect of the exercises which ended about 4.30 pm, but she left before 5.00 pm. At a time subsequent to this at the plaintiff's request, Ms Elliott provided her with a written memo regarding what Ms Elliott could remember of the afternoon, but she said the plaintiff made no corrections or suggestions as to Ms Elliott's recollection in the document.

Rebekah Lothian

Ms Lothian met the plaintiff in the course of her duties when they were both working at the Wage Line inquiry centre. Ms Lothian said they would chat at work and were friends but did not see each other socially outside work. She explained what the work of a Wage Line operator entailed during the period she worked in the position from May 2000 to May 2003 approximately. She considered that it was the type of work particularly where one was dealing with inquiries over the telephone where one not only had to have a good working knowledge of the relevant legislation but one had to think relatively quickly and in that sense be on top of things. She explained that after she left this position she went to work as an industrial inspector which was a promotion and this work, which involved the investigation of alleged underpayments of State awards and agreements, fell under the compliance section of DOCEP.
Ms Lothian was aware that the plaintiff ceased work in 2002 following a motor vehicle accident but she did see the plaintiff on her return to work and spoke to her. She was informed by the plaintiff and had the understanding that the plaintiff was in a certain amount of pain and was unable to work full hours each day as she found it difficult to do so. On one particular occasion Ms Lothian remembered that whilst at work the plaintiff was in pain and so Ms Lothian rubbed Dencorub onto the back, neck and shoulders of the plaintiff. Ms Lothian was also present at the team building exercise on 28 March 2003 at Kings Park which she said the plaintiff also attended. The group concerned had lunch and then proceeded to become involved in the team building exercises after they had been split up into teams. The plaintiff was not in Ms Lothian's team. She did, however, recall that over lunch they discussed the plaintiff's health in the sense that there was reference to the pain that the plaintiff was suffering that day. Although Ms Lothian said it was her impression that the plaintiff could not fully participate in all of the activities, she was not in a position to observe the plaintiff throughout the course of the afternoon. She saw the plaintiff at the end of the activities which she thought was around 4.30 pm, after the group of participants came together again. Ms Lothian spoke to the plaintiff briefly at that time and said that she could see that the plaintiff was in pain. Ms Lothian was under the impression that she was required to attend the exercises, but that was not the view of the manager Mr Appleby – as I understood his evidence attendance was desirable but not mandatory if one had an acceptable excuse. She also recalled the plaintiff contacting her at some point after that date and asking Ms Lothian to provide a statement as to what she could recall of the relevant events with respect to the plaintiff's claim and Ms Lothian did so. This witness appeared to be anxious in giving her evidence to be as supportive as possible of the plaintiff's claim.
From this witness's recollection when the plaintiff returned to work she was not taking calls using a headset sitting at her computer as Wage Line operators frequently did during the course of the day. Rather her impression was that the plaintiff was dealing with correspondence, that is, that she was sorting through and answering emails and letters regarding inquiries as to wage levels and entitlements, it being in Ms Lothian's opinion a slower paced type of work. She confirmed that there were legislation changes in the area in which she was working in 2002 and that it was a long transition period, so that possibly could also have applied in 2003. She regarded the plaintiff before the first accident as being a good worker with a genuine concern for the queries those making inquiries.

Brian Appleby

Mr Appleby also worked at the relevant department at the time in question and had started his position in 2001. He met the plaintiff through work when she was job sharing as an executive support officer being a Level 2 public service position to a position that he was holding at the time. Although he could not recall the precise details as to where and when it occurred, Mr Appleby believed that in about 2001 when the plaintiff was working about three days a week they had a discussion regarding her employment situation and he advised her that there were opportunities in the Wage Line area as an inquiry officer, it being a Level 2 position also, which offered prospects of promotion and advancement, and could still accommodate part-time work, but it would require training for the position. His plan was to move to having one full-time permanent executive support officer. It is common ground that the plaintiff took up this position and she was made permanent in May 2002, working 24 hours over three days per week. He gave some general evidence as to the anticipated career path of Wage Line officers working in the area as at 2002 and understood the plaintiff to be committed and hardworking.
Mr Appleby became aware that the plaintiff had been involved in the first accident and noted that she had an extended period of time off work as a result. She did return to work on a graduated system. At that time he observed her on occasion, and interacted with her, although he was not her direct supervisor and he obtained or heard feedback from her managers at the time. As far as he understood it essentially at that stage the plaintiff was taking calls and attending to inquiries on her computer, which involved the use of cognitive skills. This was at odds with the evidence of Ms Lothian and Ms Gillam. It was his impression that the plaintiff was coping adequately in the position up until her second accident. He said that in 2002 there were legislative changes involving changes to industrial legislation which persons working in the Wage Line inquiry area needed to understand and this required some up‑skilling on their part. He considered that a good Wage Line officer working full‑time would take between 60 and 70 calls a day over a 7½ hour day, but of course someone in the position of the plaintiff who was working less hours per day would take less calls. He never received any complaints regarding the plaintiff's work ability and he considered that she was hard‑working and committed to her job and progressing well. There was no evidence that if there were any concerns or issues with respect to the plaintiff's ability to carry out her work on her graduated return to work, for example, on the part of Ms Gillam, that were ever raised with Mr Appleby. Through him Exhibit 42, a list of relevant pay scales, was tendered. Putting aside the plaintiff's current injuries and difficulties, Mr Appleby said that he would have her back as an employee initially on a Level 2 basis but after refresher training he considered she would then progress in the normal way. He also explained that DOCEP has policies for accommodating people with disabilities and this could be done within reason for someone who was performing the job as a Wage Line officer answering inquiries.
Mr Appleby also recalled the team building exercise of 28 March 2003 in Kings Park which he believed commenced about lunchtime and finished between 4.30 and 5.00 pm. An independent group organised the exercise and it was the case if a particular employee felt they could not undertake any aspect of the physical activities then they were encouraged to advise relevant persons to this effect. In his view the plaintiff's promotion opportunities would not have been adversely affected if she could not attend the exercises due to her pain state. He did not recall the plaintiff being in any of the groups that he was involved in that afternoon, in the course of the exercises but he did recall speaking very briefly to her only once at the end of the proceedings for approximately one to two minutes. This was when the drinks were beginning and he offered her one but she declined, saying that she felt uncomfortable and that she was going to go home, take some painkillers and go to bed. For that reason he indicated to the plaintiff that if she was not at work on the following Monday then he would not be concerned, in the sense that he would take it that she was unwell. She then left and he did not see her on the Monday as he later learnt she had had the second accident on the Friday afternoon when she returned home.
The plaintiff's evidence as to exactly when she spoke to Mr Appleby that day as well as how many times they spoke was somewhat confused. At one point she said she probably told him before the exercises began that she was in pain. Mr Appleby's evidence is to be preferred because it was very clear and unshaken on this aspect.

Michelle Gillam

Ms Gillam was the plaintiff's manager between November 2001 and March 2003 when the plaintiff was working at the Wage Line call centre. She was aware that the plaintiff had a motor vehicle accident in September 2002 and thereafter had a period of time off work before returning in January 2003. The plaintiff was a part-time worker and returned to work on a graduated work programme. Ms Gillam's recollection was that the plaintiff was unable to answer phone calls all day on the days she worked because of her pain issues. When the plaintiff returned to work there was a long period of training largely because in the period of time she had been absent from work there had been a considerable number of reforms in the industrial relations area, which not only the plaintiff but other persons working in the Wage Line area were required to understand in order to give advice. The plaintiff did that training but then rather than returning to the call centre on the phone taking numerous calls each day she dealt with correspondence and answering queries. At the time the plaintiff was a Level 2 inquiry officer but Ms Gillam explained that this position would generally result in the employee progressing on to the industrial inspectorate or they may become an education officer which positions offered opportunity for advancement through to Level 6 in the public service.
Most persons who were working with the plaintiff in that area at the time have according to Ms Gillam progressed to higher levels in the public service, although she explained that the majority of those people were working five days a week which the plaintiff was not. Ms Gillam was satisfied with the plaintiff's work performance and believed she had a career path. Putting aside the plaintiff's disabilities, Ms Gillam, like Mr Appleby, was of the view that the plaintiff would be welcome to return to her previous employment. In relation to disabilities the workplace within DOCEP had policies in place to accommodate people with disabilities, for example, providing an individual with a modified workstation and offering a graduated return to work. Ms Gillam was also aware that in March 2003 the plaintiff had a further motor vehicle accident and obviously did not return to work after that time. When the plaintiff did return to work in January 2003 Ms Gillam's impression was that during the training period the plaintiff, though working hard, took quite a long time to train. Ms Gillam was not present at the team building exercise on 28 March 2003, but said prior to that date the plaintiff on her return to work did appear to be in pain and in essence according to Ms Gillam the department created a job for her almost as a supernumerary where she did her retraining. If an employee had formally resigned from the department and they wished to return to some form of work within the department, Ms Gillam explained it would be necessary for that person to re‑apply for a position and undergo the usual selection process. Like Ms Lothian, Ms Gillam gave the impression that she was very desirous of assisting the plaintiff's case.

The medical evidence

Dr Hsu

Dr Hsu is a general practitioner and has been in that type of practice since 1996. In 2002 he was practising at the Camboon Medical Centre where the plaintiff was a patient. He had seen her for various reasons prior to 7 September 2002 and on that particular day relevant to her first accident. He obtained a history from her and at the request of her solicitors at later times issued two reports as well as a number of certificates relevant to the plaintiff's unfitness for work being Exhibit 15(1)-(10). He also referred in the course of his evidence to the progress notes, Exhibit 55, he had made with respect to various attendances upon him by the plaintiff following her first accident. In relation to those notes Dr Hsu did attempt to the best of his ability to record relevant issues raised by the patient or the plaintiff within the confines of the consultation but he made the point it is not a verbatim record. In a medical report of 24 December 2002 Dr Hsu did report the plaintiff's complaint to him regarding poor quality of sleep and poor concentration as well as difficulty driving because of neck and lower back pain causing him to declare her unfit for work since 11 September and indicating that the date of return to work was guarded in his opinion. When Dr Hsu saw the plaintiff on 7 September 2002 his diagnosis was of multiple soft tissue injuries sustained as a result of a rear‑end motor collision. He took the view that conservative treatment was appropriate at that stage and recommended physiotherapy and queried whether a CT scan should be carried out if her symptoms persisted. Panadeine Forte was also prescribed for pain. By 13 September 2002 the results of the CT scan of the neck indicated there was no neural impingement and so conservative treatment continued. By 20 September he noted that the plaintiff's condition was better based both on how she presented and his assessment of her at the time. He explained that where Diazepam was prescribed for a patient he would advise the patient as to relevant side effects of that medication and his standard advice relevant to Diazepam was that drowsiness could eventuate so he would issue warnings as to the operating of vehicles in the sense that he would advise the patient or alert them to be conscious of this particular fact or possibility. I do not doubt that Dr Hsu followed his usual practice in this regard relevant to the plaintiff. On 20 September he noted that the patient's Diazepam was to be reduced and a week later he noted her condition was slightly better but she was drowsy from that particular drug so it was reduced to one tablet daily.
After assessment on 1 November he felt that the plaintiff's back and neck pains were improving and that straight leg raising on both her legs was quite good, with the left leg essentially being normal at 90 degrees. As there was no neural impingement noted on the MRI scan again conservative treatment was indicated. There was some residual tenderness in the lower back, but Dr Hsu noted that the plaintiff's range of neck motion was better and the paresthesia in the right arm was less severe and reducing in frequency. By 31 January the plaintiff had obviously returned to work because she reported feeling tired from doing so, however she reported that the physiotherapy was assisting with her back pain and she was trying to avoid taking analgesics. Her back pain according to her had not worsened, so overall the doctor's opinion was that the plaintiff's condition did not appear to have deteriorated, despite the fact that she was working for two hours three days per week. There is no mention in his clinical notes of the patient complaining of poor memory. There was an overall trend of improvement or recovery of the neck and lumbar spinal symptoms, although Dr Hsu did qualify this opinion by saying there were days intermittently when the plaintiff would deteriorate therefore the picture was one of relatively gradual improvement in her physical condition. Certainly as at 31 January the pain relief she was taking was at the lower end of the scale and there was no reason in Dr Hsu's opinion for her to be referred to a pain specialist or have her pain relief medication increased.
He noted on 28 February 2003 the patient's condition was reported by her as worsening since physiotherapy ceased two weeks earlier and certainly on the information imparted to him Dr Hsu saw no need to refer the plaintiff to a psychiatrist or to prescribe antidepressant medication for her. By 26 March 2003 the plaintiff was improving and Dr Hsu was working towards the plaintiff increasing her hours to three hours per work day or a total of nine hours a week. Having seen the patient five times between 20 December 2002 and 27 March 2003 Dr Hsu considered that her headaches, neck and lower back pain were improving and her progress was slow but steady. Dr Hsu makes no mention in any of his notes or reports of the plaintiff reporting any symptoms of depression or him noting such. There is no reference to a possible referral to a psychiatrist or a possible issue of post‑traumatic stress disorder.
He was not particularly actively involved in the plaintiff's treatment following her second accident, albeit that he did prepare a report dated 6 October 2008. Dr Hsu made no mention of ever observing the plaintiff having a "turn" or seizure which the plaintiff's husband told Dr Hayward he had done. If this was correct, in my view it would be highly unusual that Dr Hsu did not mention it. He indicated in response to a particular query in that report that he was not able to comment on how pain alters judgment. He noted the plaintiff had muscle spasm in her neck and back on occasions between September 2002 and March 2003 and that was one reason why he re‑initiated Diazepam to reduce the spasming which was along a fair length of the spine so far as he could detect and in fact he declared her unfit for work for two days on 17 March 2003 for this reason. On 26 March 2003 which was the last occasion Dr Hsu reviewed the plaintiff before her second accident, he noted that she would try to return to work the following week for three hours per day on Monday, Tuesday and Wednesday because he felt it was important to positively encourage this. He would not have recommended that course of action unless she had improved enough for him to do so compared to her condition the previous week.

In the light of this finding it is not necessary in my opinion to proceed to consider issues which would have arisen on the pleadings had the plaintiff succeeded in relation to the above issue. Therefore I do not propose to deal with or make findings relevant to issues such as whether or not the second accident was caused solely as a consequence of the plaintiff's negligence or whether the plaintiff was contributorily negligent.
In relation to the injuries resulting from the first accident the majority of the expert medical evidence establishes that the plaintiff suffered soft tissue injuries, or a whiplash injury so called. This was the opinion of Dr Hsu who noted that there was no neural impairment or impingement and further there was a gradual improvement in the plaintiff's condition resulting in a reduction of strong pain killing medication. There was no evidence of any significant disc pathology arising from the plaintiff's involvement in the first accident insofar as those medical practitioner's particularly qualified to comment on this aspect of the matter, being Mr Hardcastle and Dr Grainger, were concerned. Dr Grainger believed the soft tissue injury involved muscles, tendons and joints and like Dr Hsu and Dr Williams he anticipated a full recovery and a return to the workforce in her pre‑accident occupation by the plaintiff. In fact Dr Grainger felt this could be achieved, given the sedentary nature of the plaintiff's work, even if she did not experience a full recovery. Dr Williams noted no neural impairment or impingement, although there was some minor segmental stiffness of the cervical spine. He too considered that the plaintiff could undergo a graduated return to work and this would have occurred within six to 12 months following the first accident had it not been for her involvement in the second accident. He later said it could be up to two years post-accident, with no ongoing treatment needs. He considered prior to the second accident the plaintiff was coping with working six hours a week. Dr Harper also was of the view that if it had not been for the second accident, the consequences of the first accident would not have precluded the plaintiff returning to work at her pre‑accident level for at least 20 hours a week, with some modifications if necessary to her work station.
Dr Suthers considered that the plaintiff's symptoms following the first accident were consistent with a whiplash injury in combination with some low back pain and soft tissue injury to the cervical, thoracic and lumber region. He noted no significant underlying pathology despite complaints of radiation of pain into the right leg and right arm. He considered in his report of February 2003 that the plaintiff would recover within six to 12 months and return to her pre‑accident duties and be able to undertake a normal range of domestic tasks. His diagnosis regarding the plaintiff's condition following the first accident did not change after the second accident, in the sense that he considered were it not for the second accident, rehabilitation resulting in the plaintiff's return to her usual work would have occurred by October 2003, in other words approximately 12 months after the first accident. Mr Hardcastle considered there was no physical basis for the plaintiff being unable to return to her pre‑accident occupation following the first accident, with some modifications to her work station if necessary and that she could work for at least 25 hours a week. He too considered that following the first accident, had the plaintiff not been involved in the second accident, she would have fully recovered from the injuries sustained in the first accident within a 12 month period although later in his evidence he did concede that it could have taken up to two years post first accident.
As I understand this evidence it was implicit that following her recovery from the first accident and its consequences the plaintiff would not require any ongoing form of domestic assistance. Taking into account the above evidence and findings on it I am persuaded that the plaintiff made a reasonable and obvious recovery which was ongoing between the first and second accidents. The plaintiff conceded that her symptoms were generally improving overall during that period, albeit that her progress was comparatively slow and she had in effect good days and bad days. In the light of this she was keen and had agreed to attempt to increase her hours to nine hours a week, three days per week as from Monday 29 March 2003, but was obviously precluded from doing so as a result of the events of 28 March. During this intervening period the plaintiff was treated conservatively and there was no need for surgery. Further, neither of the two medical practitioners who saw the plaintiff in that critical intervening period considered that she had any identifiable psychiatric condition, for example, post traumatic stress disorder which might require further investigation or treatment. I do not consider Dr Suthers' observation regarding features of non-organic pain being displayed, to be a diagnosis of any particular condition that in his view required treatment. Overall the plaintiff's pain medication regime had been reduced and it was not considered necessary to refer her to a pain specialist.

Assessment of damages

Non-pecuniary loss – general damages

The plaintiff's injuries with respect to the first accident arose out of a motor vehicle accident which occurred after 1 July 1993. The provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 govern the amount of damages to be awarded to the plaintiff for non-pecuniary loss which includes pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. Subsection (2) of s 3C of the Act provides that:
"(2)The amount of damages to be awarded for non-pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded."
The maximum amount of damages that may be awarded under the Act for non‑pecuniary loss as from 1 July 2008 being the amount prescribed at date of trial is set at a figure of $309,000, (Amount "A").
Subsection (3) of s 3C provides as follows:
"(3)The maximum amount of damages that may be awarded for non-pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case."
Southgate v Waterford (1990) 21 NSWLR 427 is of some assistance in interpreting the relevant provisions in the legislation. Although the New South Wales legislation considered in that case was in somewhat different terms to s 3C of the Act, as it stood at the time that legislation provided that damages for non‑economic loss were only to be awarded in cases where there had been significant impairment of an injured person's quality of life and required the Court to assess the amount of damages to be awarded for non-economic loss as a proportion, determined according to the severity of the non-economic loss, of the maximum amount which that legislation permitted to be awarded. In a joint judgment Gleeson CJ, Kirby P and Meagher JA said at 440:
"There are a number of ways by which trial Judges could approach the task of apportionment required by s 79(2) and s 79(3). It is important in this case for the Court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But clearly, because the task in hand is that of awarding damages for 'non-economic loss', it is appropriate for the trial Judge to consider and to make findings on those elements in the evidence which are relevant to such loss. This will require the Judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in an award of general damages. Then it is necessary for the Judge to conceive a most extreme case. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhat between nil and $180,000, but in a ratio which the Judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'."
In this case relevant to the injuries sustained in the first accident taking into account all of the circumstances and evidence, I find that the plaintiff suffered mild to moderate soft tissue injuries involving the cervical and lumbar spine. These injuries were gradually improving up to 28 March 2003 when she was involved in the second accident. This improvement was marked by her graduated return to work and by her comments regarding this in particular to both Dr Hsu and Dr Suthers. It is the case that the plaintiff was suffering setbacks from time to time but nonetheless she was in the process of gradually increasing her hours of work from six to seven hours over a three day working week with the prospect of attempting to increase her hours to nine hours per week over three days as from 31 March 2003, which as has previously been noted did not occur because of the events of 28 March. Following the first accident the plaintiff was treated conservatively with pain medication and physiotherapy as well as hydrotherapy. The physiotherapy was ceased after a time. There was no need for surgical intervention or treatment, for example, by way of facet joint injections. The plaintiff was not referred to a pain specialist or psychiatrist. A number of scans and x-ray images were taken, but they did not demonstrate anything of particular significance at that time.
I accept that the plaintiff was suffering a degree of ongoing pain during this time, which fluctuated, according to the evidence and notes of Dr Hsu. This is also reflected in the pain medication regime that was in place at the time. The plaintiff was absent from work because of her condition between the date of the first accident and 20 January 2003, a period of some five months approximately. During this period of time the plaintiff was according to the evidence, restricted in relation to her usual physical activities including social activities. She was also physically uncomfortable such that it took some time for her to return to driving a vehicle. Her sleep was disturbed to a degree and she had concerns regarding the family finances and her inability to contribute fully to the maintenance of the household. She required the use of a footstool and slope board when she did return to work and she also required regular breaks from sitting. The plaintiff experienced a degree of fatigue and given that she could not walk regularly for exercise she experienced some weight gain, which was a cause of some distress and embarrassment to her.
After canvassing the evidence relevant to the heads of damage which fall within an award of general damages it is necessary to consider what might be a most extreme case in which the maximum amount of damages, currently standing at $309,000, may be awarded for non-pecuniary loss, and then apportion damages by comparing the severity of this plaintiff's non‑pecuniary loss with that likely to be suffered in a most extreme case. When the plaintiff's injuries and associated symptoms relevant to the first accident are compared with the example of what might be regarded as a most extreme case, namely quadriplegia, I find that the plaintiff's injuries and symptoms arising from the first accident as well as their progression and treatment and current status in addition to the effect that they have had on the plaintiff's enjoyment of life puts this situation at 20 per cent of a most extreme case.
This results in a sum of $61,800. This sum is greater than Amount C (currently standing at $35,000) but less than the sum of Amount B (currently standing at $15,500) and Amount C. Therefore pursuant to s 3C(6) of the Act the amount of damages to be awarded for non‑pecuniary loss in these circumstances is $61,100.

Past economic loss

As a result of the injuries sustained in the first accident the plaintiff did not work between 6 September 2002 and 20 January 2003, a period of approximately 19 weeks. At the time of the first accident the plaintiff's average net weekly earnings were $327.33 net per week so therefore her economic loss on that basis for this period of time is:
$327.33 net per week x 19 weeks = $6,219.27 (rounded up to $6,220.00)
Between 20 January 2003 when the plaintiff commenced on a graduated return to work and 28 March 2003 when she was involved in the second accident, a period of some 10 weeks according to the plaintiff's schedule of damages, the plaintiff earnt $93.73 net per week which is a total of $937.30.
Doing the best I can in calculating loss for this period the calculation is as follows:
10 weeks x $327.33 = $3,273.30
$3,273.30 - $937.30 = $2,336.00
The economic loss therefore up until the date of the second accident is:
$6,220.00 + $2,336.00 = $8,556.00
Again doing the best I can on the evidence available, I find that at the time of the second accident the plaintiff was working seven hours per week over a three day week, that is, seven hours per week out of a 24 hour working week. I find on the medical evidence and for the reasons previously referred to in this judgment that the plaintiff would have returned to her pre-accident hours of 24 hours a week over a three day week by 31 October 2003. That is a 12 month period approximately after the date of the first accident and this would have happened in my opinion had it not been for the occurrence of the second accident for which the defendant is not liable. This is then a period of 32 weeks. There is no evidence as to precisely how the plaintiff's working hours during that period would have gradually built up, but if she was working for 24 hours per week over 32 weeks she would at her net weekly earnings of $327.33 net per week have earned $10,475.00. There is no question of course that she would not have immediately commenced to return to her full 24 hour per week employment as it would have been a gradual build up of hours. The best that can be done in the circumstances in my view is to apply a discount factor to that sum of $10,475.00 reflecting over time the capacity the plaintiff would have had in relation to gradually increasing her work hours to the full 24 hours over a three day week. I consider an appropriate discount in the circumstances to be one of 50 per cent and therefore the resulting figure is $5,238.00.
Therefore the total past economic loss is:
$8,556.00 + $5,238.00 = $13,794.00
It should be noted that in calculating past economic loss I do not find that but for the first accident the plaintiff would have commenced full‑time employment in 2003 in the compliance area of the Department of Consumer and Employment Protection and that she would have progressed beyond her level 2 position. This is because there is no evidence that this would necessarily have occurred. The plaintiff's work history had up to the date of the first accident been one of working on a part-time basis largely because of family commitments. There is no evidence that despite moving to the Wage Line inquiry area after discussions with Mr Appleby, the plaintiff having been made permanent in May 2002 applied for any full‑time positions or showed any indication of increasing her working hours from the 24 hours per week that she was undertaking at the time of the first accident. It may well have been that at some future time the plaintiff intended to increase her working hours and indeed intended to work full-time but there is no evidence of if and when this would have occurred, therefore on that basis I do not accept the argument advanced on this point on behalf of the plaintiff.

Interest on past economic loss

This is calculated as follows:
$13,794.00 x 3% = $414.00
$414.00 x 6 years 2 months (being from date of first accident to date of trial) = $2,554.00.

Past loss of superannuation benefits

$13,794.00 x 9% = $1,241.00.

From this must be deducted 30% or $381.00 to reflect the principle in Jongen v CSR (1992) Aust Torts Reports 81-192 by making an allowance for tax and fund administration expenses.
$1,241.00 – $372.00 = $869.00.

Interest on past superannuation

$869.00 x 9% over a period of 6 years 2 months being from date of first accident to date of trial = $471.00.

Special damages

The plaintiff is entitled to all medical and travel expenses up to 28 March 2003 relevant to those expenses connected with the first accident.

Travel expenses

Dr Hsu62 kilometres
Physiotherapy 445.5 kilometres
Gym – hydrotherapy 37.6 kilometres
Dr Suthers
(20 kilometres)
(Although this relates to an appointment on 30 October 2003, a travel allowance is awarded on this basis for the review undertaken by Dr Suthers in February 2003 after the first accident but before the second accident)
Total travel allowance at agreed 40 cents per kilometre:
565 km x 40 cents = $226.00

Chemist expenses between 11 September 2002 and 26 March 2003

(Reference Exhibit 14) $323.75
Dr Len Atlas
(the provider number relevant to the surgery in which Dr Hsu worked) between 7 September 2002 and 26 March 2003 $1,066.50
Physiotherapy
(Between 9 September 2002 and 14 February 2003 including a consultation on 18 September 2002) $3,298.00

SKG Radiology

(Relevant to consultation dates of 13 September and 13 December 2002):
$1,890.00

Jump Health
(Relevant to consultation dates of 4 March and 21 March 2003) $134.50
Jump Health
(For report relevant to consultation date of 4 March 2003) $95.00
Jump Health
(Consultation date 21 March 2003 - Sundries) $26.50
Dr John Suthers
(Consultation date of 7 February 2003) $847.00
Terry Tyzack Aquatic Centre
(25 March 2003) $187.00
Total Special Damages $7,868.00
(rounded down)

As it is not possible to award damages for any medical expenses that the plaintiff may have incurred relevant only to treatment with respect to the injuries following from the first accident between 28 March 2003 and 31 October 2003, because it is not possible to isolate that issue from treatment which the plaintiff was receiving after 28 March 2003 relevant to the injuries sustained in the second accident. There does not appear to be a specific claim in relation to this issue nor is there any specific evidence or documentation which assists in isolating these particular costs if they were incurred.

Past gratuitous services

In this regard the only evidence before the Court, which was general in nature and purely an estimate was that of the plaintiff, as no other evidence was called in relation to it from her husband or others. Her evidence was that between 6 September 2002 and 6 February 2003 on average she received 35 hours a week by way of gratuitous services and assistance from her husband and family members. The rate that applies to this is $17.10 per hour. There is no material which contradicts this aspect of the plaintiff's evidence and so in the circumstances I am prepared to accept it. Therefore the calculation relevant to this aspect of the damages claim is:
35 hours x $17.10 per hour x 20 weeks = $11,970.00
The plaintiff's evidence again given on the same basis as referred to above and accepted on the same basis as previously expressed, was that between 7 February 2003 and 27 March 2003 a period of some seven weeks she required gratuitous services in the order of an estimated 20 hours per week. The calculation therefore in relation to this aspect of the claim is:
20 hours x $17.33 per hour x 7 weeks (the rate having apparently increased slightly) = $2,426.20
Given that a finding has been made that the plaintiff would have recovered, in the sense of would have been rehabilitated and returned to her pre‑accident occupation by 31 October 2003, there is a question as to whether during this third period during which her recovery and rehabilitation was ongoing she would have required some reduced assistance by way of past gratuitous services. Although there is no evidence on this issue as it relates to assistance relevant to the first accident only, applying commonsense and adopting a scenario that is fair to the plaintiff's position a modest global award is made on the basis of five hours per week during this period, that is for the 31 weeks, from 27 March 2003 to 31 October 2003 (excluding the assistance that was rendered in this regard following the second accident). I consider an appropriate allowance would be for five hours per week:
5 hours x $17.33 x 31 weeks = $2,686.00
Total award for past gratuitous services $17,082.00 (rounded down)

Interest on past gratuitous services

This is calculated at 3 per cent per annum from the date of the first accident until the date of trial, a period of six years and two months:
$17,082.00 x 3% x 6 years 2 months = $3,164.00
For reasons previously expressed in some detail there is no award of damages under any head relevant to any injuries arising from or costs associated with the plaintiff's involvement in the second accident on 28 March 2003 and so it is not necessary to make any assessment in this regard. The second accident was a supervening event unconnected in any way and in no way causally linked with the first accident or its sequelae. The chain of causation relevant to any head of damages was thereby severed.

Summary of award of damages for first accident

Non-pecuniary loss $61,100.00
Past economic loss $13,794.00
Interest on past economic loss    $2,554.00
Past loss of superannuation benefits      $869.00
Interest on past superannuation     $471.00
Travel expenses      $226.00
Other special damages    $7,868.00
Past gratuitous services $17,082.00
Interest on past gratuitous services    $3,164.00
Total$107,128.00

[2009] WADC 8

30 January 2009