Bailey v Bailey

[2003] WADC 179

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   BAILEY -v- BAILEY [2003] WADC 179

CORAM:   FRENCH DCJ

HEARD:   7 AUGUST 2003

DELIVERED          :   8 AUGUST 2003

PUBLISHED           :  21 AUGUST 2003

FILE NO/S:   CIV 3135 of 2002

BETWEEN:   GAIL BEVERLEY BAILEY

Plaintiff

AND

MICHAEL EDWARD BAILEY
Defendant

Catchwords:

Damages - Assessment - Personal injuries - Motor vehicle accident - Fractured pelvis - Lower back pain - Permanent incapacity to work - Limited employment history

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages assessed in sum of $169,667.20

General damages $110,000, future medical treatment $9,083, Special damages $584.20, loss of earning capacity $50,000

Representation:

Counsel:

Plaintiff:     Mr G Droppert

Defendant:     Ms B A Mangan

Solicitors:

Plaintiff:     Ilberys

Defendant:     Phillips Fox

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

Nil

Case(s) also cited:

Nil

1. FRENCH DCJ:  The plaintiff was born on 9 March 1962.  On 1 November 2001 she was injured in a motor vehicle accident when travelling as passenger in a car driven by her son, the defendant.  Liability for the negligence of the defendant is admitted.  The defendant admits that the plaintiff sustained serious injuries but disputes that the plaintiff has suffered any economic loss and disputes that the plaintiff is entitled to any claim for gratuitous services.

2. The plaintiff was a front passenger in the car at the time of collision and the primary impact point was the passenger side of the vehicle.  She was trapped in the vehicle and had to be cut from the wreckage.  Although she was fading in and out of consciousness she recalls tremendous pain from the waist down.  She states that to the best of her recollection it was about half an hour before she was cut out of the vehicle.  She was then placed in a neck brace and was taken by ambulance to Sir Charles Gairdner Hospital.  Although she was in hospital for approximately eight days she has little recollection of that period.  She was released from hospital at what she describes as an early date because she was extremely worried about the welfare of her children.  Upon her release she required a significant amount of assistance from her family as she was unable to look after herself or to perform domestic tasks.  She required assistance in dressing herself, showering and going to the toilet.  Although the medical reports say that on discharge she was mobile on crutches she said that she often had to use a wheelchair for three months after the accident.  She then used a metal walking frame for approximately two months until she progressed to wrist crutches.  The plaintiff continues to experience chronic lower back pain and left groin pain.  This is aggravated by bending, standing, walking and lifting anything that is not light weight.  These symptoms have a major impact on her life.  She is unable to carry out any heavy domestic activities and her mobility and range of movement in her back and hips is restricted.  The chronic pain and reduction in mobility have severely curtailed any recreational or social activities and significantly limit any sexual intercourse. 

3. The plaintiff is divorced from her husband and has seven children aged between 25 to 10 years, five of whom still live with her.  At the time of the accident the plaintiff was not in employment but was engaged full time in housekeeping and parenting tasks.  Her sole income was from social security payments.  The plaintiff had left school at 14 or 15 and had not attained any qualifications.  She had her first child just before her sixteenth birthday.  She has very little work experience.  Although she stated that she did intend to obtain some work after she separated from her husband in 1983 she had four young children to look after.  Following the break‑up of a further relationship she started working as a cleaner in 1996.  She worked for approximately six months on a casual basis helping out a friend who was employed to clean hotels and clubs.  She then obtained employment with a firm of office and house cleaners and worked for approximately 18 months five days a week for between five and seven hours a day.  The plaintiff stated that she ceased work in approximately May 1997 as her two youngest children were chronic asthmatics and needed her attention.  However she stated that just prior to the accident she intended to return to the work force as the two youngest children were at that stage aged eight and nine and their asthma had improved.  She stated that she was regularly looking for cleaning job opportunities in the newspaper and had approached a video shop and enquired about job possibilities.  She stated that although she still had a number of children at home the older children would be able to look after the young ones and help her with some of the domestic work.  She said that she enjoyed working as it got her out of the house and away from the monotony of domestic and child care tasks.  She stated that she planned to work on a part‑time basis so that her income would not affect her social security benefits.  She was aware of the fact that she may not be eligible for social security benefits once her youngest child turns 16.

4. Medical reports in relation to the plaintiff's injuries at the time of the accident and her present symptoms were tendered by consent.  In a report dated 19 May 2003 Dr Philip Hardcastle, the plaintiff's treating orthopaedic surgeon describes her present symptoms and the extent of her disability.  He confirmed that she continues to suffer from constant pain in the lower back and left groin that is aggravated by most activities.  Clinical examination revealed that she was walking with a left sided limp with significant restrictions in movement over the lumbo sacral level of the spine in a both standing and sitting position.  Dr Hardcastle performed an internal examination because of the plaintiff's sexual problems and noted that there was general tenderness in the area.

5. The plaintiff had a spinal fusion at L5‑S1 some years before the accident although Dr Hardcastle doubted whether that made any significant contribution to her symptoms.  He is of the opinion that the main source of her pain is from the injuries to her pelvis as a result of the accident.  In an earlier report dated 15 November 2002 Dr Hardcastle said that although the plaintiff was still in the recovery phase and there was hope of some improvement it was likely that she would be left with permanent disabilities with respect to her pelvis and left sacro‑iliac joint as well as the left knee.  In a report dated 19 May 2003 Dr Hardcastle stated that the radiological investigations indicated that the pelvic fracture had united.  Although he said that one would expect a good prognosis from that that there was ongoing inflammation in the left sacro‑iliac joint.  He recommended sacro‑iliac injections if the plaintiff's symptoms did not improve after hydrotherapy.  Although all of the medical reports remain optimistic that the plaintiff's symptoms may improve with further time it is likely that she will be left with permanent disabilities that will continue to have a significant restriction on her movements and curtail a wide range of activities.  It is also likely that she will continue to suffer from ongoing pain in her lower back and pelvic area.

General damages and loss of amenities

1. The defendant concedes that the plaintiff received serious injuries as a result of the accident.  Apart from the plaintiff's complaint of symptoms of neck pain and headaches the defendant does not dispute that the plaintiff's present account of symptoms and the consequent restrictions on her activities are not genuine and are the result of the injuries she sustained to her pelvis in the accident.  The defendant disputes that the plaintiff is entitled to any award for gratuitous services as there was no such claim in the pleadings and the evidence does not extend to sufficient detail to allow any quantification of such a claim to be made.  I accept the defendant's submissions that an award for gratuitous services cannot be made.  However I am satisfied that the plaintiff's symptoms and lack of mobility significantly restrict her domestic activities.  While she can perform most light duties heavy domestic tasks will be difficult and may require adjustments or adaptations.  In the absence of any award that would provide assistance in relation to carrying out these domestic activities I consider it appropriate that the plaintiff's award for loss of amenities reflect the fact that she will have to cope with that loss unaided by any benefit from an award for gratuitous services.

2. The plaintiff will be awarded the sum of $110,000 for pain and suffering and loss of amenities.  It was submitted on behalf of the plaintiff that a substantial award of damages should be made taking into account the maximum amount of damages that may be awarded for non‑pecuniary loss under s 3C of the Motor Vehicle (Third Party Insurance Act) 1943 which is currently $246,000.  I consider that it is appropriate that the award be calculated on the basis that the plaintiff's disability could be described as being approximately 45 per cent of a most extreme case.  This reflects the initial severity of the pain and restrictions from her injuries, her slow and limited recovery, the extent of her residual physical disabilities and loss of mobility and the impact on a broad range of domestic interpersonal and social activities.  At the time of the accident the plaintiff was a 39 year old woman who was able to manage a busy household with numerous children.  From 1996 to 1997 she was also able to work part‑time as an office cleaner for approximately 18 months.  She had had a previous spinal fusion but this had obviously not restricted her in any significant way.  She was in a relationship and had in fact gone to the extent of having a tubal litigation reversed to enable her to have a child with her new partner.  Although she was not able to achieve this as a result of her partner's infertility it illustrates that she was a reasonably fit and active woman who was able to pursue different choices in her life.  As a result of the accident she is barely able to look after her own personal needs and is significantly restricted in her daily activities.  Her sex life has been severely affected which will undoubtedly have an ongoing impact on future relationships.

Loss of earning capacity

1. The defendant disputes that the plaintiff is entitled to any award for loss of earning capacity.  It was submitted that the plaintiff's lack of qualifications, work experience and personal history indicate that it was unlikely that she would have sought or obtained even part‑time work if she had not had the accident.  It was pointed out that apart from the 18 months working as a cleaner she had chosen to spend her time having and raising numerous children and that the evidence indicated that there did not appear to be a strong work ethic in the plaintiff's history or immediate family.  It was pointed out that the fact that the plaintiff has never had a driver's licence suggests that not only would it be difficult for her to obtain employment but she has not been sufficiently motivated to pursue that.

2. Whilst I accept that any award would have to be significantly discounted to take into account the prospect that the plaintiff may never have obtained a job I am satisfied that she has suffered a loss of earning capacity that may be productive of economic loss in the future.  Although the plaintiff's lack of qualifications and poor work history would significantly limit the range of jobs available I think it likely that she would be able to obtain work as a cleaner or child care worker in a domestic or commercial situation.  Her appearance and demeanour suggested a woman of a pleasant and outgoing disposition.  Despite the fact that she still had seven children at home in 1996 and 1997 she had sufficient motivation to work as a cleaner for approximately 18 months despite the fact that the regime of social security benefits offers little incentive for paid employment.  In a few years time the youngest children would be more independent and some of the older ones may have left home.  I consider that there is a good chance that the plaintiff may have obtained at least part‑time work at that stage.  In a schedule of damages the plaintiff seeks an award for past and future loss of earning capacity based on a rate of $95 per week for part‑time work together with a global sum for the possibility of full time work.  The plaintiff's calculations resulted in a figure of approximately $70,000 for past and future loss of earning capacity.  I consider that this would have to be reduced by approximately 50 per cent to reflect the possibility that the plaintiff may not have taken up any employment.  However I accept that a modest global sum of $15,000 should be added to provide for the possibility that the plaintiff may have obtained full time work particularly after the youngest child had turned sixteen.  The plaintiff will therefore be awarded the global sum of $50,000 for past and future loss of earning capacity.  In the circumstances I consider that that is a relatively modest sum for a 41 year old woman who is unlikely to be able to obtain any employment as a result of the injuries suffered in the accident.

Future medical expenses

1. The plaintiff will be awarded the sum of $9,083 for future medical expenses.  This represents the items listed in the plaintiff's schedule for visits to a general practitioner, specialist and pharmaceuticals together with $1,000 for future injection treatment.  Although the plaintiff has declined this treatment because of a fear of needles she may re‑assess her attitude in the future.  There is no allowance for podiatry expenses.

2. The plaintiff will be awarded the sum of $584.20 for past medical expenses still outstanding.