Balshaw v Motor Accident Commission No. DCCIV-96-40056 Judgment No. D3671
[1997] SADC 3671
•18 September 1997
Court
DISTRICT COURT OF SOUTH AUSTRALIA
Judgment of His Honour Judge Robertson
Hearing
11/02/97 to 13/02/97, 21/04/97 to 28/04/97, 29/08/97, 05/09/97.
Catchwords
ASSESSMENT OF DAMAGES Plaintiff 17 year old female injured in motor accident - fracture/dislocation of the right shoulder - vaginal and perineal lacerations - minor abrasions and bruises to lower limbs - psychiatric injury - substantial permanent residual disability to right arm and shoulder - prominent and substantial scar on right shoulder - future scar revision and dermofat graft - loss of amenities and enjoyment of life - loss of earning capacity - studying by correspondence to achieve employment as early childhood worker - claim for loss of chance to be a nurse not supported by the evidence - substantial loss of earning capacity - future medical expenses - voluntary assistance from parent. DAMAGES - pain and suffering and loss of amenities (18 on the Wrongs Act Scale) $24,660 - past loss of earning capacity $15,313 - future loss of earning capacity - $110,000 - future medical expenses $3,975 -gratuitous services $1,800 - total assessment $155,748 - less 75% of the defendant's liability for the plaintiff's injuries and adjustment for paid special damages - $115,940.55.
Materials Considered
• Wrongs Act 1936, as amended s35A(1)(g);
• Mann v Elbourne (1971) 8 SASR 298;
• Murray v Dawson Unreported decision June 96, Judgment S5620;
• Van Gervan v Fenton (1991-1992) 175 CLR 327, referred to.
• Medlin v State Government Insurance Commission (1994-1995) CLR 1 at 3;
• Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 659;
• Wade v Allsopp (1976) 10 ALR 353 at 361;
• Mathewman v Australian National Railways Commission (1987) 135 LSJS 100;
• Versace v Messer (1993) 172 LSJS 409;
• Denton v Tenney (1995) 182 LSJS 377;
• Kutcher v Melin (1995) 182 LSJS 263, applied.
Representation
Plaintiff NICOLE JANE BALSHAW:
Counsel: MR D. GREENWELL - Solicitors: BROWN, ASTON &; HAMILTON
Defendant MOTOR ACCIDENT COMMISSION:
Counsel: MS H. MACK - Solicitors: FINLAYSONS
DCCIV-96-40056
Judgment No. D3671
18 September 1997
(Civil)
BALSHAW v MOTOR ACCIDENT COMMISSION
Civil
Judge Robertson
On 11 November 1992 the plaintiff was injured in a motor vehicle accident which occurred in White Avenue, Mount Gambier ("the accident").The motor vehicle in which she was travelling collided with a tree.It was being driven by Randy Cox.The plaintiff was seated in the rear seat of the motor vehicle when the collision occurred.She brings this action for damages for personal injury, loss and expense.In the early stage of the hearing liability was in issue. However, liability was settled.As a result the defendant has accepted responsibility for 75% of the plaintiff's damages to be assessed.Thereafter the hearing proceeded by way of an assessment of damages.
The plaintiff was born on 8 August 1975.She was 17 years of age at the time of the accident.She was at that time a student in Year 11 at Mount Gambier High School.The plaintiff had commenced her studies at Mount Gambier High School at the beginning of 1992.Prior to 1992 the plaintiff had been living with her mother in Queensland.Her mother and father are divorced.Whilst living in Queensland she undertook her secondary school studies at the Coombabah High School.At the end of 1991 the plaintiff commenced living with her father and his wife in Mount Gambier.
Following the accident the plaintiff was admitted to the Mount Gambier Hospital.She was suffering from:-
* A fracture/dislocation of her right shoulder.
* Vaginal and perineal lacerations.
* Minor abrasions and bruises to the lower limbs.
On admission she underwent surgery in which an open reduction and internal fixation of her injured shoulder was performed.A Rush nail and three crossed K wires were inserted into the upper shaft of the right humerus. During the surgery to her shoulder, examination of her genital area revealed a peri-urethral laceration, a laceration to the right labium and a laceration to the left of the anus.During the surgery those lacerations were repaired.
The plaintiff remained in hospital for approximately three weeks.However, after discharge it became apparent that the shoulder was still unstable and had dislocated again.This necessitated a second operation on 17 November 1992 in which the head of the humerus was reduced and a capsular repair of the shoulder was undertaken.Further, a Bristow's procedure was performed which consisted of producing a muscle and bone block on the front of the shoulder joint in order to prevent it from re-dislocating.The urinary catheter which was inserted on 11 November was removed on 20 November.In March 1993 the plaintiff underwent further surgery in which the internal fixing nail and the K wires were removed from her right humerus.Her right arm remained in a sling for approximately 10 weeks.
Since the surgery the plaintiff has continued to suffer pain and restrictions to her right shoulder.The plaintiff said that she suffers pain in the back of her shoulder and neck.Furthermore, the pain travels down her arm into her elbow and also into her right wrist.She said the pain occurs every day and is not triggered by any particular activity.She said the onset of pain can occur while she is walking or writing a note.She described the pain as varying in severity.She described it as a jabbing/throbbing pain which persists for the remainder of the day following its onset.The plaintiff said that upon her retiring to bed the pain usually eases when she finds a comfortable position.
In addition to the pain which the plaintiff regularly suffers, she has been left with a significant restriction of her right arm as a result of the injury to the shoulder.She is right hand dominant.She is unable to lift her arm above the position of a right angle to her body.In other words, she cannot lift her arm above shoulder height.The medical evidence produced both by the plaintiff and the defendant, in essence, agree that the plaintiff has a substantial permanent residual disability regarding the use of her right arm and shoulder.Mr Anthony Pohl, orthopaedic surgeon, examined the plaintiff on 26 June 1995 and reported that there was muscle wasting in the shoulder area and a restricted range of shoulder motion.He indicated that the loss of physical function of the shoulder would be permanent.Mr Peter Humble, orthopaedic surgeon, whose report was tendered by the defendant, observed muscle wasting when he examined the plaintiff on 5 November 1996.It was also his opinion that the plaintiff has suffered a permanent loss of function of the right shoulder.He indicated that activities requiring use of the right upper limb will be severely restricted.He felt that activities requiring repetitive and significant lifting and pushing and pulling with the right upper limb will be restricted.
The plaintiff has also been left with a prominent and substantial scar in the area of her right shoulder as a result of the surgery.Dr Randall Sach, a plastic surgeon, who was called by the defendant, described the scar in the following manner:-
"In particular there is a scar measuring some 28 centimetres in length extending from the superior aspect of the right breast across the anterior shoulder, and down onto the anterior deltoid region of her upper arms.The scar is somewhat stretched over most of its length, this measuring 1.5 centimetres over the anterior shoulder and upper breast area.There was some mild hypertrophy of the scar, though in general it was considered to be fairly pale and flat.The scar immediately in the subclavicular area was considered to be ofsomewhat better quality.
I further noted that there was a considerable contour defect associated with the anterior should (sic) region."
The appearance of the scar distresses the plaintiff.She said that it, "looks awful".She said that it is very hollow.The plaintiff said that people stare at her and ask questions concerning her scarring.She wears clothes which cover it up.When she goes to the beach she wears a T-shirt over her swimming costume.She will not wear off-the-shoulder dresses.Mr Phillip Balshaw, the plaintiff's father, said that prior to the accident the plaintiff was conscious of her appearance.He has noticed that she is self-conscious about the scar. Mrs Judy Balshaw, the wife of the plaintiff's father, also said that the plaintiff was very conscious of the scarring and does not wear clothes which would expose it.She said that prior to the accident the plaintiff would wear clothes in summer which exposed her shoulder.She further said that when the plaintiff is shopping one of her concerns is that she purchases clothes which cover up the scar.The plaintiff wishes to have surgery with the object of improving the appearance of the scar.There is a dispute between the parties regarding this issue.I will return to that subject a little later.
The plaintiff also suffered a peri-urethral laceration, a laceration to the right labium and a laceration to the left peri-anal.This injury initially caused her substantial distress.She had fear of future fertility.Doctor Ian Tucker, a gynaecologist, has stated that the injuries do not interfere with her fertility.The plaintiff also said that since the accident she suffers pain and discomfort during intercourse.After intercourse she experiences swelling in the labial region.Further, after intercourse she suffers a stinging sensation on micturition.The discomfort, swelling and the stinging sensation is apparent on micturition for up to two days after intercourse.She said the difficulties she experiences in having intercourse are embarrassing and she is left feeling not entirely satisfied.She said that this problem has put a strain on her relationship with her boyfriend Royce, although generally Royce has been very supportive.The plaintiff stated that she did not suffer from either of these problems prior to the accident.I accept her evidence and find that the difficulties she experiences with intercourse and the discomfort suffered on micturition following intercourse have resulted from the injuries she suffered in the accident.
Doctor Tucker, a gynaecologist,has indicated that there is a good chance that her discomfort with intercourse will disappear if the plaintiff undergoes hymenectomy surgery.The plaintiff says that she is willing to undergo that surgery.I will deal with this issue further when I come to consider the claim by the plaintiff for future medical costs.
In addition to the organic injuries which the plaintiff suffered as a result of the accident, she also seeks compensation for a psychiatric injury.The plaintiff gave evidence that she has regularly thought about the accident.She said that she suffers from disturbed sleep because of her thought about the accident.Her sleep is also disturbed because she has difficulty at times in finding a comfortable position for her shoulder.She said that driving in motor vehicles around corners and observing trees scares her.Even walking across a road causes her to think she is going to be hit.She feels depressed when thinking about the accident.The plaintiff said that she had initially shut herself off from everyone.She gets angry.However, the plaintiff said that she felt she was coping with her problems a good deal better now than she had in the past.
Her father, Mr Phillip Balshaw, said that prior to accident she was a very happy, emotional and lovinggirl.He said that since the accident he felt that she had become a little withdrawn.Mrs Judy Balshaw, who is a practising registered nurse, observed that after the accident the plaintiff was having trouble with nightmares concerning the accident. She said the plaintiff appeared frightened and upset and reported that she could not stop thinking about the accident.Mrs Balshaw said that these problems emerged on the first night after the accident. Mrs Noelene Parsons, the plaintiff's grandmother, described the plaintiff prior to the accident as a bright and happy person. She said that after the accident the plaintiff became very withdrawn.However, she said that in the six months prior to the trial it appeared that some of her sparkle was returning.
The reports of Dr Darryl Bassett, a psychiatrist, and Mr William O'Hehir, a registered psychologist,were tendered by counsel for the plaintiff.Counsel for the defendant tendered a report from Dr John Clayer, a psychiatrist.The plaintiff consulted with Dr Bassett in the latter part of 1996.He indicated in his report that he was of the opinion that the plaintiff was mildly depressed and moderately reactive.He felt that there was no significant evidence of anxiety.He was of the opinion that the plaintiff was at that time suffering from an Adjustment Disorder with depressed mood and some post traumatic symptoms.He described the Adjustment Disorder as moderately severe but did not consider that the post traumatic symptoms were sufficient to constitute a Post Traumatic Stress Disorder.He also said it was "... quite possible that the diagnosis of a Chronic Pain Disorder due to mixed physical and psychological factors (DSM IV) is appropriate".However, in the absence of any evidence from Dr Bassett I am unable to determine whether, in making that statement, he was providing a firm diagnosis.Dr Bassett was also of the opinion that the plaintiff's long term prognosis was good providing she received further appropriate psychological counselling and received appropriate orthopaedic management.He said that he expected that a further five or six sessions of psychological treatment will assist her.Dr Bassett further stated that he felt that with appropriate assistance the post traumatic psychological injuries were not likely to be a significant problem for the plaintiff in the long term.He also made the point that her psychological disorders did not interfere with her capacity to work.
Mr O'Hehir was of the opinion that she was suffering from a Post Traumatic Stress Disorder.Mr O'Hehir saw the plaintiff in the latter part of 1995.He felt the prognosis for the plaintiff was long term and required ongoing therapeutic intervention.
Dr Clayer examined the plaintiff on 5 November 1996.He diagnosed the plaintiff as suffering from a Post Traumatic Stress Disorder.He said that at that time the symptoms had largely resolved, although there were some continuing evidence of the disorder.He felt that further consultation with Mr O'Hehir would see further improvement.
There does not appear to be a great deal of difference between the opinions of the two psychiatrists and Mr O'Hehir regarding the plaintiff's psychiatric injury.Whilst Dr Bassett's diagnosis differs from that of Dr Clayer and Mr O'Hehir, in my opinion, that difference is not particularly relevant in assessing the plaintiff's damages.What is agreed between the three is the plaintiff suffered a psychiatric injury as a result of the accident with symptoms which I have earlier described.
I accept the plaintiff's evidence that she has been depressed; that she has suffered from disturbed sleep; that she has had "flashbacks" of the accident and that she has on occasions suffered fear when driving in a motor vehicle or crossing a road.The defendant did not appear to take issue with any of that evidence.The evidence of the two psychiatrists is that the long term prognosis is good.Neither psychiatrist indicated that at the time that they respectively examined the plaintiff she had fully recovered from her psychiatric illness.Mr O'Hehir considered the prognosis was long term. However, I prefer the evidence of the two psychiatrists to that of Mr O'Hehir on this topic.The opinion regarding the plaintiff's prognosis is more relevant to the psychiatrists specialty than to that of Mr O'Hehir, the psychologist.Furthermore, the evidence of the plaintiff herself and her grandmother Mrs Noelene Parsons demonstrates that the plaintiff is recovering from her psychiatric illness.I find that the plaintiff suffered a psychiatric injury shortly after the accident with symptoms she has described.She has continued to suffer from that injury although at the time of the trial she was in the process of recovering.I also find that the plaintiff's psychiatric injury will continue to improve and that she is likely to fully recover in the short term.
At this point I should say something about the plaintiff's evidence and my findings regarding her credit.I found her a pleasant, uncomplicated young lady who appeared to be making every effort to overcome the problems caused by the serious injuries she has suffered.I did not detect any attempt to overstate her injuries or their effects.She was frank in describing her injuries and the problems which have arisen from those injuries.An illustration of her frank approach is demonstrated by her volunteering that her psychological problems were diminishing. I thought she responded directly to questions and the response generally displayed a reasonable degree of precision.There were occasions when she was vague, particularly when giving evidence regarding her studies at school.However, I gained the impression that when she was vagueit was the result of a genuine inability to recall the event or subject matter accurately.Her demeanour was satisfactory and she was forthright in her approach.I formed the view that the plaintiff generally tried to answer the questions truthfully.There were one or two small hiccups which were explained to my satisfaction.Counsel for the defendant, Ms Mack, submitted that the plaintiff's evidence overall was vague and inaccurate.It follows from what I have said that I do not accept that submission.I accept the plaintiff generally as a creditable witness.
As I mentioned earlier at the time of the accident the plaintiff was 17 years of age.She was studying Year 11 at Mount Gambier High School, having commenced at the beginning of 1992.The plaintiff was born in Mount Gambier. Her parents had separated when she was about four years of age.She lived with her mother until the end of 1991.At that time the plaintiff and her father felt that it would be in her interest to live with him in Mount Gambier.The plaintiff's father had remarried and there are three young children of that marriage.She joined that family when she came to Mount Gambier to live.
The plaintiff said that after commencing school at Mount Gambier she was unsettled for about four to five months.Mrs Judy Balshaw said the plaintiff had behavioural problems for about six months.She said the plaintiff would not settle down to her school work.There were many arguments with her father regarding her behaviour.Her father said she was unsettled for about six to eight months.There were arguments about her application to her school work and her behaviour generally.Accordingly, I find that the plaintiff was unsettled at school and suffered from behavioural problems for approximately six months.
Shortly after the plaintiff had settled down at school she suffered the injuries in the accident.She did not return to school for the remainder of the 1992 year.The following year the plaintiff returned to Mount Gambier High School and repeated some of her Year 11 subjects.She completed her Year 12 in 1994 and left school at the end of 1994.
After the plaintiff left school she did not obtain permanent employment. During 1995 and 1996 she did some house cleaning work with Blue Lakes Homes. This would amount to one to two days each month.During those two years she also did a little ironing and house keeping for a family in Mount Gambier.The plaintiff also undertook a small amount of baby sitting.During 1996 she commenced voluntary relief work at St Martin's Kindergarten in Mount Gambier. The plaintiff wishes to pursue a career as an early childhood worker and is keen to gain experience.She also obtained a small amount of paid relief work from St Martin's.In 1996 she worked voluntarily at the Derrington Street Child Care Centre.She attended five days a week where she assisted in supervising the children and playing with them.
At the beginning of 1997 the plaintiff enrolled in the Diploma of Early Childhood course at the Horsham TAFE.She is studying by correspondence.The course is of four years duration.Her aim is to obtain employment as an early childhood worker at a kindergarten in Mount Gambier.During this year she has been receiving paid work from St Martin's Kindergarten.For one and a half hours, two days a week she cares for an autistic child who attends the kindergarten.
I now turn to consider each head of damages claimed by the plaintiff. The heads of damages are as follows:-
* Loss for pain and suffering and loss of amenities
* Loss of earning capacity to the date of trial and thereafter
* Medical and other expenses to the date of trial (Special Damages)
* Future medical expenses
* Cost of gratuitous services
With regard to damages for pain and suffering and loss of amenities I have earlier referred to the plaintiff's injuries and the residual disabilities suffered by her in some detail.The injury to the plaintiff's right shoulder has left her with a significant residual disability.In the period immediately following the accident and for some months thereafter she suffered a great deal of pain and discomfort.She still suffers pain and discomfort from that injury.Her use of her right arm is seriously restricted.She has been left with an unsightly scar which causes her distress and embarrassment.Whilst there is a reasonable prospect of some improvement in the appearance of the scar it will not be an overly significant improvement.It will continue to be a constant source of embarrassment to her despite any improvement achieved by further surgery.
The plaintiff's vaginal and perineal lacerations have also presented the plaintiff with difficulties.Intercourse is accompanied by pain and discomfort.Subsequent to intercourse she suffers pain and discomfort on micturition for up to two days.It appears that minor surgery is likely to relieve her of these symptoms.
Not only has the plaintiff suffered organic injuries but she has also suffered a psychiatric injury.This has manifested itself in feelings of distress and depression.She changed from a happy, cheerful person to one who suffered from periods of depression, fits of anger and at times became introverted.I have found that the plaintiff is recovering from her psychiatric injury.Whilst the evidence does not disclose the duration of the recovery period, in my view, the evidence of the psychiatrists suggests that it will not be of long duration.
The plaintiff's claim under this head of damage includes loss of amenities and enjoyment of life.Prior to the accident the plaintiff played netball, softball and tennis.She enjoyed swimming.She was a keen sportswoman. Whilst she was in Queensland she was training for her bronze medallion in life saving.The plaintiff played competitive netball in Queensland.She played netball with the Hobitz Club in Mount Gambier.She now cannot engage in any of those sporting activities because of the injury to her shoulder.Further, she enjoyed dancing before the accident.She now can only engage in slow, less vigorous forms of dancing.She does not undertake any other form of dancing because of the restrictions caused by her shoulder injury.The plaintiff is also concerned about people bumping her right arm whilst she is engaged in dancing.
Whilst I have identified those activities which the plaintiff engaged in prior to the accident which she is now prevented from engaging in, as she grows older she will be denied other activities which enrich life.The injury to her arm has caused her to suffer a significant loss of amenities and enjoyment of life.
For her claim for pain and suffering and loss of amenities there must be ascribed a numerical value pursuant to Section 35a of the Wrongs Act, 1936. The number I fix is 18.The prescribed amount for the purpose of the calculation is $1370.I therefore assess damages for pain and suffering and loss of amenities at $24,660.
I now come to the plaintiff's claim for damages for loss of earning capacity both past and future.To establish her entitlement to damages for loss of earning capacity the plaintiff must first establish that her earning capacity has in fact been diminished by reason of an injury caused by the negligence of the defendant.Secondly, the plaintiff must establish that the loss or diminution of earning capacity is or may be productive of financial loss (see: Medlin v State Government Insurance Commission (1994-1995) CLR 1 at 3).
In considering whether the plaintiff's injuries have caused her to suffer a loss of earning capacity the first step is to examine the effect which the injuries have had on the plaintiff's capacity to function.Clearly the shoulder injury is the major cause of the plaintiff's physical incapacity.I have already had occasion to refer to the plaintiff's problems arising from her shoulder injury. She still suffers pain daily in the shoulder and neck which pain also radiates down her arm into her elbow and wrist.She suffers from muscle wasting and restricted shoulder movement.The loss of function of the shoulder is permanent.I mentioned earlier that the opinion of Mr Humble, which I accept, is that any activities requiring repetitive and significant lifting and pushing and pulling with the right upper limb will continue to be restricted.The difficulties the plaintiff has with the use of her right arm must be viewed in the context that she is right hand dominant.
I have also mentioned earlier that the plaintiff has undertaken some work activities since leaving school at the end of 1994.She said that she experienced difficulties when she cleaned houses for Blue Lakes Homes and when she did some house cleaning for the Dahl family.When cleaning and dusting she was required to use her left hand.When she used the vacuum cleaner at the Dahl's house she used both hands but her left hand played the more prominent role.The plaintiff found it impossible to clean windows with her right arm. The plaintiff said she was frequently required to take breaks.When working at Blue Lakes Homes she said she found it too hard.It was draining.She said that she would take a day to do a job which would take another person three hours.The plaintiff said she would go home aching and go straight to bed. When she undertook ironing for the Dahl family she would use her right hand. The plaintiff would iron at her own pace and would need a break after an hour. She would take some of the ironing home so she could break up the time.She said the work of cleaning and ironing caused her arm to ache.
The plaintiff gave evidence that she can type slowly and use a computer.She said that she relied on a computer at school after the accident.She found that she could not use the computer for a long period of time.She said that she was required to take a break for about half an hour after using a computer. At school the plaintiff studied typing, however, she said that typing was hard on her arm.
I have mentioned that the plaintiff has performed some relief work at St Martin's Kindergarten as a child care worker.She also worked for a time at the Derrington Street Child Care Centre as a child care worker.At St Martin's she was required to supervise children.She was also required to arrange the equipment required for activities such as painting and drawing. At the Derrington Street Centre she was also required to supervise the children, play with them and prepare for their activities.The work also involved moving furniture around and play equipment.The plaintiff said she found the work at the Derrington Street Centre tiring and it caused her arm to ache.Her work at Derrington Street was over a longer daily period than at St Martin's.However, although she experienced some difficulties the plaintiff said she thought she was coping.The plaintiff attempted to avoid picking up any of the children but if she was required to lift a child she would undertake the task with her left arm.
I have earlier stated that the plaintiff was studying Year 11 at Mount Gambier Hight School at the time of the accident.After the accident she returned to school in 1993 and repeated some of her Year 11 subjects.She then went on and completed her Year 12 studies in 1994.During the early stages of the trial there was some confusion as to whether she had received a South Australian Certificate of Education ("SACE") at the end of Year 12.The SACE is awarded to those students who have successfully completed Year 12.The certificate is required for entry to a University or similar tertiary institution. After the first three days of the trial the hearing was adjourned.During the period of the adjournment it became apparent to the plaintiff that she had not received a SACE.An application to the South Australian Senior Secondary School Board ("SBSSA") was made by the Mount Gambier High School for the plaintiff's case to be reviewed and for a SACE to be awarded to her.The application was initiated by a Mr Joseph Moriarty, a teacher and student counsellor at Mount Gambier High School.The application was successful and the plaintiff was awarded her SACE in March 1987.
Early in her evidence the plaintiff said that prior to the accident she was very interested in becoming a nurse or an airline attendant.Later on she explained that in considering nursing as a career she was including a career either as an enrolled nurse or a registered nurse.The plaintiff further indicated that another option she had considered prior to the accident was that of a career in the travel industry. I mention that the plaintiff said she was interested in becoming a nurse or an airline attendant early in her evidence because shortly thereafter an application to amend the Particulars of Claim was made by Mr Greenwell, counsel for the plaintiff.Included in the application to amend was an application to include the following in the Prayer for Relief:-
"(ii) Economic loss both past and future including the plaintiff's loss of chance to undertake a career in nursing and Mann v Elbourne damages generally".
The application to amend was granted and the Particulars of Claim were amended to include the above in the Prayer for Relief.
The amendment to the Particulars of Claim to include the claim for loss of a chance to be a nurse unleashed a flood of evidence, particularly evidence provided by the two career counselling experts.This issue took on a life of its own.The evidence of the expert witnesses focussed largely on whether the plaintiff could have in 1995 been admitted to a nursing degree course conducted by various specified universities and also whether she had the intellectual capacity to meet the demands of such a course.However, in my opinion the plaintiff's claim for loss of a chance to undertake a career in nursing is misconceived. The evidences discloses that the plaintiff had considered a career in nursing, either as an enrolled or registered nurse.She had also thought of a career as an airline attendant or in the travel industry.Her evidence did not disclose that nursing was her chosen career path.It was one of three careers that she said she was considering.She pointed out that the type of subjects she was studying at the time of the accident was designed to keep her options open.The effect of the plaintiff's evidence, and I so find, was that whilst she had been considering those three identified careers she was, at the same time, keeping her career path options open.In other words the plaintiff had not formulated in her mind what type of career she specifically wished to pursue.The range of career choices remained open in her mind.That evidence does not support that as part of the plaintiff's claim for loss of earning capacity there is also a claim for the loss of a chance to be a nurse.In my view, the principle of loss of a chance, as explained and applied in Mann v Elbourne (1971) 8 SASR 298 and other decisions has no application in the present case.
It follows from having reached that conclusion that much of the evidence of the two experts Mr Joseph Moriarty and Mr Stephen Heyes has no application to the plaintiff's claim for loss of earning capacity.Apart from the fact that the plaintiff's evidence did not demonstrate that the plaintiff's claim should include a claim for "loss of a chance" the evidence which focussed on whether in 1995 the plaintiff would have been accepted into a nursing degree course could never have been of any assistance in the resolution of such an issue for the reason which I will now explain.
The year 1995 was the year after the plaintiff completed Year 12 at Mount Gambier High School.What is clear is that the plaintiff did not receive a SACE at the completion of Year 12.Based upon the subjects she had undertaken and her results she had not qualified for a SACE.Further, she did not receive any University entrance points.It is not disputed that without a SACE in 1995 the plaintiff could not have gained entrance to a University in 1995 to undertake a nursing degree course.Furthermore, without a University entrance points she could not have gained admission.It was not suggested by the plaintiff that she qualified to be admitted under a Special Access Scheme.As I mentioned earlier the plaintiff did not receive her SACE until 1997.It was at that time she was awarded tertiary entrance points of 33<<.
Mr Moriarty's evidence was that if the plaintiff had consulted him in the vacation period of 1995 and he had been provided with the information he was given in 1997 then he would have initiated the same application on the plaintiff's behalf to the SBSSA as he did in February 1997.However, there is no evidence to suggest that the plaintiff's injuries caused or contributed to her failure to consult Mr Moriarty in 1995 regarding the non-receipt of the SACE at the end of Year 12.Counsel for the plaintiff, Mr Greenwell, submitted that the failure of the plaintiff to make an application in 1995 was indicative of poor motivation as a result of her psychological condition.However, there is simply no evidence to connect the plaintiff's failure to consult with Mr Moriarty in 1995 with the injuries she suffered in the accident or their sequelae.In the absence of any evidence then the question of whether or not in 1995 the plaintiff would have been admitted to a nursing degree course has no relevance to the plaintiff's claim for damages.
In assessing the plaintiff's loss of earning capacity the first step is to consider the plaintiff's pre-accident physical and intellectual capacity. Both factors are relevant to the types of careers which would have been open to her. The evidence indicates that prior to the accident that the plaintiff was not suffering from any physical infirmity.This then leaves the question of the level of her intellectual capacity.The evidence on this subject is limited. A little of the evidence of Mr Moriarty and Mr Heyes is relevant to that question.The only other evidence is that of Mr O'Hehir, the psychologist, who also provides some assistance on the subject matter.
Mr Moriarty and Mr Heyes were both experienced student counsellors and teachers.The qualifications, training and experience of each of them did not suggest that the opinion of one of them was likely to be more authoritative than the other. They both agreed that the plaintiff was capable of undertaking what Mr Heyes described as "para-professional studies". Mr Heyes said that the plaintiff had shown "considerable aptitude" in careers where social interaction was a feature.He said Child Studies and Tourism were examples of that type of career.He also said the plaintiff had the capacity to undertake TAFE courses dealing with business related occupations.I did not understand Mr Moriarty to dispute this opinion.As I said Mr Moriarty accepted that the plaintiff had the capacity to undertake para-professional studies.Regrettably, there was not any other evidence which elaborated on the types of courses which came within the description "para-professional studies" than those to which I have referred.
Much of the evidence of Mr Moriarty and Mr Heyes focussed on the 1995 admission to a nursing degree course issue to which I have previously made reference.In the course of that evidence Mr Moriarty said that the plaintiff was capable of undertaking a nursing degree course.The effect of Mr Heyes' evidence was that the plaintiff did not have that capacity.In view of my conclusion that the evidence does not support the plaintiff's claim for a loss of a chance to be a nurse the resolution of the issue of whether she had the intellectual capacity to complete a nursing degree is not of great significance in assessing the plaintiff's damage for loss of earning capacity.In my opinion the resolution of that question will provide some but not a great deal of assistance in determining the limits of the plaintiff's pre-injury earning capacity.As considerable time was spent on the issue I consider it appropriate that I should resolve it.
Mr Moriarty was of the opinion that the plaintiff had the capacity to complete a nursing degree.He came to that conclusion when he was considering the 1995 admission to a nursing degree issue.Mr Moriarty said that he had been the plaintiff's English teacher in 1993.From his observation of her in that subject he said she was a capable student and quite bright.In 1994 he was the plaintiff's home group teacher.It appears that the title "home group" teacher is synonym for the old "form teacher" description.His duties as home group teacher did not involve specifically teaching the plaintiff a subject in that year.Mr Moriarty said that during the course of the exercise of gathering evidence to support the application in 1997 for the plaintiff to be awarded a SACE he had spoken to some of her teachers who taught her prior to the accident and some who taught her after the accident.However, he did not indicate what was disclosed to him or whether he relied upon any of that information in forming his opinion on the plaintiff's intellectual capacity. There was nothing further which Mr Moriarty identified that he relied upon when forming the opinion that the plaintiff could successfully complete a nursingdegree course.
In forming his opinion Mr Moriarty said that the plaintiff's results at Coombabah High School in 1990 and 1991 were not relevant.Furthermore, he said that the plaintiff's results in 1992 at Mount Gambier had to be viewed in the light that she was settling into a new environment and had some "teething" difficulties.In addition he said her results in 1993 and 1994 have to be viewed on the basis that she was suffering from a psychiatric condition which effected her performance at school.In fact he criticised Mr Heyes for failing to take that into account when he assessed the plaintiff's results in 1993 and 1994.
I have found that the plaintiff has suffered from a psychiatric injury since shortly after the accident.However, there is no evidence from either of the psychiatrists to indicate that the injury diagnosed by each of them was likely to have effected her performance at school during both those years.The only evidence remotely relating to this issue is provided by Dr Bassett who said he did not consider the plaintiff's psychological disorder interfered with her capacity to work.He stated that he encouraged her to proceed with her intention to train in child care.Whilst those comments were made in 1996 I consider they are of some assistance.It is also relevant to observe that Mr O'Hehir, who administered psychometric and IQ tests to the plaintiff did not comment that the results were likely to be impaired by the plaintiff's psychiatric condition.
Whilst it might be tempting to conclude that the plaintiff's performance in 1993 and 1994 was diminished by her psychiatric condition there is no evidence to support such a proposition.To do so there must be acceptable expert opinion to support it.Mr Moriarty does not have that expertise.I should also add that the plaintiff did not state that she felt she suffered from any particular study problems in 1993 or 1994.In fact she considered that her results in Year 12 were "pretty good".She further stated she was more committed to her studies in 1993 because she knew an extra effort was required. With regard to her physical injuries the plaintiff said that the school was understanding in 1993 and gave her extra time to complete her work.
In my opinion when Mr Moriarty made his assessment on the plaintiff's capacity to undertake a nursing degree course he misdirected himself regarding her 1993 and 1994 results.In assessing her capacity he impermissibly took into account that the plaintiff's psychiatric condition had disadvantaged her and had detrimentally affected her results.It follows that his opinion has not been formed on a valid factual basis.As a result I am not prepared to accept his opinion that the plaintiff had the capacity to complete a nursing course.I should also add that apart from that reason I am not convinced that the evidence upon which he relied establishes a sound basis to enable Mr Moriarty to have reached his conclusion.Peeled down to its bones the opinion appears to be based on his assessment of the plaintiff during her English studies in 1993.
Whilst on the subject of the plaintiff's performance at school in 1993 and 1994 I should pause to address a submission made by Mr Greenwell.He submitted that I should find that the plaintiff was suffering from a severe Post Traumatic Stress Disorder and that condition together with her physical injuries significantly affected the plaintiff's school performance in 1993 and 1994.I have already dealt with this issue in the context of considering Mr Moriarty's evidence.I simply repeat what I said in that context.There is no evidence available to support such a submission.Counsel for the plaintiff also submitted that the plaintiff's failure to achieve in those years was indicative poor motivation as a result of her psychological condition.Once again there is no evidence to support such a submission.
Mr Heyes' opinion was that the plaintiff would have had difficulty in succeeding in a nursing degree course.His opinion was based solely upon some of her other results at Coombabah State High School and her results at Mount Gambier High School.He said that those results were the best and most reliable information upon which to form an opinion.His opinion was that a nursing degree course placed some emphasis on science subjects.He pointed out that some of her results and her later choice of subjects indicates that the plaintiff was struggling and would struggle with the theoretical side of science.A perusal of the plaintiff's school reports appear to support this proposition.Mr Heyes said that the plaintiff's choice of applied science in Year 10 instead of science which she had studied in the previous year, tended to support his conclusion that the plaintiff found difficulty with the science subjects.In my view Mr Heyes' opinion is supported by cogent reasoning.I accept his opinion and find that on the balance of probabilities the plaintiff does not have the capacity to undertake and complete a degree in nursing.
As I said earlier, the conclusion that the plaintiff does not have the capacity to complete a degree in nursing is only of limited assistance in determining the plaintiff's pre-accident earning capacity.All it indicates is that a career as a nurse was not an option which would have been fulfilled.
In considering the limits of the plaintiff's earning capacity, in my view, the evidence of Mr O'Hehir provides valuable assistance.Mr O'Hehir, in his report, said that he administered a series of psychometric assessments. Included in the assessments was one described as "The Ravens Progressive Matrices".He said that the test was an excellent indicator of an individual's capacity for deductive reasoning and lateral thinking.As a result of that test he concluded that the plaintiff had an Intelligent Quotient of 99 placing her in the average range of performance.His opinion was that the plaintiff was of average intelligence.Mr O'Hehir said that he had referred the plaintiff to the Commonwealth Rehabilitation Service for vocational assistance. He indicated that the types of positions that might be considered in retraining or assisting the plaintiff included a Bank Teller, a Bookkeeper, an Accountant, a Computer Operator, an Inventory Controller, a Statistician or a Tax Agent.I infer that by referring to those occupations that Mr O'Hehir considered the plaintiff had the intellectual capacity to meet the demands of those occupations. In my opinion the reference to the occupations by Mr O'Hehir provide some guidance as to the type of employment within the plaintiff's intellectual capacity.His evidence was not challenged by the defendant.His Report was admitted into evidence by consent.
With regard to the plaintiff's intellectual capacity I find that she has a capacity to successfully complete para-legal studies of the nature described by Mr Heyes.I also find that she has a capacity to successfully complete studies which could lead to employment of the nature described by Mr O'Hehir.Having said that I acknowledge that there are various levels of employment in occupations such as accountancy and courses in relation to the various levels are likely to have different standards.It is clear from the evidence that the plaintiff has the capacity to meet the demands of courses offered by TAFE. There is simply insufficient evidence to determine whether she could meet the demands of any courses offered by Universities.It does not follow that because I have found that the plaintiff does not have the capacity to undertake a Nursing Degree Course that she could not successfully complete studies in other areas at a University.None of the experts provide assistance on this point.I did not understand Mr Heyes to have concluded that the plaintiff did not have any capacity to undertake a course at University level.In any event, that issue has no role to play because there is not sufficient evidence for me to reach any conclusion that her capacity extends to some studies at that level.As I earlier stated the plaintiff is currently studying by correspondence for the Diploma of Early Childhood at the Horsham TAFE.There is no dispute that she has the capacity to successfully complete that course.
In my opinion the injury to the plaintiff's right shoulder has resulted in a significant loss of the plaintiff's earning capacity.I have earlier chronicled the difficulties she has with her right shoulder and arm.She has difficulty with typing or operating a computer.She can only type slowly.She found she needs a break when operating a computer. Many of the business related occupations for which she may have been suited for are likely to require her to have keyboard skills.Computers play an ever increasing role in the business world.The restrictions caused by her injuries would no doubt diminish her capacity to efficiently fulfil duties which involved the use of keyboard skills.This problem is likely to have a substantial effect in her ability to obtain and hold down employment which includes the use of keyboard skills.
The plaintiff has described how simple activities such as ironing present difficulties for her.She also described the difficulties which she experienced in cleaning a house.It appears that constant use of the right arm causes pain and discomfort.She is slower in performing some activities which involve the use of her right arm than other people who do not suffer a disability.Mr Humble said that activities requiring repetitive and significant lifting and pushing and pulling with the right upper limb are all restricted.The plaintiff cannot raise her arm above shoulder height. Occupations which require such activities are closed to her.It was not challenged that she could not perform the duties as an air hostess.This is but one example of the type of employment which involves physical activities which the plaintiff can no longer perform.
As mentioned earlier the plaintiff is currently studying for the Diploma in Early Childhood at the Horsham TAFE.It is a course conducted by correspondence.As a part time course it is of four years duration.It is the type of course which the plaintiff is capable of completing.The plaintiff's objective is to work in a Kindergarten as a child care worker.She is currently working at St Martin's Kindergarten in Mount Gambier for one and a half hours a day for two days a week.She works on a one to one basis with an autistic child.She receives about $40 per week.The plaintiff very much enjoys working with children.
I now come to consider the assessment of damages for past economic loss.Since leaving school at the end of 1994 she has worked occasionally part time.She did not appear to have any career direction until she became involved in early child caring at St Martin's Kindergarten and the Derrington Street Child Care Centre. After the plaintiff became involved in child care her directionbecame defined to the point that she is now aiming to establish a career in early childhood caring.I have formed the view that the plaintiff is industrious by nature. The evidence indicates that she is a person who has been anxious to establish a career.On occasions she became frustrated and at times distressed to the point of despair regarding the lack of direction in establishing a career. At Blue Lakes Homes she struggled with the nature of the work but persisted with it.In my opinion the plaintiff has showed considerable determination in her attempts to carve out a career in early childhood caring.
In my view, if the plaintiff had not been injured then she would have likely undertaken further study on leaving school.However, having said that I should also take into account the degree of probability that she would not have undertaken further study but pursued full time employment immediately after she left school (see: Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 659).As she was happily residing in Mount Gambier it is likely that she would have undertaken that study part time.I pause here to comment that even without the SACE there would seem to have been courses of study open to her.I do not consider the plaintiff would have undertaken full time employment whilst she was studying part time.However, in view of her industrious nature I have no doubt that she would have actively sought part time work.In considering her past economic loss I must also take into account that her injuries were the cause of her having to repeat some subjects in Year 11.As a result she left school in 1994 instead of 1993.The effect of this is that she has lost the opportunity of a further year to obtain some gainful employment.In my opinion if the plaintiff had undertaken further study she would have been likely to have commenced seeking full time employment towards the end of 1997.
I touched on earlier that the plaintiff has only undertaken a small amount of part time work since she left school at the end of 1994.It is not suggested by the defendant that the plaintiff has failed to mitigate her loss by failing to obtain further employment during the period since she left school.In any event there is no evidence to support an assertion that the plaintiff has failed to mitigate her loss.The plaintiff has received remuneration for some of her part time work. This remuneration will need to be taken into account in assessing damages for past loss of earning capacity.She received from Blue Lakes Homes the sum of $2370 in the 1994/1995 year and $200 in the 1995/1996 year.From D P Dahl she received a total of $1260 over three financial years. The plaintiff also received $837 in the form of wages from the Children's Services Office.
During the 1995-1996 year the plaintiff received $3878 by way of Social Security payments and $2660 in the 1996-1997 year.Whilst it is not clear from information provided by the Department of Social Security both counsel have agreed that the payments are to be classified as unemployment benefits.I was informed of this agreed classification of the funds in a further hearing which took place on 5 September 1997.I had called the matter on to hear submissions on how I should treat the payments in assessing past loss of earning capacity.
The question which needed to be determined was whether the plaintiff was required to repay the payments to the Department of Social Security.If she was obliged to repay them then the payments should be ignored in making the assessment.However, if she was not obliged to repay then the defendant should receive a credit for the payments as they should be classified as compensation for loss of earning capacity.
Both counsel informed me that there appeared to be nothing in the SocialSecurity Act 1991 which specifically provided assistance in resolving the question whether the plaintiff was obliged to repay the moneys or not.Some information had been provided by the Department of Social Security.Finally it was agreed by both counsel that I should use a formula supplied by the Department of Social Security to determine whether the plaintiff was required to repay the moneys.It appears that the exercise is to determine a preclusion period which is a period when a person is precluded from receiving any benefits.The period commences on the date of the accident.The end of the preclusion period is calculated by a formula which was furnished by the Department of Social Security.Both counsel advise that if any benefit was received during the preclusion period then all payments are recoverable by the Social Security Department.
As I said, both counsel agreed that I should adopt the formula provided by the Department of Social Security.The formula is to take the total amount that is assessed for past loss of earning capacity and future loss of earning capacity, halve that amount and then divide the result by $403.20.The result of this calculation provides the number of weeks to which a person would be precluded from receiving any benefit of course commencing on the date of the accident. Using the amount of $125,000 as the total of the damages for past and future loss of earning capacity I have calculated a preclusion period of 155 weeks. The plaintiff received the benefits from 10 August 1995 to 19 December 1995. It therefore seems that some of the benefits were received in the preclusion period as the preclusion period commences on 11 November 1992 and ends at approximately the end of the second week in October 1995.This being the case then the Social Security payments are ignored as they will be required to be repaid to the Department of Social Security.
I have found this whole exercise most unsatisfactory.It is difficult to understand why it is necessary to undertake such an exercise in assessing damages.I am at a loss to understand why there is not a simpler and more certain method of determining whether benefits are required to be repaid.Here there was not a substantial amount involved.However, it is not difficult to envisage cases where the amount is such that it will have a substantial effect on the amount of damages received by a plaintiff.
Assessing loss of earning capacity in the circumstances which present themselves in this case must necessarily be a broad approach.I assess her damages for past lost of earning capacity on the basis that she would have undertaken part time employment from the beginning of 1994 until towards the end of 1997.In assessing her damages for past loss of earning capacity I take into account the degree of probability that she would have immediately sought full time work after leaving school.I assess the loss at $20,000 net of tax. From that amount is to be deducted the sum of $4,667 being the total of the amounts I have previously referred to excluding the payments made by the Department of Social Security. This leaves an assessment of past loss of earning capacity of $15,313.
I now come to consider the plaintiff's claim for loss of future earning capacity.I have already found that the plaintiff has lost a significant part of her earning capacity.Reference has been made to difficulties she has experienced in various activities she has undertaken since the accident which demonstrates some of the problems she would be confronted within a number of occupations.It is clear that the serious injury to her right shoulder prevents her from taking up many jobs which were within her capacity.Having said all of that it should be acknowledged that she still retains a substantial earning capacity.The plaintiff is keen to establish a career in early childhood caring.She enjoys this type of work.This is the type of work which would appear to be within her residual earning capacity although she will be confronted from time to time with difficulty in performing a task which arises in the course of the employment.The difficulties which will confront her from time to time in future employment where she is required to regularly use her right arm are demonstrated by the evidence the plaintiff gave regarding her work at the Derrington Street Child Care Centre.
In assessing the plaintiff's future loss of earning capacity it must also be recognised that whilst the plaintiff has a significant residual earning capacity she will still have difficulties in obtaining employment in the open market because of her disability.As Justice Stephen said in Wade v Allsopp
(1976) 10 ALR 353 at 361:-
"Although these latter disabilities no doubt only reduce by some percentage his capacity as a potentially useful member of the work force, their effect upon the likelihood of his being selected for any suitable employment when in competition with other applicants who do not suffer from like disabilities must be much more marked".
See also: Mathewman v Australian National Railways Commission (1987) 135 LSJS
94 at 100; Versace v Messer (1993) 172 LSJS 409 at 413-414.
The plaintiff has given evidence of her desire to embark upon a career.I have concluded that she is an industrious person by nature.Whilst the plaintiff has not given any evidence of her future intentions regarding the duration of herworking career I find that she would have worked until she was 65 years of age.Her attitude to date would suggest that. In undertaking the assessment for future loss of earning capacity it seems to me that the most appropriate way of commencing the exercise is to ascribe a weekly value of the plaintiff's work as if she had lost her entire earning capacity.I have found that she had the capacity to complete TAFE courses at a level which includes Accountancy.I have only been provided with evidence regarding the salary ranges of two occupations.The first being that of an Early Child Worker.The Award provides a range of gross salaries from a first year rate at Level 2 (after the first 3 months of service) at $359 per week to Level 6 (3rd year of service) at $534 per week.The only other Award which was referred to me was the Nurses Award.I have found that the plaintiff does not have the capacity to complete a Degree in Nursing.The Award provides details of salaries for Enrolled Nurses and Registered Nurses.The Nursing Degree was required for only a Registered Nurse.The Award states that a Registered Nurse (Level 1) in first year of service received $27,199 gross during the period up to 1 July 1997. The Award rate for an Enrolled General Nurse (first year service) during the same period was $24,795.At year 5 the rate was $26,992.At best these rates of salaries can be of very limited assistance as a guide to salary levels generally.
As I have said the salary levels contained in the two awards provide some assistance in assessing the plaintiff's damages for loss of earning capacity. It would have been helpful to have further evidence regarding the salary ranges of other occupations within the plaintiff's earning capacity. However, notwithstanding the paucity of evidence regarding the salary ranges for occupations I am obliged to do the best I can with the evidence before me. (See: Denton v Tenney (1995) 181 LSJS 377 at 380-381; Kutcher v Melin (1995) 182 LSJS 263 at 271).In my view the plaintiff's employment capacity extended to employment likely to return a higher salary rate than that of an Early Childhood Worker.As I stated earlier the evidence of Mr O'Hehir identified a range of occupations including that of an accountant.Mr Heyes' evidence indicated a range of options including those which were business related.In my opinion if the plaintiff had followed a business related path she would have achieved a position significantly above the lowest classification of office occupation.How far up the ladder is impossible to say.Taking all of these matters into consideration I consider that the plaintiff could have received a salary of about $400 per week net from about the end of 1997.That is, $400 after deducting income tax.
No evidence was led at the trial as to the appropriate multiplier necessary to calculate the capital loss.It is acceptable to have regard to the tables appearing in Profession Luntz's text "Assessment of Damages (3rd Edition)". (See: Murray v Dawson Unreported decision dated June 1996,Judgment S5620 at page 11).Table 4B shows that the value of a regular loss of $1 per week to a female aged 22 and ceasing at age 65 using a compound interest rate of 5% per annum is $924. To age 60 the multiplier is $891.At a subsequent hearing both counsel agreed to the use of Table 4B.It follows that if the plaintiff had lost her entire earning capacity then her gross loss, if she had worked until 65 years of age, would have been $369,600.However, in the plaintiff's case I have found that she retains a significant earning capacity.The exercise in determining her gross loss as if she had lost her entire earning capacity is of some limited assistance in considering her loss of future earning capacity. Having said that she retains a significant earning capacity, it also must be recognised that her loss of earning capacity is substantial.Furthermore, as I pointed out a little earlier, she is likely to be confronted with more difficulties than a person who is not injured when she comes to exercise her residual earning capacity by seeking employment.
In the assessment process there are also contingencies which must be taken into account.She said that she was hoping to marry.I have to take into account the likelihood of her having children.There is no evidence to indicate whether the plaintiff is likely to return to work shortly after having a child or whether she would stay home for an extended period of time to care for the children and return to the work force after that task has been completed.In the absence of any evidence then I consider the appropriate course is to take into account that the plaintiff was likely to remain home for some time to care for the children and return to the work force later.Taking this view would seem to be in accordance with the approach referred to in Denton v Tenney (supra) at 380-381. There are other contingencies both unfavourable and favourable which must be taken into account and the vicissitudes of life.
Taking into account her residual earning capacity and taking all those contingencies into account I assess the plaintiff's future loss of earning capacity at $110,000.
Included in the plaintiff's claim is a claim for future medical expenses.This head of damage includes the costs of two surgical procedures which the plaintiff wishes to undergo.The first is a hymenectomy.As mentioned earlier, as a result of the injury to the plaintiff's vagina and surrounding area she suffers pain during intercourse and suffers discomfort on micturition for a short period following.Dr Ian Tucker has provided the opinion that there is a strong likelihood that the pain which the plaintiff experiences during intercourse and the pain and discomfort following intercourse will disappear following the hymenectomy.He estimates the cost of the surgery at $755.I accept Dr Tucker's opinion and accordingly the cost of the surgery will be included in this head of damage.
The other claim for cost of surgery relates to the plaintiff's scarring.The only medical evidence on this issue has been provided by Dr Randal Sach, a plastic surgeon.Dr Sach said that there were three surgical options available for the treatment of the plaintiff's scarring.The first was a simple revision of the scarring.This procedure would cost between $1200-$1500.The second procedure was for the purpose of improving the scar contour.It would take the form of a graft.The cost would be approximately $2,500 although Dr Sach thought that if the scar revision and the graft were both to be undertaken then both procedures could be undertaken at the same time and this would lead to a cost saving.The third surgical procedure also has as its objective the improvement of the scar contour.It takes the form of a microvascular reconstruction.It is a long and complicated surgery and would cost between $10,000 and $15,000.Dr Sach considered the most cost effective procedures would be the scar revision and a dermofat graft or something like that.He thought if those two procedures were performed together the cost would be about $3000.Dr Sach considered that if the plaintiff was to undertake surgery she would require very careful counselling.The plaintiff said she was keen to undergo surgery if there was a possibility that it would improve the appearance of the scarring.The scarring clearly causes her distress.It is most likely she will undergo the surgery shortly after judgment is delivered.In view of Dr Sach's opinion of the combined revision surgery and the surgery involving a dermofat graft then I allow the sum of $3,000 for the surgery, being the amount Dr Sach thought the combination surgery would cost.
Dr Clayer indicated that the plaintiff would benefit two further counselling sessions with Mr O'Hehir in relation to the plaintiff's psychiatric condition. Dr Bassett thought she would benefit from a further five to six counselling sessions.I allow the cost of each counselling session at $110.Accordingly, I allow the sum of $500 for the cost of further counselling.
I therefore allow the sum of $4255 damages for future medical expenses.
Mrs Balshaw rendered the plaintiff voluntary assistance in the form of nursing and personal care whilst the plaintiff was recovering.Her mother was a registered nurse.Mrs Balshaw changed her dressings.She also assisted her with showering, washing her hair, dressing, cutting her food and other matters relating to the plaintiff's personal care.Mrs Balshaw performed these services for about two months.Thereafter the plaintiff began to assist herself more and more although some assistance was still needed.The nature of the services are of the type which attract an award of damages (see: Van Gervan v Fenton (1991-1992) 175 CLR 327; also Section 35A(1)(g) of the Wrongs Act 1936, as amended).I allow $1800 damages for gratuitous services.
Finally, I come to the plaintiff's claim for special damages.It has been agreed that to date the defendant has paid to the plaintiff $11,781 for special damages.There is a further amount of $2766.40 by way of special damages which is unpaid.As the defendant's liability has been agreed at 75% the defendant is entitled to a credit of $2945.25 being 25% of the sum of $11,781.On the other hand the plaintiff is entitled to be paid the sum of $2074.80 being 75% of the unpaid amount of $2766.40.It follows that the defendant is entitled to a credit from the amount of damages assessed of $870.45 being the difference between $2945.25 and $2074.80.
In summary the heads of damages, excluding special damages, are assessed as follows:-
* Pain and suffering and loss of amenities
Past$9,500
Future $15,160$24,660
* Past Loss of Earning Capacity $15,313
* Future Loss of Earning Capacity $110,000
* Future Medical Expenses $3,975
* Gratuitous Services$1,800
$155,748
The plaintiff damages, excluding special damages, are therefore assessed at $155,748.
The plaintiff and defendant have agreed that the liability of the defendant for the plaintiff's injuries is 75% of the assessed damages.Accordingly, the damages assessed are reduced to $116,811.From this amount there will need to be deducted the sum of $870.45 being the special damages credited to the defendant which I referred to earlier.
Therefore, there will be judgment for the plaintiff against the defendant for $115,940.55.
I will hear the parties regarding interest and costs.
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