| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BLANK -v- BOLTON [2002] WADC 99 CORAM : WILLIAMS DCJ HEARD : 2-5 APRIL 2002 DELIVERED : 22 MAY 2002 FILE NO/S : CIV 1146 of 2000 BETWEEN : MAREE NORMA BLANK Plaintiff
AND
SHANE ROBERT BOLTON
Defendant
Catchwords: Assessment of damages - Soft tissue injury to spine - Plaintiff a 51 year old artist turned health care operator
Legislation: Motor Vehicle (Third Party Insurance) Act 1943
Result: Plaintiff entitled to judgment in the sum of $148,000.63
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Representation:
Counsel:
Plaintiff : Mr G Droppert
Defendant : Mr P Momber
Solicitors:
Plaintiff : Evangel Taylor
Defendant : Peter Momber
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) A Tort Rep 81-043
Brown v Rodrigues, unreported, FCt SCt of WA; Library No 970334; 3 July 1997
CSR Readymix (Australia) Pty Ltd v Payne (1997) A Tort Rep 81-432
Graham v Baker (1961) 106 CLR 340
Hendrie v Rusli [2000] WASCA 249
Medlin v State Government Insurance Commission (1995) 182 CLR 1
National Insurance Company of New Zealand Limited v Espagne (1960-1961) 105 CLR 569
Nicholson v Nicholson & Anor (1994) 35 NSWLR 308
Thiess Properties Pty Ltd v Page (1980) 31 ALR 430
Thomas v O'Shea (1989) A Tort Rep 80-251
Van Gervan v Fenton (1992) 175 CLR 327
Van Velzen v Wagener (1975) 10 SASR 549
Wright v Shire of Albany (1993) A Tort Rep 81-239
Wylde v Arriaza, unreported, FCt SCt of WA; Library No 970359; 23 July 1997
Yammine v Kalwy [1979] 2 NSWLR 151
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WILLIAMS DCJ:
Introduction 1 As a result of the admitted negligent driving of the defendant on 4 September 1996, the plaintiff alleges that she suffered injuries and now brings this action for damages. Liability is admitted and the matter proceeds before me by way of assessment of damages only.
The plaintiff's evidence 2 The plaintiff was born on 13 February 1951 and is presently aged 51 years of age. She attended school in Western Australia. She left school after year 10 and attended business college for a period of 12 months. She then went to work in a real estate office doing secretarial work for a few months. 3 Thereafter she pursued a modelling career both overseas and in the Eastern States until she married at the end of 1977. At that time she continued with some part-time modelling and working in her husband's real estate business. Her daughter was born in 1978 and her son was born in 1981. She separated from her husband in 1985 and returned to Western Australia in 1986. 4 In 1988 she began a full-time fine arts and design course at Claremont School of Art with a painting major and a sculpture minor. She graduated in 1990. In 1991 she commenced a textile major and a painting minor at Edith Cowan University and graduated in 1993. During that time she co-ordinated fundraising exhibitions, participated in the Craft Council Open Award of Excellence and attended a computerised weaving workshop. In 1994 she won the Perth City Council Craft Council Open Award of Excellence, a Coolgardie Arts Award and was a finalist in the Visual Arts Foundation of WA third graduate drawing prize. She otherwise did some commercial/advertising work. In 1995 she again won the Perth City Council Craft Council Open Award of Excellence. She taught two units at Central School of Art Perth (Central TAFE). 5 In 1996 she was offered one unit teaching textiles at Edith Cowan University. She also prepared an exhibition at the Fremantle Arts Centre and conducted a workshop involving printing on textiles. She also conducted workshops at the Claremont Art School and won a number of awards.
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6 Her accident occurred on 4 September 1996 when she was a front seat passenger in a stationary vehicle waiting to turn into the beach. The defendant's truck struck the left rear of the motor vehicle.
7 According to the plaintiff immediately following the accident she was in a state of shock. She noticed a significant mark across her neck, head and upper chest. She was taken home by a friend and went to bed early. The next day she had a pain in both her neck and lower back. The pain in her neck has been mainly located in the left side of her neck below the area of the base of her skull and just above her shoulder. She has had frequent headaches associated with the neck pain. Her lower back pain is at or below the level of her hip. The effect of the neck and back pain has been to limit how much physical activity she can do. The effect of the headaches has been to make her simply want to lie down and rest. 8 She saw Dr Snowball twice in September 1996. She saw Dr Tarvydas shortly after the accident and into 1997. She had physiotherapy from 20 September 1996 until November 1998. 9 She saw Dr Wittenoom on four occasions between July 1998 and March 2000. She has seen Dr Hollingworth in August 1997, September 1999 and January 2001. She has seen Mr Anastas in May 1999 and June 2000. 10 In May 2000 she saw Dr Warner. In March 2001 she saw Dr Will. He arranged a thermogram. 11 In April 2001 and March 2002 she saw Mr Brash. 12 In early 2001 she started seeing Dr Quatermass, a local general practitioner, who ordered a CAT scan of her neck and back. 13 She saw Dr Finch in August 2001 and again in March 2002. Dr Finch arranged an MRI scan of her neck and back in August 2001. He carried out an anaesthetic block at the Mount Hospital in October 2001. He performed a radio frequency treatment on her neck in December 2001. 14 She has had x-rays, a thermogram, CT scans, MRI scans and an anaesthetic block. 15 She has taken medication, being painkillers and anti-inflammatories. She wore a soft collar for approximately 10 weeks. She has undergone hydrotherapy and massage therapy. She no longer plays tennis but she walks about 4 kilometres per day.
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16 Travel has caused her difficulties.
17 The injuries have restricted her ability to carry out her artwork. She has not done any textile work since the accident. She has tried to do some painting since the accident but has found this to be extremely difficult. 18 She has not been able to carry out many of her domestic responsibilities. She is unable to do the ironing. General cleaning and vacuuming cause her difficulties and she has required assistance from her son and her mother. She avoids the heavier gardening. 19 In 1998 she decided to become involved in the marketing of a product known as "Juice Plus". She commenced distributing this product in November 1998. Even in this occupation she has suffered restrictions.
The medical evidence 20 In a report dated 6 April 1997 Dr Philip Snowball, a general practitioner, reported that he saw the plaintiff on 4 September 1996 and 16 September 1996. On the first occasion he diagnosed a soft tissue injury to the spine predominantly in the cervical spine, of a whiplash nature. She was advised to wear a soft collar for 10 days and to carry out appropriate stretching and muscle exercise. She was also given an oral anti-inflammatory agent. 21 At a review some 12 days later he recommended that she receive physiotherapy. The plaintiff did not return to see Dr Snowball after those two visits. 22 In a report dated 9 July 1998 Dr Harvey Tarvydas, a general practitioner, reported that he saw her on 6 September 1996 and that she returned on the following day. He noted what he described as an extremely severe soft tissue injury of the cervical, mid back and lumbar spine. In evidence in Court he stated that he continued to see her until mid-1997 when he was suspended from practising as a medical practitioner for a period of 12 months. His suspension ceased in July 1998 but he never went back to practising as a medical practitioner. 23 The plaintiff was seen by Dr Peter Hollingworth, Associate Professor of Occupational Medicine at the School of Public Health, Curtin University, at the request of the defendant on 22 August 1997 approximately 12 months after her accident. At that time he considered that she had sustained a soft tissue injury to her cervical and lumbar spine. These were super imposed on injuries and degeneration which were
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already symptomatic at the time of the accident. Dr Hollingworth next saw the plaintiff on 20 September 1999. At that time he considered that the plaintiff had some soft tissue injury, primarily to the cervical spine, and to a lesser extent to the lumbar spine. He agreed with the assessment of Mr Anastas, an Orthopaedic Surgeon, that a collective disability was a 5 per cent loss of total function of the cervical, thoracic and lumbar spine which was equally divided between the cervical and the thoraco-lumbar spine.
24 Dr Hollingworth saw the plaintiff again on 9 January 2001. At that time he could still find no objective evidence of anything more sinister than soft tissue injury and he was not able to explain why her symptoms had persisted for so long. He could find nothing to suggest that she would be left with permanent impairment as a result of the motor vehicle accident.
25 The plaintiff attended Dr R H Wittenoom, a general practitioner, on 27 July 1998, 4 December 1998 and 5 January 1999. When he saw her on 27 July 1998 he noted that all movements were restricted and painful but there was no abnormality of upper limb reflexes observed. On examination on 5 January 1999 he noted that in respect of the cervical spine lateral flexion was painful and limited more so to the right, extension was not unduly limited but painful, flexion was painful and restricted. Reduction of the shoulders caused pain in the lateral aspect of the neck in the region of the superspinatas muscle and in the upper right trapezius muscle. No significant abnormality of upper limb reflexes was noted. Lower limb reflexes were normal with plantar responses.
26 The basis of Dr Wittenoom's report appears to be to support the plaintiff having access to physiotherapy at the insurer's expense.
27 Dr Rob Will, is a rheumatologist. He first saw the plaintiff on 10 March 2001. Dr Will was of the view that she presented with features of a myofascial syndrome involving the trapezial region and possibly the posterior cervical area and also a suggestion of involvement of the lower lumbar spine. He considered that there may also be cervical and lumbar facet injuries accounting for her persistent symptoms. He suggested that she have an infrared thermo-geographic assessment to see whether there was any documentary evidence of a myofascial syndrome. She underwent an infrared thermogram on 16 March 2001.
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28 It was Dr Will's opinion that the plaintiff had suffered a disability as a result of the accident. He regarded her as having a 10 per cent disability with respect to loss of full and efficient use of her lumbar spine. She had also suffered a loss of full and efficient use of her thoracic spine which he would regard as a 5 per cent disability in this region. She had also sustained bilateral and shoulder symptoms which fit the picture of a myofascial syndrome. He would regard her as having a 10 per cent disability with respect to the shoulder regions, i.e. 5 per cent affecting the right shoulder and 5 per cent affecting the left. He would regard her as having a 5 per cent disability with respect to her cervical spine.
29 He did not consider that she would require any further specialist review. 30 Dr R J Warner is an occupational physician. He saw the plaintiff on 18 May 2000. On 21 May 2000 he wrote a report in which he indicated that he diagnosed the plaintiff as suffering a complex series of injuries to the cervical, thoracic and lumbar spines in the accident. This was caused by the fact that she was looking to the right at the moment of impact. But he also stated that she had a post-traumatic stress disorder with masked depression. I note that no other medical practitioners have stated that she had post-traumatic stress disorder or that she was suffering from depression. The plaintiff in evidence did not speak as to these matters and I do not accept that to be the position. Dr Warner was of the view that the plaintiff had suffered a permanent residual disability of 20 per cent loss of function of the spine, 15 per cent loss of function of the thoracic spine and a 15 per cent loss of function of the lumbar spine. 31 Dr Pam Quatermass is a general practitioner. The plaintiff consulted her on 8 May 2001, 16 May 2001 and 6 March 2002. Dr Quatermass referred her on to Dr Finch for a course of nerve blocks to the cervical spine. 32 Dr Philip Finch is a specialist in pain medicine. He first saw the plaintiff on 17 August 2001, approximately 5 years after the motor vehicle accident. He examined a number of radiological investigations including those of the lumbar and cervical areas dated 20 March 1996 which was before her accident. After seeing her he organised for an MRI examination. It was his opinion that overall these x-rays did not demonstrate any compressive features. There are features of age change with the development of degenerative features common to persons the same age as the plaintiff. There were no features that required surgery. It was Dr Finch's conclusion that the accident had rendered asymptomatic
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degenerative changes to become symptomatic in the motor vehicle accident, in particular at C5/6. There may be a degree of traumatic herniation to add to the degenerative changes already present which have initially caused some irritation of the left C6 nerve root. It was his opinion that the plaintiff now mainly suffers from facet joint pain on the left, especially at C2/3 and C3/4, which causes restriction in her cervical range of movement and understandably reduces her capacity to work. In the lumbar region he considered that she had a mild instability at the lumbar sacral level and her pain may originate in the structures in this segment, especially at the facet joint, which is noticeably degenerate, or in the mild spondylolisthesis or slip of this level, with the commencement of discogenic pain. In the dorsal spine there has been a mild straining injury, probably to the dorsal facet joint. Lastly, in the right shoulder, there is a possibility of a mild degree of tendinopathy as a result of the accident. 33 It was Dr Finch's assessment that the plaintiff had a permanent loss of the efficient use of the cervical spine of 15 per cent, of the dorsal spine of 5 per cent, and 20 per cent in the lumbar sacral area as a result of the motor vehicle accident. 34 In his report dated 6 March 2002 Dr Finch noted that he had performed some radio frequency blocks on the plaintiff on the left between C2-3 and C4-5 on 4 December 2001. This had satisfactorily reduced her left cervical pain by about a third and had significantly improved her headaches. 35 Mr Nicholas Anastas is an Orthopaedic Surgeon. He first saw the plaintiff on 17 May 1999. In his report on that date Mr Anastas diagnosed the plaintiff as suffering some soft tissue injury to her cervical spine and lumbar spine in the motor vehicle accident. She did have pre-existing degenerative changes in her cervical spine and lumbar sacral spine together with a past history of symptoms following a fall in March 1996. The plaintiff had stated however that her symptoms following the fall in March 1996 completely settled in three weeks and she did not have any trouble again until the motor vehicle accident on 4 September 1996. 36 Mr Anastas assessed the plaintiff as having a collective disability of 5 per cent loss of total function in her cervical spine and thoraco lumbar spine and would apportion 50 per cent of this disability as being in her cervical spine and 50 per cent of this disability as being in her thoraco lumbar spine.
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37 Mr Anastas next saw the plaintiff on 20 June 2001. In his report of that date Mr Anastas reported that he was still of the opinion that the plaintiff suffered some soft tissue injury to her cervical and lumbar sacral spine. She did have pre-existing degenerative changes in her cervical spine and lumbar spine, together with a history of symptoms following a fall in March 1996. The plaintiff had advised however that the symptoms following her fall in March 1996 completely settled within three weeks and she did not have any trouble again until the motor vehicle crash on 4 September 1996. Mr Anastas was of the view that it was likely that the plaintiff did have some weakness in her back as a result of the pre-existing degenerative changes and the fall some six months prior to the motor vehicle accident.
38 Mr Stewart Brash is an Orthopaedic Surgeon. At the request of the defendant he saw the plaintiff on 24 April 2001.
39 Mr Brash was of the opinion that there was no pathology that he could relate to the accident nor which would explain the ongoing widespread severe symptoms. The plaintiff was able to get out of the car by herself. At first she had no pain. If the plaintiff had suffered a significant soft tissue injury then Mr Brash would have expected the immediate onset of pain and inability to walk around. While there was no evidence of pathology there was evidence that there were organic or functional factors present in the total pain picture in that: (a) he was not able to reconcile the widespread severe and ongoing pain with the complete lack of pathology; (b) there was no anatomical cause for the observed decreased range of active motion; (c) the abnormal pain drawing; (d) the non-anatomical sensory changes noted on examination.
40 Mr Brash was of the opinion that the plaintiff was completely fit for the full activities of daily living including her pre-accident occupation of painting, lecturing and doing workshops in the visual arts, painting and textiles. He considered that she was also fit to return to tennis and swimming.
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41 Mr Brash last saw the plaintiff on 5 March 2002. At that time he continued to be of the opinion that the plaintiff was completely fit for the full activities of daily living without restriction. He considered that she was completely fit to return to her pre-accident occupation of painting, lecturing, workshops in the visual arts, painting and textiles and that she was fit to return to playing tennis and swimming without restriction. He still believed that there were non-organic or functional factors present in the total pain picture. The fact that the plaintiff's symptoms had not improved, were widespread, constant and severe and have not responded to the passage of time, modification of work and the treatment to date was indicative that there are non-organic or functional factors present in the total pain picture.
Other evidence for the plaintiff 42 Professor Neville Weston knew the plaintiff whilst she was attending the WA Academy of Performing Arts when he was Dean of the WA School of Visual Arts. He was of the opinion that awards profile an artist within the community and awards are usually selected by peer groups and used as a platform to launch on the wider art world. He was responsible for employing the plaintiff as a sessional lecturer. That required a high level of craft competence. It was not easy to find good staff. The plaintiff was seen as a valuable asset. She had a high level of representational skills. 43 Mr Janis Nedela is a Director of Gallery East and a professional artist. He knew the plaintiff and had some knowledge of her work as an artist. He was asked to prepare a report and provide an assessment of what he thought the plaintiff's earnings would be. He estimated her income to be in the range of $30,000 to $50,000 per year in each of the years since her accident. He had seen everything that she had done including textiles, paintings, drawings and photography. He considered that it took a great deal of discipline to maintain yourself as an artist. He was presently working on an exhibition and that required him to put in a 70-hour week. He considered that textiles was a limited market. He was of the view that most artists are not making any profit from their art. Most artists would gross about $8,000 to $10,000 per annum. From that they would have to deduct the overheads. He himself was earning about $20,000 from shows. When he said that the plaintiff would be capable of earning $30,000 to $50,000 per annum that was a gross figure and it also included lecturing. Overheads would have to come out of that figure. It was his view that apart from teaching there was no profit in the balance.
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Assessment of damages
44 The plaintiff claims damages for loss of amenities being pain and suffering and loss of enjoyment of life, both past and future. 45 It is the submission of counsel for the defendant that no doctor has found any pathological basis for the plaintiff's continuing complaints and that this is a phantom injury. He did accept that all doctors concede that she had some ongoing symptomatology. Counsel for the defendant made the point that the plaintiff acknowledged that away from the Court she displayed no signs of disability but stated that it was inconsistent with her presentation to the doctors and in the witness box. 46 However I have no difficulty in accepting the plaintiff as a witness of credit. Her descriptions of her complaints to the medical practitioners are consistent. Her initial descriptions to Dr Snowball and Dr Tarvydas shortly after the accident were consistent. Thereafter she has attended on East Fremantle Physiotherapy and it is clear from Exhibit 4 that she was exhibiting a problem. Thereafter she has been to various doctors for treatment. I am unable to find anything in her presentation to her medical practitioners or to the Court which would indicate that she is not a witness of truth. 47 Most of the medical practitioners have concluded that she has suffered a soft tissue injury to the cervical spine and to the lumbar spine. I discard the most extreme views in respect to this matter. They include Dr Harvey Tarvydas who was clearly a friend and on first name terms with the plaintiff. His evidence would indicate that he did not even send accounts. He also was having his own problems at the time with the Medical Board. I also discard the evidence of Mr Brash. He did not consider that there was anything the matter with the plaintiff. In my view those views were at the extreme. 48 The other medical practitioners were relatively consistent with each other. Of those medical practitioners I prefer the views of Dr Hollingworth and Mr Anastas being specialists who saw her at a relatively early stage. They agreed with each other's assessment of a 5 per cent disability. It seems to be appropriate in the circumstances. 49 There is evidence that the plaintiff had degenerative changes but that they were asymptomatic before her accident. I accept that the accident has rendered those symptomatic but it is my finding that they would otherwise have been asymptomatic were it not for the accident.
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Additionally I do not accept that the plaintiff's fall at home in March 1996 played any part in her complaints following her motor vehicle accident. 50 Taking all matters into account I am of the view that the appropriate percentage of a most extreme case under s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 is 10 per cent. On that basis I allow the sum of $11,700 for loss of amenities. 51 The plaintiff claims past loss of earning capacity as follows: "4. As a result of her injuries sustained in the accident, the Plaintiff has lost the capacity to earn:
(a) approximately $20,000 gross/$16,000 nett in year 1996-7; (b) approximately $30,000 gross/$25,000 nett in year 1997-8; (c) approximately $40,000 gross/$31,000 nett in year 1998-9; (d) approximately $50,000 gross/$36,000 nett in year 1999-2000; (e) approximately $50,000 gross/$36,000 nett in year 2000-1; (f) approximately $37,500 gross/$27,000 nett in year 2001-2 (to March 2002). Total: $171,000 nett
5. The Plaintiff has earned the following amounts:
(a) $3,685 in year 1996-7; (b) $1,166 in year 1997-8; (c) (Loss) $1,486 in year 1998-9; (d) $4,103 in year 1999-00; (e) $5,175 in year 2000-01; (f) (Estimate) $4,000 in year 2001-02 (to March 2002). Total: $16,643.
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52 In relation to the plaintiff's earning capacity I again prefer the views of Dr Hollingworth and Mr Anastas. Dr Hollingworth was of the view that she had some capacity for work. For example he would not suggest full-time work at a computer. He considered that eventually she would make a complete recovery. He accepted that she found working a loom difficult as that requires a long time. The static loading causes problems. He would expect that she would be able to do some of it, although she may have to rearrange her timetable. Painting work would give her difficulties with bigger pieces but she would not have any trouble with smaller paintings. 53 Mr Anastas was of the view that in general terms she would have difficulty with work which involves repetitive heavy lifting, prolonged bending, prolonged leaning over a desk or prolonged work with her arms in the overhead position. In general terms he would expect her prognosis to be one of improvement in time. 54 The plaintiff's income tax returns indicate the following: 1995 Sale of art $3,441
Expenses $4,778
Nett loss $1,337
30 June 1996 Sale of art $1,155
Expenses $3,093
Nett loss $1,938
30 June 1997 Sale of art $4,615
Awards $1,350
Consultants fees $ 875
Expenses $3,435
Nett profit $3,405
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30 June 1998 Sales of art $5,090
Expenses $3,623
Nett profit $1,166
1999 Art award $1,000
Expenses $1,255
Loss $ 255
55 It is apparent from the plaintiff's income tax return that in 1999 she commenced her business in health care products. She has continued with that business for the years ended 30 June 2000 and 30 June 2001. Her evidence is that that is still continuing. There would not appear to be any reason why the plaintiff is not able to continue with her health care products business. 56 The defendant accepts that the plaintiff was talented in weave looming and won substantial awards and that she was invited to show craft in Japan. However the defendant says this was for exhibition work and not for commercial work and it was not productive of an income except as a teacher. 57 Mr Nedela's evidence was that her work was professional, however, his evidence was to the effect that most artists make no money. The most that he could gross out of his artwork was $20,000 per annum. His estimate of her income of $30,000 to $50,000 gross included teaching and painting. It was his evidence was to the effect that after the deduction of overheads there is not much profit left apart from the teaching. 58 In my view if I allowed the sum of $75,000 nett over and above the $16,643 that she has earned during the period from the time of the accident till the present time that would adequately compensate the plaintiff for any loss of art earnings and lecturing during that period. I allow the sum of $75,000 for past loss of earning capacity. 59 I allow interest at the rate of 3 per cent per annum as follows: 5.5 years x 3% x $75,000 = $12,375 60 I allow interest on past loss of earnings at $12,375.
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61 The plaintiff claims future loss of earning capacity and superannuation as follows:
"8. The Plaintiff would have worked until at least 65 years of age:
Multiplier for 14 years: 499.4 Loss per week: approximately $960 gross/$720 net Calculation: $720 x 499.4 = $359,568 (less deduction for contingencies/retained earning capacity say 35%) The Plaintiff claims $233,719.
9. Alternatively, even if the Plaintiff was able to resume and resurrect her career on a part-time basis, then she would be restricted to earnings levels approximating those claimed for the past five years (with reduction for restricted hours). This would result in a future loss of at least $60,000 nett but would require an additional global sum of at least a further $50,000 for the probability that she would not be able to achieve her previous levels of artistic excellence, output and recognition."
62 In relation to future loss of earning capacity it is clear that the plaintiff is attempting to re-establish herself in the health care products business. Her artwork does not appear to be playing any part in her earnings at the present time. I think it likely the case that she has decided that there is not sufficient money in being an artist to pursue that career and that she has better prospects in the health care products business. There would not seem to me to be any reason why she could not continue to sell her health care products.
63 I would allow the sum of $25,000 for future loss of earning capacity.
64 The plaintiff claims treatment expenses on the basis of a schedule of treatment expenses marked with the letter "A" and annexed to these reasons for judgment in total sum of $4,247.50.
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65 The defendant accepts that these are the treatment accounts but it raises the question whether these damages arise out of the motor vehicle accident. In my view all of these expenses arise out of the motor vehicle accident and I allow the sum of $4,247.50 for treatment and expenses.
66 The plaintiff claims travel expenses in the sum of $669.61 in accordance with a schedule of travel expenses annexed to these reasons for decision and marked "B". The defendant accepts that these are the distances and the rates and that the attendances occurred and the question is whether they arise out of the motor vehicle accident. In my view all of the expenses arise out of the motor vehicle accident and I allow the sum of $669.61 for travel expenses. 67 The plaintiff claims home help in accordance with the schedule of home help annexed to these reasons for decision and marked with the letter "C". The defendant agrees the hourly rates and the calculations and that the calculations based on those are correct. The question is whether those matters arise out of the motor vehicle accident. In my view they all arise out of the motor vehicle accident and I allow those amounts as follows: Past gratuitous services $12,117.60 Interest thereon $ 999.70 Gardening services $ 765.00 Interest thereon $ 126.22
_________ Total $14,008.52 _________
68 The plaintiff claims future treatment expenses as follows: "11. The Plaintiff claims the cost of periodic medical reviews by general practitioners and specialists and the prospect of further nerve blocks in a global sum - $5,000 12. The Plaintiff claims future medication costs - $1,000 13. The Plaintiff claims the cost of future physiotherapy/hydrotherapy/massage expenses - $3,000 14. The Plaintiff claims the cost of psychologist
services - $2,500 Total: $11,500"
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69 In my view if I allow the plaintiff $5,000 for future medical expenses that would cover medical expenses that the plaintiff was likely to incur.
70 I allow the sum of $5,000 for future medical expenses.
Conclusion 71 In my view there is no overlapping with respect to the various heads of damages and I allow the plaintiff damages as follows: Loss of amenities $ 11,700.00 Past loss of earning capacity $ 75,000.00 Interest on past loss of earning capacity $ 12,375.00 Future loss of earning capacity $ 25,000.00 Treatment expenses $ 4,247.50 Travel expenses $ 669.61 Home help $ 14,008.52 Future treatment expenses $ 5,000.00
__________ Total $148,000.63
__________
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"A" IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD AT PERTH
No 1146 of 2000
BETWEEN
MAREE NORMA BLANK
and
SHANE ROBERT BOLTON Defendant
SCHEDULE OF TREATMENT EXPENSES | Dated: March 2002
Filed on behalf of: The Plaintiff
Filed by:
EVANGEL TAYLOR
Barristers & Solicitors
5th Floor, Mint House
Suite 8, 326 Hay Street Tel: 9325 2111
PERTH WA 6000 Ref: 96184 CAT.YR
1. The Insurance Commission of WA has paid some of the Plaintiff's treatment expenses and the Plaintiff claims for the following treatment expenses from the Insurance Commission of WA.
TREATMENT EXPENSES AMOUNT($) Dr Snowball 95.50 East Fremantle Physiotherapy Services 602.00 Burswood Health Professionals 96.00
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2
Anthony Lewis - Burswood Health Professionals 70.00 Perth Radiology 10 May 2001 263.00 Perth Radiology 23 June 2001 134.15 Perth Imaging 24 August 2001 500.00 Dr R Will 360.55 Dr R Wittenoom 145.50 Dr Richard Bougher 312.50 Mosman Park Pharmacy 58.10 Dr Finch 793.00 Mount Hospital 545.00 Soft collar 25.90 * Dr Tarvydas 94.80 Dr Quatermass 151.50 TOTAL $4,247.50 2. * Subject to any further evidence from Dr Tarvydas.
_______________________________
EVANGEL TAYLOR SOLICITORS FOR THE PLAINTIFF
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"B" IN THE DISTRICT COURT OF WESTERN AUSTRALIA HELD AT PERTH
No 1146 of 2000
B E T W E E N :
MAREE NORMA BLANK
and
SHANE ROBERT BOLTON Defendant
SCHEDULE OF TRAVEL EXPENSES | Dated: March 2002
Filed on behalf of: The Plaintiff
Filed by:
EVANGEL TAYLOR
Barristers & Solicitors
5th Floor, Mint House
Suite 8, 326 Hay Street Tel: 9325 2111
PERTH WA 6000 Ref: 96184 CAT.YR | DATE | MEDICAL PRACTITIONER | RETURN JOURNEY | AMOUNT | | 05.09.96 | Dr Snowball | 8 | 2.32 | | 16.09.96 | Dr Snowball | 8 | 2.32 | | 23.04.97 | Dr Snowball | 8 | 2.32 | | 30.12.96 | Dr Tarvydas | 50 | 14.50 | | 28.01.97 | Dr Tarvydas | 50 | 14.50 | | 15.03.97 | Dr Tarvydas | 50 | 14.50 | | 16.03.97 | Dr Tarvydas | 50 | 14.50 | | 03.06.01 | Dr Tarvydas | 50 | 14.50 | | 27.08.97 | Professor Hollingworth | 34 | 9.86 |
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2 | 21.09.99 | Professor Hollingworth | 34 | 9.86 | | 11.01.01 | Professor Hollingworth | 34 | 9.86 | | 21.01.99 | Dr Anastas | 34 | 9.86 | | 01.06.01 | Dr Anastas | 34 | 9.86 | | 18.05.00 | Dr Warner | 60 | 17.40 | | 17.01.98 | Dr Whittenoom | 3 | .87 | | 21.05.99 | Dr Whittenoom | 3 | .87 | | 27.07.98 | Dr Whittenoom | 3 | .87 | | 04.12.98 | Dr Whittenoom | 3 | .87 | | 24.04.01 | Mr Brash | 40 | 11.60 | | 05.03.02 | Mr Brash | 40 | 11.60 | | 17.08.01 | Dr Finch | 42 | 12.18 | | 31.08.01 | Dr Finch | 42 | 12.18 | | 16.10.01 | Dr Finch | 34 | 9.86 | | 04.12.01 | Dr Finch | 34 | 9.86 | | 06.03.02 | Dr Finch | 42 | 12.18 | | 10.03.01 | Dr Will | 44 | 12.76 | | 16.03.01 | Dr Will | 44 | 12.76 | | 16.05.01 | Dr Quatermass | 5 | 1.45 | | 08.06.01 | Dr Quatermass | 5 | 1.45 | | 06.03.02 | Dr Quatermass | 5 | 1.45 | | 28.11.96 | Dr Kelsey | 50 | 14.50 | | 10.05.01 | Dr Fallen | 28 | 8.12 | | 24.08.01 | Dr Hesselberg | 34 | 9.86 | | 08.01.99 | MF Massage | 44 | 12.76 | | 12.01.99 | MF Massage | 44 | 12.76 | | 21.01.99 | MF Massage | 44 | 12.76 | | 30.01.99 | MF Massage | 44 | 12.76 | As per
attached
schedule | East Fremantle
Physiotherapy | 94 x 12 km =
1128km | 327.12 | | TOTAL | 2309 | $669.61 |
_______________________________
EVANGEL TAYLOR SOLICITORS FOR THE PLAINTIFF
(Page 22)
"C" IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD AT PERTH
No. 1146 of 2000
B E T W E E N:
MAREE NORMA BLANK
and
SHANE ROBERT BOLTON Defendant
________________________________________________________________ SCHEDULE OF HOME HELP
________________________________________________________________ Date of document: 28 March 2002
Filed on behalf of: The Plaintiff
Prepared by:
Evangel Taylor
Barristers & Solicitors
Suite 8, Mint House Telephone: 9325 2111
326 Hay Street Facsimile: 9325 4004
PERTH WA 6000 Reference: 961184.BE.YR
____________________________
1. Gratuitous services were provided to the Plaintiff. The Plaintiff has required and received gratuitous services of a domestic nature from members of her family or household including her parents, her son. The damages that may be awarded for the value of such gratuitous services are limited by the provisions of section 3D of the Motor Vehicle (Third Party Insurance) Act 1943 both as to:
(Page 23)
2. (a) the maximum amount per week, being average weekly total earnings of all employees in Western Australia for the relevant quarter where such services are provided for not less than 40 hours per week: section 3D(3)(a); and
(b) the equivalent pro rata hourly rate where such services are provide for less than 40 hours per week: section 3D(5). 2. The relevant average weekly total earnings for all employees in Western Australia as estimated by the Australian Statistician (Australian Bureau of Statistics Catalogue No 36020) are: | | | HOURLY ($) | | | | | 549.70 | 13.74 | | | | | 562.50 | 14.06 | | | 564.10 | 14.10 | | | 560.90 | 14.02 | | | 566.70 | 14.17 | | | 14.09 | | | | | 565.40 | 14.13 | | | 573.50 | 14.33 | | | 577.40 | 14.43 | | | 567.90 | 14.20 | | | 14.27 | | | | | 571.30 | 14.28 | | | 574.30 | 14.35 | | | 578.20 | 14.45 |
(Page 24)
3. | | | 14.53 | | | 14.40 | | | | | 587.60 | 14.69 | | | 605.50 | 15.14 | | | 617.40 | 15.43 | | | 622.50 | 15.56 | | | 15.20 | | | | | 627.70 | 15.69 | | | 638.90 | 15.97 | | | 15.83 | 3. The mid-point between the rates in November 1996 and May 2001 is $14.85 per hour. 4. The Plaintiff was injured on 4 September 1996. 5. From the date of accident to date the Plaintiff required and received assistance at her home and with cooking and cleaning tasks as set out below. 6. | SERVICE PROVIDED | BY WHOM | PERIOD | TOTAL HOURS | | Ironing | Dorothy Klinac,
Mother | Over 5 ½
years | 230 | | Cleaning/Cooking | " " | 138 | | Gardening | " " | 110 | | Gardening | John Klinac,
Father | " | 72 | | Maintenance | " " | " | 48 | | Driving | Daniel Blank,
Son | " | 30 |
(Page 25)
4.
| Domestic inc. cooking etc | " " | 156 | Gardening
Maintenance | " " | " | 32 | Driving/Shopping inc.
School, Physiotherapy | Val Hoyles,
Friend | Mainly 1996/97 | 15 | | Total | 816 | 7. The Plaintiff claims at an average hourly rate of $14.85: 816 hours X $14.85 = $12,117.60 for past gratuitous. 8. The Plaintiff claims interest at the rate of 3% per annum on the value of the past gratuitous services: 5.5 years x 3% x ½ x $12,117.60 = $999.70. 9. In addition, the Plaintiff claims the cost of gardening services for gardening which otherwise would have been undertaken by herself: | SERVICE | NAME | PERIOD | HOURS | AMOUNT | | Gardening | Les | 1997-99 | 14 | $165 | | Gardening | Chris | 2000 | 22 | $400 | | Gardening | Ken | 1996-97 | 16 | $160 | | Gardening | Jason | 2001 | 3 | $40 | | TOTAL | $765 | 10. The Plaintiff claims interest at the rate of 6% per annum on the value of the past gratuitous services: 5.5 years x 6% x ½ x $765.00 = $126.22.
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