Bramberger v DOECKE

Case •

[2008] SADC 52

•

30 April 2008

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

BRAMBERGER v DOECKE

[2008] SADC 52

Judgment of His Honour Judge David Smith

30 April 2008

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT

Personal Injuries – Assessment of Damages – plaintiff a 54 year old married vineyard hand – injured in motor vehicle collision – soft tissue injury to neck – left shoulder bursitis – fractured patella and soft tissue injury of right knee – later emergence of low back pain and left hip bursitis – development of Adjustment and Pain Disorders – plaintiff permanently unfit for work as a vineyard hand – required voluntary and paid assistance with domestic chores – some prospect of obtaining undemanding work upon successful psychotherapy – Assessment pursuant to now repealed s35A of Wrongs Act 1936 – numerical value 18 – non-economic loss $27,540 – past loss of earnings $207,800 plus interest of $63,483 – future loss of earnings $155,750 - loss of past and future superannuation benefits $37,913 – past and future special damages or medical expenses $22,954 plus interest of $2,003 on past paid component thereof – past and future paid and voluntary services $35,000 plus interest of $7,638 on past component – total award $560,081.

DAMAGES - GENERAL PRINCIPLES

Two claimed medical conditions emerged some time after the collision – discussion of whether those conditions related to the collision or emerged as a result of some independent cause or causes – onus of proof – causation – plaintiff also suffered from pre-existing but asymptomatic degenerative spinal condition, namely spondylosis and also was said to be vulnerable to the onset of psychiatric disorders given an appropriate trigger by reason of her troubled personal history- discussion of whether these pre-existing conditions would have emerged in any event – discussion of causation and onus of proof in relation to these pre-existing but dormant physical and psychological pre-dispositions.

Wrongs Act 1936 s35A; Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002 s4, referred to.
Hall v Foong (1995) 65 SASR 281; Sellers v Adelaide Petroleum (1994) 179 CLR 332; Bonnington Castings v Wardlaw [1956] AC 613; Birkholz v RJ Gilbertson Pty Ltd (1985) 38 SASR 121; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720; Chance v Alcoa of Australia [1990] Aust Torts Reports 67,619 (81-017); Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; Graham v Baker (1961) 106 CLR 340; Mann v Ellbourn (1974) 8 SASR 298; Medlin v SGIC (1995) 182 CLR 1; Husher v Husher (1999) 197 CLR 138; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; Bresatz v Przibilla (1962) 108 CLR 541; Campbell v Nangle (1985) 40 SASR 180; Fitzgerald v Goonan [2000] SASC 332; Beare v Slattery (2000) 218 LSJS 338; Wade v Allsopp (1976) 10 ALR 353; Murray v Dawson (1996) 24 MVR 244; Dessent v The Commonwealth (1977) 13 ALR 437; Carson v Knott [1999] SASC 71; Beasley v Marshall (No. 1) (1986) 40 SASR 544; Garland v Clifford (1996) 67 SASR 47 , considered.

BRAMBERGER v DOECKE
[2008] SADC 52

Introduction

  1. This is an action in common law negligence in which the plaintiff claims damages against the defendant for injuries and consequential losses arising from a motor vehicle collision.

  2. Liability is admitted in full.  So this is an assessment of damages.

  3. On Sunday evening the 22nd November 1998 the plaintiff, in company with her husband, was driving through the small Barossa Valley township of Keyneton.  They were on their way to Nuriootpa.  It was about 6pm and so daylight.  In front of the general store, the defendant, who was approaching on a crossroad from the plaintiff’s left, failed to obey a “give-way” sign and drove her vehicle into the path of the plaintiff’s vehicle.  A collision resulted.  Neither vehicle was travelling at any great speed.  Nonetheless, both the plaintiff and her husband were injured. 

  4. As at the date of accident, the plaintiff was working in the Barossa Valley as a vineyard hand and contends, inter alia, that as a result of her injuries, despite an attempt by her to do so, she has been unable to return to work.

  5. This action is subject to the constraints of s35A of the Wrongs Act 1936.  Section 35A was repealed by s4 of the Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002, which came into operation on 1st December 2002.  However, s35A still applies in this action because the accident, the subject of this claim, occurred before the commencement of the new provisions (see ss6 and 7 of the said 2002 Act).

    The Issues

  6. The plaintiff contends that as a result of the collision she has suffered:

    ·Soft tissue injuries, not only to her cervical spine, but also her thoracic and lumbar spines;

    ·Fracture of the right knee cap and associated soft tissue injuries;

    ·Soft tissue injury to the left shoulder;

    ·Soft tissue injury to the left hip; and

    ·Adjustment Disorder and Pain Disorder.

  7. The defendant sensibly takes no serious issue with the contention that the collision caused the claimed injuries to the neck, the right knee and the left shoulder but argues that the left hip and low back injuries have no relationship to the accident.  In relation to the claimed psychiatric illnesses, the defendant claims that the plaintiff did develop an Adjustment Disorder, but that it resolved.

  8. There are other causation and onus of proof issues.

  9. The plaintiff claims that her injuries have permanently impaired her life and, in particular, have driven her from the workforce.  The defendant’s response is:

    ·That the plaintiff is sufficiently recovered to resume her pre-accident life;

    ·That, if not recovered, she has sufficient residual earning capacity to negate or reduce any resulting economic loss; and

    ·That any incapacity for work would have arisen in any event because of her pre-existing vulnerability to both spinal injury on the one hand, given the degenerative condition of her spine, and psychological injury on the other hand, because of her dysfunctional early history.

    Credibility and Reliability

  10. Neither the medical witnesses, nor counsel suggested that the plaintiff was not an honest witness.  However, defendant’s counsel Mr Baker submitted that there was a degree of amplification or exaggeration in her evidence which was fuelled by her “own perception of her injuries and how they have affected her ...” (655).  If that were so, it is probably a product of her Chronic Pain Disorder which I accept resulted from the accident.  In particular, there was no suggestion that the plaintiff “consciously” exaggerated her injuries.  There were times when she became noticeably impatient with the process and sought to emphasise her position.  Her reaction did not reach beyond that so as to distort her evidence.  She did have understandable difficulties positively asserting when particular symptoms first emerged.  She could easily have made self-serving and definite answers to these questions but did not.  At times her answers were not responsive to the questions.  However, in the end, I accept her as a truthful witness and generally as a reliable historian of events, given that this accident and its aftermath were at the time of trial almost a decade old.

  11. There were conflicts between the medical witnesses on both sides, but they were a product of honestly held opinions and are not amenable to resolution by reference to notions of credibility and reliability.

  12. There was rightly no real challenge to the credibility and reliability of any of the other witnesses in the trial on both sides.

    Background Circumstances

  13. The following narrative of events constitutes my findings.  I will identify the matters of controversy and reserve them for separate resolution.

  14. The plaintiff was born in Melbourne on the 15th March 1954, and so is now 54 years old (23).  She had a troubled and difficult upbringing.  Her father was an alcoholic and given to violence.  She was one of nine children, only six of whom ultimately survived.  She was raised in the Melbourne suburb of Richmond.  She completed Year 10.  In 1970, when about to turn 16, she settled into work as a clerk in her cousin’s automotive paint shop in Melbourne (26).  At about this time, namely in the early 70s, her parents separated.  She remained living with her father in Melbourne.  Her mother moved to Gawler in South Australia with two of the youngest children (27).

  15. For the next decade or so there was considerable dislocation in the plaintiff’s own life.  There is no need to detail this, save to say that by 1983 she too had moved to Gawler and was living near her mother.  She then had her two children with her, Melanie, who was born in 1972 and Lucas, born in 1981.  She had been married twice and had one other relationship.  None had worked out.  As at the time she settled in Gawler she had not worked outside the home, other than briefly in the automotive paint shop in Melbourne as previously indicated (26-31).

  16. This troubled background features in the psychological and psychiatric assessments made of the plaintiff in this case.  It is suggested that she was, as a result, psychologically vulnerable.

  17. In 1985 the plaintiff met Wolfe Bramberger.  He was a truck driver in Adelaide and also did seasonal work in the Barossa Valley (31). In 1987 she, together with her son Lucas, commenced living with him in a shed on an 80 acre property called “Rocky Ridge” near Keyneton, which he owned jointly with his parents (31, 32).  The plaintiff’s daughter Melanie was at High School in Gawler and so she stayed with her grandmother there so that she could remain at the High School (32).  In 1988 the plaintiff married Wolfe Bramberger in Keyneton (32).  Wolfe Bramberger’s parents put a transportable home on the property at Rocky Ridge and moved there during the time that the plaintiff, Wolfe Bramberger and the child Lucas were living there (36).  Then in 1992 the plaintiff and her husband together purchased a neighbouring 80 acre property called “Kookaburra Creek” and moved into a stable on that property which had been converted into a home (36).  They established an orchard there of some 200 apricot trees and also planted an acre of vines (37).  They also ran cattle and sheep on both properties (44).  They extended the home themselves and made their existence there as self-sufficient as possible by harnessing solar and wind power and collecting rainwater (41-44). 

  18. In the year 2000, which of course was after the accident, Wolfe Bramberger became the owner of the Rocky Ridge property when his parents surrendered their interest to him upon moving to Victor Harbor (40).  He, the plaintiff and Lucas moved into the transportable home previously occupied by his parents on that property and were at the time of the trial living there (36). 

  19. I return to the chronology. 

  20. In February 1988, immediately following their marriage, the plaintiff, often together with her husband, worked for a number of wineries and growers in the Barossa Valley (32-109).  In the course of time she developed a wide range of skills which went beyond mere grape picking.  She became enthusiastic about the wine industry and winery work.  After working in several vineyards she settled down to working for the wine grower and wine maker C.A. Henschke & Co (“Henschke”).  By the early to mid 1990s her work there included not only picking in the vintage, but also pruning, disbudding and estimating yields (48, 53, 58, 59).  Wolfe Bramberger was also working for C.A. Henschke.  In 1992 he left to take up a job at Saltrams Winery at Angaston as a cellar hand (37).

  21. In October 1995 the plaintiff took up employment at Yalumba (ie S Smith & Son Pty Ltd) (62, 93).  She there performed amongst other work nursery work, which included grafting and dealing with rootlings which Yalumba sold to the world (93, 94, 95).  The records, namely the time books, indicate that the plaintiff worked an average of approximately 30 hours per week at Yalumba (see Exhibit P9 Time Books and see also Exhibit P6A).  During the time at Yalumba she completed a 12 week Wine Appreciation course at TAFE (102).  In February, March, April and May of 1996 whilst she as at Yalumba, she also did some causal vineyard work at Henschke’s (451, 452; see also Exhibit P9 at 49, 50).

  22. Despite the diversity of work at Yalumba the plaintiff said that she came to hanker after the work she previously did at Henschke’s and in mid 1997 she telephoned Prue Henschke and asked for her job back (100).  She was immediately received back there and picked up from where she had previously left off.  The records show that he plaintiff resumed work at Henschke’s on the 26th May 1997 (see Exhibit P9 Time Book at 51).

  23. So as at the time of the accident she was enthusiastically immersed in both the labouring work in the vineyard and the more technical work in the laboratory (101-110).

  24. In the period of approximately 18 months, from resuming work at Henschke’s on the 26th May 1997 to the time of the accident on the 22nd November 1998, the wage records indicate that the plaintiff worked approximately 30 hours per week (see Exhibits P6 and P9).  Further, her income taxation records disclose the following in the years leading up to the accident:

YEAR
ENDING 		SOURCE OF
INCOME 		GROSS TAXABLE TAX NETT
30/6/96 CA Henschke
S Smith & Son P/L 		$6,686.00
$11,954.00 		$18,640.00
30/6/97 S Smith & Son P/L
CA Henschke
KJ & J Grope 		$19,179.00
$1,949.00
$174.00

$21,128.00
30/6/98 CA Henschke $20,713.00 $20,459.00 $3,011.80 $17,447.20

(See Exhibit P8a)

  1. The above employment history and detail of earnings is an indicator of the dollar value of the plaintiff’s earning capacity as at the time of the accident.

    Accident and Aftermath

  2. The plaintiff was driving through Keyneton at about 45 kilometres an hour.  As previously indicated, the defendant failed to stop her vehicle at the “give-way” sign and “rolled” into the intersection into the path of the plaintiff’s vehicle.  The plaintiff jammed her feet on the clutch and brake and swerved to the right – to no avail.  The right hand wheel of the defendant’s vehicle struck the plaintiff’s vehicle on its left side.  At impact the plaintiff’s legs and arms were extended.  She said “... I just jammed my feet on the clutch and the brake strained on the steering wheel ... my arms were strained on impact ...”  Her right knee struck the dashboard area (110-113).  She said “... I impacted standing on the clutch ...” (443; see also 445).

  3. Despite the low speeds involved, it is clear that the plaintiff’s vehicle must have rapidly decelerated and there would have been considerable jolting on impact.  The knee striking the dashboard is testament to that.

  4. Immediately following the collision the plaintiff was assisted from her vehicle and helped to a nearby house where she was eventually attended to by an ambulance officer.  Amongst other things, he palpated the plaintiff’s neck and low back and, as a result, the plaintiff felt pain at those sites (114, 115).  She was taken to the Angaston Hospital, but not admitted (115). 

  5. The notes from the Accident and Emergency Department of the Angaston Hospital the day of the accident disclose, inter alia, complaints by the plaintiff of:

    ·sore neck;

    ·sore left side and arm;

    ·pain to right knee;

    ·pain to left shoulder; and

    ·pain to left posterior back.

    (See Exhibit P7 at 1)

  6. In evidence, the plaintiff said that overall she felt “stunned”.  Next day her right knee was painful and swollen (116).  She said her neck was stiff and not right (119, 120).  An x-ray taken the next day, namely the 23rd November 1999, disclosed a fracture of the patella of the right knee (see Exhibit P3).  On the 24th November Dr Hoff from the Angaston Medical Centre put the knee in plaster (124; see also Exhibit P7 at 6).  The knee remained in plaster until the 10th December 1998 (see Exhibit P7 at 6).

  7. By reason of her injuries, the plaintiff was unable to return to work in the ensuing weeks.  In that time, she endured neck pain and headaches and had “... a sore body ...” (128, 129).  She was scheduled to return to work on the 4th January 1999 (129, 130).

  8. Sometime in the first half of January 1999 the plaintiff returned to work at Henschke’s (143, 144).  She encountered difficulties which I summarise as follows:

    ·she started in January 1999 doing leaf measuring work with a viticulture trainee.  Despite the sedentary nature of the work, namely sitting in a vehicle and making notes, the plaintiff found that her neck played up “... a lot ...” (130, 402);

    ·vintage or picking began at Henschke’s in late February or early March 1999 and notwithstanding help provided to her by other workers the plaintiff experienced a range of problems including neck pain, headaches and vomiting such that she had to leave the workplace (145, 150, 402, 403);

    ·undertaking the less demanding vintage work of calculating yield estimates also caused the plaintiff extreme headaches (145, 146);

    ·pruning was in May/June of 1999 (404), it required bending, squatting and reaching.  Though she had difficulty pinpointing precisely which symptoms emerged in a disabling way, I accept that in the course of pruning she encountered:

    ·neck discomfort (150);

    ·shoulder pain (147);

    ·groin pain (405, 406);

    ·low back pain (409)

    ·left hip pain (410);

    ·the plaintiff recounted growing discomfort in her low back while sitting one day a week at TAFE in June and July 1999 in a viticulture course culminating in something “going pop” in her back whilst she was lifting a power take-off connection on a tractor (405, 406, 444).

    ·In September 1999 the plaintiff was pruning young vines, tying down and putting wires down, and in doing so suffered pain in the buttocks, groin, left hip and low back (405-410, 444, 445).

  9. The plaintiff persisted at work until October of 1999.  She could no longer continue (149, 150, 154, 158-160, 412).  Dr Joy Treasure certified her unfit to continue in the following terms:

    ... I can advise that it is inappropriate for Susan to perform vineyard duties (as in the course of her employment), because the performance of any of her duties aggravates her symptoms of neck pain, back pain, and (R) knee pain.  Susan has been referred to orthopaedic specialists Mr. George Potter (re spine), and Mr. Peter Lewis (re knee), and a further report could be provided after their assessments.

    Yours sincerely

    Dr. J Treasure

    17/11/1999

    (See Exhibit D5)

  10. As indicated in her letter, Dr Treasure by November 1999 had referred the plaintiff to:

    ·the orthopaedic surgeon Mr George Potter for evaluation of her spinal problems and in particular advice on the nature of her pain (see Exhibit P5 at 11); and

    ·the orthopaedic surgeon Dr Peter Lewis for advice in connection with her knee injury and later the left hip pain (see Exhibit P5 at 1 and 5).

  11. Later, in about September 2000, Dr Treasure referred the plaintiff to Dr Garry Clothier who is a specialist in Rehabilitation and Pain Medicine.  He effectively became the plaintiff’s treating specialist.  He saw the plaintiff some 18 times over the period from September 2000 when she first consulted him, to July 2006.  Amongst other treatment, Dr Clothier arranged for the plaintiff to have some four or five cortisone injections to each of the left shoulder and the left hip (253).

  1. Putting aside arguments about causation, there is no debate that by mid to late 1999 the plaintiff had the following physical injuries which have proven to be persistent and which have disabled her:

    ·a soft tissue injury to her cervical spine being an exacerbation of a pre-existing but dormant condition of her spine together with thoracic and lumbar injuries;

    ·a fracture to the patella of the right knee together with associated soft tissue injuries:

    ·a soft tissue injury to the left shoulder resulting in sub acromial bursitis and impingement; and

    ·injury to the left hip being a trochanteric bursitis or inflammation of the bursa over the bony prominence of the hip or the greater trochanter.

  2. The defendant, as mentioned, says the low back problem and the hip problem have nothing to do with the accident.

  3. Over the years since the accident, the plaintiff has pursued a range of both traditional and non-traditional treatments for her ailments, including acupuncture, chiropractic treatment, bursts of physiotherapy and hydrotherapy (152, 153, 170, 399).  So too she has taken and continues to take a range of prescription medications to address, inter alia, pain, headaches, vomiting, depressed mood and sleep deprivation (268, 169).

  4. As she attempted, without success, to deal with the pain and the consequential disruptions of her life, she developed psychiatric problems.  Here there is a dispute in the evidence.  The plaintiff’s case is that she developed a Pain Disorder (ie a disparity between the objective physical signs and the reported or claimed extent of disability) (308) and an Adjustment Disorder with Depressed and Anxious Mood (ie a condition where a stressful event so overwhelms a person’s coping mechanisms that they exhibit an array of psychiatric or psychological symptoms such as anxiety and or depression) (307).  The defendant accepts that the plaintiff suffered an Adjustment Disorder, but contends that at least by November 2006, when she was examined at the request of the defendant by the psychiatrist Dr Norman Rose, it has resolved.  As to the Pain Disorder, I note that Dr Rose, when he first assessed her in October 2000, found some evidence of “somatisation”.  Somatisation, as I understand it, is of the same family as a Pain Disorder, so perhaps the dispute is only as to whether the psychiatric illness has resolved (see Exhibit D3 at 33; see also 348-391). 

  5. The plaintiff’s lawyers, perhaps recognising the coping difficulties the plaintiff was experiencing, recommended she seek psychological help.

  6. Initially she consulted Mr Graham Killoran (164) but changed in 2003, again on the recommendation of her lawyer, to Ms Karen Heseltine.  The plaintiff has undergone some four sessions of cognitive therapy with Ms Heseltine which is designed to have the plaintiff come to terms with her pain and move on (216-222).  Ms Heseltine recommends further sessions in the future (227-232).

  7. The plaintiff herself said that since she stopped work her condition “... gradually got worse ...” (172).  Even nursing her first grandchild, who was born two weeks after the accident, would “... stirs my neck up ... my whole body just felt pain from my neck to my hip ...” (172).

  8. As at the time of the accident the plaintiff’s husband Wolfgang was working as a cellar hand at Saltrams Winery (584).  In May 2000 he set up the business Kookaburra Creek Tank Cleaning Services (583).  To do so, he reluctantly gave up his job at Saltrams.  He established the business because he and the plaintiff did not have enough money to make ends meet without the plaintiff’s salary (584, 597).  Mr Bramberger said that he hoped that his wife would be able to run the office, manage the books and do the administration work (584, 599).  However, it did not work out because, according to Mr Bramberger, the plaintiff “... couldn’t sit down for long periods ...” (584).  The plaintiff herself said she could not cope “... I was just a fizz.  I mucked it up ...” (201).  So the plaintiff ceased as a partner on the 1st July 2005 (202, 588).  The plaintiff’s drawings were a fiction.  She did not work for the partnership.  The plaintiff’s daughter, Melanie Geyer, and her husband and daughter moved to the Barossa Valley to help with the business (485).  The plaintiff’s son Lucas has replaced the plaintiff in the partnership (203) and Melanie continues to do the books and the administration work (203).

  9. The plaintiff’s disabilities have impacted on her home life.  She has been unable to attend to the household chores.  She is assisted by a cleaner, by her daughter Melanie (482-520) and by her husband (578-608).  She no longer attends to her personal fitness and, in particular, she neither walks for exercise nor attends the gymnasium with her workmate and neighbour Niluh Formby (523-545; 503).  Her physical relationship with her husband has deteriorated and she is emotionally flat.

  10. The above findings leave unresolved the causation issues and in particular what disabilities have been proven to have resulted from the collision and the impact of them on the plaintiff’s life.

  11. So I turn now to the causation and onus of proof issues and start by setting out the principles.

    Causation– Pre-existing conditions– Onus of Proof - Principles

  12. As to causation, the general onus, the plaintiff must show that the defendant, by her negligent driving, has caused these injuries.  Causation must be established on the balance of probabilities (see Hall v Foong[1]; Sellers v Adelaide Petroleum[2]).  In particular, what must be proved is that the neglect caused, or “materially contributed” to, the damage (see Bonnington Castings v Wardlaw[3]; Birkholz v RJ Gilbertson Pty Ltd[4]; Tubemakers of Australia Ltd v Fernandez[5]; Chance v Alcoa of Australia[6]). 

    [1] (1995) 65 SASR 281 per Debelle J at 301

    [2] (1994) 179 CLR 332 at 355

    [3] [1956] AC 613

    [4] (1985) 38 SASR 121 per King CJ at 130

    [5] (1976) 50 ALJR 720

    [6] [1990] Aust Torts Reports 67,619 (81-017)

  13. In respect of pre-existing conditions, the principles are clear.  The liability of the defendant is, of course, confined to the effects of the injury sustained in the accident.  Clearly such liability does not extend to disabilities which result from pre-existing conditions alone.  However, if a pre-existing condition is exacerbated by the effects of the subject collision, then it will be compensable to the extent of that exacerbation.  Nor is the defendant liable for disabilities which were inevitably going to arise irrespective of the accident.  Again, if the accident accelerated or made more certain the onset of these inevitably occurring disabilities then to that extent the defendant will be responsible (see Watts v Rake[7]; Purkess v Crittenden[8]). 

    [7] (1960) 108 CLR 158

    [8] (1965) 114 CLR 164

  14. As to who bears the onus of proof, Dixon CJ said at 160 in Watts v Rake (supra):

    But for the defendant it is answered, first that he was predisposed to many or at least some of the arthritic and other conditions which have so seriously and rapidly developed as a consequence of the accident considered at all events as a precipitating cause; second, that part of his present condition is traceable to causes other than the accident, and thirdly, that had there been no accident he would eventually and prematurely have been incapacitated by the seeds of disability within him. Now as to the first answer, it may at once be said that it is no answer. If the injury proves more serious in its incidents and its consequences because of the injured man's condition, that does nothing but increase the damages the defendant must pay. To sever the remaining leg of a one-legged man or put out the eye of a one-eyed man is to do a far more serious injury than it would have been had the injured man possessed two legs or two eyes. But for the seriousness of the injury the defendant must pay. As to the second and third of these answers, there is undoubtedly a presumptio hominis in the plaintiff's favour which any tribunal of fact should insist that the defendant should overcome. If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred. For myself I do not think that he has proved more than that at an earlier time than other men the plaintiff would have reached a stage of disability but not the same disability.

  15. Barwick CJ, Kitto and Taylor JJ at 168 in Purkess v Crittenden (supra) elaborated upon what Dixon CJ said:

    We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant.  In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial.  It was, we think, with the character and quality of the evidence required to displace a plaintiff’s prima facie case that Watts v. Rake (1960) 108 CLR 158 was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff’s present incapacity. On the contrary is was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant’s case or evidence extracted by cross-examination in the plaintiff’s case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant’s negligence.

  16. With those principles in mind I now turn to the evidence and arguments.

    Low back left hip injuries - Causation

  17. The defendant contends that the plaintiff has not established, on the balance of probabilities, that the negligent driving of the defendant has caused the low back and left hip pain.  In essence, the argument is based upon the late complaints and/or the late emergence of the symptoms – hip pain in June/July or September 1999 and low back pain in October 1999.  Further, the defendant claims to have proven that both conditions were caused by natural degeneration. 

  18. The plaintiff’s response is that the factual and medical opinion evidence has proven that both conditions resulted from the collision, or that enough has been proven to require the defendant to exclude the operation of the accident as a contributing cause, and the defendant has not done that. 

  19. I agree with the plaintiff’s contentions.  Adopting the words of Dixon CJ in Watts v Rake (supra), the defendant has not disentangled these two disabilities from those resulting from the collision and traced them to other causes.  Rather, I am satisfied on the evidence, both direct and circumstantial, that the accident “... materially contributed ...” to the onset of the left hip bursitis and the low back pain, at least to the extent of requiring the defendant to exclude the relationship and that has not been done.  In so concluding, I prefer the expert evidence of Dr Clothier.  As indicated, he has been treating the plaintiff on an intensive basis since September 2000 and his opinion fits in with the evidence of the plaintiff and her lay witnesses all of whom I accept.

  20. I set out hereunder my reasons for so concluding.  I start with the medical evidence.

  21. Dr Clothier was of the opinion that the left trochanteric bursitis was entirely related to the accident (see Exhibit P5 at 39 and 48; see also 251-281).  He related the buttock, groin and hip problems, which the plaintiff told him she encountered when she “... came out of plaster ...”, to the fact that she stood on the brake and clutch in the accident (251; see also plaintiff at 110-113 and 443, 445).  He described the mechanism of the condition in the following terms:

    Bursitis is a condition which develops in most cases slowly as a result of abnormal biomechanics over a period of time, so if you have got tightness or restriction in your buttock and hip muscles if you’re walking with a limp over a period of a number of months you will then develop bursitis as a secondary phenomena. Bursitis is the end result of the non-specific soft tissue injury which occurs in the first place or the abnormal biomechanics from walking, and so when I saw her two years later she had trochanteric bursitis as a result of the mechanisms that occurred in the early stages after her injury.

    (251, lines 20-31; see also 281)

  22. Dr Clothier said that the lower back pain was a result of “... overall general deconditioning from being out of the workforce, the effects of walking with a limp and the possibility that her initial buttock symptoms were indeed referred from the lower back ...” (see Exhibit P5 at 39, 40 and 49).

  23. Dr Clothier explained this deconditioning or loss of fitness in the following exchange:

    Q.Is it significant in your opinion that the back pain occurred so long after the accident.

    A.I’ve indicated in my previous reports that an explanation of that is just her general loss of fitness over the period of time since her accident because of the time she’s had off of work and her injuries, she then does activities which were normal for her and then develops back pain.

    (272)

  24. As to any delayed reporting, Dr Clothier said:

    A.I think that is a very relevant question and I think it is the sort of basis on which I came to my conclusion before, that the deconditioning and the reduced work and things like that have contributed to her having problems undertaking work which she had undertaken for a long period before without difficulties. In my experience, which is over nearly 20 years of seeing these sort of people all the time, her difficulties in the work environment 12 months later is not uncommon in people who have had multiple soft tissue injuries from whatever cause it is. So her presentation is consistent to what I observed going on with other patients.

    HIS HONOUR

    Q.For my purposes can you focus then on the relationship of the bursitis problem to the accident. The focus of the question was: are you more inclined to relate it to the accident than a developmental problem unrelated.

    A.Yes, I am more inclined to see it as a sequela of the accident. I see it so commonly, people who have had lower limb traumas six or 12 months later, they start getting bursitis.

    (281, lines 8-28)

  25. Finally, Dr Clothier said that the low back pain and the left hip bursitis are linked so if one is attributed to the collision then the other should follow (284).

  26. The contrary opinions of the Orthopaedic Surgeon Dr Peter Lewis and the Occupational Physician Dr Peter Kelly are that these two conditions are a result of natural degeneration or incidents unrelated to the subject collision.  No particular events are identified.  They relied on a lack of contemporaneous complaint and the absence of some causative traumatic event (see Lewis Exhibit P5 at 6; see also 85, 91, 618; see also Kelly Exhibit D1 at 1-19; see also 458).

  27. Dr Clothier’s view about the relationship of the two conditions to the accident is not predicated on a traumatic event such as the hip striking the interior of the vehicle at impact or there being some jolting of the lower back.  I consider that such would not be an unreasonable inference.  However, I do not need to go down that path.  The hip bursitis was a slowly developing condition and the low back pain emerged as a result of a combination of problems including, deconditioning, upon a return to full physical activity.  So neither a traumatic event nor a complaint following immediately after the accident are preconditions for the diagnosis.

  28. Further, in preferring Dr Clothier’s view, I note that neither Dr Lewis nor Dr Kelly were prepared to dismiss, out of hand, Dr Clothier’s opinion as to the origin of these two conditions.  Dr Lewis admits of “a small and tenuous possibility that the accident caused the hip bursitis” (620).  And likewise Dr Kelly accepted that Dr Clothier’s view as to the low back pain being related to the accident is “reasonable” given certain assumptions (473).  In particular, he said:

    “I think that’s all reasonable with the qualification that the deconditioning was tested at work, if I can put it in those terms; in other words, if she went back to work and was doing very, very little, then I would not expect deconditioning of its own per se to start giving problems.  But is she had the scenario that counsel points out and went back to work and was attempting to do some of the heavier duties at work, things like pruning, and lifting, and walking over difficult ground, then, yes, I do accept that if she add deconditioned, that’s when her symptoms may come to light in the low back.  I guess my interpretation of that, for what it’s worth,, would be that it’s the work – it’s the subsequent work that’s brought on the back problems, albeit there may be some reason from the motor vehicle accident that that was likely to occur, but I wouldn’t attribute that directly as a causation, an immediate causation, to the motor vehicle accident.  But I do accept that if she was back at work and attempting to undertake some reasonably physical duties, that that scenario is quite reasonable.

    (473, lines 3-22)

  29. The law does not require “direct” or “immediate” causation referred to by Dr Kelly.  The test for causation at law requires only that the accident “materially contribute” to the onset of the injury, so perhaps the difference is one of emphasis only.

  30. I turn to the lay evidence as to this topic.

  31. The following are my findings:

    ·For a decade prior to the accident the plaintiff had worked successfully at the physically demanding job of a vineyard hand (410).  She was fit and active and had no history of medical problems and, in particular, musculo-skeletal problems (292, 293). 

    ·There were early complaints of low back pain and left side soreness:

    ·       At the scene of the accident, the plaintiff complained of soreness when the ambulance officer palpated her low back, (114, 115).

    ·       At the Angaston Hospital, on the day of the accident, the plaintiff said that she told the doctor, inter alia, of tenderness “... in the base of her spine ...” (121, 123).

    ·       The records of the Accident and Emergency Department of the Angaston Hospital disclose a complaint by the plaintiff of, inter alia, “... sore left side and arm ...” and “... pain to the left posterior back ...” (see Exhibit P7 at 1).

    ·The plaintiff had, but did not specifically complain of, low back problems and hip problems to her local general medical practitioner until late in 1999, because, though she had constant pain from the time of the accident, her neck and her knee were the dominating problems (408, 412, 443).  Such a failure by an injured person to complain immediately of a particular injury which is not as painful as another is commonplace in cases involving multiple injuries, because the tendency is to focus on and seek attention for the more hurtful injuries (see Clothier 277, 278).

    ·Whilst the plaintiff did not challenge the suggestion that the complaints of low back and left hip pain did not surface in medical records and reports until after June 1999 (446, 447), she explained that it was not until later in 1999 that she truly engaged in any taxing work in the vineyard.  In particular, she said, in answer to the question that she did not complain of low back pain till 25th October 1999, as follows:

    Q.    Because, had there been back pain earlier, it is something you would have raised with your doctor.

    A.    The seasonal work, the jobs change, I didn’t have to bend until end of September – beginning of September actually when I was doing the young vines and the bending started and I ended up with a big lump at the base of my neck and I think that was my dominant pain.

    (443)

    ·When she first returned to work in about mid-January 1999 she engaged in the rather sedentary measuring work (130).  Then when vintage or picking started in February, March of 1999, she started to have difficulties.  Fellow workers helped her (145).  She reduced her hours to half time (145).  Then when pruning began in about May, June 1999 she did it but did not prune above her shoulders (146).

    ·She experienced pain in her hip and lower back when she was sitting in the classroom at the TAFE vineyard course in June or July of 1999 (444).

    ·By the time she was pruning young vines, tying down and putting wires down which she said occurred in late September 1999, she was then suffering with a range of problems such as pain in the buttocks, pain in the groin and left hip and lower back and these problems had grown sufficiently to make her complain particularly to Dr Clothier and seek treatment (405-410, 444, 445).

    ·The plaintiff related the same mix of symptoms, as she deposed to in evidence, to Dr Clothier in her first consultation with him on the 18th September 2000.  In cross-examination he recounted and explained her complaints in the following terms:

    Q.    Can I ask you, in relation to the lower back, the left buttock pain, that was her presenting symptom to you.

    A.    Yes.

    Q.    That symptom, what history did you take in relation to the onset of that symptom.

    A.    Yes, when she came out of the plaster and resumed driving, she had left groin and left buttock pain with putting her foot on the clutch.

    ....................

    A.    Yes. She was also reporting some degree of pain from the back which was radiating into the left buttock and all these pains were worse with walking a kilometre, particularly uphill, lifting her granddaughter, bending and pushing activities, so they were all affecting the buttock.

    Q.    This is the time that you were examining her.

    A.    That’s when I’m examining her and that’s her current symptoms at that time which is aggravating it. She first reported the buttock symptoms back when she started driving after the accident.

    Q.    That’s after the removal of the plaster of Paris.

    A.    Yes.

    Q.    So the only report of symptoms that you correlate to the lower back is the left buttock symptoms.

    A.    Say again.

    Q.    The only symptoms that you correlate to her lower back condition or her back injury are the left buttock symptoms.

    A.    Yes.

    Q.    There was no evidence of an early onset of lower back symptoms themselves.

    A.    She never reported that, no.

    Q.    Wouldn’t you expect some more localised pain in the lower back if it’s being referred to the buttock.

    A.    That happens in the majority of cases but I’ve certainly seen patients over the years that present with buttock and hip pain only which is eventually shown to be related to their back.

    Q.    Do I understand the buttock pain is referred pain.

    A.    I’m saying there may be a component of her buttock pain may have been referred pain, it may have been local muscular problems.

    Q.    If it’s more muscular localised problems in the left buttock itself, is that something that would lead to lower back pain down the track.

    A.    Yes.

    Q.    It’s possible, is it.

    A.    Yes, and in particular in her case when we’ve done the ultrasound which showed she had a tender piriformis, there has certainly been work that has shown the piriformis muscle can cause lower back pain and it has been published in books by Simon and Travell on myofascial pain showing the muscles in buttocks can cause back pain.

    (270, 272)

    ·A number of witnesses said, and I accept it was so, that the plaintiff was limping after the accident (see her daughter Melanie Geyer (500, 501), her neighbour and work colleague Niluh Formby (537, 545) and her workmate at Henschke’s, Fiona Koch (559, 567)).  Whilst Melanie Geyer and Niluh Formby accepted that it was some time after the accident that they noticed the limping (Geyer “after May 2000”, and Formby “... three years after the accident ...”), Fiona Koch was talking about the plaintiff “limping or favouring a leg” during the time the plaintiff had returned to work at Henschke’s.  So that must have been between mid-January and late October of 1999.

  1. So the above items of evidence, which I accept are established in fact, prove the factual history relied upon by Dr Clothier in arriving at his opinion.

    Conclusion as to causation in respect of low back and left hip

  2. The lay and medical evidence satisfies me that the plaintiff sustained multiple injuries in the accident, the most painful and immediately significant of which were the soft tissue injuries to her neck, left shoulder and the patella of the right knee.  These, of all her injuries, initially preoccupied both her and the treating medical practitioners.  Of less significance were soft tissue, muscular injuries in the buttock and groin area which were brought about by the plaintiff “standing on the clutch” in the collision.  In the months following the collision there was an initial period of immobility brought about by the right knee being in plaster.  She became to use the medical term “de-conditioned”.  There followed from mid-January 1999 a slow attempt by her to return to the full physical duties required of a vineyard worker.  She was also limping.  This escaped the attention of the medical practitioners, but not her friends, her daughter and, in particular, her work colleague Ms Fiona Koch.  There were also attendant biomechanical irregularities in posture and gait.  As a result of all this, by September and October 1999 the pain from the left hip bursitis and the low back pain had emerged to the extent that they were strong presenting problems.

  3. So I find that all the plaintiff’s current physical problems relate to the accident.  The finding that the low back and left hip pain is related to the collision is independent of those early hints in the records of “soreness in the left side” and “low back pain” which suggest, more directly, a link to the collision. 

  4. Before leaving this issue, I mention a matter which has perhaps small probative value, but nonetheless provides some circumstantial support for this conclusion.

  5. The defendant’s contention about this issue necessarily asks the Court to accept that following:

    ·a lifetime of good health and, in particular, no musculo-skeletal problems such as back pain;

    ·a decade of trouble free physical work as a vineyard hand; and

    ·an accident causing, inter alia, neck pain as a result of an exacerbation of a degenerative spinal condition and left shoulder pain caused by bursitis arising from soft tissue injuries to the shoulder;

    the plaintiff, by chance, within months of the said collision, has the misfortune to have visited on her, as a result of natural degeneration, two medical conditions which, again by chance, have similar characteristics to two of the major injuries caused by the accident; that is, spinal pain, this time in the low back, and pain caused by bursitis, this time in the left hip.

  6. In my view, the evidence, as I have indicated, simply does not support such a series of unlikely chance misfortunes.

  7. I turn to the other causation issues.

    Psychiatric conditions – Causation – Pre-existing susceptibility – inevitable emergence

  8. The defendant argued that the Court should accept Dr Norman Rose and therefore conclude that the plaintiff suffered from only an Adjustment Disorder from which she recovered. 

  9. The plaintiff’s case is that as a consequence of the collision she suffered an Adjustment Disorder and a Chronic Pain Disorder, which by themselves were, and continue to be, disabling conditions.  The psychiatrist Dr Dennis Prodea supported that view (see Exhibit P5 at 60; see also 305-346), as did the psychologist Ms Karen Heseltine (see Exhibit P5 at 51; see also 216-248).  However, Ms Heseltine’s view was that when she last saw the plaintiff, the plaintiff had improved to the extent that the dual diagnosis was not apposite, though she added the rider that the condition fluctuated and that further treatment was required to address it.

  10. Dr Norman Rose’s opinion was that the plaintiff had recovered from the Adjustment Disorder and the problem of “somatisation” by the occasion of her second consultation with him in November 2006 (see Exhibit D3 at 33; see also 348-391).  At the time he first saw the plaintiff, in October 2000, he considered that her psychiatric injuries did not prevent her from carrying full-time or part-time work.

  11. I prefer the more robust view of Dr Prodea because it seems to me from all the evidence that the plaintiff was still exhibiting the manifestations of both conditions.  In particular, she was still representing herself as in constant and severe pain and disabled from returning to most forms of work. 

  12. Further, there were the following faint suggestions in the examination of the medical witnesses:

    ·that, given the degenerative condition of the plaintiff’s spine and her intended career path in physical work, she was inevitably going to suffer with disabling back problems; and

    ·that, given the plaintiff’s dysfunctional and troubled upbringing, she was generally vulnerable to suffering psychological injury upon the occurrence of some stressful life event.

  13. These suggestions, rightly, did not reach beyond probing.  The plaintiff’s history of good mental and physical health made proving these prospects, to the degree necessary, impossible.  At best, they arguably arise in assessing the contingencies advantageous and disadvantageous when valuing, for instance, the economic consequences on the plaintiff of the effects of the collision.

    Residual Disabilities

  14. I set out a summary of my findings as to what disabilities have resulted from the accident.

  15. The collision and therefore the negligent driving of the defendant has caused the claimed physical and psychiatric injuries (see [30-42]).  The physical injuries are permanent and by themselves are disabling.  The plaintiff’s perception of her physical disabilities, as being severely disabling, is fuelled by the pain disorder.  Both the psychiatric conditions, the Adjustment and Pain Disorders, are amenable to the therapy treatment explained in the evidence of Dr Prodea and Ms Heseltine. 

  16. The right knee injury causes the knee to ache from time to time particularly when the plaintiff squats or kneels or walks for any appreciable distance on other than flat ground.  Walking, bending, stooping and standing all day such as is involved in vineyard work provokes the knee pain (208).  The left hip bursitis causes a throbbing pain which is “... pretty well constant ...” but which is worse upon activities such as standing, vacuuming, sweeping and sitting (209).  Spinal pain in the region of the neck, middle back and low back flares up when the plaintiff engages in physical activities such as lifting, carrying, standing or sitting immobile for any length of time.  It also flares up when the plaintiff engages in sexual activity (210).  The plaintiff sometimes has tingling in her fingers.  The plaintiff’s left shoulder aches and became particularly painful when she began pruning work at the time of her return to work.  Sitting at a computer and sitting immobile when travelling in a plane or car causes discomfort and pain (213). 

  17. I accept in particular that the plaintiff was driven from her work by the combined effect of all the injuries, physical and psychological.  They have impaired both her earning capacity and other aspects of her life, such as her ability to attend to and manage her household and attend to her relationships with her husband, wider family and friends. 

  18. In so concluding, I rely upon and accept the plaintiff’s evidence and that of her lay witnesses, of all whom have spoken convincingly of her deteriorating condition following the accident. 

  19. To the extent that the plaintiff’s incapacity for work is, properly, a question to be answered by expert medical testimony I indicate that I rely upon the evidence of Dr Clothier.  He regarded the plaintiff’s physical disabilities alone as precluding her from working as a vineyard hand (257; 634; see also Exhibit P5 at 49). 

  20. I now turn to the assessment of the plaintiff’s damages.

    Assessment

    Non-economic loss – Pain and Suffering

  21. As indicated, this action is subject to the now repealed provisions in s35A of the Wrongs Act 1936 (SA).  The plaintiff clearly qualifies for damages for non-economic loss because her “... ability to lead a normal life was significantly impaired by the injury for at least seven days ...” (see s35A(1)(a)(i)).  The applicable “prescribed sum” is $1530 (see s35A(1)(b)(i) and (ii)).  So, a numerical value of between 0 and 60 is to be chosen, by reference to the severity of the plaintiff’s injuries and their effect on her life, and then it is to be multiplied by the prescribed sum.

  22. It is now almost 10 years since the accident.  The multiple injuries have driven the plaintiff from her prized vineyard work and the career path she had embarked upon in that industry.  So too, as indicated, the injuries have impaired the other aspects of her life, in particular, the self-sufficient country lifestyle she and her husband had in place.

  23. There is some prospect of recovery from the psychiatric conditions and therefore some consequential improvement in her ability to cope with the physical injuries.  But the physical injuries by themselves are permanent and disabling and there is no realistic prospect that she will pick up where she left off in the wine industry.  So too, on a diminishing basis she will require medication and bursts of treatment.

  24. In my view, the appropriate numerical value is 18.  Accordingly, the allowance for damages for past and future non-economic loss is $27,540.

  25. There is no interest entitlement on that loss (see s35A(1)(k)).

    Past economic loss – Past Loss of Earning Capacity

  26. The guiding principles for the assessment of this heading of loss are clear.  The requirement for both past and future economic loss is that the Court fix a sum which is reasonable recompense for the plaintiff’s lost or impaired earning capacity to the extent that the loss or impairment has been, in the case of past loss, and will be in the case of future, productive of pecuniary loss (see Graham v Baker[9]; Mann v Ellbourn[10]; Medlin v SGIC[11]; Husher v Husher[12]).  As indicated, the injuries resulting from the accident have rendered her unfit for work as a vineyard hand and other work.  She did return to work “sometime in the first half of January 1999”, but despite accommodations extended to her by her employer and workmates she was unable to persist and left in October or November of 1999. 

    [9] (1961) 106 CLR 340 at 351

    [10] (1974) 8 SASR 298

    [11] (1995) 182 CLR 1

    [12] (1999) 197 CLR 138 at 142-143

  27. I turn to the calculation.

  28. As indicated, after a stint of work at Yalumba, the plaintiff returned to work at Henschke’s on the 26th May 1997 and worked there for some 18 months until the accident.  The wage records and time books indicate that in that 78 week period (ie from week ending 29th May to 19th November 1998), she worked an average of 29.3 hours per week) (see Exhibits P9 and P6(B)).  Drawing on those records, together with the applicable Income Tax Rates, counsel placed before me the following schedule, which indicated a net loss of income, to the 29th January 2007 (ie the trial of this action), of $176,870.  This final figure took into account, by deducting it, what the plaintiff actually earned during her unsuccessful attempt to return to work. 



Financial year or part of financial year

 Period in financial year Weeks in period Assumed average hours worked per week over whole year had injury not occurred Total hours that would have been worked in period had injury not occurred (averaged over full year) Henschke hourly rate relative to period in column B (casual workers) Gross Projected earnings in period (assuming injury had not occurred) (E x F) (Whole dollars) Total Gross Projected Earnings for period (Whole dollars) Tax Payable on Gross Earnings Net Earnings after tax
23/11/98 – 30/06/99 23/11/98-25/2/99 13.42 29.34 393.74 14.12 5559
26/2/99-30/6/99 17.71 29.34 519.61 15.25 7924 13483 1616 11867
FYE 2000 1/7/99-18/2/00 33.29 29.34 976.72 15.25 14894
19/2/00-30/6/00 18.71 29.34 548.95 15.68 8607 23501 4012 19489
FYE 2001 1/7/00-9/2/01 32.29 29.34 947.38 15.68 14854
10/2/01-30/6/01 20 29.34 586.8 16.69 9793 24647 3774 20873
FYE 2002 1/7/01-7/3/02 35.71 29.34 1047.73 16.69 17486
8/3/02-30/6/02 16.43 29.34 482.05 17.32 8349 25835 4130 21704
FYE 2003 1/7/02-21/2/03 33.71 29.34 989.05 17.32 17130
22/2/03-30/6/03 18.43 29.34 540.73 18.01 9589 26719 4395 22324
FYE 2004 1/7/03-21/2/04 33.86 29.34 993.45 18.01 17892
22/2/04-30/6/04 18.43 29.34 540.73 18.67 10095 27987 4568 23419
FYE 2005 1/7/04-3/2/05 31.14 29.34 913.64 18.67 17057
3/2/05-30/6/05 21 29.34 616.14 18.61 11466 28523 4728 23795
FYE 2006 1/7/05-17/2/06 33.14 29.34 972.32 18.61 18094
18/2/06-30/6/06 18.71 29.34 548.95 19.25 10567 28661 4458 24203
1/07/06 – 29/01/07 1/7/06-29/1/07 30.43 29.34 892.81 19.25 17186 17186 2708 14477
TOTALS 426.41 12510.8 216542 216542 34389 182151
Less earned 23/11/98-30/6/99 31.5 $6,281 1000 5281
Net loss 176870

  1. The above calculation needs to be extrapolated to the date of this judgment, namely Wednesday the 30th April 2008.  So the following should be added to the calculation.  In these additional figures I have assumed an unchanged hourly rate of $19.25 (see Exhibit P10) and Income Tax payable of 15.75% of gross earnings, as indicated in the above schedule. 

Period Weeks in period Total hours that would have been worked at 29.34 hours per week Gross Earnings at $19.25 per hour Net Earnings after Income Tax at 15.75%
30/01/07 – 30/04/08 65 1907.10 $36,712 $30,930

  1. So subject to discounting the indicative net loss of past earnings is $207,800. 

  2. The question which now arises is what, if any, adjustments upward or downward should be made? 

  3. Any allowance for economic loss, whether it be for past or future, is effectively a valuation of what the plaintiff would have earned but for the accident.  It is a valuation of a chance.  An account must be taken of the factors thrown up by the evidence which affect the value.  The exercise is easier for the past than for the future, because more is known, but it essentially the same exercise.

  4. Often events such as whether or not the plaintiff would have remained in employment and advanced herself, had the accident not happened, are not events which can be proved as fact.  All that can be done is to reflect the prospect or degree of probability that some or all such events might have come to pass in the valuation exercise (see Malec v JC Hutton Pty Ltd[13]; Commonwealth v Amann Aviation Pty Ltd[14]; Luntz Assessment of Damages[15]).

    [13] (1990) 169 CLR 638 at 542-3

    [14] (1991) 174 CLR 64 per Deane J at 118-119

    [15]   4th Ed. pp94-101

  5. There is no presumption in favour of discounting on the basis that the advantageous contingencies of life are inevitably outweighed by the disadvantageous (see Bresatz v Przibilla[16]; Campbell v Nangle[17]; Fitzgerald v Goonan[18]; Beare v Slattery[19]).  Whether or not there is to be any discounting or uplifting and the extent of it is to be determined by evidence.

    [16] (1962) 108 CLR 541 per Windeyer J at 543

    [17] (1985) 40 SASR 180 per King CJ at 186, 187

    [18] [2000] SASC 332

    [19] (2000) 218 LSJS 338 per Gray J at [18]

  6. So in this case should there be a discount for the negative contingencies such as illness, lack of continuity of work and non-compensable disabling accidents? 

  7. In arriving at the above figure, that is the $207,800, there were a number of favourable assumptions made about those matters, namely that the plaintiff would have:

    ·maintained employment at Henschke’s or some other like winery;

    ·remained fit and well; and

    ·sustained no disabling non-compensable injuries.

  8. Counsel for the plaintiff argued that the evidence required an “uplift” of 15% and pointed to a number of positive indications.  The evidence indicated, inter alia, that the plaintiff:

    ·was enthusiastic, knowledgeable and well regarded (see Koch 546-570; see also Formby 523-545);

    ·whilst at Yalumba undertook herself a Wine Appreciation course (102);

    ·planned to undertake a viticulture course by correspondence at Wagga Wagga University (61);

    ·was aiming at a supervisory position such as Assistant Vineyard Manager whose salary was $50,000 gross per annum (see Koch and Formby); and

    ·was fit, healthy and competitive (Koch 553).

  9. The evidence convinces me that the prospects were that the plaintiff would have advanced in the wine industry in the decade which has all but elapsed since the accident.  I consider that, like her friend Niluh Formby, she would have risen to a full-time permanent position and be exercising some supervisory role.  Accordingly, I see no basis for discounting.  The adverse contingencies are balanced by the prospect that the plaintiff would have so advanced.  So I consider the sum of $207,800 remains a reasonable valuation of what the plaintiff would have earned.  I therefore fix $207,800 as the plaintiff’s past loss.

    Interest

  10. The plaintiff is entitled to interest on this past economic loss (see s39 of the District Court Act 1991).  The period of the calculation is from the date of the accident, when the liability to compensate arose, to the present time, say 9.4 years.  The resultant sum should be discounted by half to account for the accumulation of the loss over the period.  The interest rate would have varied over the period but it is agreed that the appropriate rate is 6.5% (678, 712).  Accordingly, the calculation (ie $207,800 x 6.5% per annum x 9.4 years ÷ 2), results in an allowance for interest of $63,483.

  11. Before leaving this heading of loss I mention that I see no need to bring to account the drawings allocated to the plaintiff from the partnership business, Kookaburra Tank Cleaning Services.  Those drawings were, as I have pointed out, a fiction.  The plaintiff did not work for the partnership (see Husher v Husher (supra)).  I now turn to the allowance for future economic loss.

  12. I now turn to the allowance for damages for future economic loss.

    Future Economic Loss – Future Loss of Earning Capacity

  13. The exercise here is to assess the present value of the plaintiff’s future earnings as if the accident had not happened.  One method of quantifying this loss is, to arrive at a net weekly loss in dollar terms and then, calculate the present value of that loss for the plaintiff’s future working life by making an actuarial calculation allowing for the advantageous and disadvantageous contingencies of life.  I turn to that exercise.

  14. Relying on the evidence generally, the Award (Exhibit P12), the hourly rates letter from C.A. Henschke & Co (Exhibit P10), and the Australian Taxation Office Individual Income Tax Rates, counsel for the plaintiff contended that, but for the accident, the plaintiff’s earnings would have been within the following range:

    ·Low End.  On the basis that the plaintiff was still only working 29 hours per week, she would now earning $480.21 net per week;

    ·Middle.  On the basis that the plaintiff had advanced to the position of supervising in excess of 20 people in the vineyard and therefore was entitled to a loading of $46.10 per week, she would be earning $512.48 net per week.

    ·High End.  On the basis that the plaintiff had advanced to Assistant Vineyard Manager at a gross salary of $50,000 she would be earning $762.50 net per week. 

  1. As I indicated in reaching the allowance of past loss, I consider that, had the collision not occurred the prospects are that the plaintiff, like her friend and work colleague Niluh Formby, would have reached a supervisory position with either C.A. Henschke & Co or some other winery.  She was, at the time of the accident, “ahead” of Ms Formby.  Ms Formby was, at the time of giving her evidence “permanent full-time” and in receipt of a salary of $50,000 gross per annum, that is $762.50 net per week, from Yalumba (529).  The plaintiff had made herself knowledgeable and proficient, and was keen, ambitious and well regarded.  So the “low end”, which has the plaintiff effectively marking time for almost 10 years, is not indicated.

  2. I consider that the suggested middle course is the best indicator of the present dollar value of the plaintiff’s lost earning capacity.  I think therefore, a not unreasonable net weekly loss figure is $512.

  3. I now turn to the actuarial tables.  The two annuities, which would produce a payment of a dollar a week to the plaintiff using the prescribed discount rate of 5%, (see s35A(1)(e) and (6)), the annuities to cease respectively upon the plaintiff attaining the ages of 65 and 70, are $468 and $587 (see Certificate Exhibit P11).  Though the plaintiff has had two birthdays since the provision of the Certificate, I do not expect the variation to be overly significant.  So the application of the weekly loss to the annuity produces the following capitalised sums:

Net Weekly Loss To age 65 To age 70
$512 $239,616 $300,544

  1. It is contended that the plaintiff would have worked to the age of 70.  I consider that, given the physically demanding nature of vineyard hand work and the extremes of weather, the more realistic prospects are that a person in the plaintiff’s situation would probably stop such work at 65 years of age.  So the capitalised sum or the present lump sum value of the plaintiff’s future loss, subject to discounting, is $239,616.

  2. I turn again to the question of discounting.

  3. I have dealt with the applicable principles under the heading of past economic loss and so I will not repeat them again.  In choosing the weekly loss figure I shrank from assuming that the plaintiff would have achieved all she wanted.  She may have.  It is a possibility and therefore an advantageous contingency which should be put on one side of the scales with those other positive matters mentioned in the context of the assessment of past loss.  Put in the scales on the negative side with the usual adverse matters, of illness, unemployment and non-compensable accident, is the fact that the plaintiff came to the accident with a vulnerable asymptomatic degenerative spine and a susceptibility to psychological injury by reason of her troubled past.  Further, if the psychiatric conditions improve, then the plaintiff will be able to manage some work.  I agree with counsel for the plaintiff that Dr Prodea’s prognosis was tentative and guarded.  However, it remains a prospect.  In having regard to this prospect, however, I am mindful of Stephen J’s oft quoted comments in Wade v Allsopp[20]:

    ... The process of selecting one from a number of applicants for employment is, on each occasion, on all or nothing affair in which the applicant with diminished capacity may each time be wholly unsuccessful ...

    [20] (1976) 10 ALR 353

  4. I consider that a discount of 35% is appropriate.

  5. Applying a 35% discount results in a reduction of the capitalised sum or notional allowance for future loss to $155,750. 

  6. I was urged to consider approaching the assessment of this heading of loss by reference to a percentage loss of work capacity (see Murray v Dawson[21]; Dessent v The Commonwealth[22]; Carson v Knott[23]).  The problem with that approach in this case is that I have not concluded that it has been established that the plaintiff has any residual earning capacity.  She may have.  Any such capacity is contingent upon, inter alia, the success of the therapy treatment recommended by both Dr Prodea and Ms Heseltine.  I consider that the plaintiff is presently incapable of work but she may recover sufficiently to do some.  It is therefore more appropriate to reflect that prospect as a contingency as I have done.

    [21] (1996) 24 MVR 244 per Lander J at 252, 253

    [22] (1977) 13 ALR 437

    [23] [1999] SASC 71

  7. In the end, the plaintiff is to be awarded a sum which is reasonable compensation for her future loss of earnings.  The single calculation I have done is indicative only. However, bearing all the circumstances of the case in mind, I do allow $155,750 for the present value of the plaintiff’s future economic loss.

  8. This heading of loss attracts no interest (see s35A(1)(k)). 

  9. I now turn to the claim for loss of superannuation benefits.

    Loss of past superannuation benefits

  10. There was little resistance to the articulation of this claim.  It is accepted that in accordance with the provisions of the Superannuation Guarantee Charge Act 1992 and the Superannuation Guarantee (Administration) Act 1992, superannuation is paid on the basis of gross wages at the rate of 7% of gross earnings for the period 1st July 1998 to the 30th June 2000 and then at 8% to the 30th June 2002 and thereafter at 9%.  I accept the plaintiff’s counsel’s submission about this and I award a loss of past superannuation benefits in the sum of $20,780 (ie 10% of $207,800).

    Loss of Future Superannuation Benefits

  11. Again, there is little disagreement that this allowance should be 11% of the assessed damages for future economic loss which is $17,133 (ie 11% of $155,750).

    Past Medical Expenses or Special Damages

  12. Special Damages have been agreed at $7,953.90 of which $6,556.30 has been paid by the plaintiff (see Exhibit P14).  Accordingly, I allow the sum of $7,954 for special damages.

    Interest on Past Paid Medical Expenses or Special Damages

  13. The plaintiff is entitled to interest on the paid special Damages, namely $6,556.30.  I fix interest at $2,003 (ie $6,556.30 x 6.5% x 9.4 years ÷ 2).

    Future Medical Expenses or Special Damages

  14. In my view despite the careful documented final submission of plaintiff’s counsel, there is little realistic prospect of knee surgery and I decline any allowance for it.  Dr Lewis considered that it would be unlikely that an arthroscopy would be required and he agreed that a knee replacement was “not indicated here” (89, 90). 

  15. Under this heading the plaintiff’s counsel presented the following table indicating the total weekly cost of what, he aptly described as “recurrent treatments.

PROVIDER/TREATMENT COST PER ITEM ITEMS PER YEAR COST PER YEAR` WEEKLY COST
Consults with general practitioners (flare ups and prescription renewals) $45.00 6 $270.00 $5.19
Physiotherapy $37.85 6 $227.10 $4.36
Cognitive Therapy $156.00 6 $936.00 $18.00
Psychotherapy $255 6 $1530.00 $29.42
Specialist reviews $99 2 $198.00 $3.80
Medication $260. $5.00
Totals $65.77

  1. I do not accept all of that.  The psychologist, Ms Heseltine, recommends cognitive therapy and the psychiatrist, Dr Prodea, recommends psychotherapy.  One or other is reasonable, but not both.  Further, I consider that when the focus on the plaintiff’s disabilities is shifted, as will now happen, she will begin to cope better with the pain and reliance on medical and paramedical treatments will lessen.  The plaintiff is entitled to reasonable compensation as opposed to what is sometimes referred to as “Rolls Royce” treatment (see Beasley v Marshall (No. 1)[24]).  So I consider $65.77 per week into the future is excessive.  I decline to make any actuarial calculations for this heading of loss.  Rather, I allow $15,000 as the present value of this future loss.

    [24] (1986) 40 SASR 544

    Past Paid and Voluntary Services

  2. The plaintiff engaged the services of a housekeeper from about April 2005 and additionally she has had the voluntary help of her daughter Melanie and her husband with domestic chores.

  3. The formulated claim of the plaintiff under this heading is in excess of $75,000.  I do not accept that the level of assistance provided was “needed” in the sense required.  In Garland v Clifford[25] Lander J at 58 said:

    It is the respondent who is to be compensated for the need which was occasioned by the injuries which in turn were occasioned by the negligence of the appellant. Moreover the compensation does not arise because of the substitution for the parents' care for the care of the experts, or because the provision of care saves moneys. It arises by reason of the need for assistance.

    (The italics are mine.)

    [25] (1996) 67 SASR 47

  4. I consider that though disabled, the plaintiff could manage, albeit with difficulty a lot of the tasks carried out by her husband and daughter.  The medical and psychiatric evidence does not support a total inability to carry out some of the ordinary tasks performed for her. 

  5. I will allow the sum of $25,000 for both the gratuitous and past paid services.

    Interest on Past Paid and Voluntary Services

  6. The plaintiff is entitled to interest in respect of this heading of loss.  I allow interest at $7,638 (ie $25,000 x 6.5% per annum x 9.4 years ÷ 2).

    Future Paid and Voluntary Services

  7. In respect of future services both paid and gratuitous I repeat what I have said above about “need” and the fact that the plaintiff will cope better with her lot in the future and so do more about the house.  I allow $10,000 as the present value of this future loss.

    Summary of Assessment

    Non-economic Loss – Pain and Suffering

    (prescribed sum $1530 numerical value 18)  27,540

    Economic Loss – Loss of Earnings

    Past  207,800
    Interest on Past  63,483
    Future  155,750

    Loss of Superannuation Benefit

    Past  20,780
    Future  17,133

    Medical Expenses or Special Damages

    Past  7,954
    Interest on Past Paid  2,003
    Future  15,000

    Paid and Voluntary Services

    Past  25,000
    Interest on Past  7,638
    Future  10,000

    TOTAL  560,081

  8. Accordingly, there will be judgment for the plaintiff against the defendant for $560,081 which sum includes interest.

  9. I will hear the parties as to costs.


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