Brocx v Mounsey - [2009] WADC 113

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BROCX -v- MOUNSEY [2009] WADC 113

CORAM: KEEN DCJ

HEARD: 30-31 MARCH; 1, 2, 3, 6, 7, 8, 9 APRIL & 23 JULY 2009

DELIVERED : 7 AUGUST 2009

FILE NO/S: CIV 600 of 2007

BETWEEN: MARGARET BROCX
Plaintiff
AND
ROBERT MEAKINS MOUNSEY
Defendant

Catchwords:

Damages - Personal injuries - Causation - Loss of earning capacity - Future prospects - Turns on own facts

Legislation:

Nil

Result:

Plaintiff's claim succeeds - damages awarded

Representation:

Counsel:

Plaintiff: Mr J G Staude
Defendant: Mr R Sands

Solicitors:

Plaintiff: Bruce Havilah & Associates
Defendant: Talbot Olivier

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

Black v Motor Vehicle Insurance Trust (1986) WAR 32
Bresatz v Przibilla (1962) 108 CLR 541
Chappel v Hart (1998) 195 CLR 232
Dykstra v Head (1989) Aust Torts Reports 80‑280
Foster v Tyne and Wear County Council [1986] 1 All ER 567
Gardner Bros & Perrott (WA) Pty Ltd v Seat, unreported; FCt SCt of WA; BC8800929; 13 October 1988
Graham v Baker (1961) 106 CLR 340
Henville v Walker (2001) 206 CLR 459
Herring v Ministry of Defence [2004] 1 All ER 44
Hillstead v R [2005] WASCA 116
Jongen v CSR Ltd (1992) Aust Torts Reps 81-192
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Naxakis v Western General Hospital (1999) 197 CLR 269
Poseidon Ltd & Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Setton v Eves [2006] WASCA 3
Shorey v PT Ltd [2003] HCA 27
State of New South Wales v Moss (2000) 54 NSWLR 536
Villasevil v Pickering [2001] WASCA 143
Wade v Allsopp (1976) 50 ALJR 643
Watts v Rake (1960) 108 CLR 158

KEEN DCJ: The plaintiff's claim arises out of a motor vehicle accident sustained by her on 3 May 2001. Liability in this matter is not in dispute and the case becomes one for the assessment of damages only.
By her statement of claim the plaintiff alleges that she sustained injuries to her sternum, both knees, abdomen, cervicothoracic spine and lumbar spine and a number of symptoms arising out of those initial injuries. The statement of claim is otherwise in standard form setting out details of the medical and other treatment received and expected to be received in the future by the plaintiff and also includes a claim for domestic assistance and loss of earning capacity.
By its defence, the defendant admits liability for the accident but denies the injuries, treatment and resultant disabilities and loss of earning capacity alleged by the plaintiff. The defendant alleges that if the plaintiff has sustained any loss or damage then that loss or damage has been wholly caused or significantly contributed to by pre‑existing symptoms, conditions or a previous accident. These are all matters that are set out in par 4 of the defence.
As a result the issues in this matter can be distilled to a question of what injuries were sustained by the plaintiff in this accident and what loss and damage has arisen from that accident and how it has impacted upon her life and working capacity. Arising out of that is the issue raised by the defence as to whether any of the loss or damage was caused by or significantly contributed to by those pre‑existing symptoms alleged, conditions or the previous accident.

The plaintiff

Personal matters

The plaintiff tendered as Exhibit 3 a chronology of relevant events. The plaintiff in her evidence confirmed that chronology to be accurate.
From that chronology it can be seen that the plaintiff was born on 7 November 1955. In 1974 she married Robert Arthur Franklyn and on 12 April 1979 gave birth to her daughter Alyssa (now Melissa Woodridge). The plaintiff separated (and presumably later was divorced) from her husband Robert Franklyn in 1988.
On 3 May 1993 the plaintiff married John Hughes. On 5 April 1994 she gave birth to a son Kieran and on 2 April 1996 gave birth to her second son Jean‑Luc. In September 2000 the plaintiff separated from her husband John Hughes and moved to Perth. She was divorced but it is not clear when. She said that her "marital matters" were formally settled by December 2001.

The plaintiff's education

The plaintiff was educated at Kent Street High School until September 1971. She left school at age 16.
In 1972 the plaintiff commenced part-time studies at TAFE Mt Lawley for a Certificate in Applied Science. The following year she returned to full‑time studies at Mt Lawley TAFE.
In 1980 after the birth of her daughter the plaintiff resumed her studies. In 1987 she completed her Certificate of Applied Science.
In 1988 the plaintiff undertook further studies at Fremantle and Mt Lawley TAFE to secure a Diploma in Applied Science which she completed in 1990. The following year (1991) she commenced a degree in bio‑technology at Murdoch University on a part-time basis.
In 1992 she was awarded her Associate Diploma in Applied Sciences.
By 1999 the plaintiff had completed her Bachelor of Science at the Murdoch University and in the same year applied to that university for part‑time Honours study in geo‑heritage. She commenced that study in 2000 being the same year that she graduated with her Bachelor of Science degree.
In July 2000 she suspended her part‑time Honours course for 12 months.
In February 2003 the plaintiff completed her Honours degree (in December 2008 the WA Museum published her book arising from her Honours thesis on geo‑heritage).
In 2004 she successfully applied for a Murdoch University women's post‑graduate research scholarship to do her PhD in environmental science to build upon her Honours work in geo‑heritage. On 1 April 2005 she commenced her part‑time studies under that scholarship. She has not completed this work.
In January 2006 the plaintiff enrolled in a Graduate Certificate in Natural Resource Management at UWA but suspended those studies in February 2006 after she had further problems with her right knee to which reference will be made later in these reasons. She withdrew from those studies in September 2006.

The plaintiff's work experience

Upon leaving Kent Street Senior High School at age 16 the plaintiff obtained work as a laboratory assistant for a company, Inman & Farrell. The work involved carrying out analyses and testing of foods for preservatives and colorants. She resigned from this work when she commenced her part‑time studies at TAFE, Mt Lawley.
After marrying Mr Franklyn the plaintiff worked in the Lake Biddy general store, a JD Hamburger store in Perth and at GJ Coles in Katanning as an office girl.
She and her husband established the Katanning Pet and Aquarium Shop.
In 1977 she obtained the position of laboratory assistant at Katanning Senior High School.
The plaintiff and her husband left Katanning and bought a property at Kelmscott and established a tropical fish quarantine station and fish farm.
In May 1979 she commenced part‑time work in a telemarketing company and in September the same year obtained a full‑time job as a research assistant at Murdoch University in the Department of Biology. In 1982 her position was upgraded to that of research technician.
In 1985, whilst engaged in this work, she co‑authored a work at the university which was published in the Journal of General Microbiology. She co‑authored other works with professors on scientific matters between 1987 and 1988.
In 1988 the plaintiff joined the Department of Biotechnology at Murdoch University as a laboratory technician and course coordinator.
In 1991 she co‑authored another scientific work before resigning as an employee of Murdoch University in 1992 to commence her full‑time studies at the university in 1993.
In March 1993 she commenced working full‑time at the Wrest Point Caravan Park in Walpole. This was a family business of her second husband John Hughes.
In November 1994 she was appointed coordinator of the Walpole Telecentre and in that same year chairperson of the Shire of Manjimup subcommittee called the Walpole and Nornalup Inlet and Systems Advice Committee (WANSIAC). She also in that year became involved in the Walpole Tourist Bureau.
At the caravan park, in 1995 she was involved in the design and building of an upper extension to the office and shop to produce accommodation.
In 1997 the plaintiff was appointed by the Water and Rivers Commission to the South Coast Regional Assessment Panel for the Natural Heritage Trust. That appointment was renewed in 1998.
In November 1998 she returned to Walpole to work in the family business at the caravan park and became an executive member of the Wetlands Research Association Incorporated.
In this period, that is to say approximately 1999, she also co‑authored another scientific work in relation to waste management and produced another work in relation to waste stream audit and technology for the Shire of Bridgetown‑Greenbushes.
In 1999 she was involved in the Warren Districts Renewable Energy Group and authored another scientific work entitled "A Window of Opportunity for Sustainable Development using Waste to Energy Technology".
In April 2000 the plaintiff commenced working on a project in Tasmania called the Heybridge Project. I will have more to say about this in due course. At this stage all that is necessary for me to note is that it was work of a scientific nature testing to see whether or not effluent was contaminated or not.
Apart from this she also carried out some geo‑heritage work in the Pilbara area. This was work given to her by the V & C Semeniuk Research Group (VCSRG), about which more will be said later. This work in the Pilbara involved visiting the area for two weeks and writing a report for the VCSRG.
Since the accident, the subject of these proceedings, the plaintiff has carried out some work of an administrative and other nature for the VCSRG as well as working for Frank Hough MP and more recently casual lecturing at Challenger TAFE.

The plaintiff's medical history and past accidents

The plaintiff's medical history reveals that as a 5 or 7 year‑old she had problems with her left knee, described as osteochondritis dissecans, which required surgery. According to a report of Mr Barrie Slinger (spinal surgeon) dated 28 February 2002 she also had problems with her lumbar spine for which she had physiotherapy from time to time.
The plaintiff was involved in another motor vehicle accident on 28 January 1993. She attended the Denmark Medical Centre. The notes of the medical centre were admitted into evidence by consent and form part of the defendant's Exhibit 2.
Those notes reveal that the plaintiff attended the medical centre in respect of this accident on 3 February 1993in relation to a left knee injury. She continued to see the doctor at the centre and the notes reveal "resolving injuries".
The notes also reveal that on 24 March 1993 she attended the doctor at the centre for back pain and memory lapse complaining of being preoccupied, feeling tired and lethargic and forgetful.
By 14 May 1993 there is an entry in respect of her knee and a note that she was placed on Prothiaden.
The notes reveal also that on 15 September 1993 she was referred to a Dr Wright in respect of her knee pathology. It was also noted that there was some neck pathology as well. She underwent surgery on her knee.
The medical notes of the Hatherley Medical Centre were also tendered by the defence by consent. Those notes reveal that on 15 June 1999 the plaintiff had presented with four episodes of right‑sided weakness over a period of about two years, right‑sided body aches, headaches, putting on weight, stiffness in the back and knee and being concerned about lead levels in the water supply in Walpole. The notes report that on that day she looked stressed, but she denied this. Under cross‑examination Dr Lipscombe from the Hatherley Medical Centre said that his conclusion was that the cause of the symptoms noted in his notes on 15 June 1999 was stress related.
The following day it was noted that she said that she felt generally tired, was waking frequently and that she had anxiety some seven to eight years previously and took Prothiaden which was prescribed for her.
The plaintiff was referred by Dr Lipscombe to Dr Graeme Stewart, physician, whose report of 20 July 1999 was tendered into evidence as part of the plaintiff's bundle of documents. That noted her concerns of tiredness, sore throat and tiredness on the right side of her body, fatigue and feeling run down and unwell. Dr Stewart noted that she had suffered from depression and anxiety in the past. It was said that her depression was triggered by a painful divorce some six years previously. Dr Stewart opined that most of the symptoms were due to anxiety and depression and the fatigue on the right side could be related to migraine but he suspected more to anxiety and was just functional. He also opined that chronic stress over a number of years could have resulted in "burnout".
In cross‑examination as to this the plaintiff said that once her exams were over she was not ill any more and she enjoyed trips to Tasmania, Sydney and Canberra and caravanning back to Western Australia.

The motor vehicle accident

The plaintiff's accident occurred on 3 May 2001. It was by all accounts a fairly serious accident. The plaintiff's evidence was that she was travelling at about 60 kilometres per hour just before the accident. A photograph of the plaintiff's vehicle was tendered in evidence and shows extensive damage.
She said in evidence that she was taken by ambulance to Royal Perth Hospital. She was admitted into hospital and kept overnight. Investigations in hospital revealed that she had a fractured sternum. The plaintiff said that on discharge she was unable to walk and a wheelchair had to be obtained to take her to the car. She said her knees were painful. After discharge from hospital she spent a week at her father's house and returned to her home with the assistance of carers.
She said that she had pain in the sternum, back pain and problems with both knees. She said her left knee locked and that there were clunking noises that she had not experienced before.
She underwent physiotherapy. She said that she frequently woke with pain and had difficulty sleeping.
She said that in August 2001 she was seen by Mr Graham Forward, an orthopaedic surgeon, on referral from her GP, Dr Lipscombe. Following an MRI scan she underwent right knee arthroscopy and medial meniscectomy and a chondroplasty.
The plaintiff said that after this procedure to her right knee the level of pain decreased but the knee gave way from time to time. This would happen without warning causing her to fall. Her left knee, however, improved. When she had falls she was incapacitated for periods of time.
She also received treatment for neck, thoracic and lumbar pain and received steroid injections to the right hip.
She was referred by Dr Lipscombe to Mr Prosser in March 2003 for a further opinion. She was also referred to Mr Barrie Slinger, spinal surgeon, and also Dr Peter Silbert, a neurologist, the latter in respect of numbness which she had and she was tested for carpal tunnel syndrome. Dr Lipscombe also referred the plaintiff for assessment by Dr Srna, a consultant psychiatrist and she was also referred to Dr Gee, a pain specialist, for assessment and treatment and underwent rhizotomy procedure.
On 17 August 2005 the plaintiff's right knee collapsed once again. She was in her bathroom and fell in the spa bath. This caused further injury to her neck and back. Apart from seeing Mr Prosser again she was also referred to a Mr McCloskey, a spinal surgeon following this fall and to Dr Panegyres who carried out an MRI scan on her.
In February 2006 she had another knee collapse.
The plaintiff continued with physiotherapy including Pilates, but ultimately by September 2006 this came to an end when funding for the same through the Insurance Commission of Western Australia (ICWA) was declined.
On 31 December 2007 the plaintiff again fell when her right knee collapsed.
Ultimately the plaintiff was referred by Dr Lipscombe to a Dr Yin. Dr Yin saw the plaintiff in about April 2008. She has continued to see Dr Yin who has prescribed exercises, given treatment by way of steroid injection and prescribed a knee brace for her. She has also continued to see a Ms Lynn, physiotherapist, in respect of her neck and lumbar pain as required and as she can afford. She has also received deep tissue massage from a Mr Nisbet which she found beneficial.
She described her current symptoms as being pain and stiffness in the right side from the base of her head to her coccyx. This pain has started since she commenced teaching at TAFE in February 2009. In cross‑examination she said that her work was for three hours a week and she finds it difficult with her disability.
She said the pain radiates to her buttocks and thigh. She has pain in both sides of her neck and in both knees. She has the pain every day. From time to time her back goes into spasm. The usual pain on a scale of 10 is between 2 and 6 but when the back is in spasm it is at 10 and requires treatment from Dr Yin.

Relationship between pre and post‑motor vehicle accident conditions

The plaintiff said that prior to the motor vehicle accident the subject of these proceedings she had continued to have ongoing problems with her left knee as a child with clicking in the knee. In high school she had some difficulty when playing hockey, but during her teens it resolved and she played sports including squash and badminton. She had no problems with the right knee.
After the 1993 motor vehicle accident she said that after the recovery period following surgery by Mr Wright she had no problems. She travelled and did bushwalking, four‑wheel driving, a camping tour in New Zealand and 20 kilometre walks in the South Island of New Zealand. Apart from a feeling of tiredness when doing those events or at the end of those events she had no problems.
After her daughter's birth she occasionally had back pain for which she would have physiotherapy occasionally. It did not limit her activities.
In December 1995 when she was five months pregnant she worked in the store at the caravan park and on one occasion she slipped and suffered an injury to her ankle. It took her three months to recover.
The plaintiff said that she had had two incidents of stress or anxiety; in 1993 and again in 1999 when she was doing exams and had marital issues.
She said that in 1993 her pulse rate had been high and that was diagnosed as stress. In January 1993 she had had a miscarriage. She also had the motor vehicle accident and she said her daughter did not want to go to Walpole. She was also planning her wedding to John Hughes at that time and so it was an intense time in her life.
She said that in 1999 she was fatigued. She was suffering from loss of sleep and headaches but she did not feel stressed. Dr Lipscombe apparently thought there was some stress from the marriage but she received no treatment in respect of this.
Apart from her social activities, the plaintiff also gave evidence that in 2000 she started work on the Heybridge Project for VCSRG. Her role was to sample sites. She described the terrain as being steep and that she had no mobility difficulties with this work. She also had no difficulty in respect of the two weeks that she spent in the Pilbara to write a report for VCSRG.
Before coming to the cross‑examination of the plaintiff in respect of her injuries and disabilities it is necessary to note evidence of a surveillance of the plaintiff. Two DVDs taken of the plaintiff were tendered into evidence. The first was in respect of surveillance between 11 and 15 December 2008 (Exhibit 4A) and the second (Exhibit 4B) in respect of surveillance on 4 February 2009.
In the first video the plaintiff is seen to carry out a number of activities including visiting shopping centres and other shops. She is seen to alight from a motor vehicle and walk with a stick sometimes in the left hand and sometimes in the right and occasionally without the stick at all.

This video also shows the plaintiff, on 15 December 2008, in a restaurant with a number of other people and being seated at a table from approximately 12.24 pm through to 2.31 pm.
The second video of the plaintiff shows her getting in and out of a motor vehicle and, amongst other things, going to a store.
More will be said about these videos and comment made on them by various doctors in due course.
Under cross‑examination in respect of the accident which occurred in 1993 the plaintiff said that she returned to work and the claim in respect of that accident was settled in 12 months and she had no significant issues with her knees, back or neck thereafter. She said that she could do rough bushwalking but was restricted to 20 kilometres and did not think that she could have played squash any more. She said that her knee was not an issue for her.
The entries in the medical notes of the Denmark Medical Centre were put to the plaintiff. She agreed that she had back pain from time to time but such pain as she had in her back and neck was periodical and not debilitating. She agreed that she had a memory lapse. She also said that at that time her daughter did not want to come to Walpole to live and that she had just resigned from her job of 13 years at Murdoch University. She said that she took Prothiaden to reduce her heart rate.
She said that she did not recall other visits specifically to the doctor, but she said that she had no specific issues by the time of her wedding to John Hughes in May 1993.
When questioned about what her plans were she said that by May 2001 she expected in the future to be able to work in consultancy but at that stage she had a family to support. Nevertheless she was looking to do work and she was talking to Dr Victor Semeniuk and Dr Meney.
The plaintiff was questioned about the injury to her right knee. It was put to her that there was no immediate reference to an injury to her right knee and the first reference to this is on 30 May 2001 in the medical notes of Dr Lipscombe where he noted:
"Now having some increased discomfort right knee as well. Had some pain right knee since accident. Refer physiotherapy (for back/neck/knees)."
She said that that was the first recorded problem but that she did have pain in the right and left knee on examination at the hospital.
The plaintiff was questioned about taking morphine to relieve her pain. It was a matter relied upon by the defendant in attacking her credibility. She said she takes it infrequently. It was prescribed by Dr Yin and was to avoid muscle spasms in her back. She said that she had taken morphine before giving evidence in Court because she was in pain having been bending putting documents together for the trial.
She agreed with counsel that since she had been wearing the knee brace for the last eight to nine months her knee had not given way. However, she said that wearing the knee brace was often uncomfortable because it chafed. She used a stick for support should the leg give way. She agreed that this condition had improved.
She said that she can walk and drive but for limited periods. She also said under cross‑examination that sitting can cause her difficulties. She can sit for a couple of hours, but if there is intellectual content then an hour to an hour and a half is her limit. Further, under re‑examination, she said that if she does not take necessary breaks and follow an exercise regime four times a day she becomes inflamed and cannot work. However, she said the "sensory disturbances", which I refer to shortly, do not cause incapacity.
The plaintiff was asked about her work since the accident. It was put to her that in 2004/2005 she had applied for a number of positions and she agreed. She agreed that some were as an environmental scientist and some involved transferable skills. She said that some were full and some part‑time positions. It was put to her that she felt she could work full‑time. She responded that she had been advised to try to work through the pain and she did not know if she could do it, but she was prepared to have a go.
It was suggested to her that many environmental scientist's positions do not involve fieldwork and she agreed. She said if that was available she would have applied. She said that she subscribed to four employment downloads daily.
It was put to the plaintiff that she could do other clerical work but she said that she could not sustain that level of desktop work. It was further put to her that she was not working for a number of other reasons; that is to say, litigation with her father‑in‑law. She said that involved no real involvement for her.
She agreed that she had done some administration work for the VCSRG. She said that once this case is over she would get back to work if she could, but as to whether she would go back to formal consulting would depend upon the level of inflammation and her knees.
The DVDs which I have described were put to her. She agreed that she was seen sitting in a restaurant for over an hour and a half. She did not agree that she was not apparently in discomfort. She said that she was in discomfort and for that reason she left and was driven home. In re‑examination she said that it was a happy distraction for her. She agreed that she was not using the stick on that occasion and she did not have her knee brace on.
She also agreed that in some of the shops she was not using a stick but she said she would have been wearing a knee brace. However, on occasions she does move without the stick or the brace. She also said that she had discomfort (in her back and neck) when seen in the Bunnings store.
She said that her condition had deteriorated since her falls said to be in 2004, 2005, and 2006 and the significant fall in 2008.
The plaintiff was questioned about the sensory disturbances that she said she suffered and agreed that she had told the doctors about these, in particular that there was nowhere on her body that she could not pinch and feel pain, she could not feel the sharpness of needles and there was a difference in feeling on the left side to the right. I refer to these as the "sensory disturbances". She said she had had these symptoms since the motor vehicle accident and described the sensations as "bizarre".
Around the home she said that she has people doing her gardening for her and she does very little cooking.

Greta Brocx

Mrs Brocx is the mother of the plaintiff.
She described the plaintiff, as a child, being motivated and one who studied. She said her daughter was always busy - washing, cleaning and helping in the pet shop at Kelmscott.
When the plaintiff worked at Murdoch University Mrs Brocx looked after her daughter Alyssa. Mrs Brocx would also visit her daughter at the caravan park and saw her doing things around the park; helping in the shop, hanging out washing and looking after her two boys which she had at that time.
After the accident her daughter returned to Coolbellup and the family helped her out. Mrs Brocx helped her with cooking. She said that her daughter could not do anything and needed help. She also did some washing. She said that her daughter did not appear to be happy any more.

Alyssa Woodridge

Ms Woodridge is the plaintiff's daughter. She recalls her mother working on a farm, attending to cows and milking them. Later when she was between the ages of 11 and 13, she recalled playing badminton with her mother every Friday, including in tournaments. They also played squash every week and she described her mother as being very active. Other activities included cycling at Rottnest.
She went to live at Walpole at the caravan park where she helped the plaintiff run the store. She described her mother as having got the business running properly and also conducting a boating business. She said that she was constantly going up and down stairs at the shop and basically managed the entire place.
Since the accident, she had noticed that there are things that her mother could not do anymore such as doing cleaning and working. She has not seen her ride a bike or drive a manual car or engage in any physical sports or pick up Mrs Woodridge's children and she is a lot slower.

Josephine Phyllis Mohen

Ms Mohen came to know the plaintiff through an advertisement on a board at a shopping centre in about March 2007. The plaintiff was seeking house help and gardening. She responded to the advertisement and said that she worked at the plaintiff's house on average once a week for about three hours. Sometimes she would stay on and do extra work; car cleaning, gardening or handyman work. She thought on average that she would spend about four hours a week at the home.

Toby Matthew Nisbet

Mr Nisbet has known the plaintiff for some 12 to 14 years, having first met her at Walpole when he was doing some work for VCSRG in which the plaintiff was also engaged. He visited Walpole and he describes the plaintiff as going up and down stairs all day, carrying her young child Jean‑Luc. She also managed the boat business. He also said that from time to time he saw her doing fieldwork in dense bush, sometimes amongst rocks, without any difficulty and often carrying her young child.
After the plaintiff's accident he witnessed her complaining of pain. At VCSRG he said that she seemed to hobble around and would only sit for short periods. He observed her grab her neck and make grimacing type sounds.
He said that he assisted her in a number of ways including taking her boys to soccer training.
Mr Nisbet described himself as an amateur masseur. He started to give her treatment by way of massage approximately three years ago. He described it as deep tissue massage which he administers almost weekly.
Under cross‑examination he confirmed that the plaintiff had not discussed with him the need for medical advice in the past and there was nothing to indicate that she had a previous medical condition.

The plaintiff's employment and work related capacity

Joyleen Florence Unno

Ms Unno is the chief science technician at Mindarie Senior College.
She has been associated with VCSRG since 1996 and has in the past worked as an environmental scientist part‑time and has also done volunteer work for them.
She first met the plaintiff when she went with the group to the Walpole inlet and assisted in the fieldwork. She said that she stayed at the caravan park and the plaintiff came out on trips and assisted with the work that was being carried out. Ms Unno returned to the caravan park on a number of occasions over a period of time and had occasion to observe the plaintiff looking after her young children, going up and down stairs, preparing meals, doing housework and making beds. She also observed the plaintiff serving in the shop at the caravan park, spending many hours behind the counter.
In respect to the fieldwork she said the plaintiff came out as part of the team carrying equipment, samples of dirt in bags and other heavy objects. She walked down tracks and through thick vegetation for distances of 700 to 1,000 metres. She described the terrain as being uneven. Ms Unno also worked with the plaintiff in respect of another study at the Becher Suite at Rockingham. There she observed the plaintiff climbing dunes easily and carrying equipment.
Ms Unno also worked on the Heybridge Project which she described as physically difficult. It was quarries with shale and loose material to walk through and the terrain was steep. She said that the plaintiff walked over uneven terrain, climbed slopes, metal steps and over long distances to collect samples.
Ms Unno also was present in 1999 in the Pilbara which she described as an educational trip. She also described that as involving climbing almost cliff faces and steep outcrops of rock. She saw the plaintiff doing this climbing as well as getting in and out of cars, camping and pitching tents.
Ms Unno said the plaintiff never complained about any discomfort or pain. Under cross‑examination Ms Unno confirmed that the plaintiff had never complained to her of any medical conditions before 2001. She had never complained of right‑sided weakness, migraines or headaches or putting on weight or stiffness in the back or any problems with her knees.
Ms Unno said that the plaintiff did look stressed and tired occasionally before the accident but, as she remarked, the plaintiff was looking after two young children.
After the plaintiff was discharged from hospital Ms Unno assisted her with her children by taking them to school and driving the plaintiff to the doctors.
After the accident she saw the plaintiff at the VCSRG headquarters at Warwick but she did not stay for long. She said she appeared to have difficulty walking up the steps. She said that after the motor vehicle accident they had gone out into the field, but the plaintiff did not accompany her into the vegetation to do any sampling or surveying but remained near the vehicle doing simple tasks not involving any heavy lifting.
Ms Unno was asked whether, after the accident when she saw the plaintiff at the group's headquarters, the plaintiff's condition appeared to have improved. She said it had improved but it appeared to be a cyclic phenomenon. She would improve and then go downhill and she thought the general trend was towards increasing disability.

Graeme O'Hara

Graeme O'Hara is an Associate Professor and Dean of Graduate Studies at Murdoch University.
He met the plaintiff in 1983 when she was working with a Professor Dillworth at the university as a research technician in applied agricultural microbiology. He described her ability as being very good in the context of, amongst other things, physical work.
Professor O'Hara went on to say that the plaintiff and he worked closely together on other research work in late 1983. That again involved physical work, lifting and carrying pots weighing 3 to 5 kilograms and other physical activities.
Some three or four papers were published by Professor Dillworth and Professor O'Hara. He said that the plaintiff had input into that work. Traditionally technical officers such as the plaintiff would be acknowledged in such research material but because of her ability and input, the plaintiff was included as an author.
In 1989, Professor O'Hara took up a lecturing post at Murdoch University teaching microbiology. The plaintiff worked for him for a year as a microbiology technician.
He said that as a student the plaintiff was very good with capacity to do a lot more. He was of the view that she had the intellectual capacity and ability to complete her PhD. With her PhD she would be in a position to do academic and research work and teaching. Professor O'Hara was not involved in the plaintiff's PhD work.
Professor O'Hara was cross-examined as to what was involved in doing the PhD studies. Professor O'Hara said that the expectation is that the students treat it as a full‑time commitment so as to work 40 hours a week. Some spend a lot more time after hours. Whilst students were allowed to do some work, it was limited to 240 hours work per annum outside of their PhD studies.

Dr Phillip O'Brien

Dr O'Brien holds a PhD in molecular biochemistry from the National University of Ireland. He is a senior lecturer in microbiology at Murdoch University and in 1988 he took up a position at Murdoch University where he met the plaintiff who was one of the technical staff in the biotech program.
After the plaintiff left the university he did not see much more of her except for her involvement with the Royal Society of Western Australia.
Professor O'Brien was asked about the work of environmental scientists. He said that a lot of their work was fieldwork and it is necessary to meet clients on site. He said that if one is trying to develop a research program and collaborate with people who are providing the funding you have to be able to go on‑site and to explain what needs to be done. Also one has to go out on site to assess damage or rehabilitation and gave mine site rehabilitation as an example.
He was asked about the physical requirements for the job insofar as it involves fieldwork and he said one has to be able to go out to the sites and be fairly mobile in fairly sometimes rough terrain. He said that one also has to be able to dig holes and take samples.
Under cross‑examination Professor O'Brien agreed that there would be scientists who are engaged in occupations that do not require fieldwork.

Penelope Clifford

Penelope Clifford is an archaeologist. She does work for VCSRG as an archivist.
She said that she has known the plaintiff for 13 years and first met her at Walpole where she had gone to do fieldwork with VCSRG. There she observed the plaintiff with her two children taking an active part in the running of the caravan park. In addition, she saw the plaintiff doing fieldwork, carrying core samples and walking through rough terrain.
In 1999 she was part of the group that went on the field trip to the Pilbara. She described the plaintiff as being a passenger in a motor vehicle for many thousands of kilometres, investigating land forms, negotiating rocky terrain and climbing hills which were very steep, and on a day to day basis, erecting her own tent. In particular she described, in the Hamersley Gorges, walking up steep slopes with a 30 degree incline. At a place called Pearson's Cove she described the plaintiff scrambling over boulders.
Ms Clifford also said she worked with the plaintiff at Manjimup and saw her doing a lot of walking in quite hilly areas.
From 2005 she has also seen the plaintiff during the course of Ms Clifford's work with VCSRG. She described the plaintiff as negotiating stairs slowly. She said the plaintiff had complained about pain when sitting for about an hour on numerous occasions. She said that she had also driven the plaintiff to the doctors' for appointments when she was in pain.
She was cross-examined about her involvement with VCSRG. She said that she worked full‑time at VCSRG and she saw the plaintiff more or less daily. However, she was not necessarily with her all the time and could not say how many hours the plaintiff was involved there.

Jennifer Anne McCombe

Ms McCombe is Emeritus Professor of Plant Sciences at Murdoch University. She joined the university in 1975. There she came into contact with the plaintiff. At that time, Ms McCombe was a lecturer and also doing research work and the plaintiff ran some "prac" classes for Ms McCombe. That meant that the plaintiff, as one of the technical staff, had to get equipment together, get plants for the bacterial cultures, make sure instruments were working, run the experiments and make sure that they actually worked. The plaintiff would set up the prac classes and at the end of the day clear the materials away. She described the plaintiff as very dedicated and very well organised. She was a person who would "go the extra mile if she had to work overtime to get things finished".
Ms McCombe described the plaintiff in these terms:
"And in terms of her skill level, did you make observations about what she was demonstrating … her skill level then? ‑ Yes, she was someone who had left school early and obviously intelligent enough to go on to higher education but it meant that we benefited from employing her as a research assistant originally when she was studying part‑time to improve her academic qualifications. And she was always probably better than the other people in the same rank so that, for example, she was included as an author on scientific papers because her contribution had been much more than you'd expect for someone at her level."
She also confirmed that it was not normal for a technician to be a co‑author of scientific papers.

Dr Vic Semeniuk

Dr Semeniuk is a director of the VCSRG. He is an environmental and research scientist and also an educator. His curriculum vitae was tendered in evidence. Dr Semeniuk has published widely in environmental matters. In addition he supervises PhD students. He is at present Adjunct Professor at Curtin University and previously had been Adjunct Professor at Murdoch University and also associated with the University of Western Australia.

Dr Semeniuk first met the plaintiff when she required assistance with assessment of the wetlands at Walpole in 1995. Thereafter she obtained two further contracts for the VCSRG and also coordinated work and assisted the VCSRG in some of their work in that area between 1996 and 1999.
In 1999 the VCSRG had a contract in Tasmania. It involved, amongst other things, assessment of industrial effluent at a mine site. This was known as the Heybridge Project. He said in evidence that the plaintiff was adept in microbiology and he engaged her as an investigator on that project.
He was also involved in her studies. He said that she became interested in geo‑heritage and in 1999 he was her external supervisor on her Honours thesis. She was at that time pioneering this new science. He described geo‑heritage as seeking to preserve geology which is important culturally. He said that her thesis for her Honours was globally significant.
He said that the plaintiff was a very good microbiologist conducting work in research in microbiology and environmental sciences. He also described her as having a capacity to liaise with other persons to obtain grants for research work. Dr Meney, who I will come to, described the plaintiff in a similar vein. He described the plaintiff as being at a national and indeed international level in some of her areas of expertise.
After the year 2000 he said that there was availability of work for environmental scientists such as the plaintiff. The VCSRG was very busy.
He was taken to Exhibit 1, vol 1 and to a number of documents in relation to consultancy work carried out by VCSRG in which the plaintiff had or could have been involved. Part of that involved the Heybridge Project.
In relation to that Heybridge Project he said that after her accident there was nobody else who could do the sort of work that the plaintiff was doing and indeed was anticipated to do on the project and the work came to a stop.
By reference to a number of reports in Exhibit 1 prepared by him he referred to and described work that the plaintiff had carried out prior to her accident and being work in the south‑west of Western Australia and also in what he described as the inland rugged ranges of the Pilbara as well as coastal work. A number of photographs were annexed to his reports showing the plaintiff on the Pilbara excursion visiting rocky terrain, walking in the sites and climbing hills. One of those photographs shows the plaintiff scaling a steep slope in a gorge.
He also described the plaintiff's work in the Owingup swamp study which is again referred to in his reports. He said in evidence that he saw her climbing sand dunes, walking through swamps and on rocky shores and she was able to handle the rough terrain.
By reference to those reports he also again referred to the Heybridge Project and the documentation provided by him includes photographs showing the mountainous nature of the valley tract and also contour plans and aerial photographs showing the nature of the area.
Dr Semeniuk also gave evidence of the plaintiff attending a coastal study in October 2000 as part of her studies for her degree in geo‑heritage. In his report there are photographs which are described as areas visited and traversed by the plaintiff and showing steep terrain and coastal dunes as well as rugged limestone ridges and rocky shores.
Dr Semeniuk gave evidence of other work that would have been available to the plaintiff. In particular in Vol 1 of Exhibit 1 at pp 535 ‑ 537 there is a list of the professional consulting work carried out by VCSRG from 2000 to 2009. Item 44 was the work at Heybridge. That item describes report writing being suspended because of the plaintiff's accident. There would have been a further stage to that work.
Dr Semeniuk also referred to Item 41 which was in respect of work for Landvision for the Ministry for Planning and also Item 39, work for the Department of Environmental Protection. He said generally there was other work that VCSRG wanted her to do.
In relation to the income that she earned he said that she earned on the Heybridge Project $200 per day. He said that did not represent her value which would have been $800 a day for some other clients.
He was then taken to vol 1 of Exhibit 1 from p 531 onwards in relation to payments made by VCSRG to the plaintiff. At pp 528 – 529 there was a schedule of consultancy work that she carried out for the VCSRG. For the purposes of these reasons I will not deal with the detail of this at this stage.
He was asked to opine as to the value of geo‑heritage work. He said that remunerated work in this area was available and that for four days work he would earn $15,000 as a consultant. He said that this sort of work would become more of an issue in the future largely due to the book that she published after her thesis. His view was that she would be qualified to carry out this work on a consultancy basis.
Dr Semeniuk confirmed under cross‑examination that most of the environmental scientists who work with him were part‑timers. They charged about $800 per day which depending upon the level of experience is the amount that environmental scientists could earn.
He said that the plaintiff had done some consulting work for him after the accident. She had done work in preparing tenders for the group and two tenders were produced being tenders to the Department of the Environment and which became Exhibits 5 and 6. Dr Semeniuk stated that those tenders would have included proposals for the plaintiff to do some of the work involved in the projects. Nevertheless she might not do all of the work but farm some of it out.
Dr Semeniuk was asked what the plaintiff's daily rate would have been if those tenders had been successful. He thought that she could probably earn $1,200 per day.
In re‑examination Dr Semeniuk was taken to pp 718 and 719 of Vol 2 in Exhibit 1. This was a report from Dr Semeniuk dated 31 January 2009. In that report he opined that it was difficult to estimate the plaintiff's potential loss of income because it would depend on whether she was engaged in her own right as a consultant or as part of project support within his firm. He said that she had been able to be engaged in desktop work by the group in designing proposals and undertaking desktop reviews and writing reports. He also said that she had undertaken office administration tasks on a 20 hours per month basis but she was over‑qualified to undertake that work.
In that report he set out nine proposals that the plaintiff had undertaken to write during 2006 and 2009. Some of those proposals came to the group through the plaintiff. She had the skills to get that sort of work in. Dr Semeniuk said that if those proposals had been successful the plaintiff would have been engaged and would have earned income as a principal investigator.
The amount of time that she spent on the proposals and what she earned were set out in that report. The report also set out other completed projects showing work that the plaintiff had done in the terms of time engaged and how much she had been paid.

Dr Kathy Meney

Dr Meney is a director of a company called Syrinx Environmental Proprietary Limited. She described that company as a multi‑disciplinary environmental company doing a broad range of environmental science, water science projects, environmental design, landscape architecture and remediation, restoration ecology type work. As such, the company employs personnel and also subcontracts services.
She came to meet the plaintiff in 1998 when the plaintiff was president of the WANSIAC. She spent time with the plaintiff at that time and said that most of the work involved fieldwork. She said that they were there for days at a time doing work in the field and she observed the plaintiff's activities. She said she was very organised and fit. They had long days and trips, sometimes 10 hours, wandering through swamps, bending over and digging things up.
Dr Meney was also involved with the plaintiff in the Heybridge Project. She gave a detailed description of the work that the plaintiff was engaged to do which is not necessary for me to go into save to note that involved microbiological work and the plaintiff was the only microbiologist present on the project.
Dr Meney described the plaintiff as doing a lot of walking on that project. She described it as very steep terrain in a valley track. The ground was unstable.
Dr Meney noted that the plaintiff had suffered her accident while the project in Tasmania was still progressing. The plaintiff was to do the microbiological studies which were to be in the following year's work and for which she was to be remunerated and be either directly contracted with Dr Meney or through the university. However, she said that that work was not done because they did not have access to the plaintiff who was the only one familiar with the project.
She described the plaintiff as a microbiologist and used the expression "geo‑microbiology". She said that the plaintiff was well fitted to work in that role in terms of her qualifications and experience.
When discussing environmental engineering and restoration, she said that field work was fundamental. Depending upon the project, senior level science people go out to observe the conditions and take preliminary samples. It is not just a matter of sending juniors out to get samples to bring back to the seniors to do the data, it has a lot to do with observational skills as a scientist - "so it's fairly critical that people are field worthy, I guess, to undertake most of these projects".
She said that she had been a consultant for some 20 years and accepted that one can work as an environmental scientist without doing fieldwork but it depended upon the area one is in. One can do advisory work as a consultant but if:
"… you're truly doing science based environmental work, you need to do the fieldwork, somebody needs to do the fieldwork … one can argue that you could have juniors doing the field work, but most of the data, … is observed in the field and observing samples … so we prefer to do our own fieldwork".
Under cross-examination she said that all of her environmental scientists carry out fieldwork, but when pressed said that there are environmental advisors and a whole range of people who sit under the banner of environmental scientists who do not do fieldwork but for the type of work that she is engaged in, it is field based.
Dr Meney said there had been no opportunities to offer the plaintiff work that involved any fieldwork. She said that since the plaintiff's accident she had tried to do joint projects with the plaintiff but she has not been available and was limited in the things that she could do. She described a project to start up an eco‑tourism business involving the plaintiff and Dr Semeniuk which had been shelved.
Dr Meney was asked about geo‑heritage. She explained the significance of geo‑heritage and said that in the future, she anticipated mining companies being required to undertake geo-heritage surveys and said that some are already starting to do this.
In relation to the plaintiff's ability in that area, she said that it is fieldwork based and involves a lot of physical activity to undertake the surveys. Whilst the plaintiff could do limited desktop work and coordinate the projects, with her limitations she would not be able to undertake the breadth of work that would be available to her in that field.
The plaintiff would be (according to Dr Meney), by her academic background and experience in that field, the number one geo‑heritage consultant if she could consult in that way. She described the plaintiff's book as the seminal work on the topic in the State.
She was asked about the rate of remuneration for environmental scientist. She considered that the plaintiff's capacity in that regard, as a high level scientist, to be between $80,000 and $85,000 per annum.
Dr Meney also endorsed the plaintiff's communication skills and ability to manage projects and delegate.
Dr Meney felt that the current global economic situation had not affected nor was it likely to affect the availability of work in the plaintiff's area. As she put it, the environmental field tends to be immune to global meltdowns. She noted that there was still a requirement for environmental approvals and for the research work that underpins that, whether it is mining or development work.
She confirmed that if the plaintiff were available for unrestricted work as an environmental scientist, her company would have work for her.
Dr Meney was cross-examined and said that in 1998 when doing fieldwork at Walpole she had not noted any restriction in the plaintiff's capacity to carry out that fieldwork. Apart from doing the fieldwork, the plaintiff was also "housing" the persons involved in the field trip, and feeding them. She was "as fit as anybody in the field at that time".
Dr Meney said the plaintiff had not complained about any medical issues or symptoms as far as she was aware and between 1998 and 2001 when the plaintiff had her accident, Dr Meney saw the plaintiff fairly regularly in particular on the Heybridge Project. The plaintiff had never mentioned anything to her about issues relating to right sided weakness, headaches, or stiffness in the back and knees.

The medical evidence

Dr Tim Lipscombe

Dr Lipscombe is a general medical practitioner who saw the plaintiff after she was discharged from Royal Perth Hospital and produced a number of reports on the plaintiff.
In a report dated 13 June 2001 he reported that the plaintiff continued to have moderately severe pain in her chest, left knee and back/neck which impaired her ability to perform her normal duties as a single mother of small children. He advised that she have home help. He opined that it was likely to be for six hours over the following three weeks.
In a further report of 9 August 2001 Dr Lipscombe noted that the plaintiff had ongoing discomfort and disability related to her motor vehicle accident and required three hours of domestic help daily for four days a week for the following three weeks.
By 3 October 2001 the doctor noted essentially the same debilitation and needs but noted in the past history that not only had the plaintiff fractured her sternum, but that there was a right knee cartilage tear.
Further reports were in the same vein and in which he certified the plaintiff unfit for work for various periods.
In a letter dated 18 August 2006 to MVIT Insurance (sic Insurance Commission of Western Australia) Dr Lipscombe noted that the plaintiff was enjoying significant gains from a Pilates programme and said:
"After a significantly protracted recovery period she has been, until recently, making wonderful improvements in her physical condition."
However, he went on to note that the Pilates programme had been stopped and as a result there had been a reduction in her physical capacity. The doctor in that letter suggested in strongest terms that she should continue with the Pilates programme and that it should be covered by the insurer.
In a report dated 26 September 2006 Dr Lipscombe again supported ongoing physiotherapy for the plaintiff. In evidence he explained that the Pilates programme was aimed at improving the plaintiff's mobility. He thought the benefits in terms of pain relief and improvement in mobility was reflected in her state of mind. She had gone from being quite despondent to being positive and getting her life back on track. However he thought that her perception was that she was being impeded by the Insurance Commission and felt that she was of the view that there was an adversarial element and she was getting blocked. Dr Lipscombe noted that the plaintiff's condition tended to deteriorate whenever she saw a specialist who was antagonistic to her and under re‑examination he specifically noted that there was a problem with Dr Srna.
It was put to Dr Lipscombe that once that combative nature of treatment or seeing specialists who were antagonistic towards her was removed she could expect an improvement in her condition. The doctor replied that it was possible that her condition would improve but it was not reasonable to conclude that it would so. He went on to say that he thought it was less likely that her improvement would be impeded.
On 5 February 2008 Dr Lipscombe produced a report for the purposes of Centrelink in which he diagnosed "bilateral patellofemoral maltracking right worse than left" with a history that the problem developed subsequent to a motor vehicle accident on 3 May 2001 when the plaintiff struck her right knee against the dashboard. He noted that the plaintiff had difficulty walking especially over uneven ground and difficulty walking 15 to 30 minutes before needing a break. She had trouble transferring from sitting to standing and standing for more than 15 ‑ 20 minutes. He also described her as having trouble sitting for prolonged periods and being unable to sit for half an hour before requiring a break and having difficulty with housework/gardening.
The report also noted a diagnosis of osteoarthritis of the cervical and lumbar spine with a history of "pain in neck and low back since motor vehicle accident or above"; the "above" referring to the osteoarthritis. In evidence, in relation to that report Dr Lipscombe noted that osteoarthritis was common and that any physical accident can exacerbate or bring on pain related to that osteoarthritis.
I have referred previously to Dr Lipscombe's referral on 23 June 1999 to Dr Graeme Stewart. In examination, having noted the opinion of Dr Stewart in his letter of 20 July 1999, Dr Lipscombe said there were no further complaints of similar symptoms thereafter prior to the motor vehicle accident.
Dr Lipscombe in evidence described the plaintiff's injuries as a fractured sternum and a whiplash or soft tissue type injury to the neck, thoracic spine and probably the lumbar spine as well. She also complained of knee pain.
By reference to his notes Dr Lipscombe said that on 30 May 2001 the plaintiff was having some increased discomfort in the right knee as well and had pain in the right knee since the accident. In cross‑examination he said that that was the first time he had referred to the right knee in his notes. He said that he subsequently referred the plaintiff to Mr Graham Forward and in the meantime she had physiotherapy from a Mr Annear. He said that he thought that the right knee symptoms were related to her accident but noted that she had had a history of a previous car accident and knee injuries. He had not been aware of any previous right knee problems before.
Dr Lipscombe also agreed that on 4 October 2001 the plaintiff had advised him that she had had arthroscopic surgery on the right knee the previous week and was recovering well and on 29 October 2001 she reported that the right knee was much better since the operation. He also noted that on 27 March 2002 she had reported that she was overall much better, but on 28 August 2002 she had "ongoing problems related to above injuries".
In relation to his certificates that the plaintiff was unfit for work Dr Lipscombe said, in cross‑examination, that the plaintiff's capacity fluctuated quite substantially. He confirmed that that was work as an environmental scientist that involved fieldwork or any capacity that she could have reasonably been employed in at that stage which might include walking on uneven surfaces. He did not relate it to work in a more sedentary capacity. He said that on occasions she was incapable of any work and his understanding was that she did a lot of fieldwork so she was required to walk over uneven ground in remote locations. He noted that before this accident he had never recalled any concern about the plaintiff's capacity for work.
Dr Lipscombe referred the plaintiff to Dr Richard Yin for further treatment. He saw her from time to time thereafter and the plaintiff reported that things had improved remarkably.

Nevertheless is still necessary to consider the plaintiff's retained capacity and I have noted her capacity to work as an environmental scientist or in some sedentary area.
At the present time there is no established pattern to demonstrate an earning capacity save for the work done by the plaintiff for VCSRG as set out at pp 528/529 of Exhibit 1. Since the start of 2008 it has been in the nature of office administration work for which she has been receiving $1,000 per month. That says nothing about her capacity to work and earn remuneration as an environmental scientist, whether full‑time or part‑time.
I accept the plaintiff does have this retained capacity to work as I have noted, but given her disabilities I am not satisfied that she could work full‑time. That the plaintiff has a retained capacity is also acknowledged in the plaintiff's schedule of damages where that capacity is said to be of a value of $20,000 per annum plus a superannuation allowance. It is not clear to me how that figure is arrived at. The defendant on the other hand argues that the damages for economic loss should be assessed on a global basis, but that the plaintiff has a substantial retained capacity.
My starting point as to retained capacity is to look at the plaintiff as an environmental scientist. The earning capacity of an environmental scientist per Professor Mulvey is $1,219 per week or $63,388 per annum.
Whilst the plaintiff may have some capacity to do some contract work as a consultant where fieldwork is not too onerous and dangerous, it seems to me that I should disregard such capacity. If the plaintiff is to exercise an earning capacity as an employed environmental scientist it is difficult to see how she could, consistent with that, also be engaged as a self‑employed consultant.
I am not satisfied that the plaintiff has the capacity to work full‑time in the occupation of environmental scientist. That being the case her field of employability may be restricted and she may well have difficulty competing in the labour market. On the other hand she is a very highly regarded person in her field and that may balance matters out.
In my view to adopt a figure of $20,000 as the plaintiff suggests does not truly reflect (it being one-third of the earnings of an environmental scientist) the plaintiff's capacity. I repeat she is highly regarded in the field, she has published work and she has co‑authored other scientific papers and her injuries are not catastrophically disabling.
However the plaintiff is compromised and in my view a reasonable assessment of her retained capacity would be $40,000. The plaintiff has demonstrated a doggedness and determination in the past to get where she is today and as noted by Professor McCombe a preparedness to "go the extra mile". Once this litigation is over I have little doubt that these qualities will come to the fore and she will get back into the workforce and exercise her talents once again, albeit on a somewhat more restricted basis.
As to this future loss it is necessary to have regard to contingencies. In a case such as this there is necessarily a deal of speculation as to what the future would have held for the plaintiff. In addition there are the normal vicissitudes of life. In the plaintiff's case there is the added problem of the pre‑existing maltracking within her knees and also spinal degeneration, all of which may have become symptomatic and affect her ability to do fieldwork. However they were asymptomatic at the time of the motor vehicle accident. I have already noted that not all contingencies are adverse. In my view all of these contingencies are not such as to involve a deduction of more than 15 per cent which is what I would allow against her earning capacity.
I have reached this figure having regard to the position of an environmental consultant. That position is one where the plaintiff would be self‑employed so there would not be any allowance for superannuation. No evidence was led as to whether the figures quoted by Professor Mulvey or Dr Meney reflected expenses that would be incurred by such a person. Given that much of the fieldwork would involve travelling to possibly remote locations one could expect expenses to be so incurred. Accordingly, the contingency basis I have adopted is one so as to make some allowance for this aspect. However, when dealing with her retained capacity as an employed environmental scientist one would expect little or no expenses to be incurred as these would no doubt be incurred by the employer and so I would fix the contingency at 10 per cent for this aspect.
Further, for the purposes of the calculations of future economic loss I would treat the plaintiff as having been able to and expected to work to age 65. Nothing before me would suggest otherwise.
In submissions put to me it is suggested that an allowance should be made to the plaintiff for a period beyond age 65. However, the plaintiff did not make any such contention in her evidence and I would not make such an allowance.
Having noted that the calculations could not be subjected to mathematical exactitude I will now proceed to calculate what I consider to be an appropriate allowance for future economic loss based upon these assumptions that I have made:
Loss as an environmental scientist: $85,000 – 15% =     $72,250
After tax approximately pa  $55,536
Less retained capacity at pa   $40,000
Less contingencies at 10%   $36,000
After tax pa  $31,200
Plus superannuation on $36,000
(adjusted for Jongen)   $2,754
$33,954
$21,582
Or $415 per week
The plaintiff is now 53½ years old. The multiplier for the balance of her working life to age 65 is approximately 450. Future loss of earning capacity is:
$415 x 450 = $186,750

Domestic services

The defendant argues that I should not award damages for domestic services because there is no justification for an allowance and that the entitlement would not exceed the threshold under s 3D of the Motor Vehicle (Third Party Insurance) Act.
As to the latter I point out that the section is aimed at gratuitous services. In the present case the plaintiff claims, at least in part, for services that were paid for.
To the extent that these services were not paid for, they appear on the evidence to extend to services provided by the plaintiff's mother, brother and sister. The only evidence as to the nature of these services is of the mother providing assistance with cooking and washing. However, the extent of those services has not been established on the evidence.
A Mr Nisbet provided massage services, he said for the last three years on an almost weekly basis. Again there is no other material before me which would suggest that such services are justified or which would enable an assessment of the value of those services to be made and accordingly I make no allowance in respect of them.
Accordingly, irrespective of s 3D of the Motor Vehicle (Third Party Insurance) Act, I decline to award damages in respect of these gratuitous services.
Other than that I have found that the plaintiff has engaged and paid for services by backpackers and Ms Mohen. However I have found that the only medical support for that goes, at the very best, to 31 December 2007. As I have noted, the medical evidence seems to support somewhere between six to 12 hours up to 27 May 2002 and I would propose to adopt nine hours. From 23 March 2002 to 31 December 2002 the evidence supports varying amounts for home and garden assistance and I would adopt four hours per week.
Accordingly, adopting $15 per hour as the appropriate rate, the calculation would be:
Period 1: 47 weeks at 9 hours per week x $15                  $6,345
Period 2: 40 weeks at 4 hours per week x $15                  $2,400
Sub-total$8,745
Interest thereon from 31/12/02 @ 6% pa ‑ approx            $3,400
Total$12,145
There is no medical evidence supporting future paid services and I decline to make an order.

Future treatment

I have made findings as to this. I do not accept the plaintiff's submission that it should be assessed at $32 per week for the rest of the plaintiff's life. The need for future treatment by way of review by Dr Yin and possible psychological intervention exists as does, but more remotely, surgical intervention for the knee. I would make a global award of $10,000 to cover all such matters including pharmaceutical requirements.

Special damages

These are at the time of this judgment still, to some extent, at large and, it seems, that the extent to which they will be agreed will depend upon an analysis of these reasons. Accordingly, no allowance is made herein in the expectation that the parties will so agree. In the event that they are unable to do so I will grant leave (within 14 days of this judgment) to the plaintiff to apply to a Registrar for an account to be taken of those special damages and for the amount so found to be payable to be added to this judgment.

Conclusions

Subject to the issue of special damages, the plaintiff is entitled to damages of $532,024 made up as to:
General damages for non-pecuniary loss $49,500
Past loss of earning capacity  $273,629
Future loss of earning capacity  $186,750
Domestic services $12,145
Future treatment $10,000
Special damages (to be assessed)
Total$532,024