JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BROWN -v- DATO PTY LTD t/as SHOW WEST [2005] WADC 50 CORAM : YEATS DCJ HEARD : 14 DECEMBER 2004 DELIVERED : 16 MARCH 2005 FILE NO/S : CIV 1375 of 2002 BETWEEN : MICHELLE LEIGH BROWN Plaintiff
AND
DATO PTY LTD t/as SHOW WEST (ACN 009 165 879)
Defendant
Catchwords: Damages - Personal injury - Past and future loss of earning capacity
Legislation: Nil
Result: Plaintiff awarded $111,456
(Page 2)
Representation:
Counsel:
Plaintiff : Mr K J Bradford
Defendant : Mr D R Clyne
Solicitors:
Plaintiff : Bradford & Co
Defendant : Kott Gunning
Case(s) referred to in judgment(s):
Bowen v Tutte (1990) A Tort Rep 81-043
Graham v Baker (1961) 106 CLR 340
Griffiths v Kerkemeyer (1977) 139 CLR 161
Jongen v CSR Ltd (1992) A Tort Rep 81-192)
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Mallett v McMonagle [1970] AC 166
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Mitchell v Mitchell [2004] WADC 184
Newman v Nugent (1992) 12 WAR 119
Purkess v Crittenden (1965) 114 CLR 164
Sullivan v Gordon [1999] 47 NSWLR 319
Thomas v Kula [2001] WASCA 362
Thomas v O'Shea (1989) A Tort Rep 80-251
Van Gervan v Fenton (1992) 175 CLR 327
Watts v Rake (1960) 108 CLR 158
Wright v Shire of Albany (1993) A Tort Rep 81-239
Case(s) also cited:
Lawson v Flavel [2001] WASCA 272
Pene v Murphy [2004] WASCA 103
Shorey v PT Ltd (2003) 77 ALJR 1104
State of New South Wales v Moss (2000) 54 NSWLR 536
(Page 3)
1 YEATS DCJ: The plaintiff seeks damages for a low back injury she suffered on 4 October 2001 at the Royal Show when a train moved while she was stepping off carrying her two year old son. The defendant admits liability and the matter proceeds as an assessment of damages. The principal issue in contention between the parties is the plaintiff's loss of earning capacity.
History 2 The plaintiff is 35 years old. She was born on 7 August 1969. She completed year 10 and left school in 1985 at age 15 to take up a clerk's position with MMI Insurance (now Allianz Insurance). She has been in continual employment since then, primarily in the insurance industry although she worked for two and a half years as a law clerk and she travelled north to Exmouth and worked as a receptionist for several years. In 1993 when she was 24 years old she returned to work with Allianz Insurance and has continued to work for them. She has never been unemployed. 3 The plaintiff's employment with Allianz was not without a few ups and downs. In 1997 she was promoted to the position of supervisor in the Corporate Accounts section but some six months later in February 1998, after counselling, she relinquished that position and returned to her earlier position of Senior Case Manager (exhibit 5 and exhibit 6). She explained that she had problems working with one member of her team and she requested the return to her position as a Senior Case Manager. 4 The plaintiff was married in 1999 and on 15 August 1999 gave birth to a son Jayden. She had been working full-time (37½ hours per week) up to one month before Jayden's birth and she returned to part-time employment when Jayden was nine weeks old, working every day from 7.00 am to 12 noon, a total of 25 hours per week. Her husband's work hours allowed him to care for Jayden while the plaintiff worked. Later in 2000 the plaintiff's hours changed. Allianz asked her to work full seven and a half hour days on Monday, Tuesday and Wednesday and she was working those hours at the date of the accident – a 22½ hour work week. 5 During 2001 prior to the accident while the plaintiff was working part-time she underwent a performance review with her supervisors because of problems with her non-attendance at work, with her personal telephone calls during work time and her failure to maintain her hours as well as complaints from clients about unprofessional behaviour (exhibit 6). The performance review discussion began on 30 April 2001 and on 7 September 2001 the plan was extended for a further six week
(Page 4)
period in order to enable the plaintiff to demonstrate an improvement in her adherence to working hours. The plaintiff explained that her non-attendance and other issues arose because at that particular time she and her husband were going through marital problems and she was having some difficulties with coping with work at that stage. The performance review continued at the time of the accident.
The accident 6 The accident took place on Thursday 4 October 2001. It was one of the plaintiff's days off work and she attended the Royal Show with Jayden and her sister. She took Jayden on a train ride and when the train stopped she picked up Jayden and stepped onto the platform with her left foot. At that moment the train went forward and the plaintiff hyper extended her back. She described a "ripping" sound in her back and immediately felt pain there. She continued at the Show for a short period but the pain continued so she returned home about 3.30 or 4.00 pm and rested, expecting her back to be better the next morning. Instead of an improvement her back pain was worse in the morning and became increasingly worse over the weekend. 7 Some four days after the accident on Monday she went into work for 15 minutes before leaving to attend her general practitioner, Dr Gerard Westhoff. He prescribed anti-inflammatory medication and rest. On review two days later the pain in her lower back continued and she had numbness in her second left toe. By 16 October when Dr Westhoff again reviewed her the pain was radiating down into her left buttock and she was experiencing numbness into her left lateral foot. These symptoms continued through October and November. In December Dr Westhoff prescribed a gym programme to strengthen her muscles to support her back. By January 2002 her symptoms stabilised and she no longer experienced pain in her left leg. By February her toe numbness had resolved but the pain persisted in her low back extending into her left buttock. 8 The plaintiff experienced difficulty sitting for long periods of time. She could not sit for more than 30 minutes without pain. Her work at Allianz involved a paperless office. She spent most of her work time sitting at a computer and she experienced increasing pain trying to work three full days each week. She was able to arrange with Allianz to work shorter hours four days a week leaving Wednesday totally free. That seemed to help with her back pain. It was also clear from the evidence that Allianz did all it could to assist her by providing an
(Page 5)
ergonomic work place. She is also allowed to stand and stretch when she needs to and Allianz requires all staff working at computers to take regular breaks. 9 In April 2002 the plaintiff was offered a full time position at Allianz which she accepted (exhibit 1.1). The plaintiff said she always planned to return to full-time work when Jayden was two or three years of age. The plaintiff's marriage broke down in May 2002 one month after she had commenced her full-time duties. The plaintiff said her back pain became unbearable while working full-time and on 1 October 2002 she returned to part-time work four days each week with Wednesday off, working 22½ hours each week (exhibit 1.2). Those hours have continued through until the time of trial.
Previous back injuries 10 In evidence the plaintiff admitted she had injured her back at about age 17 when her chair caught on the carpet while at work and she fell over backwards in the chair. On another occasion when she was about 18 years old the plaintiff admitted that she slipped down steps and again landed on her back. The plaintiff had mentioned both of these incidents to Dr Westhoff. In both cases her symptoms were short lived and she had no time off work. 11 The plaintiff was unable to recall another incident. She reported to Dr Westhoff in February 1995 that when she lifted a heavy file at work she felt pain in her lower back radiating into her left buttock, pain that was worse on coughing or sneezing. Dr Westhoff and Dr Gee agreed this February 1995 injury and pain was in a similar area in the plaintiff's back and buttock as is her present pain. But Dr Gee noted that her present injury included her foot as well. Nonetheless Dr Gee agreed that the February 1995 incident may have disturbed the same level as caused her present symptoms. Mr Hardcastle found the February 1995 incident consistent with a disc tear. 12 A month later in March 1995 the plaintiff again complained to her doctor that she had fallen in the bathroom and she was experiencing lumbar pain. At the trial the plaintiff could not recall that incident either.
Treatment 13 Over the last three years the plaintiff has undergone a variety of treatments for her back pain including anti-inflammatories, pain medication, exercise programs to strengthen her abdominal muscles to
(Page 6)
support her back, as well as rhizotomies and injections in the sacroiliac joint and in the S1 root sleeve administered by Dr Geoffrey Gee, a specialist anaesthetist. These injections brought only temporary relief for four to six weeks and have been discontinued. But the plaintiff gave evidence she is in pain every day. The severity varies. She complains of pain in her lower left back area going down into the left buttock and her left leg on occasion. Sometimes she has pins and needles at the bottom of her left foot. She has considered surgery but has decided against it. The only treatment or medication she presently receives is one Tramal tablet each day for pain. She gains some relief from pain by walking or lying down. At trial the plaintiff gave part of her evidence while standing and she has stood regularly in the back of the Court through the trial.
The cause of the pain 14 There is no agreement among the expert witnesses as to the cause of the plaintiff's back pain. Mr Barrie Slinger, orthopaedic spinal surgeon, examined the plaintiff on two occasions – in July 2002 and again in October 2004. In his report of 6 December 2004 Mr Slinger said: "The cause of this lady's symptoms, as I have stated, is as a result of the accident of the 4 October 2001, which symptoms are in the nature of a soft tissue injury, which rendered symptomatic the previously asymptomatic changes in the lumbar spine. In the absence of that injury, those degenerative changes may well have remained asymptomatic, and she would not be in her present condition or situation. It is most unlikely that the accident of 2001 will produce any additional problems in the future or be associated with any premature degenerative change, and whilst there may be progression in that degenerative change in the lumbar spine in the future, that progression, or increase of symptoms in the future, is as a result of the natural history of that condition and not as a direct result of the accident of 2001." (Exhibit 11 p 9) 15 Mr Slinger attributed the plaintiff's pain symptoms down her left leg to a disc bulge at L5/S1 which displaced the adjacent nerve root (T100). 16 Dr Geoffrey Gee began treating the plaintiff for her pain symptoms on 4 April 2002 and continued treating her for two years until April 2004. His treatment included sacroiliac injections, root sleeve injections and a rhizotomy which was an endeavour to denervate the sacroiliac joint.
(Page 7)
17 When asked under cross-examination his opinion of the cause of the plaintiff's pain symptoms, Dr Gee said:
"I would probably work more on the lines that we're dealing with a disc tear which was irritating the nerve because disc tears can be quite irritating to the nerve that's running alongside of it." (T140) 18 MRI reports on 26 July 2002 and again on 27 August 2003 showed a small annular tear at L4/5 (exhibit 13). Dr Gee said the disc tear may have been there for some time and it may have pre-dated the 2002 accident. 19 Dr Andrew Marsden, an experienced occupational physician, reviewed the plaintiff in May 2003 and again in June 2004. Dr Marsden found that overall the plaintiff has a very facetal presentation indicating to him that the source of the pain was more in the facet joints, muscular structures of the back. Dr Marsden explained that her good response to Dr Gee's treatments – both her rhizotomy and the nerve sleeve injections – are indicative of a facet joint source of symptoms. Overall Dr Marsden's opinion was: "This is probably the lightest, slightest injury that I have seen in the years that I have been doing this work, in someone having – ending up with a long-term back strain out of it, and certainly getting this far. The physics of it were extraordinarily slight; no more than somebody sitting down hard and sitting rather awkwardly into a soft chair and flicking back not realising the chair is as low as it was, for instance, that sort of thing." (T115) 20 Under cross-examination Dr Marsden said that the plaintiff had never described to him a "ripping" sound in her back at the time of the accident. Under cross-examination Dr Marsden accepted that the plaintiff had a soft tissue injury of an ongoing nature with facetal involvement and possibly some disc involvement. 21 Mr Phillip Hardcastle, consultant orthopaedic surgeon, assessed the plaintiff on 11 November 2003. He diagnosed a disc protrusion at L5/S1 centrally and to the left and fairly advanced disc degeneration at L4/5 and L5/S1. Mr Hardcastle believed that the sudden flexion/extension force has most likely resulted in an annular tear and subsequent central disc protrusion at L5/S1 which aggravated her pre-existing degenerative condition. He believed her condition would improve and her symptoms in the short to medium term would remain the same or slowly improve.
(Page 8)
22 Mr Stewart Brash is now a retired orthopaedic surgeon having retired on 30 June 2003. Mr Brash reviewed the plaintiff on 29 May 2003 shortly before his retirement and was unable to review her again nearer the time of trial. Mr Brash found that there was no significant pathology underlying the plaintiff's symptoms. He noted that her symptoms had persisted and remained the same for years and have not responded to the passage of time or to treatment. He recommended a daily exercise programme and considered her capable of returning to full time pre-accident duties. He could find no anatomical cause for her pain.
23 There was no unanimity among the specialists about the cause of the plaintiff's pain symptoms, but there was surprising agreement about her treatment needs. All three orthopaedic surgeons recommend an exercise programme to improve fitness and to strengthen abdominal muscles. Her only pain medication is Tramal. She takes one tablet daily. Dr Gee finished treating her in June 2004 and referred her to Mr McCloskey, an orthopaedic surgeon, specifically for a second opinion about future treatment. Mr McCloskey did not give evidence at the trial and the plaintiff has given evidence that she will not consider surgery. Surgery is not recommended by any of the orthopaedic surgeons.
Findings 24 Based on the opinions of Mr Slinger and Mr Hardcastle I am satisfied that the plaintiff has suffered a soft tissue injury to her lower back and her continuing pain symptoms arise from a slight disc bulge or protrusion at L5/S1. I accept the evidence of Mr Hardcastle that she will improve, particularly if she follows medical advice and undertakes a rigorous exercise programme. There is support from Mr Hardcastle's opinion in the plaintiff's history. In December 2001, a few months after the accident, the gym programme to strengthen her muscles to support her back was effective in stabilising her symptoms and reducing her pain. 25 The plaintiff has had a history of back injuries and I am satisfied that any annular tear noted by Dr Gee pre-dated the accident and probably occurred in 1995 when she lifted a heavy file and experienced back symptoms similar to the pain she experienced after this accident. There is a general agreement among the experts that the plaintiff suffers from fairly advanced disc degeneration at L4-5 and at L5/S1 which is not surprising given her history of falls and adverse events wherein she suffered back injuries particularly to her lower back.
(Page 9)
26 There is encouragement for the plaintiff in the medical evidence. I accept and rely on Mr Hardcastle's opinion that she will improve as can be expected with a soft tissue injury. That opinion is supported by the evidence of Mr Brash as to the lack of any significant pathology. I also accept, based on the evidence of a number of the experts, that an annular tear will heal itself. I believe the plaintiff has a very promising prognosis once she puts this case behind her and gets on with her recovery.
27 I also accept that this was the case where the forces involved in the accident were minimal – nothing like the forces at work in a motor vehicle collision at speed. I rely on Dr Marsden's opinion that it was the lightest, slightest injury to have ended in a long term back strain (T115). Dr Westhoff described it as a "low – velocity" injury. While that in itself does not exclude long term back pain, it does in this case support Mr Hardcastle's prognosis that the plaintiff's condition will improve. 28 I also accept Mr Brash's opinion that in this case litigation is itself playing a part in her symptoms. That is borne out by Dr Marsden's evidence that during his assessments in 2003 and in 2004 the plaintiff never described a "ripping" sound in her back at the time of the accident and yet, the plaintiff gave that evidence at trial later in 2004. She has clearly exaggerated her account of the incident in order to bolster her claim.
Past loss of earning capacity 29 In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings, but an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss (Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 16 per McHugh J; Graham v Baker (1961) 106 CLR 340 at 347). Thus damages can be awarded for loss of earning capacity only to the extent that that produces or might produce financial loss. 30 The plaintiff claims for past loss of earning capacity from 1 October 2002 to the date of trial. She had worked full time from April 2002 but she said her back pain became unbearable and she returned to part time work working 22½ hours per week on 1 October 2002. I note that the breakdown of the plaintiff's marriage coincided with her return to full time duties and no doubt added to the stresses in her life at that time. 31 There was a conflict in the evidence of the experts as to the plaintiff's capacity for full time employment. It was clear at trial that the plaintiff
(Page 10)
enjoyed a good deal of tolerance and support from her employer. All of the case managers at Allianz whose work duties were confined to work at a computer screen were required to take regular breaks, to stand up and walk around. The plaintiff was able to take all the breaks she needed to ease her back pain. The plaintiff said she could not sit for more than 30 minutes without experiencing back pain but her pain could be relieved by standing and walking. There was no evidence that her work required her to sit at her computer for more than 30 minutes at a time without the opportunity to stand and move around. On the contrary, the evidence was that her employer encouraged staff to do that. 32 That may be part of the reason that a number of expert witnesses considered the plaintiff capable of working full time. Mr Hardcastle said in his report dated 22 April 2004 (exhibit 14, p 17): "At this stage she would be considered unfit for full time work as there are maternal commitments as well and a combination of these work and outside activities would make it difficult for her to undertake full time work." 33 In Mr Hardcastle's opinion it is the plaintiff's maternal commitments that make it difficult for her to undertake full time work (T131). Without her maternal commitments I understand Mr Hardcastle to be saying that she could undertake full time work. 34 Mr Brash also considered her to be capable of full time work and believed her work conditions "sounded pretty good" (T151). Both Dr Marsden and Mr Slinger considered her capable only of the part time work she is presently engaged in. 35 I found Mr Hardcastle's evidence very persuasive. He is well qualified and experienced. While it is true that he did not review the plaintiff on a date near the trial as did Mr Slinger, nonetheless, Mr Hardcastle thoroughly reviewed the plaintiff in November 2003 some two years after the accident. There is no evidence of any substantial change in her condition from that time to the date of trial. That lack of change is confirmed in Mr Slinger's second report, exhibit 11 at p 7 and in evidence at T100. In these circumstances I rely on Mr Hardcastle's evidence that the plaintiff is capable of full time employment but subject to her maternal commitments. Those maternal commitments will of course lessen as Jayden commences school.
(Page 11)
36 Even relying on Mr Hardcastle's opinion, however, I do accept that the back pain experienced by the plaintiff would have made it more difficult for her to juggle a full time job with her other responsibilities as a mother raising an active small son. In these circumstances I am prepared to allow compensation for past loss of earning capacity based on the plaintiff returning to part time duties on 1 October 2002 after an attempt at full time duties from 1 April 2002.
37 The plaintiff bases her claim on earnings of $55,000 gross per year, the earnings of a technical officer at Allianz. Ms Dianne Culley, who had been claims manager at Allianz and knew the plaintiff and her work capacity, gave evidence the plaintiff would have been suited to be a technical officer. There was no evidence of the work skills needed for a technical officer or of the responsibilities of that job. The plaintiff gave evidence that technical officers essentially do all the Work Cover files. She said she did a little of that work now but is not on the technical team (T42). She had always worked as a case manager or senior case manager except for the brief period in 1997 when she was promoted to the position of supervisor but relinquished that position after counselling because of problems she experienced with a team member. In assessing the plaintiff's claim for past loss of earning capacity, given the plaintiff's work history, I am not persuaded that her claim should be based on the earnings of a full time technical officer. The claim should properly be based upon the earnings of a full time senior case manager. Her present earnings are $868 net per fortnight ($1,089 gross per fortnight) (exhibit 3). The plaintiff gave oral evidence that if she worked full time her take home pay would have been approximately $1,400 per fortnight (T40) but there was no evidence of the gross fortnightly income. I rely on the PAYG withholding tax tables for 1 July 2004. A gross fortnightly income of $1,840 will provide take home pay of $1,400 per fortnight. The difference in net earnings per week ($700 - $434) is $266. That is the appropriate net weekly figure on which to calculate her past loss of earning capacity for the 114 weeks from 1 October 2002 until the date of trial = $30,324. 38 The application of the principle in Watts v Rake (1960) 108 CLR 158 as explained in Purkess v Crittenden (1965) 114 CLR 164 was discussed by counsel but this is not a case where the defendant suggests that the plaintiff's incapacity was wholly or partly the result of her pre-existing back condition. Instead of that the defendant suggests that the evidence shows advanced disc degeneration in the plaintiff's lower spine at L4/5 and L5/S1 (Mr Hardcastle T127; Mr Slinger exhibit 11, p 7) and the defendant suggests that such disc degeneration can
(Page 12)
be taken into account as an adverse contingency when assessing loss of earning capacity. 39 The assessment of contingencies was considered by the High Court in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638: "… earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the plaintiff has been injured -- the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past." (Per Brennan and Dawson JJ at 639 - 640.) 40 The court then referred to the judgment of Lord Diplock in Mallett v McMonagle [1970] AC 166 at 176 where Lord Diplock said: "The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or what would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards." 41 The High Court in Malec's case went on to warn that "hypothetical evaluations defy precise calculation" (p 640).
(Page 13)
42 What has to be evaluated is the prospect that the plaintiff's advanced disc degeneration at L4/5 and L5/S1 would have limited her employment in any event if she had not been injured in the accident. I accept that there was a risk of this occurring and that should be taken into account as an adverse contingency.
43 There was also evidence of the plaintiff's "performance review" which was ongoing at the time she was injured. Based on Ms Culley's evidence (T73) there were aspects of the plaintiff's work habits which would not have helped her chances of promotion and could have led to loss of her job. This is a further contingency I must take account of although I consider the risk of losing her job to have been slight. 44 Another adverse contingency arises from the plaintiff's marriage break-up in May 2002 and her maternal commitments involving her young son and whether, in any event, those stresses would have led her to reduce her work hours at that time. I believe there was a substantial risk of that occurring. 45 The plaintiff had other health problems besides her back pain. She had problems swallowing and was hospitalised in early 2003 and had further surgery in 2004 because of that difficulty. That is also an adverse contingency that could have limited her ability to undertake full time employment. 46 All contingencies are not adverse and the court should properly take account of Ms Culley's evidence that the plaintiff was suited for the position of technical officer. Had she been able to return to full time work I accept there was a possibility of her being promoted to that position. 47 Taking account of all contingencies – both adverse and favourable I reduce the award of $30,324 for past loss of earning capacity by 7 per cent = $28,201. Interest for 2.2 years at 3 per cent = $1,861. 48 The plaintiff is entitled to an award for past loss of superannuation calculated on the difference between $920 per week gross earnings for full time employment and $545 per week gross earnings for part time employment = $375 for 39 weeks at 8 per cent = $1,170 and $375 for 75 weeks at 9 per cent = $2,531. The total for past loss of superannuation is $3,761. 49 Interest for loss of superannuation for 2.2 years at 3 per cent = $244.
(Page 14)
Future loss of earning capacity
50 The plaintiff suggests that I calculate future loss of earning capacity based on a total loss of earning capacity to the age of 65 with deductions to reflect contingencies including her retained earning capacity, other contingencies and the normal vicissitudes of life. I do not accept that to be a reasonable approach to assessment in this case. This is not a case where the plaintiff has lost her pre-accident earning capacity and has been unable to find alternative employment (Bowen v Tutte (1990) A Tort Rep 81-043; Thomas v O'Shea (1989) A Tort Rep 80-251). In this case the plaintiff has always remained able to do the same job with the same employer; the only issue is whether as a result of her injury she has lost her capacity for full time employment. 51 There is a conflict in the evidence of the experts as to the plaintiff's capacity for full time employment. I prefer and rely on the opinion of Mr Hardcastle that, subject to her maternal commitments, the plaintiff is capable of full time employment despite her back injury. That finding requires me to evaluate her maternal commitments as they affect her future employment and their relationship with the defendant's liability to compensate the plaintiff for loss caused by its wrongdoing. So far as past loss of earning capacity was concerned I was prepared to allow an award because I am satisfied the plaintiff's capacity to juggle full time work and maternal commitments was compromised by her back injury. Now, of course, her maternal commitments are reduced as her son enters school. I must also factor in the plaintiff's positive prognosis - that her condition will improve as can be expected after a soft tissue injury. 52 Taking all of these factors into account I would allow an award of damages for future loss of earning capacity based on another three years of part time work. By that time her son Jayden will be 9 years old. I expect the plaintiff's back symptoms will have improved and her maternal commitments will have diminished to the point where she will have regained her pre-accident full time earning capacity. 53 Her loss of earnings while employed part time is $266 net per week. The multiplier for three years is 144 = $38,304. I again reduce that amount by 7 per cent for contingencies ($38,304¯$2,681) = $35,623. 54 I calculate loss of superannuation based on the difference between gross earnings of $920 per week as a full time worker and gross earnings of $545 per week as a part time worker. Her loss of $375 per week x 9 per cent x 144 = $4,860. This amount must be reduced by 30 per cent
(Page 15)
(Jongen v CSR Ltd (1992) A Tort Rep 81-192) = $3,402 for future loss of superannuation.
Sympathetic employment 55 The plaintiff relies on the Full Court decision in Wright v Shire of Albany (1993) A Tort Rep 81-239 and submits that some allowance needs to be made for the plaintiff having the benefit of a sympathetic employer. In Wright's case the plaintiff had lost his pre-accident earning capacity and was only fit for light duties. His employer was providing him with employment but he needed to be compensated for the considerable disadvantage he would suffer on the open labour market if employment with the sympathetic employer were to end. 56 That case is very different from this one. This plaintiff has never lost her ability to work as a senior case manager. She can still do the same work as she did before the accident. The period of her life where, because of her injury, she was unable to juggle her maternal commitments with full time work is quite a different prognosis. She will improve and will soon be able, with her maternal commitments diminishing, to exercise her pre-accident full time earning capacity. In these circumstances the principle in Wright's case has no direct application. There is no evidence to suggest she will lose her sympathetic employment during the next three years.
Gratuitous services 57 The plaintiff gave evidence that prior to the accident she did the majority of the household duties including vacuuming, mopping, dusting and cleaning the bathrooms and showers. Now she finds those household duties leave her with back pain and she asks her former husband for help when he is there on Thursday and on Friday looking after Jayden. 58 The plaintiff's former husband, Michael Brown, gave evidence that prior to the accident the plaintiff did all of the household duties. Now, when he looks after Jayden, he does an hour and a half or two hours cleaning every week. He takes care of cleaning the showers and cleaning the car. 59 The plaintiff's sister, Deanne Coates, gave evidence that she owns the house the plaintiff lives in and Ms Coates and her partner shared the house with the plaintiff for six months before moving to Bunbury 12 months ago. Ms Coates gave evidence that she and her partner did the heavy work such as vacuuming and gardening. The plaintiff did her own
(Page 16)
laundry and shared in the rest of the household duties. Ms Coates said she and her partner spent about an hour and a half each week on the heavy work. 60 The claim by the plaintiff covers both services she requires and services she had previously provided for her family. Under the traditional formula in Griffiths v Kerkemeyer (1977) 139 CLR 161, Van Gervan v Fenton (1992) 175 CLR 327 and Newman v Nugent (1992) 12 WAR 119 at 129 the plaintiff is entitled to the reasonable costs of meeting the need for services assisting her that she can no longer provide because of her injury but the law did not recognise any entitlement for the reasonable costs of services she could no longer provide for her family. That loss was intended to be included in the general damages award as a loss of enjoyment she suffered because of her inability to provide services for her family. 61 I accept the plaintiff's submission that the law has now changed (Thomas v Kula [2001] WASCA 362; Sullivan v Gordon [1999] 47 NSWLR 319; Mitchell v Mitchell [2004] WADC 184 per Blaxell DCJ at [54] – [60]). 62 Therefore in assessing the plaintiff's claim for gratuitous services I need not differentiate between her need for services for herself and her need for services for her family. The award covers the reasonable costs of meeting the need for services reasonably required for herself or the services previously provided by her for her family so long as the need for those services arose because of the back injury suffered by the plaintiff. In this case I accept the plaintiff's evidence and that of her former husband and her sister that because of her back injury she needs one and a half hours per week of assistance with heavy cleaning and gardening. 63 In closing submissions the plaintiff claimed for one hour per day assistance including assistance with her child. There is no evidence to support any claim in relation to child care. The plaintiff and her former husband have always shared child care responsibilities. The plaintiff's former husband looked after Jayden while she worked. That arrangement was in place prior to the accident and it did not change after the accident except that the plaintiff's former husband began doing the heavy household duties after the accident. That is the extent of the gratuitous services for which the plaintiff is entitled to be compensated.
(Page 17)
64 The rate has been agreed at $15 per hour. An hour and a half per week for the 166 weeks since the accident ($22.50 x 166) = $3,735. Interest on that sum at 3 per cent for 2.2 years = $247.
65 As to future gratuitous services, I am prepared to allow three more years of assistance. By then I expect the plaintiff's symptoms will have improved so that she will no longer need assistance with heavy housework. The multiplier for three years is 144 x $22.50 = $3,240 for future gratuitous services.
Medical expenses 66 Past medical expenses have been agreed at $9,125.76. As to future medical expenses, Dr Westhoff, the plaintiff's treating general practitioner, gave evidence that he would be seeing the plaintiff no less than six times per year and up to 12 times per year at a cost of $40 per visit. The plaintiff takes one Tramal tablet per day for pain at a cost of $18 for 20 tablets. Dr Westoff also gave evidence that he had very recently prescribed an anti-depressant, Mertizon, at a cost of about $35 per month. There is no expert opinion to assist me as to the cause of any depression the plaintiff may suffer and I will not include the costs of this prescription in the award of future medical costs. There is no evidence the accident caused any depression on the plaintiff's part. 67 The plaintiff asked me to include an award for the "chance" that the plaintiff will have surgery on her back. The plaintiff has given evidence she will not have surgery. No medical expert has given any evidence recommending such surgery. On the evidence before me there is no chance she will have such surgery and no allowance should be made. 68 The costs of nine visits per year to her general practitioner is $360 ÷ 52 = $6.92 per week. The cost of Tramal is roughly $7 per week. I will allow $14 per week for future medical costs for three years (multiplier 144) = $2,016 for future medical expenses.
General damages for pain, suffering and loss of amenity 69 The plaintiff experienced a good deal of pain following the accident. She underwent injections from Dr Gee on seven occasions and those relieved her pain for four to six weeks. At the time of the trial she was still experiencing discomfort after prolonged sitting. 70 There has been no evidence of the injury having any particular impact on the plaintiff's lifestyle or daily activities other than some difficulty she experiences sitting through a movie.
(Page 18)
71 Her son Jayden was over two years of age at the time of the accident so the injury did not interfere with the plaintiff's caring for her son as a baby. Nonetheless I accept that her pain and discomfort has interfered with aspects of her maternal duties and this should be taken into account.
72 Taking all of these matters into account I award $20,000 for general damages.
Summary General damages $20,000 Past loss of earning capacity $28,201 Interest on past loss of earning capacity $1,861 Future loss of earning capacity $35,623 Past loss of superannuation $3,761 Interest on past loss of superannuation` $244 Future loss of superannuation $3,402 Past gratuitous services $3,735 Interest on past gratuitous services $247 Future gratuitous services $3,240 Past medical expenses $9,126 Future medical expenses $2,016 Total award $111,456
|