Bulner v Prentergast
[2005] SADC 57
•1 June 2005
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BULNER v PRENTERGAST
Judgment of His Honour Judge Allan
1 June 2005
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE - APPORTIONMENT OF DAMAGES
Damages - personal injury sustained in a road accident - aboriginal aged care co-ordinator aged 40 - facture of calcaneum in right foot - significant interference with earning capacity - Past economic loss $115,000; Future economic loss $445,000; Non-economic loss $23,400; Special damages $18,575.78; Gratuitous services $10,000; Travelling expenses $7,000; Future medical expenses $20,000; Interest on past economic loss $14,500; Credit of $20,000 already paid by the defendant; Judgment for the plaintiff in the sum of $633,475.78.
BULNER v PRENTERGAST
[2005] SADC 57
The plaintiff claims damages for injuries and loss sustained in a road accident which occurred on 19 September 1999. The motor vehicle in which she was a passenger was involved in a head-on collision with a motor vehicle driven by the defendant.
Liability has been admitted and the matter comes on for assessment of damages.
The plaintiff is an aboriginal woman who was born on 10 March 1965. She was born in Woodville, but has lived in the south eastern part of the State since she was aged 4. She was educated to Year 11 standard. She has worked as a sewing machine operator, cleaner and aboriginal health worker. At the time of the accident, she was employed by the Southeast Regional Health Service Incorporated as an aboriginal aged care co-ordinator.
The role of the plaintiff as an aboriginal aged care co-ordinator was to develop, implement and evaluate strategies and programs to meet the community service needs of the frail, aged and younger disabled members of the aboriginal community in the south eastern part of the State. Her work required her to travel extensively throughout the area, spending a substantial part of her time driving a motor vehicle. From her base in Mount Gambier, she would travel as far as Bordertown, Kingston and Naracoorte. She visited people in their homes. Some of her clients, because of physical disabilities, required her to assist them manually in movement; she bearing some of their weight for that purpose. She would collect clients from their homes, take them to their appointments with the various health practitioners and act as advocate for them. She also took them on community activities. Every three months, she conducted an audit of all her clients.
The role of an aboriginal aged care co-ordinator or worker is a sensitive one; different from that of a person holding a similar position in the mainstream health system. Aboriginal people are reluctant to go to mainstream health services and the plaintiff’s clients required her support and encouragement for that purpose. For her part, the plaintiff valued her contact with her clients, particularly the elders. Her work had a significant, emotional impact on her.
As a child, the plaintiff had tuberculosis and, until she was aged about 30, had x-rays for that reason every two years. In 1995, she had surgery for a shoulder condition.
I mention that, in 2001, the plaintiff donated a kidney to her brother.
The plaintiff is married and has two children; a boy aged 16 who is in his matriculation year at school and a girl aged 14 who is in year 10. The plaintiff ceased work for almost two years in 1997 and 1998 to spend more time with her children. She considered it was in the interests of her children to do so at that time. During that period, she did some part-time work at the Mount Gambier Primary School as an aboriginal liaison officer.
After the accident, the plaintiff was taken by ambulance to the Meningie Hospital. She was having pain in her right foot. Her foot was x-rayed and she was then taken by ambulance to the Royal Adelaide Hospital. Radiology performed there revealed a facture of the right calcaneum. Her right foot was very swollen and painful. She could not stand on it. After a few days, the swelling subsided sufficiently to enable surgery to be performed to repair the injury. The plaintiff stayed in Adelaide with members of her family while she was waiting for the swelling to subside. He husband, who was, and remains, employed as a shift worker in the south east as a boiler attendant, took time off work to be with her and care for her. He was in Adelaide for 8 to 10 days.
On 3 October 1999, the plaintiff underwent surgery. The injury to the calcaneum was repaired by open reduction and internal fixation. She was discharged from hospital on 5 October 1999.
On her discharge from hospital, the plaintiff’s right leg was in plaster and she moved about with the aid of crutches. She was away from work for about 3 months. During this time, she visited her specialist, Mr Drakopoulos, an orthopaedic surgeon, in Adelaide and saw Dr Forbes in Mount Gambier. Her husband drove her to Adelaide for the appointments with Mr Drakopoulos, taking time off work for the purpose.
The plaintiff returned to work on light duties on 16 February 2000. She worked 4 hours per day. She worked in and about Mount Gambier. Her duties were mostly clerical and did not involve any driving. She returned to full-time work on 18 April 2000.
The plaintiff had difficulty in performing the full range of her duties; largely due to the time she was required to be on her feet and driving. She had pain in her foot: in the arch and the base of the heel. Her foot would ache while she was driving and, after she had been driving, would be stiff and sore. Walking on uneven ground increased the pain. She noticed this particularly when visiting her clients. She had problems in taking the weight of her clients as she assisted them in moving about because she was unsteady on her feet. She had trouble walking on slippery steps and slopes.
The plaintiff continued to perform her full range of duties, but, because of the difficulties she was experiencing, returned to part-time work in about February 2001; working two and half days per week. She had developed marked degenerative changes in the sub-talar joint as a result of her injury.
The plaintiff continued to see Mr Drakopoulos and, on 21 January 2002, she underwent further surgery. She had a fusion of her right sub-talar joint and the plate and screws, which had been inserted at the original surgery, were removed from the calcaneum. Her husband took two weeks off work at the time of the surgery to look after her.
After the operation in January 2002, the plaintiff was off work until 2 September 2002, when she returned to work on a part-time basis: she worked about half-time. She had difficulty coping: her foot continued to give her trouble. On 10 February 2003, she took leave of absence. Her employer arranged for her to be medically assessed. As a result of that assessment, her employment was terminated on 25 August 2003. It was terminated because she was no longer able to continue with her work as a result of the pain and disabilities she was experiencing in her foot.
The plaintiff continues to have trouble with her foot. Prolonged standing, over 20 minutes, causes pain on the outer side of the heel and under the heel, and the foot swells. She takes her weight on her left foot as much as she can and she sits to do her work whenever possible. She elevates her foot at various times during the day; for about 4 hours in all. She sleeps with her foot resting on a pillow. She takes medication to assist her with her sleep. She gets cramp in her toes at night. Weight bearing causes an increase in her symptoms. She avoids carrying things of any significant weight; for example, she does not carry the washing to the line. She is unable to walk for any longer than 20 minutes, when she is forced to stop because of the pain in her foot. Walking on uneven ground increases her pain. She has difficulty in walking on slopes and climbing stairs. Sitting for prolonged periods causes aching in her calf and foot, alleviated by her moving about. She has an almost constant ache in her foot, exacerbated by the activities I have just mentioned. She has marked reduction of movement in her foot and ankle as a result of the sub-talar fusion. Dorsi-flexion is full, but there is a loss of 10-15 degrees of plantar-flexion. There is hardly any sideways movement.
The plaintiff takes panadiene forte on prescription for the relief of her pain. She takes it as required; one tablet three to four times per week. A packet lasts her for about four weeks
The plaintiff does most of the work around the house, at her own pace, getting some assistance from her husband and children; for example, sometimes, her husband does the vacuuming.
During the course of the trial, a significant development occurred. Mr Drakopoulos examined the plaintiff on 9 and 10 February 2005. He found that she had good ankle movement and that the sub-talar joint was stiff: there was no inversion or eversion. Nevertheless, he was concerned as to whether there was an ongoing problem in the area. He arranged for a bone scan to be conducted. It was performed on 10 February 2005. The results of the scan indicated to him that fusion had probably not completely occurred and that this was the cause of some of the plaintiff’s continuing symptoms. He considered that her symptoms were worse than when he had last seen her in 2002. He also considered that, as a result of the accident, it was possible there was some involvement of the cuboid joint in the plaintiff’s right foot; a joint adjacent to the sub-talar joint.
Mr Drakopoulos considers that further surgery is recommended; surgery at which the fusion would be revised to make it firm together with possible fusion of the cuboid joint. A CT scan has been performed which has confirmed his opinion. Mr Drakopoulos is confident that such surgery, if performed, would reduce the level of the plaintiff’s symptoms.
The proposed surgery would involve the plaintiff’s lower leg being encased in plaster for about three months and it would take about a year for her to recover fully from the surgery. The surgery would cost $12,000 to $15,000.
Mr Drakopoulos considers that there is an 80% chance that the surgery would succeed, although success cannot be guaranteed, and that the plaintiff’s current level of disability would be reduced; from his current estimate of a 25% loss of function of the right leg below the knee to a 15% loss of function of the right leg below the knee.
As a result of her injury and its consequences, the plaintiff has suffered, and continues to suffer, from a major reactive depression. She has received, and continues to receive, psychiatric and psychological treatment, including the taking of medication and therapeutic counselling. Her depression is directly related to her injuries, the physical disabilities and pain with which she has been left as a result and the resultant loss of her employment. Her depression manifests itself in depressed mood, loss of self-esteem, irritability, sleep disturbance, impaired concentration and suicidal thoughts. At the commencement of the trial, she was having counselling sessions with a psychologist every three weeks. Initially, commencing in March 2004, she saw the psychologist weekly. The medication she takes is an anti-depressant, Cipiramil. She takes two per day, a packet lasting about two months. She also takes a sleeping tablet Atovan. A packet lasts a month or so.
Following the giving of her evidence, and during the course of the trial, the plaintiff made a serious attempt at suicide: it related to the stress of giving evidence and the way in which she perceived herself as having been treated in the witness box. This episode was a significant setback in her mental state. Her mood had been improving with the treatment she had been receiving, but deteriorated rapidly and to a serious extent under the extra pressure. She is likely to require more frequent consultations with the psychologist and general medical practitioner over the next few months. It is likely that she will need to continue with her medication for the next 12 months or so.
This recent deterioration in the plaintiff’s mood in the face of stress indicates that her vulnerability to stress is significantly increased because of the injuries she sustained in the accident.
The plaintiff’s work, while rewarding for her, was not without its stressors. Apart from anything else, it would have been difficult for her to do the sort of work she was doing while being directly answerable to non-aboriginal people. During 2001, her work situation was complicated because she came into conflict with another employee; a person on the same salary level as herself. There is no need to go into the reasons for the conflict or to describe the steps which were taken to resolve it, it being sufficient for present purposes to note its existence, that it was the cause of friction in the workplace and that it was the cause of stress to the plaintiff. Previously, on separate occasions in 1994 and 1996, the plaintiff had consulted her general medical practitioners because of work-related stress. These incidents do not reflect a pattern of behaviour, but indicate that the plaintiff was not immune to stress in the workplace.
Presently, the plaintiff is not fit for work which involves prolonged standing, walking, sitting or driving, walking on uneven ground, walking on slopes, climbing stairs or ladders and weight bearing. Basically, she is fit only for sedentary work where she can stand, sit and move about as she wishes. My impression is that, assuming the plaintiff undergoes the surgery recommended by Mr Drakopoulos, the probable outcome will be that the pain and disabilities from which she currently suffers will be reduced to the extent expressed by Mr Drakopoulos, but that any improvement in her ability to work as a result is unlikely to be significant.
The plaintiff is not presently inclined to undergo the surgery, although she has not ruled it out; something which is not surprising taking into account what she has been through and her current mood; but she impressed me as the sort of person who, once the stress of the trial is over and she has had time to recover from it, and her mood improves, the level of pain which she is currently experiencing and the disabilities associated therewith will lead her to decide to undergo the surgery; and I will proceed on that basis in the assessment of her damages.
The plaintiff’s present disabilities for work have a physical basis. Superimposed on that physical basis is her depression; a factor which, by itself, would reduce her to ability to work; but, as I have indicated, the psychiatrists who gave evidence consider that, with the passage of time, her depression will abate; so that, by itself, it would not significantly limit her ability to work.
The wage records of the plaintiff and the actuarial calculations tendered in evidence, the accuracy of which have not been challenged, reveal the plaintiff’s salary, relevantly, to have been as follows:
Year Gross Salary Net Salary 30 June 2000 $39,971 $29,582 30 June 2001 $42,040 $32,417 30 June 2002 $44,168 $33,875 30 June 2003 $45,811 $35,001 30 June 2004 $47,726 $36,520
Her gross salary for the period 1 July 2004 to 2 March 2005 would have been $33,055 and her net salary $25,202. From 3 March 2005, her gross salary would have been $49,879 per annum and her net salary $37,995.
The plaintiff’s net salary for the years following her accident were as follows:
Year Actual net salary 30 June 2000 $21,008 30 June 2001 $27,386 30 June 2002 $12,904 30 June 2003 $16,627 30 June 2004 $ 4,441
The present value of a payment of $1 per week at a discount of five per centum per annum payable to the plaintiff to age 65 is $740.
As I have said, the plaintiff liked her work. She was deeply distressed when she could no longer carry on; a situation which exacerbated her depression. I think it probable that, but for the injuries she sustained in the accident, she would have continued to work as an aboriginal aged care worker, or at some other work within her capabilities, particularly with aboriginal people, indefinitely. She had shown by her application that she was keen to work with aboriginal people, she was respected by the aboriginal people with whom she worked and she was a competent and willing worker; and she gained a significant amount of emotional satisfaction from her work.
It will be difficult for the plaintiff to find work for which she is fit. Such work is not readily available and competition for that which is available is high; and the availability of such work in the area in which the plaintiff lives might not be as much as, say, in the metropolitan area. She would need to find a sympathetic employer. It cannot be ignored that people who have made claims for damages for injuries received can be at a disadvantage in the labour market.
In assessing the plaintiff’s entitlement to damages for loss of future earning capacity, I will take into account the possibility that, for whatever reason not connected with the injuries she sustained in the accident and the disabilities flowing therefrom, the plaintiff would not have led a full, working life. Mr Ward, for the defendant, submitted that, on this topic, I should make allowance for the possibility that the plaintiff would have ceased work for a period while her children were at the matriculation and university level. It is true that the plaintiff is ambitious for her children so far as their eduction is concerned and that, in the past, as I have mentioned, she has ceased work to care for them; but the children were much younger when she did that and, on balance, I think it only a remote possibility that she would have ceased work for that reason in the future.
The same goes for the submission Mr Ward made that I should make allowance for the possibility that the plaintiff would have ceased work at some time in the future because of stressors associated with her work. It is true that, over the years, the plaintiff has experienced some work-related stress but, as I have already said, there was no pattern about it and it seems not to have interfered with the quality of her work in any relevant way. I think it only a remote possibility that she would have ceased work because of any stress associated therewith.
I will include in the damages for the plaintiff’s loss of future earning capacity a component for loss of future superannuation contributions.
So far as damages for past economic loss is concerned, the plaintiff is entitled to be compensated by way of damages for loss of income for the periods of absence from work as a result of the injuries she sustained, the treatment therefor and the disabilities flowing therefrom; periods to which I have already referred. I will make an allowance for the possibility that, in respect of those periods, for reasons unrelated to the accident and her injuries, the plaintiff would not have worked for some of those periods. In the circumstances, such allowance will be small. I will include a component for loss of past superannuation contributions.
The plaintiff’s pain and suffering is, and has been, significant; and it will continue. As I have said, there will be some abatement following further surgery, but there will be a permanent degree of pain and discomfort. Her capacity to enjoy the amenities of life has been significantly diminished.
So far as damages for non-economic loss are concerned, I assign a numerical value of 15. The multiplicand at the time of the accident was $1560.
As I have already indicated, the plaintiff has, up until the present, required the assistance of her husband and her children as a result of the injuries she sustained in the accident. I have mentioned the periods the plaintiff’s husband took off work immediately following the accident and at the time of the surgical procedures. There was another occasion during 2004 when he took further time off work to care for the plaintiff when she was undergoing a severe bout of the depression related to her injuries: if he had not taken that time off, the plaintiff would have been admitted to hospital. The plaintiff’s disabilities are such that her ability to perform her usual domestic chores has been reduced and she has needed, and will continue to need, the assistance of her husband in those matters, and he provides that assistance. She will also require the assistance of her husband when she has surgery in the future and during the subsequent recovery period.
Evidence was led for the plaintiff from an occupational therapist who visited the plaintiff’s premises, interviewed her and expressed an opinion about the help the plaintiff needed with the performance of the domestic chores and the cost of such help if it was provided on a commercial basis; that is, from a source outside her family. The plaintiff has not engaged such assistance in the past and gave no indication that she intended to do so in the future. Her claim for gratuitous services relates to the assistance provided by her husband and her children in the past and the prospect of further such assistance in the future; and that is what she is to be compensated for, albeit in assessing damages under that head, the opinion of the occupational therapist as to her needs is helpful.
I have not found it easy to assess the plaintiff’s entitlement to damages for gratuitous services. I am satisfied that the plaintiff has reasonably required, and will continue to require the assistance of her husband and, to a lesser extent, her children; but, leaving aside easily identifiable periods such as those related to surgery and the recovery therefrom, the assistance needed, and provided, is a nebulous thing. I will do the best I can on the material before me to assess the damages under this head. I will fix a figure, which will represent damages for both past and future gratuitous service, including a component for interest on the amount for past gratuitous services. I should mention that, included in the damages for gratuitous services, I have included a small component for Wilson v McLeay type damages in respect of the period the plaintiff’s husband spent with her in Adelaide following the accident.
The plaintiff has incurred expenses in travelling to and from Adelaide and in Mount Gambier for medical treatment and she will incur further such costs in the future relating to the proposed surgery by Mr Drakopoulos. A round trip to Adelaide at, say, 50 cents per kilometre would cost about $500. On the material before me, it is impossible to be definite about the number of trips taken, those which will be taken and the cost involved. I will fix a lump sum for these expenses doing the best I can to do justice between the parties. Such sum will include a component for interest on such expenses already incurred.
Special damages have been agreed at $18,575.78 as to quantum. The only amount in dispute in that sum, so far as liability is concerned, as I understand it, is an amount of $1,082 being the cost of the plaintiff’s treatment following her suicide attempt during the course of the trial. I am satisfied that this amount is properly payable by the defendant: in the relevant sense, it is causally related to the injuries sustained by the plaintiff in the accident.
I should say that, in making my findings of fact, I have treated the evidence of the plaintiff as a reliable basis therefor: she was a patently honest witness; in fact, the same can be said for all the witnesses. Such divergences of opinion as exist between the experts who gave evidence was slight and really only related to matters of emphasis.
I will allow a lump sum by way of interest on the damages for past economic loss.
Doing the best I can, I assess the plaintiff’s damages as follows:
Past economic loss $115,000.00 Future economic loss $445,000.00 Non-economic loss $23,400.00 Special damages $18,575.78 Gratuitous services $10,000.00 Travelling expenses $7,000.00 Future medical expenses $20,000.00 Interest of past economic loss
$14,500.00
$653,475.78
The defendant is entitled to a credit of $20,000, being an amount already paid by the defendant on account of damages
There will be judgment for the plaintiff in the sum of $633,475.78.
I shall hear counsel as to costs.
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