Burton v Sterling Group Services Pty Ltd
[2013] NSWDC 304
•15 November 2013
District Court
New South Wales
Medium Neutral Citation: Burton v Sterling Group Services Pty Ltd [2013] NSWDC 304 Decision date: 15 November 2013 Before: Cogswell SC DCJ Decision: (1) Judgment for the plaintiff against both defendants in the sum of $456,188.
(2) Order the defendants to pay the plaintiff's costs.
Catchwords: CIVIL LAW - Evidence - plaintiff's credibility - absent witness - plaintiff's account of accident well supported - extent of disability attributable to accident - impact on physical, psychological and psychiatric - capacity for working and for domestic activity seriously compromised - damages. Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), Ch 6.
Motor Accidents Compensation Regulation 2005 (NSW), Sch 1 and 2.Cases Cited: Jones v Dunkel [1959] HCA 8; 101 CLR 298; ALR 367. Category: Principal judgment Parties: Karen Burton (Plaintiff)
Sterling Group Services Pty Ltd, Shaun A'Bell (Defendants)Representation: Counsel:
A J Lidden SC, E Welsh (Plaintiff)
J D McDonald (Defendants)
File Number(s): DC 2013/00120411
Judgment
Introduction
I am giving judgment in a case about a woman who was injured in a traffic accident. Her car was hit from behind by a truck. She sued the driver and the truck owner for damages and they have admitted liability. So the case is about how much her damages should be.
The woman claims that she was significantly injured in the accident and that those injuries have had an extensive impact on her life, her employability, her ability to manage day-to-day tasks as well as necessary expenses for her treatment.
The main issues in the case concern the extent of her disabilities, whether they were brought about by the accident and how much in damages should be awarded.
The woman's name is Karen Burton and she is the plaintiff. The truck owner is Sterling Group Services Pty Ltd and the driver at the time was Shaun A'Bell and they are the defendants. The accident happened on 20 March 2008. Ms Burton was represented by Mr A J Lidden SC and Ms E Welsh and the defendants were represented by Mr J D McDonald.
The case was conducted before me over the last three days of October. The witnesses in the plaintiff's case were Ms Burton herself, her daughter Nicole Jeffreys and her son Christopher Burton. The defendants did not call any witnesses. Both parties tendered exhibits.
From the pleadings and the addresses at the end of the case it seems to me that I need to resolve the following issues on the way to entering a verdict.
(a) The credibility of Karen Burton and her daughter Nicole Jeffreys, as well as the absence as a witness of her daughter, Jodie.
(b) The extent of Karen Burton's injuries and disabilities and their connection with the accident.
(c) The amount of any damages which should be awarded for:
- past out-of-pocket expenses
- future out-of-pocket expenses
- past loss in earning capacity, including superannuation
- future loss in earning capacity, including superannuation
- past attendant care services
- future attendant care services.
I have read my notes of the evidence (there was no transcript) and the exhibits. I do not propose to recount the evidence apart from referring to it where necessary.
Credibility and absent witness
Mr McDonald cross-examined Ms Burton on her credibility as a witness and addressed me on the same. He also invited me to infer that counsel for Ms Burton did not call her daughter Jodie because her evidence would not help the case. In other words, he said I should make the inference referred to by Windeyer J over 320 - 322 in Jones v Dunkel [1959] HCA 8; 101 CLR 298; ALR 367.
There was an understandable basis for raising Ms Burton's credibility. One of the doctors, Dr Kossoff, described her as an "unreliable historian." There is some evidence of that, in particular two histories given by Ms Burton to one doctor (a psychiatrist, Dr Lewinski) and to two hospital staff at the Royal Hobart Hospital. Those histories included an account of an "horrific" childhood, with a violent father, and of the relationship with her partner being also violent. Ms Burton denied these in the witness box.
Accounts given to other doctors do not include any significant reference to her problems with depression and anxiety before the accident (Ms Burton is claiming damages for both those conditions). One doctor changed her opinion when given the correct history.
I think Ms Burton's psychological and psychiatric condition (which I will make findings about) have contributed to this problem. She is clearly anxious and stressed. I think she was being defensive and perhaps unrealistic about her childhood and her relationship with her partner, Chris. He was the father of two of her children and was killed in a motorbike accident about a year after Ms Burton's car accident. They had been separated for some years.
Assuming those histories (denied by Ms Burton) are true, they do not provide, in my opinion, an alternative explanation for the precipitous deterioration in Ms Burton's physical and psychological health after the accident.
Ms Burton's account of the accident and its consequences is supported by her treating doctors' histories, diagnoses and active treatment. It is also supported by the evidence of her two children. I find that generally her account is well supported.
Nicole Jeffreys gave a history to hospital staff on which she was cross-examined. The history appears over pp 236 to 237 of exhibit 1. It paints a picture of her mother, the plaintiff, being "depressed 'all her life'" and as having been "described as a difficult person to deal with by family" as well as having had a hard childhood with physical and emotional abuse.
Part of this of course must be hearsay. Nicole Jeffreys goes on to say that "things have spiralled down" for her mother over the last two or three (it is difficult to determine from the note) "years". One factor she mentioned was the car accident which this case is about and which warranted a particular mention by Ms Jeffreys to the hospital staff. Another was a miscarriage which in my opinion was a reference to a termination of Karen Burton's pregnancy after the accident and which I will find, on balance, would not have happened but for the accident. Ms Jeffreys denied saying some of the things, or at least attributing the descriptions to her mother, the plaintiff.
It is difficult to know what to make of this. The history is there but I must balance my reliance on a history taken by an unknown health worker in a hospital from a woman who has flown to her mother's side in circumstances where she was notified that her mother had attempted suicide against her sworn account in the witness box.
Nothing struck me about Ms Jeffreys' evidence to suspect that she was not telling the whole truth. The circumstances of the history being taken contain uncertainties. I have in mind the distress of Ms Jeffreys, the accuracy of the recorder (which we know nothing about) and the questions asked by the recorder. On balance I prefer Ms Jeffreys' evidence.
It would have been helpful to have heard from Ms Burton's daughter, Jodie. I do not know why she was not called. I infer that it was because it would not assist the plaintiff's case; there was no other explanation. But I can go no further and speculate how or to what extent Jodie would not assist her mother's case. I note her mother thinks that she ruined her daughter Jodie's life.
Injuries and disabilities: the evidence
At the time of the accident on 20 March 2008 Ms Karen Burton had been a patient at the Penrith Mall Medical Centre for over 10 years. She saw either Dr Sanaa Barich or her husband, Dr Antwan Barich. They provided reports. Dr Antwan Barich provided his diagnoses of injuries which are "consistent with a motor vehicle accident." In his report of 15 October 2009, Dr Barich's diagnoses were as follows -
" · Post-traumatic mechanical derangement of the cervical, thoracis and lumber [sic] areas with post-traumatic mechanical derangement of the right and left sacroiliac joints.
...
· Post-traumatic right>left supraspinatus, tendonitis/subacromial bursitis.
· Post-traumatic headache attacks and migrainous attacks.
· Post-traumatic stress disorder including sleep disturbances, severe aggravation of her depression especially after the loss of her child."
In her report of 13 August 2008, Dr Sanaa Barich said that Karen Burton "was approximately 4 weeks pregnant at the time of the motor vehicle accident. This was an unplanned pregnancy but she stated that because she could not handle the pain, since the accident, she terminated the pregnancy." I add here that the doctor's notes which were in evidence support the complaints of pain from the accident being related to the decision to terminate the pregnancy. Dr Antwan Barich provided a report to the defendants' solicitors on 14 October 2011. Dr Antwan Barich noted that the practice had "no history of any prior injuries to her back." Although she had had a car accident in the 1990s, perhaps more than one, there is no evidence that there were any ongoing disabilities from that accident. Indeed, Dr Barich in the report said that the injuries from the accident which this case is about "are not an exacerbation of a previous injury." Dr Barich in the report thought that Karen Burton's prognosis was "not good" and referred to the fact that she "still has chronic pain and a poor psychological state." He thought that her condition is "expected to deteriorate."
Karen Burton was referred by the Doctors Barich to a consultant Orthopaedic Surgeon, Dr Medhad Guirgis. In a report of 7 May 2009 Dr Guirguis provided exactly the same diagnosis that I quoted Dr Antwan Barich as giving. I infer that Dr Barich took his diagnosis from Dr Guirguis because Dr Guirguis' reports to Dr Barich's practice included those diagnoses.
Dr Guirgis tried invasive treatment - "intra-articular steroid injections right & left sacroiliac joints" - but said that her response was poor. Dr Guirguis prescribed medication and conservative treatment. He said that Karen Burton was totally unfit for work.
In 2009 Karen Burton moved from Sydney to Tasmania. She saw a Dr Franz Ittermann in his practice in Glenorchy. His diagnosis was the same as Dr Guirgis' and he too thought that Karen Burton was unfit for work when he saw her.
In Tasmania Karen Burton was referred for treatment to a psychiatrist, Dr Veronica Lewinski. That was prompted by an attempted suicide by her on 1 February 2010. Dr Lewinski referred Karen Burton to a Dr Hilton Francis for pain management and also prescribed some significant medication for her pain and psychiatric condition.
Ms Burton had given Dr Lewinski a history of a "horrible" and "violent" childhood and of violence from her former partner but Dr Lewinski did not take a history of any pre-existing depression and anxiety. Dr Lewinski noted that she had "chronic pain and depression for several years, since a road traffic accident on the 20.03.2008." Dr Lewinski added that it "would appear that she was deeply depressed at the time of the overdose, her intent was suicidal." She said that Karen Burton had told her that "in the past she had been in good health but since the accident had been in quite severe pain and reliant on large amounts of Panadeine Forte." She noted also a history that Karen Burton had done "some retraining and was about to get a job when her accident occurred." Dr Lewinski thought that Karen Burton "had a Cluster B personality disorder (histrionic and borderline) or at least traits and as a consequence of this she developed dysthymic disorder and anxiety disorder. She has chronic pain both due to her accident but probably also due to psychological factors."
Back in Sydney for a time in 2011, one of the Doctors Barich referred Karen Burton to a psychiatrist, Dr Augustus Pusic. In a report of 19 May 2011 Dr Pusic diagnosed Ms Burton to be suffering from "chronic pain together with Post Traumatic Stress Disorder characterised by episodes of significant depression, suicidal behaviour and at times panic attacks." He had taken a history of "the onset of her difficulties" being attributable to the car accident in 2008 and that since then she "has experienced significant symptoms of Post Traumatic Stress Disorder."
Karen Burton's solicitors, Brydens Compensation Lawyers, referred her to a Dr Clive Sun who is a consultant in rehabilitation medicine and pain medicine. He provided a report dated 30 September 2009 describing a "clinical picture" as being "consistent with cervicothoracolumbar and right shoulder soft tissue sprain." He added that that diagnosis "has resulted in sleep disturbance, restricted sitting and walking, not tolerate handbag strap on either shoulder, not tolerate wearing of high heels, difficulty with self-care, vacuuming, cleaning, cooking and affected her driving, dancing, socialising, carry objects and sexual activity." He thought that Karen Burton should be "referred to a rehabilitation specialist for management." He thought appropriate treatments would include analgesics as well as anaesthetic injections, physiotherapy and an exercise program as well as a TENS unit. Dr Sun expressed the opinion that "it is reasonable for her to have access to domestic assistance six hours per week to be reviewed every 12 months." He thought that she was "fit for permanent modified duties with no lifting over 5 kg, no sustained work above shoulder level, no forceful pushing or pulling, no repetitive bending and twisting, and change of posture every 30 minutes. Provided suitable duties and workstation are available she may be able to return to 15-20 hours a week of work." He expressed the opinion that "the motor vehicle accident on 20 March 2008 was the cause of her ongoing impairment and disability."
Ms Burton's solicitors also referred her to a consultant forensic psychiatrist, a Dr Thomas Oldtree Clark. He provided several reports although his history included an absence of any abuse in childhood. I am not suggesting that Ms Burton had an abusive childhood but there has been an account, or histories given, of violence in her childhood. He does not appear to have taken or been given a history of pre-existing depression or anxiety. He thought that Karen Burton had suffered a "Post-traumatic Stress Disorder and has developed a Dysthymia." He thought that she should see a treating psychiatrist and gave an estimate of the cost of such treatment.
Reporting again in January this year, Dr Clark confirmed his diagnosis of a post-traumatic stress disorder and added that she "has developed a Major Depressive Disorder." He thought that she needed domestic assistance and was unable to work.
In his most recent report of 26 September 2013, which became exhibit M, Dr Clark confirmed his diagnosis, including the major depressive disorder, and that she "is still unable to work". He noted that her son was acting as her carer and his prognosis was that Karen Burton "is unlikely to change dramatically in the foreseeable future." He noted that her "depression continues and has not been properly treated." I expect that is a reference to the fact that Ms Burton does not appear to be attending a treating psychiatrist.
Against this evidence presented on behalf of Ms Burton there were medical and other relevant reports tendered on behalf of the defendants. There is a report from a Dr David Allen, a specialist in Occupational and Environmental Medicine. It is dated 2 February 2009 and includes some history of previous depression. Dr Allen diagnosed a "soft tissue neck and non-specific low back pain." He added that there appeared to be "substantial psychosocial factors which would require a psychological assessment." He recommended in fact "a psychological assessment to clarify her psychological state at the moment and to clarify her history" and thought that her "psychological status may be affecting her recovery." Dr Allen thought that Karen Burton was fit for her pre-injury duties and domestic duties.
Karen Burton was referred by the defendants' insurer to a psychiatrist, Dr Lana Kossoff, who provided a report on 4 May 2010. Dr Kossoff noted a history of violence in both her upbringing and in the relationship with her children's father. In particular Dr Kossoff said this -
"I have noted the prior history of depression after the break-up of her relationship with Chris some years ago. This completely resolved and there was no evidence of depressive illness prior to the subject accident such that I don't believe that apportionment for a pre existing condition is relevant in this case."
I refer to that because Dr Kossoff is the doctor who changed her opinion once she was given more information about Karen Burton's medical history. Dr Kossoff, in her report that I have just quoted from (which is dated 4 May 2010) expressed the opinion that Ms Burton was "suffering from a Major Depressive Disorder with Melancholia and Posttraumatic Stress Disorder on the background of personality vulnerabilities which underpin the severity and chronicity of her symptoms." She thought that she had "developed a significant depressive illness due to a number of losses after the accident including her baby, her physical health and fitness and her relationship and she is consumed by obsessive negative thoughts and suicidal ideation." She thought that Ms Burton had a "compromised childhood" which led her to developing "personality vulnerabilities" without producing any significant psychiatric symptoms before the accident. She thought however that they were likely to be "underpinning the severity of her current injuries." Dr Kossoff thought at the time that Ms Burton was "unfit for any remunerative employment" and she noted that Ms Burton "relies on her daughter to assist with domestic duties but this is mainly because of her physical symptoms and I don't believe her psychiatric condition impacts on her ability to undertake domestic duties." As for a prognosis she noted that Ms Burton "needs treatment for her condition and has only just seen a psychiatrist such that it is my opinion the Major Depressive Disorder and Posttraumatic Stress Disorder have not stabilised, and are unlikely to stabilise for 12 months." She thought a prognosis for complete remission was "guarded".
Dr Kossoff was later sent a copy of the medical records kept by the Penrith Mall Medical Centre and asked by the defendants' solicitors for another report in light of that additional information. This is how Dr Kossoff expressed her conclusion -
"As a result of this new information which has come to hand, my opinion regarding Ms Burton's psychiatric injuries following the motor accident has changed in that there is objective evidence of a symptomatic depressed mood occurring for a number of years prior to the subject accident and, indeed, Ms Burton received treatment for this some 9 days before the subject accident. I hence alter my diagnoses to the following diagnoses, which are now exacerbation of pre-existing Major Depressive Disorder and Post-Traumatic Stress Disorder. As there is objective evidence of symptomatic depression prior to the subject accident, according to the Motor Accident Authority Guidelines for the Evaluation of Permanent Impairment, an apportionment must be made for a pre-existing condition when the final assessment of the whole person impairment is made."
The defendants' solicitors engaged an Occupational Therapist, a Ms Josephine Campisi, to visit and assess Karen Burton at her home. Ms Campisi visited Ms Burton on 16 May 2011 and provided a very detailed report on 5 August 2011. Ms Campisi noted that paid domestic assistance was not recommended "whilst Ms Burton is living with family" and added that if Ms Burton was to live "independently" the use of online shopping services "is recommended." She recommended some equipment items for domestic activity and thought that she had the capacity to complete domestic activity "with the use of task modification, alternative methods, pacing and equipment." She thought that Ms Burton "has potential to resume part-time work with suitable physical demands and with commensurate improvement in her physical capacity and motivation to engage in such tasks." She also said that "participation in activities of daily living would be facilitated by community based occupational therapy intervention on work simplification and prescription of equipment." Ms Campisi thought that Ms Burton "is not currently a suitable candidate for return to work due to a range of factors including pain management, low levels of physical activity; and pre-MVA psychological impairments." She thought that she had "restrictions to her physical tolerances due to pain and reduced movement in the neck, both shoulders and low back." Ms Campisi concluded that "within her current living arrangement, Ms Burton has the capacity to complete all domestic tasks with the use of adaptive methods, pacing and equipment" and said that "no paid assistance is recommended."
The defendants also engaged a vocational psychologist, Professor Robert Pryor, who saw Karen Burton in May 2011. He provided a report on 20 July 2011 and thought that "she had the potential from a physical perspective to return to sedentary work providing she can engage with pain management and physical upgrading." He thought that there were "no definitive clinical signs to prevent her from potentially upgrading to working as a bank teller". He thought that any return to work would need to be "graduated and she needs to be able to vary her posture as required." He thought that her "deconditioning, reported lack of engagement in self efficacy measures and her reported ongoing depression do not bode well for her successful return to work." Professor Pryor added helpfully that Ms Burton's "likely employment prospects if the accident had not occurred would be that, in her mid-40s (around 2013), she would be seeking unskilled work or entry level administrative or customer service positions." He thought that on the basis of Ms Burton's "current education and employment related skills and experience, it is considered that Ms Burton would not have been successful in an application" for the position at the Commonwealth Bank that she was hoping to gain before the accident. He thought that "referral to a multi-disciplinary pain management program would be appropriate."
Joan Lawlor, a Musculoskeletal Physiotherapist to whom the defendants referred Ms Burton, thought that Ms Burton "has the potential from a physical perspective to upgrade from working 12 hours per week over three alternate days to working on a full-time basis in a sedentary or semi-sedentary capacity." She thought that any return to work "would need to be graduated and she needs to be able to vary her posture as required."
Finally, a clinical psychologist to whom Ms Burton was referred by the defendants, Peter Defina, provided a report on 18 May 2011. He thought that Ms Burton "would be suitable for employment in roles similar to those she held before the accident." She would need to "undertake relatively brief further training" which would enhance her prospects for employment. He thought that the "hours and days would be guided by her physical capacities" but thought two days a week initially, building up to fulltime would be appropriate. He suggested a range of jobs for which she might be suited.
Findings regarding injuries and disabilities
I accept Dr Guirguis' diagnoses regarding Karen Burton's physical condition. He is the only specialist orthopaedic surgeon from whom I have evidence. Those diagnoses of Dr Guirguis have also been accepted by Karen Burton's treating GPs and other doctors and they are consistent with her complaints to the Doctors Barich over the year following her accident. There were no relevant complaints of such injuries before the accident. There is also some radiological support, as pointed to by Mr Lidden SC in his address.
Karen Burton's physical condition has also been actively and invasively treated over the years, this includes her shoulders. The diagnoses include her shoulders, as Dr Guirguis pointed out in his reports of 11 December 2008 and 7 May 2009. I accept that Karen Burton's neck and back pain and disability are continuing in the way that Karen Burton explained in her evidence. Doctors are still prescribing powerful pain relieving medication.
I accept that Karen Burton suffered depression and anxiety before the accident. However most of the medication was prescribed up to 2005. There was a recurrence in early 2008 with a prescription of medication for short-term relief of anxiety about a week before the accident. At the same time I accept Karen Burton's evidence that she was getting her life in order, she was working and going to the gym and undertaking some training and job interviews.
But the accident had a very serious impact on Ms Burton's somewhat fragile mental health. Three psychiatrists have diagnosed post-traumatic stress disorder and I accept that. Pre-existing predisposition to depression and anxiety was aggravated significantly. Dr Kossoff supports that, although I do not find the histories given to the Doctors Barich point to a pre-existing major depressive disorder.
I accept that the conditions which I have just described, physical, psychological and psychiatric, were brought about by the car accident. I accept Karen Burton's evidence of her ongoing physical, psychological and psychiatric conditions. It is consistent with the medical evidence. It is clear in my opinion that the termination of her pregnancy was brought about by the consequences of the accident. The histories taken by her GPs point convincingly to that.
On the other hand I do not attribute Karen Burton's suicide attempt to the accident. As Mr McDonald pointed out in his submissions, there was a lot else going on in her life at that time in Tasmania.
What impact have these conditions had on Karen Burton's ability to work and attend to her day to day domestic activities? There is scant up to date medical evidence but past medical and other evidence demonstrates, in my opinion, that her working capacity has been seriously compromised. She remained totally unfit for years and even the defendants' assessments are guarded about how she should manage a return to work. Both her physical and mental conditions contribute to this.
Given her work and educational history, I regard her intention to become a "career mum" as optimistic. But it was an aspiration that she was working towards and the evidence in exhibits A and D supports that. Karen Burton's ability to cope domestically was seriously compromised. I accept her evidence and the evidence of her daughter and son in that regard. Once again, even the defendants' experts suggest a need for equipment, family support and online shopping.
In my opinion Karen Burton's capacity for employment and for domestic activities remains significantly compromised. The most recent medical report from Dr Clark, dated 26 September 2013 supports that, as do the notes from her current GPs' practice, which became exhibit M. On the other hand, Dr Sun thought that Karen Burton's need for domestic assistance should "be reviewed every 12 months."
It is difficult to predict the future because of the scarcity of up to date assessments and prognoses. Karen Burton's condition is still being actively treated and the psychiatric prognosis is "unlikely to change dramatically in the foreseeable future", as Dr Clark pointed out in his most recent report.
In my opinion Ms Burton's most likely future circumstances, but for the injury, accord with the opinion expressed by Professor Pryor where he thought that her "employment prospects if the accident had not occurred would be that, in her mid-40s (around 2013), she would be seeking an unskilled work or entry level administrative or customer service positions."
I differ from Professor Pryor only in that I do not find that she is presently, in 2013, in a position to seek that kind of work. As I say, it is very difficult to predict the future because of the scarcity of assessments and prognoses looking into the future. But given her past, and her past earning ability as demonstrated by her tax returns, exhibit J, I think that Professor Pryor's scenario is a likely one. I turn now to an assessment and award of damages.
Damages
Ms Burton's past out-of-pocket expenses have been agreed at $12,404. I accept that those expenses were reasonable and I would allow that amount.
The suggested amount put forward by Mr Lidden SC for her future medical expenses is $30,000. I think that that is overly generous, partly because I do not have evidence about the likely duration of her need for treatment. I would regard an amount of $12,000 - being the same amount as I allowed for her past out-of-pocket expenses - as being reasonable. She is still undergoing active treatment for he physical and psychiatric condition which mostly comprises medication.
Turning to her compromised earning capacity, Mr Lidden SC suggested that I should allow $500 net per week for the period of 5.6 years since the accident. I regard that as too much. It is not consistent with her earnings from employment as reflected in exhibit J. As Mr McDonald pointed out in his submissions, from employment her average weekly earnings ranged from around $40 to around $130 per week based upon that exhibit.
I must bear in mind that but for the accident she might have proceeded to have the baby and remain out of the workforce for a period of time. I would regard a suitable estimate as $100 a week. If I allow $100 a week for 5.6 years it would produce a figure close enough to $30,000, which I would award. I would in addition add 11%, namely $3,300, for loss of superannuation on that figure.
Mr Lidden SC's claim for future loss in earning capacity is around $300,000. That is based on a figure of $500 a week until Ms Burton reaches the age of 67, namely 22 years. I regard that figure as too much. I would be prepared to err on the side of generosity and predict that Ms Burton may lose $200 a week for that period of time given that she may recover to some extent from her conditions. I would regard a suitable figure for loss of earning capacity as it relates to the future as being $120,000. I would add to that a figure of $17,000 for future loss of superannuation.
In all, for loss in earning capacity both past and future I would regard an appropriate sum as $170,000. I am attracted to Mr McDonald's suggestion that the loss of earning capacity should be compensated for by a buffer rather than by detailed calculations. Mr Lidden SCs calculations amounted to a figure of some $450,000. Another way of me compensating Ms Burton is to allow her a figure of $170,000. I reach that figure based upon the kinds of calculations which I have referred to.
For attendant care services as they are up to date I accept, as I said, the evidence of Ms Burton, of her daughter Ms Jeffreys, and of her son Christopher Burton. In particular I place reliance upon the evidence of Christopher Burton. He for some time was drawing assistance from the federal government when he was acting as his mother's carer. He found that he could not live on that allowance and he secured a job. He moved from New South Wales to Queensland to look after his mother. Still he undertakes caring services, he thought, for up to two hours a day.
I regard the figures suggested by Mr Lidden SC (as provided in his schedule of damages MFI 3) for past domestic assistance as being reasonable and supported by the evidence of Ms Burton and her son and daughter. I would therefore award the amount of $39,000 for the period from 20 March 2008 to 20 September 2009 and I would allow the amount of $56,784 for the period from 1 November 2010 to date. I appreciate that I have not updated that figure to the time of this judgment but it is, after all, an estimate.
Again the need for future domestic assistance is difficult to assess because of the lack of evidence pointing to the future. I regard it as reasonable to expect that Ms Burton's son Christopher may continue to provide about 10 hours a week of domestic assistance to his mother for a period of about 2 years. The agreed rate is $26 an hour. Using the tables, for the period of 2 years at a discount of 5%, the multiplier is 99.4. That would produce a figure of $26,000.
I would regard it as reasonable to still allow, after that, 10 hours a week of attendant care services from a paid provider for 8 years. The rate is agreed at $40 an hour. The multiplier for 8 years is 345.6. I would therefore regard an appropriate figure as $140,000 for future attendant care services.
By my calculations the total sum of those various awards of damages is $456,488.
HIS HONOUR: Before I enter a verdict and judgment for that amount, Mr Chia, Ms Giles, if you would just check the sums for me? Do you want me to repeat any of the figures?
CHIA: Your Honour, perhaps it might be more effective if we take quick break and I can make any necessary calls to counsel briefed in the matter and come back later this morning. Would that be suitable?
HIS HONOUR: Yes, sure. Why?
CHIA: Only so that I can sit down and work through the calculations myself and if necessary call Ms Welsh, who was briefed in the matter.
HIS HONOUR: All right, well let me just repeat it so you have got the note. I'm thinking I would go and have a cup of tea and come back in about 20 minutes or so.
CHIA: Suitable.
GILES: That's fine.
HIS HONOUR: Past OPs $12,404. Future OPs $12,000. Loss in earning capacity $170,000, as a buffer, calculated in a way that I suggested, which is for the past $100 per week for 5.6 years, for the future about $200 a week for the whole period. Superannuation on the past would be $3,300, on the future would be $17,000. Past domestic assistance $39,000 up to 20 September 2009 and from 1 November 2010 to date, $56,784.
Future domestic assistance for two years is $26,000, which is 10 hours a week by $26 per hour by the multiplier 99.4. After that, 10 hours a week for eight years at $40 an hour which is 10 by 40 by the multiplier 345.6, producing, in round figures $140,000. Total, $456,488. How does that sound? And I will come back at about 12.05pm, is that okay?
CHIA: Thank you, your Honour.
GILES: Thank you.
SHORT ADJOURNMENT
HIS HONOUR: How did you go Mr Chia?
CHIA: Your Honour, the total that your Honour provided was $446,488.
HIS HONOUR: Correct.
CHIA: That should be $300 less if--
HIS HONOUR: Fair enough.
CHIA: --the loss of future earning capacity is $170 round.
HIS HONOUR: I see, yes it is.
CHIA: If you add up the different components, including future superannuation, that should be $300 more, $170,300.
HIS HONOUR: I will - my associate did say, "Do you want to bring things down?" I said, "No, I won't need anything", and I haven't got a calculator. Can somebody - yes, here we go, yes. So let's do the sums. You're quite right, it should be $456,188, is that right?
CHIA: Yes, your Honour.
HIS HONOUR: Do you agree with that Ms Giles, that calculation?
GILES: Yes, your Honour. I just have a query. The calculation for future superannuation, how did you get the $17,000?
HIS HONOUR: I got that by multiplying $120,000 by 13.93% which is the figure on MFI 3, which is the schedule of damages, I'll hand that down. I was told for reasons that need not bother me the multiplier for future is different to the multiplier for past, and that came to $16,716, and I rounded it up to $17,000.
GILES: Thank you.
HIS HONOUR: Does that make sense?
GILES: Yes, your Honour.
HIS HONOUR: I'm not asking you whether you agree or disagree, but does it make sense?
GILES: Yes, thank you.
HIS HONOUR: Because it really is an estimate of loss of earning capacity, so that's why, and also that's why I really classified it as a cushion. All right, now, any other queries? Yes Mr Chia?
CHIA: The plaintiff seeks costs on the ordinary basis.
HIS HONOUR: Yes. Ms Giles, costs follow the event?
GILES: Costs are regulated under the Motor Accidents Compensation Regulations.
HIS HONOUR: Okay, tell me.
GILES: I don't have everything worked out, but I can hand up the schedules.
HIS HONOUR: I've got the Act but I haven't got the regulations.
GILES: Schedules 1 and 2 of the Motor Accidents Compensation Regulations 2005.
HIS HONOUR: Thank you. What do I need to look at, if anything? Do I need to do anything apart from make an order for costs in accordance with the regulations, or what do you--
GILES: No, I think that's sufficient.
HIS HONOUR: What do you say Mr Chia?
CHIA: I think just an order for costs would be sufficient and this would be a matter for taxation, agreement and assessment.
HIS HONOUR: I think Mr Chia has got a point, Ms Giles. Would it be if it goes to taxation do I need to - what does the legislation say? Let's have a look at the Act. Costs, there's a whole chapter about it. Mr Chia, I think I should award costs in accordance with chapter 6 of the Act and the regulations it seems to me, because section 153 of the Act says, "Any order of the court as to costs is to be made consistently with the relevant provisions of, or made under this Act." I may make an order "that departs from those provisions in an exceptional case and for the avoidance of substantial injustice." Are you looking up the Act there?
CHIA: Yes I am.
HIS HONOUR: Motor Accidents Compensation Act, 153. Why don't you both have a look at this, I'll pass it down.
CHIA: Is your Honour proposing to make an order defendants pay the plaintiff's costs in accordance with the chapter 6?
HIS HONOUR: Yes, defendants pay the plaintiff's costs in accordance with chapter 6 and the Motor Accident Compensation Regulation 2005.
CHIA: That's suitable.
HIS HONOUR: Does that sound all right?
CHIA: Yes.
HIS HONOUR: That sounds okay?
GILES: Yes thank you.
I enter a verdict and judgment for the plaintiff in these proceedings against both defendants in the sum of $456,188. I order the defendants to pay the plaintiff's costs in accordance with Ch 6 of the Motor Accidents Compensation Act 1999 (NSW) and any regulations made under that Act.
HIS HONOUR: How does that sound? Have I got it right?
CHIA: Thank you, your Honour.
GILES: Yes.
CHIA: Perhaps your Honour, you might need to include agreement for oncosts as agreed or--
HIS HONOUR: As agreed? Well, yes, I should add after the word costs, "as agreed or assessed". Does that sound right or not? No?
GILES: I don't think they can be assessed.
HIS HONOUR: No, I'm not going to add it, I'm going to leave it, and if you agree, obviously you agree. I'll give you back the regulation, thanks Ms Giles. Now that finishes the case doesn't it, there's nothing else that involves me. Now, tell me, were there any settlement discussions?
CHIA: Prior to the hearing?
HIS HONOUR: Yes, or during.
CHIA: I think there were a couple of offers of compromise.
HIS HONOUR: Were there? And does the verdict come in over those?
CHIA: Yes, yes it does.
HIS HONOUR: Ms Giles is nodding her head.
GILES: Yes it does.
HIS HONOUR: Okay, all right, but obviously not as much as the plaintiff offered, but I'm just suggesting that if it had come in under the offers of compromise filed by the defendants there would have been another order about costs, is that right?
GILES: That's right, we would have sought an order, but that's not relevant now.
HIS HONOUR: That's not the case, good. I just wanted to get a sense of where I was at.
CHIA: Your Honour, if it assists I can take custody of the exhibits.
HIS HONOUR: What do we do there Mr Chia? Should they not go on the court file for the period of time the case is in appeal? I don't know, what do you want to do? Because if there is an appeal they will be needed, and I'm not saying there will be or won't be, I don't know.
CHIA: That's correct.
HIS HONOUR: But my experience is if there is an appeal and you start chasing after exhibits - I know in crime they end up in a locker in the back of a police station and nobody can find them when it gets to the Court of Criminal Appeal, but what do you think?
CHIA: Well, either way is suitable to the plaintiff.
HIS HONOUR: I think I'll leave them on the court file. What's the period of time for an appeal? Is it 30 days?
CHIA: I think it's 21.
HIS HONOUR: All right, let's say 30 days.
So the exhibits are to be returned to the file and the parties have leave to uplift the exhibits from the court file after the expiry of 30 days from today.
HIS HONOUR: I'll add that too. Does that make sense?
CHIA: Yes, your Honour.
GILES: Yes thank you.
HIS HONOUR: Anything else?
CHIA: No, your Honour.
GILES: No, your Honour
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Decision last updated: 21 March 2014
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