Cairncross v Hewagama

[2018] NSWDC 166

District Court

New South Wales

Medium Neutral Citation:	Cairncross v Hewagama [2018] NSWDC 166
Hearing dates:	20 and 21 June 2018
Date of orders:	25 June 2018
Decision date:	25 June 2018
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1)   Judgment for the plaintiff against the defendant for $28,250. (2) Order pursuant to s 77(2) of the Civil Procedure Act 2005 that the judgment sum be paid into court. (3) Order pursuant to s 77(4) of the Civil Procedure Act 2005 that the sum of $1,000 be paid out to the plaintiff’s solicitor on his undertaking to repay or reimburse the past out-of-pocket expenses. (4) Order pursuant to s 77(4) of the Civil Procedure Act 2005 that the balance of monies in court of $27,250 be paid out to the NSW Trustee & Guardian for management until the plaintiff turns 18. (5)   Order the defendant to pay the plaintiff’s costs. (6)   Liberty to approach my Associate within 7 days if either party seeks a different costs order.
Catchwords:	DAMAGES – future treatment – future loss of earning capacity - buffer
Legislation Cited:	Motor Accidents Compensation Act 1999
Cases Cited:	Russell v Rail Infrastructure Corporation [2007] NSWSC 447 Nominal Defendant v Gardikiotis [1996] HCA 53
Category:	Principal judgment
Parties:	Britney Cairncross bhnf Glen Cairncross (plaintiff) Sashini Charuka Hewagama (defendant)
Representation:	Counsel: T Hickey (plaintiff) D Petrushnko (defendant)   Solicitors: Law Advice Compensation Lawyers (plaintiff) Moray & Agnew (defendant)
File Number(s):	2017/374332

Judgment

Introduction

1. The plaintiff was injured when she was a passenger in a motor vehicle driven by her father, which was involved in an accident on 8 December 2014. She was 10 years old at the time. She was a rear seat passenger.

2. A vehicle driven by the defendant crashed into the back of the family car. Breach of duty of care was admitted by the defendant. The matter proceeded as an assessment of damages only.

3. The plaintiff and her father gave evidence. Both witnesses struck me as honest and straightforward. Both were witnesses of truth. Everything they said was borne out by the contemporaneous documentary material. Further, the plaintiff herself was not cross-examined.

Evidence of the Plaintiff

4. The plaintiff was born on 11 September 2004. She was 10 years old at the time of the accident and was 13 at the date of trial. She is in Year 8 at high school.

5. The plaintiff felt a large impact when the defendant’s car ran into the back of her family car. She remembers screaming and crying and feeling shocked. Straight away she felt a sharp stabbing pain in both her neck and her lower back. The family went home and she was given non-prescription pain killing medication.

6. The day after the accident she saw a general practitioner. She told this doctor about her pains and problems. She said that those problems have stayed the same since the accident. The plaintiff still takes Panadol and Nurofen for pain. She also has pain in both shoulders, which comes from her neck. She takes one or two pain killing tablets per week, which is for her neck and lower back pain.

7. The plaintiff was asked about her state of mind. She said that she is now not as upbeat as she used to be. Due to pain she cannot do physical and sporting activities and consequently she is not as happy as she used to be. She doesn’t socialise as much as she used to. She feels “different” since the accident.

8. The plaintiff described having nightmares once or twice a week, which involved being trapped in a car. During the daytime she sometimes thinks about the accident.

9. Her GP sent her to see a psychologist Mr Herrera, but there was no report from that treating practitioner.

10. The plaintiff said that the pain comes and goes. Activities which bring it on are walking, running, sitting for long periods or doing PE at school. The plaintiff said that she has pain a couple of times per week. She has missed days at school due to pain about once every month.

Evidence of the Plaintiff’s Father

11. The plaintiff lives for about five days per week with her father Mr Glen Cairncross. They are quite close. The plaintiff’s mother has mental health issues and is not able to look after the plaintiff much nowadays. Mr Cairncross is not presently employed and is unfit for work, as a result of his own injuries.

12. Mr Cairncross described the plaintiff before the accident as being an energetic 10 year old who would always want to go to the park to play, and who was upbeat and positive.

13. Mr Cairncross gave evidence consistent with that given by the plaintiff about the immediate aftermath of the accident and about the plaintiff complaining on a regular basis of pain in the neck, the lower back and sometimes the shoulders. The plaintiff has come home from school and said her back is aching and she needs to lie down. This happens nearly every day.

14. Mr Cairncross recalled the GP giving the plaintiff a referral to see Mr Herrera, a psychologist. She saw him in about June 2017 but she has not seen him for a while, because Mr Cairncross has financial problems and could not afford the fees of the psychologist.

15. Mr Cairncross said that the plaintiff takes medication from time to time. She also went to physiotherapy once. Again, he could not afford to keep this up.

16. Mr Cairncross said that the plaintiff is not as happy now as she was before the accident. She does not run around now or go to the park. She no longer wants to kick a ball around. She has complained to her father of nightmares and about once a week says that she doesn’t want to sleep with the light off.

17. Mr Cairncross said that his daughter misses about eight days per year because of neck and back pain. He was cross-examined about an absences report from the high school. While there were many days of absences, some of those were recorded as being due to pain.

18. Mr Cairncross was also cross-examined about the primary school records from 2014, before the accident. In the first semester of 2014 the plaintiff had 20 days absent from school and in the second semester she had 40 days absent. A lot of these absences were related to dealing with the plaintiff’s mother’s mental health issues. Mr Cairncross said that before the motor vehicle accident the plaintiff had never missed a day from school because of pain in her neck, back or shoulders or because of any psychological issues.

Medical Evidence for the Plaintiff

19. The plaintiff saw a GP Dr Sellathurai, on the day after the accident being 9 December 2014. The doctor took a history that the plaintiff had been a back seat passenger in a car hit from the rear at 3.00pm the day before. The plaintiff was complaining of pain in the neck, thoracic spine and lumbar spine. The treatment was with Nurofen.

20. The plaintiff saw Dr Sellathurai again on 16 December 2014. There was a complaint of pain in the lower back which had developed in the week following the accident. The plaintiff then had occipital headaches.

21. The plaintiff also saw another GP Dr Beesoondoyal. The first consultation concerning accident-related conditions was on 2 November 2015 when the plaintiff complained of neck pain. Stiffness of the neck was noted on examination.

22. On 22 December 2015 there was ongoing neck pain and a painful range of movement. There was referred pain in the shoulders. The history was that the plaintiff had been taking Nurofen tablets at night.

23. The next accident-related consultation was on 18 November 2016 when the plaintiff complained of ongoing neck pain and also mentioned pain in the shoulders and lower back.

24. On 27 March 2017 the plaintiff complained to Dr Beesoondoyal of ongoing neck pain with radiation into the left and right upper shoulders and arms. She also had lower back pain.

25. On 27 April 2017 the plaintiff reported to the GP that she had nightmares quite frequently. Her parents wanted her referred for a psychological opinion, and the GP gave them a referral to Mr Herrera. It is a pity that no report was obtained from Mr Herrera, the treating psychologist.

26. The records of Dr Beesoondoyal went up to 15 May 2018 and there were no further attendances for any accident-related conditions.

27. The plaintiff was sent to three medico-legal doctors by her solicitors. On 9 February 2016 she saw Dr Ellis, a general surgeon. She complained to him of neck pain which was aggravated by adopting sustained positions in flexion and movement. She had numbness in both shoulders affecting the right and left equally, and pain. Lower back pain persisted and it was aggravated by bending, lifting, prolonged standing, sitting and walking for more than half an hour. There was no radiation of pain to the legs. Sporting activities were all reduced. The plaintiff was taking Panadol every few days.

28. On examination Dr Ellis found movements of the back to be restricted. Straight leg-raising was to 60 degrees on each side, and was associated with back and leg pain. Neck flexion and extension was reduced to half normal range. Shoulder movements were restricted on both sides.

29. Dr Ellis thought that the plaintiff suffered from soft tissue injuries to her neck, shoulders and lower back. The plaintiff was restricted in sporting and recreational activities. Dr Ellis thought that the plaintiff was in need of further treatment, as she only had had one session of physiotherapy which was inadequate. Dr Ellis thought that physiotherapy and hydrotherapy should be continued for at least 12 months, at a cost of $4,000. Dr Ellis noted that the plaintiff’s school work was proceeding without problems.

30. The plaintiff was seen by Dr Porteous, an occupational physician, on 3 August 2017. He found that there had been no academic limitation on the plaintiff progressing through school. The plaintiff reported neck pain occurring with activity which was about 6/10 or 7/10 on a pain scale. The plaintiff reported lumbar pain around 6/10 with activity. Activities which caused such pain included riding a bike, running, or playing sport such as tennis, basketball and netball.

31. On examination Dr Porteous found a restricted range of movement in the neck, discomfort in the shoulders and discomfort in the lower spine on movement.

32. The diagnosis was of musculo-ligamentous strain of the cervical and lumbar spine. Dr Porteous thought that the plaintiff would benefit from an exercise physiology program attending twice a week over 10-16 weeks at $190 per visit. He thought that intermittent simple analgesia at a cost of $25 a quarter was necessary “for the medium term”. Dr Porteous gave a costing of psychological treatment which had been proposed by Dr Hampshire, at a cost of $250-$500 per session. Dr Porteous thought that the plaintiff needed to see a general practitioner every 6-12 months for the medium term, at $95 a visit.

33. Dr Porteous offered the view that there was no effect on the plaintiff’s academic activity and performance. However, the plaintiff had reduced physical capacity, with ongoing pain and restriction in the neck and lower back. Dr Porteous thought that the plaintiff would be able to compete in due course in the open market place for employment and that he thought that the plaintiff’s condition would not deteriorate. The prognosis was for resolution “within the medium term”.

34. Neither Dr Ellis nor Dr Porteous were required for cross-examination. The defendant tendered no medico-legal reports covering the same fields as Dr Ellis and Dr Porteous. I accept the opinions of both Dr Ellis and Dr Porteous.

Psychiatric Evidence called by the Plaintiff and the Defendant

35. As previously recited, unfortunately there was no report tendered from Mr Herrera, the treating psychologist. The plaintiff was seen for medico-legal purposes by Dr Hampshire, a psychiatrist. He noted the history regarding the motor vehicle accident and complaints of pain. Dr Hampshire assessed the plaintiff on the Beck Depression Inventory and obtained a result which put the plaintiff in the mild range for depression. He said that the plaintiff feels sad and feels that she has nothing to look forward to. The plaintiff reported problems falling asleep at night. There was also a history of intrusive nightmares. Dr Hampshire thought that the plaintiff had developed a mild Post-Traumatic Stress Disorder. He also thought that the plaintiff suffered from a mild depression which he diagnosed as an Adjustment Disorder with depressed and anxious mood.

36. Dr Hampshire noted that the plaintiff had topped her classes virtually right through her primary school and the first two years of her secondary school. He described the plaintiff as a charming and polite young lady, who was sophisticated beyond her years and who had a very comfortable interpersonal relating style. That was also my impression of the plaintiff when she gave her evidence. She struck me as an intelligent young woman who handled being in a court and answering questions from her barrister with aplomb.

37. Dr Hampshire thought that the plaintiff was a candidate for treatment with one of the newer desensitising techniques. He thought that she might require as few as 5 or as many as 15 sessions with a psychiatrist or psychologist experienced in the use of these techniques. He was cautiously optimistic regarding the longer term prognosis.

38. The defendant sent the plaintiff to a psychiatrist Dr Newlyn. He took a detailed history from the plaintiff, which was completely consistent with the plaintiff’s evidence and her histories given to other doctors. In particular, he noted that nightmares happened about twice per week and that the plaintiff would wake up screaming in the middle of the night. The plaintiff said that she lost interest in sports because she got dizzy. She used to be enthusiastic about going to school but now felt depressed and didn’t feel like going to school. The plaintiff gave a history of neck and lower back pain for which she took medicine once or twice a week.

39. Dr Newlyn thought that the plaintiff met the diagnostic criteria for a principal diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought that the plaintiff did not meet the diagnosis criteria for the diagnosis of Post-Traumatic Stress Disorder.

40. Whatever label the psychiatrists put on the plaintiff’s psychological problems, the fact is that Dr Newlyn recorded the plaintiff’s assertions about her mental state and did not cast any doubt upon the veracity of those complaints.

41. Dr Newlyn thought that there was no need for future psychiatric treatment “because adjustment disorders are self-limiting”. There was no explanation of why or how that was so. He thought that the plaintiff was psychiatrically fit for activities of daily living and domestic functioning and would not have any limitations on continuing her education.

42. I prefer the evidence of Dr Hampshire that the plaintiff would benefit from a course of treatment, to the opinion of Dr Newlyn that no treatment is necessary. Nightmares twice a week, four years on, requires something to be done to help the plaintiff.

School Records

43. The plaintiff started in Year 7 at high school in 2017. In the first half of that year she had 26 full days off and three part days off. Four of the days off involved complaints of neck and back pain. That is consistent with the evidence of both the plaintiff and her father.

44. School Reports from the high school were tendered for the year 2017. The plaintiff is near the top of her grade overall. The plaintiff is way above the average in English, having a mark of 70 as opposed to an average of 40. This was also the case in Geography, Visual Arts and Personal Development. The plaintiff was slightly above average in Science and Technology. She was slightly below average in Japanese. The plaintiff was significantly below average in Mathematics.

Assessment of Damages

45. The assessment of damages is governed by the provisions of the Motor Accidents Compensation Act 1999 (the Act).

46. The plaintiff is not entitled to non-economic loss as she has not exceeded the statutory threshold.

47. There was an agreed figure of $1,000 for past out-of-pocket expenses. Most of this had been paid by, and would have to be reimbursed to, Medicare.

Future Out-of-Pocket Expenses

48. Dr Ellis thought that the plaintiff needed a course of physiotherapy and Dr Porteous thought that she needed a course of exercise physiology. There seems to me to be a significant overlap between these two modalities of treatment, and I think that the plaintiff can only have one. I propose to award $4,000 for the physiotherapy proposed by Dr Ellis.

49. The plaintiff has been accepted in relation to her low level consumption of non-prescription pain-killing medication. I find that she will need this for the next five years until age 18, at a cost of $2.00 per week. Without doing any fine mathematics, I will allow $500.

50. I accept the opinion of Dr Hampshire that the plaintiff would benefit from further psychiatric or psychological treatment sessions. The plaintiff has seen Mr Herrera and has, according to her father, apparently obtained some benefit. Those sessions only stopped because the father could not afford to pay for further treatment. The sessions cost between $250 and $500 each. Dr Hampshire thought that there would need to be between 5 and 15 sessions. That gives a wide range. I will select 10 sessions at $500 per session, a total of $5,000.

51. I will also allow supervisory visits to the GP for the next five years at a cost of $100 per year. Again without doing any fine mathematics, I will allow $500.

52. There will be a total award for future out-of-pocket expenses of $10,000 made up as follows:

Physiotherapy	$4,000
Psychological treatment	$5,000
Analgesia	$500
General Practitioner	$500
TOTAL	$10,000

Future Paid Commercial Care

53. There is no evidence that the plaintiff will be unable to undertake ordinary domestic tasks in the future. Firstly, there is the evidence of Dr Porteous that he thinks that the physical problems will resolve in the medium term. Secondly, domestic tasks do not have to be done to a timeframe, as is the case with the performance of employment-related tasks. People with minor physical disabilities can usually get their housework done in the week by pacing themselves. I find that this is the way the plaintiff will do any future housework, even if she still has neck and back problems when the time comes for her to be self-sufficient in housework. There will be no award for future care.

Future Loss of Earning Capacity

54. There is no definite evidence that the plaintiff will ever suffer any future loss of earning capacity. There is no physical or psychological impediment to her achieving her full academic potential. That being said, the plaintiff has a present physical limitation, although not one of great moment. When she plays sport or engages in physical activity she often has pain in the neck and lower back which requires a modest amount of analgesia. Dr Porteous, who I accept, thought that this would resolve in the medium term.

55. The plaintiff is only a few years away from the age where many school children get a part-time weekend job, often working an industry such as fast food or supermarkets. These are physical jobs, and I doubt that the plaintiff could do them in the near future. She would only earn a modest casual income from these jobs, but they would sound in a small future economic loss.

56. Further, if the opinion of Dr Porteous proves overly optimistic, then the plaintiff would have some restriction on her future earning capacity, arising from her modest physical problems which occur after some activities.

57. It was submitted by counsel for both parties that if I found that there was a future loss of earning capacity, it would best be approached as a buffer. There is ample authority that such an approach is often appropriate, even given the terms of s 126 of the Act.

58. I find that there is a diminution in future earning capacity. In the near term, the plaintiff would not be able to perform casual physical work of the type often done by school students in their spare time. In the longer term there may be some restriction on employment caused by neck and lower back problems, if they persist, even to a small degree. It is not a sufficient answer to say that the plaintiff is a good student and should be able to obtain a tertiary degree. Many occupations where a person has a university degree also involve some degree of physical activity e.g. nurses, physiotherapists, surgeons, engineers etc.

54. In my view the appropriate buffer is a figure of $15,000.

Cost of Funds Management

60. The plaintiff is under a legal disability and the damages will therefore have to be invested with the Public Trustee. There will necessarily be a cost for such fund management. I propose to follow the decision of Justice Bell in Russell v Rail Infrastructure Corporation [2007] NSWSC 447 and award damages for fund management because the plaintiff is an infant and is under a legal incapacity. The obiter remarks of the majority judgment in Nominal Defendant v Gardikiotis [1996] HCA 53 at [2] support such an approach.

61. It was agreed between the parties that the appropriate cost of funds management was to be calculated at 9% of that part of the damages which would be paid to the Public Trustee. The calculation is $25,000 x 9% = $2,250.

62. I find that the plaintiff is entitled to the following heads of damage:

HEAD OF DAMAGE	AMOUNT
Past out-of-pocket expenses	$1,000
Future out-of-pocket expenses	$10,000
Future loss of earning capacity	$15,000
Cost of funds management	$2,250
TOTAL	$28,250

63. My orders are:

1. Judgment for the plaintiff against the defendant for $28,250.

2. Order pursuant to s 77(2) of the Civil Procedure Act 2005 that the judgment sum be paid into court.

3. Order pursuant to s 77(4) of the Civil Procedure Act 2005 that the sum of $1,000 be paid out to the plaintiff’s solicitor on his undertaking to repay or reimburse the past out-of-pocket expenses.

4. Order pursuant to s 77(4) of the Civil Procedure Act 2005 that the balance of monies in court of $27,250 be paid out to the NSW Trustee & Guardian for management until the plaintiff turns 18.

5. Order the defendant to pay the plaintiff’s costs.

6. Liberty to approach my Associate within 7 days if either party seeks a different costs order.

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Decision last updated: 25 June 2018