Carter, Melanie Patrice v Motor Accidents Insurance Board

[1998] TASSC 129

129/1998

PARTIES:  CARTER, Melanie Patrice
  v
  MOTOR ACCIDENTS INSURANCE BOARD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  112/1991
DELIVERED:  16 October 1998
HEARING DATE/S:  23, 24, 27 - 31 July, 3, 4 August 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Torts - Negligence - Particular cases - Road accident cases - Action against Motor Accidents Insurance Board where alleged driver deceased - Whether established that the deceased was driving.

Aust Dig Torts [65]

Damages - Particular awards of general damages - Tasmania - Spinal injuries and fractured patella - Psychological sequelae - Lost earning capacity - Discount for contingency of partial or complete withdrawal from work force by virtue of marriage and child rearing - Award of $207,677 (including $40,000 for pain etc and $141,750 for loss of future earning capacity).

Sharman v Evans (1976 - 1977) 138 CLR 563; Burden v Rath (1986) Aust Torts Reports 80-050 at 67,948; Jackson v Hamparsum (1988) 7 MVR 80, referred to.

Aust Dig Damages [61]

REPRESENTATION:

Counsel:
             Plaintiff  R J Howroyd
             Defendant:  D J Gunson
Solicitors:
             Plaintiff:  Bennett Howroyd
             Defendant:  Gunson Pickard & Hann

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  129/1998
Number of pages:  14

Serial No 129/1998
File No 112/1991

MELANIE PATRICE CARTER v
MOTOR ACCIDENTS INSURANCE BOARD

REASONS FOR JUDGMENT  COX CJ

16 October 1998

The plaintiff sues the defendant Board in respect of injuries received by her in a motor vehicle accident which occurred near Dodges Ferry on 26 April 1990.  She, and one David McGuiness, were the occupants of a Torana two door sedan which collided with a Toyota Landcruiser heading in the opposite direction at about 8.40pm.  Mr McGuiness was flung from the vehicle, as was a small dog belonging to the plaintiff, which was also in the car and both sustained immediate fatal injuries.  The plaintiff's vehicle slid or drifted to the wrong side of the road in circumstances justifying the conclusion that it was being negligently driven and, so far as liability is concerned, the only issue is whether the plaintiff or the deceased was the driver at the relevant time.   If I determine that it was the latter, the plaintiff will be entitled to damages for such injuries as she proves resulted from his negligence.  The Board has been sued pursuant to the Motor Accidents (Liabilities & Compensation) Act 1973, s16(1)(b).  In the defence there was a plea of contributory negligence should the deceased be found to be the driver.  It was claimed that he was, to the plaintiff's knowledge, substantially affected by intoxicating liquor, but the evidence fails to demonstrate the extent of any such intoxication or of the plaintiff's knowledge of it and the defence could not have succeeded.

The plaintiff recalls having driven from her home in Carlton Beach to the Lewisham Tavern, some seven kilometres away, at about 5pm.  Her object was to sell raffle tickets for the Tavern's darts club and she remained there until about 8.30pm.  Some time before she left, the deceased arrived and asked if she would give him a lift to the home of mutual friends in Dodges Ferry through which she had to pass on her way home.  Compliance with his request would have involved a minor detour from the normal route home.  She agreed to take him provided he was ready to leave when she wished to do so.  They were not close friends but were about the same age, both lived in the general area of Dodges Ferry/Carlton, had met at the home of mutual friends in that area several times and had frequently seen each other in the supermarket where she worked. 

At about 8.30pm the plaintiff was ready to go and accompanied the deceased towards her car which was parked outside the Tavern.  The plaintiff owned a 3½ month old Rhodesian Ridgeback dog which she had left in the vehicle while she was inside the Tavern.  Prior to departing on the journey home, she let the dog out of the car for a short run and for several years she claimed to have no memory thereafter until waking up in hospital after the accident which occurred on her way home.  At the inquest into Mr McGuiness' death held in August 1990 she said:

"I went ahead of David to the car as I had my dog in the car.  As he came out of the Tavern when (sic) we were at the bottom of the steps and I said to David I was going ahead to let the dog out of the car for a run.  When I let the dog out it ran to the Tavern side of the road and David was still on that side of the road at this time.  I also crossed back across the road to follow the dog.  All I can remember after that is a car leaving the Tavern Bottle Shop area and heading towards Dodges Ferry."

In her evidence at the trial she claimed to have recovered a memory of seeing a car reverse out of the car park at the Lewisham Tavern and of having sat in the passenger's seat with the dog on her lap so that it would not jump on the deceased.  She also claimed to remember having a seat belt on and turning to Mr McGuiness to say that a box of beer stubbies, which he had brought from the Tavern and which were under her legs on the passenger's side, were not in her way.  The accuracy of these recovered memories are the subject of strong dispute by the defence.  The Coroner did not make a finding as to who was driving the car at the time of the collision and there is no other direct evidence on the issue.  The plaintiff obviously has strong reasons, both psychological and financial, to adhere to a conviction that she was not the driver.  Even without relying on her evidence as to this at all, however, I have reached the conclusion on the rest of the evidence that the deceased was driving at the relevant time.

The car was driven from the Lewisham Tavern towards Dodges Ferry.  Just past a side road called Ranton's Road about four kilometres south of Lewisham, the road describes a pronounced curve to the right as one travels towards Dodges Ferry.  As it straightens at the end of the bend it travels along a generally north to south line.  A small convoy of vehicles belonging to the Dodges Ferry Fire Brigade was just returning from an exercise in Dodges Ferry to its depot and was travelling in a northerly direction along this straight, led by the Toyota Landcruiser driven by Mr Wells, when the plaintiff's Torana entered the bend.  Mr Wells saw the Torana and another vehicle behind it.  The Torana was beginning to lose control in that the rear of the vehicle was starting to move out and to slide.  As it came closer, it veered more and more to the incorrect side of the road and Mr Wells moved right over onto the shoulder of the road on the western side attempting to avoid a collision.  The Torana slid sideways, its front facing in a general westerly direction more or less at right angles to its proper direction of travel, the passenger side advancing towards the front of the Landcruiser.  Mr Wells could see there were two occupants but could not distinguish their sex.  He said he could see anguished faces but was unable to then recognise them although he did know them both and identified them immediately after the collision.  He knew the plaintiff as a local resident and shop assistant and, being a teacher, had taught the deceased and knew his parents well.  The two vehicles came into collision, the passenger's side towards the front of the Torana striking the front of the Landcruiser on the driver's side with great force and causing massive damage to the Torana in particular.  The Landcruiser continued on for a few metres and the Torana bounced back, collided with the left front of the vehicle behind it, a Laser sedan driven by a Mr Lane, and came to rest facing slightly east of south on the left side of the roadway.  The second collision with the Laser was relatively minor.

The deceased's body was found on the gravel verge of the road on the western side virtually opposite the Torana's final position.  The dog was found lying parallel to it a few feet closer to the Torana.  The plaintiff was lying in the back seat of her car, her head up against the rear driver's side window and her legs extending towards the passenger side.  I am unable to find what precise position her feet occupied when she was first found, whether they were on the floor behind the passenger seat or extended through the gap between the two front seats, and resting on the front passenger seat, which was twisted and badly mangled.  The driver's seat was intact.  The plaintiff was unconscious and was treated in the limited confines of the car by some of the fire brigade personnel with first aid knowledge until the arrival of an ambulance.  I find that the hinged back of the driver's seat may well have been moved periodically in the course of her treatment in and removal from the car so that the floor near the pedals of the vehicle was, from time to time, obscured from observation.  The significance of this fact is that some witnesses claim to have seen a white sandshoe belonging to the deceased on the floor in front of the driver's seat immediately after the accident, while others at the scene have no recollection of it at all.  If it was there, it is some evidence pointing to the likelihood that the deceased was the driver.

Mr Wells gave evidence that as the two vehicles were separating he saw a large object coming out of the vehicle on the driver's side.  He did not recall seeing the driver's door swing open but claimed the object certainly came out of the area the door was in.  He also said he went straight over to the other car (and I find he was one of the first to reach it) and observed a sandshoe jammed underneath one of the pedals.  He conceded in cross-examination that he had not said anything about seeing a sandshoe when he gave evidence at the inquest in 1990.  A photograph of the interior of the Torana was taken two days after the accident at the police garage.  It shows a man's sandshoe in the well of the car near the pedals but not jammed under any of them.  Mr Wells, who I am satisfied was a careful and extremely honest witness, said that he had recently seen that photograph and that when he saw it he had a very strong memory of the shoe in the position he had described.  He conceded that he had had no reason in the intervening eight years to think about whether there was a shoe in the front of the vehicle and that perhaps his memory of it being there was wrong.  As to the object being expelled from the car, he said he had no recollection of seeing the driver's door come open at that time, and that it was possible, as the glass from the windscreen of the Torana had been completely removed in the collision, that the object may have been expelled through the windscreen.

Mr Lane, the driver of the Laser which had followed the Torana from a point a few hundred metres past the Lewisham Tavern, had not observed the number or sex of the latter's occupants.  He saw the Torana move towards the centre of the road and then collide with an oncoming vehicle.  It came back towards him and there was a second collision.  At the time of the first collision he saw a dark shape come out of the Torana.  He could not describe what it was or even its size.  He did not see the doors of the Torana open and when he approached the vehicle he found the driver's side door slightly ajar but he could not at first open it and had to apply considerable force to do so.  He confirmed the position of the plaintiff in the back seat of the car and said he could not remember observing any sandshoes in the vehicle.  He said he only had a brief glimpse of it but the object had appeared to come from the centre to driver's side of the car.  In cross-examination he said the Toyota had appeared to bounce off the other vehicle and had come backwards about 20º to 25º.  It had not described a 360º turn.  He agreed that at the inquest he had told the Coroner the object had seemed to come from the centre rather than the left or right hand sides of the car and that it had gone along the bonnet and then just straight off the side.  Asked for his present best memory he said, "I remember seeing a shape coming out somewhere in the front of the vehicle towards the centre and then I think I was concentrating on the impact that was about to happen."  Asked if he meant that something had gone out through the windscreen area he said, "Through the windscreen ¾ the centre of the windscreen."  Asked to confirm that "it certainly wasn't a situation of something coming out of ¾ flinging out an open door?" he said "No, I think I definitely would have remembered something like that I am sure I would have.  I would have said it at the time of the inquest."

A Mr Lang was a passenger in a fire truck following the Landcruiser involved in the accident.  He said he saw a Torana sedan have a very hard impact with the Landcruiser which was off the road.  When it hit it "sort of come back round in probably a hundred and eighty degrees, half circle turn and landed back on the road at an angle more or less in the middle of the road."  He said that at impact "when the Torana had come back down" he saw the driver's side door flung open and there were two objects which came out of the vehicle, one large, one small.  Describing the half circle turn, the witness said that the passenger side of the Torana had struck the Landcruiser and the former had then swung around with its right rear tyre going to the western side of road and it headed back ending up in the direction it was originally headed, but parked on an angle.  I am satisfied that at no stage after the initial impact did the Torana move in such a way as to allow the passenger side to face the western side of the road where the deceased and the small dog were found.  Mr Lang also gave evidence that he approached the Torana and, at one stage while there, had noticed a white sandshoe in the driver's side floor pan in the pedal area.  Pressed in cross-examination, Mr Lang was adamant that he had seen the sandshoe in the car a little further up behind the pedals than shown in the police photograph taken at the garage.  He was equally adamant that he had seen the driver's door come open and the two objects come out through it and that they did not come out through the windscreen.  As he was facing the windscreen he would have had a better view than Mr Lane in the Laser behind it.  He made a statement to the police at the scene of the accident but its contents were not put in evidence (indeed the statement was possibly lost by the police) and he did not attend the inquest.  It cannot be said of him that he failed to mention these two crucial matters to investigating police or to the Coroner.  Apart from the length of time which passed since the accident, there is no reason to doubt the accuracy of his evidence.  He knew both occupants of the Torana but had no reason to be partial towards one rather than the other.

The police attending the scene included a photographer, Constable Smith, who took photographs through the driver's side door.  Unlike the photographs taken later at the police garage, no sandshoe is visible in any of the photographs he took at the scene, but I attach no significance to that fact because, as he said, "the angle of the view of both the photos is different."  It clearly is different and there is a distinct well, the side of which could easily obscure the shoe if it were there.  Other police officers confirmed that it was not unusual for objects, such as garments and the like, found at the scene of an accident and not then regarded as having any forensic significance, to be thrown into a car involved and taken away from the scene by the tow truck.  Mr Gunson, for the defendant, submitted that this could easily explain the presence of the deceased's shoe (for I find that it was his shoe) in the vicinity of the pedals.  On the other hand, Mr Lang gives positive evidence that he saw the shoe inside the car while the plaintiff was still in it.  There is little likelihood, in my view, that debris would have been cleaned up and deposited in the driver's well of the car before the only survivor, who was badly injured, had been removed from the car.  Several other eye witnesses to the accident and its aftermath were called, but do not assist in determining the crucial issue of who was driving the car when the collision occurred.

I am quite satisfied on the probabilities that the deceased was driving.  If he had been in the passenger seat, his body could not have ended up where it did, on the western side of the road, by being ejected through the door on his left as that never faced the western side of the road at any material time.  It defies common sense to suggest that, if a passenger, he would have been ejected through the driver's door with the plaintiff still in the driver's seat or vacating it a split second before she was somehow propelled into the back seat.  If he was a passenger he must have been ejected from the car through the windscreen, preceded or followed by the dog.  Mr Lang was in a better position than was Mr Lane to observe the ejection of what must have been the two bodies.  I found him impressive and unshaken in his testimony.  Mr Lane said he did not recall seeing the driver's door open but did recall it was slightly ajar and was stuck when he reached it.  It may well have swung open, as Mr Lang said, and ejected the two bodies and then swung back to the nearly closed position in which Mr Lane found it. 

I find it extremely unlikely that the plaintiff should have ended up in the back seat with her head facing towards the right hand side of the car behind the driver's seat if she had been occupying that seat at the time of the collision.  It is even more unlikely that as she was projected backwards her passenger and the dog should at the same time be flung forwards out through the broken windscreen.  It is far more likely, in my view, that the force exerted on the left hand side of the car when it impacted with the Landcruiser threw her headlong into the back seat, while the deceased and the dog were thrown in the same general direction out through the driver's side door.

I accept the evidence of Mr Lang and Mr Wells as to their observations in respect of the expulsion of what must have been the bodies of the deceased and the dog and in respect also of the presence of the deceased's sandshoe under one of the pedals on the driver's side.  So far as the latter is concerned, there is no evidence to the contrary.  I consider that the position of the sandshoe  adds further weight to the probability that the deceased was the driver.

There is no evidence that the plaintiff was in fact the driver.  True, it was her car and she was in the habit of driving it herself to the exclusion of others unless there was some reason for her to let others drive.  She had permitted a short term boyfriend to drive it once before and other friends had helped her to get it started when the battery was flat.  She had a young dog in the car which had been shut within it for some hours and could be expected to be exuberant during the journey home, even if it had had a short run in the Tavern car park.  Even without giving any weight to the plaintiff's claim to a recovered memory, it is not an unreasonable hypothesis that she should have decided to nurse the dog and let her companion, who was by no means a stranger, drive her car for the short journey to his destination and thereafter resume the wheel herself.  Without recourse to the plaintiff's evidence bearing on the identification of the driver, I am quite satisfied that the deceased was the driver at the relevant time and that the defendant is liable to the plaintiff in respect of his negligent driving of her car that night.

The plaintiff was initially treated at the accident site by a first aider who reported that she was unconscious, not responding and had shallow respirations.  By the time the ambulance arrived, she had no recollection of the accident but was otherwise responding.  On arrival at the Accident and Emergency Department of the Royal Hobart Hospital, she was described as being alert, cooperative and orientated.  She had sustained a compound fracture of the left patella, a fractured clavicle and a fractured pelvis.  An operation was performed on the fractured patella which was fixed internally with screws.  These were removed some two years later.  She was an inpatient between 27 April 1990 and 15 May 1990 when she was discharged to the Douglas Parker Rehabilitation Centre.  The fractured patella united with rest and a sling, but the fractured pelvis was more serious than originally supposed as, not only the right side of the pubic area was involved, but the left sacro-iliac joint was also found on later x-ray to be involved and the left hemi pelvis had gone upwards by about 1½ centimetres.  While hospitalised, the plaintiff complained of short-term memory loss and for several months thereafter of dizziness, headaches and heavy headedness.  By the end of 1990 her headaches were less severe, the dizziness had disappeared altogether but her memory blanks remained.  These took the form of disorientation geographically, leaving her confused occasionally as to where she was and how to find her way from one place to another.  On 9 July 1990 the Acting Director of the Rehabilitation Centre noted that:

"The psychologist will be doing a neuro-psychological assessment.  OT reports that she has started on activities program this week.  The patient reports that she feels that she is improving although she says she still has short-term memory problems.  PT reports that she has a good knee range of movements now but still has discomfort over her sacrococcygeal area."

In the accident she also sustained significant dental injuries.  During the operation on her patella, Dr Morrison, her dentist, removed anterior splinters of teeth from her mouth.  Her upper anterior teeth were loose; the alveolar bone had been broken; two teeth were lost; and one was almost terminally damaged but was repaired in the hope that it might yet be saved, which it was, three further teeth were mobile and another four or five were chipped or dented.  The loose teeth were splinted to the bone and Dr Morrison made a partial denture to replace the two lost teeth in September 1990.  She returned to work on 4 October 1990.

The plaintiff was, at the time of the accident, 20 years old having been born on 30 August 1969.  She was a healthy, happy, single girl who lived with her parents at Dodges Ferry.  She had attended St Mary's College to the end of Grade 10, received her High School certificate and successfully completed the first of a two year course in Fashion Design at the Technical College.  She did not persist with the course as she claimed she had learned so much in her first year and the second year was based on mass factory production which presumably was of less interest to her.  She applied for a job at the supermarket at Dodges Ferry and was successful in procuring one.  She said that had she not procured that job, she would have completed the course.  She worked at the supermarket for approximately two years until about the end of 1988 when she went overseas to North America for a three month holiday.  The work at the supermarket was full time and she managed to save enough to buy her car and to finance her trip.  She said she was happy working there, stocking shelves, working at the check-out and undertaking work in the post office and newsagency sections of the store.  Asked if she had intentions of doing anything else she said:

"I had aspirations that I would not be working there for the rest of my life but I was quite happy for the time being."

She returned from overseas in March 1989 and in October of that year she returned to work at the same supermarket.  In the meantime, she had no employment save occasional baby sitting and casual work for one or two nights a week at a take-away shop next door to the supermarket.  It does not appear that she sought to undertake any fashion design work or to leave the family home at Dodges Ferry.  For the eighteen months between October 1989 and the accident in April 1990, she continued to work at the supermarket.  Her recreational activities included playing netball and water sports such as swimming and wave skiing.

On her return to work after the accident in October 1990, she resumed her former duties on a graduated basis.  She continued to work at the supermarket at Dodges Ferry until July 1991.  In that time she worked mainly in the newsagency section and also sorted the mail within the post office part of the complex.  She was able to cope because she had a stool to sit on when she needed it and she was not working for long periods of time.  From time to time she would help restock the shelves and she was required to deal with light items principally.  She was able to deal with the restocking of lower shelves by sitting on a milk crate with a cushion on top of it for comfort.

In July 1991 she responded to an advertisement in the Government Gazette and procured a full time job with the Department of Community Services as a clerical assistant sorting and delivering mail.  This was delivered in a trolley, the all-up weight of which, when loaded, was on occasions 80 kilograms.  On 2 February 1993 she was pushing the trolley into a lift when the wheel stuck in the gap.  She gave it a push and felt a painful sensation in her back at the sacro-iliac joint.  She left her work place, consulted her general practitioner, Dr Gauden, and her injury was accepted as compensable.  She has not worked since.  She was paid workers compensation until March 1995 when the payments were terminated after the delivery of a medical certificate pursuant to the Workers Rehabilitation and Compensation Act 1988, s86(1)(c). She declined to return to work and her employment, after leave entitlements were taken into account, concluded on 12 May 1995.

Prior to the second accident at work, which I find exacerbated injuries to her lower back which had been sustained in the accident of April 1990, the plaintiff was able to cope with her duties, although she had pain occasionally in her lower back for which she took painkillers.  She said that each day as she drove to and from work past the site of the accident she got panic attacks and got into a practice of leaving later and later each day so as to postpone having to pass the scene.  There is no evidence that this led to unacceptable lateness in reporting for work.  At the end of her first twelve months at the Department her supervisor reported that, "Melanie has demonstrated a high level of commitment to her work and is most efficient."  A salary increment was recommended and granted.  Prior to the second accident, her visits to her general practitioner were for complaints unrelated to the first accident.

So far as her orthopaedic injuries are concerned, her treating doctor, Mr Clements, saw her again in May 1992 when she was complaining of pain in her left knee.  This led to the decision to remove the two screws in June 1992 and his post operative check indicated that she was progressing well.  He next saw her on 18 February 1993 shortly after her injury at work with the trolley.  She complained of pain in the left pelvic area and in her left knee.  Mr Clements said that it was difficult to be absolutely certain as to what the cause of her problem in the pelvis was, whether or not she might have injured one of the small discs in the lower end of the spine, or whether she had aggravated the disrupted left sacro-iliac joint.  Although he was unable to form an absolutely accurate diagnosis, he felt that it was more probable than not that she had aggravated her left sacro-iliac joint problem.  He saw her next on 11 March 1993 and at that stage she was still limping and had a lot of pain in the posterior part of her left pelvis and had difficulty weight bearing.  An injection to the joint under computerised tomography was conducted but it failed to give her any relief.  Mr Clements, in a report made eighteen months after the road accident said that the plaintiff was not then complaining of pain in her left knee but she found that she was unable to squat or kneel on it.  She was also complaining of occasional cramp-like pain over the dorsal aspect of the left foot, in addition to some mild low back ache and discomfort in the upper aspect of her right buttock.  The left clavicle was slightly prominent but was barely clinically noticeable and would certainly not represent a cosmetic problem.  He thought her prognosis then was excellent. 

On 29 April 1993 Mr Clements saw the plaintiff again.  Examination on that day demonstrated that she was very active with normal gait and normal mobility.  She complained of slight tenderness on stressing the left sacro-iliac joint.  On this occasion, he suggested that she was fit to return to work, but she was reluctant to do so, claiming that her pain remained significant although it tended to be quite variable from day to day.  He saw her yet again on 20 May 1993 and suggested that she was fit enough to make an attempt to return to work.  This prompted a very unfavourable reaction from the plaintiff and she walked out of his surgery limping and crying.  When he saw her in June 1994 she continued to complain of constant central low back pain and pain in the region of the left sacro-iliac joint with some associated pins and needles.  Although the symptoms were constant they tended to vary in intensity, depending upon her level of activity.  The left knee was continuing to cause her discomfort, being generally sensitive to touch about the front of the knee, and she was complaining that it clicked in and out, swelled with activities and grated excessively as compared with her right knee.  She also described some mild discomfort in the region of the left clavicle associated with twisting her head to the right.  Mr Clements did not then regard her symptoms in relation to her low back discomfort as sufficiently severe to justify any other treatment than a regular exercise program for her lower back and pelvic girdle.  He did not consider there was any justification for surgical intervention.  He thought her injury to the left knee was such that in the fullness of time she might well develop osteoarthritis.  In relation to her fitness for work he remained of the view that she was fit for work of a restricted nature, namely that she would be fit for clerical duties which did not require her to perform heavy lifting duties or duties that required her to maintain a stooped posture for any prolonged period of time.  Likewise, she should not be required to sit in one position, or to stand in one position for prolonged periods of time, but keeping those working restrictions in mind, he believed that she could be gainfully employed on a full time basis.  Mr Clements reviewed the plaintiff on 16 December 1996 and it appeared to him that her low back and left sided posterior pelvic pain had largely settled and that her left knee now appeared to be the major source of complaint.  She had, in the meantime, given birth to a baby by normal vaginal delivery and at that stage had been engaged for the previous thirteen months in looking after her child full time.  In his oral evidence, Mr Clements maintained the opinion that the plaintiff was physically capable of undertaking work of a clerical nature with the kind of restrictions I have adverted to.  He agreed with cross-examining counsel that she was probably exaggerating the severity of her symptoms.

Mr F G Binns, another orthopaedic surgeon, who has not treated the plaintiff, saw her twice before the trial, the first occasion being in November 1994.  She was complaining of some discomfort in her left shoulder and left knee and he noticed that she had a lumpy left clavicle, but had a full range of movement of her shoulder with normal strength.  She was very tender around the front of the knee and beneath the patella and had a full range of movement and her knee was stable.  She was not tender around the pelvis and did not appear to have any clinical problem in respect of it, although it had been left deformed.  He found crepitus beneath the patella when she moved her knee.  She was tender over the left sacro-iliac joint, her lumbar spine was a little stiff, but there were no abnormal neurological findings in her legs.  He anticipated that she would probably suffer from some patella femoral arthritis in the years to come.  He saw her two years later and found no basic change in her condition, apart from noting the fact that she had had a baby by normal delivery. 

I find that from a physical point of view the plaintiff is, and has been since about May 1993, fit to undertake full time work of the kind she had been undertaking at the supermarket and at the Department of Community Services.  The restrictions upon her capacity noted by Mr Clements could be accommodated in both forms of employment.  When her workers compensation payments were terminated, further work of a kind I find she could perform was offered to her by the Department but she failed to respond to the written offers made and that led to the termination of her employment in May 1995, she having been regarded as being on leave without pay since the weekly payments concluded in late March of that year.  She was then paid accrued leave in a lump sum.  Although her physical injuries do not prevent her from returning to work, she says she is not symptom free.  She claims she has head cramps once or twice a week, frequent headaches, her neck causes her pain on occasions and her left knee is very sensitive.  She has occasional discomfort in her collar bone, some low back pain constantly and has a pins and needles sensation in her pelvis.  I think her complaints are exaggerated but I accept that she has the above symptoms with sufficient frequency and intensity as to reduce her enjoyment of life, although they are not disabling.

She has been living in a de facto relationship for the last three to four years.  Her partner, however, lives under the same roof for only some days each week and usually leaves each weekend to pursue his own recreational activities.  They have a son born in November 1995 who was nearly six weeks premature.  Although she said she was prepared for a natural birth and a caesarean and had a lot of trouble with panic attacks reminding her of the accident, which are documented in the hospital records, there was no medical evidence of any particular complication about the birth or suggestion that having further children may be hazardous to her or should be discouraged.  She suffered post natal depression for about nine months.  Asked in cross-examination whether she might have further children, she said that she is "absolutely petrified of what might happen next time."

Although the plaintiff's physical injuries do not prevent her from returning to the work force, she has problems of a psychological nature which, in her counsel's submission, render her incapable of meaningful employment.  Psychologist, Dr Christine Clifford, was called by the plaintiff.  She had been requested by the hospital authorities to see the plaintiff before the latter's discharge in 1990.  This had not come to pass, but Dr Clifford had offered her an out patient appointment shortly after her discharge and the plaintiff had declined to attend.  At the request of the late Dr Keith Millingen, neurologist, Dr Clifford saw the plaintiff for the first time on 19 March 1992 and reached a provisional diagnosis that she was significantly distressed as the result of the motor vehicle accident.  This diagnosis became a firm one of Post Traumatic Stress Disorder by about June 1992 after a course of therapy.  On the occasion of the first visit to Dr Clifford, the plaintiff reported having frequent periods of depression and that she had become far less sociable and prone to extreme anger.  She had also lost three stone in weight since the accident.  She said she could not recall the accident and that she would like to do so.  However, she had some fear that she would recall that she was the driver and therefore be responsible for the death of the deceased.  She reported that nothing she did allowed her to get away from the accident and get on with her life.  The accident was always with her.  In the next four months Dr Clifford conducted therapy sessions with the plaintiff mainly devoted to endeavouring to assist her to remember the circumstances of the accident.  Various recalled memories came to the surface, such as a recall of the dog sitting in her lap and of her feeling the stubbies of beer against her legs on the passenger side of the car and commenting on that to the deceased.  As I have already noted, the process of recovering these memories and the reliability of them has been the subject of considerable challenge by the defence and I have not found it necessary to resolve the question of their reliability because I am quite satisfied on the other evidence that I have heard that the deceased was in fact the driver.  By the end of the sessions in 1992, Dr Clifford was satisfied with the genuineness of the plaintiff's recall of the accident (such as it was) and felt that her psychological state had greatly improved.  No further therapy was contemplated at that stage. 

I find that the plaintiff suffered a set back psychologically by virtue of the second accident in February 1993 and the interruption it caused to her ability to work.  She sought treatment from her general practitioner, Dr Gauden, complaining of physical pain, but by October 1993 she was complaining to Dr Gauden that she was finding attending counselling sessions and rehabilitation at the Douglas Parker Rehabilitation Centre very stressful and was describing feelings of anxiety whenever she left her home.  On 21 December 1993 she described being stressed easily, feeling a lack of confidence and ability to cope.  She continued to complain of anxiety to Dr Gauden in 1994 and 1995 and, as I have noted, the hospital records at the time of her confinement in November 1995 confirm that she suffered what were described as panic attacks.  For several months in 1996 Dr Gauden treated her for post natal depression and, as her general practitioner to date, she has noted her continued complaints of panic and anxiety.  In December 1993 Dr Gauden asked Dr Clifford to see the plaintiff again and Dr Clifford did so in late January 1994 at the Repatriation Hospital and shortly thereafter at the office of her solicitor in order to discuss the complications in her life consequent upon her claim for damages in respect of a motor vehicle accident and her ongoing claim for workers compensation.  She was, at the time, under pressure from Dr Hilton Francis of the Rehabilitation Centre to return to work on a rehabilitation program.  The plaintiff did not wish to participate in the program or to return to work.  After that meeting Dr Clifford wrote to Dr Francis suggesting that the rehabilitation program he had advocated should be varied so as to permit the plaintiff to receive physical rehabilitation at the Centre but psychological counselling from Dr Clifford, either at her Repatriation Hospital clinic or privately, if that was acceptable to the relevant insurer.  In response to this Dr Francis indicated in February 1994 that he considered the plaintiff's workers compensation payments should be stopped unless she was willing to be involved in a return to work program.  On 25 March 1994 Dr Clifford met with the plaintiff to discuss Dr Francis' report.  In a letter to the plaintiff's solicitor dated 12 April 1994, Dr Clifford said the plaintiff had been a little stunned by the letter from Dr Francis but "she accepted his opinion and stated that she could not countenance any return to work and that she would therefore forfeit her workers compensation payments.  She also stressed once again that she would like to finalise the MAIB case."  Dr Clifford concluded the letter in these terms:

"There is no doubt that Melanie suffered severe psychological injuries as a result of her motor vehicle accident.  However, she worked long and hard to overcome these.  In my opinion her accident at work which happened so soon after she had completed therapy produced an exacerbation of a pre-existing psychological problem, namely the second accident returned all Melanie's feelings of powerless and loss of control yet again and in addition she was trapped into a medical process once more. … Thus the current situation is that Melanie will give up her workers compensation claim and press you to finalise her MAIB case.  In other circumstances I would urge her to reconsider and also put my opinion to Dr Francis, however this is not what Melanie wants and after all that she has been through I feel I must support her in her wishes."

Dr Clifford next saw the plaintiff in November 1994 at the request of her solicitor.  She reported that the plaintiff's psychological condition had deteriorated quite dramatically since their last meeting.  She said in her report of 3 November 1994:

"Melanie reported significant symptoms of depression.  She felt incomplete, awful, has sleep problems, severe head cramps, and has been isolating herself socially.  From time to time she feels that suicide is her only option and she has organised a number of suicide attempts.  I think it is particularly telling that she has burnt many of her personal possessions in order that there will be nothing to clear up if she suicides. … At the present time Melanie exhibits the classic features of Post Traumatic Stress Disorder.  She is depressed, has sleep problems, suicidal thoughts, a constant preoccupation with the accident and a fair amount of paranoid ideation about those around her."

Dr Clifford offered the plaintiff the option of treatment at this meeting but the plaintiff declined on the basis that the treatment would necessarily be focused on the events of the accident and that would have the potential to make her feel worse rather than better. 

Dr Clifford next saw the plaintiff in December 1997 and reported:

"She presented in much the same way as she had always done being highly anxious and finding the interview process very stressful.  As always has been the case since the accident Melanie was very unwilling to talk about the accident and was still very disturbed by the accident itself and the death of her friend as a result of the accident.  And also the fact that the accident has had an ongoing negative impact on her life.  …  At the present time Melanie is at home with her thirteen month old son and is managing this aspect of her life reasonably well after a period of post natal depression for about eight months after his birth.  At this stage Melanie can manage her home life and the considerable demands of a small child with good family support.  From a psychological point of view Melanie has been taking the tranquilliser Xanax twice daily for the last 2½ years with a break during her pregnancy. … Melanie is suffering from Post Traumatic Stress Disorder as a direct result of the accident."

That was the last time she saw her before the trial.  The plaintiff again declined treatment after the meeting in December 1997.  Dr Clifford is of the view that treatment can improve the plaintiff's condition and recommends a regime of psychotherapy involving some fifteen one hour sessions, the cost of which would be $100 per session.

I accept the expertise of Dr Clifford to express the opinions she holds about the plaintiff's psychological condition and her honesty and integrity as a witness.  She was subjected to a vigorous attack in cross-examination where her credibility was directly challenged and it was put to her that she had deliberately told untruths.  I reject this suggestion.  During her examination-in-chief, after having given details of the initial treatment in 1992 directed to the plaintiff's memory of the accident and its antecedents, she was asked when she next saw the plaintiff and replied that it was in April 1994.  At the conclusion of her evidence-in-chief and while cross-examining counsel was halfway through his first question, her own counsel sought leave to resume examining her in order to tender some medical reports.  She was handed four such reports and agreed that they were her reports.  It emerged in cross-examination that the next time after 1992 that Dr Clifford had seen the plaintiff was at the Repatriation Hospital on or about 28 January 1994 and thereafter at her solicitor's office on 31 January 1994.  It appears she did not actually see the plaintiff in April 1994 but wrote a letter that month referring to the meeting of 25 March 1994 to discuss Dr Francis' letter.  Dr Clifford's letter was not one of the reports put in immediately after the conclusion of her examination-in-chief.  She had come to Court without her file and the Court adjourned early in her cross-examination in order to enable her to procure it.  It was put to Dr Clifford that she could not have forgotten her meetings with the plaintiff at the Repatriation Hospital and at the solicitor's office and that she had deliberately refrained from saying, when asked to identify the medical reports, that there was yet another report dated 14 April 1994.  I am quite satisfied that Dr Clifford was totally honest in her responses to the questions put to her by each counsel and that her failure to advert to the meetings in January 1994 was an innocent oversight, while she was never asked whether the reports tendered through her by counsel for the plaintiff were the only reports she had made.  The error as to seeing the plaintiff in April 1994, when it seems the meeting was in March, and the letter reporting its result was in April of that year, is likewise an innocent mistake.  I also reject the contention that she was a witness biased in favour of her patient.  It is natural that her contacts with the plaintiff should have led to her entertaining feelings of sympathy and concern for the plaintiff, but I found her no less objective in her assessment of her patient's condition than most treating doctors or other professional specialists are in respect of their patients.

Dr Clifford's diagnosis of the plaintiff's condition is supported by Dr Weidmann, a psychiatrist, who, though not treating her, saw the plaintiff twice on 21 November 1994 and 21 October 1996.  At his first consultation he found the physiological signs and other symptoms present for a diagnosis of Post Traumatic Stress Disorder which he regarded as moderately severe.  He then thought her totally, but not permanently, incapacitated from employment.  At his second consultation he found:

"She was a highly anxious, highly emotionally aroused young woman who it appeared did not want to be in (his) office.  She found it painful to talk about the events of the day of the accident, her subsequent psychological and psychiatric sequelae and her impairment.  She still exhibited pain behaviour consistent with subjective reports in her pelvis and knee.  Her affect was one of high anxiety with little reactivity.  She was flushed and sweaty and found it difficult to maintain eye contact. She spoke in a halting monotonous voice and frequently needed prompting."

He opined that she continues to suffer severe Post Traumatic Stress Disorder and found her symptoms more extensive and intrusive since his first observations of her.  He considered that on the balance of probabilities she is totally and permanently incapacitated with respect to meaningful remunerative employment as a direct result of her condition which, in turn, was a direct result of the motor vehicle accident.  He considered that treatment was probably ineffective, but at that stage it was neither wanted nor sought by the plaintiff.  He confirmed his later view in his evidence.  In the course of his cross-examination, the plaintiff's employment history and the absence of complaints by her of anxiety prior to the second accident were put to Dr Weidmann as being inconsistent with his diagnosis of the condition resulting from and being present since the motor vehicle accident.  He rejected this suggestion and said that there was ample evidence of other sufferers of the disorder apparently functioning quite satisfactorily for many years before becoming disabled by it.  In this case he was of the view that it was triggered by the work accident which he was under the impression had been a relatively trivial one.  It was, however, the motor vehicle accident which was the significant life threatening stressor which met the criteria for Post Traumatic Stress Disorder.  He did not consider she suffered from an anxiety disorder.  No evidence was called by the defence to contradict either Dr Clifford or Dr Weidmann and I accept, in substance, the evidence of both as to the present severity and effect of the plaintiff's condition.  The present litigation extending over eight years, and with the complication of a terminated claim to workers compensation payments, has in itself been a stressor of considerable magnitude and I accordingly anticipate that Dr Clifford's projected program of psychotherapy, after the conclusion of these proceedings, now stands a far greater chance of ameliorating the plaintiff's condition than it did when it was previously offered.

The plaintiff has, as a result of the deceased's negligence, suffered considerable pain in respect of her immediate injuries.  Within a short time she made an almost complete recovery from her dental injuries (although some further attention in respect of them was and will be necessary).  The injury to her clavicle also resolved with only minor subsequent outbreaks of pain.  Her knee caused pain and discomfort for some years, remains restricted and a source of occasional pain and discomfort, and will probably be subjected to osteoarthritis in middle to later life.  Her low back pain, exacerbated by the second accident, has been reduced and although not eliminated, is not disabling or of any great severity.  She periodically suffers feelings of depression, anxiety and panic, has occasional nightmares and headaches, is restricted in some activities which call for kneeling, and she can no longer play team sports or engage in the water sports she used to enjoy.  She has a cosmetic blemish in the form of noticeable scarring on her knee and generally the quality of her life has been significantly lessened by this tragic accident.  Her current situation should improve with the conclusion of this litigation and with further treatment from Dr Clifford.  For her pain and suffering and loss of the amenities of life I award the sum of $40,000.

In 1993 some 2½ years after Dr Morrison's initial treatment of the plaintiff for dental problems, implants were inserted in place of the missing teeth and the plate discarded.  The cost of all her treatment has been met by the defendant but some future repair and replacement cost should be allowed for.  The present day cost of replacing the art-glass in the implants is $1,500, while that of bleaching and veneering a tooth at risk of developing a cyst is $1,000.  An annual check-up to monitor all the plaintiff's dental problems is $200 but, of this, $85 would be attributable to the proper care of an uninjured person's dental condition.  Thus, the extra cost to the plaintiff is some $115 per annum for the rest of her life.  She has a life expectancy of 53 years.  Using 7 per cent tables as a guide, I allow $1,500 for future dental maintenance and an additional $1,500 to cover the contingency that the art-glass may need to be replaced at some unknown time in the future and likewise the bleaching and veneering may be necessary.  I also allow a sum of $627 for treatment received at the Rehabilitation Centre in respect of psychological counselling which I am satisfied is related to the after-effects of the accident.

She continues to see her general practitioner at the rate of about once every six weeks for prescription medication.  The cost of each visit is $38.  I will allow $3,500 to cover this cost.  I allow a further $1,000 to cover the cost of travelling to Sorell for that purpose.

As to psychological treatment, I allow $1,500 for the cost of fifteen sessions with Dr Clifford at $100 per session.  This course should be undertaken without delay and, accordingly, there will be no discount.  Pharmaceutical requirements average $9 per week and I allow a round figure of $6,500 to cover them during the rest of her life. 

The remaining item to be assessed is an allowance for her lost earning capacity, both past and present.  As to the past, I find that, but for the motor vehicle accident, she would have continued to work for the Department of Community Services up until the birth of her son in early November 1995.  She claims the salary not paid to her from the termination of her workers compensation payments at the end of March 1995 to that time.  This amounts to $9,800 net and I allow that sum.

As to the future, the plaintiff's capacity for further work has been significantly reduced by the accident.  If Dr Clifford's treatment is reasonably successful, it is possible that the plaintiff may recover a limited capacity to return to the workforce, for if she can overcome her psychological problems, her physical injuries, while restricting her capacity for work are not such as to deprive her of all residual capacity to do so.  It is even possible, while admittedly remote, that her talent for fashion design and craft work, in which she has expressed some interest, may be an avenue for a modest income.  In her evidence she was optimistic of returning to the workforce after the conclusion of the litigation saying, "I think that I will be able to find work.  Like not immediately but I will keep my eye out for something that would be suitable or perhaps I would even like to start a small business from home".  She also said, "I feel a need for work and I ¾ no doubt I will one day but I, sort of, don't want to be pushed into anything like 'you must start next week'.  When I find a job that suits me I will be quite happy to work."  I find that she had given no thought prior to the second accident as to when she might retire from the workforce.  There is no reason to suppose that she would have opted to continue to work to the age of 65 contrary to the practice of most women, and I consider that retirement at a maximum age of 60 would have been far more likely.  However, a significant discount in addition to the usual vicissitudes of life should be made in respect of the contingency that, uninjured, she would have married, or established a permanent relationship, have had children and withdrawn from the workforce partially or even completely.  The plaintiff is an attractive young woman who, despite the psychological effects of the accident, with its consequent depression and moroseness, has established an apparently permanent relationship and has a child nearly three years old.  She has always lived in the close-knit outer suburban settlement of Dodges Ferry which she still described as her "support base".  Her parents live nearby, she enjoys bringing up her child, she takes pride in her garden, is interested in craft work and exhibits many of the indicia of a woman who would be happy to play the role of mother and housewife in a small community and would have little ambition to curtail it for the sake of a permanent job in the city.  Had she not been disabled by the accident, it is quite likely that she would have had more than one child and would not have sought any employment, if at all, at least until her youngest child was of school age.  I do not think her hypothetical claim that, but for the accident, she would have re-entered the workforce when her child attained the age of three years in the near future is realistic.  Although work in the city would be an unlikely prospect she may have sought work within her community or in nearby Lewisham or Sorell on a part-time basis at a supermarket or similar establishment, but her chances of successfully competing for such a position with an able-bodied person without her disabilities are lessened by them. 

Her position at the Department of Community Services now commands an annual gross salary of $26,276 or approximately $400 net per week.  Her counsel submitted that on the 7 per cent tables, if payable to age 65, the present value of such an income would be $283,240 before discount for contingencies.  Based on retirement at aged 60, the present value of her right to receive that income hereafter would be in the order of $270,000.  I think she retains a residual capacity for work which would be properly recognised by a reduction of the order of 25 per cent before making allowance for contingencies. 

In Sharman v Evans (1976 - 1977) 138 CLR 563, Gibbs and Stephen JJ said at 583 - 584:

"Loss must depend upon the likelihood that there would have been a future exercise of that earning capacity, but what of a female plaintiff likely to marry and who may cease to exercise her earning capacity on, or at some time after, marriage?  Despite recent changes in patterns of employment of married women this remains a not unusual situation, the woman in effect exchanging the exercise of her earning capacity for such financial security as her marriage may provide.  The measure of the one of course bears no necessary relationship to the other and the whole situation must be full of critical uncertainties such as whether the plaintiff marries, the extent if any of her employment after marriage, the success of that marriage and the extent to which it in fact provides her with economic security.  Perhaps the only relatively certain factor will be her pre-injury possession of earning capacity and this in itself may be sufficient reason, absent any clear evidence pointing in a contrary direction, for the adoption of the expedient course of simply disregarding the prospect of marriage as a relevant factor in the assessment of such a plaintiff's future economic loss; this course at least recognizes the plaintiff's retention of capacity, which would have been available to her for exercise, in case of need, despite her marriage."

Ten years later in Burden v Rath (1986) Aust Torts Reports 80-050 at 67,948, Kirby P, in the New South Wales Court of Appeal, commented on this passage:

"The observations of Gibbs and Stephen JJ (as their Honours then were) in Sharman were addressed to the particular circumstances and evidence of that case.  Their remarks should not be read as laying down a general rule that, in calculating loss of earning capacity in the case of an injured young woman, regard should not be had to her possible removal from the workforce, in the course of her life, during the birth and early upbringing of children.  Any such rule would fly in the face of common experience.  Care must be taken to avoid unfair discrimination in the calculation of damages.  Allowance must always be made for the possibility that a female claimant may not marry, may have no children or may have no other sufficient economic support and thus be forced to work despite the fact that she has young children.  But allowance must also be made for the fact that nowadays many industrial awards provide for paid maternity leave so that the continuity of earnings will often not be interrupted.  Any consideration of the likely impact of an injury on a young woman must take into account the possibility that she might choose to opt out of the employment market for a part of her life whilst she has children and rears them.  Although such a possibility is not strictly proved by statistical or other evidence, it is simply part of the realism which this Court has insisted upon in approaching the calculation of damages."

In Sharman v Evans (supra) the female plaintiff was rendered quadriplegic at the age of 20 and the court had virtually no material upon which to base an assessment of her matrimonial prospects.  The plaintiff in this case has shown that she has established a relationship which, while somewhat unconventional in terms of permanency and commitment, has so far endured for several years and has produced a child. 

That some discount should be made for the contingency of retirement from the workforce due to marriage and child rearing has also been recognised in Sinclair v Bonnefin (1968) 13 FLR 164; Kidney v Janides (1978) 18 ALR 113 and other cases cited by Professor Luntz in Assessment of Damages for Personal Injury and Death, 3rd ed at 228.  In Jackson v Hamparsum (1988) 7 MVR 80, the New South Wales Court of Appeal, reassessing damages after error was demonstrated in the trial judge's approach, applied a discount of 40 per cent to allow for the ordinary vicissitudes of life, together with factors including her prospects of non-exploitation of her earning capacity due to the plaintiff's potential for marriage and child rearing. The case bears a superficial similarity to the present in that the plaintiff there was aged 18 years at the time of the accident, worked as an assistant in a supermarket in the country and had no special training for more remunerative work. She did, however, have a pre-existing condition which could have necessitated an operation even had the accident not occurred and this contingency consequently increased the percentage discount by an unidentified amount. After reducing the present value of future payments of $400 per week to aged 60, were this a case of total loss of earning capacity, by 25 per cent in recognition of her residual capacity, a discount of 30 per cent in the present case, where there is no pre-existing condition, would yield a figure of $141,750. If the plaintiff, having had a child three years ago, postponed her return to the work force until the child was, say, five years old the present value of the right to receive 75 per cent of $400 per week from a date two years hence to retirement at age 60, would be in the order of $173,800. I think it highly unlikely she would have returned to work any earlier had the accident not occurred and had she been physically able to do so. If she had further children and did not return to work for seven years from the present time, the present value of the right to receive that percentage of $400 per week for seven years hence to retirement at 60 would be in the order of $115,500. A return after five years produces a calculation of $136,500. Of course, there is no way of knowing whether any of these eventualities might have occurred. She may have returned to work when the child turns three and have remained in the work force for the rest of her life without interruption, or she may have had a larger family and not resumed paid employment at all. The discount of 30 per cent which yields a capital sum of $141,750 to my mind represents a fair estimation of the present value of her diminished earning capacity and I allow that sum.

The plaintiff is accordingly entitled to judgment against the defendant for $207,677 made up as follows:

Pain and suffering and loss of amenities	$40,000
Future dental care	3,000
Rehabilitation Centre	627
Future visits to general practitioner	3,500
Travelling thereto	1,000
Future psychological treatment	1,500
Future pharmaceutical requirements	6,500
Past loss of earnings	9,800
Loss of future earning capacity	141,750
$207,677