Clutterbuck v Pollifrone - [2021] SADC 15

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CLUTTERBUCK v POLLIFRONE
[2021] SADC 15
Judgment of his Honour Judge Durrant
19 February 2021
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
Assessment of damages for injury to applicant's left knee - respondent failed to appear at hearing – whether applicant totally and permanently incapacitated to return to work - benefit to applicant of future knee replacement.
Damages assessed at $789,760.30. Costs reserved.
Civil Liability Act 1936 (SA) s 52(1), s 52(2)(d), s 54; Social Security Act 1991 (Cth) ss 23(5A), (5B), (5C), (5D); Superannuation Guarantee (Administration) Act 1992 (Cth); Return to Work Act 2014 (SA) s 22, referred to.
Burton v Grocke [2014] SADC 195; Covington-Thomas v Commonwealth of Australia (No 2) [2007] NSWSC 1059, considered.
CLUTTERBUCK v POLLIFRONE
[2021] SADC 15

Introduction

On 21 July 2016, the applicant, Martina Petronella Clutterbuck, and her husband, attended at the premises of the respondent, Enrico Pollifrone, in Mount Gambier. Mr and Ms Clutterbuck had arranged to purchase from the respondent some farm machinery, including three two-metre-long and one tonne in weight harvesting, conveyor belts. Whilst the respondent was using a forklift to carry the conveyor belts on his property, one fell, striking Ms Clutterbuck from behind to her back-left knee and left foot.
By Summons and Statement of Claim dated 2 May 2019, Ms Clutterbuck claimed to have suffered injury, loss, and damage arising from that incident and as a result of the negligence of the respondent. She claimed $960,677.00. The respondent was served but did not file a Defence to the claim. Default judgment was entered. The respondent failed to appear at the assessment of damages and I proceeded in his absence. My assessment follows.
History of Proceedings
I am satisfied the respondent was informed of this action.
These proceedings were issued on 2 May 2019,[1] and served on 4 June 2019.[2] The respondent did not file a defence within the time allowed. Following an application to the Registrar, a judgment in default was entered on 18 July 2019,[3] and the Court ordered that the applicant recover from the respondent damages to be assessed.[4] By order of a Master of this Court, the respondent was notified of further orders made by this Court on 5 September 2019, that, amongst other things, the parties had to make mutual discovery and the applicant had to serve a Statement of Loss.[5] A further Directions Hearing fixed for 11 November 2019, was also notified to the respondent.
[1]    Summons dated 2 May 2019 (FDN 1).
[2]    Affidavit of James William Mahoney affirmed 4 June 2019 (FDN 4).
[3]    Application to Registrar dated 18 July 2019 (FDN 5).
[4]    Judgment/Interlocutory Judgment in Default of Appearance or Defence date 18 July 2019 (FDN 6).
[5]    Order of Master Olsson made 5 September 2019.
The applicant made disclosure on 26 September 2019, and in October 2019, provided her Statement of Loss.[6] On 11 November 2019, the respondent attended by phone at the directions hearing held that day. He was ordered to provide documents relating to his assets and liabilities. A statement of assets and liabilities sworn by the respondent on 6 December 2019, indicated a net liability position.[7] On 7 January 2020, the respondent provided further sworn detail of his financial circumstances.
[6] FDNs 7 and 8; Exhibit A1 [12]- [28].
[7] FDN 9; Exhibit A1 [29]- [34].
On 21 January 2020, a Master of this Court informed the respondent he could apply to set aside the default judgment entered. He was given time by the Master to do so, including to obtain legal representation.[8] The Respondent has not applied to set aside the default judgment.
[8] Orders of Master Rice dated 21 January 2020 [3], [7].
This action was listed for further directions before a Judge of this Court on 1 June 2020. The respondent did not attend on that occasion and it was noted that the matter was to proceed by way of assessment of damages. On 2 June 2020, an order was made by the Judge listing an assessment of damages on 21 September 2020.
On 30 June 2020, at a further directions hearing, several orders were made in respect of the hearing to assess damages. The applicant was ordered to file various documents setting out her claim to special damages, future medical expenses, wage rates, and voluntary and paid care services. The respondent was ordered to file responses.
The applicant filed a Schedule of Special Damages[9] but no response was filed by the respondent. The applicant filed a Schedule of Future Medical Expenses and Care Plan[10] but no response was filed by the respondent. The applicant filed a Schedule of Wage Rates[11] but no response was filed by the respondent. The applicant filed and served within the Schedule of Future Medical Expenses a summary of her future care needs. In that respect, she also relied on the report of Dr Jennings dated 13 September 2020, outlining the future issues she faced and an asserted need for increased care. No response was filed.
[9] Dated 14 September 2020.
[10] Dated 14 September 2020.
[11] Dated 14 September 2020.
On 8 September 2020, the applicant provided the Court with a letter she had received from the respondent’s doctor, which stated that the respondent was suffering from depression and would no longer be participating in the proceedings.
The respondent was called at the commencement of the trial on 21 September 2020.[12] He did not appear and the trial proceeded in his absence that day and the next.
[12] T3 [1]-[4].
Both the applicant and her general practitioner, Dr Coulson, gave evidence by audio visual link. I allowed them to do so as they were unable to travel to Adelaide and give evidence in person due to public health restrictions on travel in place at that time. Dr Jennings was the only other witness called and gave evidence in person.
The applicant tendered Exhibit A1 containing several medical reports and expert opinions as follows:[13]
·Dr Justin Webb dated 8 September 2017;
·Mr Forbes dated 21 December 2017;
·Dr Brian Coulson dated 3 April 2018;
·Dr Reece Jennings dated 24 February 2019;
·Dr Reece Jennings dated 28 August 2020; and
·Four Medical Imaging Reports of Drs Chong, Reid and Donovan dated 21 July 2016, 22 July 2016, 25 July 2016, and 28 August 2017, respectively.
·Further, Exhibit A1 contained various medical records of the applicant from Country Health SA and a curriculum vitae for Dr Jennings.
[13] Exhibit A1.
When the applicant closed her case on 22 September 2020, I directed she make closing submissions in writing.
On 23 September 2020, the respondent filed for the first time a Notice of Acting.[14] On 15 October 2020, the respondent filed a document entitled written submissions.[15] The latter contained references to what I understood to be detail of potential evidence relating to liability and loss and damage. In the absence of any application to re-open the trial and any evidence from the respondent at trial, I have had no regard to that document.
[14] FDN 29.
[15] FDN 31.
On 5November 2020, the applicant delivered her closing address in writing[16] and I reserved judgment.
[16] Applicant’s Written Submissions dated 5 November 2020.
Established Facts
Ms Clutterbuck gave evidence in a forthright manner. I consider her to be an honest witness and I accept her evidence. She was born on 25 July 1964 and is currently 56 years of age.
As mentioned, two medical doctors also gave oral evidence in addition to providing written reports;[17] General Practitioner, Dr Brian Coulson and accredited whole person impairment assessor, Dr Reece Jennings. I accept the oral evidence of each of those witnesses within their areas of expertise and knowledge and I further accept all of the medical reports and expert opinions tendered,[18] as referred to above.
[17] Report of Dr Coulson dated 3 April 2018, Exhibit A1 [137]-[138]; Reports of Dr Jennings dated 24 February 2019 and 13 September 2019, Exhibit A1 [139]-[154].
[18] Exhibit A1; Dr Justin Webb dated 8 September 2017, Mr Henry Forbes dated 21 December 2017, Dr Brian Coulson dated 3 April 2018, Dr Reece Jennings dated 24 February 2019, Dr Reece Jennings dated 28 August 2020 and four Medical Imaging Reports of Drs Chong, Reid and Donovan dated 21 July 2016, 22 July 2016, 25 July 2016 and 28 August 2017.
Mr Forbes is an Orthopaedic Surgeon. He treated Ms Clutterbuck on the day of her injury. His report dated 21 December 2017, described her presentation on the day of her admission to the Mount Gambier Hospital on 22 July 2016, his examination that day, and his diagnosis of and treatment for her injuries. It is not an expert report prepared in accordance with the rules of court.[19] The report of Mr Forbes recorded a diagnosis of: a full thickness rupture of the left anterior cruciate ligament; a posteromedial capsular tear with an under surface peripheral tear of the posterior horn of the left medial meniscus; and a comminuted impaction fracture of the left posteromedial tibial plateau.
[19] Practice Direction 5.4.
Dr Webb is also an Orthopaedic Surgeon. His report dated 8 September 2017, was requested by Mr Forbes to provide an opinion regarding Ms Clutterbuck’s left knee injury and in order to confirm the ongoing treatment he had proposed. Dr Webb confirmed the assessment of Mr Forbes as to the nature of the injury described above. He opined: multi-disciplinary pain management to be appropriate as her condition had stabilised; that reconstructive surgery was not recommended; and, that, in the future, a full knee replacement was likely. His report was not a medico-legal report.[20]
[20] Exhibit A1 [133].
No reports were tendered from an orthopaedic surgeon in accordance with the rules relating to expert evidence. The report of Dr Jennings dated 13 September 2020, was drawn in accordance with the rules for expert evidence.
The Schedule of Economic Loss, Schedule of Wage Rates, Schedule of Special Damages and a Schedule of Future Medical Expenses were tendered.[21]
[21] Exhibit A1.
I have found the following facts to be established.
Ms Clutterbuck was born on 25 July 1964 and educated and trained as a registered nurse in South Africa.[22] She moved to Australia in 2003 and enjoyed continuous employment as a registered nurse at the Casterton Memorial Hospital, up until the date of the accident.[23]
[22] T3 [38] - 4 [1].
[23] T 24 [3].
On 21 July 2016, Ms Clutterbuck and her husband had arranged to purchase some agricultural machinery - three harvesting conveyor belts approximately two metres long and weighing one tonne - from the respondent.[24] They went to the respondent’s premises at Mount Gambier to collect. The respondent commenced transporting the conveyor belts using a forklift. The applicant’s husband, the applicant and the respondent’s wife were walking with their backs to the respondent who was behind them, driving the forklift. One of the conveyor belts caught something and fell off the forklift. Ms Clutterbuck was struck from behind by the falling conveyor belt to the back of her left knee and to her left foot. She was pinned to the ground beneath the conveyor belt. The respondent’s wife and the applicant’s husband managed to lift the conveyor belt and the applicant freed herself.[25]
[24] T 19 [13]-[15].
[25] T 19- 20 [3].
Ms Clutterbuck was immediately taken to Mount Gambier Hospital where a plain x-ray was taken.[26] She was provided with analgesics and sent home.[27] After being sent home, Ms Clutterbuck obtained crutches from the Casterton Memorial Hospital. She continued to suffer significant pain and re-attended the Casterton Memorial Hospital the following day. She was admitted and then transported by ambulance to Mount Gambier Hospital for further treatment.
[26] T 20.
[27] T 21 [36].
An examination by Orthopaedic Surgeon, Mr Forbes, revealed a large haemarthrosis. MRI and CT investigations of the applicant’s left knee revealed detectable medial laxity and an anterior cruciate ligament rupture, with a posteromedial capsular tear together with medial meniscus damage. A comminuted impaction fracture of the posteromedial tibial plateau was also noted. Given her age and habitus her injury was treated conservatively; by non-weight bearing and subsequent physiotherapy.[28]
[28] Report of Mr Forbes dated 21 December 2017; Exhibit A1 [134]- [135].
Despite treatment, Ms Clutterbuck continued to suffer severe pain, a limited range of mobility and a persistent instability in her left knee.[29] She was referred to Dr Webb, a specialist with particular expertise in knee instability, for pain management. Dr Webb and Mr Forbes agreed that ACL reconstructive surgery was not indicated at that time; a multidisciplinary pain management program was recommended.[30] Mr Forbes considered a total left knee replacement may be required in the future. That was confirmed by the applicant’s treating General Practitioner, Dr Coulson, who expressed the opinion, as at April 2018, that the applicant had been too young to undergo that procedure. He considered it to be likely that a left knee replacement would be undertaken within the next five years.[31]
[29] T13-23, T27-32.
[30] Report of Mr Forbes dated 21 December 2017, Exhibit A1 [134]- [135]; Report of Dr Webb dated 8 September 2017, Exhibit A1 [132].
[31] Report of Dr Coulson 3 April 2018, Exhibit A1 [137]- [138].
Following the accident Ms Clutterbuck’s life changed dramatically; from enjoying an active lifestyle and employment to being significantly restricted in terms of both mobility and pain.[32] Her reduced mobility prevented her from working as a registered nurse at the Casterton Memorial Hospital.[33] She had previously worked on a permanent part-time basis as an assistant nurse unit manager and on average 28.8 hours per week. She regularly filled in as an after-hours supervisor at a higher rate of pay. In both of those roles she was required to be on her feet for most of any given shift - which could last between eight and twelve hours.[34] She enjoyed her work and intended to continue working as a nurse at the Casterton Memorial Hospital until age 70-72.[35]
[32] T13-23, T27-32.
[33] T24-26.
[34] T33-34.
[35] T34 [31] - T35 [22].
Prior to the accident, the applicant had pursued an active lifestyle outside of her employment. Her hobbies had included hunting, fishing, caravanning, baking, cooking, gardening, line-dancing, travelling and walking her dogs. She had undertaken hunting on foot once or twice a fortnight, which included walking for at least four hours. Ms Clutterbuck had been a house-proud woman and performed all of the housework tasks in her domestic relationship; including cooking, washing and cleaning.[36]
[36] T13- 23, 27-32.
The applicant had experienced significant pain in her left knee since the accident. That pain had significantly interfered with her sleep; including her going for days without proper sleep and being unable to get into a comfortable sleeping position. Each afternoon her left leg had become painful and swollen and her lower back ached. She required a walking stick at all times when outside of her house; inside her home she supported herself with furniture. She had experienced extreme pain in her left hip for about 12 months prior. She walked with a gait and had experienced symptoms consistent with complex regional pain syndrome.[37]
[37] T13- 23, 27- 32; Report of Dr Jennings dated 13 September 2019, Exhibit A1 [148].
Ms Clutterbuck had been incapable of undertaking activities she had previously enjoyed due to her injuries: to bake without the assistance of her husband; to walk more than twenty metres; garden or do housework; interact with and take care of her grandchildren; hunt, fish or dance; and, engage in sexual intercourse.
The applicant had a mental health care plan which had been put in place by her treating General Practitioner, Dr Coulson.[38] She had visited a psychologist each month; albeit her visits had been temporarily disrupted due to the current COVID pandemic.[39] Ms Clutterbuck intended to resume treatment once the worst of COVID has passed.[40] She reported suffering from depression, anxiety, agoraphobia and cognitive impairment and has been prescribed Fluoxetine to treat her psychological condition.[41] She had difficulty dealing with the fact that she could not enjoy her life as it had been previously. Her interaction with friends had ceased; she no longer left the house and could not interact with other people.[42]
[38] T31.
[39] T31.
[40] T31.
[41] T31.
[42] T31.
Consideration
The non-attendance and non-participation of the respondent has meant the evidence of the applicant has not been subject, as it ordinarily might be, to contradiction and challenge. Further, the applicant has not led up to date medical evidence from an orthopaedic surgeon. Nor has she led expert evidence from a psychiatrist or a psychologist or in respect of her future domestic care needs.
As mentioned, Dr Jennings and Dr Coulson were the only medical witnesses to give oral evidence. Only the second report of Dr Jennings had been in the proper form for an expert report.[43] I accept Dr Jennings as an expert in his field; namely, specialist general practice and whole of person impairment assessment.[44]
[43] Report of Dr Jennings dated 13 September 2019; Exhibit A1 [148].
[44] Curriculum Vitae Exhibit A1 [210]; Return to Work Act2014 s 22.
Dr Jennings considered the applicant to be totally disabled for any participation in the ordinary business of daily life and expressed the opinion that she required referral to a specialist pain clinic for pain management. Unfortunately, due to COVID-19 restrictions, Dr Jennings had been unable to physically examine the applicant in person since 6 February 2019 and therefore he had been unable to assess her current condition. He had undertaken an audio-visual link consultation with the applicant in preparation for his evidence at trial.
Dr Jennings opined that the applicant had been and would continue to be totally and permanently incapacitated from any employment due to her physical and mental health impairments. On Saturday 24 February 2019, Dr Jennings considered that the accident had rendered Ms Clutterbuck dependent, unemployed and unemployable. In his oral evidence, Dr Jennings adhered to the opinions as set out in his two reports dated 24 February 2019, and 13 September 2020. In those reports, Dr Jennings opined that the applicant’s symptoms complied with the universally accepted symptoms of Complex Regional Pain Syndrome (CRPS). CRPS is a disorder of the sympathetic nervous system causing the entire sympathetic nervous system in one limb to break down, resulting in abnormalities of heat, temperature, sensation and pain. Dr Jennings described the applicant as a lower extremity example of the syndrome.
I accept the expert opinion expressed by Dr Jennings, as to the extent CRPS will impact the effectiveness of a total knee replacement. Dr Jennings expressed the opinion that the applicant has a genetic polymorphism and would react badly to surgery and that knee replacement surgery would need to be put off for as long as possible. He opined that, although a knee replacement may give the applicant a greater range of motion in her lower extremity, Ms Clutterbuck would still have CRPS and would therefore continue to suffer pain in the knee.
Dr Jennings also diagnosed the applicant with opioid dependence, resulting in an increasing tolerance to painkillers and constipation.[45] The applicant did give evidence about her use of Fluoxetine, but did not give any evidence as to dependency. He also diagnosed the applicant with depressive illness.
[45] Report of Dr Jennings dated 13 September 2019, Exhibit A1[152].

The applicant was reviewed by Dr Jennings on 6 February 2019. He reported major problems with pain and a disorganised gait and injuries to her left knee consequent upon: an impacted fracture posteromedial tibial plateau; an anterior cruciate ligament tear; a capsular tear; and, a medial meniscus tear. On that occasion, Dr Jennings further diagnosed the applicant with left hip trochanteric bursitis, pain, depression and anxiety, narcotic bowel syndrome and sexual dysfunction. Dr Jennings expressed opinions outside of his area of expertise i.e., he opined about the necessity for and outcome arising from orthopaedic surgical intervention and whether the applicant suffers psychological conditions.
In his evidence, the applicant’s treating general practitioner, Dr Coulson, stood by the opinions provided in his report dated 3 April 2018. Dr Coulson opined that due to the applicant’s relatively young age and the state of current technology, there was a good chance that if she had undergone a knee replacement at that time she would have needed a further replacement once or twice more in her lifetime. He reported that the applicant had experienced pain and debility since he first saw her in early 2017, and that her ability to undertake physical tasks had been and would remain extremely limited. Dr Coulson noted that Ms Clutterbuck remained debilitated by the pain related to her injury and that she had and would continue to suffer from a regional pain syndrome. He believed that Ms Clutterbuck would ultimately require and undergo a total knee replacement.
The orthopaedic evidence - not updated since December 2017 - established that knee replacement surgery should be undertaken and that it would improve Ms Clutterbuck’s condition. I have been invited to find the medical costs of a total knee replacement to be compensable, subject to contingencies because of CRPS. I consider - based on the 2017 assessments by Dr Webb and Mr Forbes - that a knee replacement will ultimately be required; given the nature and extent of the injury. As noted, I do accept the opinion of Dr Jennings that CRPS will impact on when that surgery will occur and that CRPS will continue to impact on Ms Clutterbuck’s ultimate mobility and, consequently, her ability to resume employment and her previous lifestyle.
Without up to date orthopaedic evidence, it is difficult to reconcile the opinion of Dr Jennings that CRPS will mean Ms Clutterbuck will not work again and the improvements in mobility and pain after a knee reconstruction indicated by the orthopaedic surgeons. I raised that issue with Counsel.[46] The applicant submitted that the importance of the evidence of the development of CRPS had been twofold. First, because Ms Clutterbuck would likely require further support into the future and second, because the development and continuation of that condition contra indicated any short-term knee replacement surgery.
[46] T69 [33] – 73 [12].
I find that the applicant has developed and has been suffering from and will continue to suffer from CRPS and that, as a consequence of the development and continuation of that condition, she had been and will continue to be significantly incapacitated by pain and has been and remained currently unfit for any employment. I also find that her condition has and will continue to materially impact upon her activities of daily living and enjoyment of life. I also find that Ms Clutterbuck will require future surgery to replace her knee, that she will benefit from that surgery and that she will enjoy an improvement in her mobility and a consequent improvement in her physical and mental health. Due to the lack of comprehensive evidence on that topic from an orthopaedic expert, I am unable to find the extent of such improvement. The opinions expressed by the orthopaedic surgeons support the conclusion I have also reached that Ms Clutterbuck will be able to undertake some paid employment in the future; at least employment of a sedentary nature.
Damages
The applicant’s damages fall for assessment, having arisen from negligence, under the Civil Liability Act 1936, (the Act). Her damages must be assessed in accordance with common law principles and applying the thresholds and limits set out in the Act. While damages are awarded as a single lump sum, they must be assessed under several heads of damage as set out below.
Non-economic loss
Section 52(1) of the Act provides that damages can be awarded for non-economic loss if it is found that the ability to lead a normal life has been “significantly impaired” for a period of at least seven days. I find that the applicant’s injuries have caused pain and suffering, loss of amenity, loss of enjoyment of life and have significantly impaired her ability to lead a normal life from the date of her injury until the trial of this action.
To assess the applicant’s entitlement to damages for non-economic loss, I must assign a numerical scale value between 0-60; where ‘0’ represents a case in which the non-economic loss is not sufficient to justify any award of damages and where ‘60’ represents non-economic loss of the gravest kind. Damages must be calculated by multiplying the scale value as per s 52(2)(d) of the Act.
In Burton v Grocke,[47] the plaintiff suffered a significant knee injury: a dislocation of the patella; extensive fragmentation of the chondral surface (the surface of the cartilage which covers the articular surfaces of the bones of a joint); and a disruption or tear of the medial retinaculum (the band of fibrous tissue that, with the lateral retinaculum, locates the patella in its position in relation to the femur). Further, the plaintiff underwent a total of 10 surgical procedures to her knee, some of which required lengthy and complicated recovery periods. She suffered severe, at times excruciating, pain in her right knee. Having regard to those matters, this Court found the plaintiff should be assessed at 25 on the scale.
[47] [2014] SADC 195.
I am assisted by the consideration of this Court in Grocke. Ms Clutterbuck has suffered pain and her injuries have impacted on her capacity to undertake social activities and interact with others. Having regard to those matters, I assess the applicant’s damages at a scale value of 20. As the accident occurred in 2016, that equates to damages for non-economic loss in the amount of $48,334.50. No interest is payable on that sum.[48]
[48] Civil Liability Act1936 s 56.
Loss of earning capacity
The assessment of damages for any loss of earning capacity in this case is governed by s 54 of the Act. Ms Clutterbuck proved her past earnings[49] and in doing so demonstrated what her capacity was likely to have been in the future; but for the injury and other contingencies. She established she had been earning an average of $1,478.00 gross and $1,130.50 net per week;[50] a net annual salary of $59,890.00. I am satisfied employment would have been available to Ms Clutterbuck at the Casterton Memorial Hospital to that extent, and up to the date of judgment.[51]
[49] Schedule of Economic Loss dated 14 September 2020; Schedule of Wage Rates dated 14 September 2020; Exhibit A1.
[50] Ibid.
[51] Letter of Casterton Memorial Hospital dated 17 August 2020; Exhibit A1, [88]; Social Security Act (Cth) 1991 s 23(5A), (5B), (5C) and (5D).
Consequent upon her injuries, Ms Clutterbuck had not returned to work since the accident. As she is not entitled to damages for her first week of absence,[52] I have assessed Ms Clutterbuck’s past loss of earning capacity from 21 July 2016 and until the date of judgment 19 February 2021. That is a period of four years, six months and twenty-nine days and represents a loss of wages on her part in the amount of $270,189.50 net.
[52] Civil Liability Act1936 s 54(1).
I do not have the benefit of an interest calculation or an actuarial report to assist in my calculation of the interest up to the date of judgment, on the past economic loss component of her damages. A simple rate of interest at 5% is appropriate but, as the applicant would have received her wages in increments over the whole of that period, I have applied an interest rate of 2.5% as follows:
Interest on Past Economic Loss – $270,189.50 x 2.5% = $6,754.70
Past loss of Super
The sum calculated for loss of wages is exclusive of the compulsory superannuation contribution required to be paid by her employer. The standard rate of contribution is 9.5% of gross salary.[53] I have calculated past super at 11% of
Ms Clutterbuck’s gross past loss to reflect that she would have received from her employer a super contribution incrementally and would have reasonably expected accretion to her super balance upon investment by the relevant fund of which she was a member. Her past loss of superannuation is therefore calculated as follows:
Past loss of superannuation – $353,242 x 11% = $38,856.60
[53] Superannuation Guarantee (Administration) Act (Cth) 1992.
Future Loss of Earning Capacity
The applicant also claimed, on a broad axe basis, an amount of $500,000.00 (inclusive of superannuation) for her future loss of earning capacity. That sum was based upon her evidence that she would have continued to work until at least the age of 70.
I am satisfied that employment would have been available to Ms Clutterbuck until retirement age; 67 years of age.[54] It was submitted that as Ms Clutterbuck remained totally incapacitated for employment, in light of the restrictions arising from her knee condition and diagnosis of CRPS, it was unlikely she would make any return to employment. The applicant submitted that her past work history and lack of health problems should satisfy me of her expressed intention to work until 70 years of age was reliable.
[54] Letter of Casterton Hospital dated 17 August 2020; Exhibit A1, [88]; Social Security Act (Cth) 1991 s 23(5A), (5B), (5C) and (5D).
I consider the evidence in respect of future loss of earning capacity problematic. As already noted, I do not have the benefit of any up to date orthopaedic evidence concerned with what her work capacity would be after a knee replacement. The nature of the applicant’s prospective mobility, in any event and subsequent to a future knee replacement surgery, is elliptical. The applicant relied on Dr Jennings; a registered specialist general practitioner[55] and certified Return to Work whole person impairment assessment provider.[56] Dr Jennings was a helpful witness and provided the diagnosis of CRPS which I have accepted. However, he based his assessment of the future prospects of Ms Clutterbuck returning to work on the diagnosis of knee injury reported by Mr Forbes and Dr Webb together with his assessment of CRPS and the applicants psychological condition. I have already noted the limitations to the expertise of Dr Jennings in respect of a psychological diagnosis and the outcome of a knee replacement.
[55] Curriculum Vitae of Dr Jennings; Exhibit 1A [210]-[211].
[56] Return to Work Act2014 s 22.
I have concluded, after consideration of the orthopaedic opinions and the opinion of Dr Jennings and the evidence of the applicant, that there is a real prospect Ms Clutterbuck would make a meaningful return to some paid work in the future. That conclusion is based on the potential benefits of the specialist pain management recommended by Dr Jennings, the mental health plan drawn by Dr Coulson and because a knee replacement, by about age 60, would improve the applicant’s mobility. I have also had regard to the description the applicant gave of the sedentary aspects of her past paid employment. I consider that, following surgery, her improved pain management, and mobility and the implementation of her mental health plan would allow her to regain some form of paid employment in the future; at least to the extent of the sedentary aspects of her previous employment.
Further, I am only prepared to assess future economic loss up to age 67; the statutory retirement age. I do so because of the mostly physical nature of the nursing work described by Ms Clutterbuck and my assessment that her capacity to undertake such demanding work would have diminished with age. I have therefore considered future loss on the basis that Ms Clutterbuck - now 56 years of age - would have worked until age 67.
I have therefore assessed damages for future loss of earning capacity on a broad axe basis for 11 years (from now until age 67) having regard to those matters and my conclusion that future mental health and pain management and knee replacement surgery would allow Ms Clutterbuck to undertake some paid employment. I have further concluded a discount should be applied to her future economic loss having regard to the prospect that the vicissitudes of life may reduce the applicant’s earning capacity.[57]
[57] Covington-Thomas v Commonwealth of Australia (No 2) [2007] NSWSC 1059 [60].
I have reduced the applicant’s expected future net income from $1130.50 to $750.00 per week. Applying the relevant multiplier to age 67, I have assessed her potential loss of future earning capacity at $447,000.00. I have made a deduction for contingencies to arrive at a broad axe figure of $255,000.00 for future economic loss. My assessment reflects the applicant’s past earnings as a guide to future earning capacity and my assessment of her prospects for future paid employment and the vicissitudes of life as explained. I will add a further lump sum to her future economic loss to account for an employer compulsory superannuation contribution: $255,000.00 x 9.5% = $24,255.00.
Future medical expenses
Damages for future medical treatment are also claimed. The applicant submitted that a total knee replacement would be required at the age of 60. Dr Jennings estimated the cost of that surgery, including hospital and specialist visits, at $20,000.00. He also estimated the applicant’s medication costs for the next ten years at between $9,000.00 and $29,000.00. The applicant submitted that, given the emergence of CRPS and the likelihood of treatment being required for that condition, an assessment of $50,000.00 for such future medical expenses was conservative. Dr Jennings further estimated the cost of GP visits at $10,200.00 to represent the cost of one visit per month over a 10-year period. I accept those estimates of Dr Jennings because of his extensive experience in assessing whole of body impairment within the framework of the Return to Work Act 2014.
I do not consider Dr Jennings to be suitably qualified to diagnose the applicant’s psychological conditions to the extent I can conclude her future needs as estimated by him. Other than her use of Fluoxetine and the implementation of a mental health plan prepared by her GP, there is a paucity of evidence in respect of her mental health. I am unable to assess whether the estimated sum of $21,840.00 is an appropriate assessment of expenses for future psychological support. However, given my findings, I am satisfied that some amount in respect of the future psychological needs of the applicant is appropriate. I award $10,000.00 as a lump sum.
I assess the future medical needs of the applicant as follows:[58]
[58] Exhibit A1 [161]-[171].
Pain specialist management and consultations                   $20,000.00
Travelling expenses  $13,760.00
Medication expenses  $50,000.00
Psychological services  $10,000.00
GP visits$10,200.00
Total$103,960.00
I have reduced that sum by 15% to $88,366 to reflect that those sums would be used in the future and may never need to be expended.
Special damages
Past Medical Expenses and other special damages are also claimed.[59] I find the applicant has incurred medical expenses to the value of $7,808.80 as a result of the injuries sustained in the accident. I assess her damages for past medical expenses and other special damages in accordance with the Schedule to be $7,808.80. I award 2.5% interest on that sum as follows: $7,808.80 x 2.5% = $195.22.
[59] Schedule of Special Damages dated 14 September 2019; Exhibit A1.
Future Care
I do not consider that Ms Clutterbuck adequately proved the nature and value of her future care needs, as set out in her Schedule of Future Medical Expenses and Future Care. She gave evidence of her inability to carry out domestic duties but insufficient evidence was led as to the nature of and time taken for or cost of the commercial or voluntary provision of past or future services. Given my findings, I am satisfied that some past gratuitous services would have been provided by her husband and that such services would be provided by her husband and commercial providers in the future. I have taken a broad axe approach to my assessment in that regard and award a sum of $50,000.00, inclusive of interest.
Assessment and Orders
My assessment of the plaintiff’s damages is therefore:
Non-economic loss  $48,334.50
Past loss of earning capacity  $270,189.50
Past loss of superannuation  $38,856.60
Interest$6,754.70
Future loss of earning capacity  $279,255.00
Future medical expenses  $88,366.00
Future Care  $50,000.00
Special damages  $8004.02
Total$789,760.30
I make the following orders:
1.Judgment for the plaintiff in the sum of $789,760.30.
2.Costs reserved.
Costs
I direct that the parties provide, within 28 days, written submissions on the question of the costs of these proceedings. The applicant has provided sealed evidence of compliance with R33 of the District Court Civil Rules 2006. I will unseal that evidence after any submissions on costs are received and will consider it on the question of costs.