Dakin v Payne
[2012] NSWDC 22
•15 March 2012
District Court
New South Wales
Medium Neutral Citation: Dakin v Payne [2012] NSWDC 22 Hearing dates: 05/03/12 - 09/03/12, 12/03/12 Decision date: 15 March 2012 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraph 94
Catchwords: Personal injury, assessment of damages, contributory negligence Legislation Cited: Civil Liability Act 2002
Motor Accidents Compensation Act 1999Category: Principal judgment Parties: Tracey Dakin (Plaintiff)
Robert Darrell Payne (Defendant)Representation: G Miller QC, C Thompson (Plaintiff)
R Bartlett SC, B Kelleher (Defendant)
Carroll & O'Dea (Plaintiff)
Sparke Helmore (Defendant)
File Number(s): 2008/00318761 Publication restriction: No
Judgment
Exhibit A includes a map. It shows the scene of an accident. The plaintiff was travelling along Sir Warwick Fairfax Drive toward Camden Valley Way. The intersection of these roads is governed by traffic lights. Her intention was to proceed straight across Camden Valley Way and along Anderson Road. She was taking her daughter Rebekah to ballet. Her son Jordan and her youngest child, Madison, were also in the Holden Commodore. It was Thursday the 1 st of September 2005 at about 5pm. Conditions were 'fine'.
The defendant was travelling in the opposite direction. He was driving his large white tipper truck along Anderson Street with the intention of turning right into Camden Valley Way. As the plaintiff was crossing Camden Valley Way the defendant was commencing his right hand turn across her path. There was a collision. The plaintiff was seriously injured.
The plaintiff says her injuries were caused by the negligence of the defendant. The defendant initially denied negligence but it was ultimately conceded and the focus turned to contributory negligence.
The action is governed by the Motor Accidents Compensation Act 1999 (the "MACA"). The level of the plaintiff's injuries is accepted by the defendant to entitle her to non-economic loss under Section 131 of the MACA.
The plaintiff's background, demonstrating her excellent work history, can be seen in the chronology (Exhibit B). The plaintiff has three children, Jordan born in 1996, Rebekah born in 2000 and Madison born in November 2004. The two elder children are the produce of the plaintiff's first marriage. The third child has resulted from her union with Mr Luke Bailey with whom she and all the children currently reside.
The plaintiff was working as a " workroom aide " for Douglass Hanly Moir Pathology as a receptionist in their Liverpool rooms. She was working 25 hours per week designed to cater for the needs of her children. When the accident occurred she was on maternity leave and due to return to work on 5 December 2005. Her intention was to continue as before but to graduate to fulltime work when Madison entered Year 7. Her ambition was to become a pathology collector.
Fortunately the plaintiff's children did not suffer any significant injury in the accident. The plaintiff suffered very serious injuries, in particular to her feet, legs and back. The effects of the injuries are permanent and dictate her everyday life. Prior to the accident she was a fun loving active mother and partner, engaged to Mr Bailey and looking forward to raising her children and developing her career.
The plaintiff seeks damages under the following heads: non-economic loss, past and future medical expenses, past and future economic loss, past and future domestic care and past and future care for her children, the latter pursuant to Section 15B of the Civil Liability Act 2002 (the "CLA").
The collision
As can be seen from the photographs, a driver travelling on Sir Warwick Fairfax Drive approaching the intersection with Camden Valley Way negotiates a fairly sharp right hand bend together with a decline to the intersection. The traffic lights, at least as far as the plaintiff and defendant were concerned, were simple. Each party on approaching the intersection would have been faced with precisely the same illuminated lamps. In other words, if the light was green for the plaintiff then it was green for the defendant and so on through amber and red. The phasing of the lights is described in Exhibit 7.
I observed during initial discussions with counsel that whatever allegation might be levelled against the plaintiff in respect of the lights (for example going through on a red light) would equally apply to the defendant. Taken with the obligation to make a right hand turn with safety, because it necessarily involves going across the path of oncoming traffic, the accident would seem to have been, on a prima facie basis, the fault of the defendant. Learned senior counsel for the defendant, while couching his response diplomatically, did not suggest the defendant was without fault.
Rather he said that the evidence would show the plaintiff had travelled through a red light. The light had changed to amber as the plaintiff approached. It went to red just before she entered the intersection. She could have brought her car to a stop after the light changed to amber. Thus even if the defendant had also proceeded through a red light, the accident would not have occurred if the plaintiff had stopped in obedience to the red light facing her.
The plaintiff said she last (and probably also first) saw the green light at the point marked X (TD) on Exhibit B and on photograph 3 of Exhibit D. She was travelling at 45 to 50kph. She rejected the suggestion that the traffic lights had turned amber when she was about 60 metres from the intersection and then red a few metres before she entered the intersection. She did however agree that had the lights changed to amber at the time alleged she could have brought her vehicle to a halt before the intersection.
The plaintiff denied that she spoke to a police officer at the scene. She specifically denied telling Senior Constable Sullivan that " the lights were on the change."
When (now Sgt) Sullivan gave evidence he said that he recalled having a conversation with the plaintiff when she was on a stretcher either just outside or inside the ambulance. She was in distress and in pain. He asked her if she was the driver of the Commodore. She replied that she was. He then asked her what had happened and she said words to the following effect: "I'm sorry, I entered the intersection as the lights were going from amber to red." (T 182.31).
It was not put to Sgt Sullivan that the conversation had not occurred. This is not surprising having regard to the evidence of Mr Morley which I will refer to below. I also do not make any adverse comment on the plaintiff's credit based on her denial of the conversation. Her condition at the time is such that it is far from surprising that she has no recollection of any conversation with the officer. The ambulance report (Exhibit F) does not assist in describing the medication that may have been given to the plaintiff before the conversation with the police officer. I will give my reasons below for my conclusion that either at the time, or very shortly before, the plaintiff entered the intersection the traffic light facing her changed from amber to red.
The plaintiff said that as she entered the intersection she saw the truck ahead of her in about the same position as the vehicle in photograph 3 of Exhibit C. She had not seen the truck before this moment and she had no time to brake before the collision. A split second later the two vehicles collided. Later evidence showed the impact was very forceful. Both vehicles spun around. The truck hit another vehicle that was stationary in Camden Valley Way.
There was no dispute that at the point of impact the truck had driven across the plaintiff's path.
Mr James Jefferies gave a more dramatic description of the accident. He is a glazier who travels about 400km a week in the course of his profession. He was familiar with the scene of the accident.
On 1 September 2005, at about 5pm, he was travelling in a motor car in a south-west direction on Camden Valley Way. As he approached the intersection with Anderson Road the traffic lights changed to red and he pulled up in the middle lane with no cars ahead of him. A "pantech" stopped on his left.
As he was waiting Mr Jefferies noticed a white tipper truck travelling along Anderson Road toward the intersection. He placed its speed at about 50 to 60kph. It was in the right lane and its right indicator was operating. He thought it was going too fast for the corner and he expected it to tip over. It was leaning to the left. As it crossed the plaintiff's path it smashed into the Commodore. The wheels lifted up on impact. The Commodore spun in an anti-clockwise direction. The truck spun in a clockwise direction narrowly missing Mr Jefferies' vehicle but striking the pantech.
Under cross-examination Mr Jefferies confirmed that the police had attended the scene. He thought they arrived before the ambulance. Mr Jefferies was taken to paragraph 10 of a statement he made to the police on 22 September 2005 (Exhibit 2) to challenge the estimate of speed that he had made of the truck in his evidence in chief. Mr Jefferies said that on reflection he had come to the view that the truck was travelling in excess of 40kph. This was confirmed in re-examination when reference was made to the evidence he gave in Local Court proceedings in August 2007 when he had referred to the truck speed as 50 to 60kph as it was coming up the hill.
Mr Jefferies' observations were otherwise not challenged. I think the obviously negligent driving of the defendant is illustrated in the following paragraphs of Mr Jefferies' statement to the police:
"9. Whilst stationary facing red traffic lights, red circle signals I saw the approach from my left side of a white coloured rigid tipper with horizontal brown stripes along the whole length of the truck including cabin. Within the stripes there was signage, something Building Materials.
10. I now concentrated on the approach of the tipper. When I first saw the tipper it was about one (1) tipper length away from the intersection. I saw the tipper enter the intersection. It's approach speed in my opinion was not more than forty kilometres per hour (40km/h). The approach of the tipper was of such a concern to me that I feared that it may roll over during the right turn through the traffic lights.
11. When the tipper was inside the intersection, directly in front of the right turn lane I saw the tipper brake hard and immediately the rear commenced to slide a fracture [sic] clockwise. Immediately afterwards I saw an impact with the silver, bronze coloured Holden Commodore sedan. Upon impact was the first time I saw/became aware of the Commodore's presence.
12. As a result I saw the entire front end of the tipper collide with the same portion of the Commodore. As a result of the impact I saw both rear axles of the tipper lift completely off the road surface.
13. I saw the Commodore bounced out of the way, spinning anticlockwise back across the intersection to my right side, that is, the Liverpool bound side of the intersection. The Commodore came to rest near the island and pedestrian crossing opposite me."
No questions were asked of Mr Jefferies concerning the traffic light facing him. In particular he was not asked if the red light changed to green either before or at the time of the collision. There is no dispute that vehicles travelling along Camden Valley Way would receive a green light after the lights facing the plaintiff turned red. I do, however, accept that the phasing was such that there would have been a 'red all round' interval before the change occurred so that the plaintiff could have gone through a red light at the same time as a red light faced Mr Jefferies.
Mr Christopher Morley was the driver of the pantech. He was very familiar with the area. On 1 September 2005 at about 5pm he was on his way home when he came to a stop alongside Mr Jefferies' vehicle, to its left, at the intersection. He wished to prepare to move off as soon as he had the green light so he turned his attention to the traffic lights governing traffic travelling along Sir Warwick Fairfax Drive and Anderson Road. He first of all looked to his left but the light was not discernable because of the effect of the sunshine coming from his right. He then looked to his right but shielded his eyes from the sun. The light was then green. As he continued to watch the traffic light it changed to amber. He also noticed the Commodore coming toward the intersection. The lights then changed to red. At this stage the Commodore was "a couple of metres" before the start of the intersection. He then saw the collision with the truck, which he had not particularly noticed before because he was looking to his right.
The truck spun in a clockwise direction and hit Mr Morley's vehicle with considerable force. Fortunately, seeing danger ahead, he had already begun his exit toward the passenger door. There was substantial damage to his vehicle.
Although it was suggested to Mr Morley that the events had occurred over a split second, with which he agreed, it was never suggested to him that he was mistaken in his observation of the traffic light turning to red either just before or at the same time as the Commodore entered the intersection. Taken with Sgt Sullivan's evidence about the conversation with the plaintiff I am satisfied that when the plaintiff entered the intersection the traffic light facing her was red. At best, in the defendant's favour, it may have changed to red when she was two or three metres from the intersection.
My conclusion about the traffic lights is also not necessarily inconsistent with the plaintiff's oral evidence. According to her she had last seen the green light some time before she entered the intersection. Allowing for some error in her placement of the precise point at which she had last seen the light, it is possible that after her observation the lights changed to amber then red. This would not, of course, absolve her from a finding of negligence. She clearly ought to have maintained an observation of the traffic lights as she neared the intersection. The point I make is that her evidence does not give rise to any finding adverse to her credit.
The point of impact nominated by Mr Jefferies and marked on the Google map, which is part of Exhibit A (page 3), was confirmed by Sgt Sullivan. There is thus no doubt that the defendant had entered into the path of the plaintiff.
Negligence and contributory negligence
As stated above the defendant finally admitted he was negligent. His negligence is obvious. He was going too fast, he paid no heed to the traffic lights or to oncoming traffic and he turned across the plaintiff's path.
I have also concluded that there was contributory negligence on the part of the plaintiff in failing to keep the traffic lights under observation so that she could bring her vehicle to a halt if there was a change from green to amber and then red. She should also have seen the approaching truck. I think that in entering the intersection without having monitored the traffic lights and in not paying attention to other traffic in or approaching the intersection, the plaintiff has failed to take reasonable care for her safety.
I am also of the view that her conduct was a cause of her injury as required by Section 5D of the CLA. If the plaintiff had paid proper attention to the traffic lights, and to the intersection, so that she saw the change from green to amber and saw the approaching truck, she could have brought her vehicle to a halt even if it involved a forceful stop arising from the looming danger posed by the defendant.
The defendant did not give evidence. No explanation was provided for his absence although I note that he also did not attend at the Magistrate's Court to face the criminal charges that had been brought against him. His manner of driving, as described by Mr Jefferies, suggest he was trying to "beat the lights" . He had the sun in his eyes and seemingly paid no regard to the possibility of a vehicle coming in the opposite direction.
The defendant submitted that I should also conclude that the plaintiff was trying to beat the lights. I disagree. I do accept she made the alleged observation about the lights to Sgt Sullivan but I do not think her statement enables an inference to be drawn of her intention in driving through the intersection against an amber or red light.
Consistent, with her evidence, I think it more likely that the plaintiff, having observed a green light some distance before the accident simply, and negligently, paid no further regard to the lights until immediately before the intersection when she probably noticed the change from amber to red. This conclusion is consistent with her failure to see the approaching truck. In other words she was generally not keeping a proper lookout.
The element that I think creates the far greater assessment of negligence on the defendant's part is his turning across the path of the plaintiff. In addition he was driving a heavy vehicle capable of causing serious injury to the occupants of a motor car. On the description of Mr Jefferies, whose evidence was accepted by the defendant, the defendant was driving recklessly.
Each party relied on a report from a traffic engineer (Exhibits G and 6). In my view this is not a matter that calls for expert testimony and there is little difference between the views of the experts. They both attribute fault to the defendant. The difference between them was that Mr Stuart-Smith, for the defendant, thought the plaintiff could have avoided a collision by braking whereas Mr Jamieson, for the plaintiff, felt that "the north-east bound approach to the signals probably featured an inadequate "Approach Site Distance" - due [sic] the curved approach". He went on to say, however, that this observation was subject to a "precise survey and Safety Audit" .
Both experts commented on the effect of the descending sun on the defendant's capacity to see the plaintiff and, as I read the reports, they agreed that the two vehicles probably entered the intersection at about the same time.
Mr Stuart-Smith ended his report in this way: "Based on Mr Morley's report, both drivers most likely entered the intersection with insufficient regard to the status of the lights and to the possibility of opposing traffic being present".
Noting that I accept Mr Morley's evidence (and that it was not ultimately challenged) I also agree with Mr Stuart-Smith's summary. What must be added to it, however, is that the defendant was making a right hand turn across the path of the plaintiff together with the other factors I have mentioned above about his manner of driving.
As far as the failure of the defendant to give evidence is concerned I draw no inference beyond that his evidence would not have assisted his case. There are excerpts of a statement he made in Mr Stuart-Smith's report but they are replete with obviously incorrect assertions. For example he states: " ....I don't know, she must have been arguing with her husband or something.......But dead set, she was doin' a hundred and I, I saw her come out from behind those shrubs...". Learned senior counsel for the defendant said I should ignore the statement. I agree and I have ignored it.
The defendant submitted that the range of contributory negligence was 33% to 45% and said 40% was appropriate. The plaintiff submitted 5% was the right assessment but later suggested a range of 10% to 20%.
Taking into account all of the above factors I assess contributory negligence on the part of the plaintiff at 20%.
After the accident
The plaintiff's injuries are well described in the medical reports and the chronology, as is her treatment. She has had extensive operative intervention, the most recent being in July 2009 when she underwent a total arthrodesis of the left ankle joint. This gave her a stiff joint, although did relieve some pain.
The plaintiff now has constantly painful feet, her back often hurts and she experiences a good deal of emotional upset. She has steadily returned to many of the domestic chores and childminding activities she undertook before the accident but she only achieves her aims with frequent rest and the endurance of considerable pain. She no longer uses crutches but keeps them handy in case needed.
Despite the continuing improvement the future is not certain. She will suffer an acceleration of degenerative change. She will probably require further operative treatment and her emotional wellbeing will no doubt fluctuate.
Prior to the accident the plaintiff generally performed all tasks inside the house as well as the majority of the childminding. She was (and is) very houseproud and appears to have imposed a high bar on the quality of domestic activity. This has continued to the extent that her children do not attend to their own bedrooms because their efforts would not meet her exacting standards.
The insurer has provided a good deal of paid assistance which commenced a few weeks after the plaintiff's discharge from hospital. Initially care was provided throughout the week from 6am to 6pm each day. Often two carers were employed in order to cater for both the plaintiff's and the children's needs.
In addition Mr Bailey has switched some of his efforts from outdoors to indoors and he has provided significant amounts of assistance. This has lessened over time and in particular recently because he underwent surgery to his back in February of this year. He is now back to work on light duties but hopeful of full recovery.
The plaintiff has also received assistance from other members of her or Mr Bailey's family. Mrs Glenda Hill, the plaintiff's stepmother, has made a number of short trips to Sydney from northern New South Wales in order to provide assistance over stretches of two or three days or up to a week.
At present the plaintiff is provided with four hours of paid care per week, which concentrates on heavier domestic activities such as vacuuming and cleaning bathrooms.
The plaintiff has been depressed and at one stage was prescribed anti-depressant medication. She now relies on a herbal remedy called St John's Wort. The plaintiff said her marriage has suffered as her libido has waned and she and Mr Bailey are frustrated by the lack of intimacy between them. They were engaged in 2004 but have not yet married.
Damages
The following heads of damage were agreed: non-economic loss, past out of pocket expenses, past economic loss, past lost superannuation benefits and past gratuitous care (both under Section 15B of the CLA and Section 128 of the MACA). This left future economic loss, future superannuation benefits, future medical expenses, future care (paid and unpaid) and future equipment and modifications to be decided.
The defendant has pleaded, as a defence, the payments made by the insurer under Section 83 of the MACA. The agreed sum is $426,849.36.
As a general statement the approach taken by the defendant was to rely on orthopaedic opinion. The defendant submitted the plaintiff's injuries were primarily orthopaedic in nature so that the views of the orthopaedic specialists were most relevant. This was enforced, said the defendant, by the general agreement of the orthopaedic opinion on both sides.
There was no suggestion of any exaggeration or malingering on the plaintiff's part. She is an impressive woman who has battled adversity with singular stoicism and courage. This is reflected in her efforts to return to work and her resumption of many of her previous domestic tasks.
Future economic loss . For purposes of Section 126 of the MACA I am satisfied that as at the date of the accident the plaintiff intended to return to work and to continue working until retirement. I am satisfied that her employment as a workroom aid was part of the preparation necessary for her to progress to the status of a pathology collector. I accept that at the end of her maternity leave she would have returned to work at 25 hours per week and continued in her job so that she progressed in her career. I am further satisfied that when her youngest daughter reached Year 7 she would have sought and obtained fulltime employment. The plaintiff made it clear that she foresaw a future career in collecting pathology so that I accept that she would have worked to age 67. There was no evidence to suggest that her employment would not have been continuous or that the normal reduction for vicissitudes of 15% should not be applied.
The parties agreed that the plaintiff's current net earnings but for the accident on a fulltime basis would have been $765.50 per week and $480 per week for 25 hours.
The defendant submitted that the plaintiff's present capacity to earn was 20 hours per week but also accepted that the plaintiff may not reach this level for some time. The defendant therefore allowed $200 net per week for five years (until Madison is in Year 7) and then a loss of $350 net per week until the plaintiff reached the age of 65.
The plaintiff presented three alternatives ranging from total incapacity to the adoption of the opinions of Drs Davis and Millons. The plaintiff submitted that even if she did have a capacity to work it could not be exercised because she was unlikely to find a suitable job. She needed confined hours, a car space and a suitable working environment.
I do not think the plaintiff is totally incapacitated. She said that she felt she could work for two or three hours per day for two days per week. She enjoyed her job trial at a Toyota dealer. She also felt that her self esteem would benefit from working. The plaintiff will no doubt endeavour to do her best to work, and at work, but will be faced with enormous difficulties. However she will, I feel sure, continue to look for work and ultimately be successful.
I think a fair approach is to allow the plaintiff a loss of $375 per week for five years and thereafter $550 per week to age 67. This reflects about an 80% loss of capacity measured against the agreed weekly wage of $480. Applying the same percentage (78.12% precisely), to the period after 5 years (when the plaintiff would have been working fulltime) the weekly loss is $598.
Although the plaintiff is presently 48 years of age, she will turn 49 in about one month. I will therefore treat her as if she is 49 for purposes of the future 5% multiplier. Applying these figures and deferring the $550 loss for five years, the figure produced is $322,306.81. This needs to be reduced by 15% for vicissitudes, producing future economic loss of $273,960.79.
The lost superannuation benefit at 11% is $30,135.68.
Future domestic care. The defendant submitted that five hours per week was appropriate. The parties agreed that $35 per hour was the applicable rate. The plaintiff submitted that there should be an allowance of 12 hours per week plus an additional seven hours per week for personal care commencing in 10 years due to the degeneration that was likely to occur in the plaintiff's condition.
The defendant pointed out the numerous tasks that the plaintiff was currently doing and that she seemed to be 'getting by' on the four hours per week assistance that she was currently receiving. The plaintiff relied on the opinions of Dr Ling and Ms Luft for the larger claim. I think a point that needs to be taken into account is that the plaintiff's needs for domestic assistance are likely to increase when she returns to work. The strains on her body will be increased and no doubt her capacity to perform domestic tasks will be diminished by the end of a day's work. In the defendant's favour I think I should take into account that as the children get older they might be expected to perform some tasks, if only for themselves. This might include, for example, attending to their respective bedrooms.
The prescription for the further seven hours, commencing in 10 years time, of personal care is to be found in the report of Dr Ling dated 7 March 2012. On page 7 Dr Ling states:
"It is my opinion that Ms Dakin will also require personal care assistance with showering up 7 hours per week in the next approximate 15 years due to the expected onset of further joint degenerative changes, and for safety given her current level of impaired mobility and balance."
Ms Luft, the occupational therapist, suggests future domestic care of 18.9 hours per week, diminishing when the children are older. This appears to me to be quite excessive and, in fairness to the plaintiff, it is not adopted. I cannot, however, find any support beyond Dr Ling for the increase in hours in the future. I also need to take into account that if the plaintiff has further surgery then on each such occasion she will require increased domestic assistance.
Taking all these factors into account I think the appropriate allowance should be 10 hours per week for the remainder of the plaintiff's life expectancy. The plaintiff has a life expectancy of 39 years, giving rise to a 5% multiplier of 909.9. $350 per week on this multiplier $318,465. I specifically do not allow the seven hours per week in the future suggested by Dr Ling. I am not satisfied that this need has been established. I also find the suggestion of an hour a day for showering a little on the long side.
Future child assistance . In addition to future domestic care the plaintiff has also claimed paid care for child assistance. The defendant has submitted that there should be no allowance, firstly because now that Madison is seven years of age there is no need and secondly because the plaintiff in any event provides all of the childcare assistance that she would otherwise have provided. The plaintiff's claim is for seven hours per week for 11 years, which is when Madison reaches 18 years of age.
I find this claim difficult. On the one hand the plaintiff is unquestionably impeded in her capacity to interact and carry out tasks for her children. On the other hand Madison, even at seven years of age, does not appear to require any assistance requiring physical activity other being transported to school and various social or sporting events. There is also an air of the unrealistic in having one hour per day of paid care for a child. In addition, I take into account that the two older children are away each second weekend when they visit their natural father.
I do think the plaintiff does require some assistance with child care, especially for Madison, even if it is only in the form of driving her to different places. I think this assistance is more likely to be provided on a gratuitous basis by Mr Bailey and perhaps by the older children when they are more mature and have their own drivers' licences. The difficulty with this approach is that I do not think the 6 hour per week threshold imposed by Section 15B of the CLA would be met.
Accordingly I reject the plaintiff's claim for separate damages for child care. I also note that the domestic assistance allowed for the plaintiff necessarily includes some services being provided to the children.
Future treatment and out of pocket expenses. This claim is made up of a number of different components some of which are agreed, some entirely disputed and some partially disputed.
Some of the defendant's objections were pressed with less vigour in final submissions. For example the original assertion that no radiology should be allowed was recognised to be inconsistent with the allowance for orthopaedic review, taking into account that the specialist would be likely to call for up to date scans from time to time.
I think some of the plaintiff's claims are excessive. For example 15 sessions of physiotherapy per annum is not reflected in the plaintiff's current use of this mode of treatment, although I do accept that she will require physiotherapy from time to time, perhaps more likely to occur after any future surgery. The plaintiff's claim for future surgery ($29,048) is well based but I think needs further discounting in case it does not occur or takes place more than 10 years into the future. I will allow $22,000.
The claim for blood tests can only be justified after surgery and not annually. The surgery will be well into the future. I will allow $300.
In relation to the anti-depressant medication the defendant said the plaintiff was not taking this type of medication now and there should be no allowance. The plaintiff also expressed a reluctance to be on these tablets. Despite this, the psychiatric opinion, especially Dr Phillips, is for a need for the medication. I think a small allowance needs to be made in case the plaintiff's requires more than the St John's Wort treatment in the future.
There must necessarily be a degree of speculation in finding the correct figure for each claim especially where all of the treatment is in the future. Where the figures are not agreed, and subject to the specific comments I have made, the following assessment is my best attempt to reach a reasonable estimation of the plaintiff's future treatment expenses.
| Medication (agreed) | $12,598.61 |
| Radiology | $10,000 |
| Blood tests | $300 |
| Medical review by an orthopaedic surgeon | $2,532 |
| Medical review by a general practitioner | $5,000 |
| Medical review by a rehabilitation physician | $2,000 |
| Physiotherapy | $5,000 |
| Orthotic review (agreed) | $5,000 |
| Gym membership (agreed) | $25,690 |
| Occupational therapy | $5,000 |
| Future surgery | $22,000 |
| Future psychological treatment | $5,000 |
| Future anti-depressant medication | $5,000 |
| Total | $105,120.61 |
Special equipment and car and home modifications. The main difference between the parties is the plaintiff's claim for a powered wheelchair and the adjustments needed to her home and vehicles to cater for the chair. The defendant says that such a claim is simply not supported on the evidence, other than by Dr Ling, and there is certainly no orthopaedic necessity.
Dr Ling also says that the plaintiff's home should be fully wheelchair accessible without internal stairs. The plaintiff's home is on one level but I understand that her ensuite bathroom is not accessible with a wheelchair. I accept that she needs to be able to move about her own home in a wheelchair during those times when such a conveyance is necessary. This will be the case after surgery and perhaps during periods of increased pain and discomfort in her legs.
In my view, the preponderance of the medical evidence does not support the need for a powered wheelchair but I do think the plaintiff should be able to get about her own home in a manual wheelchair. Dr Ling's prognosis for a loss of mobility requiring a powered wheelchair is, as pointed out by the defendant, based on a " may upon a may " be required (Report dated 26 June 2011, page 13). There is no other medical support for a powered chair. I do not think the plaintiff has established a reasonable need for this claim.
I do think the plaintiff is entitled to home modifications to allow her to access her en suite bathroom in a manual wheelchair. The defendant submitted that by the time a wheelchair would be used the children would probably have left home and the plaintiff could use the main bathroom. I do not think it reasonable to deny the plaintiff access to her private facilities no matter who else is living in the house.
There is no separate costing for the modifications to the bathroom. In a hopeful endeavour to be fair to both parties I allow $7,500 for this purpose.
As far as other equipment is concerned the defendant says the costings of Ms Zeman are reasonable with the exception of the wheelchair and a refrigerator.
Consistent with my findings I think the plaintiff is entitled to the cost of a manual wheelchair. She already has a wheelchair and the upkeep, at least for the moment, is not likely to be very much. I also think it likely that the plaintiff will need a wheelchair when on holidays and instead of walking longer distances at airports and perhaps at holiday venues.
The defendant has accepted a need for special equipment in the amount of $31,019. This figure includes the provision of special shoes, which is agreed at $24,500.
The plaintiff's claim is $80,237 based on the report of Ms Luft at paragraph 8.1. The defendant's response is to be found on page 10 of Ms Zeman's second report (Exhibit 9). It is very difficult to decide on some of the equipment in dispute, both as to necessity and cost. Should I, for example, allow $7.00 or $13.33 per annum for a long handled reacher? Why is a long handled reacher necessary but the long handled washer not necessary? What should I decide about the Throne Toilet Rail?
Learned senior counsel for the defendant submitted this was a situation where I " should do the best I can ." Removing the annual costs for the powered wheelchair and the shoes (agreed separately) brings the plaintiff's yearly claim down to $2,153.20. Doing the best I can I allow $1,750 per annum which is $33.65 per week. On the 5% tables for the balance of the plaintiff's expected life the figure is $30,618.13.
Because I have not allowed the powered wheelchair the costs of a modified vehicle falls away.
Holiday carer. Once again the defendant submits that the medical evidence does not justify this expense. The plaintiff has claimed $50,000 as the additional cost of travel. I have little doubt that travel will create extra obstacles for the plaintiff. Getting on and off aircraft, transporting bags and entry and exit to other forms of transport will no doubt pose their problems. The plaintiff may not always take holidays with Mr Bailey. There is therefore a foreseeable need for assistance during travel. At the same time, however, when the plaintiff is travelling, domestic care needs (the 10 hours per week) will not be entirely required. I think the plaintiff is entitled to some allowance for the possibility of needing to hire extra help to assist her whilst she is travelling. However, I think this allowance should be modest. I allow $7,500.
A summary of the damages that have been agreed or allowed by me is as follows:
| Non-economic loss (Agreed) | $270,000.00 |
| Past out of pocket expenses (Agreed) | $426,849.36 |
| Past domestic care and child care (Agreed) | $155,000.00 |
| Past economic loss (Agreed) | $126,750.00 |
| Past lost superannuation benefits (Agreed) | $13,942.00 |
| Future economic loss | $273,960.79 |
| Future lost superannuation benefits | $30,135.68 |
| Future paid domestic care | $318,465.00 |
| Future equipment | $30,618.13 |
| Future allowance for special shoes (Agreed) | $24,500.00 |
| Future treatment | $105,120.61 |
| Home modification | $7,500.00 |
| Holiday carer | $7,500.00 |
| Total | $1,790,341.57 |
The total of the above figures must be reduced by 20% to reflect my finding on contributory negligence. The defendant has also raised a defence under Section 83 of the MACA. The relevant figure is $426,849.36. The finding of contributory negligence does not reduce the amount of the Section 83 expenses that must be deducted.
The resulting calculation is
(a) $1,790,341.57 less 20% = $1,432,273.20
(b) $1,432,273.20 less $426,849.36 = $1,005,423.90
There will be judgment for the plaintiff for $1,005,423.90.
I will hear the parties on costs.
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Decision last updated: 16 March 2012
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