Davies v Norberry

[2008] NSWDC 112

CITATION:	Davies v Norberry [2008] NSWDC 112
HEARING DATE(S):	19 and 20 June 2008
JUDGMENT DATE:	9 July 2008
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	Verdict for the plaintiff against the defendant in the amount of $622,738.76; parties to be heard on costs before final orders made
CATCHWORDS:	MOTOR VEHICLE ACCIDENT - negligence - pedestrian plaintiff struck by motor vehicle while crossing the road - plaintiff had impaired sight and walking with assistance of a guide dog - defendant admitted liability - claim for contributory negligence abandoned - assessment of damages - costs
LEGISLATION CITED:	Motor Accidents Compensation Act 1999, ss 124, 128(3), 131 and Pt 3
CASES CITED:	Harrison v Melhem [2008] NSWCA 67 Roads and Traffic Authority v McGregor [2005] NSWCA 388; (2005) 44 MVR 261
PARTIES:	Bronwyn Davies (Plaintiff) Melanie Norberry (Defendant)
FILE NUMBER(S):	3373 of 2007
COUNSEL:	Mr CP Locke (Plaintiff) Mr DL Ronzani (Defendant)
SOLICITORS:	Goldrick Farrell Mullan (Plaintiff) Curwoods Lawyers (Defendant)

JUDGMENT

Introduction
1 In this action the plaintiff, Bronwyn Davies, has sought damages for personal injury sustained in a motor vehicle accident occurring at about 7.40am on 30 May 2005. The plaintiff, who was blind and partially deaf, was walking across Bridge Street at Rydalmere on her way to work with the assistance of a guide dog when she was struck by a vehicle owned and driven by the defendant, Melanie Norberry. She suffered multiple fractures to her legs and was taken by ambulance to Westmead Hospital and then two days later to The Hills Private Hospital where extensive surgery was performed by Dr John Fox.

2 At the time of the accident the plaintiff was employed by Quantum Technology Pty Limited as a project officer engaged in the development of products for people with disabilities. The position, which had been held for a few years, was on a full-time basis for 40 hours a week and returned the plaintiff a net weekly wage of about $700. It was work of an administrative nature involving considerable use of a personal computer at a desk. Although sight and hearing impaired, the plaintiff fully participated in the workforce and enjoyed working in her chosen field. She went to and from work, sometimes driven by her husband or son or by taxi but usually by herself, with her guide dog and did so by walking and the use of buses and trains – she displayed confidence in doing so and had previously not encountered any difficulties.

3 After discharge from hospital, the plaintiff recovered at home and had the use of a wheelchair and then crutches for up to 18 months. She retuned to work at Quantum Technology in later September 2005 on a gradual basis by working two hours a day for three days each week increasing to 20 hours a week. A feeling of depression in her mood commenced in January 2006 to a noticeable extent. The plaintiff’s guide dog died in February 2008 but she was unable to obtain another dog because the Guide Dog Association considered she did not have sufficient physical mobility. Even so, the plaintiff continued her occupation on a part-time basis with Quantum Technology and was required to use a taxi as she could not leave home or use public transport without a guide dog. That continued to be the position up to early 2008 when her employer enquired if she could return to full-time work but she declined due to pain and disability in her knees from the accident – apparently, some tension then followed with her manager and she received written warnings about some aspects of her work; it was suggested she work from home – the plaintiff became anxious about future employment with Quantum Technology. After a meeting the plaintiff had with the manager and the managing director of Quantum Technology on 5 May 2008, another incident occurred concerning the manager’s work requirements; the plaintiff thereupon consulted her psychologist and she was certified unfit to work from 6 May 2008 to 5 July 2008.

4 In the meantime, on 27 July 2005 the plaintiff had an arthroscopy of the right knee and removal of nail fixation in the leg by Dr Fox at the Castle Hill Day Surgery. Discomfort, however, in the left leg was being experienced but the plaintiff’s major problems were her knees which were constantly aching. On 23 May 2006 she had the metal plate and screws removed from the left ankle in a procedure at Sydney Adventist Hospital by Dr Dimitri Papadimitriou. On 20 June 2006, Dr Papadimitriou removed the nail and locking screws in her right leg. Between these procedures, the plaintiff worked at Quantum Technology part-time for 20 hours per week.

5 The plaintiff expressed a desire to retain employment with Quantum Technology which, with the disabling effects and pain to her knees from the accident, she thought she could do for 20 hours a week. Her intention was to work to age 65 or 70 years and if she lost the job with Quantum Technology other employment would be sought but she would be dependent upon family members (her husband or son) or a taxi to transport her to and from work. Significantly, before the accident the plaintiff enjoyed an independence in her movement but thereafter she had become dependent on other people to be able to leave the house, engage in recreational activities and to perform household duties. She had had, prior to the injuries from the subject accident, an injury to her shoulder in August 2000 from a fall at her place of employment and a right knee injury from a fall outside her workplace in December 2001. Those injuries were the subject of treatment, the shoulder by Dr David Duckworth and the knee by Dr Peter Gray on referral by the plaintiff’s general practitioner, Dr Gregory La Hood – the plaintiff herself considered her health before the motor vehicle accident was good, she regarded herself as “very healthy” and engaged in cycling, snow-skiing, bush walking, gardening and body surfing. Her sight became impaired when she was a teenager as a result of retinal detachment in both eyes and she experienced a gradual hearing loss in both ears. Nevertheless, she managed those disabilities and used a speech synthesizer as an aid.

The claim and the defence
6 The defendant was sued by the plaintiff in negligence for damages arising out of the May 2005 motor vehicle accident. Negligence was admitted by the defendant and, although originally pleaded against the plaintiff, contributory negligence as a defence was abandoned at the hearing. Therefore, the present proceedings were limited to an assessment of damages. The provisions of the Motor Accidents Compensation Act 1999 apply to the determination of the plaintiff’s claim.

7 It was common ground that the degree of permanent impairment of the plaintiff as a result of the injury caused by the motor accident had been assessed at less than 10 per cent so that pursuant to s 131 of the Motor Accidents Compensation Act she was not entitled to damages for non-economic loss. Damages were claimed for past and future out-of-pocket medical and other expenses, past and future loss of earning capacity (including superannuation) and past and future gratuitous domestic care. In the circumstances, counsel for the plaintiff said the determination of the quantum of damages for the various items was somewhat complex and the claim was in the range of $960,080 to $1.16 million. The physical injuries suffered by the plaintiff were not in themselves in serious dispute, although there was a difference of opinion as to whether there was any recognised psychological or psychiatric injury. Otherwise, the defendant vigorously challenged the aspects of the plaintiff’s claim as to earning capacity, medical and other expenses, working life expectancy and domestic care; an alternative quantum was proposed in the total sum of $380,850.

8 Workers compensation benefits were paid to the plaintiff in the total amount of $137,085.81 for weekly payments, medical costs and travel expenses. However, for some reason no income tax was deducted from the weekly payments so that the inclusion of a Fox v Wood component in any assessment of damages does not arise. It was agreed that the payback figure for the workers compensation medical costs and expenses component was $83,600.

The evidence
9 The plaintiff was born on 29 November 1956 so that at the date of the motor accident she was 48 years of age and 51 years at the date of trial. On completion of the Higher School Certificate she undertook training in secretarial work and then completed at TAFE a Diploma in Business Administration. She married when she was 22 years of age and has three sons now aged 21, 26 and 28 years; the eldest and youngest sons live with the plaintiff and her husband, an electrical engineer, at Oatlands in a two-storey house on a quarter acre block. Her initial work was as a receptionist in Melbourne for the Moorabin City Council but she ceased work on commencing to have a child. Employment was resumed in about 1985 as an administration officer. In mid-1995, employment started with Freightcorp as a project officer until she was retrenched in late 2002 and did not work in paid employment for 12 months. Attempts were made to obtain further employment and the plaintiff eventually started with her current employer, Quantum Technology, shortly thereafter.

10 A feature of the plaintiff’s evidence was her need to be independent in both her working, family and social life with the statement that she considered herself to be young; work was a prominent activity as part of this independence and she said her intention was to continue employment until 65 or 70 years of age.

11 Domestically, the plaintiff said she performed most of the household duties, such as vacuuming, cooking, washing clothes and cleaning, and, as she added, “my husband and children did very little.” The plaintiff also cleaned the windows in the house once a year. However, about six months before the subject accident a cleaner was engaged, because the plaintiff did not have time, to do each fortnight the heavier cleaning of bathrooms, floors, bench tops, toilets, vacuuming, dusting, kitchen and balcony floor. In the garden, which was of the native type, the plaintiff weeded, trimmed, planted and fertilised; her youngest son, who was a horticulturist, always mowed the lawns, did the edging and cleaned the paths.

12 The occurrence of the motor accident was described by the plaintiff as being hit on the right leg by the vehicle as she crossed the road with her guide dog and being thrown to the ground as the vehicle’s wheels passed over her legs. She understood she sustained three fractures to the right leg and crushing injuries to the left leg; the pain was immediate and she could not get up from the ground. After the period of 18 months using a wheel chair and crutches, the plaintiff found she walked with a limp due to the left ankle not taking pressure and could not kneel because of disability with the right knee; even so, walking was possible for about a kilometre before discomfort was felt, particularly in the right knee and shin. Her major problem now was both knees.

13 Activities after the motor accident have been restricted for the plaintiff. At work, after gradually increasing the hours of attendance, she found 16 to 20 hours a week was the most she could do – seated at a desk with her knees bent caused her pain after an hour or so and the need to stand and move around but still restricted her movements. At home, she now was only able in the garden, a much-loved activity beforehand, to do a little pruning. In the house the plaintiff’s activity, apart from attending to her own personal care, is limited and she assists the youngest son with cooking, meal preparation, washing-up after meals and clothes washing; in that latter respect she has done it herself since mid-2006 – the cleaner continues to be used. Overall, the plaintiff felt a loss of independence in her activities and housebound unless someone accompanied her. To get to and from work she relied on her husband and son and sometimes used a taxi.

14 The plaintiff, from weekly records kept by her, prepared a schedule setting out the domestic care received by her in the period from June 2005 to April 2008 covering such items as cooking and washing-up, washing and hanging-up clothes, showering, dressing, travel to doctors and therapists, driving to work, driving to the gymnasium and other events and extra house cleaning. The schedule showed varying hours each month from 38 to 190, with the higher amounts in the period up to June 2006, in the total of 2,722 hours – the average monthly hours of assistance were 77 or 18 per week. In the final six-month period from November 2007 to April 2008 the hours of domestic care totalled 356, that is, an average of 59 hours per month or 13.5 hours per week; in the last two-month period for March and April 2008, the total hours were 90 which averages at 45 hours per month or 10.3 hours per week.

15 A significant incident occurred at the plaintiff’s workplace in early 2008. As I said earlier, her manager questioned her work performance after she had been asked by the managing director if she would work full-time. On returning from three weeks’ annual leave in mid-March 2008, the manager expressed real satisfaction with her performance but shortly thereafter he became very critical and pedantic of some of the documents she prepared. At the time, the plaintiff said she was on medication for depression which caused a racing of the heart, irritability and a sore throat; she was not sleeping well and her future without the guide dog, which died in February 2008, was of concern to her. In the result, she had an oral disagreement with her manager who expressed understanding but later gave her a written warning about following instructions. A mediation session with the managing director was unsatisfactory and, in the circumstances of her condition and interrupted lifestyle following the motor accident, the plaintiff became upset. A week or so later, by which stage the plaintiff had reduced her weekly hours to 16, she consulted her psychiatrist, Dr BD Moorthy, and was certified as unfit for work from 6 May 2008 to 5 July 2008. She plans to resume working at Quantum Technology.

16 This work incident was seen by the defendant’s counsel as a novus actus interveniens and therefore unrelated to the motor accident. I am able to immediately disagree. In evidence which I accept, the plaintiff gave a credible explanation. She said, in effect, that at the time she was under stress, concerned about her future, had recently lost her guide dog with no replacement because of her lack of mobility, sleep deprived, eating less, loss of independence and unable to walk without someone assisting – the plaintiff felt depressed and had been so since the motor accident – those matters were seen by her as consequences of the injuries from the motor accident and she needed the two-month period off work to recover herself. It was as if the events at work were a culmination of all the things then affecting the plaintiff and the “straw that broke the camel’s back.” As I say, I accept her evidence so that this two-month absence from work is to be regarded as a sequela of her injuries from the accident.

17 At the present time, the plaintiff continues to have pain in her knees and experiences variations in her mood with a feeling of depression. She is aware of the possible need in the future to have an arthroscopy to the left knee and eventually total replacements for both knees which she said she would have if advised to do so. She sees her general practitioner, Dr La Hood, monthly and, although not seen since September 2007, expects to be reviewed by Dr Papadimitriou as her treating orthopaedic surgeon. As to other medical treatment, she has physiotherapy once a month (would like more if she could afford it because it relieved the pain in the knees), would wish to have hydrotherapy if affordable, has therapeutic massages every fortnight and her psychiatrist Dr Moorthy considers he should see her monthly as well as a psychologist for weekly sessions. Although in pain, the plaintiff takes only Panadol and fish oil because the anti-depressants and other medication give adverse effects. The plaintiff acknowledged that a personal trainer and personal carer have been recommended to her but she has not used these services due to the cost.

18 I have to say I found the plaintiff’s evidence to be credible. It was given in a careful and deliberate manner with a feeling of sincerity and without any exaggeration or colour. She showed a willingness to overcome her problems since the accident and to participate to the extent she could in the workforce. At the same time, the loss of her independence is a delaying factor. I will deal later with particular aspects in assessing the quantum of damages, but, in general terms, I am comfortable in accepting the thrust of her evidence which was, despite detailed testing in cross-examination, not diminished.

19 A neighbour of the plaintiff, Judith McClaren, gave evidence as to her view of the plaintiff both before and after the motor accident and of the assistance she provided to the plaintiff. Ms McClaren had known the plaintiff for 15 or 16 years as a neighbour and latterly for 12 years as a friend; they saw a great deal of each other as their sons grew up together. She said the plaintiff had had a “very bubbly, easy going and jovial” personality who was “quite outgoing” and spent lots of time in the garden, riding a bicycle and walking with her dog; she was aware the plaintiff loved her work. A year or so after the motor accident when some recovery from the physical trauma had occurred, Ms McClaren said the plaintiff became obviously impaired in activities and frequently complained of pain in her legs, particularly the knees; the plaintiff rested a lot inside the house and was rarely seen in the garden whereas before she was an “outside person.” The plaintiff was often “teary…not feeling herself…just different…withdrawn…not like this before.” Ms McClaren took the plaintiff to work-out on equipment, such as the treadmill, bike and rowing machine, at the local gymnasium twice a week for one to one and a half hours on each occasion and assisted her with the equipment. Ms McClaren conceded both she and the plaintiff “worked-out” at the gymnasium together. Otherwise, her evidence was not challenged. I accept it.

20 The plaintiff’s husband, Roy Davies, was an electrical engineer. He had known the plaintiff for 32 years and they had been married for 30 years. He found his wife to be a very healthy person who led an active life by engaging in long distance bicycle riding, swimming and walking (eg she had climbed Mt Kosciusko); she had a very positive approach to life and enjoyed work, notwithstanding her sight impairment, and was physically independent with the aid of a guide dog – she walked by herself with the dog and used public transport to work. Mr Davies had never detected any depression or mood swings in the plaintiff. However, after the motor accident, unlike before, he walks with the plaintiff in the evenings and drives her to the railway station where he puts her on the train under the eye of the guard; after work he collects her; and he now drives her to the supermarket for shopping and for other appointments. He said he was familiar with the schedule of domestic care prepared by the plaintiff and, to the extent it referred to his services, it was accurate; he intended to continue such care which he had not given before the accident.

21 Mr Davies thought his wife’s mood was now “a little bit scary…depressed…not sleeping…tired in the daytime with the need to rest…sore knees…mood is low.” He added that the plaintiff still walks but after about an hour her knees cramp and she needs to rest; bicycle riding is alright for her for about 10 km before the knees get sore and after 20 to 30 km she is in such bad pain with the need to hang one leg off the pedal – apparently, the bicycle is a tandem.

22 Inside the house, the plaintiff did the housework with the help of a cleaner each fortnight and their youngest son mowed the lawns. After the motor accident, he and their sons do the housework with the garden attended to by the son, who is an horticulturist, for payment.

23 In the result, Mr Davies said his wife had experienced a physical trauma from the motor accident and was generally in pain in the knees with a worsening mood – he said her overall condition was gradually getting worse.

24 Mr Davies was not tested in his evidence as there was no cross-examination. There is no reason shown why I should not accept his evidence, which I do.

25 Michael Simon Davies, the plaintiff’s son, was a sole trader horticulturist who operated his own business known as the “Good Gardening Guy.” He lived with his parents in the family home. He said in evidence that his mother before the accident was “just a normal mum” who was “very active, went on long walks, rode a bike and had no problems”; he added she was “fine and happy.” Although sight impaired and unable to drive, Mr Davies said the plaintiff did the housework, such as cooking, cleaning and gardening; he was unaware of the arrangements with the external cleaner. After the motor accident, the plaintiff according to Mr Davies got sore knees when sitting or standing and was limited to 20 km in riding a bicycle with him; she was restricted in the gardening work because of an inability to kneel – he had not seen his mother doing housework now and found that she became upset when she could not get out of the house by herself. Mr Davies did the gardening at home once a month at the weekend for which he charged $45 per hour for two hours work in weeding, mulching, grooming, new plantings, rubbish removal and spraying – invoices from him showed such paid work was started in June 2007 and had occurred since on eight occasions. Largely, Mr Davies’ evidence confirmed that of the plaintiff and of his father.

26 The defendant did not lead any oral evidence.

Medical evidence
27 The defendant relied on a number of medical reports as to injuries sustained by the plaintiff before the subject motor accident. The plaintiff considered those injuries had since resolved and made no complaint of continuing symptoms. For example, as to the shoulder injury in August 2000, Dr Duckworth thought in his report of 25 January 2002 that a shoulder replacement might be required eventually but in the meantime he considered it was best treated symptomatically without surgery. Dr Gray commented on the December 2001 injury to the plaintiff’s right knee which, as said in his report of 14 May 2002, was “a soft tissue injury…no evidence of significant internal derangement and as such there is no indication for specific treatment other than a regular exercise program to maintain quadriceps power and tone.” He added that the injury to the right shin was again “a soft tissue injury…no indication for any specific treatment.”

28 Further reports by Dr Gray, Dr Chu and Dr Sun in late 2002 did not really progress the situation as to those earlier injuries. In any event, Dr John Cummine, an orthopaedic surgeon, examined the plaintiff for the defendant on 27 March 2007 and in his report of 2 April 2007 recorded her current symptoms and significant past medical history. He found that as a result of the motor accident the plaintiff sustained a mid-shaft fracture of the right leg, fracture of the left ankle and aggravation of a pre-existing pathology of the right knee. Dr Cummine added:

“The changes of chondromalacia affecting her right knee were present 3 years prior to the subject accident, but I would allow some aggravation of that condition as a result of the fractures of her right tibia and fibula and the requirement to have an intramedullary nail inserted and subsequently removed.

In regard to her left lower limb, she sustained a fracture of the head of the fibula and a fracture of the lateral malleolus. The head of the fibula proceeded to uneventful union and the fractured ankle limited in anatomical position following plating

…

Turning to the question of her right knee and possible injury to the right anterior cruciate ligament, at the time she was first seen by Dr Gray on 26.3.02 in regard to the right knee, he felt there was a slight increase in the Lachman’s sign, but a negative jerk when performing the pivot shift manoeuvre. He noted a full range of movement with crepitus in the patellofemoral joint on active flexion and extension at the knee.

He went on to arrange the first MRI of the knee which showed no evidence of cruciate ligament insufficiency.”

29 Notwithstanding the prior injuries, Dr Cummine noted that the plaintiff had continued at work doing 40 hours a week but it was only since the subject accident she had worked reduced hours, then 3 days a week for 3 hours a day which had since increased to 4 hours a day for 5 days a week. He considered as at April 2007 that she was fit to continue work at the then present level of 20 hours a week and could increase it to 6 hours per day for 5 days a week, that it, a total of 30 hours a week. As to domestic assistance, Dr Cummine considered that that was required for the heavier cleaning duties.

30 Dr Fox, as earlier mentioned, was the treating orthopaedic surgeon following the subject accident and performed the initial surgery to the right leg and left ankle; he noted also an injury to the left knee. He performed the arthroscopy to the right knee on 27 July 2005 and considered a similar procedure would eventually be required for the left knee because of increasing load to it due to the right knee injury. Dr Fox considered the optimum treatment for the plaintiff was physiotherapy.

31 At the beginning of 2006, Dr La Hood referred the plaintiff to Dr Gray, whom she had seen earlier regarding the right knee problem in April 2002. Dr Gray, clinically and radiologically, found the fractures of the legs had united and considered the plate and screws in the left ankle should be removed. However, that did not occur and Dr La Hood referred the plaintiff to another orthopaedic surgeon, Dr Papadimitriou.

32 In a report of 1 May 2006, Dr Papadimitriou recorded:

“Mrs Davies’ fractures have gone on to unite, but she has residual symptoms. She has right knee pain which is mainly lateral and associated with exercise. She can walk up to one kilometre, but then is limited by her pain. She gets swelling in her whole leg. She also gets pain at the fracture site of the right tibia. She gets symptoms in the left ankle with pain when walking, as well as discomfort when lying on her left side through pressure on the fibular plate. She also gets medial and lateral pain affecting her left knee.”

33 Dr Papadimitriou removed the plate and screws from the plaintiff’s left ankle on 23 May 2006. The nail and screws were removed from the right leg on 20 June 2006. He reviewed the plaintiff on 25 September 2006 and, although noting that she was making “good progress” following removal of the implants, Dr Papadimitriou recorded “some pain in both knees…right knee is more severely affected…left medial knee pain.” As improvement was seen, he did not consider further treatment necessary unless significant ongoing symptoms occurred. In a report of 24 September 2007, Dr Papadimitriou recorded in fact that the plaintiff had ongoing symptomatology in the knees and may require bilateral knee replacement in the future.

34 In a statement dated 15 March 2007 following an assessment of the plaintiff on 12 March 2007 by Dr David Johnson of the Medical Assessment Service (MAS) under Pt 3 of the Motor Accidents Compensation Act, the injuries to the plaintiff’s left ankle, right leg fracture with damage to the knee and left leg fracture with contusion to the knee were causally related to the subject motor accident. Dr Johnson stated a prognosis as “the right thigh, right knee, right leg, left knee and left ankle pains are chronic.” Of significance, Dr Johnson recorded that the plaintiff “gave a clear history (relevantly similar to that given by her in the present proceedings) which was consistent with the documents and there was no attempt to embellish her presentation.”

35 Dr La Hood referred the plaintiff to Dr Moorthy for psychiatric assessment. Dr Moorthy saw her on 10 July 2007 and in a report of 20 July 2007 he found she suffered from “major depression, and anxiety largely due to chronic PTSD” to such a degree as required ongoing psychological assistance, including anti-depressant therapy. In a later report of 10 June 2008, Dr Moorthy noted that the plaintiff had seen him on six occasions since the July 2007 consultation. After setting out the occurrence of the motor accident, response by the plaintiff, treatment required and consequent symptoms, Dr Moorthy stated conclusions to the following effect -

• The plaintiff suffered from a psychiatric disability, namely, depressive disorder with anxiety features; she did not suffer from post-traumatic stress disorder
• The non-physical problems were causally connected to her injuries from the motor accident.
• The psychological problems were likely to continue into the future; such problems probably involved continuing anxiety with regard to ability to travel alone, cross the road and lead an independent existence; and her depression as a reaction to the altered psychological state was likely to continue.
• Treatment, particularly with a clinical psychologist, was required to deal with the anxiety and specific phobic symptoms. If her condition deteriorates, psychiatric evaluation and assistance from medications would be called for.
• A return to her pre-injury occupation as a project officer with some support in the workplace and with travel was appropriate.

36 It is informative that the plaintiff was examined for a MAS assessment by a psychiatrist, Dr Thomas Newlyn, on 18 February 2008. In a statement given on 6 March 2008, Dr Newlyn found that the plaintiff from the motor accident had developed a situational type of specific phobia and a major depressive disorder. He considered that that psychiatric condition had stabilised but there was unlikely to be a substantive change in symptoms even with treatment due to the length of time they had been present. In terms of permanent impairment, Dr Newlyn found mild impairment in self-care and personal hygiene in missing meals; moderate impairment in social and recreational activities by rarely attending social events and requiring a support person; moderate impairment in being unable to travel without a support person; and mild impairment in work performance by the depressed mood and impaired concentration.

37 Dr La Hood had been the plaintiff’s treating family doctor for the past 12 years. He provided two reports on her condition following the subject accident on 2 August 2007 and 14 May 2008. In the latter report, Dr La Hood identified two major problems for the plaintiff: first, ongoing daily leg pain which was chronic with stiffness and reduced mobility so as to restrict walking, home duties, exercise and general activities; and, second, mental health illness – those problems directly related to the subject accident. In the result, Dr La Hood considered the plaintiff required about 15 hours per week of domestic help because of the physical and mental problems; he saw a period of six months before a reassessment may lead to a reduction in the amount of such care.

38 In the first report, Dr La Hood attended to answering a number of questions posed by the plaintiff’s solicitors about future treatment, therapy, radiological investigations, recreational activities, home cleaning and travel. In summary, he stated -

• There was a high chance the plaintiff will need an arthroscopy to the left knee due to cartilage wear and tear.
• Future general practitioner management of the physical injuries and anxiety condition will require ongoing visits every one or two months at a cost of $30 per visit, that is, about $3.50 to $7.00 per week.
• A high likelihood for physiotherapy 10 times a year at a cost of $80.00 per visit, that is, $15.40 per week.
• Massage therapy would be of great benefit of 12 sessions a year at a cost of $60.00 each, that is, $13.85 per week.
• A probable requirement for future x-rays and MRI scans at a one-off cost of $800.
• Medication by way of analgesics and anti-inflammatories will be required (and good fitting shoes) at a cost of $800 per year, that is, $15.40 per week.
• To improve muscle tone and balance, gym membership and a personal trainer will be required.
• Gardening at sitting height without bending would be possible but ground work and heavier duties would not be possible.
• Independent travel has been greatly affected by the injury, from the viewpoint of both the physical and mental injuries, and is likely to continue for another 3 years at least.
• The heavier cleaning duties done before the accident could not now be done, such as vacuuming, moving furniture, work above shoulder height and lifting heavy objects; lighter duties like cooking, folding and cleaning surfaces could be done.

39 The defendant qualified Dr Chris Rikard-Bell, a psychiatrist, to give an opinion on the plaintiff’s mental state. He examined her on 13 June 2008 and provided a report the same day. After taking a background history, mental state examination and a personal history, with details of the motor accident and its consequences for the plaintiff, Dr Rikard-Bell diagnosed the plaintiff as having an adjustment disorder with depressed mood from the incident involving her manager at work in May 2008. He found also specific phobia from the motor accident which involved serious injuries to her legs and a major depression from the curtailment of lifestyle.

40 In summary, Dr Rikard-Bell relevantly said:

“I believe that the claimant’s current psychological problems, the adjustment disorder and the exacerbation of her depressed mood are a reflection of the difficulties with her manager. The death of her dog did lead to a period of grief and the need for commencing an anti-depressant. However, the major precipitant in her ceasing to be able to work was the conflict with her manager.

…

…the most recent cessation of work is not related to the original accident in 2005.

…

I believe that the claimant is capable of working 16 hours per week. However, I don’t believe that she could return to work under the current manager…She does have sustained impaired mood and sleep disturbance.

…

I don’t believe that there is a requirement for domestic assistance due to her psychological injury.”

41 As foreshadowed earlier, there does not appear to be very much difference between the parties on the medical evidence as to the plaintiff’s physical injuries and disabilities consequent upon the motor accident – she has on an ongoing basis pain in the knees which restricts her work, domestic and recreational activities. I accept that she has a capacity at present and into the foreseeable future to continue her present occupation for 20 hours per week- that represents a 50 per cent loss in capacity.

42 The real issue on the medical evidence was the causation of the plaintiff’s absence from work from 6 May 2008 to 5 July 2008, and arguably for some time thereafter, due to either the difficulty with her manager at work (the novus actus identified by the defendant’s counsel) or as a consequence of the injuries sustained in the motor accident causing physical disability and a resultant psychological condition. I have earlier accepted the plaintiff’s explanation for this as being her condition as a sequela to the motor accident and there was nothing in the medical evidence to dissuade me from that view. Indeed, the evidence of Dr Moorthy and of Dr Newlyn confirmed it. The difficulty I have with the evidence of Dr Rikard-Bell is that he attributed the cause of the absence and the plaintiff’s current behavioural problems to what occurred with the manager at Quantum Technology, in the context of the death of the guide dog, and not to the antecedent events. However, the work incident occurred in April/May 2008 but where the plaintiff had been under the care of Dr Moorthy since 10 July 2007 and had consulted him on six occasions up to June 2008; Dr Newlyn assessed the plaintiff for a psychological/psychiatric injury on 18 February 2008 – both Dr Moorthy and Dr Newlyn expressed views contrary to Dr Rikard-Bell. I prefer and will adopt those views over those of Dr Rikard-Bell.

43 Based on the evidence as outlined above, including certain aspects which were the subject of agreement between the parties, I make the following findings -

(1) The subject motor accident on 30 May 2005 involving the plaintiff was caused by the defendant’s negligence.

(2) There was no contributory negligence by the plaintiff.

(3) In the accident the plaintiff sustained severe injuries requiring a number of surgical procedures to her legs with consequent physical disability, principally to both knees.

(4) The plaintiff has developed as a result of the said injuries a psychological condition of a depressive disorder with anxiety features.

(5) As a result of the injuries, the plaintiff lost the independence previously enjoyed and has thereby required domestic care for activities she previously performed, together with assistance in leaving the house for work, recreational and social purposes; there is a continuing need for this care at an appropriate level.

(6) After the motor accident, the plaintiff was reasonably unable to work until September 2005 and thereafter she made a gradual return to work increasing her hours to 20 per week.

(7) The absence from work from 6 May 2008 to 5 July 2008 was causally related to the effects of the injuries from the motor accident and not to the problems with her manager at work.

(8) Into the future to normal retirement at age 65 years the plaintiff has lost 50 per cent of her earning capacity.

(9) The plaintiff’s agreed net weekly pre-accident earnings were $707.67 and $795.39 currently into the future.

(10) The agreed hourly rate for past domestic care was $22.00 and $23.00 for future care.

(11) The plaintiff has not surmounted the statutory threshold of 10 per cent permanent whole person impairment to obtain an award for non-economic loss.

(12) The plaintiff will reasonably incur future liability for medical and other expenses for therapy and related services in respect of general practitioner visits, specialist consultations, psychological counselling, physiotherapy, hydrotherapy, therapeutic massage treatment, radiological imaging, medication and taxi travel to and from work – the assessment for some items inevitably will have to be by a buffer, including provision for future surgery and rehabilitation services.

(13) I would not allow the claim for future expenses as to good fitting shoes, taxi travel outside work requirements, gymnasium membership, personal trainer/carer, cleaner or paid gardener – such expenses relate either to things obtained before the accident (the cleaner), ordinary incidents of life according to style (gymnasium, personal trainer/carer) or as gratuitous domestic care (son’s gardening duties).

(14) Superannuation relating to lost past and future earnings should be calculated at the statutory rate of 9 per cent on those earnings at the gross amounts.

(15) There is to be no Fox v Wood component.

Damages

44 In light of the findings made, I proceed to assess the quantum of damages due to the plaintiff.

45 Past out-of-pocket expenses: These were agreed in the sum of $83,779.44.

46 Future out-of-pocket expenses: The parties were very wide apart on this component of loss. On the one hand, the defendant submitted they should be allowed as a buffer of $20,000; the plaintiff, on the other hand, sought $303,899. The findings I have made on this element of damage relied largely on the reports of Dr La Hood, Dr Papadimitriou and Dr Moorthy, together with what the plaintiff herself said was her need and intention in the future.

47 The conclusions I reach on each item are -

(i) general practitioner - $5.00 per week for life
medical specialists - $5.00 per week for life
medication - $15.38 per week for life
physiotherapist - $15.40 per week for life
massage therapy - $13.85 per week for life

Total of $54.63 per week (5% multiplier of 860.3): $46,998.19

(ii) radiological imaging: $800.00

(iii) taxi travel to work - $60.00 per week to age 65 years: (5% multiplier of 515.6): $30,936.

(iv) psychological counselling - $200 per hour for 72 fortnightly consultations: $14,400

(v) arthroscopy, total knee replacements and rehabilitation services (buffer of $30,000 deferred for 10 years, multiplier of 0.614): $18,420.

48 The total for future out-of-pocket expenses is $111,554.19.

49 Past economic loss: The loss for this element was agreed for the period up to 5 May 2008 when the plaintiff ceased work as totally unfit in the amount of $58,818 (allowing a deduction for the first five days of economic loss pursuant to s 124 of the Motor Accidents Compensation Act). It was agreed that the plaintiff’s net weekly wages at that time were $795.39. Thus, the issue to be resolved is the amount of loss for the period from 6 May 2008 to the date of judgment. I have earlier found that this absence from 6 May 2008 was causally related to the motor accident and on the basis of the plaintiff’s total unfitness for work so that an amount of $7,158.51 should be added to the amount of $58,818 to give a past loss of earning capacity of $65,976.51.

50 Future economic loss: The plaintiff claimed future loss based on a 75 per cent loss of earning capacity and, in the alternative, a 50 per cent loss; the loss was claimed for a working life to age 70 years or, in the alternative, 65 years. The defendant put that the normal retirement age of 65 years should be accepted based on a net weekly loss of $300.

51 I have found a 50 per cent loss in earning capacity, that is, $397.70 per week to age 65 years. Therefore, the loss for this component is $174,296 (5% multiplier of 515.6 less 15% for vicissitudes).

52 Superannuation loss: It is appropriate to allow on both past and future economic loss an amount to compensate for lost superannuation benefits of 9 per cent of the gross wages lost (calculated at 11% of the net loss). For the past, the resultant loss is $7,257.42 and, for the future, it is $19,172.56 – the total for this component is $26,429.98.

53 Past domestic care: The defendant submitted it was appropriate to assess this past element of care to the plaintiff as a buffer in the amount of $15,000. For the plaintiff, the schedule of care prepared by her was relied upon to support 18.2 hours of gratuitous domestic care or, alternatively, at least 6 hours per week. It was agreed that the hourly rate to be allowed for such services should be $22.00 for the period of 162 weeks since the motor accident to date.

54 I have earlier analysed the schedule of care prepared by the plaintiff for the period from June 2005 to April 2008. It showed average weekly care in that period was 18 hours; the average for the final six months was 13.5 hours per week; and 10.3 hours per week average during the final two months. The evidence given by the plaintiff in this regard was not diminished in cross-examination and was, indeed, supported by the evidence of her husband and son. Having in mind her condition after the motor accident, I accept that the schedule is a reasonable guide in assessing this component of loss but allowing for some degree of overstatement. Counsel for the plaintiff submitted it was appropriate to award a figure in the middle of the range as being fair compensation. Accordingly, for past domestic care I will allow 14 hours per week at $22.00 per hour for the period of 162 weeks. The resultant amount is $49,896.

55 Future domestic care: A buffer of $50,000 was suggested by the defendant to compensate for domestic care in the future. Again, the plaintiff relied on the schedule extended into the future to claim 15 hours per week of home care for the plaintiff’s life expectancy of 33 years. Dr La Hood in his report of 14 May 2008 considered as appropriate 15 hours per week of care until the plaintiff’s situation improved which may take six months before a reassessment and reduction in the hours could be made.

56 Given the figures in the schedule, particularly the reduced average weekly hours during the final six months and then the final two months of respectively 13.5 and 10.3, I think it reasonable for the future to allow 7 hours per week for the plaintiff’s life expectancy at the agreed hourly rate of $23.00. It is to be noted that the statutory thresholds under s 128(3) of the Motor Accidents Compensation Act have been met: see Roads and Traffic Authority v McGregor [2005] NSWCA 388; (2005) 44 MVR 261 as overruled in Harrison v Melhem [2008] NSWCA 67.

57 The amount for this component therefore calculates to $110,806.64 (7 hours at $23.00 per hour with 5% multiplier of 860.3 less 20% to recognise the likely improvement in 10 years' time in the plaintiff’s condition from surgery).

58 Summary of damages: The damages to be allowed the plaintiff comprises the following elements – past out-of –pocket expenses of $83,779.44; future out-of-pocket expenses of $111,554.19; past economic loss of $65,976.51; future economic loss of $174,296.00; loss of superannuation benefits of $26,429.98; past domestic care of $49,896.00; and future domestic care of $110,806.64. The total amount is $622,738.76.

Conclusion and orders

59 The plaintiff is entitled to a verdict against the defendant in the amount of $622,738.76.

60 I will hear the parties on costs before final orders are made.

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