Daws, Natalie v TAC
[2009] VCC 686
•16 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-03335
| NATALIE DAWS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15, 16 June 2009 |
| DATE OF JUDGMENT (with oral | 16 June 2009 |
| reasons): | |
| CASE MAY BE CITED AS: | Daws, Natalie v TAC |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 686 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application – Transport Accident Act 1986 – s93 – Permanent serious impairment or loss of a body function– Injury to the ankle – Pain and suffering
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W.R. Middleton SC, with | Slater and Gordon |
| Mr D.C. Pulling | ||
| For the Defendant | Mr R.H. Stanley | Solicitor to the Transport Accident Commission |
| HER HONOUR: |
1 Ms Daws seeks leave to issue proceedings for the recovery of damages for injuries she sustained to the left foot and ankle in a transport accident on 1 November 2003 when she was struck by a car whilst standing outside a Melbourne nightclub. She says that she has suffered a serious injury as defined in s.93(17) of the Transport Accident Act 1986 by reason of a long-term impairment or loss of a body function, being the function of the left ankle and/or foot. The precise mechanism of injury has been variously described in the medical reports and relates to the function of the left Achilles tendon, but also to the subtalar joint of the ankle.
2 The defendant says that any long-term impairment of the foot and ankle does not meet the test in Humphries v Poljak[1] for a number of reasons. First, it suggested that the medical evidence from treating doctors is thin and there is no current evidence from a treating doctor. The consensus, it is accepted by the defendant, is that the plaintiff has suffered a soft tissue injury to the foot. However, the defendant says that the consequences for the plaintiff do not meet the threshold because she has had no physiotherapy or hydrotherapy since 2004, no prescription medication since December 2004, no ongoing medical treatment, she has a full range of movement in the ankle, she can walk on her heels and toes, all the radiological examinations are normal and in relation to employment she knew what she was getting into when she took on the various heavy jobs that she has done since the accident and she did not expressly say in some of her affidavit material that she left those employments because of problems with her foot. Similarly, in relation to her employment with Tradelink, it is suggested that much of the decision to leave that employment was based on her concerns about discovery of her difficulties with her dyslexia rather than the impact of her foot injury.
[1] [1992] 2 VR 1293 Finally, it said that she continues to cope with employment, or did until recently, and it was noted that in her last affidavit she said she was considering a forklift-on/forklift-off job and that she has managed to go overseas and these were relied upon as evidence that the plaintiff does not meet the threshold in this case.
4 Ms Daws is 26 years old and lives with her parents. She has a mild intellectual disability and suffers from dyslexia. She completed a modified VCE in 1998 but did not undertake the examinations or receive a TER. She received a disability support benefit for her dyslexia from late 1998. She did a chef course and worked as a chef in Sydney during the 2000 Olympics. She then studied at Holmesglen TAFE from 2001 to 2003, studying hospitality and bar operations, which she did not complete, and information technology which taught her basic computer skills. She completed a number of level 2 certificates in cookery and hospitality prior to her injury. She had part-time casual positions doing bar work and was due to commence a cleaning job in early November 2003.
5 After the accident, she was taken to the emergency department of the Royal Melbourne Hospital where her left ankle was x-rayed and found to be normal. As a precaution, a backslab cast was applied and she was discharged with anti-inflammatories. She saw her doctor, Dr Bongiorno, in November 2003 and early 2004 with persistent left ankle pain and was prescribed with anti-inflammatories. She had one or two sessions of physiotherapy. She attempted a few shifts of her cleaning job but could not continue due to her left ankle and foot problem. CT scan of the left ankle and foot on 17 June 2004 showed no bone abnormality.
6 Dr Bongiorno referred her to a rheumatologist, Dr Wendy Stevens, who arranged for an ultrasound which showed no abnormality and for MRI in November 2004 of her left ankle and foot. That MRI scan showed some "mild increase in signal in lateral malleolus consistent with previous trauma and contusion, ligaments and tendons and Achilles tendon appeared normal" but some mild capsule synovitis at ankle joint.
7 Dr Stevens reported on 26 July 2007 that when she examined Ms Daws on 7 October 2004 she had a rather stiff ankle and Dr Stevens felt there was some swelling around the Achilles tendon, which appeared rather tight. As a result of the investigations, she concluded that she may have suffered some minor trauma to the ankle joint and some mild inflammation, but she could not find any other cause of the persistent stiffness and pain. She felt the best treatment would be with an active physiotherapy program to ease the ankle joint stiffness.
8 Mr Peter Moran, orthopaedic surgeon, examined the plaintiff on 4 October 2006 and reported on 6 March 2007 that she was open and frank about her condition with no evidence of exaggeration or abnormal illness behaviour. He found no swelling in the ankle, but found the subtalar joint irritable when stressed, with tenderness over the distal Achilles tendon where he noted slight tenderness and oedema present. She had a full range of ankle and subtalar movement. She could stand on tip toes but had less confidence on the left side than the right.
9 He felt that as a consequence of a direct blow to the left hindfoot she suffered an injury to the Achilles tendon and to the subtalar joint, which explained her intolerance of impact activities. He felt that irritability of the subtalar joint suggested that she may have suffered damage to the articular surface of the joint. He felt that further gains could be made by image-guided steroid injection and also recommended orthotics. He felt the physical limitations she described were consistent with the mechanism of injury and her current clinical condition.
10 On 14 May 2009, he noted that after resting she walked without a limp, but limped a little after the examination. He felt there was no embellishment. He noted that her typical pain was reproduced by stressing the subtalar joint, although he noted that tenderness in the Achilles tendon had subsided. He noted the history that the inner part of the heel and midfoot had been run over by the front wheel of the vehicle in the accident and he felt that this added an extra dimension to the type of injury she sustained.
11 He felt the persistent pain was due to a primary injury to the articular surface of the posterior subtalar joint. He felt there was a slight chance her symptoms would deteriorate over time with post-traumatic degenerative change in the subtalar joint. He noted that she gave up her employment as a truck driver in September 2008 because it significantly exacerbated the pain in the left hindfoot and mid foot. He noted her limitations: that she suffers pain on sustained standing, exacerbated by cold weather; that she can stand and walk for only 30 minutes at most; that the foot swells if she is on her feet all day; and that she cannot run or tolerate any form of impact activity with her left foot.
12 He felt the dominant source of her pain was the subtalar joint, where she has persistent focal tenderness along the joint line and her typical pain is reproduced by varus valgus stressing of this joint. He did not feel that any specific intervention was required, other than prescription of appropriate orthotics which he felt were essential to support the midfoot and to give impact absorption to the hindfoot. He presumed that the persistence of pain results from a primary injury to the articular surface of the posterior subtalar joint. He felt that her current functional impairment was likely to persist indefinitely and there was a slight chance that symptoms may degenerate with the onset of precocious post-traumatic degenerative change in the subtalar joint.
13 Tim Walsh, occupational therapist, provided a report dated 26 September 2008 in which he noted Ms Daws functional limitations and concluded that she lacked the physical capacity for prolonged standing, lifting and ankle mobility required for jobs as a cook, commercial cleaner, delivery driver, heavy truck driver, all of which had been her pre-injury duties.
14 He noted that the heavier duties had aggravated her heel pain, but that the plaintiff had persisted in carrying out those duties because she wanted to remain employed. He noted the difficulties she experienced in her work experience with using computers, completing her driver's logbook, taking telephone inquiries and relaying verbal information. Her limited reading comprehension, age equivalent approximately nine years, would preclude her from clerical duties, he concluded; while her poor maths skills, age equivalent 11 years, would limit cash handling; her limited listening comprehension, age equivalent of six years, and limited writing skills, age equivalent of eight years, limited memory skills and poor ability to plan required one-to-one supervision and feedback.
15 He felt she lacked the ability for sedentary forms of employment, including work as a receptionist, customer service officer or in sales. He noted that the significant impact of the injury on her is that people with mild intellectual disability are dependent on being fit and active for manual or semi-skilled duties and that now, deprived due to the injury from returning to her pre-injury duties, she lacked the skills for sedentary employment. He also noted the impact of the injury on her social and sporting life. He felt that her current employment was aggravating her condition and was not suitable for her long-term. He felt that she required specialised and extensive vocational rehabilitation.
16 I note the report from Ms Janine Farrelly, who assessed Ms Daws in December 1996 when she was 16 and reported her test results and that those results put her within the range of mild intellectual disability.
17 Mr Robert Marshall, surgeon, reported to the TAC on 24 August 2004 that when he examined the plaintiff, he found localised and severe tenderness over the Achilles tendon. He felt she had a genuine injury, but that the problem should subside over some months. In September 2004, he felt that she was fit to work, apart from this injury, but would find it difficult to walk up stairs constantly.
18 Mr Steven Doig, orthopaedic surgeon, reported to the TAC on 17 December 2007 that on examination the plaintiff was tender with resisted inversion specifically along the line of the tibialis posterior with some left calf wasting and some slight irritability within the subtalar joint. He diagnosed soft tissue injury to tibialis posterior tendon and possibly secondary subtalar joint mild degenerative change which he said were consistent with the accident. He felt the prognosis was guarded and suggested a local steroid injection. I note in this regard the plaintiff's evidence that she has a fear of injections and therefore did not have that injection as recommended.
19 Mr Michael Fogarty, orthopaedic surgeon, reported to the TAC on 9 April 2009 that on examination he felt a small lump at the musculotendinous junction in the lower left calf which was tender and suggested a previous partial tear in this region. He diagnosed soft tissue injuries to the left Achilles tendon with probable mild partial rupture at the musculoligamentous junction and soft tissue injury over the medical ligament of the ankle and contusion over the medial side of the left subtalar joint. He felt her prognosis was fair. He said he would have expected less pain after five years but found that the injuries that she sustained interfered with her capacity to work due to the pain that she experienced on standing or walking for considerable periods and that they also interfered with her ability to play sport and wear heels.
20 Ms Daws post-injury employment history can be briefly summarised. She completed a Certificate II in information technology in 2004. She had a part-time casual position for three months in late 2005, dog walking, but did few shifts. From October 2005 to November 2007 she was employed by Repco as a courier driver. From November 2007 to early 2008 she was employed by Tradelink as a courier driver. She obtained a heavy truck licence in around February 2008 and from then until December 2008 worked as a truck driver for Natures Plant Logistics. Since May 2009 she has been on unemployment benefits.
21 In her affidavits, the plaintiff described the impact of the ankle and foot injury on her work, domestic and leisure activities. She has throbbing pain in the left ankle, heel and foot most days, more severe with certain activities, with shooting pains up the leg. Working in hospitality after her injury became difficult because prolonged standing caused her significant pain. When she worked at Repco and Tradelink, getting in and out of the ute and the use of a clutch aggravated her symptoms, as did carrying heavy items. She persisted in spite of the pain because she wanted to be employed. She moved to heavy truck driving because she thought sitting more would involve less manual work. However, in her job with Natures Plant Logistics she found she had to do extremely heavy work loading and unloading trucks, which aggravated her symptoms. By the end of the day she would lie on the couch with her leg up. She usually took about five Nurofen Plus a day for her symptoms. She lives at home and due to her ankle pain her mother would do most of the domestic chores.
22 She stopped work in November 2008 because she could no longer cope with the pain and she also developed depression because of the difficulties that she experienced, not just in relation to the physical side of her work but also because of the concerns that she had about her severe dyslexia being revealed and impacting on her ability to continue in the workplace.
23 The plaintiff said at paragraph 13 of her second affidavit:
"I finished the job at NPL around November 2008. I was struggling with the pain in my ankle and foot. The job involved too much manual work and I could no longer cope. I also developed depression around this time. I began to worry that people in work were guessing that I had some problems with reading. There were several occasions where I read the labels on trolleys incorrectly and people noticed. I was also struggling with filling in my logbook. I had to buy a GPS system because I had difficulty reading road signs when out on the road. I have struggled with trying to hide my intellectual limitations all my life and now I also have physical limitations which further restrict my life. I believe that trying to cope got too much for me and I descended into a depression."
24 According to Ms Daws, school sport was the focus of all the positive experiences she had at school, given her academic difficulties. She excelled in athletics. After she completed school, she would run regularly, rollerblade and play competitive indoor soccer. She can no longer play these sports as a result of her physical injury. She tried AFL football, but jumping on the left foot was very painful and she stopped after three games.
25 Sport, both at school and after school, was a significant centre of her social activities and the loss of the capacity to join in those activities has caused her much grief. This was clear when she gave her evidence about these matters. As she put it so simply in re-examination when asked, "What did sport mean to you as a person?" she answered, "Everything. Because academically I'm not good and sports was everything. That made me feel like I could offer something."
26 The injury has affected her social life in that she cannot stand for long periods and so avoids going out late to clubs or bars. She avoids dancing because it affects her foot. These matters have badly affected her enjoyment of life and she has been depressed about these consequences of her physical injury. She suffers pain for which she takes five Nurofen Plus daily and the pain can be exacerbated with any activity involving impact on the foot.
27 The impact on her working life has been substantial. Prior to her injury, she was limited in her employment options by her severe dyslexia. As with many people with a mild intellectual disability, she gravitated to fairly physical jobs which did not involve much writing, reading or other intellectual skills. As a result of her physical injury, despite her readiness to undertake heavy work, Mr Walsh's report has made it clear that she is not really physically capable of undertaking this kind of work on a permanent basis.
28 While the plaintiff continues to suggest that she could work doing truck driving, fork-on/fork-off, there is in my view, having regard to the evidence of Mr Walsh, an air of unreality about this prospect for her. Much of this driving includes clutch work and getting in and out of a truck frequently, which were two activities which since her injury have caused her difficulty and resulted, along with the heavy lifting involved, in her leaving her previous truck-driving jobs.
29 I note the evidence of the plaintiff's friend, Stacey Freedman, who confirmed that Natalie cannot join in outdoor activities such as ice-skating or rock-climbing or snowboarding or football and claimed how sporty she used to be. Ms Freedman notes that when she goes out with Natalie shopping, frequent rest breaks are needed and Natalie limps slightly when she is in pain. She takes longer to do things in the cold. When going out socially, they choose somewhere where she can sit down, but she said that Natalie avoids dancing and clubbing.
30 I note the evidence of the plaintiff's mother, that Natalie struggled a great deal at school with her academic work because of her severe dyslexia. The one area which gave her support, confidence and self-esteem and where she could excel was sport. Her mother noted that she was in the top teams at school in a variety of sports and that when she left school she continued to play sport, was very social and enjoyed dancing and going to nightclubs. Since the accident, her daughter had become very inactive, giving up her sporting interests. Her foot and ankle injury made it difficult for her to sustain very physical jobs in the transport industry and her mother noted she would come home from work in pain and have to put her foot up. She said that her daughter does not go out very much any more, watches a lot of TV and has lost her ability to play sport, which was a thing she enjoyed most and which gave her a lot of confidence.
31 The plaintiff must establish that she suffered her injuries as a result of the transport accident and that the injury suffered constituted as at the date of the hearing a serious injury within the meaning of the act. In determining whether an injury constitutes a serious injury within the meaning of s.93(17) of the act, the court is to assess the consequences of the injury to the plaintiff. In doing so, regard may be had to pain and suffering and pecuniary disadvantage alike. Assessment of the consequences for the plaintiff requires comparison of her position before and after the transport accident. The plaintiff's assessment that her impairment or disorder is serious is not determinative.
32 I refer there to the case of Ingram v Ingram[2]:
"In respect of an impairment or loss of body function falling within paragraph (a) of the definition of serious injury in s.93(17) of the act, the injury will be 'serious' if as at the date of the hearing the impairment resulting from the injury when judged by comparison with other cases in the range of possible impairments or loss of a body function can be fairly described as being at least very considerable and certainly more than significant or marked."
[2] [1996] 2 VR 435 at 438
33 The inquiry to be made under paragraph (a) of the definition of serious injury concerns whether any injury suffered has produced an organic impairment of a body function.
"A stoic plaintiff who has been prepared to put up with her pain and suffering and get on with business as best she can should not be treated less favourably than another who, being of less strength of character, simply resigns himself to his injury."
34 I refer [above] to the decision of Nettle J in Dwyer v Calco v Timbers (No. 2)[3].
"The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of very serious consequence."
[3] [2008] VSCA 260 4 [2007] VSCA 267 5 [1998] VSCA 93
35 That authority is Kelso v Tatiara Meat Co Pty Ltd4. Similarly:
"The mere compromise of one's vocation may raise a real prospect of very
serious consequence flowing from injury."
36 The case cited for that [above] is State of Victoria v Glover5. Finally:
"An impediment to earning one's former income or any income that is caused by an organic impairment will also necessarily constitute a serious injury consequence."
37 For that I refer to the decision of Cropp at 360.
38 I note that there was medical consensus largely around the nature of the injury suffered and its consequences in terms of the interference of the plaintiff's capacity to work and with her domestic and leisure activities. Even Mr Fogarty, who would have expected the plaintiff to have had less pain after five years, accepted her genuineness and the impact that the injury has had on her standing and walking, her ability to play sport, wear heels and the interference with her capacity to work.
39 I found Ms Daws to be a most impressive witness. I accept her evidence as to the impact on her of the physical injury to her left foot and ankle without reservation. The medical consensus is that she has suffered an organic injury to the left ankle and foot and that she will be likely to suffer from continued symptoms for the foreseeable future. She will need to wear orthotics to support her midfoot and hindfoot. She has struggled to maintain employment in a very physical occupation since leaving school in order to get around the problems arising from her severe dyslexia. Prior to the injury, she was fit, played sport, socialised extensively with her friends, was able to engage in a full range of social and recreational activities and was limited by her severe dyslexia to mainly physical employment options.
40 The organic injury she has suffered has had an enormous impact on her day-to-day enjoyment of life and on her employment prospects. She suffers pain every day, takes a number of Nurofen Plus daily, can no longer play any of the sports she loves, can no longer socialise with her friends at clubs, dance and do outdoor activities like camping, no longer socialise through playing indoor soccer.
41 The pain in her ankle has been aggravated by heavy lifting, use of clutch and frequent getting in and out of trucks that has been required in the various heavy positions she undertook until recently. Her determination to keep doing these jobs after her injuries is admirable, but it is clear that the physical injury has made it very difficult for her to sustain such employment over long periods. I note the opinion of Mr Walsh that these occupations are not sustainable for her in the light of her physical injury. I note also that even working in this way she has suffered considerable pain and has had to lie down at night with her left leg up to recover. The efforts of maintaining such employment in these circumstances has proved very difficult for her, leaving aside the challenges which have arisen due to her dyslexia.
42 I have dealt with the pain and suffering consequences. In terms of pecuniary disadvantage, I note that whereas prior to her physical injury she had limited employment options because of her dyslexia and all her efforts were geared towards physical activities and occupations, as a result of her physical injury, heavy work options are no longer suitable for her or sustainable in the longer term. In spite of the extraordinary courage and level of motivation shown by her which has allowed her for some period to sustain employment in very heavy jobs since her injury, there has been a toll in terms of the pain suffered and the difficulty that she has had coping with those jobs and the physical injury and the symptoms caused by it have contributed to her no longer pursuing those options.
43 I note the defendant relied on the intention expressed by the plaintiff in her affidavit to undertake employment in the future using her truck licence working in a forklift-on/forklift-off capacity, but I think this needs to be viewed in the context of Mr Walsh's conclusions that she will find this work difficult to sustain given the physical limitations arising from the ankle injury and notwithstanding her optimism and her desire to remain employed.
44 In all the circumstances, I am satisfied that the consequences for the plaintiff in terms of pain and suffering and pecuniary disadvantage of her injury are at least very considerable and certainly more than significant or marked when judged by comparison with other cases in the range of loss of impairment or loss of a body function and for that reason I grant leave to the plaintiff to issue proceedings for the recovery of damages.
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45 MR PULLING: Your Honour, I seek an order in respect of costs of the application. I seek an order that the defendant pay the plaintiff's costs to be taxed on scale D of the County Court scale with certificates for court books and I'd seek the usual orders there.
46 HER HONOUR: It's all right, we know what the usual orders are.
47 MR PULLING: I think you'll know them better than I will.
48 HER HONOUR: Certify for the preparation, filing and service of the plaintiff's court book, one copy on scale and any further necessary copies at commercial copying rates to be determined by the taxing registrar. I can give you copies of the orders before you leave. What about two counsel?
49 MR PULLING: Yes, I seek an order for two counsel as well. Senior counsel's brief fee fixed at $5500 with two hours of special conferences at 10 per cent of brief fee per hour, so that would be $550 per hour just to be simple about it, and junior counsel at 50 per cent of counsel's brief and conferences.
50 HER HONOUR: So that is two hours of conferences at $275 per hour.
51 MR PULLING: That's correct.
52 MR STANLEY: Your Honour, the defendant takes objection to the portion of the costs order in relation to counsel's fees. The defendant's submission is that certification should only be given under the scale and that be only one counsel at scale. If that position is not accepted by the court, it is then submitted by the defendant that if there is to be two counsel certified, that senior counsel be certified at his fee of $5500 and junior counsel at scale.
53 HER HONOUR: Any reason advanced for why I should certify for only one counsel?
54 MR STANLEY: The certification should only be made for in addition to the appropriate party to party scale in my submission in cases which the degree of difficulty is such that the court recognises that the party-party scale is completely inappropriate. It is always for a plaintiff to choose the manner in which the plaintiff brings their action. In this case, the plaintiff chose to bring it with senior counsel and competent junior counsel. In my submission though, that choice is a solicitor to client choice, not referable to any necessary needs on a party-party basis.
55 I would submit that on the basis that this case was of a nature which was in the more straightforward approaches of serious injury applications before this court, whilst I accept that not any serious injury application is straightforward, this one in my submission was very close to that description. It was a discrete question of a threshold. The medical practitioners involved were thin. It was simply a soft tissue injury they were reporting on. There was no difficulty with the diagnosis. There were only two treating practitioners of age, four medical legal practitioners. It is a thin court book, by estimation with other cases, not that that should be the sole measure.
56 HER HONOUR: No, if that were the sole measure you might want to construct an incentive scale.
57 MR STANLEY: That's right. In my submission this case was a simple case. The court should also take heed that the defendant adopted an approach where junior counsel was the only counsel necessary. In the course of running the trial, there were no questions of credit and again it was simply run as it was expected to be run as a bar case. I take it no further, Your Honour.
58 MR PULLING: Just very briefly, Your Honour. The situation is that the time when briefs are delivered is the relevant time to consider whether it's appropriate to have two counsel. Invariably, the defendant fronts up to these cases with two counsel. It is a matter of great significance to the plaintiff to succeed in this application. There is no second chance. Were she to fail in her application, her common law rights are extinguished.
59 In terms of the workload involved in this case, the defendant in the application had requested for cross-examination not only the plaintiff, but also Dr Stevens, Dr Bongiorno and also Mr Moran, so the three medical practitioners from whom there was material before the court, and decided on the morning of the hearing only to require the cross-examination of the plaintiff.
60 This was a matter where the plaintiff's practitioner does not know at the time when briefs are delivered what the issues are going to be. This is a case where through I think a program introduced by Your Honour in terms of s.93 conference, this had been through that process. The plaintiff had attended a meeting, had presented herself and had given, not evidence, but a version, been effectively cross-examined by solicitors on behalf of the defendant and proceeded from that point forward.
61 It is all very well for my learned friend, having heard Your Honour's judgment, to say it's simple. They are never simple, although this was a matter, particularly given some of the subtleties involved - some of the matters that my friend pursued in his address in terms of the effect of the intellectual problems that the plaintiff suffered, the effect of those and how she was going to go in giving her evidence because of those limitations, certainly required the skill and experience of a senior counsel and in this particular matter two counsel were retained because at that time there was a number of witnesses. Apart from simply the plaintiff, there were medical witnesses of whom I was going to take through their evidence. They are the only matters, Your Honour.
62 HER HONOUR: Thank you. Having regard to what I've heard, the disagreement in relation to costs relates really to the certification for two counsel, the defendant arguing that this was a simple case from the outset and only needed one counsel. I think, on balance, having regard to the delicacy of the issue of dealing with a plaintiff with an impairment, a prudent solicitor would recognise this to be a case that required some significant experience not only in dealing with a plaintiff with such difficulties, but also potentially teasing out the implications of those difficulties when balanced against the injury alleged to be suffered in the accident. In all the circumstances having regard to those considerations I think it is appropriate to certify for two counsel.
63 I note the submission that junior counsel's fee on brief should be at scale, but I think in the circumstances of this case again, having regard to the anticipation by the plaintiff that there would be a number of medical witnesses required for cross-examination by the defendant, it was appropriate for senior junior counsel to be briefed and in those circumstances I propose to make the orders sought by the plaintiff, with the defendant to pay the plaintiff's costs on scale ‘D’ to be taxed in default of agreement. I certify for two counsel. Senior counsel's fee on brief at $5500, with two hours of special conferences at $550 per hour; junior counsel's fee on brief at $2750 with two hours of special conferences at $275 per hour.
64 MR PULLING: Sorry, Your Honour, we should seek an order for any reserved costs.
65 HER HONOUR: Yes. The defendant pay the plaintiff's costs, including any reserved costs. Certify for the preparation, filing and service of the plaintiff's court book, one copy on scale and any further necessary copies at commercial copying rates to be determined by the taxing registrar.
66 Should I add a first order granting leave to the plaintiff to bring proceedings for recovery of damages pursuant to s.93 of the Transport Accident Act?
67 MR PULLING: Yes, you should.
68 HER HONOUR: Do I need to be any more specific in relation to the date of the injury?
69 MR PULLING: No.
70 HER HONOUR: We'll give you a copy of these orders. For the sake of completeness, I just note that the joint court books have been marked both Exhibit A and Exhibit 1, so both materials are in there but the index has been marked according to the documents that you rely on. Are the orders all right?
71 MR PULLING: Yes, thank you, Your Honour.
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