De Blank v Stemberger - [1999] WADC 118

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DE BLANK -v- STEMBERGER [1999] WADC 118

CORAM: GROVES DCJ

HEARD: 27-28 OCTOBER 1999

DELIVERED : 12 NOVEMBER 1999

FILE NO/S: CIV 3839 of 1998

BETWEEN: CATHARINA DE BLANK
Plaintiff
AND
NATALIE ANA STEMBERGER
Defendant

Catchwords:

Damages - Assessment - Personal injuries from motor vehicle accident - Knee and shoulder injuries - Natural degenerative changes in knee - Retained working capacity - Future economic loss - Turns on own facts.

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 ss3C(2) and (3).

Motor Accidents Act 1988 (NSW) ss79(2) and (3).

Result:

Judgment for the plaintiff for $34,925.00.

Representation:

Counsel:

Plaintiff: Mr J R Criddle
Defendant: Mr K N Allan

Solicitors:

Plaintiff: J R Criddle
Defendant: K N Allan

Case(s) referred to in judgment(s):

Andjelic v Marsland (1996) 70 ALJR 435
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Nil

GROVES DCJ: The plaintiff claims damages from the defendant for injuries sustained in a motor vehicle accident on 9 August 1995. Liability is admitted and the matter proceeded by way of an assessment of damages.

The motor vehicle accident

On 9 August 1995 the plaintiff was driving her motor vehicle, a Mazda 121 Sedan, along Hay Street, Subiaco, towards the intersection of that street with Townshend Road. On entering the intersection she saw the defendant's motor vehicle which had proceeded through a red traffic light. An accident was inevitable and the plaintiff braced herself for the impact. The front of her vehicle collided into the side of the defendant's vehicle. She was severely jolted as her body was thrust forward and then back. Both her knees hit the dashboard.
The accident was at approximately 6.00pm. She was able to go out that evening to dinner however by the end of the evening she felt stiffness in her upper body and soreness in her knees. The next day she consulted her general practitioner, Dr D Konigsberg, who prescribed pain killing medication and advised rest. By late August she still had soreness in her left shoulder and in both knees and consulted Dr Konigsberg again. Due to the persistence of her symptoms Dr Konigsberg referred her for an orthopaedic review with Dr H D Goonatillake who arranged for her to undergo an MRI scan. Subsequently she was referred for further orthopaedic review with Dr Cameron Thrum who performed an arthroscopic examination of the plaintiff's left knee in surgery on 27 May 1998.

The plaintiff's history

The plaintiff was born in Holland on 18 March 1950. At the date of her accident she was 45 years.
In 1951 the plaintiff's family migrated to Australia. The plaintiff was educated at Hillcrest Primary School and at John Forrest High School where she completed her third year. She was not academically inclined. She worked for a couple of years before travelling overseas in 1969. She worked in Holland for a year before returning to Perth where she worked initially with Auto World, travelling and selling auto accessories before going to Exmouth working for one season with M G Kailis. In 1974 she returned to Perth and worked with Tolcon Bakery as a delivery driver. During 1975 her mother was ill and she nursed her until she passed away. At the end of 1975 the plaintiff returned to Holland and for a time was employed on a tourist boat on the Rhine River. In 1976 she was employed by the Marriott Hotel in Amsterdam where she remained in continuous employment through until June 1995. She started out as a waitress. In the late 1980's she moved up into housekeeping management and in the 1990's was Director of Housekeeping. The Marriott Hotel was a large hotel of some 600 rooms. As Director of Housekeeping she oversaw the management of 120 staff, was responsible for hiring and firing, the cleanliness of public areas and rooms and was responsible for managing the housekeeping budget. It was a senior and a most responsible position within the hotel. Approximately a quarter of her working day she was on her feet going about the hotel and ensuring that all the standards were maintained.
Her recreational activities included walking and cycling which she undertook on a regular basis.
In June 1995 she returned to Perth with her partner of 19 years and was reunited with her family. Her partner was a Dutch National who had to migrate to Australia and to facilitate that the plaintiff undertook to support her partner.
Having been reunited with her family she then sought to become re‑established in Perth and looked for a place to live and commenced to look for employment. She purchased a second hand Mazda 121 which was the vehicle she was driving when she was involved in the motor accident. The accident occurred on 9 August 1995, only a matter of weeks after her return to Australia, and before she had obtained employment.
In October 1995 she obtained employment at the Radisson Hotel at Scarborough in housekeeping. The job involved attending to room service, meals and mini bar, the making of staff schedules, holiday rosters and menu planning. In the course of her work she experienced pain in the left shoulder and in both knees. She coped by taking pain killers and by undertaking physiotherapy intermittently but with little relief. Her left knee was the more painful of her injuries. In February 1996 she was made redundant.
She registered with a job seeking centre and sent her resumes to Perth hotels. In September 1996 she was employed by Australian Housekeeping Systems to the position of Executive Housekeeper at the Orchard Hotel. The Orchard is a 300 room hotel where she supervised 30 staff and where her hours were 8.00am to 6.00pm, 5 days per weeks. In October 1997 she was named Manager of the Year by Australian Housekeeping Systems. Her work required her to spend about half the day on her feet. She was responsible for the presentation of the public areas and cleaning of hotel rooms, checking all rooms and managing the housekeeping budget. She was provided with a pager and was on call to attend as and where necessary. In 1997 her employer took on the role of managing the Melbourne Hotel and her position then became that of Executive Housekeeper of both the Orchard Hotel and the Melbourne Hotel. This necessitated her walking between both hotels which are in close proximity to each other at the western end of the central business district. Whereas previously she had experienced on average one pain attack in her left knee per week the additional walking caused the pain attacks to become more frequent.
In December 1997 her employer directed her to take over housekeeping at the Burswood Hotel. Although employed as an Executive Housekeeper she was supervised by a Burswood employed Manager. Australian Housekeeping Systems was responsible for 70 per cent of the rooms at the hotel and the plaintiff managed 60‑70 staff. In this new role nearly all of the plaintiff's time was on her feet in and about the hotel. Her Burswood Manager was not tolerant of her spending time in the office but required her to closely inspect the rooms for which her employer was responsible. Her left knee was as a consequence becoming more painful and she planned her breaks so that she could rest her leg and take pain killers. The job also required her to display a cheerful disposition which under the circumstances it was not easy for her to do. She sometimes found herself limping. By the end of the day when she got home she needed to sit down with her leg up for half an hour at least before showering and changing. In December 1997 the plaintiff underwent an MRI scan. On 27 May 1998 Dr Thrum performed an arthroscopic examination on her left knee in surgery.
In the following months her knee was much better and she was able to cope with her employment much better. Rather than the pain which she had previously experienced she now experienced only a dull ache through the day.
By November 1998 she was fed up with her work situation. Apart from the knee problem she was constantly under scrutiny by the Burswood Manager and she felt that she had not returned to Australia to endure the treatment which she was receiving. She left her employment of her own volition.
Coincidentally she immediately obtained employment as the Manager of the Cheesecake Shop at Victoria Park. It was her role to run the shop by ordering stock, doing the banking and counter work, etc. Her remuneration however was some $200 gross per week less than she had previously been earning.
The job at the Cheesecake Shop was a lot less strenuous than the hotel work and it was a lot less painful on her knee. She did not have to bend and kneel as much as previously. However in February 1999 she was dismissed by her employer. She was successful in proceedings which she took for unfair dismissal in the Industrial Relations Commission.
Following her termination she took a holiday overseas and returned to Perth in mid 1999 and commenced looking for employment. At the time of the hearing she remained unemployed.
She is presently in receipt of $326 gross per fortnight by way of Job Start Allowance. She has registered with job search agencies and with a head hunter and has sent resumes to prospective employers and has applied for advertised jobs. Her first preference for work would be in a hotel situation managing the housekeeping side. As a second preference she would consider work in the food and beverage area of a hotel. She does not consider that she has the ability to return to the type of work which she was required to undertake at the Burswood Hotel. That work, she thinks, would be too heavy for her to do. The pain in her left knee irritates and she did not consider that she would be able to get through a day's work. However a role as an Executive or Assistant Housekeeper would be within her capabilities. If not that then at the next level of supervisor although that would be more difficult.
At the time of the hearing she described that on an average day she could be mobile for 2‑3 hours before needing to rest her left knee. She would take a 15‑20 minute break before continuing on with her activities. Treatment comprised intermittent physiotherapy with little benefit. She has had ultrasound which relieves the pain in her knee and also red lamp heat treatment. Her medication if the pain becomes severe comprises Panadeine Forte or Panadol.
Her left shoulder injury settled within about a year after the accident. She had difficulty with arm raising during that period but now is back to normal.
Her right knee remained a problem for 6‑8 months after the accident but has settled and is now not a problem.
Her recreational activities still include cycling, however she does get pain in the knee and has to stop more frequently for rest periods. She rides less distance now than she did prior to the accident. In gardening she has discomfort on kneeling and has to take regular breaks. She walks her dog less frequently and for a lesser distance now.
It was her evidence that no day passes without in some way focusing on her left knee.
Her past earnings were detailed as follows:
Financial year  Net Income
1996  $17,826.00
1997  $23,953.00
1998  $28,443.00
1999  $23,600.00
It is apparent from her work history that the plaintiff has a very strong work ethic. She is highly regarded by her former employers. For example, she left the Marriott Hotel with high commendation and laudatory references. She was regarded highly by Australian Housekeeping Systems in her work with them in Perth. When she was managing the Cheesecake Shop she received commendation for having almost immediately raised the quality standards of the business.
She has extensive experience in managerial positions and would be eminently employable in a number of areas within the hospitality industry. She is hopeful of gaining employment in her preferred field and within the scope of her experience within the hospitality industry.

Medical evidence

John Kingston Ker is a consultant physician in rehabilitative medicine. The plaintiff consulted with Mr Ker on 16 November 1998 and he sent a report to her solicitors dated 20 November 1998. His report presents the plaintiff's history as she outlined it to him, his observations on clinical examination and his prognosis. Insofar as is relevant he stated:
"…[the plaintiff] is demonstrating evidence in the patella‑femoral joint, of cartilage disruption. This cartilage disruption appears to emanate from a previous motor vehicle accident on the 9 August 1995. I regard such cartilage disruption as the antecedent of a future post‑traumatic arthropathy of the left knee. Whilst [the plaintiff's] current symptoms may not prevent her from working clearly were her arthropathy to gradually advance over the years I believe this would constitute a significant intrusion into her life with a painful stiffness of the left knee eventually requiring possible further surgical procedure in its treatment. The presence of such an arthropathy of the left knee I believe would limit your client's ability to undertake full time work in her former employment in hospitality and hotel management."
In later correspondence, 22 April 1999 to the plaintiff's solicitor Mr Ker further stated:
"…I am unable to clearly prognosticate as to the rate of progress of any such post‑traumatic arthropathy. I believe that the development of such an arthropathy is likely to be a very 'real' occurrence in this case rather than 'theoretical'"
In his evidence Mr Ker outlined the alternative surgical procedures which might await the plaintiff. Those alternatives are:
(i)a simple arthroscopic procedure to perform a chondroplasty to clean up debris;
(ii)a resurfacing procedure of the patella where the articular cartridge is removed and a polyethylene or similar artificial joint covering is placed there;
(iii)as a last resort, a patellalectomy.
In terms of cost an arthroscopy procedure would involve no more than a day in hospital at $525 (a rate agreed by counsel) and a procedural fee of $2000‑$2500. The resurfacing procedure or a patellectomy would involve 5‑10 days in hospital at $525 per day and a procedural fee for resurfacing in the order of $3500 and for a patellalectomy of no more than $2500. It would be expected that physiotherapy after either the second or third procedures would follow. The requirements for these various forms of treatment would depend on the rate of degeneration of the knee and whether in fact there was in the midst of an arthritic process salvageable cartilage or not.
Mr Ker indicated that in his opinion there was a significant possibility that by 5 years hence the plaintiff will have increasing symptoms. It follows that this will intrude into her work and her capacity to undertake the sort of work in which she has experience. She may not be able to maintain her employer's expectations. Mr Ker was of opinion that there is a very real possibility that the plaintiff will have difficulty maintaining her current work performance 5 years from now and extremely surprised if she were able to maintain her work performance 10 years hence. Much may depend upon how long she is expected to be on her feet in the course of her work. As the knee gets worse it may be necessary that she reduce her working hours and that may progressively develop to the stage where she is not able to perform her work at all. It was Mr Ker's opinion that with the clinical evidence with which the plaintiff presents he could say that her problem will not go away.
Dr John Rosenthal was called by the defendant. He is a physician in rehabilitation medicine. He saw the plaintiff on the following four occasions 11 June 1996, 7 January and 19 September 1997 and 19 October 1999. His report of 19 October 1999 (exhibit 5E) describes the plaintiff's injury as a direct contusion to the patello‑femoral articulation causing articular disruption. He expressed the view that there is permanent disability based on the persistence of symptoms which impose restrictions on the plaintiff's lifestyle. He considered that the injury has a significant probability of causing accelerated patello‑femoral degenerative change. He considered that the plaintiff has a retained capacity to work as an Executive Housekeeper. This position which has supervisory and managerial aspects would allow her to use elevators and avoid periods of prolonged weight bearing. He considered that her injury and its sequelae do reasonably prevent her from working in a situation where she would have to squat on a repetitive basis, weight bear for long periods and to go up and down stairs on a repetitive basis.
In cross‑examination he acknowledged that the plaintiff will develop progressive degenerative change however the extent to which that becomes clinically intrusive was indeterminate. On the information available however whilst she would get accelerated degenerative change there was nothing to suggest that this is a rampant destructive process. Whilst the progression of the degenerative condition was difficult to assess he was emphatic however that the knee joint had to be looked at as a total functional unit. He pointed to pathological changes seen in the weight bearing compartment of the plaintiff's left knee joint which are not accident related. That part of the knee joint is going to be subjected to progressive stress and degenerative change as well and that will have a bearing on the total picture. He considered that there was a significant component of natural degenerative change in the weight bearing component of the joint. She also had clinical indications of degenerative change in her right knee joint where she does not currently complain of symptoms. Therefore the relevant injury picture is that she has a focal injury that will give her some anterior knee pain in addition to an accelerated degenerative change but that has to be considered as part of the total picture. He considered that that is compatible with her leading a productive lifestyle in a situation where she does not have to squat and go up and down stairs and that it will impinge on her capacity to enjoy sporting activities.
Dr Cameron Thrum was called by the defendant. He is an orthopaedic surgeon to whom the plaintiff was referred by her general practitioner. He saw the plaintiff on 19 February 1998 and again on 30 April 1998. On 28 May 1998 under anaesthetic he performed an arthroscopy and a chondroplasty on the left patello‑femoral joint. On review on 5 June 1998, he noted that the plaintiff was making good progress although her quadriceps were down. He explained to her the need to re‑build the quadriceps over a period of time. He reported to the plaintiff's solicitor by letter of 2 September 1998 (exhibit 6E) wherein he states:
"Whilst any problem associated with the patello‑femoral joint will be minimised by re‑building the quadriceps musculature, it must be acknowledged that such damage to the articular surface of the patella may be associated with increasing patello‑femoral pain and patello‑femoral pain is usually exacerbated by bending of the knee. In an occupation in which a person was required to do a lot of bending and kneeling, this I believe would be or could be, expected to increase symptoms of pain…
I would point out that this can be minimised by the extent of muscle build‑up and particularly quadriceps build‑up which will reduce the symptomatology in the patello‑femoral joint. Conversely failure to build up musculature will often result in increased symptomatology related to problems with the patello‑femoral joint.
In respect to acceleration of degenerate change, this is a highly variable area and whilst it is certainly true that damage to the articular surface will predispose to increased articular change and degenerate change, it is variable particularly in a patello‑femoral joint as to the extent of this change and to the length of time it will take to occur. There is no scientific way of determining this. Anecdotally despite the fact that the patello‑femoral joint is injured much more commonly than other parts of the knee with falls onto the knee, the amount of degenerate change in the patello‑femoral joint is much less than in other parts of the knee.
Depending on Ms De Blank's ability to adapt to her problems I can see no real reason why she should not, provided she modifies her work habits, continue in the work force in the future."

As to the future in respect to the plaintiff's left knee he acknowledged that there is the potential at all times for increasing arthritis in the patello‑femoral joint. However against that is the fact that although many people do develop increasing arthritis, to a much lesser extent it’s a clinical problem. He said that many people who have severe arthritis of the knee get no major symptomatology as a result of it but the potential is always there for pain on the knee being bent or going up and down stairs, kneeling, squatting or anything that keeps the knee bent and under load. Only time will tell as to what is likely to happen with the left knee in the plaintiff's case. However whilst there may be degeneration that does not necessarily mean that the plaintiff will experience increased symptoms. If she were to develop symptoms she may have difficulties with walking up and down stairs however it would not interfere with doing such things as sitting at her desk, walking in a straight line on a flat surface and supervision of others would be well within the plaintiff's capabilities.
In cross‑examination Mr Thrum agreed that if the degeneration increases over time there is a real rather than theoretical likelihood of an increase in symptoms. As to possible future treatment he agreed with the options outlined by Mr Ker and that the third option, patellalectomy was unlikely in the plaintiff's case. He considered that the concept of resurfacing was a little difficult because at the present time there is not the technology to resurface the patella alone. That is always associated with a total joint replacement. Whilst a total joint replacement is an option Mr Thrum would prefer to do patellalectomy prior to doing a total knee joint if the rest of the joint is normal. If a patellalectomy is unlikely then I conclude that so to is a total knee joint replacement. If symptoms got to the stage where they were reasonably significant Mr Thrum would try conservative treatment first with intensive physiotherapy, anti‑inflammatory medication, a brace and analgesia and if that did not help then arthroscopy and possible chondroplasty, perhaps lateral release, perhaps realignment of the patella would also be a possibility. Whether or not over the next 15 years the plaintiff would have difficulty fulfilling the tasks expected of her in employment in the hospitality industry would depend upon a number of factors including the degree of degeneration, the symptomatology, and to some extent, how much the plaintiff could improve the musculature of the knee. If however the symptomatology became sufficiently gross then the plaintiff may have difficulty fulfilling work tasks.

General damages

The plaintiff is entitled to general damages for the accident itself and for the consequent pain, inconvenience and other matters generally referred to as the loss of amenities.
The award of damages for loss of enjoyment of life and amenities generally requires a consideration of s3C of the Motor Vehicle (Third Party Insurance) Act 1943 ("the Act"). Section 3C(2) and (3) provide:
"(2)The amount of damages to be awarded for non‑pecuniary loss is to be a proportion determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded.
(3)The maximum amount of damages that may be awarded for non‑pecuniary loss is ($219,000), but the maximum amount may be awarded only in a most extreme case."
The Act also provides a threshold and if damages were assessed at less than the threshold then no damages are to be awarded for non‑pecuniary loss. The threshold at the date of trial was $10,500. If the damages awarded for non‑pecuniary loss is less than $33,000 then the threshold is deducted from the amount so assessed. If the damages are assessed at $43,500 or more then there is no deduction. Between $33,000 and $43,500 there is a sliding scale.
Similar legislation is in force in New South Wales by s79(2) and s79(3) of the Motor Accidents Act 1988 (NSW). The manner in which a court should proceed under the latter Act was considered by the New South Wales Court of Appeal in Southgate v Waterford (1990) 21 NSWLR 427. The effect of s79 of the New South Wales Act was also referred to by the High Court of Australia in Andjelic v Marsland (1996) 70 ALJR 435.
In Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 the Court adopted the same approach to the Act as the New South Wales Court of Appeal did to the Motor Accidents Act 1988 (NSW).
In Southgate v Waterford (supra) at 440 the Court said:
"There are a number of ways by which trial Judges should approach the task of apportionment required by s79(2) and s79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s79(2). But clearly because the task in hand is that of awarding damages for "non‑economic loss" it is appropriate for the trial Judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the Judge to consider and make findings on the evidence relative to those heads of damage formerly considered in the award of general damages. Then it is necessary for the Judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the Judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'."
Further at 441 the Court said:
"The only criterion for the apportionment prescribed is the comparison of the severity of the non‑economic loss, as disclosed by the evidence, suffered by the injured person in the case before the Judge and that suffered in 'a most extreme case'. The statutory maximum may only be awarded in the latter case. The Judge must then assign the case as found somewhere along the resulting scale."
And further:
"At least in the first instance, the determination of the 'proportion' is committed by law to the trial Judge. He or she has the outside parameters which are fixed by the legislation. The task of determining the 'proportion' which follows may not be scientific or normative; but it is not wholly at large. A wide measure of discretion has always existed in fixing damages for non‑economic loss. All that this legislation does is to require that the damages under this head be fixed in harmony with the fact that Parliament has determined that a maximum will be laid down, varied from time to time and reserved for 'a most extreme case'."
The plaintiff was 45 years of age at the date of the accident and is now 49 years. In the collision she sustained left and right knee injuries, left sided cervical spine injury and left shoulder injury. Save for the left knee the other injuries resolved with conservative treatment within 12 months after the accident. Pain continued in the left knee and an arthroscopy and chondroplasty were performed under anaesthetic in 1998. Following that her knee was much better in that the pain was much reduced, however she continued to experience dull ache through the day. There is not a day which passes without the plaintiff in some way focussing on her left knee. She is not now able to enjoy the recreational activities such as cycling, walking and gardening to the extent she was previously able to. Treatment has otherwise been conservative with physiotherapy with little benefit, ultrasound and heat lamp treatment. Medication if the pain becomes severe comprises Panadeine Forte or Panadol. The knee condition will not get better, however as Mr Thrum emphasised the increase of symptoms of pain can be minimised by the extent of muscle build‑up and particularly quadriceps build‑up which will reduce the symptomatology in the patello‑femoral joint. At worst it is a nagging, ongoing disability, but it is one to which the plaintiff can adapt. The plaintiff is left with a permanent although not very significant disability. In the circumstances of her case I assess the appropriate percentage of a most extreme case at 7½ per cent. This percentage of the maximum amount that may be awarded of $219,000 equates to $16,425. The provisions of s3C require that amount to be reduced by $10,500 which results in a figure of $5925. I award the plaintiff general damages in the sum of $5925.

Future medical treatment

The plaintiff may need future medical intervention as a result of the injury sustained to her left knee. Both Mr Ker and Mr Thrum agree that patellalectomy is unlikely. Mr Thrum considers that resurfacing was only an option in the context of a total joint replacement. Having regard to the medical evidence I conclude that a total knee joint replacement is unlikely. There is agreement that if the degeneration increases over time there is a real rather than theoretical likelihood of an increase in symptoms. Only time will tell however if future treatment is necessary. Whilst there may be increased symptoms of pain Mr Thrum pointed out that this can be minimised by the extent of muscle build‑up and particularly quadriceps build‑up which will reduce the symptomatology in the patello‑femoral joint. Thus the plaintiff to some extent by way of self‑help has the ability to adapt to her situation. Dr Rosenthal pointed to the left knee having to be looked at as a total functional unit. There was evidence of pathological changes in the weight bearing compartment of the plaintiff's left knee joint which are not accident related. He considered that there was a significant component of natural degenerative change in the weight bearing component of the joint. Thus, whilst there is a focal injury that will give the plaintiff some anterior knee pain, there are also other problems to which regard must be had in considering the total picture. There was nothing however to suggest that there was any rampant degenerative process at work. In the end result I think that Mr Thrum's conservative treatment should the symptoms get to the stage where they are reasonably significant is to be preferred and perhaps more probable so far as future medical treatment is concerned. That conservative treatment would involve physiotherapy, anti‑inflammatory medication, a brace and analgesia, and if that did not help then arthroscopy and possible chondroplasty. The evidence indicates that the cost of an arthroscopy procedure would be in the order of $2500‑$3000. Allowance should also be made for physiotherapy medication and occasional medical consultations. An amount of $4000 today would, I consider, be sufficient to meet those future medical costs. Although the expense for such treatment may not be incurred for some years hence it is only a modest sum and not worthy of any reduction by way of discount for early payment.

Future economic loss

Will any deterioration and increase in symptoms in the left knee be productive of economic loss in the future? From her history it is apparent that the plaintiff has a strong work ethic. Jobs as Head of Housekeeping at major hotels or as Executive Housekeeper in other situations may not be readily available. It took the plaintiff some months to obtain a position at the Radisson Hotel after her return to Australia. After she was made redundant there it was seven months before she obtained employment with Australian Housekeeping Systems. She did have some inconvenience with her left knee in the course of that employment, however it was to some extent relieved after she had the chondroplasty. She terminated that employment after her placement to the Burswood Hotel. She was constantly under scrutiny and the plaintiff was not prepared to put up with the manner in which she felt she was being treated. Whilst her knee may to some extent have been a problem I conclude that it was only a minor consideration in her terminating that employment.
The plaintiff immediately got employment in a totally new environment from the hospitality industry in which she had worked for so many years. The Cheesecake Shop presented a new challenge and it was one that she took on quite eagerly. The job was a lot less strenuous and it was a lot less painful in that she did not have to bend and kneel. The income was less than she had previously been earning but it was not a situation where she could complain that she suffered any loss of earnings as a consequence of the injury sustained by her in the accident. She was unfairly dismissed from that job in February 1999. She then went on holiday overseas and since returning to Australia in mid 1999 has been seeking employment. Her preference for future employment is that of managing housekeeping in a hotel. That would not necessarily involve walking up and down stairs, kneeling, squatting or doing anything that keeps the knee bent and under load. Mr Thrum considered that this role was well within the plaintiff's capabilities. Likewise, Dr Rosenthal considered that the plaintiff has a retained capacity to work as an Executive Housekeeper. The plaintiff also considered that such a role would be within her capabilities. If she were not able to obtain a position at that level, then a position as Supervisor would be the next option, although that would be a little more difficult. The plaintiff did not consider that she has the ability to return to the type of work which she was required to undertake at the Burswood Hotel. All medical practitioners agreed that work involving climbing stairs, walking long distances, squatting on a repetitive basis, or weight bearing for long periods, should be avoided. Whilst Mr Ker considered that the plaintiff may have difficulty maintaining her current work performance 5 years from now and would be extremely surprised if she were able to maintain her work performance 10 years hence, that was not a view supported by Dr Rosenthal or Mr Thrum. Whilst the current symptoms may not prevent the plaintiff from working, and whilst there may be increasing symptoms over the years, no‑one however is able to prognosticate as to the rate of such progress, save to put it as Mr Ker did, it was likely to be "real" rather than "theoretical".
The medical evidence indicates that the plaintiff has a retained capacity to work in a supervisory and managerial role, eg as an Executive Housekeeper. Mr Thrum considers that provided she modifies her work habits there is no real reason why she should not continue in the work force in the future. It was Mr Ker's opinion that there is a very real possibility that the plaintiff will have difficulty maintaining her current work performance 5 years from now and extremely surprised if she were able to maintain her work performance 10 years hence. Much however may depend upon how long she is expected to be on her feet in the course of her work. Of course if such supervisory or executive work does not require walking up and down stairs, kneeling, squatting, or anything that keeps the knee bent and under load, there is no reason why she should not be able to continue in that capacity through to retirement age. On the other hand it may be as Mr Ker suggests that as the knee gets worse that it would be necessary for the plaintiff to reduce her working hours. At worst it was his prognosis that the condition may progressively develop to the stage where she is not able to perform her work at all. Nor can the opinion expressed by Mr Rosenthal be ignored in reference to there being a significant component of natural degenerative change in the knee which is not accident‑related. That will be a contributing factor to the total picture.
That the plaintiff has a substantial retained earning capacity is indicated by the fact that she apparently did not have any difficulty in her work whilst employed at the Cheesecake Shop.
Looking at the plaintiff's situation overall, and having regard to the medical evidence, I conclude on balance that degenerative change in the left knee will in years to come interfere with the plaintiff's work capacity. However that will not be significant. I conclude that there will not be any loss of capacity from age 50 to 55. Thereafter from age 55 to 65 there may be a progressive limitation on the plaintiff's capacity to undertake work which involves prolonged standing and bending and kneeling. The parameters of her employment may be marginally reduced and she may be disadvantaged in the labour market which would thus be compensable.
Having regard to the particular circumstances, such compensable loss is not capable of arithmetic calculation. In the circumstances the best that the Court can do, taking into account all contingencies, is to award a global sum for this head of loss. The sum of $25,000 will be awarded for future economic loss.

Summary

General damages  $5,925.00
Future medical treatment  $4,000.00
Future economic loss  $25,000.00
Total  $34,925.00

I award the plaintiff damages in the sum of $34,925.