Devlin v Simcock No. DCCIV-98-1378

DEVLIN v SIMCOCK
[2000] SADC 40

Judge Anderson
Civil

The plaintiff sustained injuries whilst a passenger in a motor vehicle which collided with a tree in country South Australia on the 1st September 1996. These proceedings arise therefrom. I am advised by counsel that it is agreed that the plaintiff is entitled to 100% of her damages to be assessed.
I turn therefore to that assessment. The plaintiff was born on the 19 October 1977. At the time she sustained her injury she was 19 years of age. At trial she is 22 years of age.
At the time of the collision the plaintiff lived at Koolunga, between Clare and Gladstone. She had attended primary school at Koolunga and then attended Gladstone High School for her secondary education. A review of her “Statements of Achievement” for years 11 and 12 indicates that, through the whole range of subjects which she studied, she achieved either a high or satisfactory level of achievement. In year 12 she was elected President of the Student Representative Council by her peers in a secret ballot. In 1994 she undertook year 12 examinations and received a Higher Education Entrance Score of 52 out of 70. In that year she studied the subjects Agricultural Science, Biology, Geography P, English Studies and Applied Mathematics. She received an “A” mark for Agricultural Science and a “B” mark for each of the other subjects. The mark which she achieved was sufficient to enable to her to gain entry to the University of Adelaide for her first choice tertiary course which was an Associate Diploma of Applied Science, Horse Husbandry and Management. She commenced that course at the Roseworthy campus of the University of Adelaide in 1995.
In addition to successfully completing her year 12 studies she successfully undertook the myriad of extra-curricular duties associated with the office of President of the Student Representative Council. In November 1994 the Principal of Gladstone High School wrote a personal reference for the plaintiff. In that reference she set out the range of activities required of the plaintiff in 1994. The following is taken from her report:
“This year Kelly was President of the Student Representative Council. This is an active group involved in school committees, organising activities for students and in fundraising for charities. Kelly has demonstrated good leadership skills through her involvement in a range of activities including:
·....... organising and running a student assembly for the school (150 students)
·speaking at public events on behalf of the student body
·....... encouraging students to participate in school activities
·encouraging students to participate in formal sports day events and in interschool events
·....... participating with peers in informal lunchtime sporting activities
·setting a good example to others whilst studying during ‘independent learning time’ (unsupervised lessons)
·....... working with the SRC throughout the year to prepare for social and charities events
·establishing a student lunchtime radio station.
As a leader of the Student Representative Council Kelly neither dominated nor abrogated her responsibilities. She ensured that other students had opportunities to develop leadership skills and also accepted the responsibilities which come with the leadership role, such as involvement in key committees and running assemblies. Kelly lead by example and participated in all school events including SRC camp, swimming carnival, sports day, MNSEC athletics, school and interschool socials and lunchtime activities.
Kelly has demonstrated her ability to communicate effectively with a wide range of people from the Principal to junior school students, to School Council and teachers. Through her involvement in school committees Kelly has represented the views of students and presented issues and concerns in a clear and precise manner. I have been impressed with Kelly’s ability to participate in discussions with the curriculum committee and to present ideas in a convincing way to staff and parents on that committee. In addition to this Kelly attended many School Council meetings and presented the Student Representative Committee reports. She prepared written reports and included the views of the student body. Kelly has been able to determine when it has been appropriate to represent the views of the student body and to express her own opinion.
During her time at Gladstone High School Kelly has mixed well with her peers, earning their respect and trust. She has a keen sense of fun and her enthusiasm has had a positive influence on other students, particularly in her year level. She is well respected by staff and students alike.
Her confident manner held her in good stead when she and one other member of the SRC joined the small group which escorted the Governor through the school. Kelly took this opportunity to speak to the Governor about the school. Kelly also visited Government house this year to meet Dame Roma Mitchell. These experiences have certainly added to the rich educational experiences which Kelly has had whilst at Gladstone High School.
The demanding role of President of the SRC and the academic demands of being in Year 12 have meant that Kelly has needed to use her sense of judgment to balance these two priorities. Kelly has devoted adequate time to her studies and we expect that she will have performed well in her final exams as she has in her studies throughout the year.
Kelly has performed her duties as President of the SRC in a responsible and professional manner. She accepted responsibility and worked cooperatively with other members of the group during the year. She presented students’ concerns in an appropriate manner and provided the students with an outstanding role model in student leadership.”
In a school reference by the Principal in December 1994 there was a slightly different emphasis. I take what follows from that reference:
“Her achievements in her studies have demonstrated a strong determination to succeed. Her approach to her work has been diligent, exhibiting attention to detail while employing serious work habits, which have reflected precision and accuracy with a strong emphasis on the revision and redrafting processes.
Kelly has been a positive role model for her peers, participating in group work most willingly, especially in practical situations. Kelly has always been aware of the teachers’ classroom expectations and has worked diligently to meet assessment deadlines. She used a confident approach to the Distance Education format for English Studies, displaying methodical initiative and sound communication skills.
Kelly has been able to react positively to criticism and she has been willing to listen and accept advice. She displays empathy for other people and often puts herself out in offering assistance to those in need. The speed and accuracy with which Kelly is able to assess situations and her high level of leadership and organisational skills have meant that her opinions and ideas are readily accepted and respected by other people. This has allowed Kelly to develop a very high level of confidence when dealing with other people, being able to set others at ease, employing compassion and a wonderful sense of humour. It is Kelly’s ready acceptance by others that has allowed her to work most effectively and efficiently in group situations, where she has demonstrated very sound practical skills.
Kelly’s willingness to work within the general guidelines, rules and expectations of the school, her high regard and respect of the rights and welfare of all people, her leadership and pleasant personality has meant that she has exercised a most positive influence on all members of the school community and the future of Gladstone High School.”
These comments reflect other remarks made by subject teachers in various semester reports which were tendered in evidence as part of the exhibit “P6”. They also reflect the evidence given by the plaintiff’s mother as to the plaintiff’s pre-accident capacity, concern and organisational ability. It is apparent from her evidence, which was not subject to cross-examination, that, in addition to fulfilling her school academic and other responsibilities, the plaintiff also maintained a full roster of domestic chores and local community involvement.
In the first year of her university studies the plaintiff successfully passed all subjects. In so doing she obtained 2 distinctions, 1 credit and 6 passes. By the end of 1995 the plaintiff had clearly continued with the promise which she had shown at school and of which her Principal spoke.
In the second year of her two year diploma course, setting aside the subject Horse Business Management II, to which I shall ultimately return, and the subject Equitation and Instructional Skills II, the plaintiff again passed all subjects achieving 1 distinction, 2 credits and 4 passes. The subject Equitation and Instructional Skills II was failed in the practical aspect in late 1996 as a consequence of the injuries which the plaintiff sustained on the 1 September 1996. That subject was passed in the second semester of 1997, which was when it was next offered.
There is some confusion in the evidence in relation to the second year subject Horse Business Management II. In evidence the plaintiff said that that was a subject which she failed in the first semester 1996. The plaintiff said that she repeated that subject in the second semester and again failed. She said that she completed the subject when it was next offered in the second semester 1997 and obtained a pass through what she described in her evidence as the generous assistance of those who taught her.
This evidence given by the plaintiff was supported by answers given by her in her Rule 46.15 particulars which were sworn on the 16 April 1999.
The plaintiff’s evidence and her particulars, which indicate that she sat for the subject Horse Business Management II in both the first and second semesters of 1996, is in conflict with the evidence contained within the exhibit “P1” as set out in both the Notification of Academic Results, at page 4 of that exhibit, and with the Official Academic Transcript, at page 6 thereof. The page of the Notification to which I have referred was issued in February 1997. It clearly shows that that subject was not offered in the second semester of 1996. The official transcript is to the same effect. The plaintiff said in evidence that that subject was offered by another name in the second semester 1997. The Official Academic Transcript indicates that she withdrew from a subject called Business Systems B in October 1997.
Some explanation for this apparent conflict between the plaintiff’s evidence and the University records is to be found elsewhere in the evidence.
In the report of Ms Waring, to which I shall subsequently refer, she notes in the final paragraph, that when she saw the plaintiff on 5 November 1997 the plaintiff was about to sit for her accounting/budgeting examination and, when seen again on 26 November 1997, that had occurred.
In the report of Ms Aitchison, the date of which was corrected to 24 January 1997 in evidence, reference is made in the paragraph “NB” of the fact that the plaintiff reported on that day that she had “recently sat a supplementary Accounting examination” [sic].
Thus, here is some objective evidence that, having failed Horse Business Management II in the first semester 1996, the plaintiff again sat the examination as a supplementary exam in November 1996, soon after she was injured. She seemingly did not pass because of what she told Ms Waring in November 1997. It is plain that she also withdrew in October 1997 from the subject Business B for which she had enrolled when the Notification of Academic Results was printed in January 1997. It is likely that this enrolment occurred prior to the result of the supplementary exam of late 1996 being known. As the plaintiff withdrew from this subject before she sat for the exam referred to by Ms Waring it is likely that the exam which the plaintiff sat in November 1997 was in fact a repeat of the earlier supplementary exam attempted so soon after her injury. Such a scenario explains why there is no mark for Business B in 1997 and why the Official Academic Record records a pass for the subject Horse Business Management II in the first semester 1996 and why, having passed Equitation and Instructional Skills II in 1997, she was then able to obtain her formal qualification from the University.
Consequently, I am of the opinion that, over time, the plaintiff has confused in her mind the precise nature and sequence of what occurred and that this explains her evidence and her Rule 46.15 particulars.
After the collision the plaintiff was taken to the Tanunda Hospital where she was intubated and then transferred to the Royal Adelaide Hospital with the Trauma Retrieval Team. A CT scan showed small left frontal contusions. On the 5 September 1996 the plaintiff was transferred to the Julia Farr Centre. She emerged from post-traumatic amnesia on the 12 September 1996 and was discharged from the Julia Farr Centre on the 20 September 1996.
She continued as an outpatient and then underwent assessment for the purposes of re-obtaining her driving licence, which had been cancelled as a consequence of her injury. She undertook supervised driver rehabilitation through the Julia Farr Centre with the assistance of contracted driving instructors, both in Adelaide and Port Pirie, and re-obtained her South Australian drivers licence after an assessment on the 24 January 1997. She has maintained her drivers licence since that time, notwithstanding that she requires a medical certificate annually in order so to do. I think it unlikely, on balance, that there is any real prospect of her losing that licence in the future as a consequence of the injuries which she sustained on the 1 September 1996.
Mr Reilly, neurosurgeon, attended to the plaintiff. His report was admitted into evidence by consent. He indicated that the plaintiff suffered a “moderately severe brain injury” and suggested that, in order to determine whether there are residual symptoms and disabilities, the plaintiff should undergo formal neurosurgical reassessment. In fact that did not occur, but the plaintiff has been examined, both for the purpose of clinical assessment and for the purpose of these proceedings, by two clinical neuropsychologists.
Before the first of those assessments took place the plaintiff had undertaken the retraining to re-obtain her drivers licence to which I have earlier referred. That retraining was under the supervision of Ms Aitchison, the senior occupational therapist for driver training, at Julia Farr Services. The plaintiff was first assessed by Ms Aitchison on the 13 November 1996. At that time she passed the administered static tests and it was recommended that she undertake an on road driving assessment. This occurred on the 13 December 1996 and resulted in a recommendation that the plaintiff be issued with a permit to drive with a licensed driver so enabling her to undertake some structured driving lessons with qualified persons. In that assessment Ms Aitchison noted that the plaintiff’s difficulties included, inter alia, “reduced memory for verbal information - tendency to become overloaded when complex or lengthy information is presented - impulsivity (tendency to rush through task rather than planning well ahead).”
A further on road assessment was conducted on the 24 January 1997. Although noting what were referred to in the report as “ongoing difficulties” the Class 1 licence (unrestricted) to which I have previously referred was issued.
The plaintiff underwent an initial neuro-psychological assessment by Ms Waring, clinical neuropsychologist, of Julia Farr Services two weeks post injury. As well noting the matters to which I have referred relating to the plaintiff’s injury, Ms Waring noted that the plaintiff had a Glasgow Coma Scale score of 12/15. She proceeded on the basis that the plaintiff’s pre-injury level of intellectual ability was estimated to fall into the average to high average range. She made this assessment based upon the plaintiff’s mother describing to her her school studies and activities together with her first year university results.
As a consequence of the initial assessment, at which the plaintiff was obliging and cooperative but impulsive in approaching set tasks, Ms Waring formed the view that the plaintiff had only limited insight into her difficulties. Ms Waring said at that time that the plaintiff’s behaviour was “often mildly socially inappropriate and she failed to pay attention and interrupted others in conversation”.
Having undertaken a formal neuropsychological assessment Ms Waring concluded that the plaintiff “had reduced working memory capacity, decreased verbal new learning and memory ability, impaired mental arithmetic, and a mild-moderate degree of executive dysfunction, including poor planning and organisational skills, decreased self-monitoring and self-regulation of behaviour, and mildly reduced verbal fluency.”
The plaintiff was reassessed by Ms Waring on the 5 and 26 November 1997. At the time of her referral it was noted that she had “persisting problems including mental arithmetic and difficulty learning a show jumping course”. These were matters of which the plaintiff spoke in her evidence.
In November 1997 Ms Waring readministered those tests where the plaintiff had performed below expected levels in 1996. Generally speaking, her conclusion was that those readministered tests indicated that there was considerable improvement, with the exception of mental arithmetic, and that the plaintiff generally performed at the expected levels for her age. On an untimed spatial maze learning task “she was still having difficulty formulating a strategic approach and incorporating error feedback to modify her behaviour”.
The mental arithmetic sub-test readministered at this time showed only very slight improvement. Her score remained at well below expected levels - well below the first percentile for her age.
In addition to the mental arithmetic difficulties which the reassessment confirmed, Ms Waring expressed the view that the plaintiff’s executive functions had also improved, with qualitative aspects of her performance suggesting “very mild persisting problems with planning/organisation and self regulation of behaviour”.
It was the opinion of Ms Waring that changes affecting planning/organisational ability and self regulation of behaviour “tend to be associated with damage to the frontal lobes of the brain, consistent with the frontal lobe pathology observed on initial CT scans”. Those initial CT scans were not available at trial but an MRI scan conducted on the 22 May 1998 indicated that an earlier CT had revealed “bi-lateral frontal lobe contusions. Impaired memory ...”
Ms Waring also reported that the plaintiff’s difficulty in organising structured material in her memory, and the later retrieval of that memory, indicates a mild frontal lobe impairment. She instanced the evidence given by the plaintiff as to her inability, after the accident, to learn the route and order of a quite short show jumping course. It was the opinion of Ms Waring that it may impact “upon Miss Devlin’s ability to adapt to new situations and develop effective strategies to tackle novel, complex problems.”
Notwithstanding these difficulties with what were referred to in the evidence as the plaintiff’s executive functions, the most significant finding which Ms Waring made referred to “the presence of an acquired dyscalculia/acalculia”. This refers to a disturbance in computation associated with brain damage and to a specific deficit in mathematical processing. At this early stage Ms Waring noted that the plaintiff’s now poor mathematical skills may have a practical implication in that her ability to obtain and maintain a management position within the horse husbandry and training industry would be affected. Ms Waring left open the possibility that there could be continued recovery by the plaintiff generally and, in particular, of her mathematical ability, bearing in mind it was well recognised that for a period of at least 2 years post-injury recovery may continue.

At the request of the defendant’s solicitors the plaintiff was seen by Ms Denson, clinical neuropsychologist, in May 1999. At that time the plaintiff described continuing arithmetical difficulties as a “problem - huge” as was “everything to do with numbers”. The plaintiff told Ms Denson that she was unable to do simple multiplication without the use of a pencil and paper or calculator. At that time she had sufficient insight into her difficulty to tell Ms Denson that prior to the injury she had been “really good with numbers”. Ms Denson reported that the plaintiff indicated to her that post-accident she was “more straight forward ... and less tolerant. She said things and regretted them. Previously she had been a real people person, but now she lived alone and did things alone. She didn’t know why.”
The plaintiff reported to Ms Denson a second motor vehicle collision which had occurred in the first half of 1997. However, from the evidence given by the plaintiff in relation to this topic, I am not of the view that it has in any way affected the injuries which the plaintiff sustained on the 1 September 1996. Indeed, Mr Hanus of counsel for the defendant, made no mention of this accident in his final address. Neither did Mr Rau of counsel for the plaintiff.
The plaintiff also reported “frequent impatience, restlessness and boredom” to Ms Denson.
Ms Denson indicated that the plaintiff’s mother, in information provided to her, had observed the plaintiff’s “forgetfulness for phone numbers, and difficulty making decisions and handling money, as well as frequent concentration problems, disorganisation, forgetting to turn off appliances, losing track of time, losing her train of thought, and slowness of thought.” She also reported “constant impatience and restlessness, and frequent irritability, frustration, criticism of herself and others, rudeness, inappropriate comments or behaviour, nervousness and boredom” in the plaintiff. These were observations which were substantially repeated by the plaintiff’s mother in her evidence.
Ms Denson required the plaintiff to undergo certain neuropsychological tests. As a consequence of them she indicated that the plaintiff’s pre-injury intellectual capacity was in “at least the average range ... and possibly higher”. This accords with the opinion expressed by Ms Waring. I accept this evidence. As a consequence of the tests Ms Denson noted that, in her view, the plaintiff was alert and attended to and was motivated to perform to the best of her ability. She noted that the plaintiff’s performance was “not suggestive of significant impairment of attentional or executive abilities” but she was unable to exclude the possibility of what she described as “a very subtle residual impairment”. Ms Denson acknowledged that the plaintiff continued to “demonstrate a specific impairment of calculation abilities, and this will undoubtedly have implications for her future efficiency and confidence in her chosen career.”
It is not remarkable that some 18 months subsequent to the neuropsychological examination undertaken by Ms Waring that Ms Denson’s tests, which were essentially similar, showed a significant improvement in the plaintiff’s performance in all areas except those relating to arithmetic capacity.
I thought that, Ms Denson in her evidence, sought to play down this deficit but, in my opinion, the very real nature of this deficit and others which are associated with the executive capacity of the plaintiff remain as real and were amply demonstrated by not only the evidence of the plaintiff’s mother, to which I have in part referred, but also by the evidence of the plaintiff and, in particular, the evidence of her employer, Mrs Cameron-Kennedy.
In her evidence the plaintiff acknowledged her inability to undertake calculations of the most simple type without resort to calculator or pen and paper and also of the need to plan ahead, resort to lists of tasks to be undertaken and to an inability to plan and determine a course to be taken to resolve daily problems, apart from those tasks which she had learnt by rote or which were basic.
The plaintiff’s evidence was principally devoted to her position and circumstance since September 1996. In about March 1998 she obtained employment at the Oaklands Hunt Club on the outskirts of Melbourne as a kennelman. She maintains that employment at trial. She gave evidence of her tasks and of the difficulties which she faces in completing her employment responsibilities. From this evidence I have no doubt that she now has complete insight into her ongoing disabilities.
From the commencement of her employment until October 1999 the plaintiff was under the direct supervision of her employer, Mrs Cameron-Kennedy. It was Mrs Cameron-Kennedy’s usual practice to attend at the hunt club establishment on an almost daily basis. She there supervised the administration. The plaintiff said that it was the usual practice of Mrs Cameron-Kennedy to leave her with lists of tasks to be undertaken. Mrs Cameron-Kennedy said that either notes were given to the plaintiff or instructions were written in the kennel diary.
There was some tasks which the plaintiff could do without instructions. These included feeding the hounds and cleaning out their kennels on a daily basis and checking horses, of which about 100 were agisted on the property. The plaintiff required direction as to the movement of the horses from paddock to paddock. In addition, the plaintiff had certain gardening and other such like responsibilities. However the plaintiff said, and this was confirmed by her employer, that she had difficulty with both arithmetic tasks and with comprehending the conceptual nature of any quasi mechanical type difficulties which arose unexpectedly. Of course, this is in the context of the plaintiff being a young lady who grew up in the country and who was used to the rural environment and the chores and daily tasks associated therewith.
The plaintiff said that whilst she could handle money paid by her agistees, note its receipt, and pass it on to the agistment manager, she was unable to deal in any more sophisticated way with money without some degree of hesitation. In addition, she was unable to make calculations necessary to determine what quantity of drench or inoculation might be given to any particular hound on an ongoing basis. This also was confirmed by her employer who said that such a task involved an eye assessment of the weight of the hound and a calculation so as to determine what amount of drench or other inoculation that hound should receive. She said that the plaintiff was clearly unable to undertake this task and required either a pencil and paper or calculator to complete it. This was time consuming and unacceptable in the daily grind.
It is apparent from the evidence that this was a problem which had arisen since 1 September 1996 and clearly is not referable to a person who successfully passed Applied Mathematics at Year 12 level. In addition, the plaintiff instances difficulties she has in conceptualising problems which arise unexpectedly in the normal day. For instance she gave an example of where she was unable to correctly repair a leaking pipe because of her inability to appreciate the nature of the damage to the pipe causing the leak. This also is not a difficulty which would have troubled her before having regard to those matters referred to in the reports from her school principal and to which I have made reference.
The plaintiff indicated a preference to be alone and said that she was no longer gregarious. She appreciated that she is, at times, wont to make inappropriate comment and also realised when she had done so. It was then necessary for her to make an apology. She said that even though she was now happy with her own company she would go out if others organised an event but she no longer took an organisational role for social events. She recognised that this was clearly different from her behaviour prior to September 1996. This topic was also the subject of similar comment from her mother in evidence.
Mrs Cameron-Kennedy said that it was her practice to always ensure that, apart from those tasks which the plaintiff was able to do by rote, such as cleaning and gardening, other tasks for the plaintiff were noted. Of course this was similar to the plaintiff’s evidence that, in her house, which is provided by her employer, she has 3 whiteboards upon which she makes notes so as to ensure that nothing is forgotten, whether it be work related or whether it be personal.
Mrs Cameron-Kennedy also indicated that the plaintiff had difficulty with recollecting events from the past. She instanced the plaintiff’s inability to recall, on a subsequent occasion, a vehicular journey she had previously made at Mrs Cameron-Kennedy’s direction and the need to be given written instructions as to how to undertake that journey again. This was within a matter of months.
Mrs Cameron-Kennedy was quite definite in her evidence that she would not allow the plaintiff to have a position of authority as she perceived that she was unable to quickly make appropriate decisions. She noted that since October 1999 the plaintiff had been under the direct supervision of Mr Hunt, who is employed as the Huntsman by the Hunt Club, and that she had observed that the plaintiff and Mr Hunt, on a daily basis, prepared a list of tasks to be undertaken. The plaintiff gave like evidence. I reject the suggestion of Mr Hanus in his final address that this was nothing more than two persons of equal capacity organising themselves so as to be more efficient. Plainly, it is the direct result of the inability of the plaintiff to both recall and plan so as to be capable of independent function in her employment.
These are difficulties which directly flow from the impairment of her executive functioning as noted by Ms Waring. They are consistent with the brain damage acknowledged by Mr Reilly, Ms Waring and a lesser extent Ms Denson.
There is no doubt that the plaintiff has an ongoing and permanent disability with her executive functioning such as to prevent her from ever holding a position of management involving the supervision of others and where executive type decisions are required to be made. The plaintiff is no longer able to appreciate and conceptualise ongoing and unexpected events so as to ensure that they are dealt with in a sensible and sequential manner.
Whilst the evidence of Ms Denson suggested the mere possibility of a mild defect, the evidence of Mrs Cameron-Kennedy, who has observed the plaintiff at extremely close quarters on an almost daily basis for 2 years indicates that the difficulties which she faces are such as to confirm the more positive description of her injuries as given by Ms Waring and Mr Reilly. It is in the daily arena that the real depth of the plaintiff’s injuries are to be gauged. The evidence of Mrs Cameron-Kennedy as to this topic was positive and unassailed. The plaintiff has real ongoing difficulties of which she has full insight. I acknowledge that, to some extent, these difficulties were recognised in a more realistic fashion by Ms Denson in her answers to questions which I put to her at the conclusion of her examination-in-chief. She acknowledged that the plaintiff’s described inability to manage sequences without losing track, to think flexibly and to learn from her immediate experience, as well as her inability to recall so as to plan future events were indicative of brain injury. These failures of executive functioning are in addition to the plaintiff’s permanent arithmetical deficit.
I turn to an assessment of the plaintiff’s damages.
In order to determine non-economic loss pursuant to the provisions of S35A of the Wrongs Act 1936 it is necessary that I determine a numeral attaching to the severity of the plaintiff’s injuries in the scale 1-60. In determining such a numeral it is necessary to take into account the nature of the plaintiff’s injuries, the nature of her disability and her ongoing insight into that disability. It is apparent that whilst the plaintiff does not suffer pain she must live the rest of her life knowing that she is unable to fulfil the potential which she evidenced prior to September 1996. The injuries which she has sustained are such as to ensure that she does nothing other then menial supervised type work for the whole of her working life. On the basis of the plaintiff’s injuries, their ongoing sequelae and the plaintiff’s realisation of that fact, I determine the appropriate numeral as 20. It is agreed that the appropriate multiplier is 1520. I therefore assess the plaintiff’s non-economic loss at $30,400.
The plaintiff received gratuitous assistance from her mother from the time of her transfer to the Julia Farr Centre until she went to work in the Northern Territory in late January 1997. The plaintiff is therefore entitled to an award for this gratuitous service for this period of about 4 months. I assess this sum at $2,500.
Special damages have been agreed in the sum of $8,969.05. No interest attaches to any of that sum.
In relation to past economic loss I proceed on the basis that had it not been for the injury the plaintiff, on balance, would have passed the first supplementary examination in the subject Horse and Business Management II held in late 1996. Similarly, she would have passed the subject Equitation and Instructional Skills II in that year as I accept her evidence that the only reason she failed it in the second semester of 1996 was because of her inability to remember the order in which the jumps occurred and therefore how to complete the course. That being so were it not for the injury, the plaintiff would have been able to seek employment in her chosen field from January 1997. I have no doubt that had she been so able she would have rapidly obtained such employment.
As it was, the plaintiff having re-obtained her drivers licence, obtained work as a jillaroo in the Northern Territory commencing in late January 1997. For the year ended 30 June 1997 the plaintiff earnt the sum of $8,117 net, allowing for deductions shown upon her group certificate and her taxation refund cheque. Allowing that this income was earned in about 23 weeks from the last week of January 1997 and extrapolating it to years end I determine the plaintiff’s past economic loss at $10,234 net. In relation to this award I allow interest in the sum of $1700.
The significant issue in this matter is future economic loss.
Presently, the plaintiff earns $270 per week net and has the benefit of rent free accommodation. From the evidence of Mrs Cameron-Kennedy I determine the value of that rental at $130 per week. Thus, the plaintiff’s effective net income is $400 per week. Had she been able to seek employment in her chosen field of the horse thoroughbred industry I think it unlikely that, at this time, she would have earned any sum significantly different from that which she presently earns.
There is much debate in the evidence as to what the plaintiff’s future prospects were and when. The evidence given by Dr Woodward, who is the present head of the Roseworthy campus and who has an undoubted familiarity with the horse thoroughbred industry and its practices, was of some assistance in this regard. Largely, the evidence of Dr Woodward related to those persons whom she described as outstanding students and their work prospects. I am satisfied, having regard to her history and her initial academic record, that whilst the plaintiff might be described as a “good student” she is not, and was not, the type of person who could correctly be described, having regard to Dr Woodward’s evidence, as an “outstanding student”. In my view, the plaintiff would, by dint of her capacity and personality, have proceeded in her desired field of the horse thoroughbred industry over a period of years. There is nothing in the evidence to suggest that the pre-accident plaintiff was other than a person who had an excellent capacity to get on with her peers and others, who had a personality capable of their acceptance, and who was more likely than not to have achieved her objectives in a career sense. Of course, there are contingencies and they will be allowed for in the usual way.
I accept Dr Woodward’s evidence that the industry is large, offering many jobs, particularly in middle management. Whilst, in this industry, the plaintiff would have been earning about the same as she is now after 3 years, I think that her attributes are such that she would have achieved preference and that from about her mid twenties onwards would have been achieving a salary of about $5,000 per annum net in excess of that which she presently has. Thereafter, if uninjured, the plaintiff would have progressed to middle management in the industry.
Dr Woodward gave evidence, which I accept, that a salary of $40,000 gross per annum is not a salary which is unusual after 10 or so years of experience. In my view this a level which would have been achievable by the plaintiff within that time frame. Dr Woodward also gave evidence that, depending upon opportunity and capacity, there was the possibility of employment in sections of the industry that paid upwards to $60,000 gross per annum. Whilst there must exist the contingency that the plaintiff would have achieved such a high level in her industry I think the probabilities are that she was less likely to so achieve rather than more likely. At that point there are many competing for fewer positions.
Thus, whilst it more likely than not that the plaintiff would have progressed from her present salary to a salary of approximately $40,000 gross per annum by about her mid thirties the possibility of achieving a salary in excess of that sum, but not in excess of $60,000 gross per annum must also exist. The precise arithmetical calculation of the plaintiff’s loss over such a period is impossible. It is necessary to make a broad assessment of the plaintiff’s loss having regard to the both positive and negative contingencies which are applicable.
This assessment is to be made recognising that the plaintiff’s current level of employment is probably the maximum level of employment which she can hope to achieve with a sympathetic employer. Thus, whilst she will no doubt receive the regulated pay increases over the ensuing years they are likely to be worth less to her than such increases which would attach to a higher salary over that period. It is unlikely that her salary will henceforth ever be relative to other than a base grade salary.
There is nothing in the evidence to suggest that the plaintiff would do other than work to age 65. Of course, in assessing her future economic loss it is necessary to have regard to contingencies and that she may not is one such contingency. Those contingencies are perhaps more significantly adverse in an industry where there exists some form of physical danger than otherwise. However, in this regard it is important to acknowledge Dr Woodward’s evidence that the significant jobs in middle management are away from daily contact with horses and so, whilst this contingency exists, in my view, after the plaintiff is in her middle thirties it is significantly diminished by virtue of her having achieved promotion.
Allowing for those matters both in favour of, and contrary to, the interests of the plaintiff I assess her future economic loss at $250,000. I have made this assessment using the post 1 July 2000 tax scale.
There is no claim for future gratuitous services or future medical expenses.
In summary, I assess the plaintiff’s damages as follows:
Non economic Loss  $   30,400.00
Past gratuitous services  $    2,500.00
Past economic loss  $ 10,234.00
      - Interest thereon  $    1,700.00
Special damages (as agreed)  $    8,969.05
Future economic loss   $250,000.00
Total   $303,803.05
I shall hear counsel as to costs.

[2000] SADC 40

30 March 2000