Douglas v Douglas

[2020] NSWDC 169

District Court

New South Wales

Medium Neutral Citation:

Douglas v Douglas [2020] NSWDC 169

Hearing dates:

29 & 30 April

Date of orders:

06 May 2020

Decision date:

06 May 2020

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff against the defendant in the sum of $172,527.20;

 

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

 

3. The Registry is to return the exhibits to the parties after the expiry of 28 days;

 4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – injuries received in a motor vehicle accident – liability admitted; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Evidence Act 1995 (NSW), s 60
Motor Accidents Compensation Act 1999 (NSW), s 136

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Brown v Lewis [2006] NSWCA 87
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Graham v Baker (1961) 106 CLR 340; [1961] HCA 48
Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5
Penrith City Council v Parks [2004] NSWCA 201
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485

Category:

Principal judgment

Parties:

Caitlin Douglas (Plaintiff)
Brighid Douglas (Defendant)

Representation:

Counsel:
Mr D Morgan (Plaintiff)
Ms S Warren (Defendant)

  Solicitors:
Chadwick Lawyers (Plaintiff)
McCabe Curwood (Defendant)

File Number(s):

2019/86834

Publication restriction:

None

Judgment

Table of Contents

Nature of case and issues to be determined	[1]
Factual background	[2]
Credibility and reliability of testimony	[3]
Facts	[4] – [23]
Plaintiff’s background circumstances	[5] – [6]
Plaintiff’s pre-accident health	[7] – [8]
Accident circumstances	[9]
Injuries and treatment	[10] – [12]
Subsequent medical and allied reviews	[13]
Conclusions from the medical reports	[14]
Disabilities	[15] – [18]
Work effects	[19]
Domestic effects	[20]
Mitigation	[21]
Plaintiff’s most likely circumstances but for injury	[22] – [23]
Assessment of damages	[24] – [49]
Future loss of earning capacity	[25] – [39]
Future domestic assistance	[40] – [43]
Future treatment expenses	[44] – [46]
Past out-of-pocket expenses	[47] – [48]
Summary of damages assessment	[49]
Disposition	[50]
Costs	[51]
Orders	[52]

Nature of case and issues to be determined

1. These proceedings concern the assessment of the plaintiff’s damages for injuries she received in a motor vehicle accident for which the defendant has admitted liability. The proceedings are governed by the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”).

Factual background

2. At about 6.36pm on Monday, 24 October 2016, the plaintiff, Caitlin Douglas, then a Year 11 High School student, was a front seat passenger in a motor vehicle being driven by the defendant, her twin sister Ms Brighid Douglas, along Donnells Creek Road, Moruya, New South Wales. That vehicle left the roadway and collided with a tree after the defendant experienced an involuntary sneeze. The collision caused the airbags in the vehicle to deploy. This resulted in the plaintiff suffering soft tissue injuries to her chest and to several areas of her spine.

Credibility and reliability of testimony

3. I have assessed the plaintiff to be a credible and reliable witness who gave a truthful account of the matters of which she complains. The defendant’s medical evidence supports that assessment: Exhibit “B”, Tab 20, p 93. The undisputed medical evidence was to the effect that her presentation was consistent, genuine and unembellished: Exhibit “B”, Tab 16, pp 59 – 60. I have accepted her evidence in its entirety. Counsel for the defendant did not submit that a finding should be made to the contrary.

Facts

4. Unless otherwise qualified my findings of fact concerning the plaintiff’s pre-accident circumstances, her pre-accident health, the accident circumstances, the injuries and treatment received by the plaintiff, the chronology of medical and allied reviews, the effect of the medical evidence, the plaintiff’s resultant disabilities, the work and domestic effects of her disabilities, mitigation of damages, and the plaintiff’s most likely circumstances but for her injury, are as follows.

Plaintiff’s background circumstances

5. At the time of the accident the plaintiff was preparing for her HSC examinations that were due in the following year. She was an outstanding student. She was a school prefect. Her history has been of striving for high achievement. In conformity with that assessment she was dux in her final year of her schooling. She had been an exchange student in Europe. She has some accomplishment in language and in music studies. She was living in Moruya. She was fit and healthy and she had no physical or other restrictions that would have impeded her capacity to work in any field of her choice.

6. Although as a student the plaintiff had worked as a casual waitress both before and after the accident, that was not going to be the direction of her future work. She has also worked part-time in a cinema as an attendant. This involved standing for long hours and also carrying out cleanings tasks. She was destined to pursue tertiary studies and she has settled upon pursuing a degree in Commerce/Law. She is well on the way to completing those studies. At present she also works as a part-time law clerk with Mars Legal, a firm of solicitors, in her second legal placement. She is also in a student ambassador role at the University of Sydney.

Plaintiff’s pre-accident health

7. Apart from what follows, the plaintiff had no adverse conditions of health of any substantive significance to these proceedings, as is demonstrated by her medical and allied records.

8. Since 2015, and until the accident, the plaintiff had been periodically consulting Mr Ivo Ahlquist, a chiropractor, infrequently for what he identified as mid-back and neck complaints, but not low back problems: Exhibit “B”, Tab 13, p 48. The plaintiff’s family were at that time consulting the chiropractor for health maintenance as a matter of preference rather than for medical need. Mr Ahlquist has confirmed that the plaintiff had no pre-accident complaints of low back pain.

Accident circumstances

9. The accident occurred when the defendant experienced an involuntary sneeze, as a result of which she lost control of the vehicle and drove into a culvert on a narrow dirt road. The vehicle was then deflected from its course on the roadway and struck a tree. The plaintiff was wearing a seatbelt. The plaintiff, her sister, and their mother were all injured.

Injuries and treatment

10. An ambulance was called to the scene. The plaintiff and the other members of her family were taken to Moruya Hospital. The ambulance report has been poorly copied and is difficult to decipher in its entirety: Exhibit “B”, Tab 8, pp 38 – 40; Tab 31, pp 172 – 174.

11. The ambulance report recorded the plaintiff’s chief complaints as being chest and back pain following the motor vehicle accident. Although not recorded in the ambulance and hospital records, I accept that the plaintiff also suffered a soft tissue neck injury, as described by her and as explained by Dr WGD Patrick, one of the medical examiners who provided a report in this case.

12. The Moruya District Hospital records noted that in addition to the chest injury due to the deployment of airbags, the plaintiff had reported pain between her shoulders: Exhibit “B”, Tab 7, p 34. She later identified this as being at the base of her neck: T51.20.

Subsequent medical and allied reviews

13. Before identifying my findings arising from the medical opinions and then making findings regarding the plaintiff’s accident-related disabilities, I set out and review the chronology of post-injury medical assessments, including medico-legal assessments of the plaintiff:

1. On 25 October 2016, on the day following the accident, the plaintiff attended at the chiropractic clinic of Mr Ahlquist. He saw her for complaints of musculo-skeletal dysfunction in her spine primarily involving whiplash type injury with increased tension throughout the spine and neck. He noted the presence of bruising along the seatbelt line. She received neck and back mobilisation treatment. She saw Mr Ahlquist for treatment on 17 occasions between 25 October 2016 and 10 July 2018: Exhibit “B”, Tab 10, p 43;

2. On 5 January 2018, a general practitioner consulted by the plaintiff, Dr Martin Carlson, certified that in his assessment on that date, the plaintiff had suffered a soft tissue injury to her back: Exhibit “B”, Tab 5, p 25;

3. On 2 February 2018, the plaintiff’s chiropractic treatment with Mr Ahlquist ceased: Exhibit “B”, Tab 13, p 48. By that stage the plaintiff had moved to Sydney and was enrolled at the University of Sydney;

4. On 30 April 2018, the plaintiff consulted Dr Susan Willis, a general practitioner at the University of Sydney Health Service, in relation to her motor vehicle accident-related low back problems. She requested referral to a chiropractor: Exhibit “B”, Tab 11, p 44;

5. On 1 May 2018, the plaintiff consulted Dr Bryden Leung, a chiropractor at the Campus Chiropractic and Wellness Clinic. That consultation was for localised low back pain at the L5/S1 junction and the iliolumbar junction with associated paraspinal stiffness. The plaintiff had further consultations on May 3, 11, 14, 29, June 5, August 7 and 14, for symptomatic management the timing of which was arranged around her other personal and student commitments: Exhibit “B”, Tab 12, pp 45 – 46. His records show he has been treating the plaintiff’s neck and low back: Exhibit “B”, Tab 32, pp 284 – 286;

6. On 5 October 2018, at the request of the solicitor for the plaintiff, Dr Patrick, a trauma and general surgeon, examined the plaintiff for the purpose of preparing an assessment report. He assessed her complaints of ongoing low back pain and stiffness, with related difficulty sitting for prolonged periods, some continuing neck pain, and some thoracic pain which had lessened over time. He found guarding of the cervical spine and marked muscle guarding in the lumbar spine. He considered her symptoms were genuine and were consistent with the effects of the subject accident on 24 October 2016: Exhibit “B”, Tab 16, pp 57 – 64;

7. On 8 October 2019, at the request of her solicitor, the plaintiff was assessed by Dr Michael Couch, a specialist in occupational medicine. He issued his report of that examination on 4 December 2019. He took a detailed history from the plaintiff but did not elicit any history of neck pain. This may have been because in his report he referred to the Moruya Hospital notes that stated there had been no neck pain following the accident. He did not refer to Dr Patrick’s report which did record neck guarding. His diagnosis was that the plaintiff had a soft tissue injury to the lumbar spine with ongoing symptoms. His prognosis for that condition was for some improvement over time but he cautiously added that given 3 years had already passed, she will probably experience some low back pain for the foreseeable future: Exhibit “B”, Tab 15, pp 50 – 53; Tab 17, pp 65 – 72;

8. On 29 October 2019, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Graham Hall, an occupational physician. Dr Hall’s opinion was stated to be “based entirely upon the evaluation of objective findings” he had before him on that day. That might explain why his report did not contain a specific section that recorded particulars of the plaintiff’s complaints of symptoms. He recorded that the plaintiff had incurred soft tissue injuries to her neck and to her back. He noted there was no complaint of neck pain. He did note that there was pain in the low back from the sacro-iliac dimple to just above the iliac crest. His diagnosis was persisting low back pain following a soft tissue injury which was reasonably attributable to the subject accident: Exhibit “B”, Tab 19, pp 82 – 88;

9. On 4 March 2020, at the referral of her general practitioner, the plaintiff underwent an MRI scan of her lumbo-sacral spine, which was reported as being normal: Exhibit “B”, Tab 9, pp 41 – 42; Tab 15, pp 55 – 56;

10. On 9 March 2020, at the request of her solicitors, the plaintiff was re-examined by Dr Patrick. His record of the plaintiff’s history and his findings on examination were essentially as in his earlier assessment, with continued guarding of the cervical spine and some stiffness in the lumbar spine. His opinions remained unaltered, as did his diagnosis: Exhibit “B”, Tab 18, pp 74 – 80;

11. On 18 March 2020, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Roger Rowe, an orthopaedic surgeon. He recorded the plaintiff’s current complaints as comprising low back pain on an intermittent basis, especially with prolonged sitting or standing, when lying in bed, when studying, working as a waitress, or when working as a paralegal. He diagnosed the plaintiff’s accident-related problems as chest bruising now resolved, and low back strain, not yet resolved: Exhibit “B”, Tab 20, pp 89 – 96;

12. On 21 April 2020, an expert conclave meeting took place between Dr Rowe and Dr Patrick: Exhibit “B”, Tab 21, pp 97 – 101. These experts reiterated their earlier diagnoses. More specifically:

1. Dr Rowe agreed that the plaintiff’s back condition would be affected by prolonged sitting whereas, Dr Patrick considered the plaintiff’s restrictions may well impact adversely on her capacity for full-time work as an employed lawyer;

2. Whereas, Dr Patrick considered the plaintiff would not be sustainably capable of working 50 – 60 hours per week as an employed lawyer, Dr Rowe considered she was capable of such work, but would need periodic breaks to get up and walk around;

3. Dr Rowe considered the plaintiff’s experience of periodic back ache was an acceptable and reasonably expected flare-up or exacerbation of her back condition which related to the accident;

4. Dr Rowe noted a pre-accident history of recurrent low back ache for about 2 years for which she was attending a chiropractor. That history was not correct, as has been confirmed by the chiropractor: Exhibit “B”, Tab 11, p 48. Those treatments related to the plaintiff’s upper back and appeared to be in the nature of postural adjustments;

5. The experts disagreed on whether the plaintiff required further treatment. Dr Rowe considered a self-directed exercise programme was sufficient, whereas Dr Patrick reiterated that there was a need for some medical supervision, limited physiotherapy, and possible investigations in the event of possible deterioration;

13. On 22 April 2020, an expert conclave meeting took place between Dr Couch and Dr Hall: Exhibit “B”, Tab 22, pp 102 – 106. The products of that meeting were that:

1. The experts agreed the plaintiff should observe lifting restrictions, that is, not to lift or carry weights of more than 10kgs and if required to do so, then only intermittently, observing ergonomic precautions;

2. Essentially, the experts also agreed that activities such as heavy pushing or pulling, and repeated bending, or maintaining forward leaning postures, should be avoided;

3. The experts agreed that the plaintiff’s ability to manage or cope with her pain would influence her ability to manage working 50 – 60 hours per week as a full-time employed lawyer;

4. Future management of the plaintiff’s accident-related problems should mainly comprise self-managed exercise and intermittent simple analgesics but there would be benefit from some supervisory review sessions with an exercise therapist or a physiotherapist.

Conclusions from the medical reports

14. The two expert conclave meetings were productive in that, to a degree, the experts narrowed the areas of dispute between them. All examining doctors have accepted the plaintiff has post-accident pain and discomfort in her low back as a result of the accident. Having regard to the plaintiff’s evidence, the evidence of her chiropractor and the opinion of Dr Patrick, which I accept, I find the plaintiff also injured the soft tissues of her neck and chest in the subject accident. I have discounted the weight of Dr Hall’s opinions because in relying predominantly on objective findings, this indicates that he discounted the plaintiff’s subjective symptoms, which were not otherwise improbable.

Disabilities

15. I have found the plaintiff to be a credible witness. I have accepted her evidence in its entirety, I therefore propose to treat the medical histories as recorded by the assessing practitioners as evidence outlining her post-injury disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995 (NSW). I have drawn upon the unchallenged content of the tendered medical reports to identify relevant aspects of the plaintiff’s history, and her disabilities, as there documented.

16. Notwithstanding the plaintiff’s accident-related problems, she has managed to acquit herself with credits and distinctions in her Commerce/Law studies: Exhibit “B”, Tab 29, p 116.

17. The painful effects of the plaintiff’s chest injury have resolved. Her low back and her neck continue to cause her pain and discomfort. I accept that she experiences low back problems with lifting and carrying heavy objects, or carrying out activities that are likely to jar her neck and low back. Doubtless these problems are distracting for her. She also has difficulty with forward bending such as when using a vacuum cleaner. Her disabilities have increased with flare-ups in the last 2 years. She faces the possibility of gradual deterioration of her residual symptoms with the passage of time, particularly in her lumbar spine. She has difficulty with prolonged posture maintenance and with prolonged sitting and standing, which causes exacerbation of her back pain.

18. The plaintiff continues to have stiffness in her low back, especially when sitting for prolonged periods. She also experiences neck pain at the top of her shoulders. Her low back pain remains persistent. It becomes more evident on prolonged standing, and when lifting and carrying heavy weights, and when lying in bed. She experiences guarding in the muscles of her neck and her low back. At times these problems disturb her sleep. I accept Dr Couch’s conclusion to the effect that the plaintiff will continue to experience low back pain for the foreseeable future.

Work effects

19. The plaintiff’s disabilities have had an adverse impact on her ability to lift and carry objects and to sit or stand for prolonged periods, as also described in the medical reports that have been tendered in evidence. In her work as a paralegal she found it necessary to adjust her work from four days per week to three days per week. The economic impact of those matters will be taken up in the assessment of the plaintiff’s claim for future loss of earning capacity.

Domestic effects

20. The medical evidence discloses that the plaintiff will encounter difficulties with the heavier aspects of commonplace domestic tasks including moving heavy items and vacuuming. This has some significance to the assessment of the claim for damages for the likely future cost of the plaintiff needing to employ some intermittent domestic assistance.

Mitigation

21. The defendant did not make any submissions to the effect that the plaintiff had in any way unreasonably failed to mitigate her damages: s 136 of the MAC Act; T131.37 – T132.14.

Plaintiff’s most likely circumstances but for injury

22. Before the subject accident the plaintiff had a pattern of regular visits to a family chiropractor for what could be described as adjustments to her spine for posture maintenance. There was no relevant history of prior injury, or underlying pathology that required specific treatment. Those attendances by her comprised elective expenditure.

22. At the time of her accident her economic future was unrestricted in relation to physical tasks such as lifting, carrying, pushing, pulling, and sitting or standing for prolonged periods. It was most likely that she would enter into and complete tertiary studies and then enter a profession without physical restrictions or distractibility from work tasks due to pain and the related need for periodic changes in her posture, and the need to limit the range and extent of work-related physical activity.

Assessment of damages

24. My assessment of the plaintiff’s entitlement to damages is as follows.

Future loss of earning capacity

25. The plaintiff makes no claim for past loss of earnings. On her behalf it was submitted that in light of her evidence, supported by medical evidence, she has incurred a future loss of earning capacity that will be productive of economic loss such that damages should be assessed for that loss: Graham v Baker (1961) 106 CLR 340; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5. It was accordingly submitted that a buffer sum of $200,000 should be allowed for damages on account of that loss. In contrast, on behalf of the defendant it was submitted that the plaintiff would be unlikely to incur economic loss and therefore no such damages should be awarded.

26. In my assessment, the preponderance of the medical evidence supports the plaintiff’s claim for a buffer for future economic loss damages, as follows:

1. Dr Patrick specifically considered that as the plaintiff continued to move forward in her anticipated legal career she would not be sustainably capable of working 50 – 60 hours per week in a full-time role as an employed lawyer: Exhibit “B”, Tab 21, p 99. Dr Patrick based his opinion on the plaintiff’s experience of exacerbation in her back pain from time to time, and on her occasional absences from work. In contrast, Dr Rowe considered that the experience of periodic aching, whilst a reasonable sequelae of the accident, was “acceptable”, which I interpret to mean that he did not consider this would result in a loss of time from her work;

2. Dr Couch maintained his view that the plaintiff should observe lifting or carrying restrictions for weights over 10kgs. Limiting this to only intermittently, and with positional ergonomic precautions, and he also added that the plaintiff should not be frequently lifting 5kgs away from the trunk, below knee height or above chest height, as well as avoiding pushing or pulling, repetitive bending, and she should avoid forward leaning postures whilst either sitting or standing. He also considered that she should have properly adjusted ergonomic seating with good lumbar support, with regular breaks for standing, walking around or stretching every 30 – 60 minutes, which in his view, would require the plaintiff to have a sympathetic employer on account of those matters, and that much would depend on how she copes with pain. In contrast, Dr Hall, whilst conceding that the plaintiff was restricted to a lifting limit of 10kgs, or occasionally 15kgs, with no repeated lifting or bending, with avoidance of strenuous pushing or pulling, and accepting the need for alternating posture, simply considered the plaintiff would be capable of working 50 – 60 hours as a full-time employed lawyer: Exhibit “B”, Tab 22, pp 103 – 104.

27. Of that array of opinions from the respective surgeons, I prefer and accept Dr Patrick’s more reasoned and cautious opinion compared to that of Dr Rowe’s more optimistic views because Dr Patrick has provided more detailed supporting reasoning. I consider that Dr Rowe’s view that the plaintiff’s pain should be seen to be acceptable, to be an unreasonable premise upon which to view the plaintiff’s claim for future loss of earning capacity. The notion of continuing to work, regardless of pain, which can be distracting and deleterious to productivity, is not an acceptable line of reasoning. The facility for the plaintiff’s pain to be distracting and interfering with her potential productivity cannot be ignored. The defendant’s submission concerning the prospect of flexible working arrangements does not seem to be a likely source of amelioration of such problems.

28. If illustration of the lifting and carrying component of legal work was required, it would be sufficient to recognise that the weighty folders, including Exhibit “B”, that were provided to the Court, weighed several kilograms. It is well-recognised from observing litigation over a long period, that the bulk of such material is tending to increase over time, and that trolleys laden with such materials are most commonly pulled and pushed by the most junior members of a legal practice.

29. Of the array of opinions from the respective occupational physicians, I prefer and accept Dr Couch’s more reasoned view to that of Dr Hall, whose simple “Yes” answer to the question of whether the plaintiff could work 50 – 60 hours per week, does not satisfy the requirements of UCPR r 31.27(1)(c) and UCPR Sch 7, cl 3(e). Dr Couch’s pessimistic prognosis that the plaintiff will have back problems for the foreseeable future is an unchallenged opinion that must also be given significant due weight.

30. In cases such as this, where it is not possible to demonstrate a direct recurring monetary loss on a comparison of pre and post-accident earnings, the assessment of a buffer amount is the appropriate method for approaching the assessment: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

31. Having reached the conclusions identified in the preceding paragraphs, it is plain that the plaintiff has suffered an assessable loss of earning capacity. She is only 21 years of age and is about to reach the threshold of a career in the law. The regular or intermittent experience of pain and the need for tailored and defined working restrictions along with the practical need for ergonomic furniture, and the need to make provision for regular breaks, is likely to be seen by a prospective legal employer to be negative factors in a competitive employment market even if the plaintiff continues to do well academically. Rightly or wrongly, the reality is that often, without over explanation, ablebodied candidates are preferred to those with a disability. Even subtle disability discrimination, which is proscribed by law, nevertheless does exist to some degree, but not always in a transparently apparent way. Not all prospective employers would be understanding of the plaintiff’s need for workplace restrictions or assistance. These factors must be taken into account.

32. I also take into account that future remuneration as an employed lawyer in the private sector is likely to also be significantly related, to some degree, to productivity requirements which will also involve working long hours under the pressure of meeting strict deadlines for either commercial or litigation work. That is the common experience of those who progress through the legal profession and no evidence of such phenomena is required in addition to that which has been provided by the plaintiff’s present employer for whom she works in a junior paralegal support capacity, which necessarily involves periodic performance reviews: Exhibit “B”, Tab 24, p 109.

33. I therefore conclude that the deleterious effect of the subject accident has resulted in the plaintiff being rendered less able to earn an income even though she had not yet exploited her earning capacity in a career because of her young age and uncompleted education. In light of the understandably sparse state of the evidence on the issue, I must do the best I can to make an assessment on the basis of the information that is available, especially in light of the limitations identified on the medical evidence that I have accepted: Brown v Lewis [2006] NSWCA 87, at [57].

34. I therefore consider that the buffer approach as contended on behalf of the plaintiff is the justified and preferred approach to this head of damage. A buffer award should reflect that both positive and adverse vicissitudes may operate during the plaintiff’s working life.

35. On the negative side of the ledger, the plaintiff may join the ranks of those who, whilst having secured a law degree, may find the practice of the law uncongenial, or not to their liking, and instead pursue some other endeavour which would be assisted by having such a degree. However, in that event, the physical and pain restrictions identified by Dr Couch and Dr Patrick would still have to be observed in an alternative workplace environment.

36. Also on the negative side, often the path of a woman’s legal career can be the subject of interruption on account of either full or part-time absence from work due to a period of child-rearing responsibilities. In these more modern enlightened times, with the availability of childcare arrangements, this should be seen as less of a discounting factor.

37. On the positive side, as the plaintiff has shown academic aptitude, it is probable that uninjured, she would have been well-placed at entry-level into the legal profession and thereafter, for progression in a legal or some other professional career.

38. In my view, all of those factors suggest that only ordinary or conventional vicissitudes need to be accommodated: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485, at [19].

39. Turning to the assessment, given the plaintiff’s young age, her probable pursuit of a legal career, and the physical and pain-related restrictions and distractions she faces for the foreseeable future, I consider that a buffer amount of $150,000 would be fair and reasonable compensation that would be fair to both parties. I therefore assess the plaintiff’s damages for future loss of earning capacity in the buffer amount of $150,000.

Future domestic assistance

40. On behalf of the plaintiff it was submitted that damages for future domestic assistance of a paid commercial kind should be assessed in the buffer sum of $40,000. It was submitted that the incidence for this expenditure was the need for the plaintiff to have assistance with the heavier aspects of household chores involving lifting and carrying, and in moving between accommodation. On behalf of the defendant, it was submitted that there should be no allowance for this head of claim, arguably, on account of the remoteness and the imponderable nature of such expenditure where, it was submitted, the plaintiff could do most domestic tasks. I consider the defendant’s submission to be overly simplistic and I do not accept it, as the heavier aspects of her likely future domestic tasks would be ill-advised in view of her back condition.

41. In considering the medical evidence on this topic, it is noteworthy that Dr Patrick considers the plaintiff’s low back restrictions generally support such a claim: Exhibit “B”, Tab 22, p 105.

42. I accept that the plaintiff’s ongoing back problems will impact upon the advisability of her carrying out the heavier domestic tasks of moving furniture, lifting, mattress turning, spring cleaning, and the like. The imponderable incidence of the need for such assistance, over the foreseeable future contraindicates a precise projected mathematical assessment of this head of damage.

43. Instead, I consider that the allowance for this head of damage should be by way of a buffer sum and in that regard, I consider the sum of $10,000 to be reasonable. I therefore assess the plaintiff’s damages for future paid domestic assistance in the buffer amount of $10,000.

Future treatment expenses

44. On behalf of the plaintiff a claim was made for a buffer amount of $25,000 to cover the future out-of-pocket expenses for treatment involving general practitioner consultations, medication, physiotherapy and exercise therapy. To varying degrees, those modalities of future treatment are supported by medical opinion. Additionally, the plaintiff finds that chiropractic treatment alleviates her back pain. In contrast, on behalf of the defendant, it was submitted that a buffer sum in respect of those items would be fairly compensated by allowing a buffer sum of $2000, in apparent recognition that the plaintiff would be likely to be pursuing a home exercise programme. In my assessment that position is oversimplistic where the plaintiff will have a need to monitor her condition over time in the face of possible deteriorations.

45. Whilst the incidence, frequency and likely costs for such future treatment are necessarily imponderables, given that the plaintiff’s low back problems will continue to affect her for the foreseeable future with the possibility of deterioration, and if left untreated, are likely to have a negative impact upon her ability to work and carry out commonplace everyday household tasks, and given the plaintiff’s young age, I conclude that the plaintiff should receive a more substantial buffer sum than that submitted on behalf of the defendant, recognising that the amount submitted on behalf of the plaintiff seems to be too high.

46. I consider that a sum higher than that submitted by the defendant, but lower than that submitted on the plaintiff’s behalf should be awarded. I consider that compensation for future treatment in the amount of $7500 would be fair to both parties. I therefore assess the plaintiff’s damages for future treatment expenses in the amount of $7500.

Past out-of-pocket expenses

47. There is no dispute that the plaintiff has incurred out-of-pocket expenses for treatment amounting to $5,027.20. The area of non-agreement concerns the plaintiff’s expenses for attending for chiropractic treatment, which she finds alleviates her back pain. The basis of that disagreement is that the plaintiff had been attending for chiropractic treatment before the subject accident and she has continued to do so thereafter.

48. In that regard, I accept the evidence of Mr Ahlquist to the effect that the area for treatment, principally changed to the need for low back treatment and this is accident-related: Exhibit “B”, Tab 13, p 48. As the chiropractic treatment serves to alleviate the plaintiff’s back pain, it seems reasonable to allow for the recoverability of that expense. I therefore assess the plaintiff’s damages for past out-of-pocket expenses in the total sum of $5027.20.

Summary of damages assessment

49. My assessment of the plaintiff’s damages is summarised as follows:

(a) Future loss of earning capacity	$150,000
(b) Future domestic assistance	$10,000
(c) Future treatment expenses	$7,500
(d) Past out-of-pocket expenses	$5,027.20
Total	$172,527.20

Disposition

50. The plaintiff has established her entitlement to a damages award for $172,527.20 and she should have a judgment for that amount.

Costs

51. As the plaintiff has succeeded in obtaining a judgment in her favour, it follows that she should have an order that the defendant pay her costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

52. I make the following orders:

1. Verdict and judgment for the plaintiff against the defendant in the sum of $172,527.20;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered

3. The Registry is to return the exhibits to the parties after the expiry of 28 days;

4. Liberty to apply on 7 days notice if further or other orders are required.

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Decision last updated: 06 May 2020