Emma Donnellan v Jessica Adeline Hartmann
[2013] ACTSC 10
EMMA DONNELLAN v JESSICA ADELINE HARTMANN
[2013] ACTSC 10 (21 January 2013)
DAMAGES – personal injury – motor vehicle collision – plaintiff’s vehicle struck from behind – whiplash injury to neck – effect on earning capacity – no issue of principle
No. SC 192 of 2009
Judge: Master Harper
Supreme Court of the ACT
Date: 21 January 2013
IN THE SUPREME COURT OF THE )
) No. SC 192 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: EMMA DONNELLAN
Plaintiff
AND:JESSICA ADELINE HARTMANN
Defendant
ORDER
Judge: Master Harper
Date: 21 January 2013
Place: Canberra
THE COURT ORDERS THAT:
judgment be entered for the plaintiff in the sum of $154,703.16.
The plaintiff claims damages for personal injury arising out of a motor vehicle collision on 9 July 2007. The plaintiff had been travelling south-west in Northbourne Avenue, Watson, and was stationary in a line of traffic at the junction of Phillip Avenue. The defendant’s vehicle collided with the rear of the vehicle immediately behind the plaintiff’s car, pushing both vehicles forward so that the plaintiff collided with the car in front of her. It is conceded that the collision was entirely due to the negligence of the defendant. The evidence is that the vehicle being driven by the plaintiff, which belonged to her mother, was damaged beyond repair and was not drivable. Although the vehicle was some fifteen years old, I am satisfied that the impact was a heavy one.
The plaintiff
The plaintiff was born in 1976 and is almost thirty-seven years old. She was thirty-one at the time of the accident.
She has lived in Canberra since her family moved here when she was four. She attended various schools in Canberra, completing Year 12 at a secondary college at the age of twenty.
When she was fifteen she injured her neck when she dived into a swimming pool and struck her head. She spent a week in hospital and thereafter three weeks in a neck brace but made a full recovery at least so far as any symptoms were concerned, although she was advised to avoid contact sports and activities which might carry a risk of neck injury in the future.
An x-ray was taken of the plaintiff’s cervical spine in February 1999, the day after her swimming-pool injury. This showed reduction in height of the C5-6 disc and hypertrophy of the transverse processes of C5 and C6, with those on the right side being congenitally fused. The radiologist remarked that these changes were probably of no significance, but that there was a kyphosis centred on the C4-5 disc which probably related to the diving injury.
She was diagnosed with depression at age sixteen, relevant events including the family home burning down and her parents separating and later divorcing. Her father stayed in Canberra, while her mother moved to Batemans Bay and the plaintiff lived thereafter in shared accommodation from age nineteen. She gained employment at age twenty and worked in a number of unskilled jobs, including as a waitress, receptionist and administrative office clerk.
In May 2001 she dropped a lighted cigarette while driving, lost control of the car and struck a tree, injuring her left knee. She was entitled to workers’ compensation, and redeemed her claim some two years after the accident for $60,000.00. At about the same time she underwent arthroscopic surgery to the knee. Between 2003 and 2007 she had a number of jobs, mostly doing office work. She seems to have held these jobs for varying periods between a month and fifteen months.
The 2007 car accident
The plaintiff’s evidence was that she was able to get out of the car after the impact. Ambulance officers attended the scene and recommended that she go to hospital but she declined. She thought it preferable, she said, to go home and rest rather than perhaps wait for some hours in casualty for treatment. Her then partner Matthew drove to the scene and took her home. She saw her general practitioner the next day. Her recollection was that she had a very stiff neck, a headache and a seatbelt bruise across her chest.
This collision, like the earlier one, occurred in circumstances entitling the plaintiff to workers’ compensation. She was sent by her employer to a general practitioner at Kingston, Dr McMiken. Copies of Dr McMiken’s records were produced to the Court pursuant to a subpoena issued by the solicitors for the defendant, but neither party tendered the records or called the doctor to give evidence, and there was no report by him in evidence. He saw the plaintiff a few times, and referred her to a physiotherapist, Mr Wisdom, whose reports are in evidence.
Counsel for the plaintiff, with reference to a chronology apparently based on records produced by the employer, led from her that she returned to work on 23 July 2007, two weeks after the accident. She resumed on reduced hours, working four hours a day five days a week, which increased to six hours a day on 10 August and to full-time hours (eight a day) during September 2007. The plaintiff’s evidence was that by October 2007 she was managing but was in pain. She asked her superiors for a move from the switchboard to the parts ordering area where she would be able to get up and walk around from time to time. At about that time one of the other switchboard operators resigned and the plaintiff felt that she was being asked to do both jobs. The request was granted but not until February 2008.
In March 2008 she resigned to start a better-paid job with a food and hospitality company at Fyshwick. Her job included taking and filling orders, most of which came in by telephone. She stayed with that company for eleven months, working full-time although her recollection was that she took off “a few days here and there” because of pain and, at least once, because of influenza. She took no more than two days off at any time.
Her evidence was that by March 2009 she was in so much pain in her neck that she was no longer able to perform her duties. She found another job, and left to take it up. The job was as a receptionist at a hairdressing salon.
This job also proved to be unsatisfactory. The plaintiff was required to stand at a bench and undertake bookkeeping. A request to sit at a desk to do this was refused. She found that the posture required, with neck flexed and looking down, increased her neck pain and headaches. She had a similar problem with sweeping and mopping which was required of her and which she had not expected. After three months she left the job. Her oral evidence was that this was because of her neck pain and headaches.
When she left, she had already secured a position at the Coles supermarket at Gungahlin, where she commenced in June 2009. She was initially allocated to the delicatessen area where she worked thirty hours a week. It was led from her, without any detail, that an incident occurred during this work when she suffered an aggravation to her back pain. This was clearly led by her counsel on the basis of a note in her general practitioner’s records dated 6 August 2009. In view of the fact that the plaintiff had not thus far given any evidence of any back pain associated with the car accident, I should quote the record in full:
Viral illness
Smoking not coping well
Working at Coles checkout – started in Deli but hurt her back – had MRI via lawyers due to MVA but reassured nil in MRI to be concerned about in the short term. Needs long term prevention strength and wellbeing.
Needs to move on from MVA
Discussed job options – seek assistance from Centrelink re opportunities
Viral URTI
Chesty fever claimed yesterday
Nil today
Mild signs
Back to work tomorrow
The record shows that the Doctor gave the plaintiff a medical certificate for time off work and a prescription for Augmentin, an antibiotic.
The plaintiff did not elaborate on how she hurt her back or which part of her back was involved.
Her evidence was that she was moved at her own request from the delicatessen to checkout duties by her supervisors.
She was asked in chief about events in April 2008 when her mother was in the course of moving from Batemans Bay to Wilsons Promontory in Victoria. She went to Batemans Bay to help her mother with the move. She said that she “moved . . . a few things into the car” being “blankets, little boxes of trinkets, nothing too substantial”. She accompanied her mother on the drive to Victoria.
The trigger for this evidence was an entry by the general practitioner dated 22 April 2008 as follows:
Acute back spasm since Sat pm
Very still
ROM reduced severely
Had been lifting packing boxes for the last week helping mother move
Power tone normal balance okay very restricted ROM
Bloods to rules out psoriasis
Not well controlled with MTX at 10mg at present so if NSAID RAIS Sl okay
Five days Voltaren Sat pm
Her counsel led from the plaintiff that she had seen her general practitioner on 22 April 2008 in respect of acute back pain. She agreed that the pain was in a similar location to the back pain she had suffered following her car accident and that it was of a similar nature.
She was asked whether the doctor’s note as to lifting packing boxes for the last week, helping her mother to move had been accurate. She said that it was not. She said that the move took a day but that she stayed with her mother in Victoria for the week. She had only a day at Batemans Bay before they set off.
On her move from the delicatessen to the checkout at Coles, the plaintiff’s hours were reduced from thirty to twenty per week. She worked five shifts of four hours week, on a four-week rotating roster. She was required to do her work in a standing position. She managed with the use of painkillers. Her evidence was that she could not have worked for more than the twenty hours per week. In her words, she felt that the pain would have been too much to bear. She had a level of pain even on starting her work at Coles at the beginning of a shift, but there was a noticeable increase in the pain by the end of the shift. This remained the position by the time the plaintiff was giving her evidence.
She changed general practitioners in October 2009. This was partly because of the location of the practices, and partly also because she did not feel that her earlier general practitioner was sympathetic to her situation.
The plaintiff’s evidence was given in July 2010. Regrettably it was necessary to adjourn the hearing after two days, and it was not resumed for more than a year, in August 2011, when the plaintiff gave further evidence to bring the story up to date.
When she gave her evidence in July 2010, she and her partner Matthew had bought a house at Dunlop, with a small deposit and a large bank mortgage. Matthew was also working for the same employer, as a parts fitter.
The plaintiff’s new general practitioner, Dr Dorothy Monk, referred her to Dr Cassar, a consultant physician specialising in rehabilitation and pain management. The plaintiff saw Dr Cassar in November 2009. Under his care she received some laser and acupuncture therapy, which she said eased her pain for a short time but was of only slight benefit. The treatment by Dr Cassar was not paid for by the workers’ compensation insurer. Her evidence was that she did not continue with it because she could not afford it.
Dr Cassar referred her to a psychologist, but she did not keep that appointment. Her evidence was that she could not afford it.
Although the plaintiff saw a number of specialists for the purposes of the case, some arranged by her own solicitors and some by the solicitors for the defendant, she had no other specialist treatment, and no prescription medication apart from Cipramil, an antidepressant which she had been on for many years before the car accident and which she continues.
Her evidence was that she took non-prescription painkillers including Panadeine and Dolased as she needed to, generally taking between four and eight tablets a day.
In July 2010, shortly before she gave evidence, she left her job at Coles. She said that the reason was that she was not coping with lifting items every shift, and was suffering pain in the neck and head. She had started a new job, with a firm called Money for Gold, in a kiosk in an arcade at Gungahlin. The work involved weighing and testing items of gold jewellery offered for sale by members of the public, applying a formula and making offers to purchase the items. She was working seventeen hours per week and said that she did not think that she could work for much longer than that because she would be in too much pain by the end of her shift.
Her evidence was that her pre-existing depression had been exacerbated by the car accident. She did not cope as well with stressful situations and was more likely to become tearful. On occasions she had felt anxious while driving, sometimes in peak hour traffic, and on any occasions when she had found it necessary to drive on the Tuggeranong Parkway.
She said that she used to dance socially at clubs and pubs before the car accident but had not continued to do so since because she could not move as freely. She no longer attended rock concerts.
She said that she suffered from neck pain every day. The pain varied in intensity, and was usually worse at the end of a day, depending on activities. It was generally much more painful after a work shift, and she had to lie down to rest after work for some time. She said that she would like to be able to work full time, and needed the money, but was unable to do so because of her pain.
She said that she also suffered from back pain, and was aware of it every day but that it was not as intense as the neck pain.
Her pain meant that she was unable to contribute to household tasks to the extent she had before the car accident. These included gardening, cleaning and shopping.
A somewhat different picture of the plaintiff emerged at the commencement of her cross-examination by senior counsel for the defendant. She conceded that she had had a long involvement with illicit drugs. She had taken acid, ecstasy and speed. At one time she had smoked as many as fifty cones of marijuana a day, and at the time she was giving evidence she conceded that she was continuing to smoke ten cones a day. She had grown her own marijuana, in pots in her garden, and had in addition bought marijuana from friends, paying about $50 a week. She acknowledged the inconsistency between this expenditure and her inability to afford treatment by Dr Cassar, or an appointment with the psychologist to whom he had referred her. She said that she had not had the funds at the time. She had been unable to give up marijuana because she was “hooked” on it and had been for a lengthy period. She denied that her marijuana use had been a factor in the large number of jobs she had held over the years.
She had not, she said, kept receipts for her painkilling medication, although she thought that she might have some receipts at home. She agreed that she had had no prescribed medication for the injuries she had suffered in the motor accident.
She remained a smoker, smoking about twenty cigarettes a day, at a cost of about $10 a day.
She agreed that during her late teenage years she had been a heavy binge drinker, and that this and her drug use might have contributed to the length of time it took her to complete her Year 12 certificate.
She was asked whether she had told the doctors she had seen for the purposes of the case about her drug use. Her answer was that she “could have omitted it from some doctors”. She agreed that she had told Dr Bruce Stevens, a psychologist qualified by her solicitors, that she smoked marijuana once or twice a week on a social basis, and that this had been inaccurate. She said that the truth about her marijuana use embarrassed her and she was not proud of it. Similarly she agreed that she had told Dr Sydney Smith, a psychiatrist qualified by the solicitors for the defendant, that she smoked five or six cones of marijuana, and only at weekends. She knew that this had been untrue but had again been embarrassed about the extent of her drug use.
The plaintiff’s evidence was that in her work at Coles, she was required sometimes to lift quite heavy items and that she would be slowing down by the end of her shift, with some restriction in her ability to lift parcels. She was then shown thirty-one minutes of DVD footage taken by an investigator during May 2010, about two months before she gave her evidence, which showed her working at the checkout. For most of the footage the plaintiff was clearly visible although she was from time to time obscured by passing customers or staff. The video seemed to have been taken from a fixed position, perhaps about waist high to the plaintiff and showing her from her right side as she lifted items from her left, scanned them and placed them in plastic bags on her right, attending to taking payment from each customer once their groceries had been taken through this process. Footage commenced at 3.37 pm on the day, a Saturday. Senior counsel for the defendant put that this must have been at the end of a shift from 11.00 am to 4.00 pm, whereas counsel for the plaintiff submitted that there was no evidence to that effect and therefore no basis for any inference as to whether the half-hour period was early or late in a shift. The footage showed the plaintiff generally smiling and engaging customers in conversation. I have reviewed the footage in the course of preparing these reasons. There is nothing obvious to me to suggest any pain, restriction of movement or other disability from the plaintiff’s presentation. In the absence of any other evidence I cannot be sure that the footage was taken at the end of a five-hour shift, although the plaintiff conceded that this could have been the case. Although it was only some two months before she gave her evidence, I would not expect the plaintiff to have had any specific recollection of the afternoon in question.
The hearing resumed on 8 August 2011. Because of the time which had elapsed since the plaintiff gave her evidence, I permitted her counsel to recall her to bring the position up to date. By then the plaintiff was pregnant, and due to give birth about five weeks later. Her partner Matthew was the father of the child but the relationship had come to an end and they had separated soon after she found she was pregnant.
She had given up her job at Money for Gold in September 2010, and had been working since as a receptionist at a group medical practice, working between fifteen and twenty-five hours a week. She sometimes worked a five-day week, and sometimes worked on weekends but generally worked five to six hours a day four days a week. Her work involved answering the telephone, making bookings for patients, and billing patients as they left the surgery. Some aspects of the work, particularly filing, caused her pain in the neck and back. Before her pregnancy it had been the neck but in the latter part of the pregnancy the pain had been in the lower back. She did not feel that she would be capable of performing such work full time.
After separating from her partner, she moved in with her father for about six months, but had, a month before the hearing resumed, moved to live with her sister and brother-in-law, also in the suburbs of Canberra, and she intended to continue that arrangement for the foreseeable future.
She said that she had continued to see Dr Monk on occasions but had also seen two of the doctors at the centre where she was working about her pregnancy and general ailments. She was asked whether she had seen a doctor about her neck or back. She said that she had been receiving physiotherapy at Canberra Hospital once a fortnight, in the form of massage and stretching exercises. She had found these to be of little benefit.
She said that she had given up cannabis when she found she was pregnant. This was confirmed by urine tests she had undertaken in May and July 2011, presumably arranged on the recommendation of her counsel or solicitors. The July report, however, was positive for morphine and codeine. The codeine was probably associated with the taking of Panadeine. There was no explanation for the presence of morphine but the plaintiff was not cross-examined about this and no evidence was led for the defendant about it. In the circumstances I do not draw any adverse inference against the plaintiff from the presence of morphine in the second test result.
The plaintiff’s tax returns up to 2008-2009 were in evidence. She had not lodged returns for 2009-2010 or 2010-2011. She had no real explanation for the earlier of those returns, saying “I think it might have just slipped my mind.” I do not infer anything sinister from this but it is an illustration that the plaintiff is not a particularly reliable record-keeper.
The plaintiff’s evidence was that there was never a day when she was entirely free of pain. The intensity of her pain varied from day to day, according to activity, for example working a long shift with a lot of bending. She found that moving around and stretching helped a little, as did lying down to rest. She was not specific in this part of her evidence as to the location of the pain.
She said that from time to time she was offered an additional shift at short notice, for example when an employee called in sick, and that once or twice a month she agreed to work, whereas about once or twice a month she would decline. She said that if it were not for the injuries she had sustained in the car accident, she would want to work full time in the position at the medical centre.
No lay oral evidence was called for the plaintiff or the defendant.
The medical evidence
Dr Tanya Robertson was the plaintiff’s general practitioner from 2001 until 2009. She prescribed Cipramil, an antidepressant, regularly for the whole of the period. Some flavour of the plaintiff’s life during the years prior to the car accident can be obtained from her notes. For example, in June 2002 a note records that the plaintiff was seeing a Victims of Crime counsellor, and had Centrelink issues related to poverty and a perception of a hopeless outlook. In August 2002 there was a note that the plaintiff had been served with an eviction notice in relation to her government flat. In September 2002 she was said to be psychologically unwell and not feeling able to work for the dole, with a dysfunctional approach. In March 2003 she injured her shoulder at home. In May 2003 she complained of pain in the lower to mid back after lifting heavy wet clothes from the washing machine, with tenderness over the lumbar region. A pregnancy was terminated in February 2004. In the same month Dr Robertson advised the plaintiff “to move on from injury and make a new start”. This was a reference to the motor vehicle accident in 2001. The plaintiff saw Dr Robertson from time to time over the years for treatment of psoriasis, at times severe.
In February 2006 the plaintiff saw Dr Robertson who noted that on the previous weekend she had broken up with her boyfriend of six years. There had been alcohol issues with the boyfriend. The plaintiff had spent all of her compensation money (the 2004 settlement for her knee injury).
In December 2006 the plaintiff was complaining of depression following loss of a job and the death of a pet cat. In March 2007 she had a new boyfriend (presumably Matthew), had moved in with her boyfriend and her sister, and was working full time in office administration.
On the date of the car accident, 10 July 2007, a note was recorded by another doctor in the same practice as Dr Robertson (Dr Stephen Ahern). He noted a motor vehicle accident on the way from work where she was hit from behind twice and had hit the car in front. The symptoms recorded were “sore neck, head, back, hand, chest, not knocked out, neck reduced movement, spasm of muscles”.
The plaintiff was seen again at the practice on 12 October, by Dr Robertson, who did not make any notes about any problems arising from the car accident. She saw another doctor, Dr Veronica Dronen, on 30 October 2007. The record was that the plaintiff was stressed and starting to feel burnt out since another switchboard operator had resigned suddenly three weeks ago. The plaintiff was having to do two jobs, fifty hours a week, without assigned toilet or lunch breaks. She was not sleeping much. She had been to the human resources people at her workplace the day before. They had told her to “deal with it”. She had been unable to go to work on the day she saw Dr Dronen because she was tired emotionally and mentally.
She next went to the practice on 11 February 2008 when she saw Dr Robertson about unrelated matters. Dr Robertson noted “work okay – moving off switchboard soon to parts ordering”. Again there was no mention of any injuries or disabilities related to the car accident.
The plaintiff next attended the practice on 22 February 2008. This attendance was for diarrhoea and other problems. Again there was no mention of the neck or back.
On 22 April 2008 the plaintiff attended the practice again. The note of that attendance is set out at paragraph [19] above.
She saw Dr Robertson again on 4 June 2008. The entry for that date mentions a “letter from lawyer – neck giving problems – consider x-ray”. Dr Robertson advised that an x-ray would be of no benefit because there was full range of movement of the cervical spine. It was unlikely that any further treatment would be of benefit.
The plaintiff saw Dr Robertson again on 3 July and 15 July 2008. Again there was no mention at either of those consultations of any neck or back problems. There were further attendances at the practice on 14 August and 30 October 2008, and again there were no mentions of neck or back symptoms.
The plaintiff next saw Dr Robertson on 11 February 2009. The note was “went off medication and back on for two weeks so recheck levels in four weeks – joint flaring – hip back and wrists”. This entry appears related to the plaintiff’s psoriasis problems rather than anything to do with the car accident.
There were further entries on 24 February and 26 February 2009, and 1 May and 21 May 2009, again with no mention or neck or back symptoms. The entry of 21 May 2009 referred to problems at work, at the hairdressing salon. I set out the note:
Not well, not recovered from last consultation, did not take Ceclor.
Quite emotional. Not coping at work.
Working for Just Cuts past two months. Started as receptionist at $15 per hour and now asked to do bookkeeping as well.
Making lots of mistakes and getting in trouble for same.
Starting to look at other job prospects, stressed, smoking more.
Afebrile
Chest clear.
Take Ceclor
Off for a few days.
Consider discussing issues at work with manager
The record included nothing about any neck or back symptoms referable to the car accident.
The plaintiff saw Dr Robertson again on 6 August 2009. The note for that date is set out at para [14] above. That seems to be the last time she saw Dr Robertson. She frankly conceded that one of the reasons for leaving Dr Robertson was that she saw her as unsympathetic to her problems resulting from the car accident.
Dr Robertson, perhaps unusually, was called by senior counsel for the defendant to give oral evidence. Dr Robertson was asked about the entry of 22 April 2008, which related to the plaintiff helping her mother move to Victoria. She was clear that the plaintiff had told her that she had been lifting packing boxes in the course of this task, and that this had caused acute back spasm.
Dr Robertson also said that if the plaintiff had made any complaint to her of neck or back pain following the motor vehicle accident of July 2007 during the period leading up to that complaint of back pain in April 2008, she would have made a note of it.
Dr Robertson confirmed that the attendance on the day after the car accident had been upon Dr Ahern and not herself. She would not necessarily have looked back each time she saw the plaintiff through the entire record and it was possible that when she saw the plaintiff on later occasions she might not have looked at or been aware of the entry on 10 July 2007. Hence she might not have checked with the plaintiff as to any progress following the injuries in the car accident. On the other hand, if the plaintiff had mentioned anything, she would have recorded it.
I have previously mentioned Dr Cassar’s involvement. He wrote to Dr Monk in January 2010. He said that the plaintiff had proved to be “poorly compliant to necessary assessment, particularly psychological”. She had major psychosocial issues relating to her disabilities emanating from the car accident. She had benefited from deep tissue laser and needle acupuncture therapy to the cervical and lumbar areas but significant pain remained. There was restriction of movement in the neck and the lumbar spine. Dr Cassar concluded “I am sorry that this has been an abject failure and it would appear that if Emma resists necessary cognitive behaviour therapy, issues related to her injuries will persist in incapacitating her”.
The plaintiff’s solicitors referred her to a number of medical and health specialists for reports to assist in the presentation of her case. She saw Dr Brooder, neurologist, in April 2008 and November 2009. He prepared lengthy and detailed reports which are of considerable assistance, but did not give oral evidence. He relied largely on the history he was given by the plaintiff but had the benefit of some radiological reports. His opinion is thus heavily influenced by his acceptance of the plaintiff’s complaints. When he first saw her, less than a year after the car accident, he accepted that she had virtually daily intermittent and variable mild aching pain in the neck, extending into the shoulder girdle, with episodes of more severe pain about twice a month. He accepted that she also suffered from intermittent headaches. He accepted a history that she had been off work after the accident for several weeks, whereas the reality is that she was off work for only two weeks.
His opinion in May 2008 was that the plaintiff had suffered a musculo-ligamentous strain injury involving the supporting structures of the cervical spine, and particularly the ligamentous support of the cervical facet joints extending into the cervico-occipital junction, associated with secondary muscle spasm involving the paracervical muscles. He thought it possible that she had sustained a cervical disc injury or aggravation to early degenerative changes involving the cervical spine. He regarded her headaches as consistent with this diagnosis. He thought that she would continue to improve over time but that she would remain limited in her ability to undertake activities involving prolonged posturing of the head and neck, prolonged sitting, and heavy or repetitive lifting. He was not persuaded that the injuries were significantly affecting her employability.
It is helpful that Dr Brooder first saw the plaintiff shortly before the episode where she helped her mother move to Victoria, an incident which he seems not to have been told about at the time of his second report.
In his second report, late in 2009, he recorded a complaint of low back pain, and a complaint of post-traumatic stress disorder and depression, with her disabilities limiting the plaintiff to part-time work and restricting her to light household activities. He recorded a marked aggravation in low back pain resulting from her treatment by Dr Cassar with laser and acupuncture.
Based on the history he was given, Dr Brooder accepted that the plaintiff’s reduced working hours were appropriate and caused by the car accident. He also took the view that a mild focal intervertebral disc protrusion at C6-7, identified by Dr David Ho, radiologist, reporting on an MRI of the cervical spine in July 2009, was probably caused by the car accident.
Dr WGD Patrick, a Sydney-based surgeon, saw the plaintiff at the request of her solicitors in June 2009. He formed the view that the plaintiff was a poor historian but that this was not intentional. The plaintiff told him that she was off work following the car accident for about a month, and he accepted this.
She complained to him of neck pain and stiffness and of frequent headaches associated with the neck pain. She told him that she had also developed low back discomfort after the accident. She had difficulties sitting for long periods and difficulties with heavy lifting and carrying. She told him that she was taking two to eight Panadeine tablets a day, eight being the maximum allowed dosage.
Dr Patrick regarded the plaintiff as genuine. His opinion was that she had suffered a significant hyperextension-flexion injury to the cervical spine with probable facet joint injury and possible disc injury, but without any definite evidence of radiculopathy. He formed the view that she had probably also injured her thoracic and lumbar facet joints. He accepted her as a well-motivated employee, who would require some restrictions in her employment by reason of her injuries. She should, he said, avoid physical work which involved heavy lifting or carrying, and any activities which might result in significant jolting or jarring to the spine. Because of this she had some permanent partial incapacity for work.
Dr Patrick did not give oral evidence.
Also during June 2009, the plaintiff’s solicitors sent her to a psychologist, Associate Professor Bruce Stevens, in Canberra, for assessment and report. After extensive questioning and testing, he expressed the view that the plaintiff suffered from chronic adjustment disorder with anxiety symptoms; recurrent major depressive disorder, in partial remission and managed by anti-depressant medication; and a pain disorder associated with both psychological factors and general medical condition with mild symptoms. The depressive disorder predated the car accident. The anxiety symptoms were in his opinion related to the car accident, which had also caused the pain disorder.
The history which the plaintiff gave to Professor Stevens included an admission of regular marijuana use in the past, and dabbling in other drugs as well as heavy binge drinking during her late teens and early twenties. She told him that she was at the time he saw her smoking marijuana once or twice a week on a social basis.
She complained to him that she had experienced panic attacks four or five times since the accident while driving, in particular on the Tuggeranong Parkway which she now avoided.
Professor Stevens was not satisfied that the plaintiff satisfied the criteria for post-traumatic stress disorder. He was not called to give oral evidence.
In April 2010 the plaintiff’s solicitors sent her to see Dr Alan Searle, an orthopaedic surgeon of many years experience. The history he obtained included that the plaintiff had had “a couple of months off” work after the car accident, before resuming part-time on light duties. By the time she saw Dr Searle she was working at Coles on the checkout, which aggravated her pain. She told him that she was only just coping with this job.
She told Dr Searle that in the car accident she suffered a neck injury but did not suffer any other injury which was still causing problems. She told him about driving with her mother from Batemans Bay to Victoria, and said that her neck pain became very severe following that trip. She did not mention low back pain.
She also told Dr Searle that she had been working for her employer for six months or more before the car accident. The employment records, which I accept, demonstrate that she had been working there for less than three months. This may be no more than an example of her unreliability as a historian, but I find it hard to avoid the conclusion that with Dr Searle and other doctors from time to time, the plaintiff took the opportunity to exaggerate the length of time she was unable to return to work following the car accident.
Dr Searle had the benefit of the x-ray report of February 1991 and the MRI report of July 2009. He referred to a suggestion that in August 2009 the plaintiff had reported hurting her back while working in the delicatessen at Coles. He noted that she did not mention this to him, and he presumed that she had recovered from any such injury.
His opinion was that in the car accident the plaintiff had suffered cervical ligament strains, and had aggravated pre-existing but asymptomatic cervical spondylosis. Her congenital block vertebra might have slightly predisposed her to injury at the adjoining levels.
He thought that the continuing symptoms from the injury were permanent and persistent, causing a moderately severe degree of disability in relation to the function of the cervical spine. The plaintiff was permanently unfit for activities requiring a flexed posture of the neck, repetitive movements of the head and neck, and travel for moderate to long distances.
He thought that there would probably be no change in her symptoms for some time but that they would gradually increase later in life as her degenerative changes progressed. This would occur more rapidly than if the car accident had not occurred. The accident had aggravated and accelerated those changes. A short course of gentle cervical traction might provide temporary relief of her symptoms. She would need domestic assistance for heavier work, for an average of about two hours a week. The increasing severity of her symptoms would render her unfit for employment by the age of fifty to fifty-five.
Dr Searle was not called to give oral evidence.
Counsel for the plaintiff tendered three reports by Mr Wisdom, the physiotherapist who treated the plaintiff during the weeks immediately following the collision. He first saw the plaintiff on 17 July 2007, a week after the accident. She presented with neck movements restricted to thirty percent of normal and complaints of occipital headaches. Mr Wisdom agreed with Dr McMiken that she was suffering from multi-level facet joint irritation and associated muscle spasm. He treated her with ultrasound, heat, massage and exercises. He thought she would be unfit for work for another week, after which she could resume on reduced hours.
Mr Wisdom saw the plaintiff again on 30 July. She had resumed work, four hours a day. Her cervical spine range of movement had improved significantly, and was about seventy-five percent of normal in all directions. She had some tenderness in the neck.
His next report was dated 23 September 2007. He had seen her that day, not having seen her for two weeks. She continued to complain of constant headaches. Range of movement was good, with slight restriction of cervical extension. The plaintiff felt that she could cope with full-time work provided that she could have short breaks from time to time from static postures.
The plaintiff was examined on behalf of the defendant by Dr Nicholas Burke, occupational physician; Associate Professor Peter Youssef, rheumatologist; and Dr J Sydney Smith, psychiatrist.
Dr Burke saw the plaintiff in December 2008 at the request of the defendant’s insurer, prior to the commencement of these proceedings. He expressed the view that the plaintiff had suffered a musculo-ligamentous injury to the cervicothoracic spine, from which she had made what he described as a sufficient recovery. He recorded some intermittent symptoms affecting the neck but nothing of significance. His opinion was that the injuries had not impaired the plaintiff’s earning capacity for the future. She had probably required assistance with heavier household chores for about three weeks, but thereafter had not in his opinion needed any assistance and would not in the future.
Dr Burke saw the plaintiff again in May 2010, shortly before she gave her initial evidence. She complained on this occasion of pain in the back as well as the neck, although she had not mentioned back pain during the 2008 assessment. She was by then employed at the checkout at Coles, working about twenty hours a week. Her main concern was her neck pain, aggravated by prolonged sitting and by looking up or down for a long period. She also complained of headaches. Her back pain was in the lower lumbar region and was present most of the time. She told Dr Burke that there were a number of activities she was unable to manage, including major shopping and heavy cleaning.
At the time of this second appointment, Dr Burke had the benefit of the radiological reports and of reports by most of the other specialists who had seen the plaintiff.
Dr Burke agreed that it was probable that the motor accident had caused some aggravation of pre-existing degenerative changes in the cervical spine. He expressed the opinion that the plaintiff’s lumbar problems had not arisen as a result of the motor vehicle accident. This expression of opinion was the subject of objection by counsel for the plaintiff on the basis that Dr Burke did not expose his reasoning process for arriving at the conclusion. I postponed dealing with that objection, and must now do so. It is correct that Dr Burke does not explain in his second report how he comes to the opinion about the lumbar problems. Medical specialists who are qualified to provide reports in personal injury actions cannot be expected to provide reasons for every aspect of their opinions, certainly not at the same level of detail as is expected of judicial officers in reasons for decisions. The expression of opinion by Dr Burke about the lumbar problems is particularly bare of explanation. However, I take account of the fact that the plaintiff did not complain of any low back symptoms at the time he first saw her in December 2008, either at that time or by way of earlier history. It was therefore reasonable for Dr Burke to regard the low back pain as having come on at some time between December 2008 and May 2010, long after the car accident. That, it seems to me, is enough to form the basis of the expression of his opinion, and I allow that sentence of his report as part of his evidence.
In his second report, Dr Burke remained of the view that there was no indication for any further treatment, no requirement for domestic assistance, and no effect on the plaintiff’s working capacity or ability to lead a normal life.
Dr Burke had been provided with a copy of Dr Searle’s report but did not deal specifically in his report with the expressions of opinion made by Dr Searle. I must take it that Dr Burke disagreed with Dr Searle generally about the opinions expressed by the latter.
Associate Professor Youssef saw the plaintiff in April 2010. He took a detailed history and provided a lengthy report (twenty-three pages). When he saw the plaintiff she was working at the Coles checkout twenty hours a week. She told him that she was not coping with the work and was looking for another job.
She gave a history of immediate pain and stiffness in the neck accompanied by headaches, and of mild bruising of the chest caused by her seatbelt. She said that she had been off work for a month before commencing a graduated return. She frankly told Professor Youssef that it was about a year after the car accident before she developed lower back pain. At about that time her neck pain, she said, became more severe. She told him of her various changes of job since the accident but did not mention anything about drug use.
Professor Youssef was provided with a copy of the clinical notes of Dr McMiken. As I have mentioned previously, these were not tendered in evidence although they were produced to the court on subpoena. It is unfortunate that I am unable to see these records for myself, but I must do the best I can on the limited material available. Professor Youssef records that Dr McMiken’s notes of 13 July 2007 document that the plaintiff injured her neck in the accident, and that Dr McMiken recommended at that time that the plaintiff have a return-to-work trial. I would have expected that if the plaintiff had complained at that time of any low back injury she would have told Dr McMiken about it. What I must take to have been a forensic decision by those advising the plaintiff not to call Dr McMiken or to tender his records can only reinforce this conclusion.
Professor Youssef correctly records in his report that the plaintiff was off work for a couple of weeks and that she made a graduated return to work over the next couple of months. She was then able to work full-time for many months. He records that the plaintiff’s major complaints to her general practitioner, Dr Robertson, and to Dr Burke and Dr Brooder during 2008, were of neck and occipital pain. He further notes that in September 2007 the physiotherapist Mr Wisdom found, after some treatment, only a slight restriction in cervical movement. On Professor Youssef’s examination, the plaintiff displayed a full range of movement in the cervical spine in all directions.
Professor Youssef also notes that the plaintiff’s complaints of lower back pain were not made until after the move to Melbourne with her mother in April 2008. Any low back pain caused by the motor accident would have been expected to settle within two to four weeks.
Professor Youssef was unable to explain the plaintiff’s symptoms when he saw her on the basis of the car accident. He was definite that the low back pain was not caused by that accident. Some of the plaintiff’s symptoms might in his view have been due to an underlying spondyloarthritis. Even if this was so, the symptoms were out of proportion to any such underlying disorder. His opinion was that the plaintiff was capable of returning to work full-time without limitation, and that she did not require any domestic assistance.
He accepted that she had suffered a musculo-ligamentous strain of the cervical region, with a transient exacerbation of the underlying degenerative disease at C6-7. By the time he saw her, in his opinion, the strain and exacerbation had resolved. He noted the plaintiff’s complaint that her neck pain had become worse at the same time that she began to complain of low back symptoms. The worsening could not be attributed to the accident and might have been partly caused by the spondyloarthritis. The mild focal intervertebral disc protrusion seen radiologically was a very minor finding and was not causing any symptoms. It was no more than an incidental finding. In summary, Professor Youssef’s opinion was that the plaintiff, when he saw her, did not suffer from any residual injury resulting from the car accident. She was fit for full-time work, and it was his recommendation that she engage in such work and maintain general activities. She did not need any domestic assistance. There was no evidence of impairment in the cervical spine related to the accident or otherwise. There was some impairment in the lumbar spine but it was not due to the car accident.
Dr Smith first saw the plaintiff for an hour in September 2009. She told him that she had been a binge drinker as a teenager and had experimented with LSD, but that her marijuana use was limited to five or six cones at weekends (this was, I find, a significant and deliberate understatement of the actuality). The plaintiff’s complaints of panic attacks were limited to driving on the Tuggeranong Parkway, which she could avoid reasonably easily.
Dr Smith described the family history as an extraordinary one of emotional disorder. He noted that both her parents and her sister had suffered from a major depressive disorder. The plaintiff was genetically predisposed to such a disorder, and to substance abuse. The plaintiff was frank with Dr Smith about her earlier experimentation with drugs and her use of marijuana. Dr Smith did not feel that the car accident had caused any relapse of the pre-existing major depressive disorder. At the most, he thought that she was suffering a very mild specific phobia to travel on the Tuggeranong Parkway which should respond to a few sessions of treatment with a psychologist aimed at desensitising her to the fear. She did not need psychiatric treatment. Dr Smith did not believe that she fulfilled the criteria for a diagnosis of adjustment disorder.
Dr Smith provided two further reports to the solicitors for the defendant, although he did not see the plaintiff again. His report of July 2010, just after the first two days of the hearing, was based on assumptions of a long history of illicit drug use including acid, ecstasy, speed and marijuana, with up to fifty cones of marijuana a day in the past, and a continuing habit of ten cones a day. Dr Smith confirmed his previous opinion that the plaintiff was genetically predisposed to the development of a major depressive illness, and that her marijuana usage had produced more frequent and severe relapses either causing or aggravating a propensity to anxiety. He thought that her chronic use of marijuana was probably impairing her cognitive functioning, and that if she continued with marijuana usage at that level, her capacity for employment would be significantly impaired.
This report was served on the plaintiff’s solicitors after the first two days of hearing and was the reason for my granting the plaintiff an adjournment to qualify a psychiatrist to respond to the opinion. Regrettably this led to a delay of more than a year in the resumption of the hearing, due in part to the pressure of court business and in part to the availability of counsel.
The psychiatrist qualified on behalf of the plaintiff was Dr Michael Diamond. He saw the plaintiff in his Sydney rooms in October 2010 over a period of about two hours. His focus was on Dr Smith’s opinion about the effect of long term use of marijuana. He took a detailed history from the plaintiff, which seems to have been generally accurate, certainly more accurate that the history given to some of the other doctors. As to marijuana, the plaintiff conceded smoking up to fifty cones a day at an earlier time, and to a continuing habit of smoking five to ten cones a day with her then partner. She said that they kept a supply at home and had a safe and secure source of cannabis which they budgeted for. Dr Diamond accepted that the plaintiff had never lost a job because of substance abuse at work, absenteeism or unreliability. There was no evidence that she had had a motor accident while intoxicated. Dr Diamond found that the plaintiff was in general terms psychologically normal. She showed features of cannabis dependence but none of personality disorder or cognitive deficit. He was prepared to accept that the plaintiff suffered anxiety and avoidance symptoms to a mild degree resulting from the car accident. He thought that Professor Stevens’ diagnosis of an adjustment disorder with anxiety symptoms was understandable, although in his view the extent of the anxiety was in the mid-range and might not reach a level justifying a formal psychiatric diagnosis.
He tended to disagree with Dr Smith about the effect of longstanding use of cannabis on people. He said that different people exhibited a wide range of responses and it could not be said that all heavy users of cannabis exhibited significant impairment. There was no evidence to suggest that the plaintiff was impaired to the extent described by Dr Smith. Her history did not support a finding of impairment to her capacity to work arising from long-term cannabis use.
Dr Smith was provided with a copy of Dr Diamond’s report and asked to make comments on it. He did so by letter dated 20 May 2011.
In addition to Dr Diamond’s report, Dr Smith was provided by the defendant’s solicitor with a copy of documents apparently produced on subpoena or non-party production by ACT Health. It seems that these were not tendered by either party, and hence they are not in evidence. As I have not seen these records, it is not entirely clear to me whether they had a great deal of influence on the opinion expressed by Dr Smith, but in the event there seems little difference of opinion between Dr Diamond and Dr Smith. Dr Smith agreed that the only emotional problem that could be attributed to the car accident was a mild anxiety related to traffic and reminders of the accident. Dr Smith acknowledged Dr Diamond’s opinion that Dr Smith’s earlier comments did not provide sufficient specificity to make accurate or meaningful comments about a particular individual (specifically, in the present case, the plaintiff) or the effect that heavy use of cannabis might have on her. Dr Smith, however, went on to say that the possibility could not be excluded that the plaintiff’s past cannabis dependence had potentiated her tendency to suffer episodes of major depression. He repeated his view that chronic cannabis usage impaired cognition and put any individual at risk of misadventure.
Dr Diamond was called by counsel for the plaintiff and subjected to cross-examination by senior counsel for the defendant. He generally adhered to the opinion he had expressed in his report.
Other documentary evidence
Counsel for the plaintiff tendered a workers’ compensation claim form completed and signed by the plaintiff on 24 July 2007 in which she described the parts of her body injured in the car accident as “neck, right arm, back”. He also tendered a personal injury claim notification form provided by the plaintiff’s solicitors to the third party insurer on 30 July 2007 in which the injuries were described as follows: “neck injury, right shoulder injury, right arm, thoracic spine injury, low back”.
I am satisfied that the plaintiff had some symptoms consistent with an injury to the low back immediately after the collision, but I am equally satisfied that her back symptoms resolved quickly, comparably to the chest symptoms caused by the seatbelt. I am satisfied that the subsequent low back symptoms of which the plaintiff complained following the move by her mother to Victoria were unrelated to the car accident. I am reinforced in this view by the fact that the plaintiff had, a number of years earlier, a history of some low back symptoms. I am satisfied that she made a complete recovery from any minor injury to the low back in the motor accident within a short period of time, at most a matter of weeks.
Other documentary evidence included copies of some of the plaintiff’s tax returns, and of pay records.
Assessment of the plaintiff as a witness
I found the plaintiff a pleasant and likeable young woman, but I agree with Dr Patrick’s assessment of her as a poor historian. Like many plaintiffs, she was clearly motivated to make the most of her injuries and disabilities and of her day or days in court. I can understand that she had some reluctance to admit her illicit drug use to doctors and to her own lawyers. I accept that to a degree she was embarrassed and ashamed about her drug use. I thought it rang true when she told senior counsel for the defendant that she was hooked and that it was not easy to give up her marijuana habit. Her cigarette-smoking is itself an indicator of a person who finds great difficulty in breaking free of an expensive and destructive habit.
I must, however, take into account the plaintiff’s downplaying of the extent of her marijuana use to some doctors and her omission of any mention of this important part of her life history to other doctors. I have no alternative but to infer that the plaintiff did not provide her own solicitors and counsel with a full and accurate history about her drug use. Her counsel, admirably and properly, opened a number of matters in her history which were to her detriment and I have no doubt would have adopted the same approach to her drug use had the facts been within his instructions.
I also formed the view, while the plaintiff was giving evidence, that she generally exaggerated the level of her neck pain and headaches, I have no doubt with a view to magnifying her claim before this court.
Where a plaintiff adopts such a course (it is by no means unusual) that plaintiff creates a difficulty for the court as a tribunal of fact. Such a course runs, for the plaintiff, the risk that she will not be accepted as to her complaints at all. In the present case, such a conclusion would be unfair to the plaintiff. I am satisfied on the evidence that the plaintiff suffered a genuine and quite serious injury to her cervical spine in the car accident. I am not satisfied that she suffered anything more than a minor injury to her low back. As I have said, I think that she probably made a recovery from the low back injury within weeks.
However, I do not accept the opinion of Dr Burke that by the time he saw her she had almost completely recovered from her injuries. I accept the evidence of Dr Searle, an orthopaedic surgeon of long experience, that in addition to ligament and muscular strain in the neck the car accident aggravated pre-existing but until then asymptomatic spondylosis in the cervical spine. I accept the view that the vertebral block at C5-6 meant that the levels immediately above and below (C4-5 and C6-7) were traumatised to a greater degree than would have been the case if there had been normal flexibility at C5-6. I accept the medical evidence that this caused facet joint disruption at C4-5 and C6-7. I accept that the plaintiff has had considerable neck pain and consequential headaches because of this damage, and that this will continue into the future. I accept Dr Searle’s opinion that whilst there will probably be no change in the symptoms for a number of years, they will gradually progress as she ages and the degenerative changes progress, that this will occur more rapidly than if the motor accident had not happened, and that it will have an effect on her employability in the long term.
I should say that I am not satisfied by Dr Smith, having considered Dr Diamond’s evidence, that in the absence of the motor accident the plaintiff’s cannabis use would have more probably than not led to an interference with her working capacity or her ability to perform household and personal tasks.
I found Dr Booder’s reports of considerable assistance, though I acknowledge that the plaintiff to an extent exaggerated her history and symptoms to him, and was less than entirely frank with him about her drug use. The same comments can be made about Dr Patrick’s report.
Similarly, the plaintiff somewhat exaggerated her psychological symptoms in the history she gave to Professor Stevens. I prefer the conclusion reached by Dr Smith. I am not satisfied that the plaintiff has established that she justifies the diagnoses made by Professor Stevens of adjustment disorder with anxiety symptoms or pain disorder.
Damages
I am satisfied that the plaintiff has suffered a moderate degree of neck pain, and from time to time moderately severe headaches, over the years since the car accident. I take account of the fact that she has seldom needed to see her general practitioner about her symptoms, and has managed with non-prescription medication as needed. I am not persuaded that her use of that mediation has been as frequent or intense as she sought to establish in her evidence, but I have no doubt that the pain is real and at times reaches levels which call for the taking of painkillers.
Having regard to the plaintiff’s pre-accident work history, I am not satisfied that any of her subsequent changes of employment were caused by her injuries.
As I have said previously, I take the view that the plaintiff recovered reasonably soon after the car accident from any injury to the low back and from the seatbelt to the chest. I am satisfied that she injured her low back in April 2008 in the course of helping with her mother’s move to Victoria. This was a fresh injury and not an exacerbation of any low back injury she may have suffered in the car accident.
The 2008 low back injury has caused some interference with the plaintiff’s work and life generally.
To the extent that the plaintiff required or continues to require help with household tasks, it seems to me that this is likely to be due entirely to the low back injury. I accept that she required some such help in the weeks and months immediately after the car accident but I am not satisfied that she has made out a case for a need for such assistance beyond the first six months.
At the same time, I accept, as I have said, Dr Searle’s evidence that the plaintiff’s neck condition is likely to worsen over the long term, and that the motor accident is a cause of this and the cause of the progression occurring earlier than it otherwise would have. This must be reflected in the award of general damages for pain and suffering and loss of enjoyment of life, and also in an award for impairment of earning capacity.
The past treatment expenses are agreed at $1,685.22.
For domestic assistance I allow two hours per week for twenty-six weeks at $21.00 per hour, an amount of $1,092.00, plus interest at the prescribed commercial rate of 9% per annum for five years, $490.00.
The plaintiff received workers’ compensation during the period of about two months after the accident of $2,335.94. That amount is recoverable, and will be required to be repaid to the insurer. It appears that the insurer did not deduct tax from the payments. I am not satisfied on the evidence that the plaintiff has suffered any other loss of income by reason of the motor accident.
For general damages for pain and suffering and loss of enjoyment of life I allow $70,000.00, apportioned equally between past and future. The past component is more heavily weighted to the six months immediately after the accident. Interest is recoverable on the past component, calculated at 4% per annum. For interest I allow $4,500.00.
An allowance must be made for impairment of earning capacity, to the extent that it is likely to be reflected in loss of earnings in the future. Counsel for the plaintiff has asked for what he calls a cushion of $75,000.00 for the prospect of retirement at the age of fifty-five. Whilst this is not a figure which is capable of mathematical calculation, it is relevant to note that the plaintiff is now almost thirty-seven. In eighteen years she will turn fifty-five. She will turn sixty in twenty-three years, and sixty-five in twenty-eight years. The multipliers for those periods using a discount rate of 3% and making no allowance for mortality are 728, 871 and 994 respectively. The method of calculating a loss for this plaintiff which would not commence until age fifty-five and would continue until age sixty-five would be to take the difference between the multipliers for those periods of years, and multiply that difference by the dollar figure, assuming a constant loss over the period. The differentials are 143 to age sixty and 266 to age sixty-five. At the date of trial the plaintiff was earning something approaching $450.00 net per week, which would have been equivalent to about $640.00 per week if she had been working full-time. If one were to assume that the plaintiff, but for the car accident, would have been capable of earning, at today’s rates, $500.00 net per week at age fifty-five and were to adopt a mid-range multiplier of 200 one would arrive at a figure representing the present value of such a loss of the order of $100,000.00. Conventionally the court would discount such a figure by 15% to take account of the vicissitudes of life. This would reduce the figure to $85,000.00. The evidence does not satisfy me that such a loss is inevitable. The proper approach is to apply to it a percentage figure representing my assessment of the likelihood that the loss will be suffered: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. Taking all of those factors into consideration, I allow a figure of $60,000.00 for loss of earning capacity for the future. I allow $6,600.00 for loss of superannuation benefits consequent on that loss.
Using the same approach, it seems to me appropriate to make some small allowance for the likelihood that the plaintiff will be put to some expense in the future for medication and other treatment expenses. I allow $3,000.00.
Similarly, some allowance should be made for the likelihood that the plaintiff will require domestic and personal assistance in the future. In that respect I allow $5,000.00.
This gives rise to a total award of damages made up as follows:
General damages $70,000.00 Interest on past component $4,500.00 Expenses – past $1,685.22 – future $3,000.00 Past wage loss $2,335.94 Loss of earning capacity for future $60,000.00 Loss of superannuation benefits $6,600.00 Domestic assistance – past $1,092.00 – interest $490.00 – future 5,000.00 $154,703.16
That total upon consideration seems to me to represent a proper reflection of the impact of the defendant’s negligence upon the plaintiff. There will be judgment for the plaintiff for $154,703.16. I shall hear the parties as to costs.
I certify that the preceding one-hundred and forty (140) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate:
Date: 21 January 2013
Counsel for the plaintiff: Mr DRJ Toomey
Solicitor for the plaintiff: United Legal
Counsel for the defendant: Mr GA Stretton SC
Solicitor for the defendant: Sparke Helmore
Date of hearing: 20, 21 July 2010, 8, 9 August 2011
Date of judgment: 21 January 2013
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