English v Bogiatzis

[2002] QSC 415

SUPREME COURT OF QUEENSLAND

CITATION:	English v Bogiatzis & Anor [2002] QSC 415
PARTIES:	ROBERTHA MURIEL ENGLISH (plaintiff) v CHRISTINE BOGIATZIS (first defendant) SUNCORP GENERAL INSURANCE LIMITED ACN 075 695 966 (second defendant)
FILE NO/S:	s191 of 2002
DIVISION:	Trial
PROCEEDING:	Personal Injury – Quantum Only
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	10 December 2002
DELIVERED AT:	Townsville
HEARING DATE:	4 December 2002
JUDGES:	Cullinane J
ORDER:	Judgment for the plaintiff against the defendants in the sum of $239,240.00
CATCHWORDS:	DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – where plaintiff sustained physical injury and a psychiatric condition as a result of an accident at a fish bar which the plaintiff and her husband owned – where plaintiff a qualified teacher – where plaintiff impaired in her capacity to earn an income as a teacher and precluded from other occupations as a result of her injuries – assessment of damages
COUNSEL:	M Drew for the plaintiff R Clutterbuck for the first and second defendants
SOLICITORS:	Wilson, Ryan & Grose for the plaintiff Cleary & Lee for the first and second defendants

1. The Plaintiff’s cause of action is admitted.

1. The Plaintiff is a married woman, born  on the 5^th July 1943.  She has three children all of whom are now adults.  Her husband is in full-time employment.

1. On the 21^st June 1996 she sustained injury as a result of an accident at a fish bar owned by herself and her husband.  A vehicle driven by the First Defendant drove through the front of the shop and came into collision with a counter which it then  forced backwards to the rear wall of the shop trapping the Plaintiff against that wall.  Photographs of the area show a sink and tap at the rear wall in this area.  The Plaintiff only became aware of the events after the vehicle came to rest.  Her pregnant daughter who was nearby appeared to her to be in a position of great danger and the Plaintiff moved quickly to help. 

1. The incident, I accept, was a terrifying one for the Plaintiff and I also accept that it was the cause of her psychiatric problems to which I will refer in the course of this judgment.

1. The Plaintiff holds a degree in education and also a degree in economics having obtained these in 1975 and 1980 respectively. 

1. Her employment history is set out in a schedule to exhibit 1 which is her statement.  From the time she qualified as a teacher she taught as will be seen at a number of different schools, both in the private and in the public sector. 

1. In 1992 she and her husband acquired a mobile pie van.  In 1994 they acquired the fish shop in which the Plaintiff was working when she was injured.  In 1991 the Plaintiff and her husband had left to go on a sailing holiday on their vessel and it appears that the Plaintiff found after some months that she could not continue on the boat and left it, leaving her husband to continue.  If I understand her evidence correctly the plan had been to sail on the vessel indefinitely.  During the time the businesses were being conducted the Plaintiff performed some contract teaching.

1. It is the plaintiff’s evidence that by the time of the accident she had come to the realisation that she and her husband should not work together (in fact she said that they could not work together) and that she intended to return to full time teaching.  She had, I accept, applied for a position at the Cathedral School but was unsuccessful in obtaining it

1. In her notice of claim dated the 1^st of March 1997 when asked what loss she had suffered, she gave the following answer:

“The amount of income I have lost as a result of the accident is approximately $300.00 per week which I could have earned from my intended computing business or alternatively, approximately $500.00 which I could have earned from between two to three days relief teaching.”

1. The Plaintiff has worked since the accident as a teacher both as a relief teacher but also for two periods as a full time teacher.  These were it would seem at the Central State School in 1999 and for approximately three months in 2000 at the Northern Beaches School.

1. Since that time she has worked as a casual teacher working as a rule two days per week resting after each day and before working for the second day of that week.

1. It is clear that as a result of the accident the plaintiff has suffered a psychiatric condition which the two psychiatrists who gave evidence diagnosed as a post traumatic stress disorder.  Dr James who examined her on the first morning of the trial modified his diagnosis because of some amelioration in the symptoms from which the Plaintiff had suffered.  These were particularly the symptoms of  intrusive recollections of the event from which she had suffered over some years.

1. He says, and I accept, that the appropriate designation now is an adjustment disorder and that her prognosis is quite poor.

1. I accept that the Plaintiff because of her psychiatric condition could not perform teaching work to any greater extent than she currently does. She finds the work stressful and finds it hard to concentrate and has, according to Dr James, “in a practical sense” memory impairment.

1. She has experienced a number of panic attacks.

1. This view of her impaired capacity to work as a teacher is shared by Dr Athey and was not seriously in dispute.

1. She will continue to suffer from this conditon and will require continuing medication.

1. I also accept Dr James’ evidence that she was somewhat more prone than the average individual in the community to the development of such a condition in the event of a major traumatic event such as that which she experienced.

1. It is also in my view clear from the evidence that the Plaintiff sustained some injury to her lower back at the time of the accident.  This would appear to have been in the nature of a soft tissue injury and also some damage to the spine which was, I am satisfied, already undergoing degenerative change.  The marked degenerative condition, particularly at L4/5 which was seen on radiological examination some years later is, I am satisfied from the evidence of Dr McFarlane and Dr Low, (both orthopaedic surgeons), a consequence partly of the ordinary processes of degenerative change and partly the trauma sustained in the accident.  The symptoms appear to have worsened significantly in about 2000.

1. I accept the evidence of Dr Watson that the Plaintiff also has a condition of her right sacroiliac joint which is the cause of pain and discomfort for her.  He describes it as a “joint dysfunction” which causes some referred pain.

1. The orthopaedic surgeons do not appear to have addressed this subject in their reports.

1. Whilst the Plaintiff had a degenerative condition of the spine, the evidence of Dr McFarlane is that “she may well” not have suffered the onset of symptoms of the kind from which she suffers prior to reaching the retirement age of 63 but that there was a risk that she would have developed such symptoms.  An appropriate discount must be made for this risk. 

1. I also accept Dr MacFarlane’s evidence as to  the respective contributions of the degenerative changes and the trauma of the accident to her current spinal conditon.

1. The Plaintiff complains of some exacerbation of a pre-existing cervical problem but there is no medical evidence which supports this.  I should add that the Plaintiff does not regard this as a major concern on my understanding of her evidence.

1. The Plaintiff then is disabled from working as a teacher to any greater extent than she currently can.  The psychiatric condition alone would prevent her doing this and it would also seem that the problems that she has with her spine would make it at least difficult to do so.

1. The Plaintiff gave evidence that she had intended to return to full time teaching work.  She is somewhat at odds it seems to me with what is said in her claim form which I have already set out.  Moreover it is impossible to ignore the Plaintiff’s work history in the four or five years prior to her accident.  I have already set out what her activities were.  She had done some teaching but was primarily engaged in either family owned businesses or in travel on the boat owned by her and her husband.  Copies of her tax returns for the years ending 30.6.90 to 30.6.02 (except for the year ending 30.6.92) are in evidence.

1. It is obvious that at the time of the accident the fish bar was not prospering and would have had to be either closed or, as ultimately occurred, sold before long.

1. The gross income of a full time teacher at present is $55,038 and the net income is $40,685.

1. The Plaintiff earns $46.6760 per hour as a casual teacher.  In this capacity she may be called upon to teach in any class.  She is paid for 5 hours each day.

1. The Plaintiff has been offered positions as a full time teacher since the accident but has not been able to take these.

1. As I have said I do not accept that it is appropriate to assess the Plaintiff’s damages on the basis that she would have returned to full time employment as a teacher and would have thereafter worked constantly in such a position and would have continued to do so until retirement age at age 63 when she would become entitled to access her retirement benefits.

1. I have already referred to the contents of the claim form  and it is impossible to ignore the Plaintiff’s work history in the four of five years prior to the accident.

1. I think it is a fair inference that the Plaintiff was pursuing her own and family interests during this time by taking what was intended, it would seem, to be a long period off to go sailing on their vessel and to conduct a couple of family businesses which though requiring long hours (at least in the case of the fish bar) meant that she and her husband were able to engage  in this activity together and it would seem one or more of the children also played some role.

1. She had some plans to conduct a computer teaching business and this is referred to in the claim form.  They do not seem to have been advanced or developed to any extent.

1. Nonetheless the Plaintiff has plainly had a significant impairment of her capacity to earn an income as a teacher, and, I am satisfied, in other areas from which her psychiatric condition would preclude her and also from occupations which the disability of her back would preclude her.

1. I think it is likely that the Plaintiff would from time to time as it suited her, or as finances required, have taken full time teaching work.  She worked for a number of years following the accident as a casual teacher on a four day a week basis but found as time went by that she was unable to continue  doing this and now, as I have said, works only two days a week, something which represents the limit of her capacity.  I am satisfied therefore that she has also lost the capacity which she would have been likely to exercise also to work to a greater extent as a casual teacher than she can now as well as the capacity to work as a full time teacher.

1. The Defendant placed considerable reliance upon the Plaintiff’s answer in her claim form which I have already set out.  This is an important piece of evidence because of its inconsistency with the claim that she had already determined to return to full time teaching work.

1. Nonetheless I do not think that this can be regarded as evidence determinative of what the Plaintiff’s future would have been.  As I have said I think it likely she would have worked from time to time as a full time teacher and would also have been likely, to work as a casual teacher for a greater number of days than she now works.  She may also have pursued other interests, perhaps some income producing and some of a recreational kind.

1. I generally accept the Plaintiff’s complaints.  She has had a substantial disruption to her life and to her activities and suffers considerable pain. When in court she stood to give her evidence throughout.

1. So far as general damages are concerned, I assess these in the sum of $37,500.  I allow interest on $12,500 representing past pain and suffering for 6 ½ years producing a sum of $1,625.

1. The Plaintiff claims $134,730 for past economic loss based upon the difference between what she has actually earned and what she would have earned as a full time teacher.  In addition she claims a loss of about $14,000 for superannuation.

1. The Defendant on the other hand submits that it is impossible to calculate any loss of income to the present on a mathematical basis and that some global sum, (the sum of $35,000 including superannuation and interest  is suggested), should be allowed.  I agree that this head of damages is not susceptible of any mathematical approach.

1. Taking the average of the Plaintiff’s income over the years since the accident, it exceeds the income she earned in the corresponding period prior to the accident.  However not too much weight should be placed upon this, given the fact that the fish bar was clearly not profitable for some time.

1. For some time after the accident the Plaintiff’s capacity to earn an income was less affected than it has become of recent years. Doing the best I can I allow $60,000 for past economic loss including loss of superannuation.  I allow interest at 5% for 6.5 years giving a sum of $19,500.

1. For the future I think that the Plaintiff’s work pattern of earnings of the last year or so provide the best evidence.  The present value, (discounted by reference to the 5% tables) of an annual loss of $300 per week (which I adopt as a starting point) per year for the next four years is some $56,720.  The Plaintiff will reach her retirement age prior to the expiration of that period. 

1. Some modest discounts have to be applied for the risk that the progression of the degenerative condition of her back may have limited her capacity to work, for the vulnerability Dr James speaks of and for general vicissitudes. The Plaintiff may have chosen to cease teaching altogether as she got older. Some of these vicissitudes have to be allowed for to some extent in respect of past economic loss and they have been.

1. Taking all of these factors, I think that a figure of $47,500 is appropriate and I allow this for future economic loss.  I allow superannuation at 9% on this sum being an amount of $4,275.

1. All special damages including interest are agreed upon in the sum of $12,500.

1. There are substantial claims for past, Griffiths and Kirkemeyer and future Griffiths and Kirkemeyer.  These are based upon the report of Miss Purse, an occupational therapist.   Her evidence largely went unchallenged.  She thought that the Plaintiff reasonably required assistance of some four hours per week for domestic tasks which her husband performs, and two hours per week for outdoor gardening tasks which she would have been able to do but is not now capable of doing.

1. I accept that these tasks are tasks which the Plaintiff is not now able to do .  However my reading of Ms Purse’s report leads me to conclude that the reason why she is of the view that the Plaintiff cannot do these tasks is because of her physical disabilities arising from her back condition.  As I have said, a significant discount has to be applied because of the risk that the Plaintiff would have developed these symptoms anyhow and not have been able to perform these tasks. 

1. Making such a discount and applying the rates agreed upon between the parties I allow in respect of past Griffiths and Kirkemeyer  the sum of $18,000 and I allow interest at 2% for 6.5 years producing a figure of $2,340. 

1. The claim in respect of the future is a substantial one and I think similar discounts have to be applied.  The claim appears to be based upon such assistance over the remainder of the Plaintiff’s life expectancy.  It is in my view unrealistic to allow these claims until age 84.  It can be expected that the Plaintiff would in any case have probably ceased performing these, or some of these, tasks before reaching this age. 

1. Doing the best I can I allow in respect of future care and assistance the sum of $30,000.

1. There are claims for future medication and travelling expenses.  There was a claim for future medical expenses but this was, as I understand it, ultimately abandoned.

1. The Plaintiff will undoubtedly have to continue taking medication and will from time to time have to attend medical practitioners.

1. The costs of the medication are in evidence.  So far as the pain killing drugs are concerned some discount has to be applied because of the risk that the Plaintiff would have required these in any case.

1. Making due allowance for these factors I allow the sum of $6,000 for future medication and attendances upon doctors and associated travelling expenses.

1. The total of these sums then is $239,240.00.

1. I give judgement for the Plaintiff against the Defendants in the sum of $239,240.00.