Falzari v Brown and State of Tasmania
[1999] TASSC 57
•19 May 1999
[1999] TASSC 57
CITATION: Falzari v Brown and State of Tasmania [1999] TASSC 57
PARTIES: FALZARI, Carol Grace
v
BROWN, Doug
and
TASMANIA, STATE OF
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1842/1985
DELIVERED ON: 19 May 1999
DELIVERED AT: Hobart
HEARING DATE/S: 1 - 4, 7 - 11, 21, 29 September 1998 and
23 March 1999
JUDGMENT OF: Slicer J
CATCHWORDS:
Damages - Particular awards of general damages - Tasmania - Whiplash injury suffered by plaintiff 13 years ago - Lost earning capacity - General damages - Future medical and other expenses.
Aust Dig Damages [61]
REPRESENTATION:
Counsel:
Plaintiff: D J Gunson and E N Nylander
Defendant: M D Docking and P E Barker
Solicitors:
Plaintiff: Gunson Pickard and Hann
Defendant: Abetz Curtis and Docking
Judgment Number: [1999] TASSC 57
Number of paragraphs: 47
Serial No 57/1999
File No 1842/1985
CAROL GRACE FALZARI v DOUG BROWN and STATE OF TASMANIA
REASONS FOR JUDGMENT SLICER J
19 May 1999
The plaintiff was injured in a motor vehicle accident which occurred on 3 January 1985. Judgment was entered in her favour on 14 October 1986, and the assessment of damages deferred until her condition and the long-term consequences of the injuries could be better determined. The recovery process has itself contributed to the magnitude of harm. The initial injury was not itself significant, but its long-term manifestation, together with the psychological state of the plaintiff have combined to result in a significant state of impairment.
Background and history pre-accident
The plaintiff was born in August 1946 and was 38 years of age at the time of the accident. She obtained an intermediate certificate at the age of 16 and shortly thereafter commenced nursing training, graduating after three years in 1966. She then worked either as a staff nurse or medical receptionist until 1968, when she transferred to the Royal Hobart Hospital where she undertook a 12 months' midwifery course. Following some relief work, she commenced work as a theatre sister at St Helen’s Hospital in September 1968, remaining in that position until January 1971. On many occasions during that period she was the senior nurse in charge. Between January and June 1971, the plaintiff worked as a day theatre sister at St John’s Hospital, leaving because the use of surgical gloves had brought about dermatitis. In that month the plaintiff commenced work at the Repatriation Hospital, where she was employed at the date of the accident. The plaintiff married in 1970 and decided to pursue a career rather than have children.
The plaintiff performed diverse roles at the Repatriation Hospital, and during that time undertook further training by enrolling in an intensive care course and a course for geriatric nursing. In 1982, the plaintiff commenced an external studies course in order to obtain a degree in Nursing Administration. At the time of the accident she had completed two years of this four year course and had obtained a Diploma of Nursing Studies. She had intended to complete the remaining portion of the degree at a time subsequent to the accident. At various times during her employment at the Repatriation Hospital the plaintiff acted as a shift supervisor, Acting Deputy Director of Nursing and the senior nurse in the Coronary Care Unit. The plaintiff was competent in her work, had obtained specialist and tertiary qualifications and was likely to continue in her career until retirement. It is probable that she would have obtained a more senior administrative position.
Accident and injury
Following the accident, the plaintiff received medical attention and underwent physiotherapy treatment. She returned to work but continued to experience pain to her knee, neck and right arm. She was referred to a specialist, Mr Duffy. He continued with conservative treatment until November 1985 when an operation involving a C5 - C6 discetomy hamalogous interbody fusion was performed. However, following the operation, she continued to experience headaches and pain to the right arm, often associated with elevation or lifting.
Post-accident history
Following the accident and initial treatment, the plaintiff returned to work. Alternative duties were attempted but these alterations proved to be unsatisfactory. The evidence shows that in the area of nursing, for which the plaintiff was qualified, it was difficult, if not impossible, to allocate duties to a person suffering from an impediment such as that suffered by the plaintiff. After the surgery of November 1985, she again returned to work intermittently until April 1986, when Mr Duffy certified her to be unfit for work until May 1986. The plaintiff has not worked since 26 May 1986. There was some conflicting evidence as to whether she could or ought to have made a greater effort to rehabilitate herself by learning to live with her discomfort and attempting to vary her work options. Some of the critique of the process of rehabilitation is warranted, and it may be that the subjective response of the plaintiff inhibited potential recovery. However, the processes of pain and discomfort, and their effects on life-style and amenity exacerbated a psychological condition resulting in the onset of depression. There was conflicting evidence as to the extent of that depression and its effect, but, from the vantage of 1999, it is difficult to discern its then components as distinct from the current condition. I do not perceive the plaintiff to be mendacious, but believe that during the initial post-accident period she made much of her pain, relying on it as an excuse for passive suffering and inactivity, with the consequence that the whole person became incapacitated. During 1986, the plaintiff was treated by a psychiatrist for depression, received general medical treatment and physiotherapy, and underwent a series of assessments by the Commonwealth Medical Officer. Her condition did not improve, and in 1987 she continued with regular treatment from a general practitioner, an osteopath, a psychological counsellor, an acupuncturist, and was assessed by Dr Buzzard, a Victorian surgeon. She was placed on sick leave by the Commonwealth Medical Officer, and, despite his view that she could undertake some duties, was retired from the public service during 1987. The symptoms claimed by the plaintiff during this period included migraine headaches, pain to the shoulders and arms, loss of sensation, restriction of movement and depression. The evidence suggests that the whole was greater than the sum of the components, but does not warrant the conclusion that the plaintiff fabricated her complaints. Rather, she lacked the capacity to confront her injury and instead dwelt on her misfortune. That process, once commenced, compounded the problem.
The pattern continued through the years 1988 - 1990. During that period the plaintiff attended and was treated by her general practitioner, an eye specialist for headaches and blurred vision, a neurosurgeon, a psychiatrist, various physiotherapists and other health care workers. Between 1985 and 30 November 1988, the Commonwealth Department of Veterans Affairs paid a total of $9,691 in relation to medical and pharmaceutical accounts. In 1991, Mr Hunn, a neurosurgeon, performed a neck manipulation, combined with an injection of cortisone, under a general anaesthetic. She continued with those injections and further treatment by Mr Hunn until July 1993. In 1992, she received further psychiatric treatment from another psychiatrist. Despite continued intensive treatment, the condition of the plaintiff improved, if at all, only slightly.
In February 1994, the plaintiff moved to Melbourne. She continued her general treatment with Dr Stekelenberg, who, in turn, referred her to Mr Speck, an orthopaedic surgeon. In April 1994, Mr Speck performed a right side facial block and the procedure was followed by that of a facet joint denervation in June of the same year. The procedures were designed to interrupt the transmission of impulses from the nerve area to the brain and were the subject of some scepticism by at least one of the expert witnesses called by the defendant. One of the problems associated with the procedure is that the nerve pathways tend to rejoin after a period of time requiring periodic repetition of the treatment. The procedure was effective in reducing pain, but the symptoms reappeared and a further facet block procedure was performed in January 1995. The surgeon suggested that the procedures be repeated each three to six months. One of the issues between the parties was the need for or frequency of this procedure.
Pain and suffering
The plaintiff has suffered significant physical pain and psychological problems over an extended period and the two conditions have, in all probability, become symbiotic. The plaintiff has experienced significant pain to both shoulders and the neck region. She has suffered intermittent headaches which have, on occasion, completely debilitated her. Repeated treatments, in differing forms, have been attempted without significant amelioration. The pain has, on occasion, extended to the right arm and hand, although its origins would appear to lie in the spinal region, radiating to the neck and extremities. The pain has contributed to the depression and psychological trauma experienced by the plaintiff. As at the time of the hearing, the conditions would appear to have become settled, and, provided the plaintiff maintains an appropriate management regime, it is probable that she will maintain a settled, albeit restricted, lifestyle.
Loss of amenity
The combination of pain, physical restriction and depression has significantly impacted on amenity. The Court accepts that the plaintiff's capacity to engage in ordinary tasks such as housework, cooking, gardening and the like has been impaired. She has received external assistance and such will be separately provided for. The psychological impairments have exacerbated her physical limitations and the fact that there has been improvement in the areas of "pain management" and accommodation of physical restriction will result in a more settled lifestyle. Whilst her capacity to engage in outside physical pursuits has been impaired, it has been replaced by other forms of leisure. The award for pain, suffering and loss of amenity reflects significant recent improvement and ongoing restriction. It also reflects the Court's conclusion that the plaintiff has, albeit without mendaciousness, exaggerated or made much of her condition. Her ability to travel might have been accompanied by discomfort, but belies the level of incapacity claimed by the plaintiff in her evidence. With that reservation, significant allowance is made for loss of amenity. The combination of physical pain and restriction, together with her psychological condition, has impacted on the plaintiff's marriage. The Court accepts that impact as a contributing, but not sole cause, of the break-up of the relationship. An award of $45,000 will be made in respect of the claim for general damages based on pain, suffering and loss of amenity.
Psychological condition
The plaintiff consulted three psychiatrists between the date of the accident and 1988. The purpose of the consultations was to deal with her depression. She received no further psychiatric treatment between 1988 and 1996, although she was examined by psychiatrists for assessments connected with her litigation.
Psychological testing was conducted by Dr Jennifer Nichols in May 1998. The plaintiff stated to Dr Nichols that:
"… her psychological presentation had improved since January 1998 in which she experienced the last episode of increased psychological distress of depressed mood, tearfulness and agoraphobia. She attributed this last episode to an inability to cope with pain particularly headaches which she experiences at a frequency of five to six per week. She stated that her last denervation had ameliorated her headache symptoms and her overall mood had improved. She did report feeling a lack of motivation and reduced social activity."
Testing conducted by Dr Nichols indicated:
" … high elevation on the obsessive-compulsiveness and depression sub-scales as well as a moderate elevation on the anxiety and psychotisism sub-scale [SCL - 90 R], … (a significant level of depression on a scale moderate to severe) (BD1).",
and
" … high elevations … indicating multiple somatic complaints, depression and a tendency to report increased somatic complaints in response to stressful events [MMP1 - 2]."
In the opinion of the examining psychologist:
"Mrs Falzari has not accepted her condition and needs to address a number of grief issues associated with her chronic pain condition … (and that) her prognosis is not good as her current state has become extremely entrenched and after thirteen years it would be difficult to significantly impact on Mrs Falzari's level of functioning."
Both parties adduced evidence from psychiatrists who had, over a period of time, either treated the plaintiff or made assessments of her condition for the purpose of these proceedings. There were differences in their conclusions, but the significant departure in their respective opinions was whether her condition is one reactive to external events, or inherent by reason of accumulated experience. The complication is that the plaintiff has been assessed over a long period of time and the differing observations of and assessments by the respective psychiatrists might reflect differing psychological states, rather than competing opinions. Dr Pargiter, who first reviewed the plaintiff in 1988, believed that the origin of her condition lay in an insecure personality and that the effect of pain, marital disharmony and perceived occupational humiliation had produced a dysthymic disorder, reactive in nature with the possibility of moderate improvement. In 1995, following a further assessment, Dr Pargiter did not believe that there was any evidence of a psychiatric disorder or depressive illness and that "such psychological symptoms as persist are now minor". The present treating psychiatrist, Dr van der Linden, first treated the plaintiff in 1996, and between April 1996 and April 1998 there were four consultations. Dr van der Linden believes that the plaintiff continues to suffer from an adjustment disorder with chronic depressed mood. In his opinion, the prognosis is poor and the condition will require ongoing psychiatric treatment. However, her present condition has improved from that previously diagnosed, namely, a major depressive illness. In part, the assessment of Dr van der Linden is not dissimilar to that made by Dr Sale. Dr Sale believed that there had been a significant improvement in 1988, and in an opinion provided in 1990 stated that:
" … there appears to have been a dramatic improvement with Mrs Falzari reassessing the situation and adopting a more positive attitude towards her difficulties. At around this time she and her husband separated, this decision being mutual and the relationship remaining amicable. Following that time she has generally felt much better and other than for a brief period in September 1989, has not needed to use anti-depressants again."
As of 1990, Dr Sale did not believe there to be "evidence of any abnormality of mood or anxiety". He remained of that opinion in 1995. However, by 1997, on the basis of further history, he accepted that the plaintiff had "experienced some further secondary depressive symptoms". However, in his evidence given on trial, he accepted that if the plaintiff had been treated by a psychiatrist for depression between 1988 and 1994, his opinion ought to be qualified. However, given that qualification, he would still not agree with the opinion of Dr van der Linden that the plaintiff's condition was one of a chronic adjustment disorder. Rather, Dr Sale would accept the condition to be episodic and reactive to external events. Where there is difference between the opinions of Dr Sale and Dr van der Linden, the Court prefers the former. The history of the plaintiff suggests the onset of significant depression when there has been a particular occurrence such as separation, cessation of Comcare payments, failure of rehabilitation and the like. However, the fragile personality of the plaintiff, as assessed by Dr Pargiter, would render her more susceptible to the effects of those events. The completion of these proceedings, the certainty of economic stability, a settled life-style and the acceptance of outcome and the continuation of a pain management program should result in a decreasing need for future psychiatric treatment.
Past medical and associated expenses
The initial medical expenses of the plaintiff were paid by the then employer, the Department of Veterans' Affairs, in accordance with the Compensation (Commonwealth Employees) Act 1971. A total sum of $46,491.68 was paid between 3 January 1985 and 30 June 1989. Since 1 December 1988, the relevant payments have been made by Comcare Australia in accordance with the Commonwealth Employees Rehabilitation and Compensation Act 1988. The sum paid for items claimed for the period 1 August 1988 (presumably not claimed until the later period) and 12 February 1999 amount to $28,829.50. The total of $75,321 is allowed.
Compensation paid
Between 13 June 1988 and 31 March 1999, Comcare has paid a total of $220,483 as compensation. The plaintiff is required to repay this sum to Comcare. Taxation has been deducted from these payments. Comcare is currently paying a gross sum of $245.91 per week from which tax of $39.10 is deducted. A further amount of $2,164.01 will be paid between the period 1 April and 1 June 1999. That sum will be allowed and an adjustment made to the award for future loss of income. This area of compensation requires separate consideration because no Fox v Wood component is involved in this calculation. The complication arises in relation to any calculation of the difference between the sum awarded for loss of wages and moneys actually paid by Comcare. Given that tax has been paid on the Comcare payments, different calculations might be required to determine the taxation component of the remaining sum. The same issue arises in relation to payments made by the Department of Veterans' Affairs.
Rehabilitation and work capacity
Following the accident, a number of strategies were put in place to enable the plaintiff to rejoin the work force. The Court accepts the evidence of Ms Wright, the President of the Tasmanian Branch of the Australian Federation of Nursing, and Ms Cuthbert, the Director of Nursing Services at the time the plaintiff was employed at the Repatriation Hospital, that it is extremely difficult to employ a nursing sister on light duties. The nature of the profession requires its practitioners to be physically fit and any impairment caused by pain and a weakened back or limbs renders continued work impractical from the vantage of both institution and the employee. Ms Cuthbert deposed that attempts were made to bring the plaintiff back into the work force, but that such attempts were unsuccessful due to the physical and emotional state of the plaintiff. A position restricted to light duties was unavailable and, in the opinion of Ms Cuthbert, the plaintiff was not fit for duties in either the high dependency or out patient divisions. The only purely administrative position then available was that of Director, a position held by Ms Cuthbert.
Further attempts at rehabilitation were made through the Commonwealth Rehabilitation Service. That these attempts were unsuccessful is a consequence of both a lack of flexibility and creative thinking on the part of the institution and a disinclination by the plaintiff to make a serious attempt to alter her expectations and adapt to a changed role in the light of her condition. That she failed to do so was in turn a product of her state of depression. In 1986, the Deputy Director of Nursing at the Repatriation Hospital reported to the Commonwealth Medical Officer that attempts to re-integrate the plaintiff into the work force had proved unsatisfactory and that "There is no other nursing positions [sic] within the hospital that does not involve patient contact". In August 1986, the Commonwealth Officer considered the plaintiff to be:
" … unfit for continued employment and should be retired on the grounds of invalidity …
but …
… may, in due course, partially or completely recover and become fit for some form of Commonwealth employment.",
and recommended a review within one year. In the same month, Mr Duffy, the treating surgeon, had certified the plaintiff to be permanently unfit for work.
In September 1986, a delegate appointed pursuant to the Commonwealth Employees (Redeployment and Retirement) Act 1979 declared the plaintiff to be eligible for redeployment in accordance with the Act. The Public Service Board was reluctant to recommend retirement, and, in October 1986, raised with the Commonwealth Department of Health the question of whether the plaintiff could be redeployed "in non-nursing areas such as the clerical administrative".
In October, Mr Duffy advised that in his opinion:
"[Ms Falzari] could be employed in a non-nursing position and would be physically capable of clerical work that allowed her to adjust her activities should they cause symptoms in the necks [sic]."
That advice was not accepted by the Commissioner, who, on 1 December 1986, advised the Public Service Board that:
"It is considered that, due to Mrs Falzari's health, she would have difficulty coping with any position within this, or any other Department, including clerical administrative positions.
It is therefore recommended that the retirement of Mrs Falzari, on the grounds of invalidity, be proceeded with and that a certificate under Section 14 of the Act be issued, as soon as possible."
Had an attempt been made, at this stage, to devise an appropriate strategy to retrain the employee and to re-introduce her into gainful employment, then many of the ensuing complications and much trauma might have been avoided. An interview was held with the plaintiff in January 1987, but, in part because she had recently undertaken an operation, little follow-up practical action was taken. In May 1987, the plaintiff was declared to be an unattached senior registered nurse, a decision not accepted by her. In June, Mr Duffy repeated his earlier advice that:
" … Mrs Falzari is capable of light work and would be capable of undertaking clerical duties."
Following this advice and in accordance with the recommendation of the Commonwealth Medical Officer, the Commissioner informed the plaintiff by letter dated 23 June that:
"… we propose that you return to work on 6 July 1987, and commence a trial placement at the Clerical Administrative Class 4 level."
On 22 June the Australian Government Solicitor wrote to the Deputy Commissioner of the Department of Veterans' Affairs advising that:
"The solicitors for the Motor Accidents Insurance Board in this case have requested that any proceedings against their client be held in abeyance until the Common Law claim against them instituted by Mrs Falzari has been settled. I propose to comply with that request as it would seem appropriate in the circumstances."
The question of a return to work was discussed with the plaintiff in August 1987. At that time, the plaintiff was considering whether to proceed with surgery following her consultation with Victorian specialists and no decision was taken in relation to a return to work. The plaintiff decided not to proceed with surgery and was further assessed by the Commonwealth Medical Officer in September 1987. Nothing of significance occurred until May 1988 when Dr McCafferty, a consultant psychiatrist, advised the Department that Mrs Falzari suffered from a depressive disorder which required "anti-depressant medication … with psychological approaches to pain control." In his opinion the plaintiff was:
"… not fit to resume her former occupation. She should be able to tolerate some administrative or clerical role in the future, bearing in mind her reasonably high status previous employment. Referral to a Vocational Rehabilitation Centre would be indicated."
Following that advice, the personnel manager decided that the plaintiff should be declared "unattached" and referred to a vocational rehabilitation centre. That course was approved by the Commonwealth Medical Officer in July 1988. The Rehabilitation Officer, following assessment, recommended by letter dated 24 August 1988 that testing indicated the possibility of a return to work and that:
"Once possible duties have been identified, this Service will gladly provide an assessment of the work station to ensure optimal layout and appropriateness of the physical demands.
I would suggest in this case that any return to work be on a graded basis to enable a gradual increase in working tolerances. It is Mrs Falzari's opinion that she has not yet sufficiently recovered to enable her to meet the demands of a return to work. Obviously we would require medical approval and an indication of willingness from Mrs Falzari before commencing any such programme.
In the interim, if you are agreeable, attempts will be made to lessen the impact of home responsibilities on Mrs Falzari's experience of pain in an effort to ensure maximum readiness for work."
Regrettably, either by choice or administrative restriction, no attention was given to the last suggestion. In September 1988, the Commonwealth Medical Officer reported, following a further examination, that the prognosis was poor until litigation was completed and that the plaintiff was:
" … unfit for continued employment and should be retired on the grounds of invalidity …
but …
… may, in due course, partially or completely recover and become fit for some form of Commonwealth employment. I recommend review in 12 months."
Following that report, the Commissioner advised the plaintiff that she could elect retirement or further review, but that if no contact was made within 14 days, she would be deemed to have retired. The letter further advised:
"You may appeal against the decision to retire you if, for example, you feel that you are fit for work in your normal area, or able to be redeployed to another position. The sole ground of appeal is that the action to retire you would be unreasonable."
Thus the positive suggestion by the Rehabilitation Officer of the Vocational Rehabilitation Centre that a program of re-integration be established became a requirement that the plaintiff prove she was capable of an alternative form of employment. The inevitable ensued. The plaintiff signed an acknowledgement, effective as of 18 November 1988, that she consented "to the giving of notice of retirement on invalidity grounds" and that she "forego the right of appeal against the giving of the notice." The acceptance was immediately processed and she was retired as of that date.
Detailed analysis of the process is warranted because of the issue of mitigation of damage. The plaintiff presented as one who, having been injured, did nothing except exacerbate her condition through an abrogation of responsibility and an expectation that others ought support her. Even accepting the complexity of the effects of physical injury on mental health and the onset of depression with the attendant "feed back" on the physical condition, the Court ought not permit passivity and a "victim mentality" to automatically result in an inevitable award of "maximum" damages. The evidence suggests that the plaintiff could have done more to improve her state, but, given her depressive illness, she was unable to do so drawing purely from her own resources. She required either stimulus and/or the provision of additional support. Those resources, available from and offered by the Vocational Rehabilitation Centre, were not provided by the employer to the plaintiff. Had they been offered and an appropriate program implemented to re-integrate the plaintiff into the work force and the plaintiff had refused to avail herself of those resources, then it could be said that she had failed to mitigate her damage. But they were neither offered nor provided. The consequence was that the plaintiff continued with an entrenched attitude of indifference, passivity and expectation that others were responsible for redress. That the recompense for that harm should be borne by a party other than the then employer is a matter of regret, but does not impact on any assessment of damages. The critical issues in this case concern any failure of the plaintiff to mitigate her damage, her true condition and responsibility taken for her future. She carries the onus of proof in relation to these issues (Vandeloo v Waltons Ltd [1976] VR 77). On the basis of the above analysis, no allowance is made for a failure to mitigate damage, although her claims concerning the nature of future disability ought be clearly scrutinised. However, the combination of physical injury with her psychological condition and the failure of the employer to properly implement a program of rehabilitation and re-integration requires the Court to make an award fully compensating the plaintiff for past loss.
Past loss of income
The plaintiff was employed as a Senior Registered Nurse, whose remuneration was determined in accordance with Determination No 195 of 1970, as affected by subsequent determinations, of the Australian Conciliation and Arbitration Commission. In 1991, the comparable award which would have been applicable to the plaintiff was the Nursing Staff (Repatriation Hospitals) Australian Nursing Federation Award, 1991, which in turn was replaced by the Nurses (Tasmanian Pubic Sector) Award 1992. Compensation will be assessed on the basis that the plaintiff would have stayed on her career path and continued to be paid in accordance with those awards. It may be that the plaintiff would have advanced in her profession and received a higher remuneration. It may be that the nature of the personality (insecurity) would have inhibited advancement and that her further study would not have come to fruition. The two factors require balance and no contingency will be applied. In addition, the plaintiff would have been entitled to a qualification allowance payable until February 1992, when its entitlement ceased by reason of an award restructuring. A sum of $3,194 will be allowed for this item of claim. A further claim was made on the basis of overtime. It is accepted that the plaintiff's duties included a requirement that she work during some weekends. The provision of overtime payments ceased as of 1 January 1994. Nevertheless, the calculations relied upon by the plaintiff before that date assumed an optimum allowance based on a maximum requirement and overtime worked. The plaintiff has not made out her case in relation to this head of damage and it ought not be accepted. The evidence in support of this claim was imprecise and the plaintiff's claim was one made on the basis of maximum theoretical entitlement. It was unsupported by evidence and was inconsistent with the actual figures shown in the records of the Department of Veterans' Affairs in relation to the issue of invalidity. The Court accepts that the plaintiff was required to work some overtime, and, on the basis of agreement, was entitled to work on other occasions. The figures claimed by the plaintiff in her particulars did not accord with the percentage calculations actually permitted by the relevant award or the calculations appearing in the relevant records of payments made to her.
The Court does not accept that the plaintiff would have been required to work the number of weekend shifts claimed. The Court does not accept that she was required to work five weekends in every eight for the full period between January 1985 and July 1993. Further, the Court is not satisfied that the calculations represent a correct representation as to the amounts actually paid. An example of the difficulty in accepting the number of weekends claimed can be seen in the figures presented for the period 7 November 1991 and 31 July 1993. There were 83 weekends within that period for which a total of 56 weekends were claimed. The percentage calculation is 67 per cent. The percentage figure for eight weekends for each 15 weeks is 53 per cent. There is a significant difference. Further, the monetary calculations were made on the basis that the overtime allowance represented a base salary rate plus 100 per cent or 50 per cent loading, depending on the day worked. The evidence did not support that basis of calculation, or at least the plaintiff has not established such to be the case. But, the fundamental difficulty lies with the claim by the plaintiff that, but for the accident, she would have worked full-time and each Saturday and Sunday for eight weeks out of each 15 for a continuous period of eight years. That claim is not accepted. However, the Court accepts that the plaintiff would have worked a reasonable amount of overtime during the relevant period.
Given the evidence in the records, the absence of fixed overtime requirements and the impression that the plaintiff seeks to enhance her claim by whatever means, the claim will be allowed at half of the claimed figure. On the basis of the figures provided to the Court, a sum of $44,000 will be awarded, such sum to represent overtime payment payable between 3 January 1985 and 3 December 1993.
The figures put forward by the plaintiff encompass the period 3 January 1985 until 31 August 1998 and amount to a net total of $442,501 (without, it is said, a taxation component). That figure includes the certification and overtime components. The award is based on acceptance of those figures, less the amount deducted for the reduction of the claimed overtime. An additional sum will be added to take into account lost income between 31 August 1998 and 1 May 1999, a sum which is calculated, in round terms, as being $22,000. The award is calculated on a proportion of the claimed figure, less the discount for overtime, plus the amount payable until 1 May 1999. The Court is conscious of the period for which Comcare payments have been calculated and those calculations will be accommodated in the provision of future loss. On the basis of the calculations provided, the award made is:
Loss of income 3/1/85 to 31/8/98 $397,513 Add loss of income 31/08/98 to 01/05/99 $22,000 Total $419,513
From this sum, a total of $269,000 must be repaid to Comcare and the Department of Veterans Affairs. The moneys paid by them include the payment of taxation. The difference, and only the difference, will attract a further taxation component. The parties will be afforded an opportunity to present further particulars and calculations in relation to any question raised by the Fox v Wood principle.
Past superannuation
The superannuation figures advanced on behalf of the plaintiff encompassed the period 1 July 1992 (the date of the relevant legislation) until 31 August 1998, and included a claim based on the full overtime figures already reduced. The figures covered by the claim are based on the percentage figure provided by the relevant legislation. Accepting the need to reduce the figure because of the overtime component and the absence of evidence or statutory guidance as to whether the plaintiff's superannuation entitlement would have been calculated on such overtime allowance, a figure of $7,000 will be allowed for this claim.
Griffiths v Kerkmeyer claim
The plaintiff claims the sum of $2,065 as being the cost to her then husband of helping with the lifting of washing, ironing and bed linen changing. It is also said that following separation the husband voluntarily continued to clean the household swimming pool and cut the hedge. The plaintiff says in her particulars that:
" … she was partially dependant on her husband for one hour domestic assistance per day until October, 1988 and only 45 minutes per fortnight until February 1994."
The particulars claim entitlement as and from 1 March 1985. A number of matters arise. The first is that a husband should not be paid for ordinary household duties performed during the incapacitation of his wife. The second is that the plaintiff contends that this head of damage should include a component allowing for the emotional trauma of marital breakdown and a payment to the husband subsequent to such breakdown. This is claimed despite evidence that the plaintiff believed the couple to have divorced in 1990, and the fact that the couple travelled together to Italy in the same year. Three conclusions might be permitted:
1 It is a genuine claim designed to obtain return for another.
2The plaintiff has a compensation syndrome, ie, that she should receive every cent to which fate has entitled her.
3It is an ambit claim, which she is entitled to make, the primary purpose of which is to enhance the prospect of settlement.
The Court will assume the third proposition. To do otherwise would be an affront to modern community values or an acceptance that inconvenience met by others through affection (as distinct from extraordinary assistance required by an acute medical condition) should be compensible. The claim is rejected.
Past household expenses
The plaintiff claims a sum of $6,864 for past household expenses. It is said that she employed household help for heavy work performed in the home. That assistance was recommended by the Vocational and Rehabilitation Unit in 1988. The Court accepts that the physical condition of the plaintiff necessitated some household assistance over and above that which the plaintiff would require had she been fully employed. In that respect, the claim differs from that made in relation to gardening expenses. Nevertheless, the claim lacks detail and substantiation. It is accepted that some assistance has been obtained and paid for, but that these payments would have been made in the event that the plaintiff had been able to continue in full-time work. In other words, the plaintiff, had she continued in full-time work, might have employed some household assistance. Such would be appropriate, but, given that the Court has awarded compensation for loss of income, the plaintiff is not entitled to double compensation. The sum of $4,000 will be awarded.
Future housekeeping and gardening expenses
The plaintiff has required regular assistance with garden maintenance and the basis and quantum of the claim is not unreasonable. An amount of $1,200 is allowed. The level of assistance projected into the future, based on the assumption that the plaintiff will maintain a significant garden until the date of death, is not reasonable. The plaintiff has regained some capacity and she will be able to organise the size of her garden and the physical demands it requires to meet her capacity. She will require some assistance but not to the extent and duration claimed. An amount of $2,000 will be allowed.
The same approach is taken in relation to household expenses. The figures provided by the plaintiff understandably lack detail and are based on a series of assertions and approximations. Nevertheless, the Court accepts that she has required assistance and the hourly rates claimed are not excessive. An amount of $5,000 is awarded. The claim for future expenses makes no allowance for incapacity associated with the natural ageing process, nor the ability of the plaintiff to accommodate her restrictions, nor for any improvement in her physical or psychological state. When allowance is afforded to those factors and allowing for some contingency, the amount of $5,000 will be awarded with respect to this head of damage.
Future capacity
Whilst resident in Tasmania, the plaintiff worked on a part-time basis as a volunteer with Lifeline, a community organisation, at its premises in Moonah. She presently performs voluntary work with the RSPCA for three hours each week. She is able to work for short periods of time and her ability to do so should improve. A significant problem is the psychological condition of the plaintiff which inhibits her willingness to attempt change. A further significant problem is the difficulty in finding suitable employment in line with her qualifications and physical capacity. The Court concludes there remains some residual capacity for paid employment. That conclusion is consistent with the opinions expressed by Dr Stewart, and, in part, Dr Silver. The two witnesses differ in that Dr Silver, whilst believing that the plaintiff retains residual physical capacity, thinks she will not return to work because of the accumulation of physical and psychological impairment. His value judgment is respected but continuation of psychiatric treatment (for which allowance is made) should result in a break between the nexus of attitude and capacity. Ms McMurtrie, an occupational therapist with the Commonwealth Rehabilitation Service, who performed a series of tests on the physical capacity of the plaintiff, assessed her as moderately fit (a finding somewhat contrary to the plaintiff's assertion that she had led a sedentary life) and, subject to the limitations caused by restricted movement, was capable of performing certain duties. The assessment indicated limited lifting and stretching capacity, but the existence of functional fitness for moderate activity. The tests showed that the plaintiff was capable of sedentary work. In the opinion of the therapist, the plaintiff would be unable to return to nursing duties because of:
"- restricted range of movement in her neck;
- reduced grip strength in her right hand;
-the difficulty of performing tasks involving holding her right arm forward or elevating her shoulder; holding any objects tightly, placing objects overhead;
- reduced manual handling strength;
- her constant pain, aggravated by the above factors and her poor sleep."
Those restrictions do not preclude the plaintiff from undertaking restricted work. Her inhibitions stem from psychological fracture and some physical limitation. The plaintiff was examined by Dr Stewart, a specialist occupational therapist retained by her legal advisers. He stated in his report:
"Mrs Falzari's clinical examination was surprisingly good. There were few clinical signs present to support her subjective symptoms. She had a good range of movement in her neck.
…
It is my opinion that Mrs Falzari is permanently incapacitated from the manual handling tasks associated with a nursing sister. She is clearly qualified to work in clerical or administrative aspects of nursing, something which Mrs Falzari recognises. However, she has no desire to return to anything other than a full hands-on clinical position.
…
Mrs Falzari is capable of working in an alternative position such as a shop assistant. She stated that the area of tourism is attractive to her. She would obviously have difficulties with a position which required repetitive bending. However, a position whereby her posture varied from sitting at a desk to standing at a counter would be within her capacity.
…
Mrs Falzari has remarkably good function and her level of disablement on a physical basis is minimal. She does suffer with ongoing pain and has had a period of suffering. In this respect I believe that her overall degree of physical disablement in respect to her neck is equivalent to 10%. Consideration of pain and suffering will inflate the overall disability to 35% of the neck as a whole.
It is unfortunate that Mrs Falzari feels unable to return to any form of nursing. She has administration skills together with a good education in nursing, and in my opinion there are areas in which she could become involved if she so desired."
That opinion is consistent with that expressed by Mr Duffy, the treating neurosurgeon, in a report dated 21 September 1989, and Mr Southby in a 1998 report.
The plaintiff, in her evidence, claimed total disability. But under cross-examination she told the Court that her physical disability had not prevented her from travelling to Europe, Hong Kong and other parts of Australia. However, she was reticent and evasive in her account of those journeys. She appeared reluctant to concede any enjoyment or capacity for any form of physical activity. Whilst that response, in part, flows from her psychological condition and, as such, is understandable, it reflects a continued determination on the part of the plaintiff not to accept responsibility for her own future. The medical evidence, both physical and psychological, suggests that she has a capacity for gainful employment and that such capacity can be enhanced by continued psychological improvement. The resolution of these proceedings should itself impact on that improvement.
The claim of the plaintiff is based on the assumption that she would have continued to be employed at her present level until she was aged 65. The first assumption is accepted and the second rejected. The evidence of Sisters Cuthbert and Wright suggests that the physical requirements of the nursing profession make it difficult for an older person to perform the required duties. Whilst, of course, there are other areas of nursing, such as administration, and there is a possibility that the plaintiff might have completed her administration course and moved into another area of her discipline, it does not follow that she would necessarily have worked beyond the age of 60. Against those possibilities are her residual capacity for employment and improvement in her physical and psychological condition. It is impossible to reconcile these opposing possibilities and two methods of assessment suggest themselves. The first is to accept the figures as calculated by the plaintiff and to discount for the contingencies of early retirement and possible future employment. The second is to reduce the claimed period of future employment and to make little further discount for contingencies. On either method, the salary figure of $613, advanced on behalf of the plaintiff, is accepted. The first calculation, based on the current age of the plaintiff of 52 years and nine months is:
520 x 613 = $318,760
Applying a discount for contingencies of 25 per cent, the calculation becomes $239,070. The second method is to assume retirement at 60 and provide a smaller discount for contingencies. The resultant calculation is:
337 x 613 = $206,581.
Applying a 5 per cent discount, the figure is $196,250. Making allowances for error in favour of the plaintiff, a median figure of $217,000 will be awarded.
Future superannuation
The claim made by the plaintiff is, of necessity, imprecise and does not take into account any entitlement to receive a lump sum payment upon retirement. The calculations are based on the provisions of the Superannuation Guarantee (Administration) Act (Cth) 1992. The legislation provides for the payment of superannuation as a percentage figure of salary at a commencing rate of 3 per cent in 1993, rising to 9 per cent in the year 2003. Accepting the salary figure used by the plaintiff, the figure claimed is for the sum of $32,076. Applying the same methodology as that first employed in relation to loss of future income, the figure will be discounted by 25 per cent resulting in a calculation of $24,057. An alternate method of calculation could be the assumption of a median retirement age of 62.5, which, on the plaintiff's calculations and without further discount, would result in an award of $24,884. The sum which will be awarded is $24,000.
Future medical expenses
The original claim made by the plaintiff was for an approximate amount of $94,700, calculated in the following manner:
General practitioner $3,660 Denervation procedure $40,700 Specialist $2,000 Psychiatrist $32,500 Massage $15,800
During the course of submissions the amount claimed for future psychiatric treatment was reduced to $7,400. That reduction was an appropriate concession. Given that the effects of future psychiatric treatment should assist in the rehabilitation of the plaintiff and render her more capable of coping with physical restrictions and applying an appropriate "pain management" regime, the cost is reasonable. It is clear that the plaintiff will require ongoing treatment from her general practitioner, and the claimed frequency of six visits per year is not unreasonable. The claimed figure of $3,660 will be allowed. The claim for massage is based on a fortnightly session. The Court does not accept that the present number of sessions will be required in future as the calculation does not take into account the contingencies of the natural ageing process or any future improvement. However, the claim does represent a reduction from the claimed present frequency of four sessions per month. It is accepted that there will be a continued need for massage, although not at the rate or duration as claimed. An allowance of $7 per week will be made. The relevant calculation is:
$7 x 1058 = $7,400.
The sum of $7,000 will be awarded in relation to this claim.
A significant issue contested during the trial was the need for and efficacy of a facet joint denervation procedure. Some medical witnesses expressed reservations about the nature and efficacy of this procedure. However, the plaintiff, not disposed to accept a positive description of her condition, believed that the treatment had been beneficial and that she had experienced significant relief from pain for a period after each procedure. The Court accepts that the procedure, whilst not treating the cause of pain or physical restriction, does inhibit pain and discomfort, which in turn impacts on the psychological well-being of the patient. However, there may come a time when the procedure produces a diminishing return because of the effects of scar tissue and the like. Further, the calculations advanced on behalf of the plaintiff do not take into account the ageing process or any possibility of improvement. In particular, the Court does not accept that the plaintiff will either require or undergo 30 further such procedures during her lifetime. Applying those conclusions and contingencies, the claim will be reduced by approximately one half. The sum of $20,500 is allowed.
The claim for the payment of a specialist's fee will be dealt with in a similar manner. The need for specialist treatment is said to arise following each denervation procedure. Such is reasonable and a similar discount will be made reducing the claim to $1,000. The claim for future medical expenses will be allowed in the following amounts:
General practitioner $3,660 Psychiatric treatment $7,400 Massage $7,000 Denervation procedure $20,500 Specialist treatment $1,000 TOTAL $39,560
Future pharmaceutical expenses
The plaintiff regularly takes digesic medication. Her present intake is approximately two tablets per day. She says that the quantity is reduced because of the beneficial effects of denervation. Her claim is based on the ingestion of four tablets per day, plus the full costs (made in respect of future medical treatment) of further denervation procedures. The respective claims do not make allowance for the effects of the other and their formulation is unreasonable. The claim for digesics will be allowed on the basis of the current rate of ingestion. That allowance reflects some future amelioration caused by the effects of denervation and the stabilisation of the condition of the plaintiff. An estimated cost of $4 per week will be accepted for the purpose of calculation. The plaintiff continues to take medication for depression and the Court accepts that this intake will continue, although on a reduced basis. The figure of $3 per week represents the costs of this item, together with the cost of the medication Diazepam and the replacement of heat packs. The calculation based on a weekly figure of $7 per week becomes:
1058 x $7 = $7,406
The figure of $7,400 will be allowed.
Total
The figures (rounded out) of assessment are:
Pain, suffering and loss of amenity
$45,000 Loss of past income $419,500
Loss of past superannuation $7,000
Past medical and associated expenses $75,300
Past household and gardening expenses $6,200
Future household and gardening expenses $7,000
Future medical expenses $39,500
Future pharmaceutical expenses $7,400
Future loss of income $217,000
Future loss of superannuation $24,000
$847,900
Damages are assessed in the sum of $847,900. Counsel will be afforded the opportunity of making further submissions in relation to the effect (if any) of a Fox v Wood component. The Comcare payments relate to the period ending 1 June 1999. Given that there may be a need to make some minor adjustments in relation to past and future income calculations, counsel are invited to make further submissions and provide additional calculations with respect to this matter.
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