Finnamore v Beveridge - [2001] WADC 110

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: BUNBURY

CITATION: FINNAMORE -v- BEVERIDGE & ANOR [2001] WADC 110

CORAM: NISBET DCJ

HEARD: 3 AND 4 APRIL 2001

DELIVERED : 17 MAY 2001

FILE NO/S: CIV 36 of 1999

BETWEEN: TAMARA FINNAMORE
Plaintiff
AND
WANDA LOUISA BEVERIDGE
First Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Defendant

Catchwords:

Negligence - Motor vehicle accident - Statutory warranty - Unlicensed driver - Driver allegedly under the influence of intoxicating liquor

Damages - Assessment - Young female with severe facial injuries - Retained capacity for employment - Whether being exercised

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Claim allowed, damages awarded of $112,834.94

Representation:

Counsel:

Plaintiff:     Mr D R Clyne
First Defendant             :     Mr E J Myers
Second Defendant         :     Mr E J Myers

Solicitors:

Plaintiff:     Young & Young
First Defendant             :     Edward John Myers
Second Defendant         :     Edward John Myers

Case(s) referred to in judgment(s):

Graham v Baker (1961) 106 CLR 340
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Medlin v State Government Insurance Commission (1995) 127 ALR 180
Pine Hauliers Pty Ltd v State Government Insurance Office (1986) 4 ANZ Insurance Cases 60-756

Case(s) also cited:

Bowen v Tutte (1990) A Tort Rep 81-043
Cassidy v State Government Insurance Office [1965] WAR 81
Faram v State Government Insurance Office, unreported; FCt SCt; Library No 960472; 29 August 1996
Keen v Mackay [1999] WASCA 193
Leigh v Quito Pty Ltd (2000) 23 SR (WA) 285
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Mulcahy v The Motor Vehicle Insurance Trust (1981) Australian and New Zealand Insurance Reporter 60-453
Thomas v O'Shea (1989) A Tort Rep 80-251

NISBET DCJ: On 14 March 1997 the plaintiff was severely injured in a motor vehicle accident whilst a passenger in her own vehicle which was then being driven by the first defendant. The accident occurred in Lukis Street, Balingup at sometime shortly before midnight. The accident occurred when the vehicle suddenly left the road and collided with a tree.
The plaintiff was born on 21 December 1978 and was a little over 18 years of age at the time of the accident and a little over 22 years of age at trial. At the time of the accident the plaintiff was employed by the first defendant as a nanny and the circumstances of her employment were such as to give rise to a controversy, the settlement of which is critical to the outcome of this case. This is because the second defendant pleads that the plaintiff was in breach of the warranty in the statutory policy of insurance provided by the Motor Vehicle (Third Party Insurance) Act 1943 which provides:
"The owner warrants that the vehicle will not be ‑
(a)…
(b)…
(c)driven by or in charge of himself or any other person who is unlicensed to drive or who is under the influence of intoxicating liquor.
It shall be a defence to any action in respect of the warranty contained in subclause (c) if the owner proves that the vehicle was so driven or in charge of such other person without his knowledge or consent."
The second defendant pleads that the plaintiff was in breach of both limbs of subclause (c) in that it alleges she knowingly permitted the first defendant to drive when she was both unlicensed and under the influence of intoxicating liquor. The second defendant's case was that the plaintiff knew that the first defendant was unlicensed from the beginning, in that this was the stated reason for her employment.
The plaintiff testified that she was introduced to the first defendant by a friend who told her that the first defendant was starting a new job in Newlands and was looking for a nanny to care for her two small children. The plaintiff indicated that she was interested in this position and the friend arranged a meeting between her and the first defendant which took place she said about a month before the accident. During the course of this meeting it was agreed that the plaintiff would move into the first defendant's house and care for her children Kiama and Tiesha. Kiama was of school age and the plaintiff's job would be to get her ready for school, take her to school and collect her after school. She would care for the youngest child Tiesha during the day until the first defendant came home from work. As she understood it Kiama was in grade one at primary school and would therefore have been either six or seven years of age and Tiesha was either four years of age or turning four in that year. Additional duties would be that occasionally she was to cook dinner and clean the house. Whether the plaintiff was to be paid for this work, and, if so, precisely how much, was never established. I formed the impression that she would receive free board and lodging, claim a full unemployment benefit and "receive a little bit of money".
The plaintiff could not recall the date when she started work but said that it was approximately a week and a half before the accident. The plaintiff additionally said that the meeting between her and the first defendant had taken place in Balingup and that at the time she lived in Balingup and walked to the meeting at the house of the mutual friend and observed that the first defendant had driven there.
Having moved in with the first defendant the plaintiff observed that she drove the 150 to 200 meters from her residence situated on the South‑West Highway in Newlands, to her place of employment, and drove home again. Additionally she observed that on the weekend prior to the accident the first defendant drove her children to Bunbury in her car and on other occasions she observed the first defendant driving to the shop and to Kirup.
The first defendant's evidence about her engagement of the plaintiff as her nanny was somewhat different. She said that she first met the plaintiff about three weeks before the accident and agreed that the meeting had been arranged by mutual friends who knew she was looking for a nanny and suggested the plaintiff as a candidate for employment. She agreed the meeting took place in Balingup at a time when she was living in Newlands. She said that the proposal was that the plaintiff was to have a registered car and a motor driver's licence. She said that she stipulated that the plaintiff had to have a registered car and a licence "Because I didn't have a licence and my car was unregistered so she could not use that" and that it was necessary for her to have a motor driver's licence "Because we lived about five kilometres out of Newlands - out of Kirup from the primary school. So she had to take my daughter to school and she had a younger one at home with her."
She agreed that she used to drive her car about 200 meters across the road to her place of employment and that her motor vehicle was unlicensed.
In cross‑examination the first defendant agreed that she regularly used to drive her car notwithstanding that it was unlicensed and notwithstanding that she had no licence and she agreed that to all intents and purposes she was driving around as if she had a registered car and was the holder of a valid driver's licence. She reiterated that the arrangement was that the plaintiff had to have a licence and a registered car because "I didn't have one" (meaning either). She was emphatic that this was the arrangement:
"The first day that I actually met [the plaintiff] we were sitting there and we were talking about her having a licence and a registered car because I did not have a licence and my car was not registered and the day when we left home, I can clearly remember laughing and joking because at that stage, yes, I did not really care that I did not have a licence."
During the course of his final submissions Mr Clyne for the plaintiff submitted that it had never been put to the plaintiff that it was a term of her engagement by the first defendant that she have a registered motor vehicle and a valid motor driver's licence and he asked for all the usual inferences to be drawn against the first defendant in consequence. My recollection at the time of this submission was that it had been put and, the matter being heard in Bunbury, I undertook to examine the transcript after I had arranged for it to be typed upon my return to Perth. The transcript at p 45 reveals the following:
"Now, when she engaged you to be her nanny, didn't she tell you that she did not have a licence? No.
And wasn't it the case that she required you to be the nanny and look after her children and drive them to school because she did not have a licence? No.
I would suggest to you that that was made known to you by Wanda Beveridge, the fact that she did not have a licence, and that is why she wanted a nanny? No, I did not know she did not have a licence. Wanda drove every day."
This is a straight out credibility contest, as both counsel conceded. Observing the demeanour of each of the plaintiff and first defendant giving evidence on this issue I thought the plaintiff gave her evidence in a clear straight forward fashion with no hint of prevarication or doubt. On this issue I thought the plaintiff a truthful witness. The first defendant on the other hand unsettled me by her demeanour. She seemed to be holding back. Her appearance suggested some sort of animosity towards the plaintiff but for what reason I can neither say nor even conjecture. I entertain considerable misgivings about the credibility of the first defendant on this issue. Additionally, to me, the evidence of the first defendant does not ring true. She had and admitted a demonstrated contempt for the law in that to her knowledge she was the owner of an unregistered and unlicensed motor vehicle and that she herself was an unlicensed driver and yet she was prepared to drive her vehicle with her children in it as if both she and her vehicle were licensed, without the slightest care for the consequences. Why would a person like this who so drove on the weekend before her engagement of the plaintiff as her nanny, have even bothered to tell the plaintiff she was unlicensed let alone deliberately employ someone who was licensed in order to drive for her? In my opinion the evidence of the plaintiff is to be preferred to that of the first defendant on this issue, and I find that she did not know that the first defendant was unlicensed when she permitted her to drive her car on the evening of the accident.

THE ACCIDENT

On the day of the accident the plaintiff said she performed her usual duties in the morning, getting Kiama ready for school and driving her to school, returning to Newlands to tidy the house and look after Tiesha when the first defendant returned home early from work and wanted to see her mother who lived just outside of Bridgetown on a farm. The plaintiff thought the first defendant was accompanied by a female friend the only name of whom she could remember was Rae. Rae was apparently driving a motor vehicle of her own which the plaintiff thought was a Gemini. The plaintiff describes all three of herself, the first defendant and Rae driving in separate cars to Kirup where the plaintiff picked up the first defendant's daughter Kiama from school, apparently before school had finished, and then the three of them again driving in separate cars to Bridgetown where, going to the first defendant's parent's house and finding no one was home the first defendant decided to then go and pick up her cousin. The plaintiff left her vehicle at the home of the first defendant's mother and went with the first defendant and her two children in the first defendant's car to Bridgetown where they picked up the first defendant's cousin Geoffrey. From there they drove back to the home of the first defendant's mother where the plaintiff got into her car with the two children of the first defendant and all concerned drove the three vehicles back to Newlands, the first defendant driving her cousin. The plaintiff added that she, the first defendant and Rae had stopped at the Greenbushes Hotel for "a couple of beers" on their way to Bridgetown.
Back at the first defendant's house in Newlands the plaintiff and first defendant decided to go to Bridgetown for the night for some entertainment, the first defendant agreeing to be "skipper", by which everyone concerned understood that the first defendant had agreed to either refrain from drinking or moderate her drinking so that she would be in a fit condition to drive. The first defendant then drove the plaintiff's vehicle in which the plaintiff, Kiama and Tiesha were passengers, to Bridgetown, and went to Scott's Tavern. At the tavern the plaintiff was drinking and playing pool and she was able to observe the first defendant sometimes during the evening. Her two daughters were apparently in the dining room of the tavern eating chips with their grandparents. The plaintiff said during her evidence‑in‑chief that she only observed the first defendant have a bourbon and coke.
Leaving Scott's Tavern at about 9.00 pm the first defendant drove the plaintiff and her daughters to Balingup with the young girls asleep in the car. They had decided to visit the home of the plaintiff's mother and for the journey, the plaintiff said that she and the first defendant had purchased six stubbies of Emu Bitter beer. The plaintiff was drinking on the journey and she said that the first defendant "opened one when we got into the driveway" (of her mother's house). The plaintiff finished the drink that she was drinking in the car at her mother's home and then opened another, tried on some clothes, learned of a party in Balingup and went to greet some of her friends whom she believed would be at that party. She then said:
"I asked Wanda to drive me up there and we went up there and we stayed for approximately 10 minutes, not very long, just to go and say hello to some people, then we got back in the car with Wanda driving and I remember pulling out of the driveway and I remember turning one corner. I don't remember turning the next corner and I woke up next - next thing I remember I woke up with the dashboard right in front of my face."
In cross‑examination the plaintiff appeared to me to be defensive about what she had seen the first defendant drinking during the course of the afternoon and evening prior to the accident. Asked how many drinks she saw the first defendant have at the hotel at Bridgetown she replied: "We had that one drink together and I saw her have - well, I saw her have another drink but I don't know how many after that.", having previously said that she had seen the first defendant have a beer which was in addition to the bourbon and coke she had described previously. The plaintiff said she was feeling a little drunk when she left Scott's Tavern and said that she definitely was influenced by alcohol at that time. Asked about her observations of the first defendant she replied that she seemed fine but that she was happy. Questioned about whether the first defendant was drinking while driving the car from Bridgetown to Balingup the plaintiff was, in my opinion, defensive. She was defensive about what beer had been drunk at her mother's house and the party but nevertheless maintained that she did not think that the first defendant had had very much to drink:
"I would suggest to you that at the time she was driving Wanda Beveridge was influenced by alcohol? She had had something to drink.
And you appreciated that it affected her? No, it was stated at the start that she would be skipper and we did not think - I did not think she had had very much.
Alright. I would suggest to you that you did appreciate that she was affected to some degree by the alcohol she had consumed? No."
The first defendant gave evidence that when she left Scott's Tavern in Bridgetown:
"I had had a few drinks. I was not feeling really drunk but I probably would have been over the limit anyway."
In cross‑examination she explained that by "over the limit" she meant "over 0.08" following which this exchange took place:
"You did not think that you were too drunk to drive a car with the children in it, do you? When you look at my driving record, 0.08 is not really too drunk.
What does that mean? I was known for drinking and driving quite often.
You were known for drinking and driving? I was pulled over quite often.
With the children in the car? Occasionally.
You had been picked up for drinking and driving with your children in the car before? No."
I thought the first defendant too, was defensive in giving her evidence and again I formed the impression that there was some underlying hostility between the first defendant and the plaintiff but for what reason I could not say.
The only other witness to give evidence about the state of sobriety of the first defendant on the night of the accident was the plaintiff's mother. She however was a most evasive witness and quite unreliable and I accordingly attach no weight to her opinion of the appearance of the first defendant that night.
The photographs of the plaintiff's vehicle following the accident showing the state of the vehicle and the scene do not assist in the determination of this issue. Whilst they depict a remarkably bad crash from which both plaintiff and first defendant are lucky to have escaped with their lives, the absence of any apparent skid marks does not assist with the drawing of any inferences as to whether or not the first defendant was affected by liquor at the time of driving.
Finally, the first defendant was convicted of driving with a blood alcohol level in excess of 0.05 per cent alcohol and driving without a licence in consequence of her driving of the plaintiff's vehicle on the night of the accident.
In the circumstances as I have related them, two questions arise for answer. The first is: Was the first defendant under the influence of intoxicating liquor? and the second is: If the first defendant was under the influence of intoxicating liquor, did the plaintiff know? If the answer to the first question is "no" then obviously the second does not fall for consideration.
The burden of proving that the first defendant was under the influence of intoxicating liquor is on the second defendant, it having pleaded the issue raising the statutory warranty in defence to the plaintiff's claim for damages against the first defendant: Pine Hauliers Pty Ltd v State Government Insurance Office (1986) 4 ANZ Insurance Cases 60‑756. (If it was proven that the first defendant was under the influence, the burden would then shift to the plaintiff to prove she didn't know). Whilst there are some disquieting features of this case I am ultimately satisfied that the second defendant has not discharged the onus of proof upon it in respect of this issue. There was no evidence before me which indicated that the first defendant's behaviour on the night in question would have led to anybody observing it to conclude that she was under the influence of liquor. Her conviction for driving with a blood alcohol limit in excess of 0.05 per cent does not enable me to infer that she was driving under the influence of liquor as would a blood alcohol level in excess of 0.15 per cent.
Accordingly, no breach of the statutory warranty pleaded by the second defendant having been revealed by the evidence, and the negligence of the first defendant being obvious, the plaintiff's claim must succeed.

ASSESSMENT OF DAMAGES

Loss of Amenities

Following the accident the plaintiff was taken by ambulance to Bridgetown and from Bridgetown to Manjimup where she was taken by the Royal Flying Doctor Service to Perth and by ambulance to Sir Charles Gairdner Hospital. She was given some emergency treatment there including exploratory surgery on 15 March 1997 following which further scans and x‑rays were arranged whereafter she was returned to theatre on 21 March 1997 and underwent a very long operation to repair the damage to her face. In the collision she had been thrown forward (notwithstanding she was wearing a seatbelt apparently) and her face hit the dashboard of her motor vehicle. Mr Christopher Allan, a Plastic and Reconstructive Surgeon, noted the plaintiff's severe facial injuries. She had multiple deep facial lacerations to her nose and upper lip. The upper lip was split in the midline right through to the inside of her mouth. She had extensive facial bone fractures of the whole of the mid face. She appeared to have a widening of the orbits of the eyes and an inability to gaze upwards with the right eye. There were fractures to both the right and left malar bones and comminuted fractures of the nasal bone. The whole of her upper teeth were seen to move in one block. CT scans were performed and, as mentioned, when she was taken into theatre for exploratory surgery to gauge the extent of her injuries on 15 March 1997, this revealed extensive multiple fractures to the whole of her mid face.

Readmitted to surgery on 21 March 1997 all of her fractures were exposed which, in crude laymen's terms meant that what happened was that Mr Allen made an incision across the top of the plaintiff's head from ear to ear and then peeled her face from her skull to reveal all of the underlying fractures. He then proceeded to realign her teeth with wires and from there to reduce the multiple fractures of the naso‑ethmoid complex with titanium plates and wires. Bone had to be taken and grafted and overall more than nine titanium plates and over 40 screws were inserted to the front of the plaintiff's skull to stabilise her fractures. During the course of this the plaintiff was required to breathe through a tracheostomy tube.
As can be imagined the injuries described were serious and severe. She remained as an in patient both in intensive care and then in the surgical ward of Sir Charles Gairdner Hospital until her discharge on 2 April 1997, returning for admission on 9 May 1997 for removal of her intermaxillary fixation wires. In the period between her discharge from hospital on 2 April and her readmission for removal of the fixation wires on 9 May 1997 the plaintiff convalesced at her mother's home in Balingup. During this period she experienced considerable discomfort. She could only eat liquids ingested through a straw. She was weak and spent a lot of time in bed. After the wires in her jaws were removed the plaintiff could again eat normally and it would appear that she gradually regained her strength but still had difficulty, particularly with her right eye which continued to weep. On one occasion she noticed that it exuded puss and upon investigation it appeared that her right tear duct was blocked and she underwent a repair on 24 November 1997 performed by Dr Crawford at St John of God Hospital in Subiaco. Dr Crawford noted in his report of 8 April 1999 that postoperatively the plaintiff made a good recovery, her right eye ceased watering and there was no discharge. There was no deleterious effect on her vision because he noted her visual acuity on the right at 6/6 and on her left at 6/5. He went on to report "the difference between these two eyes is only marginal and may well have existed prior to the accident and would not have been noticed by the patient."
Subsequently, concerns about the plaintiff's mental state caused her to be referred for neurological and neuro‑psychological testing neither of which revealed any brain damage.
Without doubt the plaintiff has made a remarkable recovery from very serious head and facial injuries the credit for much of which must go to Mr Allan. He has achieved a truly spectacular result with the plaintiff. As the photographic Exhibits P6 disclose, the plaintiff has a pleasant attractive face, an undiminished smile and some barely noticeable scarring although on close examination of each of the photographs and upon my own observations of the plaintiff in Court at the invitation of her counsel, very fine scar lines can be noticed around the nose and eyes and a more pronounced scar left by the tracheostomy. The tracheostomy scar is capable of being revised for a better result but the plaintiff is understandably reluctant to have further surgery.
Whilst the plaintiff's scarring is relevantly inconspicuous (save for the tracheostomy scar) and does not cause the plaintiff any physical discomfort, the position with regard to the titanium plates in her face is different. She described the plates and demonstrated how she could feel most of them. The most prominent is the plate that extends across the right temple towards the plaintiff's right eyebrow which has left a slight depression in the temple and an absence of muscle tissue. She has plates on the bridge of her nose which she can feel, on either side extending out underneath the eyes. Another plate the plaintiff believes she can feel is on the right side of her face from her upper cheekbone across towards her right ear although she was not as sure that that was in fact a plate. Having regard to the nature of the injuries described by Mr Allan and the positioning of the plates it seems quite probable that it is. Certainly there is an altered sensation there. These are the plates that the plaintiff described as being the most prominent. Others she can feel from time to time. She described the feeling as being like a long bumpy line or a line of bumps underneath the skin. Some of them continue to trouble her, describing one underneath her right eye being as if the skin is rubbing against it and accompanied by a feeling of numbness. There are other areas of numbness not associated with the plates and in particular her top lip underneath her nose is worrisome for her.
As I have already indicated, the skill of Mr Allen has preserved the plaintiff's facial attraction however she demonstrated that the reconstruction of her nose left her with a smaller nose without a bridge making it difficult for her to wear glasses and in particular sunglasses which she requires because of her susceptibility to glare. Additionally, as I understood the plaintiff's evidence, there was a difficulty in that the normal clips associated with spectacles sitting on either side of the nose are uncomfortable for the plaintiff because of the scarring and plating and nose reconstruction, in addition to the difficulty of having spectacles sit on the nose by reason of its altered structure.
It is fair to say that none of the bumps described by the plaintiff as being present by reason of the underlying titanium plates or the altered appearance of the plaintiff's nose, are readily noticeable in ordinary light indoors (ie, in my case, in a Courtroom). Nor do they appear to be readily apparent in photographs, which can be unkind to one's appearance, particularly without makeup. I am persuaded however that the presence of the plates would be permanently uncomfortable for the plaintiff, at best, and often painful.
Dealing with other of the plaintiff's injuries she said she continues to endure pain in her neck, double vision upon direct upward gaze, and blurred vision at the extreme left. Neither the double vision or blurred vision are disabling conditions and might be categorised at irritating rather than debilitating. As to her neck injuries, these are vaguely expressed, without any discernible pathology, and probably of the soft tissue type. Nevertheless it is not difficult to imagine that given the injuries to her mid face, there would have been considerable neck involvement when her head hit the dashboard of her car. The difficulty is that there is no evidence of the prognosis for her neck symptoms. In all the circumstances a substantial award is called for. I assess her pain, suffering and general loss of amenities at 25 per cent of a most extreme case and award her $56,250 (s 3C of the Motor Vehicle (Third Party) Insurance Act 1943 refers).

Economic Loss

Whilst the plaintiff completed year 12 of her high school in 1995 at the Bunbury Senior High School, she did not sit the tertiary entrance examination and her pass marks were not sufficiently high to enable her to enrol in the first course of her choice at TAFE namely the Diploma of Child Care. She was however accepted into a course providing a certificate of human services which apparently trains students for employment with disability services, aged care, welfare and the like. The plaintiff found this course not to her liking and only attended it for one semester. During the period of her late schooling, school holidays and the first semester of her TAFE course, the plaintiff had been employed part‑time as a waitress at the Old Bakery Tearooms in Balingup. She increased her hours in that employment and up until the time when she went into employment with the first defendant she would work there one or two hours a day at least Monday to Friday and three or four hours a day on the weekends earning on average about $35 to $40 per week after tax.
The plaintiff claimed that having found the human services course not to her liking she decided to save in order to return to study and obtain a certificate in child care, i.e. a lesser qualification than the diploma course she had originally hoped to enter. She said that she did enter this course in February of 1998 but found herself unable to cope after four or five weeks and she left it. She said that her inability to cope was because it was very stressful she became agitated and could not concentrate which she attributed to the after effects of her accident.
Asked about her plans for the future she evinced an intention to travel around Australia on a working holiday and then to work on a self sufficient property by which I understood her to mean a hobby farm where she could engage in an alternative life style, growing vegetables, raising animals etc. Both of these intentions are inconsistent with a claimed fear of driving and a physical incapacity for full‑time employment.
Since the accident and after her convalescence the plaintiff has worked thinning and packing in an orchard (with some difficulty), cleaned houses, worked in the general store at Balingup and at the Old Bakery Café. She has applied for permanent full‑time employment in Balingup but has been unable to obtain it and it appears to me this is largely by reason of the fact that Balingup is a small community with little employment opportunity. Nevertheless she has worked longer hours and earned more income since the accident that she did before (around $120 per week compared with $35/40 per week). There was little or no evidence of the plaintiff seeking employment in Bunbury or other regional centres, save for inquiring "a bit" at Donnybrook and "putting her name down" at Coles in Bunbury.
Notwithstanding her evidence to the contrary I think it quite unlikely that the plaintiff would have undertaken the study required to obtain a child care qualification of any type, as her choices of employment disclose, particularly with the first defendant. She was content with casual work and lacked both the educational standard, and, I think, the motivation, to return to study.
Presently I think the plaintiff is fit for full‑time employment but chooses to work part‑time. Firstly, her mental state examination in February 1999 disclosed no loss of concentration, perception, thinking or memory: report of Dr Lord 26 February 1999 (Exhibit P1). Secondly, her physical injuries were thought by Mr Allan to render the plaintiff unfit for work for six months from the accident and fit for light duties only for three months after that, i.e., she was fit for full‑time work nine months after the accident: report 25 June 1998 (Exhibit P1). Whilst I note Dr Well's opinion in his report of 22 February 1999 that in August 1998 the plaintiff was fit for light duties only, this does not accord with my observations or those of Mr Allan.
The plaintiff's pre‑accident history makes the assessment of past economic loss difficult of precise calculation, however on balance she has demonstrated a lost capacity to earn income for a period of 12 months following the accident at a rate equivalent to the minimum adult wage. Thereafter she was capable of earning income but chose not to exercise her retained earning capacity save for casual and part‑time employment. Nevertheless she did suffer a diminution in her income earning capacity in that more physically demanding occupations such as fruit picking, thinning and packing caused an onset of neck pain such that she was not able to complete a full day's work from time to time during her employment with Mr Hawter (his evidence at t/s 63 refers).
Accordingly, it seems to me that I should allow the plaintiff an amount for past economic loss assessed on the basis of one year's loss of income at the rate applicable to adults earning the minimum wage, together with a sum to compensate the plaintiff for the loss of capacity for heavy physical work for the period from 14 March 1998 until judgment.
The former calculation is difficult to make in the absence of any evidence of the minimum adult wage prior to the period covered by Exhibit P3, viz 1 August 2000, after which it is $400.40 per week, however $400 per week seems a reasonable figure to use and accordingly 52 x $400 = $20,810. Thereafter, my assessment of the plaintiff's pre and post accident capacity for employment is that she has lost the outer range of her capacity, namely that for heavy physically demanding employment. She could work full‑time in less demanding occupations such as waitress, shop attendant and the like.
The plaintiff is entitled to be compensated for any loss of earning capacity: Medlin v State Government Insurance Commission (1995) 127 ALR 180. But only when that is or may be productive of loss: Graham v Baker (1961) 106 CLR 340, 347. Here this was productive of loss in that with the mutual agreement of her employer she resigned from her job with Mr Hawter (a situation not unlike the plaintiff's forced early retirement in Medlin) and worked thereafter in physically less demanding employment. The difficulty is that the plaintiff is earning more now than she was pre‑accident, could work full‑time earning at the rate she could have earned before her accident but in my assessment deliberately chooses not to.
In these circumstances in my opinion the plaintiff is entitled to an award which recognises her loss of capacity but denies over compensating her when the loss occasioned to her is modest. This can be done by ascribing a percentage to her lost capacity (say 10 per cent) and then calculating an award based on a loss of 10 per cent of the minimum adult wage for the relevant period (or, looking to the future, periods). This in my opinion would be too artificial (recognising that all assessments have a degree of artificiality about them) and would overcompensate the plaintiff for losing a capacity she never intended to exercise anyway, or, in the case of her stated intentions in respect of child care, would not have been able to realise because of her poor academic achievement.
This situation calls for a global assessment of her past loss of earning capacity after 14 March 1998 which I put at $3,000. The total for past economic loss is therefore $23,800 upon which interest at 3 per cent per annum from 14 March 1998 should be allowed. This calculates out at $2,267.44.
The assessment of future economic loss involves all of the same difficulties of assessment and again a global assessment is called for, particularly having regard to the further contingencies ordinarily provided for, and I allow $10,000 under this head.

Other matters

The plaintiff claimed for special sunglasses with full behind the ear side arms by reason of the altered shape of her nose making ordinary "across the counter" sunglasses unsuitable. She required sunglasses she said because of her increased susceptibility to glare. The claim made in accordance with Exhibit P8 is for $358, but this makes no deduction for the cost of readily available sunglasses she would otherwise have worn. An appropriate allowance is $300.
The plaintiff has made other claims, not in her statement of claim, but in a schedule of damages filed and served pursuant to a practice direction which in fairness to her should have the same effect as a pleading. The claims were for:
1.      a new pair of sunglasses every two years for the rest of her life;
2.      superannuation entitlements;
3.      past and future medical expenses.
Further, in her statement of claim she pleads that she has incurred travelling expenses but made no claim and provided no particulars of them. Dealing with these in turn:
1. there was no evidence of the life of a pair of sunglasses;
2.there was no evidence about superannuation of the type required by Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192;
3.there was no evidence of past hospital, medical and associated expenses. This sum has now apparently been agreed by the parties at $19,217.50. As to the future, the claim came down to one for "occasional" physiotherapy expenses (no particulars were provided outside of Exhibit P9 and no expert evidence was led about her need for continuing physiotherapy). Additionally there was the claim for the cost of revision of the tracheostomy scar even though the plaintiff said she did not intend to have it done.
Having regard to the state of the evidence there should be a modest allowance for future physiotherapy for which the standard consulting fee is $34.55 per visit, and for the prospect of the plaintiff undergoing a revision of her tracheostomy scar. A global assessment is required in the circumstances and I allow $1,000.

Summary

General damages  $56,250.00
Past economic loss  $23,800.00
Interest  $2,267.44
Future economic loss  $10,000.00
Sunglasses  $300.00
Past hospital, medical expenses  $19,217.50
Future medical expenses      $1,000.00
$112,834.94