Flavel v Lawson
[2000] WADC 325
•15 DECEMBER 2000
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: FLAVEL -v- LAWSON [2000] WADC 325
CORAM: MARTINO DCJ
HEARD: 20-23 NOVEMBER 2000
DELIVERED : 15 DECEMBER 2000
FILE NO/S: CIV 2738 of 1996
BETWEEN: JOSEPHINE FLAVEL
Plaintiff
AND
DAVID TREVOR LAWSON
Defendant
Catchwords:
Damages - Personal injuries - Pre-existing condition
Legislation:
Nil
Result:
Damages assessed at $261,100
Representation:
Counsel:
Plaintiff: K J Bradford
Defendant: B A Mangan
Solicitors:
Plaintiff: Bradford & Co
Defendant: Phillips Fox
Case(s) referred to in judgment(s):
Jobling v Associated Dairies Ltd [1982] AC 794
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Newman v Nugent (1995) 12 WAR 119
Purkess v Crittenden (1965) 114 CLR 164
Watts v Rake (1960) 108 CLR 158
Wynn v NSW Insurance Ministerial Corporation (1995) 70 ALJR 147
Case(s) also cited:
Bennett v Minister for Community Welfare (1992) 176 CLR 408
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Chappel v Hart (1998) 72 ALJR 1344
Elders v Devereaux, unreported; FCt SCt of WA; Library No 980183; 9 April 1998
Griffiths v Kirkemeyer (1977) 139 CLR 161
Hodges v Frost (1984) 53 ALR 373
Russell v Ciesielski, unreported; FCt SCt of WA; Library No 980222; 1 May 1998
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236
Naxakis v Western General Hospital (1999) 162 ALR 540
Neall v Watson (1960) 34 ALJR 364
Newell v Lucas [1964-5] NSWR 1597
Rosswell v Caverswall Stone Company Ltd [1944] 2 All ER 350
Van Gervan v Fenton (1992) 175 CLR 327
Wallaby Grip (BAE) Pty Ltd (in liq) v Macleay Area Health Service (1998) 17 NSW CCR 355
Western Australia v Watson [1990] WAR 248
Wilson v Peisley (1975) 7 ALR 571
MARTINO DCJ:
Introduction
This action is an assessment of damages alleged to have been suffered by the plaintiff in an accident on 21 September 1990 when the car in which the plaintiff was a passenger was struck from behind by a car which had in turn been struck by a truck. The defendant has admitted liability for the accident. The defendant does not admit that the plaintiff was injured in the accident and contends that any injuries, loss or damage suffered by the plaintiff have been caused or contributed to by injuries sustained otherwise than in the accident the subject of this action, by a pre‑existing degenerative or other condition of osteogenesis imperfecta or by a pre‑existing depressive condition due to the death of her first husband and family related stresses. In fact it was the death of the plaintiff's second husband to which the last part of the defendant's plea was addressed but nothing turns on that misdescription.
The plaintiff
The plaintiff was born on 20 November 1951. She was born with osteogenesis imperfecta. Osteogenesis imperfecta is a condition of abnormal fragility of the bones which causes recurring fractures on minimal trauma. This has caused the plaintiff to suffer very many fractures throughout her life.
The plaintiff was educated in South Australia. On 27 February 1967, when she was still at school and was aged 15, she was involved in a motor vehicle accident in which she suffered fractures to her jaw, left arm and left leg. Following that accident the plaintiff was substantially confined to a wheelchair and her left arm was in a fixed position. The plaintiff continued her education after this accident and, in 1968, at the age of 17, she sat for and passed her leaving examination.
Some time after she completed her leaving examination the Lions Club gave to the plaintiff a motor vehicle with hand controls. The plaintiff then obtained employment as a receptionist and telephonist.
In 1973 the plaintiff married. This marriage was not a success and lasted only a short time.
In January 1974, the plaintiff commenced employment with the Post Master General's Department as a telephonist. Thereafter the plaintiff moved between various departments in the Commonwealth Government Public Service, performing mostly clerical duties.
In 1975 the plaintiff transferred from Adelaide to Darwin. On 23 January 1976 the plaintiff was involved in another motor vehicle accident in which she suffered soft tissue jarring to her neck and spine. As a result of the injuries suffered in that accident the plaintiff developed both neck and back pain. She also suffered a reduction in function of her neck in that her ability to turn her head to the left was restricted.
The plaintiff's evidence was that after three or four years she had recovered from the effects of the injuries suffered in that motor vehicle accident to the stage where she suffered sporadic bouts of short term pain.
The plaintiff remarried. There were two children of that marriage - the first, a son, was born on 8 May 1978. The plaintiff took three months maternity leave when that child was born. The plaintiff cared for her son without assistance from outside her family.
The plaintiff returned to work after that maternity leave. On her return she suffered from some back pain. Following the birth of her son the plaintiff's hearing began to deteriorate. It has continued to deteriorate and she requires hearing aids. She has coped with that disability and been able to work despite it.
In the course of her evidence during this trial there was little to indicate that the plaintiff suffers from hearing difficulties. She can lip‑read and if she is looking at the person who is speaking to her she appears able to understand what that person is saying without difficulty.
The plaintiff and her husband decided to move to South Australia. The plaintiff moved in early 1979 but her husband did not move until a year later when he was able to secure a transfer in his employment.
Upon her arrival back in South Australia the plaintiff recommenced work almost immediately. She remained employed until the birth of her second child, a daughter, born on 4 September 1980.
The plaintiff then took nine months maternity leave. During that time she cared for her two children with the assistance of her husband. She also taught her son to assist by fetching things for her.
After her maternity leave the plaintiff returned to work. In addition to her employment and her responsibilities at home the plaintiff attended courses in making and designing clothes. She completed those courses in 1982. The plaintiff made and sold clothes while working. The plaintiff commenced a dressmaking business called "Josina". That business seems not to have been a financial success.
In 1985 the plaintiff suffered serious asthma. She was bedridden for five months. She eventually got her asthma under control. She did not return to employment with the Commonwealth Government but worked for her husband who had by then an insurance agent's business. There she carried out secretarial and bookkeeping duties.
In October 1987 the plaintiff's husband suicided. The plaintiff continued to work in the business. She eventually sold the policy register.
In September 1988 the plaintiff moved to Western Australia with her children. Soon after she arrived in Western Australia the plaintiff met her present husband, Colin Flavel. They married in April 1989.
The plaintiff's evidence was that on her arrival in Western Australia she intended to settle her family and then to commence work. However there were considerable complications arising out of the sale of her late husband's business, her dressmaking business and a house the plaintiff owned in South Australia. These complications required her to make several trips to South Australia. One of these visits lasted three months. She was involved in litigation concerning her late husband's business and her dressmaking business.
The condition of her house in South Australia deteriorated and the plaintiff organised a builder to do work on it. The work done by the builder was condemned by the council. The builder went bankrupt and so the plaintiff was denied compensation from him. As a result of these financial complications and disputes the plaintiff became bankrupt in 1992.
On 21 September 1990 the plaintiff was involved in the accident the subject of this action. I deal with that accident and its consequences later in this judgment.
In about 1993 the plaintiff began to look for employment. She applied for a position with the State Government but was unsuccessful. She completed a skills training course. In early 1994 the plaintiff commenced clerical employment with the Wheelchair Sports WA Association Inc.
In around September 1998 the plaintiff suffered a deterioration in vision in her left eye.
On 22 October 1998, the plaintiff fractured her right leg. This fracture took several months to repair and she had to cease working. In about February 1999 the plaintiff returned to employment with the Wheelchair Sports WA Association Inc. She ceased that employment in September 1999. She has not been employed since.
The plaintiff's condition prior to the accident
The plaintiff was significantly disabled prior to the accident the subject of this action. Her main, but not her sole, disabilities were the result of osteogenesis imperfecta and the motor vehicle accidents in 1967 and 1976.
From the age of 8 to the age of 10 or 11 the plaintiff underwent major surgery in which metal rods were inserted in her legs in an attempt to straighten them. These operations were not successful. As a consequence of the surgery and the attempted rehabilitation following the surgery the plaintiff suffered several fractures of her pelvis. Nevertheless, with the aid of callipers and crutches, the plaintiff had some limited independent mobility.
As a result of the injuries suffered in the accident in 1967, the plaintiff was substantially confined to a wheelchair. Her left arm was disabled to a fixed position.
As a result of the injuries suffered in the accident in 1976 the plaintiff suffered serious neck and back pain. Her medical practitioners thought her pain would be permanent but, as I have mentioned earlier in these reasons, the plaintiff's evidence was that after about three or four years her condition had improved to the extent that she had sporadic back pain.
The fact that the gave birth to and cared for two children and remained in employment with the Commonwealth public service until 1985 tend to confirm that the consequences of this accident did not prevent the plaintiff from working and living a full life.
One permanent consequence of this 1976 accident was that the plaintiff suffered the restriction of rotation of her neck to which I have referred earlier in these reasons.
The plaintiff also suffered hearing difficulties to which I have referred. Those difficulties do not seem to have constituted a significant functional restriction.
The plaintiff suffers from the asthma condition which commenced in 1985. Although she recovered from the serious illness that occurred in that year, she has remained troubled by asthma from time to time for which she has required treatment. The plaintiff has also suffered from hay fever.
The defendant raised as an issue that the plaintiff had been suffering from depression as a result of the death of her husband in 1987 and other family related stresses. However, the plaintiff was not suffering from a depressive illness in the time leading up to the accident the subject of this action.
The plaintiff's evidence was that she had an active life and that her marriage to Mr Flavel was a full and complete marriage.
An indicator as to her health in the period leading up to the accident in 1990 is the evidence of her general practitioner at the time, Dr J G Lagan. The plaintiff commenced attending Dr Lagan's surgery on 2 December 1988. In the course of cross‑examination by counsel for the defendant Dr Lagan gave the following evidence as to the treatment of the plaintiff by his surgery prior to the accident in 1990:
"MANGAN, MS: Thank you. Dr Lagan, I understand that of course Kwinana Medical Centre only started treating Mrs Flavel in 1988, you said, or 89.
MARTINO DCJ: 2 December 1988, I think.
MANGAN, MS: Thank you, your Honour.
So there's not much of a history to go on, but just looking at the notes it seems that Mrs - we're talking about before the accident in 1990. It seems that before the accident in 1990 Mrs Flavel was a person who needed to see her GP quite regularly. There is an entry 2 December 1988 and then 10 January 89, February 89, April 89, May 89, June 89, June 89, so once or twice a month sort of attendances. Would that be right?---If it's in the book. As I say, that's a long time ago. I would consider it right.
Again, just keeping going, June 89, July 89, August 89, August 89, December 89, July 90 and 20 August, and the accident was on 21 September, so we have 23 August 1990, 3 September 1990, 24 September 1990, so it generally is a pattern of on average once a month?---Probably.
And that's because she had a congenital condition which caused a number of related health problems. Would that be fair?‑‑‑Yes.
The health problems range from - I think she had allergies and she was always concerned I think when she coughed and had a chest cold that she would break a rib, those sort of things?‑‑‑Yes.
Is that right?---Correct, yes."
This evidence indicates that the plaintiff attended that surgery on 17 occasions in the period of approximately 21 months. In addition, the plaintiff visited a hospital on one occasion on 21 August 1989 when she was concerned that she may have broken a bone in her left knee. What had occurred was that a rod in her left knee had moved, which was causing severe discomfort.
The records of medical treatment are consistent with the evidence of the plaintiff that she led an active life before the accident on 21 September 1990.
The credibility of the plaintiff
Counsel for the defendant criticised the plaintiff's credibility. She pointed to four main issues. These were:
(1)That the plaintiff had failed to tell many of the medical practitioners who had treated her following the accident in 1990 of her previous accidents;
(2)That when she gave evidence at the trial of the assessment of damages suffered in the accident that occurred in 1967 she failed to inform the court that she had been involved in a second accident approximately three months prior to that trial;
(3)She provided the following incorrect answer to interrogatories:
"Request 3
Did you at any and what time or times prior to the material date experience pain the same as or similar to that pleaded in the Statement of Claim in the head, neck, shoulder, left hand and little finger, left arm or suffer from any psychological or depressive condition?
Answers 3
No.";
(4)She failed to provide discovery of a letter from her medical practitioner to her employer in early 1999 to the effect that she was capable of working.
It may be that the plaintiff told some of the medical practitioners about the previous accidents, but she undoubtedly did not tell most of them. However, in this case, the failure does not attract the significance that can arise in other cases. The plaintiff has osteogenesis imperfecta. She told the medical practitioners that as a result of that condition she had suffered hundreds of fractures during her life. Any examination would have revealed that fact. The failure to inform the medical practitioners of the previous accidents did not constitute a misrepresentation that she had not suffered injury before the accident the subject of this action.
The plaintiff's evidence as to her failure to tell the court of the 1976 accident during the trial in 1976 was that she could not remember that far back, but that she had told her solicitor at the time and he decided it was not relevant. I do not know what questions the plaintiff was asked at that trial and I cannot conclude that a failure to disclose the second accident constituted a failure to be honest.
The plaintiff's explanation about her answer to interrogatory 3 was that the pain she suffered in the 1970 accident was in a different area of her neck or cervical spine to that which she suffered from in the 1990 accident. I have had some doubt about whether that explanation is satisfactory but I have decided that I cannot conclude that the answer to interrogatory 3 demonstrates dishonesty on the plaintiff's part. There are three reasons for that conclusion.
The first is that the interrogatory refers as it does to pain "the same as or similar to that pleaded in the statement of claim". It calls for a judgment of the part of the plaintiff as to what is similar and I cannot conclude that the plaintiff's judgment demonstrates dishonesty. That is particularly so in light of the second reason for which I have reached this conclusion. The plaintiff's whole life has been one of pain caused by the breaking of bones. In light of her experience of pain her judgment as to whether the pain is similar to other pain may not be same as people who have broken bones rarely.
The third reason is the length of time between the 1976 accident and 1998 when the answers to interrogatories were sworn. In view of that 12 year period, the plaintiff's life experience of pain and the facts that since the accident the plaintiff had given birth to and cared for two children and worked, I do not conclude that the inaccuracy in the answer demonstrates dishonesty.
The doctor's letter that the plaintiff obtained in early 1999 was in her possession for only a short period until she gave it to her employer. I do not know whether the exchange of lists of discoverable documents had taken place by then. While the letter was certainly discoverable and should have been disclosed to the defendant before trial I do not conclude that the failure to do so constitutes dishonesty on the plaintiff's part.
In her closing submissions counsel for the defendant said that the plaintiff is a determined person who knows what she wants and knows how to get it. I have no doubt that the plaintiff is an extremely determined person. She could not have achieved so much in her life if she were not determined. However such determination does not, of course, indicate dishonesty. I have formed the conclusion that the plaintiff is an honest witness and that her evidence as to her life before and after the accident the subject of this action is substantially accurate.
The accident on 21 September 1990 and its consequences
At the time of the accident, the plaintiff was a passenger in a Ford Falcon station wagon being driven by her husband on Nicholson Road, Forrestdale. A car pulled out in front of them and stopped suddenly to turn right. The plaintiff called out to her husband to take care. The plaintiff's husband stopped quickly. The plaintiff then leant forward to look into the side rear vision mirror. The plaintiff is short and because she was leaning forward her seatbelt was across her neck.
The car behind them stopped. It was hit by a cement truck, forcing it to move forward and to collide with the car in which the plaintiff was travelling. Because the plaintiff's legs have been broken many times, they are misshapen and she cannot extend them forward, so she could not use them to brace against the impact of the collision. She was forced forward by the impact with her seatbelt against her neck. The seatbelt stopped her forward motion.
The plaintiff was immediately in severe pain in her neck at the base of her skull. She feared that she had broken her neck. She also had pain in her shoulder blades.
The plaintiff was taken by ambulance to the Fremantle Hospital where she was assessed, x‑rayed and then sent home with a soft cervical collar. At home she was cared for by her husband. She remained in bed for three days and then went to see Dr Lagan. The plaintiff reported to him that she was suffering from a painful neck and lumbar back pain.
Dr Lagan referred the plaintiff to Mr Robert McWilliam, orthopaedic surgeon. Mr McWilliam saw the plaintiff on 26 September 1990. The plaintiff did not complain to him of the lumbar pain that she had reported to Dr Lagan and it has not been a significant factor for her since then. Mr McWilliam diagnosed a neck strain superimposed upon the plaintiff's osteogenesis imperfecta. He prescribed medication and recommended that the plaintiff continue to wear a soft collar as required and that the plaintiff take analgesic medication and have hydrotherapy.
Mr McWilliam next saw the plaintiff on 15 November 1990. She informed him that her neck and other symptoms from the accident had improved. She still suffered from headaches at times around the eyes and she had recently had some pain around the right shoulder with activity. In a report to the State Government Insurance Commission of the same date, Mr McWilliam expressed the opinion that hydrotherapy was essential for the plaintiff.
Mr McWilliam again reviewed the plaintiff on 6 February 1991. She was still experiencing considerable discomfort especially in the upper cervical region, lower cervical region and upper dorsal region. She had pain when she moved her neck, especially to the left and her neck movements to the left were restricted. Mr McWilliam's report of 6 February 1991 does not deal with the cause of that restriction. As I have related earlier in these reasons, the restriction followed the plaintiff's motor vehicle accident on 23 January 1976. In the course of his evidence Mr McWilliam said that he was not aware that the plaintiff had been involved in earlier motor vehicle accidents. In his opinion whenever a person has had a neck injury residual symptoms will continue almost invariably and the symptoms in a subsequent accident may be worse. He expressed surprise that the plaintiff was not experiencing some neck symptoms at the time of the accident in view of the previous two neck injuries.
The plaintiff continued to see Mr McWilliam. On 16 January 1992 Mr McWilliam wrote a report to the State Government Insurance Commission, having seen the plaintiff the previous day. There had been no improvement in the three months since the previous review. The plaintiff was still experiencing quite severe neck pain radiating up into the occiput and sometimes getting paraesthesia and numbness in the left arm extending down into the left hand. In Mr McWilliam's opinion the plaintiff had residual problems of a soft tissue injury involving the facet joints on top of some earlier degenerative change, as one would expect in a person of her age. In his opinion the plaintiff was likely to have residual problems although he expected that she would show some further improvement. The plaintiff would find that her head was worse at the end of the day, especially when she was tense and tired and when she was sitting with her neck flexed for any length of time.
Throughout this period the plaintiff attended at hospital from time to time, mainly for matters not associated with the accident. These attendances did not require her admission to hospital.
At the time of the accident the plaintiff's children attended private primary schools. The plaintiff intended that they would continue their education at private schools. Her son commenced high school in 1991. The plaintiff was unable to afford to send her son to a private high school. At that time the plaintiff was still involved in financial matters that required her attention in South Australia.
When the plaintiff's daughter finished primary school the plaintiff was also unable to afford to send her to a private high school. It was around that time that the plaintiff began to look for employment which she eventually obtained with the Wheelchair Sports Association as I have related earlier in these reasons. On obtaining employment the plaintiff transferred her daughter to a private school where she completed her secondary education.
The plaintiff usually drove herself to and from work. Prior to the motor vehicle accident on 21 September 1990 she had been able to get her wheelchair into and out of her car. Following the accident she found greater difficulty in doing this and her son or daughter would put the wheelchair in the car for her. When she left work she would have to do this herself. The plaintiff found this difficult and had to be slow and careful in doing it. It would take her between 10 to 15 minutes to complete the manoeuvre and would often cause increased pain.
The plaintiff's work at the Wheelchair Sports Association was primarily clerical work on a computer. She found that this exacerbated her neck pain as well as her headaches. This development is consistent with the opinion earlier expressed by Mr McWilliam in his report dated 16 January 1992.
The plaintiff continued working and her pains got worse. She moved her residence and changed general medical practitioners. In June 1997 she commenced seeing the Beaumaris Family Practice in Ocean Reef and from March 1998 she has been a patient of Dr Rodney Parker of that practice.
Due to her ongoing pain the plaintiff was referred to Dr Gee, a pain management specialist. The plaintiff did not find Dr Gee's treatment relieved her symptoms. Dr Gee referred the plaintiff to Mr Peter Watson, neurosurgeon. Mr Watson recommended that the plaintiff see Mr George Wong, a neurosurgeon, whose areas of interest include the base of the skull.
Mr Wong saw the plaintiff in October 1998. MRI scans of the cranio‑cervical junction had shown a cyst. In Mr Wong's opinion it is unlikely that that cyst has any relationship with the plaintiff's symptoms. In his opinion the symptoms of cervical pain, occipital headache and pain in the interscapular region are likely to have been caused by the motor vehicle accident. In his opinion, based upon the history provided to him by the plaintiff, the symptoms were likely to render the plaintiff incapacitated for employment. In his oral evidence at the trial Mr Wong expressed the opinion that neither the cyst nor the plaintiff's osteogenesis imperfecta were the cause of the plaintiff's neck pain and headache and, in his opinion, the plaintiff would not definitely have developed headache and neck pain if not for the accident on 21 September 1990. Mr Wong was unaware of the two earlier motor vehicle accidents.
Mr Watson had also not been informed about the two earlier motor vehicle accidents. In a report dated 9 November 1998, he had expressed the opinion that 50 per cent of the plaintiff's symptoms were attributable to the motor vehicle accident and 50 per cent to her osteogenesis imperfecta. In his evidence he said that the earlier motor vehicle accidents could also have played a part.
On 22 October 1998, the plaintiff suffered a fracture of her right leg when her wheelchair broke. This fracture was not in any way related to the motor vehicle accident. The fracture was quite complicated and it took several months for the plaintiff to recover. During this time the plaintiff was unable to work due to that leg fracture. The Wheelchair Sports Association was having difficulty with the plaintiff being away from work for such a lengthy time and in about February 1999 the plaintiff returned to work. She was having considerable difficulties with work due to her neck pain and headaches. Eventually, in September 1999, she ceased work due to those symptoms. She has not worked since.
In February 1998 the plaintiff saw Dr Oleh Kay, psychiatrist. Dr Kay saw the plaintiff in February and in June 1998. He diagnosed her as suffering from a major depressive disorder and also that she had personality difficulties, probably sufficient for the diagnosis of personality disorder. Dr Kay had seen the plaintiff shortly before the trial and had no reason to change the opinion he gave in 1998, as contained in his report dated 10 June 1998. In his opinion, there were two groups of factors causing the plaintiff's depression. She had a predisposition for the development of the disorder and the motor vehicle accident and factors associated with it precipitated her depression. In Dr Kay's opinion depression is not the major cause of the disability in the plaintiff’s life. The major cause is her physical disabilities.
Shortly before trial the plaintiff was seen by Professor Alex Cohen AO, clinical professor of medicine at the University of Western Australia. Professor Cohen is an endocrinologist and has expertise and experience in osteogenesis imperfecta. When the plaintiff saw Professor Cohen she did not tell him about the motor vehicle accidents in 1967 and 1976. He was subsequently told of those accidents by the solicitors for the defendant. Professor Cohen expressed surprise that the plaintiff's ongoing neck symptoms continued after the accident. The injuries suffered by the plaintiff in the motor vehicle accident were soft tissue and jolting injuries without fracture which, in his opinion, should have satisfactorily resolved. Having been told of the two motor vehicle accidents he felt that many of the plaintiff's symptoms have their genesis in a much more chronic state of affairs than he had been aware of.
As to the future of the plaintiff's osteogenesis imperfecta, Professor Cohen said that in women fractures tend to recur from the menopause onwards because of the association with osteoporosis.
I have concluded that the accident on 21 September 1990 has resulted in a painful neck and headaches which have restricted the plaintiff’s activities and caused her to be unable to continue working. I have reached this conclusion primarily on the plaintiff’s evidence and that of Mr Wong.
Although Mr McWilliam expressed surprise that the plaintiff was not suffering neck symptoms of the earlier accidents, those accidents did not prevent the plaintiff from enjoying a full and active life.
Professor Cohen was surprised that the symptoms that followed the accident in 1990 were still troubling the plaintiff. I accept the plaintiff’s evidence that they are and Mr Wong’s evidence that this is likely to be a consequence of the accident.
The injuries suffered in the motor vehicle accident have caused the plaintiff to cease employment. They have also had an impact on her personal and domestic life. Prior to the accident the plaintiff managed her responsibilities as a wife and mother, was a keen gardener and a very active person. Since the accident she has been restricted by her neck pain and headaches. She receives assistance at an average of three hours per day with household activities, cooking and cleaning that she would otherwise have carried out herself. She receives gentle massages and has her personal hygiene cared for by her husband. The plaintiff finds this extremely humiliating. The plaintiff gets irritable and angry and her sexual relationship with her husband has been seriously impaired.
The plaintiff's loss
The plaintiff suffered from serious disabilities before the accident on 21 September 1990. I have related those disabilities earlier in the reasons. Since the accident she has also suffered from disabilities unrelated to the motor vehicle accident in that she has fractured her right leg and suffered impaired vision in her left eye since approximately 1998. Prior to the accident the plaintiff was capable of living an active and full life notwithstanding her disabilities. Her ability to do so was significantly impaired as a result of the injuries suffered in this accident which has rendered her incapacitated from continuing employment since September 1999. It is not likely that the plaintiff’s condition will improve and permit her to return to work in the future.
The plaintiff has established incapacity that has resulted from the defendant's negligence. The onus is on the defendant to establish that the incapacity is wholly or partly the result of the pre‑existing or other conditions from which the plaintiff has suffered: Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164.
The object of the assessment of the plaintiff's damages is to place her in as good a position as she would have been but for the accident and not in a better position and it is necessary to bear in mind the plaintiff's significant disabilities which are not associated with the motor vehicle accident in assessing her damages: Jobling v Associated Dairies Ltd [1982] AC 794; Wynn v NSW Insurance Ministerial Corporation (1995) 70 ALJR 147.
Although the plaintiff was in significant pain and discomfort following the motor vehicle accident she did not suffer any loss of earning capacity which was productive of any loss in the period from the accident to when she commenced employment with the Wheelchair Sports Association in early 1994. The plaintiff did not seek employment until matters that required her attention in South Australia had been resolved. When she did seek employment it took some time for her to obtain it, but that delay was not due to the motor vehicle accident but to the need to update her skills. The plaintiff has therefore not suffered any loss of earning capacity productive of economic loss until September 1999 when she ceased employment at the Wheelchair Sports Association. The plaintiff did not work from October 1998 to February 1999. That was not the result of the motor vehicle accident but as a result of the unrelated fracture of her right leg. In assessing what might have occurred since September 1999 if the plaintiff had not been injured in the motor vehicle accident, and what might occur in the future as to her employment and earnings if the plaintiff had not been injured, it is necessary to assess the chance or prospect of the plaintiff earning income if she had not been injured: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.
I have heard evidence from Esme Bowen, the Vice President of the Executive Board of the Wheelchair Sports Association. The plaintiff was a valued and hard working member of the staff of that association. I conclude that if she had been capable of doing so the plaintiff would have continued to be employed by the Wheelchair Sports Association. Since she ceased being employed there have not been any supervening events which would have prevented her from working for lengthy periods. There have been some stress or anxiety attacks, but these seem to have been of short duration and not incapacitating. For the future however, there is a very significant chance that the various other conditions to which I have referred would prevent the plaintiff from working even if she had not been involved in the motor vehicle accident on 21 September 1990.
While working for the Wheelchair Sports Association the plaintiff was able to take advantage of salary packaging that the association offered. This packaging was explained by Mr Terrence Fagan, the association's treasurer and accountant. The plaintiff was paid a base salary of $28,000 before tax. In addition she was provided with the use of a motor vehicle at a cost of $3,900. The plaintiff could take up to 40 per cent of her base salary in non‑taxable forms in areas such as mortgage repayments. If the plaintiff chose to do so Mr Fagan calculated the value of her income before tax at $43,750. In the year ended 30 June 1995, the plaintiff was paid a before tax salary of $28,538. That is because the salary packaging option was introduced the following year. In the year ended 30 June 1996 the plaintiff received a taxable income of $11,022. This means that she took full advantage of the salary and packaging option available to her. In the year ended 30 June 1997 the plaintiff's taxable income was $18,715. In the year ended 30 June 1998 it was $17,869. This indicates that the plaintiff took less advantage of the salary packaging options in those years. I therefore conclude that in calculating the value of the income and benefits that the plaintiff has forgone since she ceased working for the Wheelchair Sports Association I should not do so on the basis of $43,751 which would apply if the plaintiff took full advantage of the packaging options but on the basis of some lesser figure. I am not able to calculate that lesser figure precisely. I estimate the before tax value of the plaintiff's lost income at $37,500 or $721 per week. In the year ending 30 June 2000 the tax payable on a weekly income of $721 was $180 so that the after tax income would be $541. Since 1 July 2000 the tax payable on a weekly income of $721 is $158 so that the after tax income would be $563. The plaintiff ceased employment on 28 September 1999 (Exhibit 4 page 52). The period from 28 September 1999 to 30 June 2000 is 39 weeks. The plaintiff's loss for that period is therefore 39 x $541 = $21,099. The period since 1 July 2000 is 24 weeks and the loss for that period is 24 x $563 = $13,512. The total loss for that period is therefore $34,611. Interest on that sum for the 63 week period at 3 per cent per annum is $1,257.
Superannuation contributions met by the Wheelchair Sports Association were calculated on the base salary of $28,000 gross ($538 per week) and were calculated in accordance with the Superannuation Guarantee (Administration) Act 1992. For the year ended 30 June 2000 the superannuation contributions in accordance with that Act were 7 per cent of the gross salary. For the 39 week period from 28 September 1999 to 30 June 2000, the total gross amount of contributions would have been $1,469. Since 1 July 2000 the contributions are 8 per cent of gross salary and for the 24 week period since then the total gross amount of contributions would have been $1,033. The total of these two figures is $2,502 from which I have deducted 30 per cent for fund management fees and taxes leaving a balance of $1,751. Interest on that sum is $64.
The plaintiff is presently aged 49 and there are 16 years until her normal retirement age of 65. The multiplier for 16 years using an interest rate of 6 per cent is 543. I have set out earlier in these reasons the several disabilities and health problems in which the plaintiff suffered apart from the consequences of the accident on 21 September 1990. There is a very significant chance that those health problems would have restricted the plaintiff's earnings even if not for the accident on 21 September 1990 and it is necessary to reflect that chance in the reduction for contingencies. I also bear in mind Mr Fagan’s evidence that it is likely that the plaintiff would have received a pay rise of between 5% and 10%. I have concluded that an appropriate deduction for contingencies is 70 per cent. I calculate the plaintiff's loss of earnings for the future as follows:
$563 x 543 = $305,709
Less 70 per cent for contingencies = $91,713
Had the plaintiff continued to work, the superannuation contributions in accordance with the superannuation guarantee legislation would have increased to 9 per cent in the year commencing 1 July 2002. I have therefore used a figure of 8.75 per cent in my calculation of future loss of superannuation. The calculation is as follows:
$538 x 8.75 per cent = $47
$47 x 543 = $25,521
Less 70 per cent for contingencies = $7,656
Less 30 per cent for fund management fees and taxes = $5,359
The plaintiff has claimed for the value of services that have been rendered to her which, if not provided, it would have been reasonably necessary to obtain at a cost. It is only the services that the plaintiff requires, not the services which the household requires, for which the plaintiff is to be compensated: Newman v Nugent (1995) 12 WAR 119. The parties have agreed that the appropriate rate for the services is $12 per hour. The family incurs an expense of approximately $20 per week for ironing. At the rate of $12 per hour, this is approximately 1‑2/3 hours. The plaintiff's husband spends approximately 1‑1/2 hours per week doing family shopping, approximately two hours per week extra in the garden, approximately 10‑1/2 hours per week cooking meals, approximately two hours a week washing and Silver Chain provides services to the household of two hours per week. The total of these hours is almost 20 hours per week for the whole household. There are four members of the household and I assess five hours as relating to the plaintiff's needs. In addition, in relation to care of the plaintiff alone, the plaintiff's husband spends approximately eight hours per week, making a total of 13 hours per week at $12 per hour equals $156. I accept that services at around this level have been required by the plaintiff since the accident, that they have been required as a result of the injuries suffered in the accident and that if they had not been provided by the plaintiff’s husband it would have been necessary for the plaintiff to incur expense obtaining them.
For the past 10 years since the accident, there have been significant factors other than the effects of the accident which have restricted the plaintiff's capacity to care for herself. Her broken leg in 1998 is one example. It is necessary therefore to reduce the past loss for the chance that she may have required care and assistance even if not injured in the motor vehicle accident. I assess the appropriate reduction for that chance at 40 per cent. I therefore calculate the past loss for 10 years and 12 weeks as follows:
$156 x 532 weeks = $82,992
Less 40 per cent for contingencies = $49,795
The rate of interest payable on judgments in 1990 was 14 per cent. It reduced over the years until 13 September 1997 when it was 6 per cent, its current figure. I estimate the average over that period at 8 per cent per annum, I use half that figure over the whole period to reflect the incremental nature of the loss and I calculate interest on that past loss at $20,378.
The plaintiff's life expectancy ordinarily would be 33.73 years. In Professor Cohen's opinion there is some shortening of normal life expectancy as a result of osteogenesis imperfecta. Of greater significance in calculating the claim for future care services is the very significant chance that even if not for the accident the plaintiff would need care as a result of her other conditions. I have concluded that it is appropriate to deduct 80 per cent from this claim for these chances. I calculate the losses for this:
34 year multiplier 772
$156 x 772 = $120,432
Less 80 per cent for contingencies = $24,086
Special damages have been agreed at $1,585.90.
There was no evidence on which I could calculate any future treatment costs. However it is likely that the plaintiff will incur some expense in the future for treatment, particularly for the management of her depression for which she commenced taking medication this year. I allow $500 as a global sum for future treatment costs.
For general damages it is clear from what I have related in these reasons that the plaintiff has suffered greatly both physically and emotionally as a result of the injuries suffered in this motor vehicle accident. She was already suffering considerable disability as a result of the other conditions to which I have referred and of course I must ensure that I am not compensating the plaintiff for disabilities unrelated to the motor vehicle accident. However as a result of this accident the plaintiff has suffered significant pain and restriction, an inability to care for herself and to continue working and depression has been precipitated. I assess her entitlement to general damages at $30,000.
In summary therefore I assess the plaintiff's damages as follows:
Past loss of earnings
$ 34,611
Interest on past loss of earnings
$ 1,257
Past loss of superannuation
$ 1,751
Interest on past loss of superannuation
$ 64
Future loss of earning capacity
$ 91,713
Future loss of superannuation
$ 5,359
Past care
$ 49,795
Interest on past care
$ 20,378
Future care
$ 24,086
Special damages
$ 1,586
Future treatment costs
$ 500
General damages
$ 30,000
Total
$261,100
0
4
1