Ford v Munday
[2000] WADC 270
•7 NOVEMBER 2000
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: BUNBURY
CITATION: FORD -v- MUNDAY [2000] WADC 270
CORAM: NISBET DCJ
HEARD: 9-12 OCTOBER 2000
DELIVERED : 7 NOVEMBER 2000
FILE NO/S: CIV 32 of 1996
BETWEEN: MICHELLE JANINE FORD
Plaintiff
AND
TODD JOHN MUNDAY
Defendant
Catchwords:
Negligence - Motor vehicle accident - Damages - Assessment - 31-year-old female, wife, mother and part time production worker injured in serious collision - Psychiatric treatment necessary but not given by date of trial - Turns on own facts
Legislation:
Supreme Court Act 1935
Result:
Award of $248,165.00
Representation:
Counsel:
Plaintiff: Mr D Van Zalm
Defendant: Mr C P O'Sullivan
Solicitors:
Plaintiff: John Mazza
Defendant: Jackson McDonald
Case(s) referred to in judgment(s):
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Case(s) also cited:
Griffiths v Kerkemeyer (1977) 139 CLR 161
Maiward v Doyle [1983] WAR 210
Newman v Nugent (1992) 12 WAR 119
NISBET DCJ: The plaintiff was barely 25 years of age and a vibrant expectant mother of one when she was involved in a very serious motor vehicle accident on 7 November 1994. On that day she was driving in a southerly direction towards Bunbury on the Old Coast Road near Australind, approaching its intersection with Paris Road. In this location Old Coast Road is a dual carriageway separated by a median strip. It runs in a roughly north south direction. Paris Road runs roughly east west and meets the Old Coast Road at a t-junction. There is a stop sign on Paris Road. As the plaintiff approached the t-junction she could tell that a car driven by the defendant was not going to stop at the stop sign so she sped up with a view to trying to pass through the danger point. Regrettably, she did not make it. The defendant's vehicle struck the rear left hand side of the plaintiff's vehicle sending it in to a spin. It then hit the median strip, bounced off and then, having traversed 180 degrees, and facing the direction from which she had come, she struck a vehicle travelling in the other part of the dual carriageway which was also headed south. Her vehicle came to rest facing the opposite direction from which she had come. At some stage during this, her vehicle was struck from behind.
After the first impact the plaintiff recalls trying to turn in her seat to see whether her baby son who was in a child restraint seat in the rear of the vehicle, was alright, and she was in this position when she struck the median strip and was then bounced into a collision with the other vehicle. She recalls banging her head on the steering wheel and feeling her neck crack and being in immediate pain. She recalls sharp shooting pains down the left hand side of her head and arm and leg and thinking that she was dead. The pain persisted as did a feeling of great panic about the welfare of her son, Kiefer, who was at that time a little over 2½ years old having been born on 14 March 1992. As the vehicle came to rest the plaintiff noticed that her vision was blurred and she felt as if she was going to pass out. Fortunately a policeman arrived shortly after the accident and assisted the plaintiff by helping her get Kiefer out of the car and assisting her on her way to see the closest general practitioner, Dr Brown, who practises in Australind. He was about five minutes away. The car was a write-off.
Dr Brown prescribed a pain killer for the plaintiff after which she went home. That night she experienced severe neck and back pain, with pain radiating down her left arm and through her left leg. She said her whole body was aching. She experienced considerable swelling in her neck. Additionally she noticed that she had a significant amount of bruising to the top of her head, there was a large bump on her forehead some three centimetres across, and bruising began to emerge on the right side of her chest. Her vision was disturbed. During the course of the night she vomited.
The next day the plaintiff went to see her usual general practitioner, Dr Foster. He prescribed Panadeine Forte and a soft collar. He observed a severe limitation of movement in the plaintiff's neck and upper thoracic area and numbness down the left arm to the lateral side of the fingers. He noted too the plaintiff's complaints of tingling at the base of her feet and fingers and complaints generally of severe pain. Dr Foster further prescribed physiotherapy and arranged for the plaintiff to be submitted to x-ray examination.
It is appropriate to record at this stage that neither x‑ray examination nor magnetic resonance imaging disclosed any bone injury. The aetiology of the plaintiff's physical symptoms (save for carpal tunnel syndrome, which I will describe later) is probably best described by a specialist who examined the plaintiff at the request of the defendant, namely Dr Brian Galton-Fenzi. In his report of 14 June 1997 he wrote:
"… there is evidence for a temporal relationship with this accident and the onset of her symptoms and complaints. Additionally the evidence currently available in the world literature, indicates there is a clear association between impact forces, the severity of the immediate symptoms and the longevity of an individuals (sic) continuing symptoms and disability. There is good evidence indicating that following such impacts, local micro haemorrhages and joint capsular and localised ligamentous damage occurs which resolves slowly, often leaving scar tissue."
Carpal tunnel syndrome
It is convenient to now deal with the issue of the plaintiff's carpal tunnel syndrome. There was no dispute but that the plaintiff sustained a carpal tunnel syndrome and there was no evidence that it was other than totally asymptomatic before the motor vehicle accident on 7 November 1994. The plaintiff was however pregnant, and notwithstanding that Dr Hollingworth in his report of 31 August 1999 thought that nobody had mentioned that carpal tunnel syndrome in pregnancy is a fairly common finding, other medical practitioners who were seeing and treating the plaintiff were clearly aware of its significance. The plaintiff had complained of numbness in her left arm and the lateral side of her fingers of the left hand in consequence of which on 6 July 1995 Dr Foster referred the plaintiff to a surgeon, Mr R J Thompson, who confirmed her symptoms and arranged an EMG study by Dr Stewart-Wynne, a neurologist. These tests were undertaken on 19 August 1995 and they showed evidence of a mild left neuropathy of the wrist ie a carpal tunnel syndrome.
Dr Foster wrote in his report of 28 August 1995 that he did not know whether this condition could be related to the motor vehicle accident, having previously noted that she was pregnant at the time. Mr Thompson released the carpal tunnel on 1 December 1995 and when he reviewed her two months later noted that she reported an improvement in her lower arm symptoms but without a complete return to normal. Asked his views about whether there was any causal connection between the plaintiff's motor vehicle accident and her carpal tunnel syndrome Mr Thompson noted the plaintiff's pregnancy at the time of her accident but said that he had come across cases where carpal tunnel syndrome had been precipitated by a motor vehicle accident. An orthopaedic surgeon, Mr Slinger hypothesised that the impact of the collision with the plaintiff holding on to the steering wheel tightly could have precipitated her carpal tunnel syndrome symptoms. All medical practitioners however agreed that if the carpal tunnel syndrome had been caused by the plaintiff's pregnancy and it was simply an unhappy coincidence that her first symptoms appeared after her motor vehicle accident, then they would have expected her symptoms to have resolved after she had delivered her child. Here, as her symptoms had not improved after the successful outcome of her pregnancy, Mr Thompson's opinion was that it was probable that the motor vehicle accident and not the pregnancy brought on the plaintiff's carpal tunnel symptoms (see his report of 20 November 1996).
For my part, notwithstanding the contrary opinion of others of the medical experts who gave evidence before me I think it more probable than not that the plaintiff's carpal tunnel syndrome was brought on by the motor vehicle accident. She was completely asymptomatic before the accident and immediately the accident occurred noticed a change in sensation in the fingers of her left hand in what has been called a carpal tunnel distribution and her symptoms did not resolve after she gave birth to her second child.
Other symptoms
Dealing with other of the plaintiff's post-accident symptoms she described continuing pain in her neck, head, shoulder, arm, middle back, lower back and left leg. She wore the soft collar prescribed by Dr Foster for some three or four months and while she took between six and eight Panadeine Forte tablets a day she did not obtain any good relief from her symptoms until she had the first of her facet joint injections administered by Dr Stephanie Davies, the first of which took place on 11 December 1996. The injections were performed to the left C2/3, C3/4 and C4/5 facet joints. The object of facet joint injections is firstly to relieve pain by blocking it out with an anaesthetic, and secondly to provide some treatment for inflammation which is thought to give rise to the symptoms of pain and discomfort, hence the effect can be reasonably long lasting, but if there is an underlying problem a facet joint injection tends to mask it, as I understood the evidence.
In any event the plaintiff described her neck symptoms as worsening in the week after the accident then improving for a period of some four to eight weeks and then getting worse again. Her back symptoms she described as being not as bad as those in her neck and capable of being treated effectively with Panadol. She had a significant restriction in movement in her neck for several months after the accident which was assisted by physiotherapy. She described being able to turn to the right more than the left but only to 45 degrees either way. She said that looking down was not as bad for her as looking up. Associated with her neck pain, when severe, is a disturbance in her vision, mostly associated with cramps in her neck. The disturbance to her vision goes when the neck cramps are released.
The plaintiff described getting good relief from facet joint injections but there are some side effects which disturb her. In the first week after a facet joint injection she experiences numbness and tingling down her left arm, lower back and leg but thereafter she experiences considerable pain relief. This lasts for about eight weeks and then the pain gradually returns. She said that at the time of a facet joint injection she does not take Panadeine Forte but afterwards until the pain returns to its pre-injection level she still needs to take about two Panadeine Forte a day and sometimes as many as four. When the facet joint injections have worn off her Panadeine Forte intake goes up to sometimes as many as eight a day. A number of specialists have expressed alarm at the amount of analgesic medication the plaintiff is taking.
In addition to the facet joint injections and the analgesia, as I have already mentioned, Dr Foster referred the plaintiff for physiotherapy. Physiotherapy was provided by Ms Elizabeth Cullam and she tried a number of modalities including massage, ultrasound, the provision of a TENS machine and the like. Physiotherapy treatment is noted to give the plaintiff considerable relief from her symptoms in that it gives her an increased range of movement and prevents great stiffness but it is not permanent and its continued use this long after the accident is of doubtful benefit.
Next the plaintiff described her feelings of being faint. These fainting spells are momentary, they last only seconds, and occur at times when she is experiencing very bad pain and on those occasions she can have this feeling of faintness four or five times a day. Days upon which this can happen to her she described as happening once or twice a week and she described losing consciousness on one occasion in July of this year.
The plaintiff then described symptoms to her left shoulder, her left arm and her left hand (apart from the carpal tunnel syndrome). She said that her left hand symptoms dramatically improved after the carpal tunnel release performed by Mr Thompson. Before her operation she said that things were so bad that she would lose power in her left hand and arm and drop things and, later when she gave evidence, her mother Mrs Bain said that she was afraid her daughter was going to drop her baby. Gradually however, after the carpal tunnel release the plaintiff regained some of her strength. She thinks she has regained about 90 per cent of her pre‑accident strength in this arm. She also described her left shoulder symptoms of stiffness, pain and the like as being improved by physiotherapy.
Immediately after the accident the plaintiff noticed a sharp pain in her left leg going down the leg extending through her foot to her toes. This persisted for some months and following physiotherapy obtained considerable relief. Whilst she said the numbness and tingling is gone from the lower leg she still at times experiences it in her toes. Her leg symptoms again can be taken care of by Panadol and whilst she retains a numb, dull, aching sensation to the top of her leg, the stiffness and numbness in her left foot have gone.
These difficulties the plaintiff described affecting everyday life. She had problems writing until the release of her carpal tunnel syndrome. With driving her pain becomes severe at times but mostly she said that she experienced numbness through the left part of her body from her neck through her lower back and her left arm. She said that sitting down aggravates her symptoms as does lying in bed. Lifting is a problem for her. Shopping is a problem for her. She needs assistance, although she agreed that she could now perform most household tasks but more slowly, with difficulty and in pain.
Depression
Moving from her physical symptomatology the plaintiff explained that she now suffers from depression. She is not the happy person she used to be. She used to be outgoing and enjoyed life but everything is not as enjoyable as it was before the accident. She said that some days she feels that she does not have the mental capacity to keep up with her children, the care of whom makes her very tired. Occasionally they make her irritable as well. She said that while she still has her sense of humour and can be made happy because she has a very supportive family, she is still not the happy person she once was. The plaintiff described often wishing that she was dead and having suicidal ideation. She has had panic attacks in which she said she goes clammy, cold, her heart races and she feels like she is going to pass out. She starts breathing rapidly and her pulse races. These panic attacks can be triggered by driving in a car both as a passenger and the driver. She recited an occasion when as a passenger with her husband she thought he was not going to stop. There were friends in the car. She was embarrassed because she panicked, she yelled and obviously became very upset. There is then lethargy, a disturbance in her sleeping pattern and a loss of libido, with sexual intercourse with her husband occurring rarely in the first two years or so since the accident. Overall she said that sexual activity between herself and her husband was down to a quarter of what it was before her accident but, after facet joint injections it has returned to about half the level of activity the couple enjoyed before the accident.
Those of the plaintiff's symptoms which I have just described and which relate to an alteration in her mood were part of an overall presentation which was diagnosed by the three psychiatrists called to give evidence, as a major depressive illness.
Why this case necessitated the calling of three psychiatrists to give evidence I still do not understand. It is the subject of further comment from me in an addendum to this judgment.
Dr Kemp, a psychiatrist in Bunbury and the first psychiatrist seen by the plaintiff, at the request of her lawyers, not her general practitioner, diagnosed a major depressive illness for which he recommended treatment. This was in December 1995. Dr Kemp was of the opinion that at that stage the plaintiff's depression would resolve with treatment but the administration of appropriate treatment was complicated by the fact that the plaintiff was still breast feeding. He then thought the plaintiff unfit for work from a psychiatric point of view. Reviewed by Dr Kemp eight months later, but still not treated, in August 1996, Dr Kemp reiterated that the plaintiff required treatment and that if she had treatment the prognosis for her was good and, as I understand the report of 23 August 1996 and Dr Kemp's evidence, she would then have been fit for work from a psychiatric point of view. When he last saw her in September 1998 Dr Kemp thought the plaintiff was fit for work from a psychiatric point of view but nevertheless still in need of treatment which he thought would need to be maintained"… for at least the next 12 to 24 months and may even require longer term treatment for this …".
Dr Finlay‑Jones is the professor of forensic psychiatry at the University of New South Wales. He consults to private patients one day a week. This is both in New South Wales and Western Australia. He saw the plaintiff at the request of the defendant on three occasions, the first in December 1997. Dr Finlay-Jones concurred with Dr Kemp's diagnosis of major depression with however the addition that he thought she suffered from panic attacks. He thought that if the plaintiff was unable to work the most likely cause would have been her physical symptomatology not her symptoms of depression. When he next saw the plaintiff in December 1999 he thought the plaintiff continued to suffer from depression and he described in his report of 11 December 1999 symptoms I have already noted as having been described by the plaintiff (see Exhibit P10 at p 91). Dr Finlay-Jones thought the plaintiff should have returned to see Dr Kemp for treatment. These views were repeated in his report of his final attendance upon the plaintiff in August this year by which time he thought the plaintiff still unfit for work "on the basis of her subjective complaints". Again however Dr Finlay-Jones thought the plaintiff needed treatment and that whilst her prognosis was poor he thought that she would improve with treatment and the settlement of her claim.
The plaintiff was also referred to Dr Paul Skerritt. Dr Skerritt is a consulting psychiatrist in Perth and has been for many years. When he first saw the plaintiff he thought she should be able to return to work provided that she received the treatment for her depression which all thought she should have. Dr Skerritt saw the plaintiff on 1 July 1999. His opinion expressed in his report of 13 August 1999 (Exhibit P10 p 79) was that the plaintiff:
"… was precipitated in to a well defined set of psychiatric disorders by the experience of the accident and subsequent chronic pain. The diagnoses are of panic disorder and major depressive disorder. There has been some improvement with treatment but I believe that a systematic approach to her anti-depressant medication could produce further improvement…
I think that her psychiatric symptoms on their own prevent work at the present time because of the provocation of symptoms in social situations which would include work, and the difficulty in concentration because of her depression and distracting thought processes. The future of the work incapacity from these will depend on the treatment given and her response to it. I think that it is more likely than not that she will be able to return to work (aside from any contribution from physical difficulty) with adequate treatment, in about a year."
When he next saw the plaintiff however Dr Skerritt was far more pessimistic. He saw the plaintiff again on 30 June 2000 and in his report of 12 July 2000 he wrote:
"The very time that has elapsed since the accident makes it likely that she will have a permanent total incapacity for work. Although treatment may help, I doubt it will achieve work rehabilitation."
Dr Skerritt's change of opinion in the space of a year came under heavy criticism from counsel for the defendant, criticism not deserved in my opinion. All that the change in Dr Skerritt's view amounted to was that another year having passed without treatment he was now inclined to put more weight on the previous history of chronicity of symptomatology than he was when he saw the plaintiff the first time.
In truth I think there was very little difference of opinion between the three psychiatrists. All agree that the plaintiff's depression should be treated. All agree that it should be treated as soon as possible. All agree that the plaintiff will feel better after treatment. Whilst Dr Kemp who saw the plaintiff in the early stages thought that the plaintiff could return to work if given treatment each of Dr Finlay-Jones and Dr Skerritt having seen the plaintiff much later thought that the chronic nature of her symptoms might contraindicate a return to work. Dr Finlay-Jones:
"Based on her subjective complaints alone, her prognosis generally and for return to work in particular seems poor." (Exhibit P10 p 113).
Having observed the plaintiff throughout the course of the trial and having examined all of the psychiatric evidence with care I am of the opinion that the plaintiff should have the psychiatric treatment which has been recommended by three psychiatrists and yet no one seems to have taken it in hand to ensure it is administered. I am confident that psychiatric treatment will result in a considerable improvement in the plaintiff's wellbeing and I think it more probable than not that given time she would be fit to return to work from a psychiatric point of view. As to what work however I will discuss later in these reasons.
Irritable bowel syndrome
The plaintiff said in evidence that her bowel function was now very irregular and whilst she suffered from constipation caused by Panadeine Forte (and pleaded it), earlier this year she began to experience sharp stomach pains which she described as being in the bowel and lower stomach on her left side. She said she experienced them every day. She had been taking laxatives and felt nauseous which in turn required her to take Dexsal. In consequence she was referred to a specialist for a colonoscopy. This was performed by a specialist surgeon in Bunbury, Mr Nick Newman, who was of the opinion that there was general acceptance in the medical profession that irritable bowel syndrome is exacerbated by opiate derived pain killers and in particular Codeine which is present in Panadeine Forte. The plaintiff claimed the cost of the colonoscopy and Mr Newman's fees in relation thereto. The defendant denies liability for the colonoscopy on the grounds that the plaintiff failed to establish a causal link between the defendant's admitted negligence and this head of claim. There was no suggestion that the plaintiff had any difficulty with an irritable bowel syndrome, constipation or the like prior to her accident. There was adequate evidence that constipation is a side effect of some analgesia particularly Codeine, and adequate evidence that a pre-existing irritable bowel syndrome is exacerbated by Codeine. In circumstances in which a defendant's negligence has caused personal injury to a plaintiff then the defendant is liable for all treatment necessarily or reasonably required and in my opinion there is nothing unreasonable in the plaintiff having had a colonoscopy to determine the cause of her lower abdominal pain even if it was fruitless. I adopt as an accurate statement of the law in this regard that of Professor Luntz at par 4.2.1 of his work "Assessment of Damages for Personal Injury and Death" (3rd ed, Butterworths, 1990).
This then deals with the three relatively minor controversies thrown up by the medical evidence namely the plaintiff's carpal tunnel syndrome and its release, her depression and its treatment (or rather lack of it) and her irritable bowel syndrome.
Loss of amenities
The plaintiff's early years were spent in Narrogin where her father was engaged in farm work. She attended the Narrogin Senior High School before moving to Bunbury in 1984, finishing her high schooling at year 10 in Bunbury that year. She was awarded an achievement certificate. Upon leaving school she obtained employment as a shop assistant for four months and then as a packing hand working full time on the production line for Edible Oils at Bunbury. Shortly after commencing work at Edible Oils, her employer changed its name to Meadow Lea and she worked full time on the production line until she married on 24 November 1990. Following her marriage she and her husband went to live in Perth. Following her marriage and move to Perth the plaintiff obtained work with Meadow Lea in Perth on its production line there, but this was only part time because as I understood it, that was all the work that was then available. Remaining in Perth for about two and a half years the plaintiff's first son Kiefer was born on 14 March 1992. The plaintiff gave up work when he was born but resumed when he was six months old, babysitting for four hours a day five days a week. In addition to the babysitting she did washing, ironing and cleaning for her employers. She moved back to Bunbury with her husband in 1993 when he obtained employment with Worsley Alumina. Whilst the plaintiff was fit to work for longer hours in Perth after Kiefer's birth, she was precluded from this because Kiefer was a sick baby suffering from asthma and pneumonia. Not long after her return to Bunbury however she again obtained work on the production line at Meadow Lea as a casual, which employment she enjoyed up until the time of her accident.
Prior to her accident the plaintiff was a very active outgoing, happy and fit person. She did aerobics, bicycle riding, water skiing, and played tennis and squash. She attended to all the domestic duties in the house. Prior to her marriage she had even ridden her bicycle to work and back. This was corroborated by her mother Mrs Bain, who described her daughter as a fun loving person with an even temperament literally a joy to be around. She said that she was more than a daughter to her, she was a top friend. She described the plaintiff as being very active in sports, tennis, swimming, aerobics, walking, jogging and the like. She confirmed that her daughter used to ride her bike to work every day. She enjoyed water skiing and going fishing and crabbing with her father. None of this evidence was seriously challenged. Likewise the plaintiff's husband confirmed that before her accident the plaintiff was very energetic. He said that she "always had plenty of go". She enjoyed outdoor activities, going to the beach, crabbing, swimming and jogging. He said that he observed her jogging to the gymnasium to do her aerobics twice a week and jogging home again afterwards. He described their social life as revolving around water skiing and other outdoor activities.
Regrettably the motor vehicle accident has wrought a dramatic change to the plaintiff's life. She struck me as being a sad person; the antithesis of the person described to me by those who knew her best before her accident namely her mother and husband. She has the resigned air of someone who has suffered a great loss. She misses the life she enjoyed before the accident and particularly the intimate family life that she and her husband enjoyed. She no longer does aerobics or rides her bicycle. She no longer water skis. Her husband said that he had been obliged to sell their ski boat because they never used it any more and the group of friends with whom they used to socialise were all water skiing people and because they no longer water skied they did not have a lot to do with their former friends who were still out skiing. She has tried swimming, particularly on the recommendation of her physiotherapist, but found herself unable to do it. Likewise she tried water aerobics unsuccessfully and now when she goes to the beach it is for her children and she just paddles around with them. She has not played tennis, squash or jogged since her accident. While she can now walk without much difficulty it is not like the amount of walking she used to do before. Holidays have changed too. She has not been camping with her husband since the accident. Going to the pictures is now uncomfortable. She used to enjoy going to concerts but the last time she bought tickets she ended giving them to her brother because she was too unwell to go. There is still however, she said, a social life of sorts with family and close friends, but she does not tend to see any of her sporting friends any more.
Looking at the impact of the accident upon the plaintiff's domestic duties, for some time after the accident she did not cook. Her mother came over to her home and cooked and cleaned and looked after the children for her if her husband was not at home. Even if her husband was there her mother still helped out, in fact the plaintiff said her mother came to her house practically every day for the first two years after the accident. Her mother corroborated this testimony, as did her husband. Her mother said that she was particularly fearful that her daughter would drop her baby Kalem, the second child born 9 June 1995, some seven months or so after the accident.
Previously the plaintiff did everything around the house leaving her husband to look after the outside of the house although she was a keen gardener herself.
The situation has improved to the extent that the plaintiff said that she can now do most things except heavy scrubbing and other tasks she performs with difficulty and more slowly than she used to do before the accident. She has difficulty lifting her arm above her head whilst hanging out the washing and her mother and husband still help her with this. She says that the facet joint injections improve things so that she can do more. She now prepares the family meals and whilst her husband does the heavy shopping she still goes with him and can do some of the light shopping. She is worried about her interaction with her children. Generally speaking it is fair to say that the evidence reveals the plaintiff has suffered a significant loss of amenities and continues to endure a diminished life and is deserving of a considerable award of general damages and I allow $60,000.
Gratuitous services – past
The plaintiff claims the value of the gratuitous services rendered to her by her husband and mother following her accident. Her husband described the change in the plaintiff after the accident as being dramatic. He said she virtually did nothing because she was too ill and that even now she is not doing what she did before the accident. He said that for the first six months he and the plaintiff's mother did everything for the plaintiff but gradually the plaintiff has improved to the extent where she does much of the domestic work around the house and he does all the heavy work. Nevertheless he said he was recently given the option of continuing on a 42 hour week roster which he was made to go on for the commissioning of Worsley's new alumina plant and, following commission, was given the option of staying on the 42 hour roster or going to a 36 hour per week roster. He went back to a 36 hour per week roster because of the help his wife required around the house. Presently Mr Ford prepares the children's lunches and takes them to school and generally he picks them up from school. He does the heavy shopping, a load of washing every 10 days and he has taken over the household finances because his wife could no longer concentrate on them. She used to take care of this before the accident. He brings the washing in from the line and sorts it out. Additionally he does all of the outside work on the house whereas previously his wife used to be quite involved in the gardening. I thought Mr Ford gave his evidence in a straightforward fashion. He was not prone to exaggeration and I accept his evidence of the degree of his contribution to domestic tasks following the plaintiff's accident.
The plaintiff's mother gave evidence of the assistance she had given to the plaintiff following her accident and she too struck me as being a typically understated Australian woman, grandmotherly in appearance and demeanour. She was not given to exaggerate the degree of assistance she gave her daughter following the motor vehicle accident. She too described doing all of the domestic chores for the plaintiff in the months following the accident, the cleaning, washing, ironing, sweeping and vacuuming. She cooked as well for the whole family every second night on average. Basically I got the impression that when Mr Ford was working she did all the cooking and when he was off shift they shared the duties. Generally speaking she would cook a meal for the family at her home and then take it around to the plaintiff's residence. She had never done this before the accident neither had she previously ironed for her before the accident. She described being needed to stay with the plaintiff when her son-in-law was working night shift because she felt that the plaintiff needed support. She needed assistance with the children in bathing them and getting them to bed and during the night when she observed her daughter pacing the house in an agitated state and crying she felt she had to be there to comfort her. She thought that on average she would have undertaken domestic work for the plaintiff for about 10 hours a week. Some of this time would have been babysitting the children once a week in order to give the plaintiff a rest from them but during the time that she was babysitting she would also undertake ironing, more so when she stayed overnight. So the picture is a little confused. Even so, I have no doubt that Mrs Bain undertook a lot of domestic work for her daughter.
Over the last 12 months or so Mrs Bain has "backed off a bit". Asked why she said that she has found herself getting tired. She is not a young woman and still holds down a part time job of her own in addition to domestic chores which she performs for herself and her husband. For about the last year or so she has regarded herself as being "on call" that is to say when either the plaintiff or her son-in-law request assistance she gives it. This would happen about twice a week these days.
The plaintiff's solicitor has formulated a claim on behalf of his client for past gratuitous services of 4,170 hours which at the rate which has been agreed of $12 per hour calculates at $50,040. Whilst I do not think the evidence of Mr Ford or Mrs Bain was exaggerated, I think this claim is, and along with the whole of the plaintiff's claim, has been what I would describe as overworked. One only has to read the particulars and the schedules to form this opinion. It is reflective of an over zealous case preparation by the plaintiff's solicitor and is not indicative of a tendency to exaggerate by the plaintiff and her witnesses. In the circumstances I have come to the view that an appropriate assessment of the value of the past gratuitous services rendered for the benefit of the plaintiff is $37,440. I have come to this conclusion on the following basis.
In the first year following the accident I think the evidence discloses that between them the plaintiff's mother and husband rendered gratuitous services of something in the order of 14 hours per week. In the second, third and fourth years following the accident the evidence shows that between them the plaintiff's husband and mother rendered gratuitous services for something in the order of 10 hours per week. This calculates at 3120 hours which at $12 per hour gives $37,440. I have sought to avoid doubling up and calculating babysitting and taking the children to and from school, as these are tasks which would have been undertaken by the plaintiff's mother and husband in any event. Nevertheless a broad approach is still required.
Gratuitous services – future
The parties have agreed that the appropriate rate for the calculation of the present day value of any gratuitous services to be rendered to the plaintiff in the future should be at the rate of $13 per hour. The calculation of course depends on my view of the evidence as to what (if any) gratuitous services will need to be rendered to the plaintiff in the future. In this regard I think that the evidence fairly discloses that the level of gratuitous services is dropping off and in my opinion, will tail off substantially if the plaintiff has the treatment for her depression she so obviously needs. I propose to assess damages on the basis that the plaintiff will have that treatment.
Accordingly then, the plaintiff will have treatment for the next two years, at the end of which the evidence suggests she should no longer need any gratuitous services because in large measure I think her depression has overlayed her physical symptoms and prevented her from coming to a more complete physical recovery. I propose to allow an average of seven hours gratuitous services per week for the next two years which at $13 per hour calculates to $91 per week. Using the 6 per cent tables, the two year multiplier is 99 hence 99 x $91 = $9,009, and I will allow this sum.
Economic loss – past
The parties agreed between them that when the plaintiff resumed her casual employment at Meadow Lea on 9 March 1994 she was thereafter employed continuously as a casual until the date of her accident and that she resigned from her employment the next day. It was further agreed that for the period from 1 July 1994 to 8 November 1994 her average income was $187.25 per week gross. This is the equivalent of $170.57 per week after tax (and not $160 as per the plaintiff's amended schedule of calculations). The evidence of Ms Beverley Ann Tillman who has been the operations administrator with Meadow Lea in Bunbury since 1996 was to the effect there was continuous casual employment available to the plaintiff from the time of her accident to the present. She produced exhibits of earnings of similar employees to the plaintiff (Exhibit P9.4). Presently she testified that the plaintiff would have available to her casual work at the rate of somewhere between 19 and 20 hours per week at a gross hourly rate of $14.92. Ms Tillman also produced a table (Exhibit P9.2) which demonstrated the rates of superannuation contributions which would have been made by Meadow Lea for the benefit of the plaintiff since her accident in 1994 and up until the present. These demonstrate that at the date of her accident the plaintiff was receiving the benefit of contributions to a superannuation scheme made by her employer at the rate of $7.48 per week but no evidence was led before me at the age at which and circumstances in which the plaintiff could access these contributions, nor was any evidence led before me as to the real identity of the fund into which the superannuation contributions were paid, the earnings of the fund or otherwise in accordance with the decision in Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192 making calculation of damages under this head of claim a very difficult exercise.
Complicating the calculation of the plaintiff's past economic loss is the fact that she had two children following the accident. She was of course pregnant at the time of the accident and her second son Kalem was born 9 June 1995. Subsequently the couple had an unplanned child, their third son Charlton born 15 August 1997. By reason of the facts however that the plaintiff returned to work as a child minder and domestic aid on a part time basis not long after the birth of her first son Kiefer, and in circumstances where he was a sickly child, and that she had returned to work at her former place of employment within six months after her return to Bunbury from Perth in October 1993, namely, in March of 1994, I think it more probable than not that the plaintiff would have returned to work after the birth of her second child and after her third child. I think it more probable than not that she would have returned to work about six months after the birth of her second child and about nine months after the birth of her third child. As I think the plaintiff was a well motivated person before the accident as well as being bright and energetic I do not think she would have had any difficulty coping with whatever work was available to her as a casual production worker and accordingly I am prepared to calculate out her past economic loss on this basis. My calculations are as follows:
1.Firstly, from Exhibit P9.1 I have calculated the plaintiff's total hours at 539.73 (462.92 ordinary time, 58.15 at time and a half and 18.66 at double time). Over 34 weeks this is an average of 15.81 hours per week, up to the date of her accident.
2.Secondly, from Exhibit 9.4 I have calculated that persons in the position of the plaintiff would have averaged between 26.05 and 20.90 hours per week from the time of her accident to the present.
3.For the plaintiff, I think a fair average would be somewhere in the range 15.81 and 26.05 hours per week, and having regard to the evidence of Mrs Tillman a fair average would be 20 hours per week.
4.For the period from the accident to judgment on 7 November 2000 is six years. The plaintiff would have taken 15 months off work to have her second and third children, leaving four years and nine months of lost earnings.
5.An appropriate calculation is to average the earnings and multiply them out. At the time of the accident the plaintiff's average weekly earnings were $187.25 per week gross. Today 20 hours at $14.92 per hour is $298.40 per week. The average is $242.83 per week gross. After tax her earnings were $170.57 per week at the time of the accident and would be $221.16 per week. The average, after tax is $195.87 per week.
6.247 weeks at $195.87 per week is $48,379.89, and I will allow that sum for past loss of earnings.
7.As mentioned, the calculation of past lost superannuation entitlements is difficult. The average contribution the plaintiff's employer would have made would have been 6.43 per cent of her gross earnings ($3,856.65) however the plaintiff would not have been able to access it until her retirement when it would have been subject to tax. To assess its present day value without adequate evidence or an agreed method of calculation becomes little better than guesswork. Nevertheless a clear loss has been established and must be compensated no matter how difficult the assessment. Looking at the issue broadly I propose to allow $2,000 under this head of claim.
Hence my total award for past loss of earnings and superannuation is $50,379.89.
Economic loss – future
Under this head of claim the plaintiff put forward a scenario that her future economic loss should be calculated on the basis that from 1 January 2007 she would have worked in the child care industry as a qualified child carer and from 1 January 2013 until her 65th birthday on 27 August 2034 she would have worked as a director of a child care centre. This is but another illustration of how the plaintiff's claim has been overworked by her solicitor, particularly when one appreciates that the genesis of this submission was her evidence that in 1994 she planned to complete her child care certificate, and so she said, she would have kept working part time at Meadow Lea until 2007 then she would have studied until 2012 and finished her child care certificate, then from 2012 to 2034 when she retired she would have been a director grade one of a child care centre. The plaintiff testified that before she was married she had decided that was what she had wanted to do but she had not advanced this desire any further than completing one year's study part time at Bunbury TAFE in 1989. In my opinion the plaintiff's ambitions to complete her child care certificate (if she truly had any) were well and truly being held in abeyance at the time of the accident and I regard this aspect of the plaintiff's claim as being unrealistic and I give it no weight.
That is not to say however that the plaintiff would not have been working at all. On the contrary, her undoubted energy and disposition for work demonstrated appropriately before the accident would most probably have continued. And I think it more probable than not that she would have continued working on the Meadow Lea production line on a casual basis for the foreseeable future. I do not see the plaintiff as ever returning to full time employment even after her children were off her hands, because I think she would most likely have given over a fair degree of her time to family interests, both in and out of the home. The plaintiff's mother having demonstrated a commitment to continuing part time employment even at her age of life is strongly suggestive of the plaintiff having had a good role model for the work ethic and I think it more probable than not that she would have continued in casual employment through to retiring age. Accordingly the plaintiff is entitled to an award which includes a component for future economic loss calculated upon these findings.
The defendant submitted that the plaintiff has a significant retained earning capacity which she is capable of exercising but does not. I disagree. Presently the plaintiff is disabled from employment by a combination of her physical and psychiatric difficulties. In my opinion psychiatric treatment will benefit her to the extent that she will, in two years time, be able to do without gratuitous services. However I am of the opinion that it will be some time after that before the plaintiff will feel well enough to again seek employment. This will take some years.
I think it more probable than not that the plaintiff will be able to return to casual employment of about 20 hours per week at Meadow Lea in about six years. She is entitled to an award calculated on that basis. At 6 per cent for six years the multiplier is 264.
264 x 221.16 = $58,386.24
Lost superannuation is again difficult of calculation for the reasons previously expressed. Presently the employers' contribution is required by law to be 8 per cent of gross earnings ($298.40 per week) or $23.87 per week. After allowing for the factors previously mentioned and taking a broad approach a proper award under this head is $3,750 ($12 per week for six years, rounded up).
Past medical expenses
The parties have agreed that the plaintiff is entitled to an award of $5,000 to cover her past medical, pharmaceutical, travel and gymnasium expenses. Additionally I should record that the defendant has agreed to indemnify the plaintiff in respect of any payments made by the Hospital Benefit Fund and or Medicare and, additionally undertook to reimburse the Health Insurance Commission and the Hospital Benefit Fund any reimbursement either of those organisations required.
Future medical and associated expenses
The plaintiff claims the cost of analgesics, anti-depressants, laxatives, facet joint injections, attendances upon various medical practitioners, gymnasium membership and occupational rehabilitation. She says she will need most of these for the rest of her life, which makes the claim for occupational rehabilitation appear somewhat incongruous. Dealing with each in turn:
Analgesics
The plaintiff will have a continuing need for analgesics at least until her psychiatric treatment is completed, though it is my opinion that she will only require them on an occasional basis. The parties have agreed that 120 Panadeine Forte tablets cost $20.60 and 24 Panadol tablets cost $4.35. Looking at the plaintiff's likely use of analgesia I think an appropriate allowance is two per day for the next two years and then one per week for the following four years, ie approximately eight packets or $165. I make no allowance for Panadol as the plaintiff's use of these will in my opinion be retained at her pre-accident level and hence is not compensible. I have chosen two years as being the estimated duration of her psychiatric treatment and four years being the period before which she will return to work.
Anti-depressants
Undoubtedly the plaintiff will require therapeutic doses of anti-depressants if she is to reach her optimum level of recovery (evidence of Drs Skerritt and Finlay-Jones refers). This may take two years. The parties have agreed the cost of this medication at $20.35 per 60 tablets. It seems that a therapeutic dose of this medication will cost $244.20 per annum and hence an award in the order of $465 is required (using the 6 per cent multiplier for two years of 99).
Laxatives
These are required to counteract the constipatory side effect of Panadeine Forte. The price has been agreed by the parties and having regard to what I have found will be a reduced use of Panadeine Forte a proper allowance is $50.
Facet joint injections
A number of medical practitioners expressed surprise that these were continuing having regard to their limited value. The plaintiff however found these of considerable assistance and in my opinion the plaintiff should be allowed the cost of their continuation while she also has psychiatric treatment. As the psychiatric treatment produces results, it is my opinion that the plaintiff's perceived need for facet joint injections will diminish. The parties have agreed that each facet joint injection costs $820. The plaintiff has been having about three per year at a cost of $2,460. This calculates at $47.31 per week. The 6 per cent multiplier for two years is 99 hence $47.31 x 99 = $4,683.69 and I will allow this sum.
Medical Practitioners
In my opinion the evidence demonstrates that the plaintiff should only require treatment (additional to her facet joint injections) from a psychiatrist. This of course is for her depression. Dr Skerritt thought one attendance per month for two years would be the treatment he would give at this stage. The parties agreed that each visit would cost $150, added to which would be the cost of the initial referral, namely $36. This calculates at $34.62 per week x 99 + 36 = $3,464.
Gymnasium membership
The parties agreed that the cost of membership is $343.20 per annum. The plaintiff had been referred to an exercise physiologist and her continued health club membership was supported by a number of medical practitioners. In my opinion the evidence establishes that she would benefit from this continuing. It will improve her general fitness, assist her recovery and help prepare her for a return to the workforce. Consistent with my previous findings, the need for this should cease in about six years when the plaintiff will be ready to resume employment. $343.20 per annum is $6.60 per week. The 6 per cent multiplier for six years is 264 hence 264 x $6.60 = $1,742.40.
Occupational rehabilitation
The paries agreed on the cost of vocational rehabilitation, however the evidence does not establish the need. As I have found that the plaintiff will be disabled from resuming her former employment for about six years, and that she will then be fit for all types of employment available to her before her accident, there is no point in occupational rehabilitation.
Group pain management
Dr Davies recommended this for the plaintiff. The parties agreed its cost at $2,000. In my opinion attendance at such a course, together with treatment for her depression, will greatly assist the plaintiff in her recovery and the claim is justified.
The summary of future medical and associated expenses is:
Analgesics
$ 165.00
Anti-depressants
$ 465.00
Laxatives
$ 50.00
Facet joint injections
$ 4,683.69
Medical practitioners
$ 3,464,00
Gymnasium
$ 1,742.40
Group pain management
$ 2,000.00
TOTAL
$12,570.09
Interest
The plaintiff claims interest pursuant to the provisions of s 32 of the Supreme Court Act 1935 on her past loss of earnings and 'special damages' at the rate the Court 'deems just' from the date on which the loss arose until judgment.
From November 1984 until 11 September 1997 the rate on judgments was 8 per cent. It has been 6 per cent thereafter. This is close enough to an average of 7 per cent. With an accruing loss the appropriate method of calculation is to calculate interest on half the relevant amount for the whole period. Hence:
50,379.89 x 7 per cent x 6 years = $10,579.78
2
(on past loss of earnings) and $5,000 x 7 per cent x 6 years = $1,050.00
2(on past medical etc expenses) Total Interest $11,629.78
Summary
| General damages | $ 60,000.00 |
| Past gratuitous services | $ 37,440.00 |
| Future gratuitous services | $ 9,009.00 |
| Past economic loss | $ 50,379.89 |
| Future economic loss | $ 58,386.24 |
| (superannuation) | $ 3,750.00 |
| Past medical expenses | $ 5,000.00 |
| Future medical expenses and associated expenses | $ 12,570.00 |
| Interest | $ 11,629.78 |
| TOTAL | $248,165,00 |
Addendum
Seventeen witnesses were called in this trial, ten of them medical practitioners. Of those ten, one was a general practitioner, three were psychiatrists, three were surgeons, two were rehabilitation specialists and one an anaesthetist. Of the remaining seven, one was a physiotherapist.
In my opinion there was no need to call any of them. They had all provided thorough reports which could have gone into evidence by consent. There was no great medical controversy. There were no significant differences of diagnosis, and what differences there were could have been fleshed out in correspondence.
In future, the Court will have greater resort to its powers under O 36A if parties in relatively straightforward cases such as this do not give more objective consideration to whether there are any medical issues which can only be resolved by a judge at trial, and thus avoid the excessive time and expense of calling large numbers of medical experts as witnesses.
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