Foster v Moanoroa
[2008] NSWDC 56
•18 April 2008
CITATION: Foster v Moanoroa [2008] NSWDC 56
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 26 and 28 March 2007,
5-7 September 2007,
10-13 September 2007,
2-5 and 24-25 October 2007
JUDGMENT DATE:
18 April 2008JURISDICTION: Civil JUDGMENT OF: Sidis DCJ DECISION: 1. Reasons published.
2. Stood over to date to be fixed to complete calculations for past attendant care services, argument on costs and interest, making of final orders and any application for a stay.CATCHWORDS: MOTOR VEHICLE ACCIDENT - assessment of damages - injuries and disabilities related to the accident - effect of pre-accident drug dependency on subsequent medical condition LEGISLATION CITED: Motor Accidents Compensation Act 1999 CASES CITED: Fox v Wood (1981) 148 CLR 438 PARTIES: Cathy Violet FOSTER (Plaintiff)
Peter MOANOROA (Defendant)FILE NUMBER(S): Newcastle 230/05 COUNSEL: D T Kennedy SC - T R Edwards (Plaintiff)
A J Black - A P Capelin (Defendants)SOLICITORS: Bale Boshev Lawyers (Plaintiff)
TL Lawyers (Defendants)
JUDGMENT
1 Cathy Violet Foster was involved in a motor vehicle accident on 21 September 2000. The defendant admitted breach of the duty of care. The plaintiff claimed to have been significantly disabled by the accident. She claimed substantial damages.
2 The issues related to the severity of the injuries and disabilities suffered by the plaintiff and required consideration of:
- 1. The nature of the lumbo-sacral injury suffered by the plaintiff.
2. Whether that injury was responsible for the plaintiff’s current condition.
3. The extent to which the plaintiff was to be compensated, particularly in relation to domestic and personal care.
Background
3 The plaintiff was born in 1963. At the time of the accident she was 37 years old, she is now 44. She has three daughters, none of whom are dependent upon her. At the time of the hearing one of her daughters was living at the plaintiff’s home with her small child.
4 The plaintiff is married to Shane Foster. They live on 25 acres at Wallarobba, a small settlement to which the closest town is Dungog.
5 The plaintiff was involved in a motor vehicle accident in 1979 in which she suffered from facial and shoulder injuries. In 1992 she fell from a motorcycle suffering an injury to her left knee.
6 Another motor vehicle accident occurred in 1993. The plaintiff claimed to have suffered an injury to her neck in the 1993 accident. The evidence indicated that the neck injury resulted in a considerable period of pain and discomfort. Initially she was treated conservatively. Injections were then provided but the plaintiff’s condition deteriorated. On 30 November 1994, Dr Ghabrial performed surgery involving a disc excision and fusion at the C5/6 level. Medical records suggested that the plaintiff’s neck pain and discomfort continued for a considerable period of time, notwithstanding this surgery.
7 The plaintiff’s third party claim in respect of the 1993 accident was settled. It was not clear from the evidence whether the claim was settled in 1997 or 1998.
8 In 1997 the plaintiff fell from a horse suffering fractures of the right L2 and L3 transverse processes. She recovered from this injury without ongoing consequences.
9 On 21 September 2000 the plaintiff was involved in the accident that is the subject of the current claim.
10 She said that at this time she was happily married to Mr Foster, was sexually active, and was undertaking all housework for a household that at that time included two daughters.
11 She worked part time as an upholstery machinist and she earned a small income by selling horse blankets that she sewed on an industrial sewing machine. She made clothes for her family.
12 She rode horses kept by herself and Mr Foster. She rode motorcycles.
13 She said she continued to suffer from migraines of a severity that required daily treatment with MS-Contin, a morphine based medication. She received a morphine injection at least once per month.
14 The plaintiff presented to the court as severely disabled by back pain. She claimed that the severity of the back pain has increased from the time of her injury. Dr Ghabrial performed surgery on two occasions without relieving her symptoms. Rather, her condition became worse.
15 At the time of the hearing the plaintiff’s pain was at the point where an intrathecal pump had been inserted under the skin of her abdomen. The pump delivers painkilling medication directly into her lumbar spine.
16 The medication she receives only partially relieves her pain.
17 The plaintiff’s pain prevents her from sitting for more than five minutes. It prevents her from lying down at all. The plaintiff stood whenever she was present at the court, including the period during which she gave her own evidence. She said she sleeps standing up, leaning over and holding on to the kitchen bench.
ISSUE 1 – THE NATURE OF THE INJURY
18 The medical experts who examined the plaintiff on behalf of the defendant did not accept that she in fact suffered any injury to her lower lumbar spine in the accident.
19 Dr Matheson was firmly of the view that an injury to the lower lumbar spine was not the source of the plaintiff’s pain. He acknowledged that pathology in that area of the plaintiff’s spine was evident when surgery was undertaken by Dr Ghabrial but said that radiographical investigations indicated that this pathology was degenerative in nature and not traumatic.
20 Dr Bookalill was similarly of the view that the plaintiff’s condition was degenerative. Dr Tarrant agreed with Dr Matheson’s opinion concerning the investigations. Dr Spira accepted that there had been soft tissue injury.
21 Of these medical experts, only Dr Matheson was cross examined. He repeated his opinion that there had been no back injury in the accident. His view appeared to be based on some misinformation concerning the way in which the defendant’s vehicle impacted with that of the plaintiff. In the course of cross examination Dr Matheson conceded:
1. The operating surgeon was in the best position to view the condition of the plaintiff’s lumbar spine.
2. Dr Ghabrial described the L5/S1 disc as prolapsed.
3. A prolapse could be the source of pain.
4. Dr Ghabrial described the L4/5 disc as prolapsed and adherent to the left L5 nerve root, which could also be the source of pain.
5. There was no doubt that the L5/S1 disc was abnormal.
6. He would expect the plaintiff to have some degree of disability following two surgical procedures.
22 Dr Matheson also said that the prolapse at L5/S1 was not significant and he maintained that it was highly unlikely that it was caused by trauma following an impact between two motor vehicles.
23 Other medical experts expressed the opinion that the damage to the plaintiff’s low back was recent in origin and the result of trauma.
24 They included Dr Woolard, who described the injury as a small central protrusion at L5/S1 with no clinical evidence of radiculopathy. Dr Messmer initially doubted the plaintiff’s complaints of back pain but was persuaded by positive findings on clinical examination. Dr Pillemer accepted the accident as the cause of the low back injury and ongoing symptoms. Dr Scougall related the plaintiff’s back pain to chronic soft tissue lesions in the low back with bilateral radicular pain.
25 Dr Ghabrial described his findings at surgery in April 2001 as a soft tissue prolapse that was not calcified or narrowed dramatically so that it was most likely of recent origin. This surgery involved disc excision and fusion at L5/S1.
26 After an initial period where her pain was relieved, the plaintiff’s condition deteriorated and further investigation indicated internal disc derangement at L4/5. At surgery in February 2005 Dr Ghabrial found the disc prolapsed and adherent to the L5 nerve root. He performed the procedure necessary to mobilise the nerve root and extended the fusion to the L4/5 level.
Issue 1 – findings
27 Dr Ghabrial had the opportunity to view directly the condition of the plaintiff’s lumbar spine. His opinion that there was injury to the spine and that it was of recent origin is accepted.
28 Dr Tarrant and Dr Matheson expressed opinions about the likely efficacy of the surgery at both levels of the plaintiff’s lumbar spine in relieving the plaintiff’s complaints of pain and disability. Although those opinions subsequently proved to be correct in that the surgery did not relieve the plaintiff’s pain, there was no evidence to suggest that Dr Ghabrial’s effort to assist the plaintiff through surgery was misplaced to the point where the surgical option should not have been pursued.
29 I find that the injury at L5/S1 with the subsequent need for surgery at L4/5 were the result of the motor vehicle accident.
ISSUE 2 – WAS THAT INJURY RESPONSIBLE FOR THE PLAINTIFF’S CURRENT CONDITION?
Credit
30 It was accepted by the medical experts that surgery did not resolve the plaintiff’s complaints of back pain and that the term failed back surgery syndrome applied.
31 It was also accepted that the nature of the surgery undertaken in an attempt to relieve those complaints was such that some pain and discomfort would necessarily remain and that in some cases the pain and discomfort could be at extreme levels.
32 A number of propositions were put forward to explain the plaintiff’s continuing extreme symptoms.
33 The plaintiff’s presentation to the court and through medical evidence was unusual and extreme. The competing claims concerning the cause of her complaints of ongoing severe, debilitating pain made it necessary that she persuade me that her presentation should be accepted as genuinely related to the lumbo-sacral injury suffered in the 2000 accident.
34 On this basis, the plaintiff submitted that I should accept her as a person who suffered injury in a motor vehicle accident that resulted in progressively severe symptoms.
35 The plaintiff appeared throughout the hearing to be significantly affected by medication and pain. This was apparent when she gave evidence, more particularly when she was under cross examination. This situation was disadvantageous to both parties.
36 There were a number of matters put into evidence that were inconsistent with documented material and which she and Mr Foster were unable to explain satisfactorily. Of particular concern was the evidence relating to the 1993 motor vehicle accident and to the plaintiff’s dependence on opioids.
The 1993 motor vehicle accident
37 The evidence of the plaintiff and that of Mr Foster presented a picture of her as active and happily married at the time of the 2000 accident.
38 It was said that she was doing all of the housework for the household, working part time and caring for their horses. It was said that she rode her horses regularly, undertaking rides of approximately 30 kilometres at the weekends, some on rough terrain. The family took a holiday to Surfers Paradise in 1999. Photographs were produced portraying a healthy, active young woman.
39 The plaintiff said she suffered some migraine headaches but they were infrequent and they did not cause her to take time off from work.
40 There were inconsistencies in the evidence concerning the period during which the plaintiff and Mr Foster lived together prior to their marriage in April 2000. The significance of this period was the opportunity it presented to Mr Foster to observe the consequences to the plaintiff of the 1993 accident.
41 The plaintiff initially stated that they lived together for four years, that is, from 1996. She subsequently said the cohabitation period was three years.
42 Mr Foster said they cohabited from 1998 but he also said that the plaintiff was capable of undertaking all of the housework by the end of 1996. This included shopping, washing and caring for the couple’s horses. By 2000 the couple owned and cared for six horses.
43 In an affidavit dated 18 October 1996 the plaintiff said that as a result of the 1993 accident she was unable to undertake many of her domestic tasks and those involved in caring for the horses. She said that on average she was assisted by her three daughters to the extent of 21.25 hours per week.
44 On 6 January 2004 Mr Foster signed a statutory declaration in which he said he had lived with the plaintiff from 1994. In his evidence he said this was a mistake and that the correct date was 1998. Reference to the year 1994 appeared in paragraphs 4, 6 and 7 of the statutory declaration. He explained the error by stating that at the time he swore the declaration he had been working long hours and he had not checked the document adequately.
45 In the statutory declaration he stated that from 1994 to the date of the 2000 motor vehicle accident the plaintiff did all housework and some lawn mowing and garden maintenance. In the same period they had cared for 6 to 20 horses with the plaintiff undertaking the bulk of the work. This work was said to occupy the plaintiff from 4 to 6 hours daily. He stated that the plaintiff rode at weekends.
46 From this evidence it would appear that the plaintiff from 1994, 1995, 1996 or 1998, depending upon which part of this evidence is accepted, was fully fit and functional domestically and was able to care for and ride horses.
47 This position was confirmed by evidence of a private investigator engaged to undertake surveillance of the plaintiff’s activities by the defendant to the claim made in respect of the 1993 accident.
48 Mr Beckley gave evidence that in the course of this surveillance he filmed the plaintiff undertaking a number of activities. The film was not located and was therefore not in evidence.
49 Mr Beckley gave evidence of what he said was his independent recollection of his observations. He was tested as to whether he had refreshed his recollection from a report prepared from his notes or by any other means of prompting his memory. He gave cogent reasons for remembering these observations and I accept that his memory was sufficiently independent for his evidence to be taken into account. This was particularly so, since it coincided with the evidence of the plaintiff and Mr Foster, although they attempted to resile from evidence of the plaintiff’s physical capacity prior to the end of 1996.
50 Mr Beckley said that he observed the plaintiff in late December 1995. He remembered observing her undertaking activities such as driving, refuelling the car of another woman with a petrol can, looking under the bonnet of a car, lifting plastic containers from the ground and placing them in the boot of a car. Mr Beckley observed the plaintiff placing a bridle on a horse and lifting a saddle from the horse and placing it into a car boot.
51 The defendant placed into evidence extensive medical material dealing with the claim made by the plaintiff following the 1993 accident. From that material it was apparent that complaints of symptoms and disability were made by the plaintiff in 1995, 1996 and into 1997.
52 The defendant relied on medical reports prepared prior to 2000 to support its contention that the plaintiff’s current presentation mirrored that following the 1993 accident and was related to drug seeking behaviour rather than the treatment of a genuine injury. There were a large number of these reports. I have referred to some of the more significant parts.
1. Dr Bookalill examined the plaintiff in 1994. He accepted her complaints of neck symptoms. His opinion was that they would resolve with time. He did not support the proposal for neck surgery. In 1995 he noted that the results of the surgery were poor. He did not support the proposal for cervical disc stimulation as a means of diagnosis of the source of the pain. In February 1996 Dr Bookalill viewed the films taken of the plaintiff and noted the activities of which I received evidence from Mr Beckley. Dr Bookalill remarked that the plaintiff exhibited excellent neck movement. He noted that the neck movement shown on the film taken in December 1995 was greater than when he examined the plaintiff again in 1996. At this time the plaintiff was complaining of significant pain and numbness in her fingertips and marked impairment of neck movement. He recorded that she continued on medication at the rate of 20 physeptone per month and three to five pethidine injections per month. He said the plaintiff would be helped if she stopped taking painkillers but he did not expect that she would do this.
2. Mr Nicholas, psychologist, reported in October 1995 that he strongly recommended that the plaintiff have surgery because her physical state and pain levels were extreme and debilitating. He said any delay would potentially damage her psychologically. He reported in November 1995 that there was no evidence that the plaintiff’s pain had been relieved. He reported that when plaintiff consulted him on 18 December 1995 she was suffering from chronic neck pain. She continued to complain of chronic and severe pain when she consulted him in February 1996. Mr Nicholas diagnosed reactive depression.
3. Dr Lambeth, psychiatrist, reported that the plaintiff in September 1996 complained of very significant symptoms and disabilities, including constant occipito-frontal headaches of varying intensity, depression, suicidal thoughts and insomnia. She was receiving five morphine injections per month. He diagnosed post traumatic stress disorder and depression related to memories of the accident, pain and loss of function because of the pain.
4. Dr Chapman reported in April 1995 that an MRI indicated that the plaintiff’s symptoms were out of proportion. He reported in March 1996 that the plaintiff said she had obtained considerable benefit from surgery to her neck but that she continued to suffer pain and needed to take care in some activities. He described the plaintiff’s physical disabilities as mild to moderate and stated that she was leading a fairly normal lifestyle. He was concerned that she was continuing to take physeptone at the rate of two per day because this was a drug of addiction.
5. Dr Allan White, psychiatrist, in December 1995 noted the plaintiff’s complaints of constant, daily symptoms of significant severity. She reported that carrying a carton of milk could set off her neck pain. His diagnosis was of abnormal illness behaviour and he suggested that the plaintiff was malingering. Dr White subsequently viewed the film taken of the plaintiff in December 1995 that he said demonstrated relaxed, pain free and unrestricted cervical movements that were in great contrast to her presentation to him on 12 December 1995. His opinion that the plaintiff was malingering was confirmed. He rejected Dr Lambeth’s diagnoses.
7. Associate Professor Jones viewed film taken of the plaintiff in December 1995 and reported that it indicated a substantial degree of function not conceded at interview or on examination of the plaintiff in March 1996.6. Dr James Maguire, psychiatrist, examined the plaintiff on 23 December 1997. He recorded the plaintiff’s complaints of chronic pain and disability since the 1993 accident and that she was continuing to take medication and receive five morphine injections per month. Dr Maguire referred to the plaintiff’s pre-1993 medical history that indicated that she had difficulties with activities such as housework and driving her car because of wrist pain. After the accident the same problems had been attributed to neck pain. He concluded that the accident provided a new focus for an existing disorder rather than causing the development of a disorder that was not already there.
53 The plaintiff stated that the condition of her neck was considerably improved by the time of the 2000 accident. She stated that her daily use of MS-Contin and monthly requirement for morphine was to treat migraine headaches from which she continued to suffer. Mr Foster, asked about his wife’s drug use prior to 2000, said he knew nothing of it. He did not know that she was taking narcotic medication three times a day or that she was receiving injections. He did not know why she consulted Dr Abery on a regular basis. He confirmed that the plaintiff did suffer from headaches of an intensity that sometimes required her to lie down in a darkened room.
54 Aside from the scepticism with which one might approach Mr Foster’s evidence, it was at odds with the applications made by Dr Abery for authority to prescribe narcotic medication to the plaintiff. Those applications specified neck pain as the reason for the prescription of narcotics to the plaintiff.
55 This material suggested that the plaintiff’s evidence to this court of her pre-accident level of capacity was untruthful or that the claims made in respect of the 1993 accident were untruthful. It left me with little confidence in her credit with the result that persuasive evidence independent of the plaintiff was required to satisfy me that I should accept her claims arising out of the 2000 accident.
The explanations
Arachnoiditis
56 The plaintiff was referred to Dr Russo at the Hunter Pain Clinic in September 2005. He diagnosed arachnoiditis at his initial consultation with the plaintiff. Dr Russo said this diagnosis was based on positive clinical symptoms and positive clinical signs. He described the symptoms as significant pain, described by the plaintiff as between 7/10 and 10/10 in severity, shooting pain into the legs, anaesthesia and paresthesia, and the left leg occasionally giving way without warning. The signs he described as clumped nerve roots from L4/5 to the L1 level shown on MRI scans dated 8 June 2005.
57 Dr Russo said the plaintiff had not complained of bowel or bladder symptoms although he noted that complaints of these problems were recorded in a number of medical reports.
58 He recommended that the plaintiff cease her medication and pursue alternative drug therapy.
59 The plaintiff’s medication at that stage was 30 mg of morphine intramuscularly twice a day and 30 mg of Oxycontin three times a day.
60 In October 2006 Dr Russo performed a procedure to implant an intrathecal catheter and subcutaneous pump.
61 The significance of Dr Russo’s finding of clumped nerve roots was further explained in evidence to the court. He said the MRI supported this diagnosis because, rather than floating freely as was normal, the nerves were shown on the MRI to be clumped together in a mass and therefore not free to move. He said fibrous scar tissue caused the nerve roots to adhere to each other or to the side wall of the thecal sac.
62 Dr Russo said that arachnoiditis could be caused if blood from the operative field entered the intrathecal sac after surgery, promoting inflammatory reaction, scarring, clumping and damage to the nerve roots.
63 Dr Russo accepted that there was no reference to arachnoiditis in the report of the radiologist who conducted the MRI scans but said this was not unusual. He agreed that other findings on the scans, such as desiccation of the discs and scarring around the L4 nerve root could cause pain in some patients. However, he continued to maintain his opinion that arachnoiditis was the cause of the plaintiff’s pain.
64 Dr Parker specialises in neuro-radiology. He examined MRI scans of the plaintiff’s lumbar spine taken in December 2000, June 2004 and those of June 2005. He reported that the appearance of the nerve roots in the lumbar subarachnoid space was unchanged in each of these scans and he was unable to detect findings suggesting arachnoiditis of any severity. His conclusion was:
The nerve roots in the lumbar subarachnoid space are well demonstrated in T2 weighted images and in the Plaintiff’s studies are all visible as separate and non-clumped structures and do not appear to be adherent to the margins of the thecal sac.
65 In his evidence to the court Dr Parker was referred to various images on the MRI scans commencing with those taken in December 2000 before any surgery had been undertaken. He said there was no difference between the 2002 and the 2004 scans and that both showed nerves lying in the normal position in the thecal sac and distinguishable as individual structures. On viewing the 2005 scans, he said there was no significant change from the two prior studies.
66 Dr Parker produced extracts from a text titled Diagnostic Imaging – Spine by Ross Brant-Zawadzki Moore (1st edn) that were said to represent the appearance typical of arachnoiditis.
67 Dr Parker noted that the 2005 studies indicated epidural or peridural scarring consistent with the effects of surgery. He said that surgery external to the thecal sac to remove disc material was often associated with the development of scar tissue in the epidural space.
68 Dr Parker agreed that arachnoiditis can be excruciatingly painful and its symptoms can be progressive. He did not accept that its presence might not show on an MRI scan.
69 He noted that the surgery undertaken on the plaintiff was outside the thecal sac and stated that arachnoiditis can be the result of bleeding within the thecal sac or injection into the thecal sac.
70 In the course of cross examination Dr Parker was questioned concerning his use of the phrase of any severity. He clarified this part of his report to state that he found no evidence whatsoever of arachnoiditis, whether mild, moderate or severe.
71 He said it was fundamental to the diagnosis that there be clumping of nerve roots.
72 Dr Matheson also viewed the 2005 MRI scans and found no evidence of arachnoiditis. He noted some scarring around the nerve roots that he said was within usual post operative findings. He said the nerve roots were running freely within the cerebrospinal fluid. He found more of a ring pattern at the level of the lumbo-sacral junction but said the nerve roots were not attached to the dura, they were not adherent to each other and there was no lattice like arrangement of the nerve roots, so that this appearance could not be interpreted as arachnoiditis.
73 Dr Ghabrial said that if there had been a leak of cerebrospinal fluid or bleeding into the spinal column this would have been noted in the operation report. He said it was his practice to rely on neurologists to determine whether a condition such as arachnoiditis existed. He was taken to the MRI scans and asked for his opinion. On comparing the 2004 scans with those taken in 2005 he said they appeared very similar in that the nerve roots at various levels appeared to be unclumped and separate. The appearances of the nerves on various scans taken in 2005 he described as unclumped, separately identifiable and inconsistent with the diagnosis of arachnoiditis.
74 The evidence of Dr Parker, Dr Matheson and particularly that of Dr Ghabrial the operating surgeon persuaded me that I should not accept the diagnosis of arachnoiditis. They pointed out features of the MRI scans that did not support the proposition that the nerve roots were clumped in the formation that was essential to the diagnosis. The other essential feature of the condition, that there should be evidence of some breach of the wall of the thecal sac, was also not established. The 2005 surgery took place outside the thecal sac and Dr Ghabrial made it clear that if breach had occurred, it would have been recorded in the operation report.
Drug dependence
75 The plaintiff rejected the defendant’s proposition that her symptoms were exaggerated so that she could continue to secure narcotics to which she was addicted prior to the accident.
76 The defendant pointed to a record of treatment of the plaintiff when she was hospitalised for the injury that she suffered to her knee in 1992. Dr Doig reported that over a period of eight days the plaintiff received pethidine injections 11 times and eight Panadeine Forte tablets for a relatively minor injury.
77 The evidence of the plaintiff’s treatment following the 1993 accident suggested to a very high degree of probability that she developed a dependence on pain killing medications which included pethidine, Panadeine Forte and physeptone from the period when she was hospitalised in 1994 until some time in 1996 when morphine injections replaced pethidine.
78 In this period the plaintiff appeared to be receiving injections from two general practitioners while presenting at John Hunter Hospital in late 1994 and early 1995 requesting narcotic analgesia for neck and head pain. Records in evidence indicated that the doctors involved, including those at John Hunter Hospital, became concerned at her continued frequent requests for narcotic medication.
79 Authority was given to one of the general practitioners, Dr Lambert, to continue to administer a specified amount of medication. In 1995 and 1996 the plaintiff was given morphine or pethidine injections at the rate of about five per month. In addition she was prescribed physeptone. Dr Lambert’s notes indicated that in December 2007 the plaintiff received seven additional morphine injections. He recorded that the plaintiff informed him that she was unable to tolerate oral medications. Dr Lambert at this stage appeared to express concern at the plaintiff’s continued use of narcotics.
80 The plaintiff transferred to Dr Abery who in April 1998 commenced prescribing MS-Contin, a morphine based medication that was orally administered. In addition the plaintiff continued to receive morphine injections at a reduced rate averaging one or two each month.
81 The plaintiff conceded that she had probably been addicted to morphine at this time. Dr Abery conceded that the plaintiff had been partially addicted. Dr Abery did not offer any explanation of this term. From Dr Abery’s evidence it appeared that she administered injections at the rate of one per month because that was what was authorised by the Department of Health. She said this treatment was provided in consultation with specialists but there was no evidence of any specialist involvement.
82 While conceding a probable addiction, the plaintiff pointed to evidence that she was functioning normally, managing her household and working part time without the need to take time off. This suggested that, even if addicted, the addiction was of no consequence to her current presentation.
83 Dr Perl agreed that if the plaintiff had been receiving morphine sulphate for some time and if she was not abusing the drug by taking more than was prescribed, the plaintiff might well have been functioning in a reasonably normal manner.
84 Dr Sydney Smith reported that the plaintiff’s drug dependence had been established over a period of seven years prior to the 2000 accident, that it would have continued even in the absence of that accident and would have involved progressively increased narcotic use as she developed a tolerance to the drugs. The plaintiff was critical of Dr Sydney Smith because of the manner in which he approached the defendant’s instructions. I accept that his approach was directed at matters that could be regarded as negative to the plaintiff’s claim. However, no issue was taken with this part of his evidence in cross examination or in submissions and no contrary opinion was advanced on behalf of the plaintiff.
85 Dr Perl also reported the likely need for increasing quantities of narcotic medication in response to the development of tolerance to the drugs of this type.
86 Contrary to the plaintiff’s contention that Dr Abery gave evidence that the plaintiff’s use of narcotics was gradually reducing prior to the accident, from 60 mg of MS-Contin per day to 45 mg per day, her records indicated that the plaintiff continued to received 60 mg per day up to October 2000 and to receive one injection monthly and, on occasions, two per month.
87 The defendant’s contention was that, even if the plaintiff was functioning normally prior to the 2000 accident, her extreme presentation mirrors that which was apparent after the 1993 accident and that this presentation in both cases was fuelled by the plaintiff’s dependence on narcotic medications.
88 I have concluded that the plaintiff’s complaints of ongoing significant symptoms arising out of the 1993 accident, when on her own evidence and that of Mr Beckley was that she was functioning normally, and her complaints of subsequent significant symptoms arising out of the 2000 accident were indicative of one of two propositions:
1. those complaints were fuelled by her addiction to narcotics; or
2. they were made to exaggerate her symptoms in order to maximise her compensation.
89 There was substantial evidence to support the narcotics theory.
90 The plaintiff has been involved in two accidents in which she suffered apparently moderate injuries that produced disproportionate levels of pain.
91 She recovered within months of the 2000 accident, without explanation, from neck pain and migraine headaches which, prior to the 2000 accident, were sufficiently severe to warrant seven years of treatment with narcotic medication.
92 There appeared to be no serious attempt to address pain management by means other than narcotics. Recommendations for treatments that might assist in relieving the plaintiff’s condition such as psychiatry, physiotherapy, hydrotherapy and occupational therapy were either not pursued or undertaken for short periods only. Explanations provided included the increased pain suffered after physiotherapy and the distance the plaintiff was required to travel for treatments when travel caused her considerable discomfort. There was no evidence provided of inquiries made concerning the availability of home based treatments. I note that occupational therapists, a physiotherapist and a neurosurgeon have travelled to the plaintiff’s home for the purposes of assessment and report in connection with these proceedings. The plaintiff’s claim in respect of travel was inconsistent with her current situation where she is required to travel to Dr Russo’s surgery at four weekly intervals for the purposes of refilling the intrathecal pump.
93 The plaintiff stated that her pain levels have reduced since the insertion of the intrathecal pump. This has not always been the case. When the pump was initially inserted the plaintiff complained of spasms in her back occurring daily and lasting 20 minutes. During these spasms she was unable to move in any direction and the pain caused her to scream. Dr Russo described this initial failure to respond as perplexing. A positive response was reported when the morphine dose was increased.
94 Notwithstanding this reported improvement, the plaintiff continued to complain of extreme pain levels.
95 The plaintiff presented to the court with a number of extreme symptoms. She walked with a shuffling gait and relied on a walking stick. She did not sit at all during the proceedings. She found it necessary to support herself on the outside edge of the witness box with her back turned to the bar table. Regular rest breaks were provided to assist the plaintiff. Throughout much of her cross examination she appeared to be confused or unable to grasp the meaning of the questions put to her.
96 The most significant complaint was that she was unable to sit or lie down since the insertion of the intrathecal pump. The plaintiff put forward a number of reasons to explain this development. The plaintiff said she could not rise from the sitting or lying position because of her extreme pain. On two occasions she has required the assistance of ambulance officers to enable her to stand from a seated position on her lounge. Before the pump was inserted the plaintiff was unable to sleep on her back or stomach because of pain. She therefore slept on her side. She is no longer able to do this because of the position of the pump.
97 The plaintiff said that the result of this inability to sit was that she stands for almost 24 hours a day. She sleeps leaning over her kitchen bench, using pillows to cushion the pressure on her elbows and bracing her body by pressing her knees against the bench. She rests rather than sleeping and consequently is constantly fatigued.
98 Ms McMaster, occupational therapist, described the claim of sleeping in the standing position as implausible and irrational. She said the plaintiff would fall if she in fact did sleep in the position described. If she did not sleep then she would suffer from psychiatric symptoms as a result of sleep deprivation. This opinion of Ms McMaster was not challenged by cross examination or contradicting evidence.
99 There was inconsistency between the plaintiff’s evidence that she now stands for almost 24 hours per day and the complaints that she made before the intrathecal pump was inserted. Ms McMaster noted that on a prior assessment the plaintiff had complained to her of pain on standing and walking in contrast to the complaints made in 2007 of pain when sitting or lying. A report of Recovre following an assessment in December 2005 described as zero the plaintiff’s sitting and standing tolerance, although she attempted to do so for a few minutes every hour to avoid deep vein thrombosis. The report described the plaintiff as clearly in a great deal of pain when she stood for a short period during assessment. She was unsteady on her feet and grasping her walking stick for support. Walking was said to cause immense pain and burning sensations in the plaintiff’s feet. As a result she was spending almost 24 hours each day lying on her side, this being the least painful position.
100 Dr Spira examined the plaintiff in June 2007, that is, after the intrathecal pump was inserted. He reported that the plaintiff’s complaints were inconsistent with the injuries she sustained. He was critical of the surgery that had been performed, stating that it was unnecessary. He said the plaintiff had been drug dependent since the 1993 accident and that her analgesic intake had increased since the 2000 accident. He was of the opinion that it was highly likely that the plaintiff would have maintained use of narcotics regardless of the 2000 accident.
101 The plaintiff’s evidence that she stopped taking MS-Contin in 2003 is consistent with medical records. She relied on this evidence to indicate a reduction in reliance on morphine based medication. However, from that time her reliance on other addictive pain killing medication, such as physeptone, increased, as did the administration of morphine by injection. Dr Jeffrey, the plaintiff’s general practitioner from 2003, wrote in June 2004:
I would rate her pain level as extreme, despite her taking morphine orally 3 times daily.
102 This reached the point where Mr Foster was instructed on how to inject and the plaintiff conceded that at times she self injected and where in January 2006 Dr Jeffries wrote to Dr Russo:
I am writing about my concerns with Cathy Foster. I appreciate that she is depressed, but am also aware that this entirely due to her extreme chronic pain. I cannot remember another patient who has been forced to endure so much, and I am a little surprised that she has not suicided. She is not fit to attend counselling, due to distance and our roads, so I am asking you to consider a pump, and then we can deal with whatever problems she has left.
There was no evidence from Dr Jeffery concerning the manner in which these problems have been dealt with.
103 Further, the plaintiff continues to rely on narcotic medication supplied through the intrathecal pump.
104 Dr Russo was cross examined as follows:
- Q. If someone is addicted to narcotic medication, then their pain behaviour may well be a manifestation of narcotic seeking behaviour?
A. Correct.
- Q. And that’s why they are ineligible for that sort of treatment by way of a pump?
A. They would be ineligible if they were addicted, not because they’re demonstrating pain behaviour but because from their addiction will flow increasing requests or inability to reduce medication. It’s not specific their behaviour in terms of their facial grimacing or whatever that precludes them. It’s their more – it’s the behavioural outcome that they engage in.
The claimed psychiatric disorder
105 Dr Bhandari was put forward as the plaintiff’s treating psychiatrist, although she appeared to consult him on only two occasions in order to obtain medical reports for the purposes of the proceedings. Dr Bhandari reviewed material concerning the plaintiff’s medication provided by the plaintiff’s solicitor. His opinion was unequivocal in stating that the plaintiff’s response to the 1993 accident was the development of an opiate dependence and a pattern of opiate seeking behaviour. Notwithstanding these comments he stated that the 2000 accident was the substantial and contributing factor to the major depressive disorder from which he said the plaintiff was suffering. He said he remained unclear about a number of features concerning the plaintiff’s mental health. They were:
1. whether she had an underlying vulnerability to depression;
2. the nature of her depressive symptoms after the 1993 accident;
3. the absence of extensive psychiatric treatment considering the prolonged nature of her symptoms; and
4. her investment in the compensation process.
There was no evidence to indicate that Dr Bhandari was provided with the information necessary to clarify these matters. In the circumstances, his report was of limited assistance.
106 Dr Bhandari recommended psychotherapy extending over three and a half years accompanied by pharmacology. There was no evidence that this recommendation had been adopted as at the date of the hearing.
107 I share Dr Bhandari’s concern at the absence of psychiatric treatment having regard to the number of occasions on which it has been recommended to the plaintiff and the opportunities that it presented to the improvement of her condition.
108 Many of the medical reports suggested a psychiatric disorder as the explanation for the plaintiff’s extreme presentation.
109 Hunter Rehabilitation recommended counselling in October 2000. A counselling discharge report dated April 2001 stated that the plaintiff had attended only two sessions and that she had been referred to another psychologist. There was no evidence that the plaintiff received any further counselling.
110 Dr Davies of the Hunter Integrated Pain Service in March 2003 reported that the plaintiff had rejected a program involving injections, psychology and physiotherapy. Ms McMaster recommended psychological intervention to wean the plaintiff from her dependence on narcotics and to deal with a well entrenched chronic pain disorder. Ms Walker recommended counselling.
111 Mr Newton-John assessed the plaintiff in December 2005 for the purpose of determining whether she was a suitable candidate for the intrathecal pump. He described the plaintiff as about as disabled by pain as it is possible to be. He recommended six treatments and some demonstrable improvement in the plaintiff’s psychological condition before the intrathecal pump was installed. He also noted that an intensive vocationally focussed pain management program would be required.
112 There was no evidence that this recommended treatment was provided to the plaintiff. Rather, she was referred to Dr Pek Ang for another opinion in February 2006. Dr Pek Ang diagnosed major depressive disorder. The value of his opinion was seriously undermined because it made no reference to any prior history of depression and no reference to the plaintiff’s dependence on narcotics.
113 Dr Bhandari specifically noted that the plaintiff had told him nothing of the significant opiate dependency she had developed and that concerns had been expressed over the years about this dependency, particularly following the 1993 accident. He said the plaintiff minimised the depressive symptoms that she suffered after the 1993 accident. He referred to a letter from Dr Lambeth to Dr Weiss written in November 1995 and he made reference to information contained in materials provided that had not been mentioned by the plaintiff. He stated that the reasons for this non-disclosure needed to be considered.
114 Dr Bhandari proceeded to express further concern about the plaintiff’s non-disclosure of certain aspects of her personal and developmental history. He said he needed this information to understand her personality style and he questioned whether she suffered from an underlying personality dysfunction.
115 Dr Sydney Smith reported that the plaintiff understated to him the extent to which she had relied on MS-Contin prior to the 2000 accident and he described her as an unreliable historian. He made reference to a number of features of the plaintiff’s history that indicated to him that the pain of which the plaintiff complained was not the result of the 2000 accident. He stated that Dr Bhandari’s opinion had been based on inaccurate and misleading information. He said that Dr Bhandari was likely to agree with his opinion if he was provided with the further information he requested. Dr Smith’s opinion was that the plaintiff readily fulfilled the DSM-IV criteria for a diagnosis of Opioid Dependency and that she suffered from no psychopathology additional to that which she had experienced prior to the 2000 accident.
116 The difficulty with the materials presented in support of the plaintiff’s claim to have suffered a consequential psychiatric injury was that precisely the same problems were reported to Dr Lambeth, psychiatrist, to be a consequence of the 1993 accident. Dr Lambeth said the prognosis for recovery was poor and dependent upon the relief of her pain. He recommended that the plaintiff be referred to a pain clinic.
Side effects of the plaintiff’s drug regime
117 Dr Perl considered the plaintiff’s current medication regime reporting on the purpose for which the various drugs were prescribed and their side effects. She then considered the symptoms of which the plaintiff complained and her opinion is summarised as follows:
Impaired capacity for concentration and organisation : This was likely to be the result of the effects of each of the drugs Allegron, Avomine, Baclofen, Morphine, Dilaudid and Lomotil. The plaintiff was likely to develop a tolerance to these drugs with continued use but, because of the interaction between these drugs, the impairment is likely to be significant.
Inability to Sleep: This complaint was surprising because the doses and combination of drugs used was likely to produce sedation or drowsiness. Ms Walker reported fatigue. The plaintiff complained of fatigue.
Diarrhoea and urinary urgency: These symptoms were unlikely to be the result of the medications, the effects of which would decrease rather than increase symptoms of this type.
Despondency or depression: The association between severe pain states and depression and suicidal thoughts was acknowledged. Depression was a reported adverse effect of Allegron, Lomotil, Clonidine and Dilaudid. Suicidal thoughts have been reported as an adverse effect of Baclofen.
Decreased libido: A reported effect of Clonodine.Numbness of the feet and thighs: Unusual sensations in the extremities were reported with Allegron and numbness with Lomotil. It was suggested that a reduction in the doses prescribed might decrease these effects.
118 In conclusion, Dr Perl reported that some of the physical and emotional effects raised by the plaintiff could be drug related. The plaintiff’s capacity to undertake day to day activities was likely to be impaired by the side effects of the drugs prescribed to her. This impairment would continue unless the plaintiff developed a tolerance to the drugs. A tolerance to drugs such as opiates would also result in the reduction of their analgesic effect with the consequence that the dose will have to be increased.
119 Dr Sydney Smith considered the consequences to the plaintiff of a dependence upon narcotic medication, stating that this dependence, having been established seven years prior to the 2000 accident, was likely to have continued without the intervention of that accident. In his opinion, her need for progressively increasing quantities of drugs would have resulted in impairment of her concentration, memory and intellectual functioning, somnolence and lethargy, the aggravation of pre-existing anxiety, depression. The dependency was likely to have impaired her capacity for employment and ultimately would have prevented her from working. Dr Smith was of the opinion that the plaintiff would require increasing doses of medication to service the intrathecal pump.
Nerve Damage
120 Dr Russo put forward a number of possible alternatives to his diagnosis of arachnoiditis. They included failure of the fusion. Dr Russo acknowledged that there was no evidence to support this possibility.
121 He contended that the plaintiff’s symptoms could be caused by compression of a nerve by a disc or by epidural fibrosis resulting from scar tissue. Other possibilities were nerve damage occurring prior to or during surgery.
122 He said that any of these possibilities could result in severe pain and disability on a permanent basis.
Issue 2 - Findings
123 The plaintiff did not claim that she suffered an aggravation of a pre-existing drug dependency as a result of the 2000 accident. Her claim was that her extreme disability was totally related to the back injury suffered in the 2000 accident. I reject that claim. The evidence to which I have referred made it clear that the plaintiff had developed a dependence on narcotic medication prior to the 2000 accident. The evidence also indicated that many of the symptoms of which the plaintiff complained were the side effects of the drugs upon which she is dependent.
124 The plaintiff did not claim that she suffered an aggravation of a pre-existing psychiatric disorder as a result of the 2000 accident. Her claim was that her psychiatric condition was a reaction to the extreme disability from which she suffered as a consequence of the back injury suffered in the 2000 accident. I reject that claim. The evidence to which I have referred made it clear that the plaintiff was suffering from psychiatric disorders prior to the 2000 accident. The evidence left open the question of the cause of those disorders and their consequences to the plaintiff.
125 I have already indicated that I reject the diagnosis of arachnoiditis.
126 The other possible causes to which Dr Russo referred would require that I accept the plaintiff at face value. I have already indicated that I was not persuaded that I should do so.
127 I find that the plaintiff’s presentation, which the evidence suggested has become progressively more extreme from the time of the 2000 accident, has been exaggerated and is the result of her drug dependence and drug seeking behaviour.
128 I find that as a consequence of the 2000 accident:
1. the plaintiff suffered traumatic injury to her lumbar spine;
2. the surgery undertaken by Dr Ghabrial was a reasonable response to that injury; and
3. the injury and its surgical treatment caused the plaintiff to suffer from a degree of restriction in the movement of her lumbar spine, ongoing pain and discomfort and incapacity with consequences to her quality of life, including her sexual relations with Mr Foster.
129 I find that the 2000 accident did not cause the very extreme and debilitating symptoms complained of by the plaintiff.
ISSUE 3 – ASSESSMENT OF DAMAGES
Non-economic loss
130 Having regard to the complications in assessment presented by the plaintiff’s drug dependence and doing the best that I can, considering these probable consequences of the damage to her spine, I have assessed the plaintiff’s general damages at $150,000.
Income Loss
131 The plaintiff commenced part time employment as an upholstery machinist in August 1999 just over one year prior to the 2000 accident. This was the first income earning employment in which the plaintiff had engaged since the 1993 accident. There was a history of spasmodic employment and family commitment prior to the 1993 accident.
132 The evidence established that at the time of the accident the plaintiff’s income earning capacity was that of a part time industrial machinist. Her income from this employment was $250 net per week at the time of the 2000 accident and at the time of the hearing would have been $450. The plaintiff also earned small amounts of income from working annually for the period of the Royal Newcastle Show and from the sale of the horse blankets that she machined at home.
133 The defendant, pointing to the pre-accident employment history, suggested that the past income loss be based on $250 per week, discounted by one third. I accept that the employment history must be taken into account. Another feature of the assessment of past income loss must be the move to Wallarobba, a considerable distance from the plaintiff’s place of employment at Toronto, and a small settlement in an area in which employment as an industrial machinist would be less available. The past loss has been discounted by 25% to take account of these factors.
134 It was agreed between the parties that the current weekly rate of $450 net should be adopted as a basis for calculating the plaintiff’s future income loss. A small additional amount was claimed to compensate the plaintiff for the loss of her other activities which generated a small amount of annual income. I accept that this allowance should be made.
135 There was evidence that the plaintiff since the 2000 accident had engaged in some clerical work in relation to the horse breeding partnership that she and Mr Foster operate. This demonstrated some residual income earning capacity to undertake clerical work.
136 I accept that the plaintiff’s drug dependence has since the accident and will have in future a considerable effect on her income earning capacity and that her prospects of securing employment outside her home are minimal.
137 I find that the plaintiff’s most likely future income earning circumstances should be assessed on the basis that she would remain employed in a part time semi skilled capacity earning $450 net per week.
138 I find that this income earning capacity would have been affected by the plaintiff’s drug dependence. Taking into account this factor as well as the plaintiff’s pre-accident irregular work history, I consider it appropriate to discount the claim for future income loss by 40%.
139 The award for loss of income is:
Past income loss:
$81,641
Past superannuation loss at 9%:
$7,348
Future income loss:
$106,641
Future superannuation loss at 9%:
$9,598
Attendant Care Services
140 The assessment of the need for personal and domestic care generated by the 2000 accident is further complicated by a report of Dr Pacey following an assessment undertaken in September 2004.
141 Dr Pacey reported that the plaintiff had substantial needs for assistance prior to the 2000 accident and that the need for domestic care generated by that accident continued from 21 September 2000 to the end of 2001 when she should have been in a position to undertake some domestic work.
142 It was argued for the defendant that Dr Pacey’s report was conclusive evidence of the plaintiff’s needs for domestic and personal care by reason of the provisions of s 61(2) of the Motor Accidents Compensation Act 1999. The term treatment as it appears in s 61(2) is not defined. The term attendant care services is defined in s 3 of the Act as:
… services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.
The term treatment expenses is defined is s 48 as:
… expenses incurred in connection with the treatment of an injured person, including hospital, medical and rehabilitation expenses, but not including attendant care expenses.
These definitions make it clear that the intention of the legislation is to deal separately and differently with treatment and personal care services. Having regard to these provisions I find that the certificate issued by Dr Pacey was not directed at the assessment of reasonable and necessary treatment and that it therefore did not have the conclusive status provided by s 61(2) of the Act.
143 The report was prepared prior to the surgery undertaken in 2005 when there were demonstrated clinical findings supporting some of the symptoms and disabilities of which the plaintiff claimed. Further, it was not made clear whether in that opinion Dr Pacey was addressing the plaintiff’s needs for domestic care only or whether her opinion extended to personal care. In the circumstances, it was of little assistance in assessing the plaintiff’s reasonable needs for attendant care services to the date of the hearing.
144 I have therefore determined the plaintiff’s needs, as best I can, having regard to the reports and evidence of the occupational therapists, Ms Walker and Ms McMaster. The plaintiff also relied on a report of Dr Buckley, a respected rehabilitation expert. His report, regrettably, was of little assistance because he did not examine the plaintiff and he accepted the information supplied to him concerning her claims at face value. Having regard to the plaintiff’s presentation, I consider a personal interview to be essential to any assessment.
145 I note that the defendant has provided paid assistance with domestic care of an average of 4 hours per week from a date which is not apparent from the evidence. I regard this provision as reasonable both for the past and future.
146 I have formed the view that the plaintiff has exaggerated her claims for personal care. Further, to the extent that the claims may be genuine, I consider that the majority are the result of the debilitating consequences of her drug dependence.
147 I accept that there were personal care needs in the period after the accident and following surgery in 2001 and 2005. I have allowed one hour per day for 3 periods of 26 weeks to account for these needs which together with the domestic care allowance of 4 hours per week brings the plaintiff above the threshold provided for in s 128 of the Motor Accidents Compensation Act 1999 for a period of 78 weeks.
I allow 11 hours per week at the rate appropriate for gratuitously provided care for the relevant periods up to the date upon which the defendant arranged for domestic services to be provided on a commercial basis. For the relevant periods following that date I allow seven hours per week on a gratuitous basis and the amount paid by the defendant for domestic services.
Ms Walker has not provided details of these costs and I am therefore unable to undertake the necessary calculation. The parties should agree on these figures. In the absence of agreement, the proceedings will be listed for further argument on this issue.
From the period commencing six months after surgery was undertaken in 2005 to the current date I allow the amount paid by the defendant for domestic services.
The defendant is to have credit for the amounts paid to date for that domestic care.
148 The amount allowed for the future is $120 per week based on four hours per week of paid domestic assistance at the rate of $30 per hour. The amount allowed is $113,340.
Out of pocket expenses
149 I have allowed the amount claimed for past out of pocket expenses with the exception of the cost of treatment provided by Dr Russo. I have concluded that, had the plaintiff been properly investigated and assessed as a patient dependent upon narcotics, Dr Russo would have formed the opinion that the plaintiff was not an appropriate candidate and would not have proceeded with the treatment.
150 The amount allowed is $152,534.20.
151 I consider that the amounts claimed for future out of pocket expenses were considerably overstated and they have been dealt with as follows:
General practitioner – the plaintiff’s drug dependence generated a considerable pre-existing need for general practitioner services. The amount allowed is 10% of that claimed: $2,266.
Orthopaedic surgeon/rehabilitation physician – one visit per annum to the orthopaedic surgeon has been allowed: $1,889.
Radiology – no provision has been made since no need has been demonstrated.
Medication – Much of the plaintiff’s medication is supplied to deal with her drug dependence. I consider that the back condition generates a need for a moderate sum for medication: $7,000.
Physiotherapy – no allowance has been made. The plaintiff gave no indication that she intended to use this mode of treatment.
Occupational therapy – no allowance has been made for case management or therapy since none has been provided to date and the plaintiff gave no indication that she intended to use these services.
Detox admission – no allowance has been made for this treatment. The plaintiff has resisted all attempts to reduce her reliance on medication to date and gave no indication that she intended to use this service.
Travel – a modest allowance has been made for travel to medical services: $2,000.
Future pump costs – for the reasons already set out no allowance has been made for this treatment.
Psychiatric care – none has been provided to the plaintiff to date, notwithstanding the many recommendations made in this regard. The plaintiff gave no indication that she intended to have this treatment. No allowance is made.
Cost of pool – hydrotherapy has been recommended to the plaintiff in the past but not undertaken. The excuse that the distance is too far for the plaintiff to travel is not accepted in the face of the evidence of her willingness and apparent capacity to travel to Dr Russo’s premises at four weekly intervals. No allowance is made.
152 Ms Walker recommended a number of aides be provided to assist the plaintiff. I had some doubt about the claim for an electric recliner and lift chair in the light of the plaintiff’s evidence that she does not sit. However, one of the bases for this claim was the difficulty and pain that she suffered when rising from a seated position. The restrictions in movement that are the result of the double fusion of the plaintiff’s lumber spine, in my opinion, warrant the provision of aids that will compensate for the difficulty with bending. I have allowed domestic aides as follows:
| Electric recliner and lift chair | $4.79 |
| Long handled sponge | 1.05 |
| Elastic shoe laces | 0.52 |
| Long handled shoe horn | 0.12 |
| Kitchen stool | 1.03 |
| $7.51 per week |
The amount allowed for aids is $7,093.
I do not consider the provision of the remaining items to be warranted by the injury suffered in the 2000 accident.
153 The Fox v Wood claim is allowed at $7,912.
Summary
154 Damages are assessed as follows:
| Past superannuation loss | 7,348 |
| Future income loss | 106,641 |
| Future superannuation loss | 9,598 |
| Past attendant care | (to be calculated) |
| Future attendant care | 113,340 |
| Past out of pocket expenses | 152,534.20 |
| Future out of pocket expenses | 20,248 |
| Fox v Wood component | 7,912 |
ORDERS
155 My reasons are published.
156 Proceedings adjourned to a date to be fixed to:
- Complete the calculation of the amount to be allowed for past attendant care services;
Hear argument on issues of costs and interest;
Make final orders; and
Hear any application for a stay.
Final orders and notation to judgment made on 1.5.08
ORDERS
1. Verdict and judgment for the plaintiff in the sum of $659,636.20.
2. Defendant to pay the plaintiff’s costs of the proceedings.
3. The exhibits will be retained for 28 days with the exception of exhibits QQ, RR and 69 A, B and C, being radiology plates.
- NOTATION
1. Having been informed that the amount for past domestic care provided on a commercial basis has been met by the Workers Compensation insurer and not by the current defendant, paragraph 147 of reasons for judgment delivered on 18.4.08 is amended by deleting the final sentence of that paragraph. I am also advised that the cost of commercial services has been included in the agreed figure for past out of pocket expenses.
2. Paragraph 154 of the Reasons completed by inserting the figure for past attendant care in the sum of $10,374 being the sum agreed between the plaintiff and the defendant.
**********
15/05/2008 - ADDENDUM ADDED - Paragraph(s) 156
0