Friend v Britton
[2020] ACTSC 185
•10 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Friend v Britton |
Citation: | [2020] ACTSC 185 |
Hearing Dates: | 29 June 2020 – 3 July 2020 |
DecisionDate: | 10 July 2020 |
Before: | Elkaim J |
Decision: | See [93] |
Catchwords: | DAMAGES – PERSONAL INJURY – Compensation – Motor vehicle accident - general damages – past and future economic loss – past and future medical expenses – past and future domestic assistance – extent of injuries suffered – aggravation of pre-accident conditions |
Cases Cited: | Mason v Demasi [2009] NSWCA 227 |
Parties: | Toni-Louise Friend (Plaintiff) Dean Britton (First Defendant) Insurance Australia Limited t/as NRMA Insurance (Second Defendant) |
Representation: | Counsel W Sharwood (Plaintiff) O Dinkha (First and Second Defendants) |
| Solicitors Baker Deane & Nutt (Plaintiff) HWL Ebsworth (First and Second Defendants) | |
File Number: | SC 307 of 2019 |
ELKAIM J:
The plaintiff was injured in a motor vehicle accident on 31 May 2017. Her motor vehicle was stationary. It was hit from the rear by a large truck and pushed into another vehicle ahead of it.
The plaintiff has sued the driver and insurer of the truck. The defendants have admitted a breach of the duty of care owed to the plaintiff so that the matter has come to me for the assessment of damages.
The plaintiff has claimed damages under the following heads: General damages, past and future economic loss, past and future medical expenses and past and future domestic assistance.
The injuries alleged by the plaintiff are widespread and are asserted to have had a major impact on her capacity to live a normal life, including to remain at work, enjoy a social life and perform household tasks.
The defendants challenged the nature and extent of the plaintiff’s injuries and, in particular, asserted that one of the alleged major injuries had not been caused by the accident.
Because of the approach taken by the defendants it became clear early on in the case that the reliability of the plaintiff as an accurate historian was a major issue. For this reason I paid particular attention to the plaintiff, both as to what she said and the manner in which she gave her evidence. The same was true of the evidence given by her husband, Mr Goodwin.
Much may be said about the plaintiff’s, and her husband’s, reliability as accurate historians. They were not untruthful witnesses, nor was that alleged. The plaintiff’s lapses of memory and inability to accurately describe her medical health before the accident are, I think, an indication of her current situation including her dependence on significant amounts of medication. They may also, as suggested by the defendants, be a product of her subconsciously attributing all of her current disabilities to the accident.
I think Mr Goodwin’s unreliability was caused by the passage of time and his perception of the plaintiff’s current circumstances.
The unreliability of both witnesses mostly concerns the plaintiff’s pre-accident condition. As serious as it may have been, I am satisfied there has nevertheless been a major deterioration since, and as a result of, the motor vehicle accident.
There is no doubt that the plaintiff, from her own perception, relates almost all of her current condition to the accident. This can be seen from her attitude that her prior medical history was not important. This attitude was demonstrated in this exchange with me:
HIS HONOUR: But if a doctor said to you did you have any of these sorts of symptoms before your accident?
PLAINTIFF: Yes.
HIS HONOUR: Why wouldn't you have said, well no, not generally but I did have them when I was on that smoking stuff?
PLAINTIFF: I'm not sure. I would've thought only after the accident was relevant.
The plaintiff’s approach not only affected her reliability but also the opinions of the experts who did not have a full history.
I should note here that the plaintiff was consuming a good deal of medication before the accident which emphasises my concerns about her reliability. I am also satisfied that her memory has been affected by her circumstances since the accident. Dr Gavaghan, whose evidence I will return to below, I think correctly, said this:
I mean her brain's not functioning properly and she can't remember things and she's having all sorts of troubles with her medication.
In summary, the injuries asserted by the plaintiff are of a soft tissue nature to her spine, a very major injury to her gastrointestinal functions and the psychological impact of the accident and her physical injuries. There are assorted other injuries but the three just mentioned dominate her medical picture.
There was no detailed evidence of the accident, and certainly none to suggest it was a minor collision. Based on the plaintiff’s unchallenged evidence that she was struck by a semi-trailer and forced into the vehicle in front of her, together with the descriptions of the ‘explosions’ she felt on the respective impacts, I am satisfied the accident was significant and capable of causing a good deal of injury. A description given to one of the medico-legal experts referred to the truck having a “full load of dry powdered cement”. Apparently the driver was texting, which might suggest that he had not braked before the collision.
I asked the parties to prepare a schedule of damages setting out the amounts they submitted were appropriate to each of the heads of damage claimed by the plaintiff. The range of total damages that emanated from this exercise ($2,016,609.00 versus $157,847.60) demonstrates the very different perceptions of the plaintiff’s injuries held by the respective parties.
The first task in the road to assessing damages must be to reach a conclusion on the injuries suffered by the plaintiff in and as a result of the accident.
It is very apparent that the plaintiff had significant lower back pain before the accident. There is also evidence of abdominal and psychological problems prior to the accident but to a lesser extent than her current complaints.
As a general statement I prefer the medical opinions tendered on behalf of the plaintiff. This does not mean I accept all of the opinions, which must be read in the light of the incomplete histories given by the plaintiff. I specifically reject the opinions of Dr Sethi and Dr Casikar. Both of their reports have an air of advocacy about them. I should add however that while Dr Sethi put his views stridently in his oral evidence, he was prepared to agree with Dr Gavaghan, with whom he gave concurrent evidence, on matters of general application.
I think Dr Casikar strayed from his specialty, entering the field of making conclusions based on the plaintiff’s psychiatric condition. Interestingly, and inconsistently, despite knowing about the plaintiff’s previous lower back problems, Dr Casikar states:
Ms Friend’s state of health before the road traffic accident appears to have been good.
Unfortunately the neurosurgeon relied upon by the plaintiff, Dr Pik, was not given a full history by the plaintiff. I even wonder if he was told about the motor car accident. Accordingly it is difficult to place any reliance upon his report.
The origin of the plaintiff’s pre-accident lower back pain is a little uncertain. It might be related to a fall or may have come on gradually. Whatever the case, by the date of the accident, the plaintiff’s lower back pain was significant and having a major effect on her day to day living.
I think the most reliable and helpful report concerning the plaintiff’s spinal injuries is from Dr Pillemer. Although he was told the previous back problems had come on about a year before the accident he does refer to them as long-standing. He also notes what I think is an accurate history, namely the concession by the plaintiff to the doctor that “her lumbar spine symptoms are very similar to what they were previously…”.
Dr Pillemer thought that there was some extension of the lower back injury because he found evidence of L5 nerve root involvement. In addition he identified a soft tissue injury to the plaintiff’s neck with some evidence of C6 nerve root involvement. He also found evidence of an “axillary nerve lesion on the right side”.
Adopting a more open attitude than displayed by some of the defendants’ doctors,
Dr Pillemer accepted that the plaintiff “is getting the ongoing discomfort she complains of”. He recommended updated scanning of her spine and, subject to the results, further treatment. He thought that the plaintiff was not fit for her employment at the time of his examination. Unlike Dr Casikar, Dr Pillemer recorded aspects of the consultation on the plaintiff’s phone and not on his own equipment.
I note the defendants have not relied on any report from an orthopaedic surgeon.
Dr Le Leu, an occupational physician, had a fairly detailed history of the previous lower back problems. He also received a history that the lower back was “about the same as it was before the subject accident”. On the material he was shown the problems extended back to at least 2015. He also seems to have had a number of reports from experts who provided reports to the workers compensation insurer. These were not before me.
Dr Le Leu’s assessment of the plaintiff’s spinal injuries is not dissimilar to that of
Dr Pillemer. He however thought the plaintiff had a capacity for light work especially if she could do it from home, because of the ready access to a toilet. He anticipated her employment being adversely affected for “at least the next 2 to 5 years and possibly indefinitely”. He felt the prime consideration should be treatment of her gastrointestinal problems.
Moving now to the plaintiff’s gastrointestinal problems; the assessment is far from simple. The symptoms described by the plaintiff are severe and she attributes them all to the accident. In respect of her current position she says that she is able to only eat one meal a day because that is the only effective way to avoid persistent bloating, abdominal pain and diarrhoea. These symptoms attend every meal she eats. The problem extends to faecal incontinence so she needs to wear pads and she must always be on alert in case of a sudden need to use the toilet.
The plaintiff unequivocally attributes the above problems to the accident. But she did have previous gastrointestinal issues, some of which she conceded, but others she did not.
The plaintiff has been a smoker for a long time and has frequently attempted to defeat her addiction. She has done so by use of a drug called Champix. The plaintiff said that when she used Champix she would often be “sick in the tummy”. She explained that this involved having diarrhoea and nausea. She said these symptoms had occurred in 2011 or 2012. The plaintiff said she had the symptoms on two separate occasions when using Champix, but on the last occasion the drug was used, about 12 months ago, the same symptoms did not recur. At this stage however she was suffering similar symptoms to those she attributed to the motor vehicle accident.
Under cross-examination the plaintiff was taken to a number of entries in the medical material, both within and outside of the 2011 and 2012 period, in which she had complained about “tummy” problems. There were many such instances. For example:
(a)On 4 April 2011 she consulted Dr Rowe, a general practitioner. The notes record a “long history” of “alternating diarrhoea and constipation, as well as bloating+++ on and off”. The reason for the visit was said to be “irritable bowel syndrome”.
(b)On 26 July 2011 the plaintiff saw another general practitioner, Dr Strelnikow. She complained to him of “alternating bloating, diarrhoea, [constipation]”. The note continues “always tended to get diarrhoea if stressed”. The notes do indicate, that around this time, the plaintiff was taking Champix.
(c)In Exhibit F, at page 565, there is a report from a neurosurgeon, Dr Thomas (who examined the plaintiff on behalf of Dr Halcrow), which has a history that the plaintiff “occasionally lost bowel and bladder control though this is not a persistent or progressive feature”. I think this is an important entry because although it contradicts the plaintiff’s evidence about the period during which she suffered bowel problems, the description of the symptoms not being persistent is to be contrasted with her evidence of unquestionably persistent symptoms since the accident.
(d)Interestingly, the referral to Dr Halcrow, to be found on page 568 of Exhibit F, says the plaintiff does not have bowel incontinence.
(e)On 28 February 2017 the plaintiff attended a pain management unit at Canberra Hospital where there is a history of “incomplete emptying and bowel urgency”. When confronted with this history the plaintiff said that she may have been mistaken about the dates when she had the abdominal symptoms.
(f)Exhibit 4 contains a questionnaire completed by the plaintiff in 2016 when she was referred to a chiropractor, Mr Stark, for treatment of “severe low back pain”. The plaintiff answered the question “are you troubled with pain or aching in your stomach?” With the answer “No”. However she answered “Yes” to the question “Are you troubled with frequent loose bowel movements?”.
(g)In another questionnaire completed by the plaintiff for radiology purposes, on 19 April 2016, the plaintiff wrote “Can’t hold pooh’s in if not near toilet”.
The various histories given by the plaintiff before the motor vehicle accident clearly indicate that she had gastrointestinal, in particular bowel, problems before the accident. But equally plain is that these problems were not with her on a daily basis, as they have been since the accident. Nevertheless, the assessment of her current condition must take into account her pre-accident condition and cannot start from the assumption that the accident is the sole cause of the problems.
This brings me to the medical evidence about the gastrointestinal issues, in particular the stark contrast between the views of Dr Sethi and Dr Gavaghan. I had the benefit of these two practitioners giving their evidence concurrently. Dr Gavaghan is clearly the more experienced doctor, based both on the length of time he has been in practice, and the breadth of his practice. As he stridently made known to me:
DR GAVAGHAN: No, I knew – I'm sure you wouldn't, your Honour. It's just that I had a message from Mr Baker's rooms which – from one of the neurosurgeons, I believe, and who was questioning what the hell would a gastroenterologist know about neurology and I think he's forgotten that I'm a general physician and always have been.
Dr Sethi was of the set view that the plaintiff was suffering from Irritable Bowel Syndrome (IBS). He made this diagnosis in his first report dated 13 December 2019. In his report the doctor observed that “the accident did not involve any direct injury to the gastrointestinal tract”. He added that none of the medications that the plaintiff had been taking could have caused the symptoms (with which Dr Gavaghan agreed) and, like 15 to 20% of the general population, the plaintiff had IBS. In his oral evidence, Dr Sethi rejected the proposition that IBS might be associated with stress. I found this answer surprising, but must accept that Dr Sethi is the medical expert and I am not.
Returning to Dr Sethi’s report, he makes a number of direct statements, apparently not restricted to his specialty. For example he says that “The subject accident did not cause Ms Friend’s current injuries and disabilities to any extent at all”. Notably there are some answers to questions, for example Question 5, where he does limit the answer to his specialty. I asked him about Question 7. He said, despite the generality of his answer, that it was limited to his specialty. Another example of the doctor making a general statement is in his answer to Question 12, where he states:
Ms Friend has not suffered any incapacity for work, or limitation in her ability to work as a result of her accident-related injuries and disabilities.
The wording of the answer to Question 12 is plainly a general statement, well outside the doctor’s expertise.
Perhaps the most significant concern I have about Dr Sethi’s opinion arises from his answer to Question 11. I will quote the question and answer:
Q.Please comment on Dr Mike Corbett’s recommendation in his report of 15 September 2019 that the Plaintiff undergo ‘blood and stool tests, abdominal imaging, and gastroscopy and colonoscopy’, and whether these would be required in relation to any accident related injuries and disabilities?
A.I reject Dr Corbett’s recommendation that Ms Friend undergo any further testing. Specifically, his recommendation that she undergo gastroscopy and colonoscopy is unnecessary.
Dr Corbett is a gastroenterologist. The above-mentioned report is at page 24 of Exhibit B. Dr Corbett thought the plaintiff’s gastrointestinal symptoms were related to the motor vehicle accident, but he considered them “functional”. Because of their severity he recommended further investigation, as stated in the question put to Dr Sethi.
In his oral evidence Dr Sethi agreed with Dr Gavaghan that IBS is “a diagnosis of exclusion”. In other words, it is a diagnosis which is made, as Dr Gavaghan, put it, after excluding “every other obvious cause”.
Dr Sethi agreed that IBS is a diagnosis of last resort. I simply do not understand how he could reach an opinion that further testing (designed to identify a cause) should not be carried out.
I do not know if Dr Sethi was influenced by the references to IBS in the clinical notes, but whatever the case his unwavering adherence to this diagnosis is untenable.
Dr Gavaghan’s view is that the plaintiff’s injuries were caused by “trauma to her autonomic nervous trunk”. This diagnosis also has some difficulties. In particular it relies, as a precondition, on the existence of the stated trauma. Evidence of such trauma would be found in bruising to the relevant area of the plaintiff’s trunk. The plaintiff did give evidence of widespread bruising, which might include the relevant area, but it is not corroborated by the clinical notes of her general practitioner, contained in Exhibit G.
The first visit the plaintiff made to her doctor after the accident was on 2 June 2017. She saw Dr Kushada. She saw the same doctor again on 16 June 2017, 30 June 2017 and 18 July 2017. None of the entries for these dates has any reference to bruising. Based on the warnings given by Basten JA in Mason v Demasi [2009] NSWCA 227, I might have treated the notes as inconclusive. However, Dr Kushada gave oral evidence and confirmed that at the above consultations no evidence of bruising was observed.
Dr Kushada said she took detailed notes during the consultations and that if she would have noticed abdominal or pelvic bruising she would have made a note of it (Transcript page 289.20). The doctor added that if plaintiff had given a history of such bruising she would have noted that as well.
The dilemma facing me is that, while I reject the opinion of Dr Sethi, and bearing in mind the onus of proof is on the plaintiff, there are good reasons not to accept the opinion of Dr Gavaghan that the plaintiff’s gastrointestinal problems are a product of an injury to her autonomic nervous system.
A conclusion that I can reach however is that notwithstanding the absence of a specific diagnosis, the plaintiff’s gastrointestinal problems are significantly worse than they were before the accident and now affect her to the extent described by her. This conclusion is, I think, consistent with the view of Dr Corbett that the plaintiff’s symptoms are accident‑related but the precise cause requires further investigation.
I would finally add this in relation to the investigations suggested by Dr Corbett. The plaintiff said that the workers compensation insurer had refused to fund the tests. She was extensively cross-examined about why she had not funded them herself, bearing in mind the severity and effects of her symptoms. She said that she could not afford the tests. She was challenged on this answer, the suggestion being that funds were available to her, possibly from the sale of a house or her husband’s income, that would have enabled her to have the tests.
I accept the plaintiff’s answers about her reasons for not using apparently available funds. The proceeds from the property transfer were to be applied to help her children. Her personal history is such that she had climbed through a life of adversity to reach the position where she might be able to assist her own offspring. Criticism of her approach is not sustainable. As to her husband’s income, it is to be recalled that he had children of his own to support. There was no cross-examination of him to suggest that he could have financed the tests.
The final major injury to be dealt with is that of the plaintiff’s psychological or psychiatric condition. Again this is to some degree, but not to the same extent, complicated by her pre-accident history. There is no doubt that the plaintiff was being prescribed significant amounts of antidepressant medication and that she was suffering from an Adjustment Disorder. The extent of her use of antidepressant medication can be seen, for example, in the plaintiff’s Individual Prescribing History in Exhibit 5 (Escitalopram is an antidepressant, also called Loxolate and Lexapro).
The plaintiff saw Dr Ng, a psychiatrist, for the defendants on 20 November 2019. His report is also in Exhibit 5. Dr Ng had the benefit of the plaintiff’s general practitioner’s records and the various references to her depressed and anxious moods and her use of antidepressant medication.
Nevertheless, Dr Ng came to the view that as a result of the motor vehicle accident the plaintiff suffered an Adjustment Disorder of mild to moderate severity and a Post‑Traumatic Stress Disorder, of mild severity, but which was chronic.
The plaintiff relied on a report from Dr Saboisky, also a psychiatrist, in Exhibit B. Dr Saboisky was cross-examined on his report. The difference between the respective opinions of the two psychiatrists is more in extent of the psychiatric injury rather than its existence.
Dr Saboisky, whose opinion seemed more in conformity with my impression of the plaintiff, thought the plaintiff suffered from a chronic Post-Traumatic Stress Disorder, amoxophobia (fear of being in a motor vehicle) and a major depressive disorder.
One matter of concern in Dr Saboisky’s report is that the plaintiff, incorrectly, told the doctor that she had not had analgesia “for several months before the accident”. This was obviously incorrect. Fortunately the doctor had access to the plaintiff’s clinical notes and was able to see the correct history. The plaintiff’s error did not affect his opinion.
Dr Saboisky accepted that the plaintiff had a history of an Adjustment Disorder and that she had been taking substantial amounts of antidepressant medication. But, he went on:
MS DINKHA: …Is it your opinion that the fact that Ms Friend was taking antidepressant medication up to the time of the motor vehicle accident, that doesn't in any way change the opinion you have expressed in your report?
DR SABOISKY: No, because she developed a new problem. It wasn't Adjustment Disorder, it was a Post-Traumatic Stress Disorder, which is a completely different condition, plus her symptomatology, if you look at the symptoms described in my report and, in fact, if you look at the psychiatric report of Dr Shaikh, it went to a different dimension much more serious than of depressive symptoms. So an Adjustment Disorder is diagnosed when the symptoms do not meet the threshold for what DSM-IV, 5 called an Axis I disorder. In other words, in her case, didn't reach the threshold for Post-Traumatic [Stress] Disorder, didn't reach the threshold for major depressive disorder. So after the accident there was a quantum leap, if you like, into two different diagnoses and Dr Shaikh notes that. The treatment is the same, by the way. I mean Adjustment Disorders, as a rule, don't need antidepressants but they're often prescribed. So what I am saying is there is a categorical shift from an Adjustment Disorder, which just means stress in layman's terms, to having clear cut depressive disorder and Post-Traumatic Stress Disorder.
I accept the opinion of Dr Saboisky. It is not, as I have already mentioned, very different from that of Dr Ng, but it does extend the diagnosis to an extent that I think matches the plaintiff’s current condition as described by her and her husband, with all the attendant reservations, and also by her friend Ms Drew.
It is worth making further mention of Ms Drew at this stage. Ms Drew was originally a work colleague of the plaintiff but became her friend. The friendship still exists although the level of contact is less. The defendants criticised the evidence of Ms Drew because of its “generality” and because she was a friend of the plaintiff.
I do not think Ms Drew’s evidence was as general as asserted. I certainly do not accept that friendship is a basis for unreliability.
Ms Drew met the plaintiff while working at a company called Skilled, in 2012. The plaintiff was her manager. They became friends and would have dinner together, sometimes at each other’s houses. Ms Drew knew that the plaintiff had a bad lower back because the plaintiff complained to her about it, in particular when she needed to attend medical appointments.
Ms Drew said that since the accident the plaintiff tried to be happy but “she just doesn’t want to do anything”. Her pre-accident mood was described as “chirpy”. Ms Drew’s evidence certainly did not have the detail and specificity of that of the plaintiff or her husband, but to discard it as being too general is to do it a disservice. What the evidence showed was the marked difference in the plaintiff after the accident compared to before the accident. The impression that I formed was not affected by Exhibit 8, although I do recognise the inconsistency with the plaintiff’s evidence about whether or not lower back surgery had been planned prior to the accident.
If such surgery had been scheduled it is a mark of the plaintiff’s devotion to her work and ability to carry on working notwithstanding the pain. As stated by Ms Drew, she did not have the surgery because “it would be detrimental to the branch”.
In summary I am satisfied, notwithstanding the plaintiff’s pre-accident condition, affecting her lower back, her gastro-intestinal function and her mood, that as a result of the accident the plaintiff suffered an aggravation of her lower back injury, an injury to other parts of her spine (as described by Dr Pillemer), a significant aggravation (if not a separate) injury to her gastrointestinal system and that the accident led to a Post‑Traumatic Stress Disorder and a major depressive disorder.
On the basis of my conclusion about the plaintiff’s injuries I will now proceed to the assessment of damages.
General damages
Consistent with my findings on the plaintiff’s injuries as a result of the accident, she has now had a little over three years of increased pain in her back, extended spinal pain, very persistent and significant gastrointestinal symptoms and a decline into severe depression combined with a Post-Traumatic Stress Disorder.
The plaintiff submitted that general damages should be $200,000. The defendant suggested $80,000. I think the defendants are probably closer to the mark because of the need to take into account that, especially as far as the plaintiff’s lower back is concerned, she was already suffering from many of the symptoms of which she now complains. I think $110,000 is appropriate.
Interest on this figure at 2% over three years is $6,600.
Out-of-pocket medical expenses
The plaintiff claimed $67,746.25 which is the amount that has been paid by the workers compensation insurer for past medical expenses. The defendants accepted that this amount had been incurred but said that only $26,269.21 should be allowed because this was the amount that had been expended over the first 6 months since the accident.
I think the correct position lies between the respective positions of the parties. I do not think it appropriate to limit the claim to 6 months but rather to discount it to take into account that some of the expenses should be attributed, again especially for the lower back, to injuries that not only pre-existed the accident but were continuing at the time of the accident. On this basis I think an appropriate allowance is $50,000.
The plaintiff’s claim for future treatment is $79,704. The defendants said that because she was no longer suffering from any accident-related injuries, the claim should be restricted to $3,000, reflecting some dental work that remained outstanding.
The plaintiff certainly needs to have the treatment suggested by Dr Corbett, the dental treatment and an allowance should be made for the treatment suggested by Dr Pillemer. In addition she will need continuing psychological counselling and medication both for pain and depression. These claims will once again be tempered by the needs she would have had in any event. I allow $20,000.
Past economic loss
Economic loss was the most contentious of the plaintiff’s claims. The defendants submitted that the plaintiff was already having difficulties at work, as evidenced by the workers compensation claim she had made not long before the accident and by the lower back problems she was already experiencing.
There is much to be said about the defendants’ approach, but it has a major failing: For all of the medical problems the plaintiff was experiencing before the accident, including right up to the accident, she nevertheless remained working. There is no evidence of any extended period of time off work. The defendants conceded this fact but said that the previous problems were of such an extent that it would have been inevitable that the plaintiff would have ceased work at some time between the accident and the present.
The parties agreed that the plaintiff’s net wage at the date of the accident was $1,550 per week. There have been 162 weeks since the accident so that the plaintiff’s claim is $251,100. The defendant submitted that the claim should be restricted to 26 weeks, resulting in a figure of $40,300.
I think at this stage it is worth mentioning the plaintiff’s work history. She was born in 1978. She started her first job in 1997. She had her first child in that year. She then did some housecleaning until her second child was born in 1999. The plaintiff then started waitressing at an Italian restaurant. The following year she worked as a receptionist at a chiropractic practice and then moved to Corporate Express.
In 2004 the plaintiff moved to Jobwire where she seems to have started the beginning of her career in labour hire. The plaintiff changed jobs over the years but remained in the same general field, or in human resources, until 2011 when she commenced work as a business manager with Skilled Group. This job ended in 2016 when the plaintiff moved over to Manpower Group, again as a business manager. This was her employment at the time of the accident.
The history given to Dr Saboisky, and others, illustrates the difficulties the plaintiff endured as a young woman, in particular with the abusive father of her children. The plaintiff has consistently worked to better herself and to largely single‑handedly bring up her daughters and provide for them. Her persistence in these objectives is impressive.
In my view the plaintiff would not have taken much time off but for the accident, but would have endured the levels of pain and suffering that she had previously worked with. It is also to be noted that despite her pre-existing condition, the plaintiff maintained a social life and an active life including being the coach of a basketball team.
At the same time however, the level of her pre-existing condition, perhaps exemplified by the amount of painkilling medication she was taking, must at least recognise that there would probably have been some periods when she would not have worked in any event. I think that I should allow the plaintiff’s claim but discount it by 10% to recognise this probability. The result is past economic loss of $225,990.
Because of past workers compensation payments the plaintiff is only entitled to interest on $9,680 which, calculated at 9% for three years, is $2,613.60.
Based on its calculations the ‘Fox v Wood’ claim by the plaintiff is $53,131. The defendants said the figure should be 20% of past economic loss which is $8060. Using the 20% rate as being correct I allow $45,198.
The calculation for past loss superannuation benefits was agreed to be 11.5% of the amount allowed for past economic loss. This is $25,988.85.
Future economic loss
The plaintiff’s claim was originally for full economic loss to age 65. This produced a figure of $1,080,000. The defendants said the allowance should be ‘nil’ because the plaintiff no longer had any work incapacity due to the accident.
I do not agree with either approach. I think the plaintiff’s injuries, severe as they are, will, with the benefit of investigation and treatment, improve to an extent that she will be able to return to work on a full-time basis. To some degree, consistent with my findings, I must also recognise that the plaintiff’s pre-existing problems would, from time to time, have caused her to be out of work. The plaintiff recognised these points and, in oral submissions, suggested full future economic loss for the next 10 years.
While the plaintiff’s most recent approach is certainly more reasonable than her original claim I do not think it sufficiently recognises the probabilities of successful treatment combined with the plaintiff’s work ethic which, I have no doubt, will bring her back to work as soon as she feels able to do so.
I think a fair approach is to allow the plaintiff future economic loss at $1,000 per week for 3 years and then at $500 per week for a further 5 years. On the 3% tables $1,000 per week for 3 years is $149,800. 5 years at $500 per week is $121,300, but this must be deferred for 3 years, bringing the figure down to $110989.50. The total so far, of $260,789.50, must be reduced by 15% for vicissitudes. The result is $221,671.08.
Lost superannuation benefits for the future, at the agreed rate of 11.5%, are $25,492.17.
Past domestic assistance
The agreed rate for domestic assistance is $35 per hour. The evidence on this point needs to be assessed against the reliability issues, in particular attaching to the evidence of the plaintiff’s husband. According to his statement to the workers compensation insurer (Exhibit 7) the plaintiff was already having problems at home, primarily due to her lower back pain. In addition the plaintiff, to some extent contrary to her husband’s oral evidence, said that she was doing some household chores such as vacuuming and cooking.
The plaintiff claimed $20,000 based on a descending scale starting at 25 hours per week for 2 weeks and then reducing to 2 hours per week to the present time. The defendants said there should be no allowance because the plaintiff either was already not doing the housework or she was able to do it anyway.
I think the plaintiff probably did struggle with house work before the accident but that she has continued to have difficulties which have been aggravated by the accident. Taking into account her past difficulties and her return to some degree of housework I think an overall allowance of 1.5 hours per week to the present time should be allowed. This produces a figure of $8,505.
As with the plaintiff’s return to work I think she will continue to improve her participation in housework as time goes by. I think this is best reflected by an allowance of 1 hour per week for 5 years. On the 3% tables the result is $8,491.
There is also a claim for two lots of gardening expenses, which were apparently incurred to assist the plaintiff’s husband. I do not allow this sum, although I recognise the cost may have been incurred to an extent because Mr Goodwin was busy doing household chores.
A summary of the damages I have allowed is as follows:
General Damages $110,000.00 Interest on General Damages $6,600.00 Past medical expenses $50,000.00 Future medical expenses $20,000.00 Past economic loss $225,990.00 Interest on past economic loss $2,613.60 Fox v Wood $45,198.00 Past lost superannuation benefits $25,988.85 Future economic loss $221,671.08 Future lost superannuation benefits $25,492.17 Past domestic assistance $8,505.00 Future domestic assistance $8,491.00 Total $750,549.70
Orders
I make the following orders:
(i)Verdict and judgment for the plaintiff in the sum of $750,549.70.
(ii)The defendants are to pay the plaintiff’s costs of the proceedings.
(iii)Liberty to both parties to apply in respect of any alternate costs order.
| I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 10 July 2020 |