Harrison, Lesley Ann v Bosworth, Tony Charles
[1998] TASSC 160
•18 December 1998
160/1998
PARTIES: HARRISON, Lesley Ann
v
BOSWORTH, Tony Charles
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 349/1992
DELIVERED: 18 December 1998
HEARING DATE/S: 19, 20 October 1998
JUDGMENT OF: Cox CJ
CATCHWORDS:
Damages - Particular awards of general damages - Tasmania - Whiplash injury causing chronic constant pain and fatigue - Depression - 41 year old single mother of young child attaining qualification as registered nurse but capacity for employment significantly reduced - Award of $320,400 (including $50,000 for pain, etc and $262,000 for past and future economic loss).
Aust Dig Damages [61]
REPRESENTATION:
Counsel:
Plaintiff: B H Crawford
Defendant: M J Brett
Solicitors:
Plaintiff: Crawford & Crawford
Defendant: Rae & Partners
Judgment category classification:
Court Computer Code:
Judgment ID Number: 160/1998
Number of pages: 10
Serial No 160/1998
File No 349/1992
LESLEY ANN HARRISON v TONY CHARLES BOSWORTH
REASONS FOR JUDGMENT COX CJ
18 December 1998
Assessment of damages for injuries caused to the plaintiff in a motor vehicle accident on 10 April 1992.
The plaintiff, then aged 41, was the driver of a car on the Bass Highway at Hadspen and was stationary waiting to turn into Entally Drive when a vehicle driven by the defendant travelling behind her collided with the rear of her car, forcing it into the path of an oncoming vehicle with which it collided head on. Her vehicle was swung around about 180 degrees and was a complete write-off.
The plaintiff suffered a fractured sternum. She could not at first breathe and was in great pain in the back of the neck, her chest and lower back. Her left knee was also injured when it struck the dashboard. Her youngest son, then about nine months old, was in a carry basket in the back seat and fortunately was not injured. Not hearing him, however, and not being able to turn around caused her great distress, as she was unable to ascertain at first whether he had been injured and , naturally, feared the worst. Both were taken by ambulance to the Launceston General Hospital where she was treated and allowed to go home with the child. Initially she said she had pain in the chest and could not breathe:
"I wanted to sit up because I couldn't breathe and the ambulance man didn't want me to but I couldn't breathe and I had to sit up and it was very, very painful. Pain all down the back of my neck and across the shoulders and in between my shoulder blades and my lower back and on my legs, down my legs. That was the initial pain and when I got home when I came to lie down on the bed I found I could not lie, I couldn't bear to even touch my shoulders at either side."
The baby was looked after for four nights by a carer, but was then returned to the plaintiff. She found she could no longer breast feed him as her milk had dried, and she had great difficulty in lifting him and in looking after him. It was a matter of great distress to her that for the next six weeks she could not attend to his needs properly and could not cuddle him. She found this particularly distressing as he had been in the accident and had been taken from her for the four days following it. For the next two months the plaintiff continued to find difficulty in breathing. She had a large lump on her upper chest and she was very painful in the thoracic spine in the middle of the scapular and the pain radiated up the back of her neck. Her shoulders were also painful, she could hardly move her neck from side to side and she had pain in the lower lumbar spine, left leg and left knee. The pain in the lower lumbar spine she described as "excruciating continual pain" and she suffered from broken sleep.
She commenced physiotherapy about two months after the accident with gentle stretching, mobilisation, massage, ultra sound, a Tens machine and swimming. After about two years she abandoned this treatment on the advice of Dr Maclaine-Cross as it exhausted her. Doctor Maclaine-Cross, a consultant physician, first saw the plaintiff on 9 November 1992 on referral from her general practitioner. He examined the x-rays taken at the hospital and found that although the x-rays showed a fracture of the lower sternum, there was no evidence of bony injury to the neck, shoulder girdle or thoracolumbar spine. He concluded that the injuries were due to soft tissue and ligament strain. When he first examined her, she had diffuse tenderness on palpation over the cervical and thoracic spine. Examination of the spine was otherwise normal except that she complained of discomfort at the extreme range of movement of the cervical spine. She had tenderness on palpation over the lower sternum and over the rib cartilages, but no other objective signs. He thought the injuries that she sustained in the motor vehicle accident were a fractured sternum and trauma to the adjacent rib cartilages and a whiplash injury to the spine.
Doctor Maclaine-Cross next saw the plaintiff on 21 March 1994. She told him there had been no significant change over the preceding eighteen months. Her dominant complaint was still of upper thoracic back pain radiating to the neck. This was localised at T3 - T5 level. She described it as a constant dull pain that exacerbated and became more severe with any significant physical activity. In addition to the constant dull pain, she was getting episodic intense sharp brief spasms of pain lasting a few seconds at a time. These were often triggered by carrying books or other objects, lifting, bending or doing other heavier household tasks such as gardening or house cleaning. Each episode of intense pain lasted only a few seconds. She also experienced pain over the lower neck, described as a mild discomfort, and worse with neck rotation to the right side. She had a constant generalised headache over a six week period in November 1993. She had had constant low back pain from the time of the accident, mainly taking the form of a dull ache which became worse with any significant physical effort. It was eased by lying flat, but became worse with prolonged sitting. She continued to experience difficulty in many of her day to day tasks, finding that lifting her son, by now 2½ years old, out of the car was very difficult because of back pain, mainly in the upper thoracic region, and also in the neck and lumbar region. Work as a cleaner for several hours every Friday was causing an exacerbation of back pain which it took most of the week-end to settle down to the normal level of a constant dull ache.
Doctor Maclaine-Cross next saw the plaintiff on 8 February 1996. Her complaints then were of anterior chest pain about once a month, usually precipitated by leaning over, with discomfort when straightening afterwards. She had also had a brief intense spasm of severe pain which appeared to be related to her previous fractured sternum. She continued to suffer neck pain radiating to the occipital region of the head and into the shoulders. There was a dull aching pain present most of the time and she had acute exacerbation of more severe pain associated with severe headaches that lasted from one to seven days at a time and recurred at intervals of approximately one month. She said at that stage that on average she had one to two days a month when she had this severe exacerbation of the neck pain with associated headaches and could do nothing much at all on those days. She continued to suffer from thoracic and lumbar back pain which was present in the form of a constant dull ache. This pain was exacerbated by bending or lifting or carrying heavy objects and as a consequence she could not do heavy gardening or housework. She continued to report broken sleep as the result of back pain.
The fourth occasion on which Dr Maclaine-Cross saw the plaintiff was on 6 May 1997. On examination he found that she had neck tenderness that extended from the upper cervical region to T4 level at the thoracic spine and tenderness over the lower lumbar spine over L4/5 - S1. She complained of neck pain at the extreme range of movement in all directions and there was a mild limitation of movement with loss of 20 degrees of lateral flexion and rotation to the left side. Flexion of the spine was normal, but caused discomfort localised over the L4/5 region. Straight leg raising was normal. There were no neurological signs in the upper or lower limbs. At that stage his opinion was that her symptoms were unchanged and she continued to have back pain over the cervical and upper thoracic and lumbar spine. This had not improved over the 4½ years since the motor vehicle accident and he did not consider it likely to change significantly from thereon. She could do a small amount of light physical work over short periods of time and complained constantly of fatigue which he thought was probably part related to poor quality of sleep caused by the musculoskeletal pain.
At the end of 1997, he again saw the plaintiff and found little change in her condition. Doctor Maclaine-Cross was of the view that the plaintiff had been involved in a major motor vehicle accident which had resulted in a fractured sternum, pain in the neck, thoracic and lumbar spine immediately post-accident and that these symptoms had consistently continued since that time. He was of the view that she had reactive anxiety and depression, which was a normal reaction to her condition that was causing major difficulty in her ability to perform work and to carry out her domestic and family duties. She had had no previous history of musculoskeletal symptoms before the accident. Although such whiplash injuries often resolve within a relatively short period of time, he was of the view that they do not always resolve and on many occasions persist long term. This was the situation in the case of the plaintiff, in his opinion. He remained of the belief that the plaintiff's primary problem was a whiplash injury to the spine that has not completely resolved, that it substantially restricts her capacity to obtain employment as a nurse and that the sole cause of her pain is the whiplash injury which she suffered in the traffic accident.
The plaintiff was born in England and left school at age 14½, whereupon she became an apprentice hairdresser. She continued in this employment for about five years and then went to work in a pet parlour, grooming dogs. This, however, caused her a respiratory problem and so she returned to hairdressing. She was married at the age of eighteen and about eighteen months later she ceased hairdressing and procured work as a clerk in a debt recovery department of a catalogue firm. She continued in this employment for about twelve months and migrated to Tasmania at about that time. She and her husband had four children and for several years she fulfilled the role of home maker, but returned to work in 1984 or 1985 because of the family's financial situation. She did a retraining course as a hairdresser, but did not complete the course as her husband, who ran a service station, insisted upon her joining him at the service station. She worked at the service station for about 5 years until 1989 when she and her husband separated for a short period of time. In that period of time, she became pregnant to another man with her youngest child who was born on 30 July 1991. She returned to her husband shortly before the birth of that child, but they occupied separate bedrooms. She and the father of the child had planned marriage, but when he was informed of her pregnancy, he abandoned her. She moved out again shortly before the birth of the child. She endeavoured to persuade her three other sons, then aged 17, 15 and 10 approximately (her eldest child, a daughter, having already left home) to join her but none of them was prepared to leave their father. However, over the years following, each of them in succession did come to live with her for relatively short periods of time before leaving to set up their own establishments. In early 1992, when the youngest child was still only 7 or 8 months old, she decided to train as a nurse and enrolled at the University in first year nursing in February 1992. The accident occurred about seven weeks after the commencement of her course and she was unable to resume the course for a further seven weeks. At the end of the first semester of that year, she failed the subject Human Bio Science I and withdrew without academic penalty from two other subjects, largely because of the pain and discomfort that she was enduring at that time. In the second semester that year, however, she was able to pass a number of smaller subjects, obtaining five passes, two credits and one distinction. The following year she re-enrolled for Human Bio Science I and II, these being conducted in successive semesters, and attained a pass in each. She also procured passes in three other subjects. By the end of her second year as a student she had consequently successfully completed all necessary first year subjects of the course. The following year, 1994, she obtained one pass and one credit in two of her subjects, but withdrew without academic penalty from two other subjects, including Supportive Care in Hospital and Community Settings, which was the biggest subject of that particular year. She repeated it the following year, but failed the subject, obtaining passes, however, in two other subjects. In 1996, she enrolled for the third successive year in Supportive Care in Hospital and Community Settings, but confined herself to that subject alone, on this occasion obtaining a credit at the end of the year. In 1997 she completed the remaining subjects required for admission to the degree of Bachelor of Nursing. In fact, in 1997 she obtained three credits and one distinction.
Throughout the six years of her studies, the plaintiff continued to suffer the symptoms complained of to Dr Maclaine-Cross. In respect of some of the practical subjects, she experienced considerable pain and fatigue due to prolonged standing and relied on her fellow students to assist in some of the manual efforts required of her. Her youngest child was looked after each day in a crèche at a cost to her per week of $25 - $30. Since attaining her qualifications, the plaintiff has entered into a de facto relationship, her partner doing most of the household chores and transporting the child to and from school. She continues to have difficulty lifting heavy weights and raising her hands above her head. She can no longer engage in gardening, a past-time which gave her great pleasure prior to the accident, and all the household activities she attempts cause her fatigue and exacerbate her pain. Ever since 1992, however, she has managed to carry out a weekly job of cleaning apartments for her brother which brings in a modest supplement to her income. This task takes about three hours each week. It is a light cleaning job, but she says it exhausts her.
Since graduating in March 1998, the plaintiff sought work at nursing homes and at the Launceston General Hospital Nursing Pool. She was interviewed for a job at one nursing home and tried working there for one day. By the end of that day she declined to accept employment there as she felt the work was too hard for her and that she could not cope with accepting responsibility for some fifty patients. On 12 March 1998 she was registered as a casual employee within the nursing pool at the hospital. She asked the woman in charge of the roster to put her on light duties. She was called in to assist in May 1998 with transporting patients by ambulance to Hobart, but found the hours of sitting in the back of the ambulance physically exhausting. She was also given work assisting in the taking of blood at the hospital, but likewise found this exhausting, as was her experience of working in the day ward. The plaintiff then attempted work as a specimen collector for Launceston Pathology. After a month's training in about July 1998, she found that work beyond her, but was able to get employment on a part time basis in one of the practice's less busy venues. In the two months prior to the trial, she had worked for some four full days in that capacity, but found that at the end of each day she could do little else and had to lie down and rest. As to the future, she felt that all she could hope to do was occasional ambulance escort work and about one day per week at Launceston Pathology. Although some specialties like psychiatric nursing are less physically demanding, further study and practical ward work is necessary and, in her view, beyond her. She also considers herself unable to engage in any other field of paid activity.
Doctor Maclaine-Cross confirmed the plaintiff's reservations about her capacity for employment. Work as a nurse involves heavy manual effort at times and, in his opinion, work of this nature would not be possible for her unless there was a significant improvement in her condition.
Doctor Peter Stevenson was engaged by the defendant to examine the plaintiff and did so on one occasion, namely 7 April 1998. He made the following diagnosis:
"It appears clear that Ms Harrison suffered a fractured sternum in the motor vehicle accident in 1992, which has now healed. Although it caused her discomfort for some months, it is now not a significant source of disability. She sustained a variety of other soft tissue injuries to her cervical, thoracic and lumbar spine but, as five years have elapsed since her accident, it would now be expected that these have substantially resolved.
Ms Harrison, however, complains of an ongoing generalised pain state, which has some of the characteristics of a fibromyalgia, with generalised discomfort above and below the diaphragm and increased pain over the so-called fibromyalgia pressure points. From the history given, it would appear that there have been substantial depressive features at different times in the aftermath of the accident. The accident obviously caused considerable dislocation to Ms Harrison's life, coming at a time when she had just embarked on nursing training and was adjusting to the break-up of her marriage, which had left her as a sole parent with the care of an eight month old child.
I consider it likely that Ms Harrison's overall complaints of a chronic pain state relate much more markedly to her psychological distress and the psychological imprinting of a very negative experience, than to any specific residual physical injury. Soft tissue injuries, by their nature, would be expected to have resolved in the five year period."
In terms of prognosis, he said:
"Overall, with regard to her musculoskeletal state, the prognosis is probably similar to that of a fibromyalgia syndrome, such syndrome being generally uncomfortable, often long-lasting, but generally compatible with full-time employment, although not infrequently requiring some modification of the range of work duties possible. Functional capacity would generally be improved by attention to exercise and relaxation techniques and treatment of any concomitant depression."
In his oral evidence, Dr Stevenson was firmer in his view that the plaintiff suffers from fibromyalgia rather than from residual physical injury and was more optimistic than Dr Maclaine-Cross of her capacity to undertake "a lot of lighter sort of nursing without any difficulty". He conceded that to graduate to a nursing specialty would require the plaintiff to undertake a year of general nursing in a ward and whether she would do this, or could do this, "in many ways depends on how much sort of discomfort and fatigue one is prepared to put up with", adding "since the pain and fatigue are subjective experiences I can't give an objective measure". Doctor Maclaine-Cross disputed the diagnosis of fibromyalgia and remained of the opinion that the plaintiff's primary condition is one of unresolved soft tissue injury, although he, too, conceded that pain from this source and sleep deprivation could produce a condition similar to fibromyalgia. Given his greater degree of contact with the plaintiff and his more frequent opportunities to note the consistency of her complaints, I consider that he has an advantage over Dr Stevenson and I accept his opinion in preference to that of the latter. In any event, it is clear on the evidence of each of them that the plaintiff's present condition would not enable her to undertake anywhere near full time nursing or other duties. Both agree that further psychological treatment and medication could effect an improvement in her depressive state, but neither could be certain of this. The possibility of some amelioration in her condition should be borne in mind when assessing the amount payable for the diminution in her future working capacity as well as general damages for her pain and suffering.
I find that the injuries sustained in the motor vehicle accident substantially affected her ability to qualify as a registered nurse, an ambition which she finally achieved after considerable persistence. It took her six years to achieve this qualification, whereas the standard course is one of three years' duration. Whether, but for the accident, she would have qualified within three years is by no means certain. She had a modest academic background, she was starting at an age considerably later than most students would commence such an avocation and she was subjected to several emotional stresses in the early part of her course. Her marriage had broken down, her children had initially rejected her, the father of her youngest child left her to assume sole responsibility of that child, she was over 40 years of age when that child was born and she later resumed a measure of supervision and responsibility for each of her three teenage sons as they successively left their father's establishment. It is by no means clear on the probabilities that the tortfeasor prevented her from qualifying in the minimum time. So far as past economic loss is concerned, I think a fair approach would be to attribute to the tortfeasor responsibility for about two-thirds of the extra time it took her to attain her qualifications.
I also think that in respect of the future, an award based on the assumption that the plaintiff would have continued to work full time to the age of 65 is somewhat unrealistic. It is more probable that had this unfortunate accident not occurred, the plaintiff would have retired from full time employment at about the age of 60, although she may well have continued to undertake some part time work thereafter. I note that in the experience of Mrs Fox, a registered nurse and rehabilitation consultant called by the plaintiff, the number of nurses continuing "hands on" nursing work to age 65 is not great.
I accept the plaintiff as a truthful witness, not prone to exaggeration. This was conceded by counsel for the defence, as was the fact that her symptoms still cause her great stress, anxiety and unhappiness. On the other hand, he emphasises the history of what she has been able to achieve since the accident and submits that she has retained a considerable residual capacity for work. Counsel for the plaintiff has presented detailed calculations predicated on an ability to undertake only about 20 per cent of the remunerative work which, but for the accident, she would have been able to do. In his calculations, he has allowed for incremental increases in salary which she would otherwise have achieved as she gained more experience, and he has added a 25 per cent loading to basic rates of pay to allow for the likelihood of the plaintiff doing shift work. On the assumption that but for the accident she would have been qualified at the start of 1995, he seeks damages for lost earnings to date calculated as follows:
"1995
| Basic rate of pay for a first year nurse - $24,090 | |
| Add 25% for shifts - gross lost 1995 pay = | $30,112 |
| Less income tax | 6,712 |
| $23,400 |
1996
| A Second Year nurse for the first half of 1996 was entitled to $27,995 | $35,517 |
| Less income tax | 8,613 |
| $26,886 |
1997
| A Third Year nurse for the first half of the year was entitled under the above Award effective 1/7/96 to $30,166 and for the second half of the year (under the above Award effective 1/7/97) to $30,769 | $38,084 |
| Less income tax | 9,626 |
| $28,458 |
It is likely the Plaintiff would have ceased work as a cleaner on graduation at the end of 1994. The Plaintiff's earnings as a cleaner ranged from $30 per week in 1994 to $40 per week in 1998, say an average of $35 per week.
| Therefore earnings nett of tax 1995 | $23,400 |
| 1996 | $26,886 |
| 1997 | $28,458 |
| $78,744 | |
| Less 3 years x 40 = 120 weeks @ $35 = | 4,200 |
| $74,544 A |
NBThe figure of $35 per week is the average between $30 per week and $40 per week mentioned above.
1998
| A Fourth Year nurse under the above Award is entitled to $32,125 per year plus shift allowance 25% - Gross | $40,145 |
During 1998 and hereafter it is considered that the Plaintiff cannot work indefinitely for more than one day a week because of her physical disabilities.
If she could obtain light work for one shift a week she would cease working as a cleaner, a job she keeps only because it provides a regular income supplement.
Whilst working as a specimen collector for Launceston Pathology, which is her present work, she earns $15.75 per hour.
| 7 1/2 hours @ $15.75 = | $40,156 |
| Less 1 day a week as specimen collector | 5,670 |
| Nett loss 1998 | $34,486 |
| Less income tax on difference between $5,670 and $40,156 Income tax on $40,156 = $10,471 Less income tax on $5,733 = $ 54 Income tax saved = $10,417 Therefore nett loss 1998 | $34,423 |
| Less tax saved | 10,417 |
| Nett loss | $24,006 B |
Superannuation
| In the 1995 calendar year the average rate of superannuation guarantee levy was 5 1/2% being 5% the first half of the calendar year and 6% in the second half. 5 1/2% of $30,112 - Gross lost 1995 pay = | $1,656 |
| In 1996 the rate was 6% 6% of $35,517 - Gross lost 1996 pay = | $2,131 |
| In 1997 the rate was 6% 6% of $38,059 - Gross lost 1997 pay = | $2,285 |
| In 1998 the average rate of 6 1/2% being 6% in the first half of the current year and 7% in the second half. 6 1/2% of $32,343 - Nett loss 1998 = | $2,102 |
| Total superannuation lost | $8,174 C |
| Total lost income to 31/12/1998 (Total of A B & C above) | $106,724" |
For the reasons which I have already mentioned, I consider that the defendant should not have to reimburse the plaintiff for lost wages from the start of 1995 and that other factors which militated against her completing the course in the minimum time would be suitably recognised by requiring him to accept responsibility for two of the three years' extra time spent in qualifying. A broad brush initial reduction by one third in the figure of $74,544 claimed for the years 1995, 1996 and 1997, and a like reduction in the sum of $6,072 claimed as lost superannuation contributions in the same years, yields a figure of $53,448 which, in my view, would represent a fair starting point to any realistic estimate of the plaintiff's economic loss to the end of 1997 for which the plaintiff should be held responsible. Some further reduction is appropriate because of the contingency that the plaintiff's responsibilities towards her youngest child, still only 7 years old, would have prevented her from undertaking regular shift work and allowance should be made for the expense necessarily incurred in respect of child care while she worked, a weekly sum of at least $30.
For the year 1998, the figures have been calculated on the basis that the plaintiff would have been entitled as a fourth year nurse, whereas for the present purposes she should be treated as a third year nurse. The net loss of salary and superannuation as calculated, namely $26,108, is consequently over generous, the gross difference in award rates being in the order of $1,800. Similarly, the difficulties which reduced the likelihood of her undertaking shift work should be recognised, along with the need for child care which diminishes as the child grows older. This is not a case where the amount of the plaintiff's lost earnings and superannuation contributions to date can be calculated with any degree of precision. Balancing the various factors I have mentioned as best I can, I allow $62,000 under this head of damages.As to the future, counsel for the plaintiff has calculated the amount payable each year (including increments, shift loading and superannuation contributions) and deducted therefrom only the amount presently payable for one day's work as a specimen collector without allowance for annual leave or any of the other loadings. I do not accept the validity of this approach, and I think it unduly pessimistic to anticipate that light work of that kind and extent is all the plaintiff will be capable of hereafter. In my view, she retains at least a 25 per cent capacity for obtaining and undertaking work as a registered nurse and should be compensated on the basis that she has lost something in the order of 75 per cent of full time earning capacity to age 60, with some allowance for the contingency that she may have worked part time thereafter.
Counsel for the plaintiff submitted the following calculation for the present value of her economic loss for the year 1999:
"1/1/99 - 31/3/99
| Basic award $33,083 x 102.08% x 125% (allow 25% for shift allowances) x 1/4 | $10,681 |
1/4/99 - 30/9/99
| $33,483 x 104.16% x 125% x 1/2 | $21,797 |
1/10/99 - 31/12/99
| $33,483 x 106.24% x 125% x 1/4 | $11,116 |
| Total | $43,594 |
| Less assumed work per week - 1 day of 7.5 hours at $15.75 per hour = $118.12 per week x 48 weeks per year = | $5,670 |
| $37,924 | |
| Less difference in income tax between tax on $43,594.00 and tax on $5,670.00 | $11,947 |
| $25,977 | |
| Plus superannuation 7% on $37,924 | $2,655 |
| Total | $28,632 |
1999
| 1999 Net loss $28,632 per annum = $550.62 per week Present value of $1 per week for 1 year at 7% using multiplier of 50 $550.62 x 50 = | $27,531" |
By contrast, however (and even allowing for shift work), the following calculation represents the approach which I think is preferable:
1/1/1999 - 31/12/1999
| Gross salary | $43,594 | |
| Less tax | $12,001 | $31,593 |
| Less | $10,898 | $9,799 |
| Net loss of salary | $21,794 | |
| Plus superannuation - 7% on $32,695 | $2,288 | |
| $24,082 | ||
| Present value of $24,082 per annum for one year using multiplier of 50 $463.11 x 50 = | $23,155 |
The present value of such a loss for twelve years (until age 60) is $198,674. Of course, this does not include increments for additional experience, nor for higher rates of superannuation employer contributions. The plaintiff's solicitors have submitted further calculations to an assumed retirement at age 65 and have used rates of pay which reflect an assumption that the plaintiff would have continued in employment and gradually increased each year to higher levels of employment up to the fourth year of service in level 2. It is common ground that the calculations are arithmetically correct. They produce a present value of lost future earnings and employer superannuation contributions before discount for contingencies amounting to $357,356. Applying the method of calculation used by me above to the figures based on these assumptions and supplied in the amended particulars of claim in respect of the years 2000 - 2010 inclusive and adding the present value of each year's loss produces a figure in the order of $240,000.
Once again, precision is impossible. Had it not been for this accident, the plaintiff would presently have had the capacity to earn a net income in 1999 of about $31,500 and would have had the benefit (to be received with other accretions on retirement) of superannuation contributions amounting to $3,051. She may not have committed herself to regular shift work in view of her circumstances. She may not have persisted in full time employment, even to the age of 60. On the other hand, she was undoubtedly an enthusiastic and dedicated worker and could have achieved the ambitions upon which her solicitor's calculations have been predicated, including working at least part time beyond the age of 60. Her ability to do so has been reduced by about 75 per cent. Allowing for these and all other contingencies, I assess her future economic loss of earnings and superannuation in the sum of $200,000.
The plaintiff has suffered severe and prolonged injuries as the result of the accident. It has caused considerable pain which varies in intensity, but from which she is never totally free. It has affected her ability to sleep and makes her easily prone to fatigue. It has caused depression and anxiety and has curtailed her enjoyment of those amenities of life which she had previously enjoyed. It has had a deleterious effect upon her enjoyment of a sexual relationship with her partner and has limited her ability to engage in many normal activities involving her youngest child. For her pain and suffering and loss of enjoyment of the amenities of life I award $50,000. I should add that in assessing both her general damages for pain and suffering and her economic loss, I have left out of account the fact that she has some arthritic changes in her hands which cause some pain and restrictions. They are not the result of the accident and are not so significant as to have any but a minor effect upon her capacity for work.
The plaintiff claims a number of items of special damages not already met by the statutory insurer. The first of them is a sum of $675.65 in respect of past medical expenses. This is not disputed and is allowed as claimed.
The plaintiff attended physiotherapy for a period of about two years, travelling between her residence at Hadspen and Launceston. The total distance travelled was 5,880 kilometres and at the agreed rate of 30 cents per kilometre, she should be reimbursed the sum of $1,764. While undertaking treatment, her child had to be minded for the two hours she was absent. This cost approximately $5 per hour, or $10 per week. The claim for $980 is allowed.
An occupational therapist recommended a special bed, a recliner chair and a back support for driving. These will cost a total of $4,980 and this sum is allowed as reasonable.
A claim in respect of loans said to be necessitated by her length and period of study and the acquisition of a replacement car was not strenuously pursued and, in any event, is too remote in my view.
I accordingly assess damages in the sum of $320,399.65, made up as follows:
| Pain and suffering, etc | $50,000.00 |
| Past economic loss | 62,000.00 |
| Future economic loss | 200,000.00 |
| Medical expenses | 675.65 |
| Travelling | 1,764.00 |
| Child minding | 980.00 |
| Special equipment | 4,980.00 |
| $320,399.65 |
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