Hastings v Fanning No. DCCIV-96-640 Judgment No. D3926

MEGAN ANN HASTINGS v JUDITH FANNING
[1998] SADC D3926

Judge Lunn
Civil

ASSESSMENT OF DAMAGES

Background

The plaintiff was born on 12 February 1970, and was 28 years of age at trial. Her parents separated when she was three and she was brought up by her mother. As a high school student she had part time work at a kiosk and other places. During her high school years she undertook various work experience placements at hospitals and similar institutions and expressed a firm desire to pursue a career as a nurse. She had to repeat her Year 12 in order to obtain enough points to gain entry into a Batchelor of Nursing course at the Sturt College.
In 1989 she commenced her nursing course. She had previously lived at Port Elliott, but she then moved to Adelaide to live with other students. She obtained some casual employment to supplement her Austudy allowance. She had difficulties in coping with the science component of her course and engaged a tutor to assist her. She failed one subject at the end of the first semester, but passed the others. In mid 1989 she gave up her studies and obtained a deferral of her course until 1990. She wanted to earn some money and to enjoy herself for a while. In 1990 she did not go back to University and sought a further deferral of her course by telling the University that she was re-evaluating her career choices. Subsequently her deferrals for resuming the course lapsed.
Between mid 1989 and early 1993 the plaintiff had a variety of casual jobs, but also some periods of unemployment. She did some work experience in nursing homes. In 1991 and 1992 she did a part time course at TAFE and obtained a certificate in Community Services. She also did considerable voluntary work at the Marion Youth Project. In 1991 her mother moved from Port Elliott to Cadell where she has since resided. From June 1992 until February 1993 the plaintiff lived at Port Elliott assisting her grandmother who still resided there and she also had some casual employment.
In late 1992 the plaintiff re-applied for admission to her nursing course which by then was being run through the Flinders University. Initially she was unsuccessful, but a few days before the commencement of the first semester in 1993 she was offered a late entry into the course which she accepted. She moved back to Adelaide and rented a house which she shared with friends. She supplemented her Austudy allowance by some house cleaning work, some casual work as waitress at Fasta Pasta and assisting her brother who was setting up a business printing photos onto cups and tea shirts at a shop at the Brickworks Markets.
Up until mid 1993 the plaintiff had a full and active social life. She was physically very fit, did a lot of dancing and engaged in sports such as kickboxing. Since she had come to Adelaide she had had a number of relationships with men and had had a number of steady boyfriends with whom she had sexual relationships.
On 2 June 1993 the car which the plaintiff was driving was hit by a car driven by the defendant. She was not wearing a seatbelt. Her knees hit the dashboard and her arms hit the steering wheel. She had a puncture wound in her right knee where the key protruding from the ignition had gone into that knee. She had considerable pain and bruising on her knees and arms. She was taken to the Flinders Medical Centre, but after undergoing several tests which were negative, she was not admitted. She then went home. She was feeling very sore and had difficulties in walking because of the injuries to her knees. Her mother came down from Cadell to assist her. On 5 June she saw Dr Rudaks, a locum for her usual general practitioner. She observed that both the plaintiff’s knees were bruised and swollen. She had to walk with the aid of crutches for one to two weeks after the accident, and then with a walking stick for about another month.
After the accident the plaintiff continued with her studies at Flinders University, but found moving around the campus very difficult and painful because of her knee problems. She sat for a mid year exam which she passed. She obtained deferments for various course work which she had to submit, but she could not manage to complete all of it. She worked a five hour shift at Fasta Pasta, but did not try such work again as on the following day her knees were so bad that she could not walk at all. In late August she was referred to Dr Krishnan, an orthopaedic surgeon, about her knee problems and started having physiotherapy on her knees.
About a month or two after the accident acne broke out on the plaintiff’s chin and right cheek which greatly distressed her. In September she broke up with her boyfriend, Paul, with whom she had had a relationship for the previous seventeen months. She was continuing to experience considerable pain in her knees which was not being alleviated by the treatment which she was receiving. She was angry at the defendant, frustrated and depressed. She was having difficulty in sleeping and nightmares. She was frequently crying and her social life had substantially diminished. Late in September her general practitioner referred her to Shirley Packham, a psychologist, whom she saw on six occasions until April 1994, but her counselling and treatment was of no real benefit.
On 16 September 1993 the plaintiff withdrew from her nursing course. She had probably failed one subject at the end of the first semester, although another was recorded as a fail because assignments were not submitted after the accident.
By October 1993 the plaintiff’s acne had become so bad that her general practitioner referred her to Dr O’Grady, a skin specialist, but in her view his treatment only exacerbated the condition. She was then referred to another dermatologist, Dr Gordon, who has continued, with some gaps, to treat her acne ever since.
In 1994 the plaintiff continued to have considerable pain and disability in her knees and her left knee sometimes locked on her. In February she was referred to Mr Wallace, another orthopaedic surgeon, who diagnosed traumatic chondromalacia patellae, but who thought her symptoms were exaggerated. She became very hostile towards both Dr O’Grady and Mr Wallace. She strongly felt, and justifiably with the benefit of hindsight, that her doctors did not recognise the true extent of her knee problems. She continued to be angry, frustrated and depressed. In May she obtained a referral to Dr Mills who had been able to assist her step-father. She reported right shoulder symptoms to him of pain and clicking and he arranged for an ultrasound to be conducted on the right shoulder in August 1994. In October 1994 her general practitioner referred her to Dr Wurm, a psychiatrist, who found that she was depressed and exhibiting abnormal illness behaviour. He prescribed anti-depressant medication for her.
Dr Mills referred the plaintiff to Mr Marshall, an orthopaedic surgeon, for treatment on her knees. On 25 November 1994 he performed chrondroplasties on both her right and left knees in a day surgery operation. The right knee came good after a few weeks, but there were continuing problems with the left knee. In her convalescence at home after these procedures on both knees her mother stayed with her. She was immobilised for some time and then she had to use a stick.
In 1994 the plaintiff did not work or study at all. Her social life was adversely affected. However, in December she became engaged to a man, John T, whom she had known for many years, but she broke off the engagement in about March 1995.

In February 1995 Mr Marshall performed a further arthroscopic procedure on the plaintiff’s left knee, but she did not consider that it was of any benefit to her. She continued to have pain in the left knee and difficulty in walking because of it. She was continuing to have physiotherapy and hydrotherapy treatment for that knee.
By early 1995 the plaintiff had come to realise that her continuing left knee problem precluded her from a career as a nurse. She decided that social work would be a more suitable career for her and she enrolled at Flinders University to do a BA in Social Sciences as the first stage in qualifying to be a social worker. She found moving around the hilly campus at Flinders University very difficult, and in particular, traversing stairs. She quickly found that she was not physically capable of attending around the University as required for this course. She withdrew from it and became upset by her inability to be able to pursue it.
In 1995 the plaintiff was having continuing pain in, and problems with, her right shoulder. On 2 May 1995 Dr Simmons injected cortisone into the bursa of that shoulder. In August she first saw Mr Bain, an orthopaedic surgeon, who treated her right shoulder. In September he also injected the right shoulder with good, but temporary, results. On 4 December he performed an arthroscopy and acromioplasty on the right shoulder which produced good results after about eight weeks and lessened the burning sensation and catching feeling in that shoulder. Earlier on 5 November 1995 Mr Marshall had carried out a further arthroscopic chrondoplasty on the left knee, but the plaintiff felt that it did not benefit her. She became very angry with Mr Marshall.
During 1995 the plaintiff continued to be angry, frustrated and depressed and to be acutely self-conscious about her acne. She indulged in several alcoholic binges. Dr Wurm continued to treat her with anti-depressant medication and her mood fluctuated.
In May 1996 the plaintiff first saw Mr Maquire, another orthopaedic surgeon, about the continuing pain and disability in her left knee. He performed an investigatory arthroscopic procedure on that knee which revealed significant articular cartilage damage and fissures on the condyle. He was not able to offer her any surgical procedure which would be of benefit to her.
In February 1996 the plaintiff had commenced a relationship with a man, Damian. This broke up in early October 1966 and shortly afterwards she attempted suicide by taking an overdose of painkilling medication. As a result she was admitted to the Flinders Medical Centre for treatment. At the time she was very depressed and frustrated. Her treating doctors continued to regard her for some time as a potential suicide risk. By this time she had ceased seeing Dr Wurm and her general practitioner, Dr Hyam, was treating her for her depression. In 1997 she commenced counselling and treatment from Dr Brogan, a partner of Dr Hyam. She formed a good rapport with Dr Brogan and her treatment was of some benefit. However, after Dr Brogan left the practice later in 1997 she tried other counsellors and psychologists but did not continue with treatment from any of them.
By about early 1997 the plaintiff was complaining of pain and restrictions in her left shoulder. An arthroscopic acromioplasty was performed on that shoulder by Mr Bain on 11 March 1997.
In mid 1997 the plaintiff again attempted to resume her BA course at Flinders University, but found that she could not cope because of her problems in walking and with depression. She then deferred the course until 1998.
In July 1997 the plaintiff first saw Mr Oakeshott, an orthopaedic surgeon, specialising in knees. He observed considerable wasting of the quadriceps muscles around the left knee. On 1 July he performed an exploratory arthroscopic procedure on that knee. On 13 August 1997 he performed major surgery of a tibial osteotomy on the left knee in which he grafted a new articular surface onto the inside of her kneecap from material taken from other parts of her knee. This was a relatively new type of operation. She was initially in hospital for about six days. Her left knee was attached to a machine which moved it fifteen times a minute. She then went home with the knee continuing to be attached to the machine. However, the range of movement was not satisfactory and she was re-admitted to hospital on 8 September for five days for further treatment. She was given an epidural block to relieve the pain, but it was not wholly successful. It was a very painful procedure and she had large doses of painkilling medication which continued until January 1998. After she went home again the use of the machine to move the knee was gradually phased out. She had to use crutches for three months and then a stick. She has had continual physiotherapy and hydrotherapy for the left knee. There has been considerable improvement in this knee, but even at trial in November 1998 her convalescence was not completed.
In March 1998 the plaintiff resumed her BA course at Flinders University. While she had difficulty with her knee in moving around the campus she was able to manage. She passed her mid year exams. However, in October this year she withdrew from the course because she was becoming increasingly stressed about this trial which was listed to commence on 19 November. As a result she did not sit her final exams for the year, but hopes to continue the course in 1999.
The parties have settled the issue of liability on the basis that the plaintiff is to recover 70% of her damages to be assessed and the defendant is to be given a credit of 30% of the special damages which it has paid. On 25 August 1995 and 28 October 1997 the defendant made interim payments each of $10,000 to the plaintiff which are to be offset against the damages awarded.

The plaintiff’s evidence

The defendant put the plaintiff’s credibility in issue. In her evidence I found her to be a dogmatic and self-opinionated person. As Dr Donsworth said she has narcissistic and histrionic traits. There is no doubt that the consequences of the accident have been catastrophic for her and that she has not coped particularly well with them. She has reached her own subjective and simplistic conclusions about the righteousness of her cause and this has coloured much of her evidence. She has been prepared to exaggerate and embellish some of her evidence in an effort to produce a result which she believes is just and will vindicate her for the injustices which she perceives she has suffered because of the defendant’s negligence.
I am satisfied that the plaintiff told at least one blatant lie in her evidence. In her evidence-in-chief she said that she had not had sexual intercourse since the major operation in August 1997. This was part of a wider segment of evidence that she had been largely deprived of the benefits and intimacy of romantic and sexual relations with men as a result of her continuing physical and emotional problems after the accident. However, in cross-examination she was forced to admit that she had been sexually intimate with a man once in August 1998, and also with another in December 1997. I cannot accept that she forgot or overlooked the August 1998 episode. It was clearly an instance of her attempting to bolster artificially her case by not telling the whole truth.
I am also satisfied that in 1991 she gave her then doctor a much exaggerated and embellished account of the results of an assault upon her. This was out of anger at what had occurred and probably to lay the foundation for a legal claim which she did not ultimately pursue. It reflects adversely on her general credibility.
Counsel for the defendant asked me to find that the plaintiff was not telling the truth in saying in her evidence that the steering wheel of her car had been bent by her impact with it in the accident. While she did not apparently tell this to any of the doctors it was not put to her in cross-examination that her evidence on this point was incorrect. If issue had been taken with it in her cross-examination, her counsel would have had the opportunity to have called other evidence, which was apparently available, on the point. This was a breach of the rule in Browne v Dunn: Reid v Kerr (1974) 9 SASR 367 at 374-5. While I am not prepared to find that the steering wheel was bent as the plaintiff alleged, I consider that it would be unfair to her to treat it as an instance where she had deliberately exaggerated, and I do not act on it in that way.
In the closing addresses references were made to various doctors who either accepted or did not accept the plaintiff’s version of facts told to them. However, it is my function alone to decide whether her evidence was truthful and reliable and I do not take into account what any other person may have concluded about her credibility.
Accordingly, I do not find the plaintiff to have been a wholly reliable witness on the more contentious aspects of her case and I am not prepared to accept her evidence on them unless it is inherently plausible or supported by other acceptable evidence.

The other witnesses

I found the plaintiff’s mother to be an honest witness whose evidence in general terms was acceptable, but her recollection on some points of detail was not particularly good. The medical practitioners were all doing their best to assist the court. I accept the evidence of the other witnesses.

The left knee

The injuries and disabilities to the plaintiff’s left knee were by far the most serious of her injuries and disabilities. There is no doubt that as a result of the accident there was a serious injury to this knee and that she will continue to have major problems with it for the rest of her life. As a result of the operation in August 1997 she has probably been given a knee which will allow her to carry out most of the ordinary activities of daily living and to hold down a sedentary job. She is now able to walk moderately well. However, she is precluded for the rest of her life from kneeling, squatting, running, dancing or the like and has a noticeable bump at the front of her shin. She will not achieve her optimum recovery from this surgery for about another year. The substantial wasting of the quadriceps muscles around her left knee is slowly recovering, but it is unclear whether they will ever return to normal. She has an area of extreme sensitivity on the knee in the region of the graft which is diminishing in size, but it may never entirely go away. At present she cannot bear to touch the area even in shaving that part of her leg. She does not like looking at the knee and keeps it covered with a knee bandage and clothing. This restricts the types of clothing which she can wear. The knee also bears the scars of the six operations which she has had on it. These scars may improve, but they will never entirely resolve. I have not seen them.

Arthritic processes will work in the left knee joint over a period of time to produce increased pain and impairment of its function. Mr Oakeshott was very guarded in his predictions about how long this would take and he categorised it as ultimately crystal ball gazing. There is also an additional risk that the bone graft could break down. At some time between about five to twenty years from now, and more likely between about twelve to fifteen years, these arthritic processes in the knee will produce such severe symptoms that the plaintiff will have to undergo further major surgery on the knee to relieve the pain and to facilitate the continued functioning of the knee. Current medical science could offer the plaintiff either a patellectomy (a removal of the kneecap), a patello-femoral replacement (an artificial knee joint) or an arthrodecis of the knee, but in the light of the rate of medical progress in the field there may well be better procedures available by the time that any further surgery becomes necessary. If the plaintiff was subsequently to have a patellectomy or a patello-femoral replacement, it is unlikely on current medical technology that that would last her for the rest of her life, and she may well need to have yet a further operation of that sort later in life, although again it would be dependent upon the state of medical science at the time.

In contrast with most of her previous orthopaedic surgeons, the plaintiff has a good rapport with Mr Oakeshott, which is a significant factor in the successful future treatment of the inevitable ultimate deterioration of her left knee. The likelihood is that for the next ten to fifteen years the plaintiff will have a left knee which will enable her to be moderately mobile, although not such as to enable her to engage in heavy or strenuous activity and that subject to periods of further deterioration, increased disability, surgery and convalescence she will continue to have substantial, but not total, future use of that knee.

The right knee

Although immediately after the accident the symptoms in the right knee were worst than those in the left knee, from within a few weeks of the accident the left knee became the major problem for the plaintiff. Her pain and restriction of use in the right knee were largely resolved by the arthroscopy in November 1994. Since then she has had little problem with the right knee and she makes no present complaint about it.

The right shoulder and neck

Although there is no recorded complaint by the plaintiff to a medical practitioner about right shoulder symptoms until well after the accident, I am prepared to accept that an injury to it in the accident was subordinated to the left knee problem which overshadowed it. I accept the opinion of Mr Bain, in preference to that of Mr Jose, that this right shoulder condition did result from injuries received in the accident. The operation on 4 December 1995 produced a good result after about eight weeks and any continuing symptoms are now only minor.
It was not disputed that in the accident the plaintiff suffered a neck strain which has not entirely resolved with time. It has caused her difficulties from time to time when she has been studying and leaning for long periods over desks and books.
The combination of her right shoulder and neck problems caused her prior to her right shoulder operation difficulties in doing things above shoulder level, such as brushing her hair.

The left shoulder

On 5 June 1993 Dr Rudaks observed bruising of the plaintiff’s left upper arm and forearm. The plaintiff said that she had some pain in her left shoulder following the accident, but I am not prepared to act on her evidence about it. Her mother referred in a general way to her making complaints about her shoulders, but not specifically about the left shoulder. On the second occasion on which she saw Dr Mills on 8 August 1994 he recorded a complaint from her of a left shoulder problem. I share Mr Jose’s quandary that if this was so why he did not pursue an ultrasound investigation of that shoulder as he did for the similar complaints about the right shoulder. She made no further recorded complaint to a doctor about the left shoulder until early in 1997 when she was then referred to Mr Bain complaining of pain in that shoulder having become considerably worse over the preceding five months. There was no reference to the left shoulder in either the Statement of Claim which was filed on 24 May 1996 or the first R46.15 Particulars which were sworn on 24 September 1996. In her evidence she claimed that she had told her lawyers of her left shoulder problem and said that it was causing her discomfort as at 24 September 1996. I do not accept her evidence that she did so tell her lawyers. Before the plaintiff’s case was closed I pointed out R46.22 to her counsel and invited him to call the plaintiff’s lawyer if the omission of the left shoulder injury from the pleadings resulted from a mistake by the lawyer. The lawyer was not called. I infer that the plaintiff had not told her lawyers about the left shoulder problem before the Statement of Claim and the R46.15 particulars were filed and that this was because there was no such problem in 1996. On this issue I prefer the opinion of Mr Jose to that of Mr Bain and Dr Mills, and find that it has not been proved that the plaintiff’s left shoulder condition resulted from the accident.

The plaintiff’s acne

The stress resulting from the accident is the likely cause of the acne and its perpetuations. The plaintiff’s narcissistic temperament has made her particularly sensitive to this blight on her appearance. Its severity has fluctuated from time to time since the accident. When it has been bad she has been reluctant to be seen in public. Sometimes this has meant that she has stayed at home and has been reclusive, but on some other occasions her mother and others were able to persuade her to go out. She has become skilful in the use of makeup and is largely able to hide the lesions. While she was giving evidence I observed that her face was fairly heavily made up, but I could not detect any blemishes on her skin. She, herself, does see the blemishes when she applies her makeup and she continues to be very self conscious about them. I accept the opinion of Dr Gordon that it is likely that the condition will resolve with time and the resolution of this litigation. Dr Gordon was optimistic for the future, but there is a risk that if her knee condition unduly deteriorates in the future that may precipitate further flareups of the acne.

Mental state and depression

Mentally and emotionally the plaintiff has not coped well with the major misfortunes which have beset her as a result of the accident. In September 1995 Dr Donsworth, a psychiatrist, diagnosed her as suffering from a chronic dysthymic reaction as a result of the accident which at times reached the severity of a major depressive disorder. That major depressive disorder continued into 1997 but did respond to treatment from Dr Brogan. When Dr Donsworth saw her in June 1998 she found the plaintiff still had a level of chronic dysthymia, but her mental state had improved following the surgery by Mr Oakeshott. As her mother stated, the plaintiff since the accident has been, and continues to be, emotionally fragile. She has found it difficult to cope with the ordinary problems of life because of the stressors which have been loaded upon her as a result of the accident. Anti-depressant medication has helped alleviate her symptoms, but it has not resolved them.
The defendant submitted that the plaintiff was wrong in seeking to blame all her troubles since the accident upon the accident and that there were other factors operating in her life which would have caused some of these problems in any event. Certainly her suicide attempt in October 1996 followed closely upon her breakup with her boyfriend. The breaking off of her engagement was probably related to some degree to her fiance having a drinking problem, but I am not prepared to find that that was the only cause of it. The plaintiff’s depression, self-consciousness from her acne and general irritability from pain, sleep disturbances and frustration from lack of achievement must have been powerful factors in the breakups of her several relationships after the accident. I do not find that the other factors would have meant that they would have broken up even if there had not been an accident. However, those other factors illustrate that even if there had been no accident the plaintiff’s life would not have been so straightforward and trouble free as she seemed to assume in her evidence that it would have been.
I accept the opinion of Dr Donsworth that the resolution of this litigation, and the financial benefit which it will produce for the plaintiff, will be likely to resolve her psychological and mental problems. These problems are likely to improve correspondingly with the condition of her left knee. However, she is likely to have increased vulnerability and less resilience in the future to deal with the vicissitudes of life, and in particular she may have a recurrence of her depression and a worsening of her emotional fragility if the condition of her left knee substantially deteriorates and the available treatment does not produce improvement as quickly, and as well, as she expects.

Past economic loss

I do not accept the plaintiff’s contention that she would have earned on average more than $6,000 per year from casual employment during her nursing studies. In her evidence-in-chief she claimed to have been earning a total of about $120 per week in the first semester of 1993 by regular house cleaning work for three clients. In cross-examination she could not give details of these earnings which showed earnings of more than about $90 per week. She was then confronted with a form which she had completed on 8 July 1993 in which she had said that her loss of income since the accident had been $97. I do not accept her subsequent explanation that by this she meant $97 per week. She was unable to explain how the figures which she had given for her earnings from each of the three clients could possibly total an odd figure such as $97. She could not produce any contemporaneous documents to substantiate that she had these earnings. She did not call any of her employers to verify her work or her earnings. I find that the statement of the loss of $97 in the period from 2 June to 8 July 1993 was correct and that insofar as she had some cleaning work it was not regular.
The plaintiff had on occasions worked casually at Fasta Pasta at Glenelg as a waitress prior to the accident to cover for her sister when she went to the football. I do not accept that this occurred on other than infrequent occasions or that she was offered any greater employment by Fasta Pasta. Again there was no documentation and no one was called by her from Fasta Pasta. I accept that the plaintiff did some work to assist her brother in setting up his business at the Brickworks, but she was only paid by him small amounts sporadically and they were not proper wages for the time which she worked in the business. Again there was no documentation and she did not call her brother. I do not accept that there was any particular likelihood that her earnings from this source would have improved in the future. While I find that the accident precluded her from undertaking any employment of house cleaning, waitressing and working for her brother, and any other type of employment then reasonably open to her, I find that it is likely that the level of her earnings after the accident while she remained a student would have been similar to those in the first semester of 1993, although they may have been increased by some extra casual employment in the Christmas vacations, but that her level of earnings would not have been nearly as great as $6,000 per year.
It is not entirely certain that but for the accident the plaintiff would have completed her nursing course and qualified to be a nurse. It was not as clear cut as she alleged. In 1989 she had substantial difficulties in coping with the course, and in particular with the science component. From mid 1989 until the beginning of 1993 she displayed some ambivalence about what career path she wished to pursue. While she did return to her nursing course it was not with such singlemindedness as she alleged in her evidence. She had not progressed far enough with her studies in 1993 before the accident to give a clear indication whether she was able to cope with them, but there was some risk that she would either have failed the course or not have persevered until she qualified.
If the plaintiff had continued with her nursing course in 1993, 1994 and 1995, and possibly into 1996 if she had to make up subjects which she had failed, she would have received Austudy allowances (ignoring her student loan) of about $1,366 in 1993 and $4,100 in each of 1994 and 1995. Although there is no reported authority on the point, I accept the plaintiff’s submission that she is to be compensated for this loss of Austudy allowances in her past economic loss, but allowance is to be made for the Austudy which she did receive until about September 1993.
If the plaintiff had not had the accident, and had not completed her nursing course, it is likely that she would have obtained some type of employment. She was generally a competent and resourceful person, and in spite of the general unemployment levels in the community among unskilled workers in her age range, there was still a reasonable prospect that she would have obtained at least substantial casual part time, if not full time, employment.

If the plaintiff had successfully completed her nursing qualifications at the end of 1995, of which there was a reasonable prospect, in 1996, 1997 and 1998 it is likely that she would have been employed as a level 1 registered nurse earning about $24,700 nett in 1996, $26,600 nett in 1997 and about the same in 1998 until trial.
The Austudy of $3,328, which she received in 1998 is to be deducted from her loss of earnings.
I assess the plaintiff’s damages for her nett past economic loss at $74,000.

Future economic loss

As stated above whether the plaintiff would have qualified as a nurse was not as clear cut as she claimed in her evidence. It is probable that she would have, but there is also a distinct possibility that she would not have. If she had qualified as a nurse, it is highly likely that she would have pursued that career until aged 55 or 60, and have obtained some promotions in that time, although possibly with some periods of time off or part time work if she had a family. There would not have been any problem in her finding a job as a nurse. There is no doubt that her disabilities resulting from the accident have precluded her from ever pursuing such a career in nursing. If the accident had not occurred, and she had not qualified in nursing, it is highly likely that she would have obtained employment in some less skilled and less remunerative occupation, although bearing in mind the general risks of unemployment or only part time and casual employment. She was motivated to work and had a reasonable work history.
In the light of her disabilities resulting from the accident, the plaintiff’s change of her proposed career path to that of a social worker appears to have been prudent and reasonable. However, I have virtually no evidence about what is involved for her in a proposed career in social work. I do not rely on other knowledge which I may have on the topic as it is not a matter of which I can properly take judicial notice. The plaintiff believes that social work is essentially a sedentary occupation with which she could cope with her left knee disability, but there may be some fields of social work where her physical disabilities would preclude her from obtaining employment. There is no evidence about employment opportunities for social workers, and it may be that obtaining the qualification will not guarantee her a full time, or even a part time, job. The Award rates of pay for nurses are significantly greater than those for social workers. A nurse can expect to average about 22-1/2% above her base Award salary from penalty rates for night and weekend work. There is no evidence that social workers are likely to earn any significant penalty rates. A registered nurse at the commencement of her employment could expect to earn about $31,000 gross per annum including penalty rates whereas a social worker at the commencement of her employment would only earn about $22,100 gross. Under the Award social workers at the top level 7 earn substantially more than at level 1. There is no evidence as to how the plaintiff might have progressed through the Award levels as a social worker and as to what the availability of those types of higher Award positions may be and as to how long it would normally take an ambitious and competent social worker to reach them. The plaintiff’s potential future earnings as a social worker are likely to be substantially less than those she would have earned if she had been able to pursue a career in nursing.
It is by no means certain that the plaintiff will be able to qualify successfully as a social worker. She has a strong inclination to help, and care for, people and she sees herself being able to satisfy that desire in a career in social work. While she passed her mid year exams in 1998 in social work, in view of her previous general academic record it is not entirely certain that she will be able to pass all of her other subjects. In view of her increased emotional fragility as a result of her experiences since the accident it is also not entirely certain that she will be temperamentally suited to the practice of social work.
If the plaintiff does not qualify as a social worker, or having qualified cannot obtain suitable employment as a social worker, her left knee disability severely restricts her capacity to obtain other types of employment. It would of necessity be confined to a sedentary type of occupation. She has no training, experience or skills for such an occupation, but there is a reasonable prospect that she could successfully undertake further education and training in such a field. It is highly unlikely with her knee disability that any employer would give her a job which involved any significant physical activity because of fear of compensation claims if it caused any deterioration in the knee: Mathewson v ANR (1987) 135 LSJS 94 at 100. If she was able to obtain such sedentary work, presumably it would not pay as well as social work, and there would be a significant risk of unemployment or of only part time employment.
The plaintiff is not to be criticised for having withdrawn from her social work course in October 1998. It was more important for her to get this case finalised. There is no evidence as to whether this withdrawal will mean that she has to repeat the whole of her first year or whether she will still be able to qualify in social work in four years from when she recommenced the course in March 1998. This withdrawal is likely to impede her completion of the course to some significant degree, but it may give her some leeway if she fails subjects along the way. As a result of her knee disability she now has virtually no capacity to earn money from casual part time work while she remains a University student. Under Regulation 13 of the Commonwealth Austudy Regulations made under the Student and Youth Assistance Act 1973 the judgment moneys which the plaintiff will receive would disqualify her from obtaining any Austudy allowance for the remainder of her University studies because she would have assets exceeding $116,950, but under Regulation 15 a home which she owns would not be included in such assets There is no evidence that she intends to invest any of the judgment moneys in a home and I cannot assume that she would do so. Accordingly, assuming that the plaintiff continues with her studies in social work, she is likely to be without any source of income for at least the next three to four years. As this results from the accident she is entitled to be compensated for it as part of her future economic loss. But for the accident it is reasonably likely that she would have been working in these years as a nurse.
The future economic loss is also to include a component for periods in the future when she will need to undergo further treatment on her left knee and possibly when a deterioration of her knee and/or mental condition may prevent her from carrying out even sedentary work.
Damages for future economic loss are assessed at $150,000.

Non economic loss

The non economic consequences of the left knee injury to the plaintiff, both past and future, have been substantial. Her physical activities and recreations have been, and will be, substantially restricted, and her enjoyment of life thereby impaired. The consequent acne, depression and emotional fragility have adversely affected her enjoyment of life, although that is now diminishing and is likely to improve considerably after this judgment, but with recurrences in the future if her left knee significantly deteriorates. The non economic consequences of her right knee, right shoulder and neck injuries are also to be taken into account, but they are minimal when compared with those from the left knee injury.

In the course of the trial the plaintiff amended her Statement of Claim to plead that as a result of the accident “(she) has suffered and will continue to suffer interference in and loss of enjoyment of personal and sexual relationships.” As related above, I have found some of the plaintiff’s evidence on this topic to have been exaggerated. I find that she had similar relationships after the accident to those she had before the accident, but I accept that in general terms at least some of her relationships after the accident broke down because of factors related to the accident whereas if there had been no accident they may well have continued. However, other factors also contributed to the breakdown of these relationships after the accident. Even if there had been no accident, it is likely that some of the plaintiff’s relationships would have been tempestuous, and some would have broken down in any event. While some allowance is to be made on this head of damage it is not to be as great as that sought by the plaintiff.
On the scale of 0-60 under Section 35a of the Wrongs Act I fix the number of 25 for the plaintiff’s non economic loss, both past and future. The multiplier was agreed at $1,390. Damages for non economic loss are assessed at $34,750.

Special damages

In the course of the plaintiff’s opening I was informed that most of the special damages had been paid by the defendant’s insurer, but there had been no agreement at that stage about the amounts, although it was expected that agreed figures could be put before me shortly. At the end of the plaintiff’s case after five days of hearing I was informed that the figures were still not available, but would be shortly. During addresses I was informed that the figures would be supplied to me within three days of the completion of the case, and that occurred. This is an unsatisfactory way of dealing with special damages, but, regrettably, it seems to be the norm in many trials. I have no idea whether it is the fault of the plaintiff, of the defendant, or of both. If a Notice to Admit had been given under Rule 54 at the appropriate time, any issues about special damages could have been identified well before trial and have been properly addressed in the evidence.
It has been agreed that the defendant has already paid $56,684 for special damages and that 70% of agreed unpaid special damages totals $2,028.

Voluntary services

The plaintiff sought an award on this head in relation to services provided to her by her mother who had to come from Cadell to her home at Brighton for the purpose. The evidence on the topic was vague and generalised. Prior to the accident the plaintiff’s mother would have visited her daughter in Adelaide on an average of about once each month and that would have been likely to have continued if the accident had not occurred. In relation to travelling expenses nothing is to be allowed where the services would have coincided with what would otherwise have been a normal trip but for the accident. The plaintiff’s mother had to travel 180 kilometres one way from Cadell to Adelaide. It was agreed that the appropriate rate for travelling was 26 cents per kilometre. She assisted the plaintiff domestically and in her recuperation from each of her seven operations and in particular after the arthroscopies on both knees in November 1994 and for over two months after the major knee operation in August 1997. But for this assistance from her mother the plaintiff would have engaged someone on a commercial basis to provide some of the services which she received from her mother after each of the operations. These services were reasonably required by her. The award is to be based on the commercial rates for such services at the time of judgment, and not when they were performed: Calvaresi v Lawson (1995) 184 LSJS 147. On the evidence of Mrs Smyth of “Dial an Angel” this rate is $14 per hour with a loading of $1 per hour on weekends plus an agency fee of $14 per visit. On a broad axe basis I allow $5,000 for such past gratuitous services which includes the allowable associated travelling expenses of the plaintiff’s mother. This does not reflect a rate of remuneration for her in excess of State average weekly earnings contrary to the restrictions in s35a(2) of the Wrongs Act.
I do not allow any damages on this head for the numerous occasions on which the plaintiff’s mother spent time with her comforting and consoling her when she was depressed and emotionally fragile. It was not shown that if the plaintiff’s mother had not provided these services that some other person would have been engaged to provide them on a commercial basis. Insofar as the plaintiff wanted professional help of that type she obtained it and its cost is included in the special damages.
There is no likelihood that the plaintiff will require further gratuitous services from her mother within the constraints of s35a(2) of the Wrongs Act in the foreseeable future. However, when left knee does deteriorate and she has to undergo future surgery it is likely that she will receive such services in lieu of engaging commercial services from either her mother or any husband whom she might then have. I allow $1,000 damages for such future gratuitous services.

Future special damages

The present cost of the next major surgery which the plaintiff will have on her left knee will be between about $4,000 and $12,000, including associated costs, but it is unknown what type of operation this will be and when it will occur. Allowance must also be made for a significant chance that she will need at some more distant time in the future a further operation on that knee whose present cost will be towards the top of that range. She will need ongoing physiotherapy about five times a year at a current cost of $36.50 per visit and probably additional physiotherapy and hydrotherapy before and after any major surgery. There is likely to be some significant expense for pharmaceuticals such as painkillers. She will need to see both her general practitioner and an orthopaedic surgeon on a regular basis, and with increasing frequency before and after any further operations on the left knee. If her depression recurs or her emotional fragility worsens with any future deterioration of her knee condition, she will need psychiatric assistance, psycho-therapy and/or counselling. She will need medication for her acne for some time into the future until it resolves and then again if it recurs with any deterioration of her knee condition. She will need to use more, and more expensive, makeup to cover her acne condition, but no evidence was given about the cost of this. Such future medical and like expenses are assessed at $20,000.

Pre-judgment interest

The plaintiff is entitled to interest at a commercial rate of 6-1/2% per annum on her past economic loss from the date of the accident to judgment, but graduated to take into account that the loss was suffered progressively. The defendant is entitled to have the interim payments which were made brought into account on this head of loss and also 100% of the special damages which were paid for the left shoulder injury and 30% of the other special damages which were paid as from the respective times at which they were paid. I have not been told when they were paid, but I presume those for the left shoulder were mainly paid shortly after the operation on it and the others have been paid progressively since the treatment began. The plaintiff is entitled to interest at 4% per annum on the whole of her damages for past gratuitous services: Calvaresi v Lawson (above). Interest is not to be awarded on the other heads of damage. The amount otherwise payable for interest is to be reduced by the 30% for contributory negligence. A lump sum in lieu of interest is fixed at $3,700.

Summary of award

Past economic loss  $       74,000.00
Future economic loss  150,000.00
Non economic loss   34,750.00
70% of unpaid special damages   2,028.00
Past voluntary services   5,000.00
Future voluntary services   1,000.00
Future special damages    20,000.00
Sub-total  $      286,778.00

Less 30% for contributory negligence 86,033.00

Less 100% of the special damages paid in relation to
the left shoulder 5,014.00

Less 30% of the other special damages paid   15,501.00
Less the interim payments made   20,000.00
Plus the lump sum for interest      3,700.00
Judgment for  $      163,930.00

[1998] SADC 3926

18 December 1998