Heeremans v Morello; Sweeney v Morello; Cosmo v Morello
[2014] QDC 121
•29 May 2014
DISTRICT COURT OF QUEENSLAND
CITATION:
Heeremans v Morello; Sweeney v Morello; Cosmo v Morello [2014] QDC 121
PARTIES:
Matter no: 5185 of 2011
MONIQUE THERESIA HEEREMANS
(Plaintiff)v
VITO SEBASTIAN MORELLO
(Defendant)Matter no: 5186 of 2011
KYRIE ALICE SWEENEY
(Plaintiff)v
VITO SEBASTIAN MORELLO
(Defendant)Matter no: 5187 of 2011
LISA MARGARET COSMO
(Plaintiff)v
VITO SEBASTIAN MORELLO
(Defendant)FILE NO/S:
5185/11, 5186/11, 5187/11
DIVISION:
Civil
PROCEEDING:
Assessment of damages
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
29 May 2014
DELIVERED AT:
Brisbane
HEARING DATE:
22 April 2014
JUDGE:
Farr SC DCJ
ORDERS:
In Matter No. 5185 of 2011 there will be judgement for the plaintiff in the sum of $149,178.00.
In Matter No. 5186 of 2011 there will be judgement for the plaintiff in the sum of $82,692.44.
In Matter No. 5187 of 2011 there will be judgement for the plaintiff in the sum of $127,756.78.
I will hear from counsel as to costs.
CATCHWORDS:
TORT- NEGLIGENCE- PERSONAL INJURY- DEFAULT JUDGEMENT - Where injury occurred to the plaintiffs’ when defendant lit bonfire at his premises – Where by default judgment, defendant ordered to pay the plaintiffs’ damages to be assessed.
TORT – NEGLIGENCE – QUANTUM – ASSESSMENT OF DAMAGES - GENERAL DAMAGES – SPECIAL DAMAGES – PAST AND FUTURE ECONOMIC LOSS – PAST AND FUTURE CARE AND ASSISTANCE- Where plaintiffs’ claim damages for personal injury and loss and damage caused by the negligence of the defendant – Particular heads of damages and method of assessment - Amount of damages to be awarded.
COUNSEL:
G J Cross for the plaintiffs
No appearance for the defendant
SOLICITORS:
Patinos Personal Lawyers for the plaintiffs
No appearance for the defendant
Background
Monique Heeremans, the plaintiff in Matter No: 5185 of 2011 was born on 22 August 1990. Kyrie Sweeney, the plaintiff in Matter No: 5186 of 2011 was born on 1 March 1989. Lisa Cosmo, the plaintiff in Matter No: 5187 of 2011 was born on 5 July 1988.
On 25 April 2009 they attended a 20th birthday party held at premises situated at 743 Sugarloaf Road, Kyoomba which was owned by Vito Morello, the defendant.
The defendant had prepared a bonfire at that premises using stacks of timber, paint drums and 44 gallon drums.[1] On the date of the party the defendant lit the bonfire using fuel which had been placed in bottles which in turn were then thrown onto the bonfire.[2]
[1]Statement of Claim, para 4 (E-doc 1).
[2]Statement of Claim, para 5 (E-doc 1).
At approximately 8 p.m. the defendant directed guests at the party to attend and sit by the bonfire.[3] The three plaintiffs were sitting near the bonfire when it exploded and each suffered significant burn injuries and consequential psychological injuries.[4]
[3]Statement of Claim, para 6 (E-doc 1).
[4]Statement of Claim, paras 7 and 10 (E-doc 1).
The plaintiffs each commenced proceedings against the defendant by Claim and Statement of Claim, which were filed on 22 December 2011,[5] and served on the defendant.[6]
[5]E-doc 1.
[6]E-doc 2.
No Notice of Intention to Defend was filed by the defendant.
By default judgment, dated 2 August 2012,[7] the defendant was ordered to pay the plaintiffs’ damages to be assessed.
[7]E-doc 5.
An Application for Directions was filed on 10 October 2013.[8] The application was served on the defendant.[9]
[8]E-doc 7.
[9]E-doc 9.
By Order of Judge Butler SC of 21 November 2013[10] the assessment of the plaintiffs’ damages pursuant to Chapter 13 Part 8 Uniform Civil Procedure Rules 1999 (“UCPR”) was listed for hearing in each of the matters on 22 and 23 April 2014.
[10]E-doc 12.
THE EVIDENCE
Re:Monique Heeremans (Matter No: 5185/11)
[10.1]Ms Heeremans relied upon the following material:
(a) Claim and Statement of Claim, filed 22 December 2011;
(b) Statement of Loss and Damage, signed and dated 22 April 2014;
(c) Affidavit of Monique Theresia Heeremans, sworn 22 April 2014, attaching a document titled “Quantum Statement” and other documents;
(d) Report of Dr Trevor Harris, Plastic and Reconstructive Surgeon, dated 13 October 2010, and curriculum vitae; [11]
[11]Exhibit 1 in matter 5185 of 2011.
(e) Report of Dr Chris Cantor, Psychiatrist, dated 14 February 2011, and curriculum vitae; [12]
[12]Exhibit 2 in matter 5185 of 2011.
(f) Report of Dr Chris Cantor, Psychiatrist, dated 17 March 2014; [13]
[13]Exhibit 3 in matter 5185 of 2011.
(g) Report of Mr Stephen Hoey, Occupational Therapist, dated 21 December 2010, and curriculum vitae; [14]
[14]Exhibit 4 in matter 5185 of 2011.
(h) Report of Mr Stephen Hoey, Occupational Therapist, dated 15 July 2011; [15]
[15]Exhibit 5 in matter 5185 of 2011.
(i) File note of Mr Stephen Hoey, dated 15 April 2014; [16]
[16]Exhibit 6 in matter 5185 of 2011.
(j) Affidavit of Monique Theresia Heeremans, sworn 22 April 2014.
Medical reports
Dr Trevor Harris, Plastic and Reconstructive Surgeon (report dated 13 October 2010)
[10.2]Dr Harris’ report notes that:
(a) following the explosion Ms Heeremans clothes caught fire, resulting in severe burns to her limbs and, to a lesser extent, her lower back. She was transported to the Stanthorpe Hospital and then airlifted by helicopter to the Royal Brisbane and Women’s Hospital Burns Unit. She remained an inpatient for one month. Two operative procedures were performed to debride and graft her burnt areas;
(b) on 27 April 2009, she underwent debridement and grafting to her left flank, right and left legs and her right arm and hand, using donor skin from the right and left thighs;
(c) on 14 May 2009 she underwent grafting to patches on the left thigh and right ankle using donor skin from the upper left thigh;
(d) she wore pressure garments from the waist downwards and on her left forearm for approximately 12 months. Healing had occurred by about August 2009;
(e) Ms Heeremans required considerable pain relief at the time.
[10.3]Dr Harris noted the following scarring had occurred:
(a) The face:
she received superficial burns to the left side of the cheek and forehead but which left no permanent scarring;
(b) The right forearm:
there had been superficial burns to the whole of the right forearm on its lateral and posterior aspects, resulting in texture and pigmentary change in this area, but no grafting was necessary. This area measured 9cm x 19cm, and extended down the lateral aspect to the thumb, a further distance of 9cm and 1.5cm in width. This area healed well and exhibited only pigmentary and texture change;
(c) The left forearm:
there was an extensive burn to the left forearm requiring an extensive area of skin graft. This area extended from just above the elbow to the wrist and dorsum of the hand and the dorsum of the middle finger. A total area of 28cm x 11cm had been grafted using meshed skin grafts, resulting in a tessellated appearance. The grafted area extended around the posterior point of its elbow to its medial aspect. The grafted area on the dorsum of the hand measured 8cm x 3cm. There was no contracture of the web spaces and no contracture involving the cubital fossa at the elbow. The area was well healed as a result of the grafting and is quite stable;
(d) Right lower limb:
(i) Right thigh:
there had been a superficial burn to the medial aspect of the thigh just above the knee with some pigmentary change;
(ii) Right posterior calf:
there was some pigmentary change over the small area of the posterior calf;
(iii) Right leg below the knee:
the whole of the anterior and lateral aspect of the right leg below the knee had been burnt to various levels. There was pigmentary change immediately below the patella. On the anterior aspect of the mid-third of the leg was an area measuring 6cm x 14cm which had been grafted. Below this there was a circumferential graft, including the lower third of the leg to the level of the ankle joint. The graft extended circumferentially and measured 14cm in vertical width;
(iv) Dorsum of the foot:
there was a small grafted area on the medial aspect of the dorsum of the right foot;
(e) Left lower limb:
(i) Left thigh:
on the anterior and lateral aspect of the thigh there was a large grafted area measuring 20cm x 24cm. Medial to this on the anterior thigh is a smaller grafted area measuring 10cm x 2cm;
(ii) Left leg below the knee:
on the anterior aspect of the calf was a 4cm x 19cm grafted area and in the region of the ankle a 6cm x 6cm grafted area. On the lateral and posterior aspects of the left calf is an 18cm x 19cm grafted area extending around most of this posterior aspect of the calf;
(f) Posterior waist:
there was a severely burnt area extending from the left loin across the lower part of the back to the right loin. This grafted area measured 35cm in length from one side to the other, and varied from 11cm in width on the left side to 2cm in width above the right hip. This area is quite stable;
(g) Donor sites:
the whole of the circumference of the right thigh from inguinal region to the knee has been used as a donor site for the extensive skin grafts. In addition, donor skin had been obtained from the upper left thigh in its anterior and lateral aspects. These donor areas have healed well, with little pigmentary change and some change in texture of the skin.
[10.4]Dr Harris noted that pain and suffering would have been extreme in the initial stages and during Ms Heeremans’ time in hospital. She remained on considerable pain relief medication following discharge from hospital. Her discomfort is now controlled and she takes no medication.
[10.5]Dr Harris was of the view that the burn scarring would be permanent. He does not expect further spontaneous improvement in most of the scarring. The grafted areas will remain in their present condition for the rest of her life. At the present time there is no way to overcome the tessellated appearance of the grafted areas.
[10.6]Dr Harris has assessed a 30% permanent impairment from scarring from the burn injuries.
[10.7]The scarring will need to be protected from physical agents such as sunlight or corrosives, possibly for the rest of Ms Heeremans’ life. She should not put herself in a position where sunburn is likely. Further surgical treatment is not required, in Dr Harris’ opinion.
Dr Chris Cantor, Psychiatrist (reports dated 14 February 2011 and 17 March 2014)
[10.8]Dr Cantor assessed Ms Heeremans on 17 January 2011 and again on 10 March 2014 and his reports noted the following:
(a) Ms Heeremans recalled standing at the scene and walking around the bonfire when there was a large bang, and she became enveloped by flames, causing her to run. Following rolling on the ground and having the flames extinguished, she went inside the house, reassuring herself that she was okay. She said that she knew she was burnt but also knew that she would not die, although her fear was extreme;
(b) Ms Heeremans told him that after being transferred to the Royal Brisbane Hospital by helicopter she felt afraid and sad;
(c) at that hospital she underwent near daily baths which were painful. In the first two weeks she said she tried to dismiss the seriousness of her burns and that she coped with that strategy until she saw herself in a mirror about one week after the first operation. She said that she was upset and that this was the first time she cried;
(d) she said that on coming home to her parents she was upset. She found that she was unable to do much for herself despite having previously been an independent person. She needed assistance showering and dressing, but was able to toilet herself independently;
(e) Ms Heeremans went through a distressing period involving a loss of independence and having to rely on her parents for showering in the early months, which she naturally found upsetting. She had four or five true panic attacks that tended to be triggered by reminders of the traumatic experience. Such triggers included the sound of ambulances and helicopters;
(f) Ms Heeremans had mild traumatic intrusive recollections of her accident but had not developed significant post-traumatic stress disorder avoidance behaviours. She said that about eight months post-injury she had a period of wishing that she was dead. That appears to have been related to the approaching summer heat and the knowledge that she would be wearing burns pressure garments combined with the reaction of some of her friends towards her due to her physical appearance;
(g) Ms Heeremans has been able to establish a healthy romantic attachment to her boyfriend since her injury. She commenced an apprenticeship in graphic design but lost her position after seven months because of concentration and efficiency problems. I note that these are problems which she says she did not suffer prior to the injury;[17]
[17]See affidavit of Monique Heeremans sworn 22 April 2014.
(h) Ms Heeremans decided to leave Stanthorpe to explore life in a larger centre and moved to shared accommodation with her two older brothers in Brisbane. At the time of Dr Cantor’s first report she was working part-time for Woolworths in a delicatessen and was coping in that employment. At that time she had some inclinations to study massage in the future;
(i) at the time of his first report Ms Heeremans was progressing but was still having intrusive recollections;
(j) at the time of her injury Ms Heeremans was a farm hand but was not now suited to returning to such outdoor and physically demanding work;
(k) at the time of his first report, the plaintiff was upgrading her hours at Woolworths from 24 to 30 hours per week;
(l) she became emotional when she had trigger memories of the event and had been tearful at times but had attempted to put distressing memories out of her mind. Dr Cantor noted that the plaintiff’s general stress tolerance is impaired. He noted that about once or twice a month she uncharacteristically feels overwhelmed by trivia although her mood has not been consistently down. Naturally she is unhappy about her burn scars but copes with them although about once a month she becomes overtly upset about them. She told Dr Cantor that she becomes “a bit paranoid” about people looking at her;
(m) Ms Heeremans’ appetite has declined and she tires more easily post accident. On her days off she tends to want to relax and stay at home. She experiences nightmares only every few months and without specific themes;
(n) she has maintained good relationships with her family and now has a stable relationship with her partner of over four years, although she remains socially withdrawn preferring to stay at home. She has made considerable efforts to move on from her injury and misfortune but tends to become overly distressed from having to revisit it. Her mood is not consistently down but that she lacks energy and on her days off she wants to relax. Getting to sleep for her remains a difficult task and she continues to have difficulties with concentration and forgetfulness;
(o) she has moved to the Sunshine Coast where she now works in a delicatessen and she aspires to owning her own delicatessen at some future time. She has considered undertaking a 12 month business course but suspects that her concentration would not be adequate for such an undertaking;
(p) she still tends to become emotional when she receives letters referring to the accident causing her to shed tears and on occasion trigger flash backs.
[10.9]In Dr Cantor’s view Ms Heeremans suffers ongoing mild impairment in her occupational functioning which may cause slower career progression than would otherwise have been the case and that this will have associated financial implications. Dr Cantor diagnosed chronic adjustment disorder with anxiety and he provided a PIRS rating of 1%.
Mr Stephen Hoey, Occupational Therapist (reports dated 21 December 2010 and 15 July 2011 and file note dated 15 April 2014)
[10.10]Mr Hoey found Ms Heeremans to be a stoic young woman who had made substantial rehabilitative gains after a significant incident.
[10.11]He was of the view that occupational restriction will flow from her extensive burns and that she is not fit to work in outdoor occupations or work with corrosives (i.e. industrial cleaning, beauty therapy work or the like).
[10.12]Upon viewing Dr Cantor’s report dated 17 March 2014, Mr Hoey commented that, in his view, Ms Heeremans suffered more than a mild impairment of her occupational functioning and he considered that it would cause a more than slower career progression. He noted that in his experience as an occupational therapist, if staff are making mistakes dealing with customers, then that reasonably exposes them to job insecurity in that the employer’s patience will only be tested for so long. He also noted that if the Ms Heeremans was becoming fatigued easily and having concentration and memory difficulties and forgetting orders or instructions, then those matters could become a significant issue in regard to her ongoing employability. He further added that if the plaintiff was having difficulty with forgetfulness then she may be limited to roles wherein she requires close supervision. In that circumstance he said it would be less likely that she would be able to obtain employment where she would be able to work independently. He is of the view that Ms Heeremans would be better suited to highly structured work environments. He considered that those persons who are not forgetful and not fatigued would progress into positions where self thought or career progression is available to them, whereas the very low skilled jobs such as factory environments are very structured and have close supervision and that this would more likely be the career path Ms Heeremans is now suited to.
[10.13]Mr Hoey commented that low skilled supervised roles obviously are paid less. He noted that the Australian Qualifications Framework looks at skill levels and pay levels and those low skilled, highly supervised occupations fall at the low end of that framework. He noted that Ms Heeremans may be limited to those lesser skilled jobs which in turn would limit her potential remuneration. He also noted that she would be vulnerable to a supervisor terminating her employment because of her memory problems.
Re: Kyrie Sweeney (Matter No: 5186/11)
[11.1] Ms Sweeney relied on the following material:
(a) Claim and Statement of Claim filed 22 December 2011;
(b) Statement of Loss and Damage signed and dated 22 April 2014;
(c) Affidavit of Kyrie Alice Sweeney, sworn 22 April 2014;
(d) Report of Dr Trevor Harris, Plastic and Reconstructive Surgeon dated 7 October 2010 and curriculum vitae[18];
[18]Exhibit 1 in matter 5186 of 2011.
(e) Report of Dr Chris Cantor, Psychiatrist, dated 23 November 2010 and curriculum vitae[19];
[19]Exhibit 2 in matter 5186 of 2011.
(f) Report of Mr Stephen Hoey, Occupational Therapist, dated 31 January 2-11 and curriculum vitae[20];
[20]Exhibit 3 in matter 5186 of 2011.
(g) Statutory Declaration of Therese Sweeney, sworn 22 April 2014.[21]
[21]Exhibit 4 in matter 5186 of 2011.
(h) Affidavit of Kyrie Alice Sweeney, sworn 22 April 2014.
Medical reports
Dr Trevor Harris, Plastic and Reconstructive Surgeon
[11.2]Dr Harris noted:
(a) subsequent to the accident Ms Sweeney was seen at the Stanthorpe Hospital and then airlifted to the Royal Brisbane and Women’s Hospital Burns Unit where she remained an impatient for one month. Following initial stabilisation she underwent two grafting procedures and on 28 April 2009 she underwent debridement plus split skin grafting to her left and right lower limbs and left hand. The donor sites were her medial left thigh and left hip;
(b) on 15 May 2009 she underwent further debridement and grafting was done to small areas on her left and right lower limbs, the donor site being the lower abdomen and right upper thigh;
(c) Ms Sweeney required considerable pain relief on discharge from hospital, the dosage of which was reduced gradually over the following two to three weeks. She has been on no pain medication since that time;
(d) she was advised to wear a pressure garment to her lower abdomen and the whole of both of her legs. She also wore a glove on her left hand.
[11.3]Dr Harris noted the following scarring:
(a) Abdominal wall:
there was superficial scarring coursing over the lower abdominal wall and suprapubic region for 40cm, measuring up to 15cm in width. This area has been used as a donor site for one of the skin grafts. There is some change in pigmentation and texture in this region;
(b) Right lower limb:
there was burning involving the right lower limb from inguinal region downwards, through the whole length of the thigh and extending for 6cm to 8cm below the knee, a total of 44cm in length and encircling the anterior and medial aspects of the thigh for a distance of 24cm. This extended onto the lateral aspect of the posterior thigh, but not involving the posterior aspect of the knee joint. Most of this area had been grafted which had resulted in obvious scarring involving the anterior, lateral and medial aspects of the thigh and across the knee joint to the upper portion of the leg. A portion of the posterior aspect of the thigh and buttock on the right side had been used as donor sites for the skin, an area measuring 33cm x 17cm;
(c) Left lower limb:
there had been a similar burn to the anterior, medial and lateral aspects of the left thigh, extending downwards over the knee joint for 8cm to 10cm in both anterior and posterior aspects of the knee. The total length is 40cm and extends around the thigh for 25cm. A portion of this area had been grafted, resulting in obvious scarring over the whole area involving the anterior, medial and lateral aspects of the thigh;
(d) Left shoulder:
there was minor pigmentary change over the posterior left shoulder and adjacent left scapula region, an area measuring 22cm x 14cm. There was no skin grafting in this area;
(e) Left hand:
the whole of the dorsum of the left hand and wrist had been grafted, the graft extending downwards on all four fingers to the base of the nails. The total area measured 14cm x 9cm on the dorsum of the hand and extending for another 4cm down on the dorsum of all four fingers. The graft had been meshed, and this left an obvious tessellated appearance to the dorsum of the hand which was slowly settling. There was minor contracture of the web between the middle and ring fingers which did not require surgery.
[11.4]Dr Harris considered the scarring to be permanent and that there would be no significant improvement, if any.
[11.5]Dr Harris assessed a 30% impairment due to scarring.
Dr Chris Cantor, Psychiatrist
[11.6]Dr Cantor noted:
(a) that Ms Sweeney is uncomfortable about her appearance. She wears stockings to cover her thighs and has aching pains if she stands for too long. He also noted that Ms Sweeney is now a lot more anxious than prior to the accident and that it does not take much to upset her. Ms Sweeney recalled being too anxious to drive her car for a period of time and had a general feeling that something might happen to her;
(b) Ms Sweeney initially lost her positivity for a period of four to five months but started to get back to normal with the help of treatment from her psychologist. She was reclusive for that four to five months, the first two months due to burns and thereafter due to her state of mind. Dr Cantor noted that Ms Sweeney felt scared to trust people and can no longer assume that people will not do really stupid things;
(c) that nightmares were a problem for Ms Sweeney for the first two to three months and that her concentration was affected in the earlier months but improved over time. He also noted that she had major problems with loss of motivation for four to five months but then pushed herself to make a comeback and that her motivation has improved;
(d) that when she becomes anxious, Ms Sweeney is still inclined to quickly become tearful. She is particularly sensitive about the appearance of her burns and now tends to be tearful an estimated 20 days per month. Her tears are mostly about her burns, although she makes considerable effort to hide her tears in public, as she does not wish to draw attention to herself;
(e) Ms Sweeney has been reluctant to talk to anyone about the accident experience other than to a psychologist. Early in her recovery she used alcohol to avoid upsetting thoughts and for a few months was “writing herself off” once a weekend. She said that in the first few months after leaving hospital she felt low and at times wished that she had died and did not know how she would cope. She said however that after four to five months she started regaining her positive manner and is now happier and more optimistic regarding the future;
(f) she continues to feel distressed about her disfigurement and still wears compression garments;
(g) Ms Sweeney had a range of early post‑traumatic stress symptoms, most of which have now largely resolved. They included disturbed dreams, feeling uncomfortable in the vicinity of hot, burning or potentially explosive items or viewing such events on television. For a period of time she drank to excess to forget her problems and became socially avoidant and transiently had difficulty sleeping and concentrating. She had been somewhat irritable, hypervigilant and prone to startling, but those symptoms had substantially eased as time passed. Dr Cantor also noted that Ms Sweeney now enjoys social activity with friends, although she believes she has prematurely matured and is now wary of stupid behaviour.
[11.7]Dr Cantor assessed a nil percent impairment but noted that Ms Sweeney had experienced considerable psychological, as well as physical, pain and suffering as a result of a wholly traumatic, life-threatening experience and, to a lesser extent, her ongoing disfigurement. He noted that she had become unusually fearful for several months in relation to situations in which she could sustain further burns or unrelated injuries.
[11.8]Dr Cantor was of the view that Ms Sweeney had suffered post-traumatic stress disorder, which at the time of his report was largely in remission although he noted that it would have been reasonable for her to continue treatment for that condition for a further six to nine months, as it is a condition which is easily reactivated.
Re: Lisa Cosmo (Matter No: 5187/11)
[12.1] Ms Cosmo relied upon the following material:
(a) Claim and Statement of Claim filed 22 December 2011;
(b) Statement of Loss and Damaged, signed and dated 22 April 2014;
(c) Affidavit of Lisa Cosmo, sworn 22 April 2014;
(d) Report of Dr Trevor Harris, Plastic and Reconstructive Surgeon, dated 7 October 2010, and curriculum vitae[22];
[22]Exhibit 1 in matter 5187 of 2011.
(e) Report of Dr Chris Cantor, Psychiatrist, dated 25 November 2010 and curriculum vitae[23];
[23]Exhibit 2 in matter 5187 of 2011.
(f) Report of Dr Chris Cantor, Psychiatrist, dated 17 March 2014[24];
[24]Exhibit 3 in matter 5187 of 2011.
(g) Report of Suzanne Cox, Physiotherapist, dated 21 February 2011 and curriculum vitae[25];
[25]Exhibit 4 in matter 5187 of 2011.
(h) Report of Suzanne Cox, Physiotherapist, dated 16 June 2011[26];
[26]Exhibit 5 in matter 5187 of 2011.
(i) File note of Suzanne Cox, dated 16 April 2014[27];
[27]Exhibit 6 in matter 5187 of 2011.
(j) Statutory Declaration of Leonie Cosmo, sworn 22 April 2014[28].
[28]Exhibit 7 in matter 5187 of 2011.
Medical reports
Dr Trevor Harris, Plastic and Reconstructive Surgeon (report dated 7 October 2010)
[12.2]Dr Harris examined Ms Cosmo on 4 October 2010. He noted that:
(a) she was initially seen at the Stanthorpe Hospital for pain relief and wrapping of her burns, and then was airlifted to the Royal Brisbane and Women's Hospital Burns Unit. She suffered burns to the back of her neck, back of her ears, back of the right arm, the dorsum of the right hand and lower back;
(b) one grafting procedure was performed on 29 April 2009 where skin was harvested from her right upper thigh and buttock and used to cover the full thickness burn area on her lower back and right hand;
(c) Ms Cosmo required considerable pain relief and was able to be discharged on panadeine forte for ongoing analgesia;
(d) for six months she wore an elastic pressure garment as a girdle around her lower abdomen. At the time of examination by Dr Harris, she was wearing an elastic glove to the right hand and proximal fingers;
(e) Ms Cosmo remained off work until August 2009.
[12.3]Dr Harris noted that the following scarring had occurred:
(a) Head and neck:
there was no facial scarring. Her hair had regrown. There was an area of red pigmentation on the posterior neck measuring 6cm x 3cm. This area had not been grafted;
(b) Right shoulder and arm:
there was superficial light scarring and pigmentary change in several areas:
(i) overlying the left scapula;
(ii) right posterior deltoid, an area measuring 10cm x 4cm;
(iii) the right posterior arm extended down to the elbow, measuring 9cm x 20cm, where there was slight pigmentary change but not thick scarring;
(c) Right hand:
the right hand had been grafted on its dorsal surface, extending from the level of the wrist to include the proximal phalanges down to the proximal interphalangeal joint level. This area on the dorsum of the hand measured 8cm x 7cm and was covered with a meshed skin graft, and hence had a tessellated appearance. There were two bands of slightly thicker scar running downwards on the dorsum in relation to the third and fourth metacarpals. This was being controlled by the pressure glove. There was no scarring involving the webbing between the fingers;
(d) Lower back:
there was a grafted area running from the right to left side across the lower back above the intergluteal crease, measuring 30cm in length and up to 4cm in width. This area has been grafted with a mesh skin graft, resulting in the usual tessellated appearance;
(e) Right buttock and thigh:
this area had been used as a donor site for the skin grafts, and hence exhibited superficial scarring and slight pigmentary change. This area measured 30cm in length and varied from 20cm across the buttock to 8cm to 10cm in width on the thigh. There was no thick scarring in the area.
[12.4]Dr Harris noted that the scarring would be permanent, although there may be some slight diminution in the pigmentary change in the back of her neck and right shoulder.
[12.5]Dr Harris also noted that Ms Cosmo was no longer on medication for the pain at the time of his consultation but was still taking antidepressant medication and had done so since the time of the injury.
[12.6]Dr Harris assessed Ms Cosmo as suffering a 20% whole person impairment.
[12.7]Dr Harris did not believe that further surgery would improve her scarring with the exception of the large grafted area running across her lower back which could most likely be excised with one or two surgical episodes. Such surgery would cost in the order of $4,500.00.
[12.8]Ms Cosmo will have permanent scarring across her lower back, but the width of this should be decreased markedly if surgery were to occur. The length would remain the same, but if the scar stretches, as is most likely, the width would measure up to 1cm across over the entire length. Recovery time for each of the surgical occasions would be approximately one week. Dr Harris was of the view that if such surgery was performed, it would most likely decrease her percentage impairment by approximately 2%.
Dr Cantor, Psychiatrist
[12.9]Ms Cosmo was examined by Dr Cantor on 9 November 2010, 11 November 2010 and 11 March 2014. He noted:
(a) that she was taken to the Stanthorpe Hospital and given a cold shower for 45 minutes. The records show that she was in a state of shock and was administered morphine and transferred by ambulance to the Royal Brisbane Hospital;
(b) she then spent 13 days in the Burns Unit, an experience which she described as horrible;
(c) that immediately following the explosion Ms Cosmo considered that she may die. She said that she questioned herself as to whether she might be exaggerating but that she knew that she was in big trouble;
(d) that when she returned to her home in Stanthorpe with her family, she found that when she was left alone for the first time she felt overwhelmed with sadness and a sense of disbelief. She said she had dreams of the fire that were so real she would scream and wake the house. These dreams occurred nightly for the first month;
(e) by the time of her presentation to Dr Cantor, the frequency of her nightmares of the fire had reduced to two to three times per week and were not as distressing. She also said that at that time she was enduring a worried type of sleep which was punctuated by less specific worrying dreams;
(f) in January 2010 Ms Cosmo overdosed on nearly a whole packet of zyprexa (a sleeping medication) as she was stressed by her burns and hostile community sentiments. She said that she had at that time lost confidence and was worried about stupid things in social situations and felt uncharacteristically nervous despite being comfortable with her job;
(g) Ms Cosmo has lost patience for watching movies, particularly those which contained explosions. She also said she was too uncomfortable to strike a match or light a candle and avoided going near gas barbeques. She said that before moving to Brisbane she was not prepared to put wood on a burning stove despite the cold Stanthorpe nights. She further said that she had become uncharacteristically cranky and had been particularly prone to screaming loudly at her mother. She said that at work she tended to go quiet when she was feeling cranky and she would take herself off for a walk to calm down and did so on a weekly basis;
(h) she said that she tended to feel down all the time for the first six months following the event, but at the time of her consultation with Dr Cantor she tended to feel down up to two consecutive days per fortnight. She also said that some days she felt really angry about no-one having been prepared to speak out about who caused the explosion;
(i) in regard to the overdose in January 2010, Ms Cosmo told Dr Cantor that she half planned the overdose for a few weeks prior to committing the act but was drinking alcohol on the particular day and her intoxication converted vague plans to definite ones. She nevertheless said that she believed that she wanted to die at that time. She said however that she has not had significant thoughts of suicide since. She also told Dr Cantor that her ability to concentrate was variable. He noted that whilst her mood was anxious and low when living in Stanthorpe, her depression appeared to have significantly eased since although she still experienced a wide range of post traumatic stress symptoms. In his view these included moderate to severe re-experiencing symptoms that have eased slightly over time and mild to moderate avoidance behaviours as well as mild to moderate overall arousal in symptoms.
[12.10]Dr Cantor further examined Ms Cosmo on 11 March 2014. He noted that she initially started work at her current place of employment, in reception, before moving to a position which required her to help senior staff. She now works in accounts and has little contact with clients as she was previously not enjoying that aspect of her employment. Ms Cosmo told Dr Cantor that she has difficulty speaking to other people and lacks self confidence and does not enjoy her job and would like to move home to Stanthorpe.
[12.11]Ms Cosmo told Dr Cantor that she is irritable with work colleagues and has concentration problems. The plaintiff herself noted that her social manner with members of the public was inappropriate and that she tended to behave irritably towards both them and other staff members. It was for this reason that she was given the administrative position that she now holds. She continues to struggle and interact with her work colleagues, she tends to be forgetful about work tasks and cannot wait to leave her present employment although she has no clear future employment plans were she to move to her home town of Stanthorpe.
[12.12]Dr Cantor notes that Ms Cosmo has made no or minimal career advancement and is now 25 years of age.
[12.13]Dr Cantor has assessed a PIRS rating of 6%.
QUANTUM
General damages
Section 61 of the Civil Liability Act 2003 (“CLA”) (as amended by the Professional Standards Act 2004) states:
61 Assessment by court of injury scale
(1) If general damages are to be awarded by a court in relation to an injury arising after 1 December 2002, the court must assess an injury scale value as follows—
(a) the injured person's total general damages must be assigned a numerical value (injury scale value) on a scale running from 0 to 100;
(b) the scale reflects 100 equal gradations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind;
(c) in assessing the injury scale value, the court must—
(i) assess the injury scale value under any rules provided under a regulation; and
(ii) have regard to the injury scale values given to similar injuries in previous proceedings.
(2) If a court assesses an injury scale value for a particular injury to be more or less than any injury scale value prescribed for or attributed to similar particular injuries under subsection (1)(c), the court must state the factors on which the assessment is based that justify the assessed injury scale value.
Section 62 of the CLA provides for the calculation of general damages according to the assessment of the scale value of the injury and the formula set out in section 62.
Section 51 of the CLA, defines “general damages” as:
general damages means damages for—
(a)pain and suffering; or
(b)loss of amenities of life; or
(c)loss of expectation of life; or
(d)disfigurement.
Section 6 of the Civil Liability Regulation 2003 (“the Regulation”) provides for rules for the assessment of injury values for particular injuries for section 61(1)(c)(i) of the CLA. It relevantly states:
(1) This section and schedules 3 to 6 provide the rules under which a court must assess the injury scale value for an injury.
(2) Schedule 4 provides the ranges of injury scale values for particular injuries that the court is to consider in assessing the injury scale value for those injuries.
(3) For an injury not mentioned in schedule 4, a court, in assessing an injury scale value for the injury, may have regard to the ranges prescribed in schedule 4 for other injuries.
(4) Schedule 3 provides matters to which a court is to have regard in the application of schedule 4.
(5) …
(6) …
I will not repeat the provisions of schedules 3 to 6 in this judgement although they have been taken into account where relevant.
The first task is to determine where each plaintiff’s injuries fall in relation to the Schedule 4 categories. Then after the dominant injury is identified the assessment of an actual ISV can be made.
Plaintiff – Ms Monique Heeremans
[19.1] In relation to Ms Heeremans the following injuries can be identified from the medical reports:
(i) psychological;
(ii) scarring to face; and
(iii) other scarring.
[19.2] Ms Heeremans has submitted that pursuant to the Regulation these injuries should be assessed as follows:
(i) psychological – Item 13 – ISV 0 to 1;
(ii) scarring to face – Item 22 – ISV 0 to 5;
(iii) other scarring – Item 155.1 – ISV 14 to 25.
[19.3] Her submissions in that regard are appropriate.
[19.4] The dominant injury is the other scarring. Although there are multiple injuries a section 4 Civil Liability Regulation increase is not warranted. The section 9 considerations are Ms Heeremans’ age and the assessment of a 30% whole person impairment due to scarring.
[19.5] Ms Heeremans has submitted that the ISV range is 14 to 25, with the actual range for her being 20 to 25. Once again I consider this to be an appropriate submission.
[19.6] In all the circumstances I assess an ISV of 23, resulting in an amount of $31,400.
[19.7] No interest is recoverable on that amount, pursuant to section 60(1) of the CLA.
Plaintiff – Ms Kyrie Sweeney
[20.1] In relation to Ms Sweeney the following injuries can be identified from the medical reports:
(i) psychological;
(ii) scarring.
[20.2] Ms Sweeney has submitted that pursuant to the Regulation these injuries should be assessed as:
(i) psychological – Item 13 – ISV 0 to 1;
(ii) scarring – Item 155.1 – ISV 14 to 25.
[20.3] Her submissions in that regard are appropriate.
[20.4] The dominant injury is the other scarring. Although there are multiple injuries a section 4 Civil Liability Regulation increase is not warranted. The section 9 considerations are Ms Sweeney’s age and the assessment of a 30% whole person impairment due to scarring.
[20.5] Ms Sweeney has submitted that the ISV range is 14 to 25 with the actual range for her being 20 to 25. Once again, in my view, this submission is appropriate.
[20.6] In all the circumstances I assess an ISV of 21, resulting in an amount of $27,800.00.
[20.7] Again, no interest on that amount is recoverable.
Plaintiff – Ms Lisa Cosmo
[21.1] In relation to Ms Cosmo the following injuries can be identified from the medical reports:
(i) psychological;
(ii) scarring.
[21.2] Ms Cosmo has submitted that pursuant to the Regulation these injuries would be assessed as:
(i) psychological – Item 12 – ISV 2 to 10;
(ii) scarring – Item 155 – ISV 0 to 25.
[21.3] Her submissions in that regard are appropriate.
[21.4] The dominant injury is the scarring. Although there are multiple injuries a section 4 Civil Liability Regulation increase is not warranted. The section 9 considerations are Ms Cosmo’s age and the assessment of a 20% whole person impairment due to scarring.
[21.5] Ms Cosmo has submitted that the ISV range is 0 to 25 with the actual range for her being 15 to 20. Once again I am of the view that this submission is appropriate.
[21.6] In all the circumstances I assess an ISV of 16 resulting in an amount of $19,600.
[21.7] Once again, no interest is recoverable.
Past economic loss
Section 55 of the CLA applies to this claim. It provides:
55 When earnings can not be precisely calculated
(1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
(2) The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person's age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.
(3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.
(4) The limitation mentioned in section 54(2) applies to an award of damages under this section.
Plaintiff – Ms Monique Heeremans
[23.1] At the time of the accident Ms Heeremans was working casually as a fruit picker on an apple farm. She estimated that she worked 40 hours per week. She was off work for four months after the accident and then returned to work on a casual basis working 20 hours per week over two to three days.
[23.2] She continued to work for two weeks, although she suffered from pain to her arms and legs. After two weeks she was upgraded to “packing duties”. She was not ready to be upgraded at that stage, and her symptoms were aggravated by the heavy lifting of stock and boxes, the repetitive use of the right and left arms when packing fruit into boxes and standing for long periods of time. She kept knocking her wounds on boxes and parts of the conveyor system, and she relied on the assistance of workmates to complete heavy lifting tasks. She was able to take intermittent breaks to take analgesic medication. She would leave work early and take days off because of her symptoms or when she was required to attend medical appointments.
[23.3] As a consequence of those absences, her employment was ended in September 2009.
[23.4] In January 2010 Ms Heeremans secured employment as a graphic design apprentice with a printing company. This was a full-time position. She commenced that employment with the expectation that she would enrol at a TAFE college to commence a four-year graphic design course. She never commenced that course as she had to wait until the following October for the next course intake. During her employment at that business she suffered from pain to her arms and legs, which was aggravated by typing, operating a mouse, phone liaison tasks, lifting files and the repetitive use of her limbs when filing, photocopying or scanning documents. Once again she had to rely on the assistance of workmates to help with any lifting duties.
[23.5] Ms Heeremans became irritable with work colleagues. She also became self-conscious about her scars and what other people thought of her. She found that she was distracted from her work, had difficulty concentrating and would make more mistakes than usual. A consequence of that was that she found herself checking her work more frequently, which in turn reduced her efficiency.
[23.6] Her employment in that graphic design position ended that year due to a lack of funding for that position.
[23.7] Ms Heeremans then relocated to Brisbane and secured employment at a supermarket at Moorooka as a part-time delicatessen assistant. She worked 25 hours per week (three to four days). Her duties included customer service and retrieving food items from the delicatessen for customers. Her symptoms were aggravated when working in confined spaces, such as the delicatessen cabinet, by knocking herself against objects when performing tasks such as spooning food items and placing them into containers. She would avoid any heavy lifting, such as that involved when stock from the cold room was unloaded, and she would rely on the assistance of workmates to complete her work in that regard.
[23.8] Ms Heeremans worked for that supermarket in Brisbane and then at another on the Gold Coast for a period of 12 months. She has since moved to the Sunshine Coast where she worked in a delicatessen for 9 months, until that business closed. She has since been working at her current position in a delicatessen which has now provided continual employment for the past 12 months. It is a full-time position and she aspires to one day own her own delicatessen.
[23.9] In the 2009 financial year prior to the accident, Ms Heeremans earned the sum of $23,375.00 net, which equated to $450.00 net per week.
[23.10] On that basis for the period following the accident to the end of the 2011 financial year, Ms Heeremans should have expected to earn the sum of $70,120.00. She actually earned the sum of $50,925.00, the difference being $19,200.00.
[23.11] Ms Heeremans has submitted that she reasonably could have expected her income to increase in the period post-accident. I accept that that is a reasonable submission in the circumstances.
[23.12] Ms Heeremans has submitted that an order in the range of $20,000.00- $25,000.00 for past economic loss would be appropriate in all the circumstances.
[23.13] Taking into account the usual contingencies, in my view, an order that falls at the low end of that range is appropriate, that is $20,000.00. Interest should be allowed at the rate of 3% (see section 60(2) & (3) of the CLA) since the time of the accident which amounts to $2,760.00 ($20,000.00 x 3% x 4.6 yrs).
[23.14] Past superannuation at the rate of 9% should also be allowed, being the amount of $1,800.00.
Plaintiff – Ms Kyrie Sweeney
[24.1] Prior to the accident Ms Sweeney worked part-time as a delicatessen assistant at a supermarket. She worked some 20 to 25 hours per week, and her duties included customer service, food handling and preparation and general cleaning. Her pre‑injury vocational aspiration was to upgrade to full-time hours at the supermarket so that she could save money and return to university.
[24.2] Post-accident, Ms Sweeney was away from work for some four months. She returned to work in approximately August 2009 on light duties and never returned to full duties. Her duties included working as a checkout operator in the express lane, but she was not required to complete heavy lifting tasks and was able to take rest breaks when needed. Her symptoms were aggravated by long periods of standing, repetitive grasping and lifting of groceries. Ms Sweeney worked three‑hour shifts until she ultimately resigned from that position in approximately October 2009.
[24.3] She then commenced employment with a bank that same month. She suffered pain in her thighs, which was aggravated by standing for long periods of time at the teller counter. She required intermittent rest periods in an attempt to manage her symptoms. During that employment Ms Sweeney took numerous days off work due to medical appointments. She experienced reduced confidence and increased frustration when dealing with customers, particularly as a result of some inappropriate comments that were made by some in regard to the scarring on her left hand. She became increasingly irritable and anxious when dealing with customers. Despite this, she completed a Certificate III course in Financial Services but upon completion was unable to secure full-time employment with that bank. She therefore resigned in approximately February 2011 when she found alternate employment.
[24.4] In February 2011 she commenced employment as an Administrative Support Officer with the Southern Downs Regional Council. Her duties included customer service and administrative tasks. Her role was predominantly workstation based. She enjoyed her role with the Council. Ms Sweeney found her employer to be empathetic and accommodating to her situation, although her symptoms were not particularly notable at that time. Despite that, she did note that at times she became frustrated and self-conscious due to people staring at her scarring. During her employment with the Southern Downs Regional Council, she regained an interest in health and completed a Certificate IV course in Fitness.
[24.5] Consequently Ms Sweeney was offered a role at a medical centre at the end of 2012 after an associate had become aware of her interest in the health and medical field. She commenced full-time employment as a medical receptionist in January 2013. After a period of time she decided that she wanted to obtain further education and enrolled in the University of Southern Queensland to study nursing. This required relocation to Toowoomba to enable her to study full-time, and she finished employment at the medical centre in January 2014. Ms Sweeney currently studies on a full time basis and also works part time at another medical centre as a front office co-ordinator.
[24.6] In high school Ms Sweeney was a high achiever and would apply a lot of pressure on herself to achieve well. After the accident however, she finds that she struggles with pressure and suffers breakdowns and anxiety where she cries over small incidents and struggles to cope with change.
[24.7] Ms Sweeney has claimed the sum of $7,500.00 for past economic loss. This represents the period from the date of the accident until she obtained full time employment on 19 October 2009. I note from her Statement of Loss and Damage that up to the time of her accident Ms Sweeney had grossed $10,191.00 in that financial year at the supermarket. For the period 1 July 2009 to 18 October 2009 she grossed $1,975.00 at that supermarket. Whilst I am satisfied that were it not for her injuries Ms Sweeney would have obtained full time employment at some stage earlier than October 2009, I am unable, on the evidence provided, to make any informed estimate as to how much earlier that may have occurred. There is no doubt that Ms Sweeney has suffered past economic loss as a consequence of the injuries she received in this accident and her claim for $7,500.00 is reasonable. Interest should be allowed on this at the rate of 3%, yielding $1,035.00.
[24.8] Past superannuation should be allowed at the rate of 9%, yielding $675.00.
Plaintiff – Lisa Cosmo
[25.1] At the time of the accident Ms Cosmo had been working for Julven & Company as a quality assurance person labelling boxes of apples and assessing the quality of the fruit. After the accident she was off work for approximately five months and upon her return was placed on light duties for four months. She experienced difficulties on return to employment, such as significant itchiness over the burn sites and significant fatigue. She found that she became very irritable with her co-workers and found it difficult when her employer and her colleagues questioned her and wanted to discuss the incident. She was fortunate enough however to have an understanding employer who permitted her to leave work early whenever she needed to.
[25.2] Ms Cosmo left that employment in November 2009 as she felt the need to leave Stanthorpe. She then visited a relative in Western Australia for a period of time before returning to Stanthorpe and commencing a new job at a strawberry farm in February 2010. She left that job in March of 2010 and shortly thereafter moved to Brisbane whilst completing a Certificate III course in Business Management of Wine.
[25.3] In July 2010 Ms Cosmo obtained employment as a receptionist in a business in Brisbane and she remains in that employment to the present time, although she does not enjoy it.
[25.4] In the financial year ending 30 June 2009 she earned $21,434.00 net. She expected to earn a similar amount in the 2010 financial year but in fact, only earned $9,996.00 net, a difference of $11,438.00. I also note that in the financial year ending 30 June 2008, Ms Cosmo earned $20,234.00 net.
[25.5] In those circumstances the amount of $11,438.00 claimed is reasonable. Interest at the rate of 3% should be allowed, yielding $1,578.00.
[25.6] Past superannuation should be allowed at the rate of 9%, yielding $1,029.00.
Future economic loss
So far as future loss of earning capacity is concerned, a court must be satisfied that the plaintiff will continue to suffer some impairment of his/her capacity to work. The range of work activities that can be performed and the length of time over which they can be performed may be limited by the exacerbation of pain.
Section 55 of the CLA states:
55 When earnings can not be precisely calculated
(1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
(2) The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person's age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.
(3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.
(4) The limitation mentioned in section 54(2) applies to an award of damages under this section.
The s 54(2) limitation is of no relevance to this matter.
Plaintiff – Ms Monique Heeremans
[29.1] As previously stated, Dr Cantor noted that Ms Heeremans has some concentration and memory problems that are apparent at work. Whilst her work mates have commented upon this issue, her overall performance is nevertheless considered to be adequate.
[29.2] Dr Cantor concluded that Ms Heeremans had an ongoing mild impairment in her occupational functioning that may cause a slower career progression than would otherwise have been the case and if that occurs, it will come with associated financial implications.
[29.3] Mr Hoey, Occupational Therapist, has noted that Ms Heeremans is not fit to work in outdoor occupations such a fruit or vegetable picking, lawn mowing or the like, or work with corrosives including industrial cleaning, beauty therapy or the like.
[29.4] Mr Hoey has noted that Ms Heeremans concentration difficulties will inevitably impact upon her ability to work in the financial services industry. He is of the view that such difficulties constitute more than a mild impairment of occupational functioning and that it could stop her career progression. He notes that such symptoms would also prevent Ms Heeremans from working in higher levels of management, either in the financial services industry or at the supermarket where she is currently employed.
[29.5] Mr Hoey is of the view that persons who make mistakes when dealing with customers are exposed to job insecurity in that employers inevitably lose patience with them if it continues for an extended period of time. He opined that if Ms Heeremans continues to be fatigued and have concentration and/or memory difficulties and forgets customer’s orders or forgets instructions, then this will be a significant issue in regard to her ongoing employability.
[29.6] He also considered that Ms Heeremans’ memory difficulties will restrict her capacity for new learning, whether it be within lectures or attempting studies online.
[29.7] He stated that because of these difficulties she will need close supervision and will need to work in a highly structured work environment. He opined that in such circumstances it will be unlikely that Ms Heeremans will progress into positions where self thought or future progression is available to her. It is more likely, he thought, that she will work in low skilled jobs such as factory environments which are structured and have close supervision. He noted that low skilled jobs are obviously lower paid.
[29.8] Mr Hoey noted that when workers are in high demand, employers are prepared to be more forgiving, but in the current economic climate, Ms Heeremans would be quite vulnerable due to her performance difficulties because of the availability of other potential workers who aren’t forgetful and who do not have difficulties with fatigue. He is of the view that if Ms Heeremans is retrenched or her services terminated, then the problem would be compounded, noting that recent legislative changes in the workers compensation area requires workers to disclose previous injuries and illnesses. In his view such disclosure would inevitably compound the difficulty that Ms Heeremans would have in finding alternative work.
[29.9] It has been submitted by Ms Heeremans that future economic loss cannot be calculated with certainty. She is only 23 years of age and is limited in the outdoor activities that she can perform and is limited and vulnerable in the work place due to her memory difficulties and forgetfulness.
[29.10] It has been submitted that in the circumstances the reasonable range for future economic loss would be between $60,000.00 and $100,000.00.
[29.11] Once again, in my opinion, the range submitted is appropriate. I am satisfied that Ms Heeremans will suffer loss having regard to her age, the injuries she sustained and the consequences that those injuries and will have upon her give her work history to the present time. Upon the evidence before me it appears that Ms Heeremans is a person who was ideally suited to outdoor work, but as a result of her injuries, that avenue of employment is now closed to her. I accept that she is in a particularly vulnerable position within the work place because of her injuries and that future economic loss will inevitably occur. Accordingly, in my view, an award of $70,000.00 would constitute an appropriate amount in all of the circumstances.
[29.12] I allow $70,000.00 and $7,700.00 for lost superannuation.
Plaintiff – Ms Kyrie Sweeney
[30.1] Ms Sweeney currently studies on a full-time basis and also works part time with the Seven Springs Medical Centre in Toowoomba as a front office co-ordinator.
[30.2] She is hopeful that she will be able to complete her Bachelor of Nursing as she now has a passion to help others after her own experience. In 2015 she intends to transfer to the University of Queensland to study a dual nursing and midwifery degree. Such a degree, in her opinion, relates closely with her original goal after graduating high school, where she had ambitions to become an obstetrician.
[30.3] She commenced a Bachelor of Nursing Degree in March this year. That involves classroom study as well as six hours of simulated nursing activities in a controlled environment. Since commencing that course she has noted an increase in tightness of the skin when she kneels, bends or crouches, most obviously around her knees and thighs. She has also found that she is particularly sensitive to temperature, feeling extremely cold or extremely hot in relatively mild conditions.
[30.4] Her intention when she advances her studies is to take on a nursing role within the medical practice where she is currently employed. She is hopeful that she will be able to undertake the change in role at the medical centre when that happens but is feeling a little uncertain given the difficulties with the tightness of her skin when kneeling, twisting and bending.
[30.5] As previously mentioned, it is Ms Sweeney’s intention to change her degree to incorporate midwifery in 2015. At that time she will continue to do six hours a week of simulated nursing care at the university but will also be required to undertake 10 hours of work experience at a hospital.
[30.6] Notwithstanding Ms Sweeney’s commendable positive attitude to her future, she is nevertheless level headed enough to realise that her future employment as a nurse or midwife has a degree of uncertainty attached to it due to her injuries. Obviously, providing care for patients, including expectant mothers, can present unexpected and surprising challenges and there can be a need to act quickly in uncontrolled circumstances. Persons employed in such occupations are also required to be on their feet for extended periods of time.
[30.7] Whilst Ms Sweeney remains optimistic that the events of 25 April 2009 will not hold her back, she nevertheless realises that she is not able to predict confidently whether she will be able to hold down a full time role as a nurse or a midwife and that there are aspects of her future working life which are uncertain.
[30.8] Mr Hoey, in his report of 13 January 2011, noted that Ms Sweeney is restricted in the type of employment she can undertake. In his opinion she is better suited to indoor work that does not involve or require physically demanding tasks or extended exposure to the sun or heat and that does not entail sudden changes in temperature.
[30.9] Mr Hoey said:
“Statistically, injured workers who are able to acquire employment do so with average earnings lower than average earnings for non injured workers. This stoic young lady has shown a tolerance for work in an administrative capacity. There are certainly some more physically demanding or outdoor work pursuits that she must now avoid. But her work as an administration support officer or similar indoor, workstation based occupations has not been significantly adversely affected.”
[30.10] Ms Sweeney’s claim for future economic loss is, in all the circumstances, reasonable. There is a not insubstantial risk that her injuries will affect her ability to work in her chosen field at some future time. Obviously it is impossible to calculate with any precision the quantum of loss that would flow from such an eventuality, but some allowances must be made for such a realistic possibility. In my view a reasonable allowance for future economic loss is $25,000.00.
[30.11] I allow $25,000.00 plus $2,750.00 for lost superannuation.
Plaintiff – Ms Lisa Cosmo
[31.1] Ms Cosmo remains employed at Therapy Solutions. She has described ongoing difficulties with social relationships and irritability at work.
[31.2] Dr Cantor has noted that she has little contact with clients now as she previously was not enjoying that aspect of her job. She has difficulty speaking to other people and lacks self confidence. She hates her current employment and wishes to return home but remains uncertain as to whether she would be able to tolerate living there. She has no employment lined up in her home town in any event.
[31.3] Her employer at Therapy Solutions is her cousin and Dr Cantor has noted that her continued employment is dependant upon her cousin continuing to accept her unsatisfactory performance.
[31.4] In a file note dated 15 April 2014 Ms Suzanne Cox, Occupational Therapist, noted that it was encouraging that Dr Cantor felt that Ms Cosmo had made improvement in the past three years. Ms Cox noted however that Ms Cosmo still had symptoms similar to that which she was reporting at the time of her initial examination, these being social withdrawal and ongoing difficulties dealing with the public and other staff members. Ms Cox noted that Ms Cosmo had been removed from client and customer contact and now occupied a back office role which Ms Cox found to be of some significance. She also noted that if Ms Cosmo sought employment elsewhere with her current difficulties she would have difficulty obtaining employment. In her opinion Ms Cosmo would be limited to Level 1 or Level 2 clerical positions which, in the award, do not outline the use of interpersonal skills as a key aspect of the position. It is only for Level 3 positions where increased income is available as it requires more advanced roles including leadership, use of interpersonal skills to mentor, train and guide younger clerical staff.
[31.5] Ms Cox noted that despite the plaintiff obtaining a Certificate III in Business Administration she would not be able to fulfil any role that required her to deal with other staff and management. Hence, she would be limited to looking for more back office type positions where there is a very small pool of jobs available.
[31.6] Ms Cox also noted that under the current workers compensation legislation there is a requirement for disclosure of previous injuries and illnesses and accordingly, if Ms Cosmo were to provide a potential employer information about her injuries then it is likely that that would significantly affect her employability.
[31.7] Ms Cox stated that job seeking takes confidence, motivation and energy and that these are personality features that Ms Cosmo currently lacks. Furthermore, the evidence suggested that Ms Cosmo would find it extremely difficult to find employment in Stanthorpe, her home town.
[31.8] Quite obviously future economic loss cannot be calculated with certainty. Ms Cosmo is only 25 years of age and is currently employed in a job that she hates, by a relative who puts up with her unsatisfactory performance.
[31.9] There is no doubt on the available evidence that Ms Cosmo will suffer future economic loss as a consequence of the injuries she sustained in this incident.
[31.10] She has submitted that a reasonable range for future economic loss, in all of the circumstances, would be $60,000.00 to $100,000.00. I agree with that submission although, given the fact that she is currently employed in a steady job and has been since 2010, in my opinion the appropriate award would be $65,000.00
[31.11] I allow $65,000.00 plus $7,150.00 for lost superannuation.
Other damages
Plaintiff – Ms Monique Heeremans
Past special damages
[32.1] A claim for past special damages has been particularised in the Statement of Loss and Damage in the sum of $13,500.00. That sum is reasonable in the circumstances and it is appropriate to so order. I allow interest on the pharmaceutical and travel expenses at a rate of 3% for 4.6 years, being the sum of $18.00.
Future medical and associated expenses
[32.2] It has been recommended to Ms Heeremans by her general practitioner that she undergo five further counselling sessions. An amount of $1,000.00 is claimed for these five sessions and is an appropriate sum in the circumstances.
[32.3] Ms Heeremans also applies Vitamin E cream and moisturisers and sunscreen to her scars. She estimates that she spends approximately $5.00 per week and claims the sum of $1,000.00 for future expenses of that nature.
[32.4] Accordingly Ms Heeremans claims a total amount for future medical and associated expenses in the amount of $2,000.00 and once again, in my view, that is a reasonable claim.
Plaintiff – Ms Kyrie Sweeney
Past special damages
[33.1] In her Statement of Loss and Damage Ms Sweeney has claimed a total sum of $2,728.19 for out of pocket expenses which have been adequately particularised. Once again that is a reasonable claim and an order for that amount is appropriate. I will allow interest on the pharmaceutical and travel expenses ($44.08) at the rate of 3% for 4.6 years, being the sum of $6.00.
Future medical and associated expenses
[33.2] Ms Sweeney applies moisturisers and sunscreen to the affected areas of her skin on at least a daily basis although on some days every two to three hours depending on her activities. She spends approximately $30.00 per month on these products.
[33.3] She also spends approximately $20.00 per month on stockings which she now wears due to her self consciousness of her scarring.
[33.4] Ms Sweeney reasonably claims for future medical and associated expenses in the amount of $50.00 per month. She has claimed this for a period of 10 years ($12.50 per week x 10 years) (Multiplier 412.9), being the sum of $5,161.25.
[33.5] Accordingly the sum of $5,161.25 for future medical and associated expenses is appropriate.
Past and future care and assistance
[33.6] Ms Sweeney required assistance from her mother, Mrs Therese Sweeney, for about 14 hours a week for approximately seven months. Ms Sweeney therefore claims 14 hours of assistance per week at the rate of $22.50 per hour for a period of 28 weeks, being the sum of $8,820.00. Once again, such an amount is reasonable. I will allow interest at the rate of 3% for 4.6 years, yielding $1,217.00.
[33.7] Ms Sweeney does not require future care and there is no claim in that regard.
Plaintiff – Ms Lisa Cosmo
Past special damages
[34.1] A claim for past special damages has been particularised in the Statement of Loss and Damage in the sum of $4,229.28. The Statement of Loss and Damage reveals that sum to be reasonable in the circumstances and it is appropriate to so order. I allow interest on the pharmaceutical and travel expenses ($1,225.88) at the rate of 3% for 4.6 years, being the sum of $169.00.
Future medical and associated expenses
[34.2] Ms Cosmo applies hand cream on a twice daily basis which assists in making the scarring softer and not as itchy. The cost is $38.00 per month, or $9.50 per week. She reasonably claims this for a period of 10 years (Multiplier 412.9), being a total sum of $3,922.55.
[34.3] Furthermore, Dr Trevor Harris in his report of 7 October 2010, recommended further surgery to Ms Cosmo’s back. The cost of such surgery would be $4,500.00 and Ms Cosmo claims that amount. Again, it is a reasonable claim in the circumstances and should be allowed.
[34.4] Accordingly, Ms Cosmo reasonably claims the sum of $8,422.00 for future medical and associated expenses.
Past and future care and assistance
[34.5] Ms Cosmo was provided assistance from her mother, Mrs Leonie Cosmo, for a period of seven months.
[34.6] Accordingly, she claims 12.75 hours per week for a period of 28 weeks at the rate of $22.50 per hour, being the sum of $8,032.50. Again, that is a reasonable claim and should be allowed. I will allow interest at the rate of 3% for 4.6 years, yielding $1,109.00.
[34.7] Ms Cosmo makes no claim for future care and assistance.
SUMMARY
In summary, I assess the damages as follows:
Re: Matter No. 5185 of 2011
General Damages $31,400.00 Interest on general damages n/a Past economic loss $20,000.00 Interest on past economic loss $2,760.00 Loss of past superannuation $1,800.00 Future economic loss $70,000.00 Loss of future superannuation $7,700.00 Past special damages $13,500.00 Interest on special damages $18.00 Past Griffith v Kerkemeyer n/a Future care n/a Future medical expenses $2,000.00 Total $149,178.00
Re: Matter No. 5186 of 2011
General Damages $27,800.00 Interest on general damages n/a Past economic loss $7,500.00 Interest on past economic loss $1,035.00 Loss of past superannuation $675.00 Future economic loss $25,000.00 Loss of future superannuation $2,750.00 Past special damages $2,728.19 Interest on special damages $6.00 Past Griffith v Kerkemeyer $8,820.00 Interest on Griffith v Kerkemeyer $1,217.00 Future care n/a Future medical expenses $5,161.25 Total $82,692.44
Re:Matter No. 5187 of 2011
General Damages $19,600.00 Interest on general damages n/a Past economic loss $11,438.00 Interest on past economic loss $1,578.00 Loss of past superannuation $1,029.00 Future economic loss $65,000.00 Loss of future superannuation $7,150.00 Past special damages $4,229.28 Interest on special damages $169.00 Past Griffith v Kerkemeyer $8,032.50 Interest on Griffith v Kerkemeyer $1,109.00 Future care n/a Future medical expenses $8,422.00 Total $127,756.78
ORDERS
In Matter No. 5185 of 2011 there will be judgement for the plaintiff in the sum of $149,178.00.
In Matter No. 5186 of 2011 there will be judgement for the plaintiff in the sum of $82,692.44.
In Matter No. 5187 of 2011 there will be judgement for the plaintiff in the sum of $127,756.78.
I will hear from counsel as to costs.
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