Henson v Clarey
[2003] QDC 13
•7 February 2003
DISTRICT COURT OF QUEENSLAND
CITATION: Henson v Clarey & Anor [2003] QDC 013 PARTIES: GEORGINA NEITA HENSON
Plaintiff
and
LEIGH MARTELL CLAREY
First Defendant
and
SUNCORP METWAY INSURANCE LIMITED
Second Defendant
FILE NO: D703/2000 DIVISION: District Court PROCEEDING: Claim ORIGINATING COURT: Southport
DELIVERED ON: 7 February 2003 DELIVERED AT: Southport HEARING DATE: 28, 29, 30 January 2003 JUDGE: Robin QCDCJ ORDER: Judgment for the plaintiff in the sum of $18,589.00 CATCHWORDS: Cases considered:
Chaplin v Australian Postal Commission, Maroochydore 453/98
Davies v Todd Ross Racing Pty Ltd, 228/1995
Perez v Holmes D920 of 2001
Whitting v Churches of Christ in Queensland 87/96COUNSEL: Mr G Radcliff – plaintiff
Mr K Howe - defendantSOLICITORS: Attwood Marshall – plaintiff
Quinlan Miller & Treston – defendant
This action arises out of a rear-end collision on 4 April 1998 involving vehicles proceeding southbound on the Pacific Highway at traffic lights at the junction with the Broadbeach-Nerang Road. The plaintiff was a 19-year-old employee of a gift shop at Oxenford driving her vehicle with her 14-year-old step-sister as a front seat passenger to a youth group activity in premises at Mudgeeraba after her work for the day had finished. Their vehicle was stationary at the lights. The first defendant was a physiotherapist driving home in what she called her husband’s vehicle after a family visit with her six-month-old baby, who was in the back seat in a baby seat or capsule. Mrs Clarey has indirectly generated work for her professional colleagues by so managing the vehicle she was driving that it collided with the rear of the plaintiff’s in a bumper-to-bumper impact.
Although no-one other than Mrs Clarey can conceivably be blamed for the collision, her responsibility being clear, both liability and quantum have been very much in issue. The defendant’s case is that the impact was so minor that the plaintiff could not possibly have suffered any injury, specifically not the permanent whiplash-type injury which is complained of. It appears that a similar claim has been or may be brought by the plaintiff’s sister. Her situation came to be ventilated at the trial because she was called to give evidence of injury to herself in the collision in the form of bruising on the left side of her stomach, apparently attributed to pressure of a seatbelt (her claim in that regard, which was corroborated by her mother, Mrs Henson, a witness who made a favourable impression, invited a challenge by the defendants because of the absence of any reference to it in early medical records).
On the evidence presented, Mrs Clarey’s vehicle was not damaged at all. There was damage to the plastic outer bumper of the plaintiff’s vehicle, which was repaired at a cost of $237.00. When the drivers alighted their vehicles Mrs Clarey made the assertion that her vehicle had been moving too slowly to cause any damage and she queried the need to supply her “details”, when the plaintiff enquired about them. She says (but the plaintiff denied) she offered her business card, which the plaintiff did not take. The two apparently felt under some pressure to allow traffic to get moving. As things turned out, they made insufficient further progress to avoid being caught by the next change of the lights to red so there was an opportunity for further discussion. It seems that in the end Mrs Clarey was tracked down because the relevant registration number was noted. In all the circumstances, I can sympathise with her chagrin at being approached by police (presumably at the plaintiff’s instance) with an accusation of having left the scene of an accident.
Although Mrs Clarey has been adamant (including in her dealings with her insurer) there was no damage to the plaintiff’s vehicle, on the balance of probabilities, there was. The plaintiff said that afterwards she noticed additional damage, in that the metal rear bumper (behind the plastic cover) was pushed in. Given that the vehicle was an oldish one (manufactured in the early 1980s) whose history is unknown, I am not prepared to link any such damage to the subject collision. It seems clear the repairer did nothing about it.
It is unusual that in such a collision one of two similar vehicles might suffer observable damage, but not the other. There seems to have been no challenge by the plaintiff to Mrs Clarey’s assertion that damage to her vehicle appearing in photographs (Exhibit 16) occurred on some other occasion(s) and that what appeared to be damage to the number plate was attributable to difficulties in fitting it. Mrs Clarey’s vehicle, a Nissan Skyline sedan, may have been at some advantage from the point of view of inflicting but not suffering damage by its having a “lowered sports bumper” as she emphasised (p 181 and p 184).
When it comes to assessing the force of the impact which undoubtedly happened, the Court has the fact of damage to the plastic bumper of the plaintiff’s vehicle, and the parties’ evidence. Mrs Clarey says she had stopped her vehicle, and that her foot came off the brake when she turned to give some attention to her baby, causing her vehicle to “nudge” the one in front.
On the plaintiff’s side, the Court has her version of being knocked 20 or 30 centimetres forwards in the collision, something supported by her sister, in respect of her own experience. Accepting the bruising as genuine, I am not persuaded it is particularly significant, having observed Katherine Henson. She appears to me a person who might bruise very easily. Mr Radcliff was at pains to distance the plaintiff from the estimate of Mrs Clarey’s speed contained in a report of 1 October 1998 from an osteopathic physician at Mudgeeraba. That report is addressed to the plaintiff’s then solicitor, also of Mudgeeraba, who the Court was told made all the arrangements for the attendance. If the dates are correct, the plaintiff lost little time in getting legal assistance:
“Ms Georgina N. Henson entered my office on April 15, 1998 for evaluation and treatment of injuries reportedly sustained in an automobile accident on April 3, 1998. At the time of induction into this office a general and specific history and a physical examination were completed. Following are the results of my findings:
ACCIDENT HISTORY
Ms. Henson stated that on April 3, 1998 at approximately 5:30 P.M. she was the driver of a stationary vehicle which was struck in the rear by another vehicle traveling at approximately 40 miles per hour. Ms. Henson was wearing her seat restraints at the time of the accident.
At the moment of impact her neck was forcibly whipped forward then backward. She was not rendered unconscious by the impact though she felt badly shaken by the incident. Ms. Henson elected to go home immediately after the accident. Following is her description of the event:
‘We were stationary at the lights when the other vehicle ran straight into the back of us. After the accident, I felt shaken. It wasn’t until the next morning that I had a sore back (unable to turn without it spasming), and a stiff neck.’
PAST MEDICAL HISTORY
Ms. Henson denied any pre-existing or pre-disposing conditions relevant to the injury of issue.ORIGINAL COMPLAINTS:
In the patient’s opinion the symptoms since the date of the accident had increased in scope, frequency and duration. Her symptoms were aggravated by standing, bending, lifting and twisting. Ms. Henson stated that she had no difficulty with these symptoms prior to the accident. In addition to the care given by this office the patient was examined and treated for the injury of issue by Dr. Irving, Physician, who diagnosed Georgina with a whiplash and a suspected fracture to T6; and by Dr Chris Prosser, Chiropractor and Ms. Jennifer Renison, Physiotherapist. At the time of her physical examination Ms. Henson complained of the following:Head: The patient stated that she experienced severe headaches which were characteristically sharp and occurred approximately four times per week. They were constant in nature and were generally located in the occipital region, the frontal area and behind the eyes. The patient also complained of “lightheadedness”, “loss of memory”, “blurred vision”, “sensitivity to light” and “loss of balance”.
Cervical Spine: Pain of severe intensity was reported in the cervical area bilaterally. Pain was increased when the patient attempted to bend her head forward, bend her head backward, rotate her neck to the left, rotate her neck to the right, bend her neck laterally to the left and bend her neck laterally to the right. The patient further complained of “stiffness” in her cervical spine.
Shoulders: The patient complained of pain across both her left and right shoulders, restricted movement in both shoulders and muscle spasms bilaterally.
Thoracic Spine: Severe pain was reported between the shoulder blades which was characterized as “a constant dull ache”. “Muscle spasm” was noted in this same location.
Lumbar Spine: The patient stated that she experienced severe pain in the upper lumbar region bilaterally, lower lumbar region bilaterally and “muscle spasm” on both the left and right.
General Symptoms: Fatigue, depression, insomnia and tension.”
Even if the author’s lapse into reference to miles is corrected to kilometres, that estimate of Mrs Clarey’s speed is plainly absurd. It is utterly inconsistent with the minimal damage to the vehicle(s).
On the basis of the minimal nature of damage and Mrs Clarey’s account, the defendants presented evidence of Dr Henderson, whom I accepted as having relevant expertise enabling him to give an expert opinion regarding the likelihood of injury to the plaintiff in a low impact collision. His evidence was clear and impressive. It demonstrated to my satisfaction the inappropriateness of the osteopath’s view of the mechanism of the supposed injury: if an injury happens in a collision such as the present, injury to the occupant of the leading stationary vehicle occurs when the vehicle moves forward underneath her, when (relatively) the head moves “back”, rather than forward. Dr Henderson persuaded me that injury occurs at that stage, and not when there is a subsequent movement “forward” from the seat or headrest, which is necessarily of lower velocity. I hasten to say it would be unfair to criticise the report of a layperson such as the plaintiff in terms of being knocked forwards. Although I accept Dr Henderson’s evidence, I note that it admits of exceptions to the general rule that low impact collisions do not cause injury (at least permanent injury); he conceded that there were other variables, such as a mass of vehicles involved (apparently not an issue here) and the orientation of the “victim’s” body or head at the time of impact. It was difficult to know what to make of the anecdotal evidence of Dr White and Dr Langley of seeing many instances of injury in “low impact” collisions, because of the lack of definition of the concept.
The notion of a relatively high velocity impact got another run on 24 June 1999 when Andrew Harwood, a chiropractor at Hervey Bay, made a note, presumably on the plaintiff’s instructions, that she was “stationary at lights and hit from behind at approximately 40-60 kilometres/hour”. Such a scenario is completely at variance with the other information the Court has. I reject it, and at the same time would accept that Mrs Clarey’s description of a “nudge” was a considerable understatement. Human nature being what it is, it is unsurprising that she should adopt a defensive attitude, and she may well genuinely have come to believe the “nudge” assessment was accurate. The collision would have been a total surprise to the plaintiff and her sister. It is unsurprising they might over-dramatise it in their accounts. One would not expect them to have had previous experience of such events.
Making due allowances for human nature, I am prepared to accept the plaintiff as genuine in her evidence and in her assertions from time to time. The conclusion seems inescapable that she holds views which are at variance with the true facts. A psychological assessment of the plaintiff by Dr Golus (Exhibit 3B) after a 12-hour session with her on 24 March 1999, gives a picture of the plaintiff assessing her problems as extremely severe, and wholly attributable to the accident on 4 April 1998. The following extracts are indicative:
“Chronic Pain
Ms. Henson stated that before the accident she did not experience chronic pain on a frequent basis. However, since the accident, Ms. Henson reported that she has experienced chronic pain on a daily basis, lasting half the day to all the day.
On a pain indication scale from 1 to 10 where 1 represents mild but uncomfortable pain and 10 represents excruciating and immobilising pain, Ms. Henson rated her pain as being typically at level 8 (severe) and sometimes at level 10 (extremely severe).”
“Headaches
Ms. Henson stated that before the accident she did not experience headache on a frequent basis. However, since the accident she has experienced severe headache.
Ms. Henson stated that she experiences a headache on a daily basis and that the headaches last 6 to 8 hours.
Ms. Henson indicated that she experiences many other symptoms associated with the pain of her headache including:
a.nausea;
b.photosensitivity;
c.bothered by strong smells;
d.dizziness;
e.vomiting;
f.bothered by strong tastes;
g.fatigue;
h.irritability;
i.mental confusion;
j.feeling muddle-headed;
k.neck tension.
…
On a pain indication scale from 1 to 10…Ms. Henson described the pain of her headache as fluctuating between levels 7 (severe) and 10 (extremely severe).”
The report indicates that sleep difficulties on a daily basis were a post-accident phenomenon. Under each of the headings Depression, Anxiety and Irritability, all of which were said to have been “persistent” since the accident, Dr Golus noted that “Ms. Henson blames the accident for her poor psychological health. Ms. Henson does not wish to seek professional help or take medication and believes her mood will improve when her physical health does”.
There is no claim for damages for psychological injury.
The plaintiff has misled Dr Golus and the other professional people she has seen (I would hope not intentionally) like many others who blame their woes on some incident which occurred through the fault of someone else, by failing to acknowledge and disclose that she had indeed suffered such problems before the accident. The parties cooperated to produce a volume entitled “Plaintiff’s Schedule of Medical Reports” which was supplemented by other exhibits. They give a rather full picture of the plaintiff’s medical history, which I would assess as more eventful than would ordinarily be expected in a person of her age. Some of the matters about which she has sought medical advice would, I think, have been very concerning as to whether they indicated something was very seriously wrong. Fortunately, that has not proved to be the case. However, medical records dating from before the accident establish that the plaintiff from a young age has been prone to headaches, including many identified as migraine (for one of which the plaintiff was actually hospitalised on 4 November 1995). Vomiting was associated with this episode of migraine which, in my understanding, would not be unusual. This event came in the course of a very difficult few months for the plaintiff in which she was confronted with some quite shattering developments within the family. The report of the counsellor who assisted the plaintiff (full of praise for the self-sacrificing efforts Mrs Henson made to protect the plaintiff at this time) records the plaintiff complaining of suffering severe migraines, frozen neck and back, of vomiting in her sleep and at other times in the context of the family crisis and also year 12 pressures at school. It was feared the plaintiff was a suicide risk, but it is not clear to me that the psychologist, Terri Sheldon, endorsed that view. There is no reason to doubt the correctness of the history given to Terri Sheldon of headaches (two to three per day), sleeping problems, nausea and vomiting. The report noted the plaintiff’s having had headaches since she was little, which “get worse when stressed”. In September-October 1995, before the hospital admission referred to, the plaintiff saw her GP, Dr Irving (who could not be located to give evidence) on a number of occasions. His notes refer to headache and the plaintiff’s neck being stiff and sore, to the plaintiff “sleeping poorly – insomnia”. By December, the plaintiff was complaining of leg ache, specifically a problem in her left thigh, which the doctors connected with some spinal problem. Dr Irving’s note of 28 February 1996 indicates the plaintiff’s left thigh had been aching on and off for seven or eight months, that she had also “back troubles”. Blood tests occurred, and investigations by radiologists. Dr Peter Ross’ report of 1 March 1996 (p 34 in the book) refers to the plaintiff’s history of “long-standing backache and pain passing to left thigh”. Although X-rays and scans revealed nothing significant, this issue was concerning enough for the plaintiff to be booked in for surgery by Dr Bullen. In the end, the plaintiff chose not to proceed with surgery, feeling that her situation had improved spontaneously. The plaintiff was reporting to her GP with a “sick feeling” in her stomach on 21 April 1996 and again taking the relatively unusual course of going to a doctor with headache on 20 November 1996.
After the accident, which occurred between 5.30 p.m. and 6 p.m. on 4 April 1998, it was not until the next day that the plaintiff noticed on waking “thoracic back pain” which was worse on the following day, leading the plaintiff to consult a doctor at the Mater Hospital in Brisbane (where she was in residence temporarily with Mrs Henson and her sister, while Mrs Henson’s husband was hospitalised there, desperately ill with leukaemia). The doctor’s note of the accident was simply that “someone ran into back of car – damage to rear bumper”. On examination the doctor noted “Non-tender spine, paravertebral muscle spasm, full range of movement”. Examination of peripheral nerve systems revealed normal tone, power and sensation in the plaintiff’s legs. Presumably there was nothing noteworthy about shoulders or arms. The doctor’s diagnosis was of musculoskeletal back pain, for which Brufen and Valium were prescribed. Sofradex was prescribed for a (presumably) unrelated problem of right ear ache. The plaintiff’s complaints are typical of a whiplash injury, as described, for example, in the extract from Frymoyer, The Adult Spine (2nd) 1235 ff which Dr Langley provided to Mr Radcliff, the plaintiff’s counsel, and which became Exhibit 17. The medical evidence (and Mrs Clarey’s own) confirmed that symptoms of whiplash may not appear for a couple of days. In a close case, this contemporaneous Mater Hospital note justifies a finding that the plaintiff did suffer an injury of the kind claimed. Given the minor nature of the collision, common experience, Dr Henderson’s evidence, and Dr Nave’s evidence (which I accept) collectively or independently would lead one to expect that any such injury in this case would be relatively minor, and without permanent consequences.
Dr Irving’s reports and notes could hardly indicate a more sympathetic attitude towards the plaintiff’s claim. Unfortunately, he did not see her until 28 April 1998. It seems the first medical practitioner she saw, in accordance with the hospital doctor’s recommendation she be reviewed by her local doctor, was Dr Thomas on 13 April 1998. As I interpret his notes (p 93 of the book), they indicate:
“3/4/98 Motor Vehicle Accident. Other driver drove into back of car she was driving. Saw doctor following day complaining of stiff back (lower back).
Also migraine headache yesterday. Her father gave her Endone.
On examination: back – full range of movement, minimal local tenderness.
neck – full range of movement
…X-ray option discussed (not indicated)
Prescribed Brufen”
The above suggests a minor injury. I suppose it is mere speculation whether the osteopath was brought in by the original solicitors with a view to obtaining a different diagnosis. The further investigations instigated by Dr Irving when he came in, beginning with X-rays, did not alter the position as Dr Thomas assessed it.
The plaintiff’s case is that she has suffered a permanent disability, 10 per cent of the whole person according to Dr Langley, who saw her once on 25 September 2001, five per cent according to Dr White, who saw her once on 23 November 1999. The latter seems to me a significant date, because it was one month after the plaintiff ceased keeping a daily “pain diary” which she had commenced on 19 January 1999 (Exhibit 13). She said she stopped writing up the diary because she felt her situation had improved. The document tells a story of pretty much unrelenting pain in the lower back, neck and sometimes shoulders, of almost daily nausea, and investigations and treatments by virtually everyone the plaintiff saw serving only to make her feel worse. The picture is very similar to that given to Terri Sheldon which typified the latter part of 1995, as to headaches, neck pain, nausea and vomiting, sleep problems, depressed feelings and the like. The accident was not needed to cause the earlier problems. Dr Nave accepted (as I have found) that the plaintiff was injured on 4 April 1998, but expressed the opinion that by the time he saw her on 4 February 2000, even if she still had “some persisting symptoms at this stage” there was no assessable permanent impairment of an orthopaedic nature related to the subject accident. I agree with that view. I think the assessments of Dr Langley and Dr White are compromised because of the plaintiff’s failure to inform them of her pre-accident history of experiencing similar disabling and uncomfortable symptoms. It is fortunate from the standpoint of the plaintiff’s well-being to relate that further investigations by bone scan in May 1998 alleviated earlier concern that a possible wedge fracture at T6, revealed in X-rays taken 28 April 1998, might relate to any recent injury. See Dr Arnold’s report of 18 May 1998, at p 65 of the book. Dr Irving appears to have managed the plaintiff’s case very carefully, but the plaintiff took it out of his control to an extent by resorting to a bevy of practitioners in different fields. Speaking generally, they appear to have seen themselves as helping her considerably (presumably on her reports to them), but she was much less pleased with the outcomes achieved by them. For example, the plaintiff reported difficulty driving to Jennifer Renison on 26 May 1998, but reported being 60 per cent better on 5 June, and by 18 June she had resumed driving a week before. It does seem to be common ground, however, that the Mudgeeraba osteopath’s only contribution was to aggravate her pain. Dr Irving, in his report of 16 December 1998, anticipated recovery of full spinal movement, “although she will possibly have on-going pain and perhaps some cervical and thoracic arthritis”. This report was written two weeks after the plaintiff had been “seen again having fallen downstairs and re-injured her neck”, (Dr Irving’s report at p 55 of the book), which may have been a consequence of chest pain and dizzy spells complained of on 11 November “probably not related to the motor vehicle accident” (ibid).
Circumstances fortifying me in my view that the consequences of any injury suffered in the motor vehicle accident were spent by 22 October 1999, when the pain diary was discontinued (for the reason given by the plaintiff) include the plaintiff’s having, by this time, abandoned any further attempts at treatment and her having got back to work. In fact, she missed only a few weeks’ work at the gift shop. The plaintiff’s employment history has been good. After the accident she obtained employment with the National Australia Bank as a teller, which she gave up after several months in late April 1999. In my opinion, there is no support in any of the medical reports for her abandoning that employment on medical grounds, although she asserted the work in the bank was too much for her. I do not accept the occupational therapist’s view (if it was her view, as opposed to the plaintiff’s) that “Ms Henson is unable to return to her previous occupations of bank teller, childcare assistant or sales assistant”. The occupational therapist did regard the plaintiff’s present proposal to pursue a teaching career as “a realistic future employment option”, but still assessed the plaintiff as disadvantaged in the open labour market because she might require workplace modifications. The plaintiff’s lamentable record as a historian may well have affected this assessment of her (performed on 29 November 1999). It is recorded that the plaintiff “is limited to swimming at the local pool or in places where there are no waves”. But the Court was shown video footage of the plaintiff in the surf at Kirra with her family in early February 2000. Although the video did not impress Dr White or Dr Langley, there is enough in it, in my view, to demolish the plaintiff’s assertion to Ms Pacey that “She spends her time studying or coping with her pain. As a result of this she says that she does not have time or energy to participate in other activities”.
Perhaps most significant of all against a conclusion that the plaintiff continues to suffer disabling symptoms is that she has shown considerable enterprise and self-confidence in finding useful employment for herself in China, where she works teaching English to Chinese children, along with studying Chinese herself. In fact, if I correctly understood her to say she knows in excess of 3,000 Chinese characters, I would say she is making remarkable progress. The decision to move to China for some years does not bespeak a person expecting to require significant amounts of medical or like assistance, or even medication. It was heartening to hear that the occasions on which the plaintiff has sought assistance in China are few.
The plaintiff has established a breach of Mrs Clarey’s duty of care to her as a fellow-user of the highway, and that she suffered injury in consequence. It remains to assess damages. The parties followed the common practice of suggesting appropriate amounts under various heads, and were very far apart. As to general damages, I was referred to two local precedents, alleged by one side or the other to be comparable, Perez v Holmes D920 of 2001 in which Judge Hall assessed $45,000.00 for a five per cent whole body impairment (cumulative upon a pre-existing five per cent) and Davies v Todd Ross Racing Pty Ltd, Court reference 228/1995, 30 April 1997 in which Judge Newton assessed $10,000.00. Mr Howe (counsel for the defendants) also presented abstracts of a lifting case (Whitting v Churches of Christ in Queensland 87/96, 27 August 1998), in which Boulton DCJ assessed $7,500.00; and a slipping case (Chaplin v Australian Postal Commission, Maroochydore 453/98, 10 February 2000) in which Judge Dodds assessed $8,000.00. I regard the present as a case of a plaintiff who is very cautious about how much she can do, devoid of any expert support from any qualified person provided with reliable information about her history and actual capabilities – from the point of view of assessing a sum for general damages which the defendants should have to pay arising from the accident of 4 April 1998. I think an appropriate assessment is $10,000.00, all of which is attributable to the past, so that it bears interest.
As regards past economic loss, the plaintiff, ambitiously, claims $880.00 lost income from the gift shop, and in addition, a sum in excess of $60,000.00, being $440.00 per week from 1 May 1999 to 1 March 2002, which it is claimed the plaintiff, uninjured, would have earned working for the National Australia Bank. I say the claim is ambitious because the truth of it is that the plaintiff decided to become a “Day” student at the University of Southern Queensland, whose records include enrolment documentation signed by the plaintiff in June 1999 (see Exhibit 4, pp 150 & 154); the “pain diary” indicates lectures began the following month. Mr Radcliff argued that the plaintiff was unable to continue her employment, and that it was irrelevant, or, from another point of view, creditable to her, that she turned her enforced idleness to useful account. While such an approach may be open in principle, on the facts of this case, I cannot accept it. It is not clear to me that the demands of bank work were significantly different from those upon a student (the pain diary includes complaints about the arduousness of the latter for the plaintiff, bringing about the familiar unpleasant symptoms, according to her notes). In any event, I am not prepared to find the plaintiff was unable to continue at the bank on the basis of her assertion to that effect alone, which on analysis, is all the Court has. The case presents a dramatic contrast with Perez, in which Judge Hall was comfortably persuaded that the plaintiff could not work. The plaintiff has failed to prove that the accident can be blamed for her ceasing employment with the National Australia Bank. I allow the $880.00 and interest on it of $300.00, which seems to me high, but accords with Mr Howe’s invitation in his list of suggested figures, which I have marked Exhibit 20. Although Exhibit 20 made no mention of it, I took it to be common ground that 7.5 per cent of past economic loss should be allowed for past loss of superannuation, in accordance with what I was assured was practice. This produces an amount of $66.00 for the plaintiff, to which interest of $18.00 should be added.
Mr Radcliff’s submissions, Exhibit 18, suggested $75,643.00 for future economic loss (an additional $4,538.00 for future superannuation lost, being six per cent of future economic loss) against the plaintiff’s more modest claim of $50,000.00 (plus eight per cent for superannuation) in her “Further Updated Statement of Loss and Damage” signed by her on the first day of the trial. However, she sought an additional $20,000.00 for fees and anticipated text book/stationery expenses she expected to incur in pursuing her university degree. Mr Radcliff did not pursue that claim. No allowance will be made in this respect, my view being that the consequences of the accident were spent by the latter part of 1999.
Griffiths v Kerkemeyer damages were claimed in the amount of $4,400.00, before interest. I found this an unusual claim. The Further Amended Statement of Loss and Damage contains the following:
4. A. PAST GRIFFITHS –v- KERKEMEYER COMPONENT CLAIMED
(i)As a result of the accident, the Plaintiff was unable to undertake household duties such as cleaning, washing, ironing and cooking. During the first five weeks immediately following the accident, the Plaintiff received approximately 2 hours per day assistance. The Plaintiff claims a sum of $700.00 representing 2 hours per day assistance x 5 weeks.
(ii)Following this the initial period of 5 weeks, the Plaintiff continued to receive approximately 5 hours per week assistance undertaking general household duties. The Plaintiff claims the sum of $3,700.00 representing 74 weeks at $50.00 per week
$4,400.00
B. FUTURE GRIFFITHS –v- KERKEMEYER COMPONENT CLAIMED
(i)Whilst residing in China, the Plaintiff’s domestic and household duties have been undertaken by a maid. The plaintiff continues to receive a minimum of 5 hours assistance per week these duties. The Plaintiff claims a global sum of $20,000.00 for future voluntary home domestic care.
$20,000.00”
Mr Radcliff did not pursue claim B. The claim he did pursue was based on the plaintiff’s inability to pull her weight as one member of a large household presided over by Mrs Henson who expected all the “children” to contribute. In the end, it seems to have been she, rather than anyone else who filled in for the plaintiff. I am not persuaded that this was necessary. I think it was more by way of indulgence and sympathy shown to the plaintiff. In any event, I am not persuaded by the evidence that the number of hours claimed is made out. In this regard, I am content to accept Mr Howe’s suggestion in Exhibit 20 that $280.00 be allowed for past gratuitous care and assistance, carrying interest of $95.00.
The remaining item may be described as “out-of-pocket” expenses. Mr Radcliff has itemised those in Exhibit 19. It includes medical expenses or “gap” amounts paid by the plaintiff from her own resources, and like amounts paid to chiropractors and physiotherapists. It does not include anything on account of the physiotherapist, Jennifer Rennison, whose services had been authorised and were paid for by the second defendant. There is little point in including the appropriate amount only to take it out later on. The list includes pharmaceutical items purchased by the plaintiff for herself and swimming pool entrance fees, on the basis that swimming was recommended therapy for her. The only items which the plaintiff has not paid, but remains liable to pay, are for the osteopath. While I think there’s a powerful argument that the defendant ought not to have to pay for his services, which were apparently recommended and engaged by the plaintiff’s original solicitor, I have decided, in the end, to allow that item. As for the others, speaking broadly, they may be regarded as incurred consistently with Dr Irving’s advice. It is clear that he referred the plaintiff to the chiropractor, Dr Prosser, in particular. The total of the Exhibit 19 items is $4,447.50, to which Mr Radcliff suggested additions should be made for travelling expenses to medical consultations and a sum for pharmaceuticals after November 1999 but before trial, for which $20.00 per week was claimed. As to the latter, consistently with views expressed elsewhere, I make no allowance. As to the former, I understood Mr Howe to concede $500.00, if the Court got to the point of deciding there was any compensable injury. Rounding things out, I allow $6,000.00 in respect of the “out-of-pocket” expenses, inclusive of interest. Included in it is an amount of $1,328.80 in respect of which the Health Insurance Commission has given the usual notice of charge.
Summing it up, the plaintiff is entitled to judgment against the defendants for $18,589.00, being the aggregate of the following:
General damages $10,000.00
Interest on the whole of the above 950.00
Past economic loss 880.00
Interest 300.00
Past loss of superannuation 66.00
Interest 18.00
Griffiths v Kerkemeyer (past) 280.00
Interest 95.00
Special damages (out-of-pocket) including interest 6,000.00
$18,589.00
The parties will be offered the opportunity to make submissions to the Court in light of these reasons.
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