Herd v Chevalier Pty Ltd - [2009] SADC 63

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
HERD v CHEVALIER PTY LTD
[2009] SADC 63
Judgment of His Honour Judge Burley
9 June 2009
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY
DAMAGES - GENERAL PRINCIPLES - GENERAL AND SPECIAL DAMAGES
Plaintiff's claim for damages for personal injury - plaintiff carried out clerical work under a labour hire contract at defendant’s premises - plaintiff injured falling from chair - plaintiff brought action in negligence because s54 (1) of the Workers Rehabilitation & Compensation Act did not apply - whether defendant negligent - whether plaintiff contributorily negligent - quantum of claim disputed - extensive experts’ evidence considered - held, defendant’s negligence established, plaintiff not contributorily negligent - damages assessed as follows:
Non-Economic Loss: Past - $32,500.00, Future - $32,500.00; Interest on Past Non-Economic Loss - $5,600.00; Past Economic Loss and Superannuation - $250,000.00; Future Economic Loss and Superannuation - $177,000.00; Special Damages - $27,271.30; Gratuitous Services - $15,000.00; Future Medical Expenses - $5,000.00; TOTAL = $544,871.30
Mason and Cox Pty Limited v McCann (1999) 74 SASR 438; Wyong Shire Council v Shirt & Ors (1980) 146 CLR 40; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Dibbins v Dibbins (1978) 80 LSJS 165; Slattery v Beare & Ors (2001) 213 LSJS 131, considered.

HERD v CHEVALIER PTY LTD
[2009] SADC 63

The plaintiff claims damages for personal injury arising out of a work incident on 20 November 2000. At the time, the plaintiff was employed by a company called Recipes That Talk Pty Ltd. That company entered into a labour hire contract with the defendant as a result of which the plaintiff carried out clerical work at the defendant’s premises located at 27 Ridgeway Road, Elizabeth West.
It is not in dispute that on 20 November 2000 the plaintiff was injured at work. She was working at her desk when papers were blown from her desktop by a draft from a nearby air-conditioner. The chair on which she was seated at the time was an ordinary office chair which swivelled on a vertical access. The chair was on castors and so could move as freely across the surface of the office floor which consisted of ceramic tiles.
When the papers were blown off the plaintiff’s desk, she turned to her right using the swivel function of the chair. She then took her weight entirely off the chair and bent over forwards to pick up the papers on the floor. Once she had picked up the papers she then attempted to seat herself on the chair and in doing so caused the chair to move backwards in a manner unexpected by the plaintiff. I accept the plaintiff’s evidence that, without realising that the chair was moving from under her, she attempted to lower herself onto the seat of the chair but, in doing so, the chair had moved away from her such that her buttocks came into contact with the leading edge of the seat of the chair as it continued to move away from her. This resulted in the plaintiff losing her balance. She fell to the floor and in doing so struck her right elbow on the front edge of a desk which was positioned immediately behind and approximately a metre away from the desk at which the plaintiff had been seated.
The defendant conceded that the plaintiff was able to sue the defendant in negligence because the provisions of s54(1) of the Worker’s Rehabilitation & Compensation Act did not apply: Mason & Cox Pty Limited v McCann (1999) 74 SASR 438. The defendant did not formally concede that the injury sustained by the plaintiff at the work place was caused by its negligence.
However, he said during the course of his final address [T175-29]:
I am not in a position to make a formal concession as to negligence. I don’t wish to be taken as doing that. I do address Your Honour on the basis that I would find it difficult to persuade Your Honour and to mount a sustainable argument that there is no negligence.
The matters in dispute at the trial were:
(a)     whether the defendant had been negligent;
(b)     whether the plaintiff was guilty of contributory negligence; and
(c)     the quantum of the plaintiff’s claim.
The above description of the way in which the accident occurred constitutes my findings as to what occurred. I have not said specifically what caused the chair to move away from the plaintiff as she attempted to regain a seated position on the chair. The evidence is not clear in that regard. However, it seems to me that it is proper to draw the inference that as the plaintiff attempted to sit on the chair after she had picked up the papers from the floor, some part of her body, probably at the back of one or both of her legs came into contact with the leading edge of the seat of the chair. Because of the combination of castors on the chair and the hard floor surface, it took little force to move the chair. That combination of castors and a hard floor constituted the negligence of the defendant. In other words, the defendant breached the duty of care it owed to the plaintiff by requiring her to work in an office seated on a chair supported by castors on a hard floor. Expert evidence was called by the plaintiff from a Mr David Neary. It may be a matter of debate as to whether the circumstances of the accident gave rise to a need for expert evidence or whether the question of the safety of the office in which the plaintiff worked was a jury question to be determined by the facts rather than expert opinion. It may be that the two concepts overlap. In any event Mr Neary’s evidence, which I accept, was helpful in dealing with the questions of negligence and contributory negligence.
As to the law, on the question of negligence I was referred to the decision of the High Court in Wyong Shire Council v Shirt & Ors (1980) 146 CLR 40. I refer in particular to the judgment of Mason J Where His Honour said (at 44):
… prima facie a duty of care arises on the part of a defendant to a plaintiff where there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant’s position would foresee that carelessness on his part may be likely to cause damage to the plaintiff …
It is clear, and it was not suggested to the contrary, that the defendant owed to the plaintiff a duty of care to provide a safe system of work.
His Honour later said (at 47):
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
Applying these principles to the facts of this case, it is clear, that a reasonable person in the position of the defendant would have foreseen that a combination of a wheeled chair with castors on a hard floor involved a risk of injury to the plaintiff. The risk of a fall on the part of an employee when attempting to become seated on a chair with castors placed on a hard floor could easily have been avoided by the provision of a square of carpet placed on the floor at the point where an employee was seated when working at the desk. It is for these reasons that I consider that in light of my findings of fact and reliance upon the relevant legal principles, a finding of negligence against the defendant is inevitable.
I turn now to the question of contributory negligence. The decision of the High Court in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 is instructive. In that case, the respondent was the employee of the appellant and during the course of his employment he sustained a back injury. The trial judge found that the employer was negligent and that the employee was contributorily negligent. On the appeal to the High Court, the court had to deal with both of those questions.
On the question of contributory negligence, the majority (Mason, Wilson and Dawson JJ) referred (at 310) to the New South Wales statutory provision relating to contributory negligence. It is the equivalent of the corresponding South Australian provision. It provides for a reduction in damages awarded to a plaintiff as the court thinks appropriate having regard to the plaintiff’s share in the responsibility for the occurrence of damage. Their Honours then said:
A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgement, or to negligence rendering him responsible in part for the damage: see Podrebersek v Australian Iron & Steel Limited. In Podrebersek, the court said:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Limited; Smith v McIntyre and Broadhurst v Millman, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subject to comparative examination.
(Citations omitted)
These are the principles which I must apply when considering the question of whether or not the plaintiff has been guilty of contributory negligence.
Counsel for the plaintiff, Mr Telfer, contended that the plaintiff’s action, in resuming her seat on the office chair, constituted no more than inadvertence, inattention or misjudgement. Mr Hanus, counsel for the defendant contended that her conduct went beyond such a characterisation. He pointed to the fact that the plaintiff had worked in the office in the conditions which applied as at the date of the accident, for about three months. She must have been aware, he argued, that the chair was susceptible to movement from slight forces being applied to it. It was therefore incumbent upon her to take care when sitting down on the chair.
In my opinion, that contention is contrary to the approach taken by the High Court in Bankstown Foundry Pty Limited. It is clear that mere inadvertence, inattention or misjudgement will not constitute negligence on the part of the employee. When the plaintiff attempted to resume a seated position on the chair having picked up the papers from the floor, she must have, as I have said, nudged the chair, probably with the back of her knees, causing the chair to move towards the wall. In lowering her body to gain a seated position on the chair, she obviously did not notice that the chair had moved towards the wall such that when her buttocks came into contact with the leading edge of the chair, the chair moved further from her thereby causing her to lose her balance and fall to the floor. In my opinion there was nothing culpable in that conduct. At best, her failure to notice that the chair had moved constituted inadvertence, inattention or misjudgement and no more. For those reasons I consider that the defendant has failed to demonstrate that the plaintiff was guilty of contributory negligence at the time the accident occurred.
Assessment of Damages
The evidence adduced on the question of damages consisted of the testimony of the plaintiff, two reports of Dr Ghan (exhibit P3), three reports of Dr Meegan (exhibit P4), three reports of Dr Saies (exhibit P5), the report of Ms A Rinaldi (exhibit P6) and the report of Dr North (exhibit D7).
Ms Rinaldi, Dr Meegan and Dr Ghan also gave evidence at the trial.
Neither party attacked the credibility of, respectively, the witnesses called or the authors of the reports tendered. Mr Hanus did, however, submit that the plaintiff was “quite heavily focused on her condition, perhaps somewhat overly protective of her arm and perhaps somewhat overly fearful of a possibility of increased pain through movement or contact.” [T197/13]. There is some substance to this submission. I think the explanation lies, as Mr Hanus accepted, with the fact that there is a psychological overlay which has brought about this tendency. That needs to be borne in mind when considering the plaintiff’s evidence. I make it clear that I do not consider that the plaintiff deliberately attempted to mislead me when giving evidence about her condition and her concerns for the future. It appears to me that she genuinely believed what she told me about her injuries and the effects thereof during the course of her evidence. For the most part, what she has said represents an accurate description of the injury and its effects viewed from an objective stand-point.
The following narrative consists of my factual findings. The plaintiff was born in the United Kingdom on 8 March 1960. She finished secondary school in 1976 and then joined the workforce. At age 20, in 1980, she migrated to Australia. She worked at Zamels Jewellers for about 18 months. In 1985 she was involved in a motor vehicle accident and suffered a whiplash injury. In 1997 she was involved in another motor vehicle accident when she injured her left shoulder. In 1998 she underwent surgery to her left shoulder performed by Dr Saies.
The plaintiff is 49 years of age. She is married with three children aged 14, 16 and 19. Apart from the short period of employment with Zamel’s she did not seek employment in Australia until about 1999. This was with a company called Betco Promotions. She undertook part-time employment consisting of demonstrating produce in supermarkets.
In about August 2000 she gained employment with the company called Recipes That Talk Pty Ltd. That company was her employer on 20 November 2000 when the subject accident occurred. She was employed by that company on a full-time casual basis. Her employer hired her labour to the defendant Chevalier Pty Ltd. That company ran a business sometimes referred to in the evidence of Joe’s Poultry. It appears that she commenced working at the defendant’s premises shortly after she commenced employment with Recipes That Talk Pty Ltd. Her duties included the making of telephone calls to supermarkets to obtain orders for poultry to be delivered on the following day. The plaintiff filled out an order form and entered the appropriate data into the company’s computer system.
The main injury sustained by the plaintiff was to her right elbow. When she lost her balance she fell backwards and as she fell to the floor of the office her right elbow came into contact with the desk immediately behind her desk. There was only a space of about a metre between the rear of her desk and the front of the desk immediately behind her. She hit the floor heavily, landing on her bottom. The fall shocked her. She lost momentary control of her bladder. Her right elbow started to bleed. Her right buttock was sore. Another office worker, Julie, came to her assistance. She took the plaintiff to the ladies toilets and attended to her bleeding elbow. She informed another office worker, Renae, that she needed to go home to clean up. She was given permission to do so.
Having returned home to clean up, she later returned to work. She was still feeing shaky from the incident on her return. Someone in the office had made an appointment for her to see Dr Ghan, a general practitioner. Upon her return to the work place, someone put ice on her forearm and wrist, informed her of the appointment with Dr Ghan and then sent the plaintiff home. Later that day she saw Dr Ghan. At the time she experienced a lot of pain in her right elbow which was swollen. She also continued to experience pain in her right buttock. He prescribed painkillers and referred her to radiologists for x-rays to be taken.
Although there was no formal arrangement, the business at which the plaintiff was employed used to refer injured workers to Dr Ghan as a matter of course. He had not seen the plaintiff prior to 20 November but she subsequently became his general patient.
In his report of 12 June 2001 Dr Ghan stated that the plaintiff sustained:
(s)oft tissue and muscular inflammation of the right wrist; right hand; right elbow and right shoulder as well as traumatic right ulnar neurapraxia.
He also referred to operative treatment carried out by Dr Andrew Saies consisting of a right ulnar nerve transposition.
The plaintiff was off work for approximately four weeks after the accident. When she resumed work, it was for four hours a day. She explained that the limited hours were necessary because she was still experiencing pain, principally in her right arm. Her right elbow remained swollen. The plaintiff also experienced pain in the right wrist. She was unable effectively to use her right arm in the performance of her duties.
The plaintiff continued to work at Joe’s Poultry until February 2001 when she resigned. Up to that point she was still working only four hours a day but, because she was on worker’s compensation, she received the equivalent of full pay. She detected an element of resentment on the part of other employees of the fact that she was only working limited hours but receiving effectively what was full pay. This caused her to be tearful and she became depressed.
Her resignation applied to her employment with Recipes That Talk Pty Ltd. It was in this way that she ceased working at the defendant’s business. She thereafter obtained employment with a business called Uncle Tom’s Smallgoods. The job was similar to that which she had at Joe’s Poultry, but it was not quite as intensive. However, she continued to suffer pain particularly in her right elbow and her movement of the right arm was restricted. She did attempt to use her right arm. She experienced a shooting pain between the right elbow and her fingers.
Dr Ghan referred the plaintiff to Dr Saies an orthopaedic surgeon. He saw her on 30 January 2001.
The three reports of Dr Andrew Saies were admitted as a bundle and marked P4. The first is a letter of 4 February 2002 from Dr Saies to Dr Ghan in which he reported that the ulnar nerve function had made no further recovery from when he last saw her. His prognosis was quite guarded. He thought that she may not get useful recovery in the ulnar nerve. By letter dated 6 July 2005 to the plaintiff’s solicitors he advised that he saw the plaintiff on 6 July 2005. He had not previously seen her since May 2002. He agreed that the plaintiff had a complex regional pain syndrome. In his report the word “reasonable” occurs instead of “regional” but this is clearly a typographical error. He considered that the condition of the right ulnar nerve had largely resolved and that this was confirmed by objective nerve conduction studies some years prior to mid-2005.

Dr Saies’s report of 1 September 2005 is more expansive. He said that he first saw the plaintiff on 30 January 2001. She complained of pain radiating from the medial aspect of the elbow into the forearm and hand. She experienced night pain and described altered feeling in the right and little fingers of the right hand.
He referred to her past history in relation to a procedure carried out on the right shoulder by him for tendonitis and bursitis in 1998. When he saw her in January 2001 she still exhibited a restricted range of motion in the right shoulder. In January 2001 he found that the plaintiff was tender around the elbow with a full range of flexion and an extension but limitation of forearm supination. There was reduced sensation in the ring and little fingers of the right hand but no evidence of weakness in the relevant muscle. He thought that she might be experiencing medial epicondylitis. He recommended the use of a splint, that she take anti-inflammatories and he arranged for nerve condition studies to be undertaken.
Dr Saies saw the plaintiff again in late March 2001. The nerve conduction studies indicated a significant compression of the ulnar nerve. He recommended that she undergo surgical procedure consisting of ulnar nerve transposition. That operation was undertaken on 24 April 2001. At the time of surgery he found that the nerves were not normal. However, post-operatively, the plaintiff’s condition was complicated by deterioration in the function of the right ulnar nerve.
Dr Saies said that in June 2001 the plaintiff told her that pins and needles were still present and there was reduction in touch sensation in the fingers. He also found evidence of some early clawing of the right hand. He took that to mean that the non-flexors in the proximal forearm were recovering but with persistent weakness and intrinsics in the hand.
He saw the plaintiff again in August 2001. Her symptoms were worse. He arranged further nerve conduction studies. He saw her in November 2001 when the nerve conduction studies were available to him. They suggested that there was no abnormality in the ulnar nerve.
On examination in November 2001 he found “marked fixed contractors of the right and little finger PIP joints”. He said:
Overall, I made an assessment of her very poor outcome with flexion contractors of unexplained aetiology following routine transposition of the nerve and following objective documented recovery of the nerve following the transposition.
Dr Saies saw the plaintiff again in February and May 2002. By then he was unable to offer any further specific surgery or treatment. He was unable to explain the aetiology of the flexion contractors.
In Dibbins v Dibbins (1978) 80 LSJS 165 Bright J said (at 165):
This case is an example of the useful principle that where medical evidence is in conflict the primary consideration may be the credibility of the plaintiff. True, the medical specialists, with their skill and experience, can move parts of the body so as to test the range of involuntary movement. They can also, by means of diagnostic aids, detect the presence or perceive the apparent absence of physical abnormalities which might be the cause of claimed symptoms. They can also, with their knowledge of anatomy, give a valuable opinion as to whether claimed symptoms are consistent with each other or with a suggested physical cause. But ultimately we must come back to the symptoms. Of course, anatomical signs detected by the medical specialists or the absence of such signs may ten to establish that the patient is telling untruths about or is exaggerating her symptoms. But it is the symptoms that are central not the signs. I hope that I am not being unduly idiosyncratic when I say that if reliable independent evidence clearly indicates that the patient is credible, one does not disregard his or her complaints merely because the signs suggest that little or nothing is seriously wrong. Failure to recognise this simple truth has, I should think, led to the death or invalidity of many patients. Medical science has advanced very far but it is still not always capable of producing unqualified and indisputable answers.
Although this case is not precisely the same as the facts in Dibbins, I think that Bright J’s approach is the one to be taken to this aspect of the plaintiff’s case. In so doing, I find that the complication of the contracting fingers was caused in some unexplained way, at least proximately, by the injury sustained by the plaintiff on 20 November 2000.
During the course of the examination-in-chief of the plaintiff, I took the opportunity to examine both the right and left elbows of the plaintiff. I made the following note on the transcript:
I note that there appears to be swelling in the right elbow on the inside when compared with the left elbow. The skin colour around the left elbow is much more even than the skin colour around the inside of the right elbow.
My attention was also drawn to a splint worn by the plaintiff on the right hand. I made the following note:
I notice then that there is splint on the right hand which traps the ring finger and the little finger and is strapped above around the upper part of the hand. The splint part of what is worn on the right hand is underneath the little finger and the ring finger of the right hand … it keeps the two fingers both straight and immobile. [T41/1]
The plaintiff continued to suffer pain and discomfort and restriction of movement in the right elbow and hand. She was referred to Dr Meegan, an occupational physician. He diagnosed her continuing complaint as a “complex regional pain syndrome”. He prescribed painkillers which were partly successful in that they reduced pain experienced in the right hand but not in the right forearm which she described as a “burning, boring pain … along the elbow downwards”.
Since the operation in April 2001, her right elbow and forearm have remained sensitive to movement such that she keeps the forearm immobile so as to avoid the painful experience.
The plaintiff has become depressed as a result of the continued effects of her injuries. Dr Meegan referred her to Ms Ali Rinaldi, a psychologist. The object of that exercise was to obtain some assistance from Ms Rinaldi in managing the pain in her right arm. The plaintiff has found Ms Rinaldi’s assistance helpful.
The plaintiff has been unable to return to full-time employment. She has remained on worker’s compensation. She has undertaken a rehabilitation plan which involved a graduated return to the workplace.
According to the chronology handed up by Mr Telfer (the contents of which were not contested), the plaintiff commenced working at Uncle Tom’s Smallgoods on 8 February 2001. As I understand it, she did not then attempt further employment until October 2001 when she attended Craigmore Christian School for a period of four to six weeks. Her duties there were to help young children to learn to read. She worked for two hours each day, initially five days and later three days a week. After that she attended the Flinders Medical Centre Pain Clinic and towards the end of 2001 she worked at “Blackview Out of Hour Care” for a period of two weeks.
In January 2002 she first saw Dr Meegan and in February 2002 she first saw Ms Rinaldi. She then undertook further work experience at Trinity College for a period of six weeks.
In mid-2002 Dr Meegan diagnosed her as being subject to complex regional pain syndrome which was formerly known as reflex sympathetic dystrophy.
In mid-2002 she developed pain in the left elbow as a result of having to use the left arm inordinately.
In 2002 and 2003 she undertook rehabilitative employment at St Columba Primary School for two school terms and at Elizabeth Downs Primary School for two or three school terms. In 2004 she undertook similar employment at Craigmore South Primary School for one school term. That marked the end of the rehabilitative scheme undertaken as part of the worker’s compensation procedures. Nevertheless she has continued to work at Craigmore South Primary School on an unpaid basis to the present time. She assists with the children’s reading program. She continues to work for two hours a day three days a week. She said in evidence, and I accept, that she is not able to do more work than that because the minor physical activity associated with her work at the school tires her out. Any psychical contact with the children can be painful and she has to guard against it. She still suffers from pain associated with “tennis elbow” in her left hand because of the overuse of that limb.
All of the rehabilitative employment has been unpaid.
Since the plaintiff is left-handed, her ability to write has not been compromised. It is probably more correct to say that the plaintiff is ambidextrous, because she would use her right arm for operating a computer mouse and for ironing and, when she played sport, for any sport that required use of a particular arm.
The plaintiff stated that she had previous injuries to her neck and to her left shoulder. The neck injury resolved but she was left with some residual impairment in relation to the left shoulder. This was noted by Dr Saies in his report of 1 September 2005. In 1998 he performed a subacromial decompression to the left shoulder. He noted that when he saw her as a result of this accident she still exhibited a restrictive range of motion in the left shoulder. Neither the plaintiff’s evidence not any of the medical evidence suggests that any lack of movement in the left shoulder that the plaintiff now has contributed to her continuing inability to resume fulltime employment.
The plaintiff said, and I accept, that since the accident she has had to carry out most tasks in a one-handed fashion. She has been supplied with various devices help her with tasks such as peeling vegetables and removing the lids from jars. She washes and dries dishes, but it is a slow and imperfect process.
The plaintiff is unable to do most of the household cleaning and because of that has been reliant upon her husband to do such things as vacuuming and cleaning the bathroom and toilet. Since he retired in early 2007 he has performed most of the household work.
The plaintiff’s social life has been curtailed since the accident. For some time she tended to withdraw from her friends. She felt awkward if, for example, she went out for a meal. She would have to have her food cut up so that she could eat it one- handed. However, approximately 18 months to two years prior to trial, she re-established her social contact with the encouragement of Ms Rinaldi.
She has suffered depression which has diminished with the re-establishment of social contact with friends. She was on medication for depression until early in 2008 when she stopped taking the medication because she was feeling better. However, after an unspecified period, she resumed taking the medication because the depression resumed.
The plaintiff accepted that after the injury to her left shoulder she would not have been able to undertake repetitive manual process work. To that extent she had a partial residual disability arising from the injury to her shoulder.
When the plaintiff finished work with Zamels it was not until some time during the financial year ended 30 June 2000 that she re-entered the paid workforce. I infer that during this period of just under 20 years she remained home to keep house and subsequently, when they arrived, to look after the children.
The schoolwork undertaken by the plaintiff since the accident consists of part of the duties of a school services officer. The type of work performed by the plaintiff has been confined to assisting children with learning to read. The duties of a school services officer are wider than that including typing and doing reception work. The co-ordinator of school services at Craigmore South Primary School is supportive of the plaintiff. She has indicated that if a full-time paid position as a school services officer became available, she would encourage the plaintiff to apply for it. This is evident from the evidence given by the plaintiff during the course of cross-examination on this topic. Apparently with the encouragement of the co-ordinator, the plaintiff took steps to apply to the Education Department for a position as a schools services officer. Although the evidence is not clear, it appears that the plaintiff has taken at least initial steps to apply for such employment by requesting her doctor to fill out a form in relation to her medical condition. The plaintiff has not gained such a position, but it is not clear whether that is due to the Education Department’s assessment that she is unable to fulfil the requirements of such a position or whether the application itself has not been adequately pursued or that no positions are available in any event.
When cross-examined about her ability to perform her previous employment immediately after her return to work, she said that she was able to cope with the tasks of the job other than keying in information into the computer. The plaintiff accepted that she could do such work immediately after the accident but she made the point that she could not do the work after the operation carried out by Dr Saies because the condition of her arm worsened after that operation.
The plaintiff, at the time of trial, was undertaking two hours work per day at the school three days a week. She said in evidence that this was all that she was capable of based on how she feels at the end of the day. She also relies on the recommendation of Dr Ghan as to the extent to which she could work. She works on alternate days so that there is a gap between periods of work.
The plaintiff was still in receipt of worker’s compensation at the time of trial. She agreed that, apart from a return to work for a few weeks shortly after the incident, she had not made any attempts since the incident in November 2000 to try to obtain paid employment. Such work that she has performed since the end of 2000 has been the rehabilitation work organised by WorkCover.
The plaintiff called Dr Ghan, her general practitioner. Exhibit P3 consists of Dr Ghan’s report of 12 June 2001 to the worker’s compensation insurer and a copy of a letter dated 4 March 2002 to Dr Meegan. In his report he described the injury sustained by the plaintiff as “(s)oft tissue and muscular inflammation of the right wrist; right hand’ right elbow and right shoulder as well as traumatic right ulnar neurapraxia”. He referred to an operation performed by Dr Andrew Saies on 24 April 2001 described as right ulnar nerve transposition. He reported that the plaintiff continued to have difficulty with movement of her elbow. He considered that she was not fit to perform normal duties.
In evidence he said that he first saw the plaintiff on 20 November 2000. He has continued to treat the plaintiff for her injuries. He was of the view that for the last few years there has been very little improvement in her condition. In conjunction with Ms Rinaldi he has treated the plaintiff for depression.
At one stage Dr Ghan thought that the plaintiff should undergo a driving assessment test, which the plaintiff reluctantly agreed to do. She managed to pass the assessment.
Dr Ghan considers that the plaintiff has limited capacity for paid work. He thought that she adapted quite well to her home duties.
As of May 2004 he considered that she was able to work for two hours per day three days a week provided that she avoided lifting with her right arm items over two kilograms in weight. He said that she should also avoid tight gripping and repetitive wrist and elbow movement in both the left and right arms. In evidence he said that he held the same opinion then as he did in May 2004. Dr Ghan was of the view that it was fairly unlikely that the plaintiff’s ability to work in the future was likely to change.
Dr Ghan last saw the plaintiff on 6 September 2008. He noted that she was using a splint on the right hand fingers most of the time. He said that she was able to flex the fingers and straighten them with some difficulty but that she had to use the splint all the time to help to keep the fingers straight.
He noted that the right elbow was still very painful most of the time and that she had a 30^O fixed flexion deformity. That meant that she was unable to straighten the right elbow. He did not think that further occupational therapy would assist in restoring elbow and finger movement. Dr Ghan was of the view that the pain restriction and movement and disabilities were now permanent.
He thought that she coped with her injuries well. When asked about her ability to cope he said [T167/38]:
In one way she has got no choice and in one way, instead of saying “why me” she just pushes herself through.
Dr Ghan also gave evidence about the plaintiff’s depression. When asked whether it contributed to her limitations in work capacity he said [T169/2]:
Not in this case. I think in this case, to me, the physical condition has actually played a more predominant role than sort of like her state of mind. She is not depressed because things (sic) she cannot do but I think the physical condition itself, to me quite clearly, why she is not able to do certain things –
He reviewed her for depression approximately every three months and it has fluctuated but her physical condition has remained stable.
The plaintiff called Dr John Meegan. His three reports were admitted as a bundle and marked exhibit P4. In his report of 5 August 2002 he stated that he first saw the plaintiff on 7 January 2002 on the referral of Dr Ghan. He took her history consistent with the plaintiff’s evidence and the other medical evidence. He referred the plaintiff to Ms Rinaldi for pain management. He prescribed medication for pain relief.
When he saw the plaintiff in February 2002, she informed him that she had experienced good relief of right elbow pain but she complained of “significant sedation” which caused Dr Meegan to reduce the medicinal dosage. He was of the view that she experienced complex regional pain syndrome and he advised her in relation to the medication that she might take for this condition.
In early 2002 Dr Meegan thought that “her return to work prospects were bleak”. He referred to the schoolwork undertaken by the plaintiff and the difficulty she was experiencing with that work. He noted that she had trouble with children grabbing or knocking her arm and that the increased use of the arm increased the pain experienced by her. She suffered from sleep disturbance and depression. This necessitated a decrease in the hours worked from two hours five days a week to two hours three days a week.
The plaintiff’s complaints to Dr Meegan were consistent with what she said in evidence.
In his first report Dr Meegan referred to the plaintiff’s attendance at Flinders Medical Centre Pain Unit. There was no evidence at trial given by any of the practitioners who may have seen the plaintiff at the Pain Unit.
In his second report, dated 25 September 2002, Dr Meegan noted that the plaintiff experienced left lateral epicondylitis. He noted that this further increased her disabilities. I accept the plaintiff’s evidence that this condition arose because of overuse of the left arm caused by the restricted use of the right arm.
Dr Meegan’s third report is dated 30 June 2005. It appears from that report that he last saw he plaintiff in October 2003.
During the course of his evidence Dr Meegan explained the condition of complex regional pain syndrome type 2. He said [T104/24]:
It’s a syndromal diagnosis, meaning a diagnosis by description insofar as it has a constellation of symptoms and signs as defined by the international association of a study of pain and what was previously known as either reflex sympathetic dystrophy or causal myalgia.

He later said [T105/10]:
It is a collection of symptoms and signs which can vary in severity and is classified as type 1 and type 2, type 2 being the type that involves the nerve, type 1 being one where there is no nerve involvement, and it can vary from being very subtle and mild through to advanced and disabling. The early, more subtle features are abnormalities in pain processing which declare themselves as hypersensitivity to normal painful stimuli ,which is termed a hyperalgesia or such a sensitivity to all stimuli that there is allodynia, which is a painful sensation even with a non-painful stimulus, and an association with those features in the early stages there are changes to do with these autonomic functions or the sympathetic nervous system which controls autonomic functions. Usually in a limb is where the condition occurs. So, for example, there’s changes in sweating, blood flow, temperature of a limb so the limb can go hot and cold, change colour, become sweaty or dry and often there is such exquisite pain in the limb that they prefer to avoid using it. And with time, if the condition progresses, it can lead to contracture in usually the distal part of the limb, the hands and the fingers, but it can involve proximally, the wrist and elbow and shoulder and the arm or the toes up through the leg, if it affects the leg, and it can, on occasions, spread to the other limb on the other side or to the upper or lower limb, depending on where it started. It can actually spread to all four limbs in some case.
It is clear from his evidence, and I accept, that the onset of this syndrome was caused by a combination of the injury itself followed by the subsequent surgery performed by Dr Saies. By that I do not mean to suggest that there was anything untoward about the surgery performed by Dr Saies. Rather the onset of increased pain and disability post-operatively had, as Dr Saies described, an “unexplained aetiology”.
Dr Meegan was of the view, which I accept, that there was only a “fairly low” prospect of the plaintiff’s condition improving.
When he last saw the plaintiff in June 2005 he considered that her condition was stable and that she would suffer similar symptoms and restrictions for the foreseeable future.
The further report, dated 17 April 2003, of Dr Meegan was tendered during the trial. It is exhibit P9. In his report Dr Meegan said that he saw the plaintiff on 17 April. He noted that he had follow up treatment at the Flinders Pain Unit, which proved to be unsuccessful. On examination he found marked restriction of internal and external rotation in the right shoulder. So far as her right elbow is concerned he found marked allodynia and hyperalgesia at the site of the ulnar nerve transposition. He found limitations in movement in the right wrist and the right fingers. Dr Meegan thought that she had lost 40% full efficient use of the right arm as a whole taking into account both the right shoulder and elbow conditions. The left lateral epicondylitis has left with her a loss of 10% function of the left arm at or below the elbow.
Dr Meegan was cross-examined about the interrelationship of psychological and organic factors concerning the plaintiff’s residual ability to work. He agreed that when he assessed the plaintiff’s ability to return to work as at mid-2005, he took into account both the physical and psychological factors when offering the opinion that her prospects of being able to return to the workforce were minimal. He agreed in cross-examination that if the psychological factors, namely the depression, had resolved, this would be a positive factor in relation to her return to work in the future.
The plaintiff called Ms Ali Rinaldi who is a psychologist. Her report is exhibit P6. She first saw the plaintiff in January 2002. She took a history largely consistent with the plaintiff’s evidence and the evidence of the other medical witnesses, although she refers to the office chair used by the plaintiff as having “collapsed”. Nothing turns on this discrepancy. Ms Rinaldi found significant depressive symptomatology within a moderate range. She said that the plaintiff presented with adjustment disorder with mixed anxiety and depressed mood. In her report she said (at paragraph one on the final page):
This diagnosis is made when significant depressive and anxious symptoms are found to be apparent to the extent that they undermine usual function (work or social) that had developed in response to a significant stressor. That stressor has been identified as Ms Herd’s work-related injury, the pain associated with such and the resultant pain on her functional capacity. The manifestation of depressive symptoms tends to be closely related to Ms Herd’s pain level and associated symptoms of her condition. This has been apparent through the course of our consultations.
Since the preparation of the report Ms Rinaldi has seen the plaintiff on a regular basis, initially monthly then two monthly, three monthly and most recently six monthly. When she gave evidence at trial she said that the plaintiff’s psychological condition had largely resolved. She said that resolution had occurred within the 12 – 18 months preceding trial.
The only evidence adduced by the defendant was documentary. Mr Hanus tendered the report of Dr Brian North (exhibit D7). Dr North is a neurosurgeon. He saw the plaintiff on 23 February 2005. He took a history largely consistent with the evidence given by the plaintiff and the other medical practitioners. Dr North stated in his report of February 2005 that she had the physical capacity for work on a full-time basis both in respect of her pre-accident employment and the school support officer work undertaken by her subsequent to the accident.
In addition to Dr North’s report, Mr Hanus also tendered an extract from the School Service Officers (Government Schools) Award (exhibit D 13).
Whilst I accept that Mr North genuinely held the opinions referred to in his report, I do not think they should be preferred to the opinions of Dr Meegan, Dr Saies and Dr Ghan. Dr Meegan, in particular, treated the plaintiff over a long period of time and has, within his report and in the course of his evidence, articulated in a detailed way the basis upon which he says that the chances of the plaintiff returning to the workforce are limited. Mr North’s opinion, contains the proviso that it would be necessary to reassure the plaintiff and encourage her to move the affected limb as much as possible. Dr Meegan, and to a lesser extent Dr Ghan dealt with this question in much more detail than Mr North and I find their respective explanations convincing.
An actuarial certificate of Bretton Watson Pty Ltd dated 29 October 2008 was tendered by consent and marked P11. It provides discount rates of both 3% and 5%. The parties have agreed that the 3% interest rate is the appropriate one for the purposes of calculation in this case.
Mr Telfer also handed up a schedule of past economic loss. It is exhibit P12. The defendant does not dispute the quantum of the figures contained in the schedule. The figures contained in the schedule include taxation. The parties agree that that is the appropriate basis upon which to assess damages for past economic loss in circumstances where the plaintiff has been paid worker’s compensation. With the agreement of counsel I noted the following [T171/26]:
... that taking a worker identical to the plaintiff, continuing in the employment in which she was engaged at the time of the accident, if that notional worker had continued in such employment from 20 November 2000 to the present date, then the gross figures would be as shown in the schedule [P12].
The schedule also contains a claim for loss of superannuation at 9% amounting to $22,415.18. The total of the claim for economic loss up to the date of trial is $271,472.84.
It is also agreed that the net current notional weekly earnings of the plaintiff would, if she had remained in the same employment, have been $666.60. It is this figure which the plaintiff advances in relation to the calculation of her claim for future economic loss.
The parties also agreed that the superannuation component of future economic loss is to be calculated by reference to the notional employer’s contribution to superannuation of 9%.
The quantum of special damages has been agreed in the sum of $27,271.30.
Both parties agree that the assessment of damages is to be carried out on the basis of the principles that applied prior to the 2002 amendments to what is now referred to as the Civil Liability Act.
As to the principles relating to an assessment of damages, Mr Hanus referred me to the decision of Smith DCJ in Slattery v Beare & Ors (2001) 213 LSJS 131 at 169 et seq. I have derived a great deal of assistance from that case. I accept it as an authoritative exposition of the way in which damages for personal injury are to be assessed prior to the amendments of the Wrongs Act in 2002. Rather than footnote every incorporation of Judge Smith’s reasoning into these reasons, it is sufficient to say that I have followed closely the authorities to which he has referred and his explanation of the effect of those authorities to the extent that they are applicable to the assessment of damages in this case.
Non-Economic Loss
With the exception of the injury to the right elbow, the pain and discomfort experienced by the plaintiff when she fell to the floor was of a relatively short duration. Recovery from the minor aspects of her injuries must have occurred within a matter of weeks. However, it is clear that the ulnar nerve in the right elbow was affected when her right elbow came into contact with the front of the desk immediately behind her. This constituted a painful and continuing injury which, unfortunately, after operative intervention, became worse. The whole of her arm is now affected from the shoulder to the fingertips. She has experienced pain in the right elbow almost continuously from the date of the accident to the date of trial, a period of eight years. As a result, she became depressed over a number of years, although that aspect of her condition has largely resolved.
The medical evidence suggests that the pain, discomfort and disability that the plaintiff has suffered in the past will continue indefinitely into the future. She has had and will continue to have very little use of the right arm which results in the daily inconvenience of having to carry out most tasks in a one-handed fashion. She has been and will continue to be vulnerable to physical contact with other persons, particularly the children with whom she comes in contact at school. Her social life has been restricted although she has made attempts to re-engage in social contact with friends. Whilst the condition of her right arm is far from the worst of injuries that might be sustained it has been and will continue to be a significant injury markedly affecting her enjoyment of the amenities of life. I consider that an award of $65,000.00 for non-economic loss is appropriate. Mr Telfer contended, and I agree, that half of that sum should be attributed to the past. I did not understand Mr Hanus to have contended to the contrary.
Interest on Past Non-Economic Loss
This component is dealt with at [159] of Slattery v Beare. I think it appropriate to award interest calculated from the date of the accident to the date of judgment. The rate of interest is 4% and the period of the interest is eight and a half years. The resulting sum must be divided by two to reflect the fact that the loss has accrued progressively over the eight and a half years since the date of the accident. I award the sum of $5,600.00 for interest on past non-economic loss.
Past Economic Loss
My task in relation to this aspect of the assessment is “to examine the known earning history [of the plaintiff] and make some predictions as to what might have come to pass” in the eight years since the accident.
Mr Telfer relied upon a schedule of past economic loss which was admitted as exhibit P12. The plaintiff’s claim in this respect is based on the weekly payments of compensation made by the worker’s compensation insurers from the date of the accident to the date of judgment to which has been added the 20% “shortfall” which applied from year two. These two sums total about $252,000.00 to early June 2009. Added to that is a claim for lost superannuation being the equivalent of a 9% contribution by the employer. Loss of this benefit could have been discretely assessed, but both counsel were content to add the superannuation contribution to the wages component for past (and future) economic loss. This claim amounts to nearly $28,000.00. The quantum of the claim, in round figures, is therefore $280,000.00. It is the plaintiff’s contention that this amount represents a reasonable valuation of the loss of past and superannuation earnings sustained by the plaintiff since the date of the accident to the date of judgment. Mr Hanus, for the defendant submitted that the claim was subject to a number of deductions.
The employment history of the plaintiff has already been referred to by me. After a gap of approximately 20 years, the plaintiff re-entered the workforce a relatively short period of time before the occurrence of this accident. Her return to the workforce coincided with the fact that her children were growing up and needed less immediate attention at home. She said in her evidence that she proposed to continue in the fulltime workforce for the foreseeable future. Her evidence does not permit me to be precise about the length of time she would have remained in the workforce but for the accident, but I think it reasonable to infer that she would have remained in the fulltime workforce at least up to the date of the trial and probably for a number of years beyond that time.
The plaintiff was born on 8 March 1960. She was 48 at the date of trial.
Mr Hanus submitted that the plaintiff retained a residual work capacity. This by itself does not necessarily lead to a reduction in the total loss which has accrued over the period of eight years. However, Mr Hanus submitted that the plaintiff did not make a sufficient attempt to obtain paid employment. She was provided with unpaid employment by the worker’s compensation insurers and commenced the process of a job application as a school services officer but, he submitted, she did not adequately follow up that application nor make any other application.
There are two aspects to the submission: first, whether the plaintiff had a residual capacity for work; and second, whether work might have been available to her. No evidence was called by either party as to what work, if any, might have been available to the plaintiff if she possessed a residual capacity for work. As to residual capacity, any findings I make in that regard must, in my opinion, be based upon the evidence of the plaintiff herself and of the medical witnesses.
Before turning to the facts I should mention some of the cases relating to how residual earning capacity is to be dealt with. What follows applies both to past and future loss of earnings. I must be careful to ascertain whether or not the residual earning capacity is, in reality, illusory. For example, the type of employment to be undertaken by the plaintiff may require a sympathetic employer. This was dealt with by King CJ Gibson v BHP (1985) 120 LSJS 458 at 465-6 where he said:
I am bound to say that it seems to me that the valuation of the appellant’s residual earning capacity at $243.50 per week is quite unrealistic. That is the amount which he was able to earn at the job which was tailored for him at the instance of the respondent’s welfare officer. It was provided for him by reason of the policy, or sense of obligation, of the respondent. In the light of the appellant’s background, however, and his lack of education and clerical skill and experience, it is impossible to believe that he could have obtained and held such a job in competition with others possessing superior education skills and experience. He could not have obtained such a job on the general labour market nor have expected to hold it against competition. It was dependent for the job entirely upon the beneficence of his employer. A change of policy or attitude on the part of the employer would have deprived him of the job. I think therefore that the starting point for his Honour’s calculation was wrong. But even if the starting point can be accepted, his Honour was in error, in my opinion, in failing to take into account a very important aspect of the appellant’s loss to which he himself had alluded earlier in the judgment. His Honour expressly found that many jobs were closed to the appellant and that he would find it extremely difficult to get work with any employer other than the respondent. This important factor is not reflected in the figure at which his Honour arrived.
A further case of some assistance is the decision of Wade v Allsopp (1976) 10 ALR 353 where Stephen J said (at 361):
... the process of selecting one from a number of applicants for employment is, on each occasion, an all or nothing affair in which the applicant with diminished capacity may each time be wholly unsuccessful.
Turning now to the facts, I think it is clear that up to the time of the nerve transposition operation in April 2001, the plaintiff had a discernible residual capacity for work. She had returned to her original employment (albeit on worker’s compensation) and, but for keying in information into the computer, she was able to carry out most of the functions of her previous employment. However, after April 2001, her condition deteriorated considerably. When she did resume unpaid work at schools arranged by the worker’s compensation insurer, she was unable to cope with the daily work, even for limited periods. She had to reduce the number of days worked from five to two so that she could have a 24 hour break between periods of employment. I accept that she made a genuine attempt to undertake employment for five days in a row as originally arranged but it is clear, and I so find, that she was not up to the task.
The medical evidence is to the effect that she is very limited in her work capacity and has been so limited since after April 2001. In my opinion, she was, after April 2001, only capable of work in a protected environment. Such work was not available to her, other than to the extent of the unpaid work arranged by the worker’s compensation insurer, from April 2001 to the date of trial. I do not think that any award for past economic loss should be reduced on account of failure on the part of the plaintiff to exploit a residual capacity for work.
I should mention that on the question of residual work capacity, Mr Hanus submitted that, by reference to the School Services Officers Award (exhibit D13) an approximate value of the residual working capacity retained by the plaintiff was about $150.00 per week. I do not think that this aspect of the assessment admits of such precision. The fact is, and I so find, that the plaintiff never undertook all of the duties of a school services officer. Consequently there has been no comparison of like with like.
Mr Hanus also submitted that there should be a deduction to allow for the fact that, had the accident not occurred, the plaintiff might not, in any event, have remained in full-time employment for eight years after the accident. The facts in relation to this question are somewhat unclear. There was indirect evidence that the business known as Joe’s Poultry ceased to operate. If that occurred, it is not clear when it occurred. Photographs of the premises were taken in the year 2004 and Mr Hanus suggested I could infer that, given the state of those premises, the business had ceased to operate from those premises some time prior to the time at which the photographs were taken. He submitted that I should infer that the plaintiff’s employer, Recipes That Talk Pty Ltd, may not have been able to supply work to the plaintiff by way of labour hire continuously for the eight year period prior to the trial. I think there is some substance in this contention. It was apparent from Mr Telfer’s opening that a Ms Pisano was to be called. Apparently she was an officer of the plaintiff’s employer and she may have been able to give evidence as to the availability of work to the plaintiff had the plaintiff not been injured in November 2000. That did not transpire. Consequently, the position as to availability of work to the plaintiff for the eight years prior to the trial is uncertain. That uncertainty must necessarily lead to a deduction from the gross amount of the damages claimed for past loss of earning capacity.

I must nevertheless take into account the positive factors relating to this aspect of the plaintiff’s claim. Had she not been injured, and had she not been able to obtain employment from Recipes That Talk Pty Ltd, she was still a healthy and capable person who could have looked for similar paid work elsewhere. Thus, in my opinion, any allowance for the unavailability of work during the relevant eight year period must result in only a moderate deduction from the gross sum.
In rejecting Mr Hanus’s argument relating to a residual capacity for work, it follows that the only deduction that I am prepared to make from the gross amount of claim for past loss of earning capacity is to reflect that, had the accident not occurred, the plaintiff may not in any event have been in full-time employment for the eight years prior to the trial.
That must be balanced by a finding that the plaintiff, as a relatively young and active woman, would have remained in good health and would have sought out and probably obtained other employment. I think a deduction of $30,000.00 adequately reflects this contingency.
There are no other deductions properly to be made from the gross sum claimed by the plaintiff. I would therefore, in round figures, award $250,000.00 for past loss of earning capacity and loss of employer superannuation contributions.
Both parties agreed that because the plaintiff had received the equivalent in worker’s compensation payments, no interest is payable on these aspects of the plaintiff’s claim.
Future Loss Of Earning Capacity
When dealing with the assessment of past economic loss I set out my finding that after the operation in April 2001, the plaintiff was only capable of working in a protected environment or sympathetic employment. This considerable limitation on her ability to work will, in my opinion, continue into the future, but it is possible that her condition, and therefore her residue working capacity, may improve. It is impossible to be precise. In addition, no precise finding may be made as to when the plaintiff would have ceased full-time work if the injury to her right elbow had not occurred. In that regard all that can be said is that there was a reasonable likelihood that the Plaintiff would have continued in full‑time employment, if it had remained available to her, until age 55 to 65. As with the assessment of past loss of earning capacity, allowance must be made for the fact that full-time work may have not been available to the plaintiff for all of the period after the trial up to the time when she would have ceased work. Given the uncertainties as to the availability of employment generally in the future, I consider that this is a more adverse contingency than was applicable to the assessment of the past economic loss.
Further, I consider that the plaintiff will be able to concentrate better on using what residual capacity to work she has and, consequently, allowance should be made for this factor in the assessment of future economic loss to a greater degree than that which applied to the assessment of past economic loss.
It is agreed that the current net weekly earnings payable to the plaintiff, had she continued in her employment, was just under $670.00. This figure should be reduced to take account of residual working capacity. I think it appropriate given my findings as to the nature and extent of the plaintiff’s injury, particularly to her right arm to reduce this figure to the sum of $500.00. Her superannuation contribution rate has been agreed at 9%. When the net notional earnings are added to the superannuation a weekly figure of approximately $545.00 is reached. To capitalise this figure, the discount rate is agreed at 3%. I think it appropriate to make a calculation to age 60 to take account of the uncertainties as to the length of time the Plaintiff would have worked until retirement. The multiplier is therefore $498.00. That results in a product of $226,590.00. I consider that the other reduction applicable to this aspect of the assessment is a deduction to allow for the fact full-time work may not have been available to the plaintiff for the full period up to the date of her retirement. In my opinion the uncertainties are such that a significant deduction of about $50,000.00 should be made. I would therefore allow, in round figures, damages for future loss of earning capacity and superannuation in the sum of $177,000.00. No interest is payable on a future component of damages.
Special Damages
The quantum of past special damages has been agreed in the sum of $27,271.30. No interest is payable because the accounts have been paid by WorkCover. I award that sum.
Gratuitous Services
The only evidence called in support of such a claim is the evidence of the plaintiff whereby she said that since the incident, and in particular since the operation in April 2001, her husband has had to do most, if not all, of the heavier housework. He has been retired for a number of years. Most household tasks require the use of two arms for the work to be effectively carried out. I accept the plaintiff’s evidence that her husband has made, and will continue to make, a considerable contribution to the household work. In the absence of detailed evidence, the award should be modest. I would allow the sum of $15,000 for past and future, including interest on the past component.
Future Medical Expenses
Both parties accept that the need for medical treatment and medication has diminished considerably over the past few years and that that situation will continue into the future. I think an award of $5,000 for this component is appropriate.
In summary, my assessment is as follows:
Non-Economic Loss:
                 -       Past   $    32,500.00
                 -       Future  $    32,500.00
                 Interest on Past Non-Economic Loss                 $     5,600.00
                 Past Economic Loss and Superannuation           $ 250,000.00
                 Future Economic Loss and Superannuation        $ 177,000.00
                 Special Damages  $    27,271.30
                 Gratuitous Services  $    15,000.00
Future Medical Expenses  $     5,000.00
TOTAL  $ 544,871.30
I will hear the parties as to entry of judgment and as to costs.