Howe v Matson and Gould-Hurst No. DCCIV-00-1522

ANGELA HOWE V LUKE JAMES MATSON
AND SARA NAOMI GOULD-HURST
[2001] SADC 13

Judge Noblet
Civil

In this action the plaintiff seeks a declaratory judgment determining that she is entitled to recover damages, an interim assessment of damages pursuant to s.38 of the District Court Act, an order that the defendants pay or cause to be paid interim payments on account of damages to be assessed until further order, costs and interest. The plaintiff does not seek any award for non-economic loss.
The plaintiff was born on 15 July 1981. At the time of the accident to which this claim relates, she was living with her parents and her three sisters at Mount Pleasant, about 60 kilometres from Adelaide. Her parents ran a mud brick business from their home. The plaintiff used to assist in the business from time to time. She had a great love of animals and people often brought injured animals to her to care for. Over a period of time, she developed a large and varied menagerie, including possums, fowls, pigeons and other birds, tortoises, fish and 15 or 20 orphan lambs that she had reared by hand.
On 12 January 1998, the plaintiff was a passenger in a vehicle driven by the first defendant when it came into collision with a vehicle driven by the second defendant. As a consequence of the collision, the plaintiff suffered:-

·....... a closed head injury with subarachnoid haematoma which caused a brain injury;

intra-abdominal injuries, including a splenic tear, a non-perfusing right kidney upper pole, a large right retroperitoneal haematoma and right haemopnuemothorax;
orthopaedic injuries, including a lateral compressive injury to her pelvis comprising fractures of the left pubic rami and a fracture to the left sacral ala resulting in pelvic ring disruption, fractures to her ribs and injuries to her neck and back.

The plaintiff underwent an emergency splenectomy due to uncontrolled bleeding from her spleen. Her fractured pelvis was treated by placing her in traction for six weeks. She required drains in her chest because of a build-up of fluid in her lungs. She was discharged from the Royal Adelaide Hospital on 4 February 1998.
The plaintiff claims that she continues to suffer:-

·....... the consequences of the severe closed head injury, including severe headaches, dizziness, distorted vision, severe fatigue, persistent nausea and an inability to concentrate;

back and neck pain and difficulty sleeping; and
an immune deficiency resulting from removal of her spleen, resulting in frequent illness.

At the time of the accident, the plaintiff was on school holidays, having completed Year 11 in 1997. In about April 1998, she attempted to return to school but she was unable to continue her schooling because of her injuries. She has not attempted to undertake paid employment and she claims to have suffered a total loss of earning capacity up to the date of trial. She claims that further rehabilitation will be required before any assessment of her future capacity to work can be made.
The defendants initially claimed that at the time of the collision the plaintiff was not wearing a properly adjusted and securely fastened seat belt. At the commencement of the second day of the three day trial, the defendants withdrew that claim and conceded the issue of liability. Given what I had been told about the evidence that was to be called by the plaintiff and the defendants regarding the seat belt issue, I am amazed that the claim was ever made.
Not only do the defendants admit liability, they also admit:-

·....... the injuries suffered by the plaintiff in the accident as set out above;

the medical treatment provided to the plaintiff in respect of those injuries; and
that there is no question regarding the credibility of the plaintiff and her witnesses.

Many medical reports were tendered without the authors being required to give evidence in person. Evidence was given by the plaintiff, her parents, her older sister, her former school teacher and by Mr Andrew Rothwell, a clinical neuropsychologist, and by Dr J.L. Crompton, a neuro-ophthalmologist.
Several different reasons were given in the medical reports and the evidence of Mr Rothwell and Dr Crompton as to the possible causes of the plaintiff’s ongoing problems some three years after the accident. They include:-

·....... uncompensated left labyrinthine hypo function (Dr Tomich, an otorhinolaryngologist);

vestibular ocular reflex overload (Dr Crompton);
a brain injury, possibly mild and possibly severe (Mr Rothwell);
post concussion syndrome (Dr Anastassiadis, [a consultant physician in rehabilitation medicine], Dr Sutherland [orthopaedic surgeon], Dr Hay [consultant psychiatrist], and Mr Rothwell);
pain disorder (Mr Rothwell);
phobic postural vertigo (Dr Tomich); and
ongoing generalised musculo-skeletal aches and pains (Dr Sutherland).

It may be that two or more of these possible causes may, after further investigation, be found to apply. It is not necessary for me to make any definitive decision as to which of these possible causes are to be preferred. This is an application only for a declaratory order and interim damages. All I need to be satisfied of, in respect of the claim for interim payments in the future, is that the plaintiff continues to suffer various medical problems that clearly arise out of the accident, and that further investigations, and possible further treatment, are required in order to assist her to resume a normal and healthy life. I am so satisfied.
Having said that, I place on record that I found the evidence and report of Dr Crompton to be most compelling in relation to the consequences of the closed head injury. In his report, Dr Crompton said this:-
“Miss Howe’s symptoms are unusual but I have seen more than a dozen patients in the last 20 years of neuro-ophthalmic practice with similar symptoms. The eye and neck muscles are potent sources of signals to the balance centre and their input is integrated with vestibular (inner ear) input to help one maintain a sense of balance. When the vestibular system is damaged, eg in a close head injury, or when the vestibular/brain stem connections are damaged, then one finds the symptomatology as described by Miss Howe of intolerance of moving images and excess “noise” in the peripheral field that seems to cause vestibular ocular reflex overload that then produces the symptoms of disequilibrium and hence nausea. It has been my experience that all patients slowly improve and indeed, I do not recall any patient that had these symptoms on a permanent basis. When clusters of nerve fibres that run in parallel are damaged, one can get cross-talk (ephaptic transmission) with inappropriate messages being sent, much as in telephone lines in parallel for too far can lead to “cross-talk”. Some people respond to neuro-physiotherapy techniques and I understand Ms Sharpe is providing this for her, whilst other simply get better with the passage of time;”
Dr Crompton concluded that the plaintiff requires urgent neuro-psychological assessment and treatment but that her neuro-ophthalmic symptomatology is not stable and it is unlikely that it will be stable for some years.
There are four heads of damage in respect of which the plaintiff seeks damages for the period between the accident and the present time: special damages, the cost of travel, gratuitous services and loss of earning capacity. I turn now to deal with each of them separately.
Special damages were agreed by the parties as to amounts totalling $8,170.63. The defendants were not prepared to agree special damages for chiropractic services, associated x-rays and the services of an osteopath, amounting to $1,089.60 in total. The defendants claim that there was insufficient evidence as to the need for these services and as to who recommended them. The plaintiff and her mother both gave evidence that these services were recommended by one or other of the plaintiff’s general practitioners. There was no evidence to the contrary. I therefore have no difficulty in adding $1089.60 to the amount agreed, which produces a total for special damages of $9,260.23.
The claim in respect of travel is not disputed by the defendants except as to quantum. It has three components. The first is the period during which the plaintiff was in the Royal Adelaide Hospital. The parties agree that the total distance travelled by her parents during this period was 1,900 kilometres. The second is the period between 4 February 1998, when the plaintiff was discharged from hospital, and August 1998 when the plaintiff and her family moved from Mount Pleasant to Mildura. This claim relates to distance travelled by the plaintiff’s parents in taking the plaintiff from Mount Pleasant to various medical appointments in Adelaide, and picking her up from school. The claim for this period is 1,691 kilometres. The third period is from August 1998 to the date of trial, a period of 17 months. The travel in respect of this period was for taking the plaintiff from Mildura to various medical appointments in Adelaide. The plaintiff’s father estimated that he travelled about 100 kilometres per month for this purpose. The total for the three periods referred to above is therefore 5,221 kilometres. Counsel have agreed that a reasonable rate to apply would be 53.8 cents per kilometre, which produces a total cost of $2,808.90. These calculations are far from precise. I consider that $2,500 would be an appropriate interim payment in respect of travel.
As to gratuitous services provided to the plaintiff by her family, the plaintiff again divides this into three categories: the period during which the plaintiff was in the Royal Adelaide Hospital, the period between her discharge from hospital and her attempt to resume her schooling, and the period from then to the date of trial. The defendants do not dispute that an award for gratuitous services is justified.
The basis of the claim with respect to gratuitous services is the need of the plaintiff for services to be provided to her as a consequence of the injuries sustained in the accident. The plaintiff does not have to show that her need is or may be productive of financial loss (see Van Gervan v Fenton (1992) 175 CLR 327).
Section 35A(1)(h) of the Wrongs Act provides:-
“(h).. Damages awarded to allow for the recompense of gratuitous services of a parent, spouse or child shall not exceed four times State average weekly earnings.”
Section 35A(2) provides:-
“Notwithstanding the limits fixed by subsection (1)(h), if the court is satisfied that by rendering gratuitous services a parent, spouse or child has saved or will save the injured person the cost of engaging another person to provide those services (those services being reasonably required by the injured person), the court may make an award of damages in excess of that limit but the damages awarded in that event must not reflect a rate of remuneration for the person providing the services in excess of State average weekly earnings.”
There is no doubt that a significant number of the gratuitous services provided to the plaintiff by her family, particularly her mother, have saved the plaintiff the cost of engaging another person to provide those services, and that those services were reasonably required by the plaintiff. However, I find that there were also some services provided, particularly again by the plaintiff’s mother, that were not services of a kind that would have enabled another person to be engaged to provide those services. For example, the time spent by the plaintiff’s mother in talking to the plaintiff and providing her with reassurance from time to time, providing her with some guidance in respect of cooking and growing vegetables, answering questions asked by the plaintiff and generally providing her with advice seemed to me to fall in the latter category.
The plaintiff supplied to me a very helpful schedule in respect of gratuitous services provided to the plaintiff. The schedule refers to “active care” and “passive care”, the latter being periods during which the plaintiff’s mother was “on-call” in case the plaintiff became distressed or needed assistance. The schedule also includes the State average weekly wage at the relevant times and calculates the cost of care by reference to figures supplied by the Paraplegic and Quadriplegic Association of South Australia (PQA) - see Exhibit P8. The schedule makes calculations in respect of the three different periods to which I have referred above and assumes that every calculation as to the cost of active and passive care exceeds State average weekly earnings and therefore calculates an amount claimed by reference to those earnings. The total amount claimed in respect of gratuitous services is $117,939.40.
Having regard to the requirements of s.35A(2) of the Wrongs Act, to which I have already referred, and because I consider that the hours of passive care per week have been somewhat overstated I consider that the total amount claimed by the plaintiff is excessive. It is certainly not appropriate to make an interim award of damages of that amount. I consider that an appropriate interim payment in respect of gratuitous services would be $60,000.
Calculation of an appropriate amount to compensate the plaintiff for loss of earning capacity up to the time of the trial is difficult, because the plaintiff had not, before the accident, made use of her working capacity except to the extent that she worked from time to time in her parents’ brickyard.
Again, the plaintiff has provided a helpful schedule in respect of the plaintiff’s claimed loss of earning capacity. The schedule calculates possible earnings for Year 1 (from the accident until the end of 1998), Year 2 (the year 1999) and Year 3 (from 1 January 2000 to 31 January 2001).
As to Year 1, the schedule assumes that the plaintiff would have completed Year 12 at school and would have worked in the brickyard during school holidays. Based on the wage rate given in evidence by her father, it suggests total earnings for Year 1 to be $5,600. It assumes an average of eight hours work in the brickyard per week, allowing more during school holidays and less in times of high study. I consider that this calculation is not far off the mark, although it perhaps under-estimates the extent of the additional study time required by a Year 12 student. I would allow an interim payment of $4,500 in respect of Year 1.
As to Year 2, the schedule puts forward five different possibilities. The first is that the plaintiff may have worked as a cadet for Advertiser Newspapers Limited (where she had previously undertaken some work experience). The second is that the plaintiff may have worked full-time in her parent’s brickyard. The defendants point out that the amount calculated in respect of this possibility is overstated because the Mount Pleasant Brickyard only operated for eight months of the year. The plaintiff pointed out that the plaintiff could have worked at the Mildura brickyard during the other four months. The third possibility is that the plaintiff may have obtained employment as a National Park Ranger, a job she had previously considered because of her love of animals. The fourth possibility is that the plaintiff may have worked somewhere as a junior earning the average weekly wage. The fifth possibility is that, after completing Year 12, the plaintiff may have continued studies at TAFE and worked part-time in the brickyard.
These are hypothetical possibilities. However, obtaining a cadetship at Advertiser Newspapers Limited would certainly not be easy having regard to the number of other young people applying for a position of this kind. Initially I felt that the plaintiff may not have been content to work in the brickyard and may have preferred to join the work force in the same way as her older sister had. It has since occurred to be that the brickyard option may have been attractive to the plaintiff, at least for a period of a year or so, because it would enable her to earn a reasonable wage and, at the same time, look after her menagerie of animals.
It is, of course, impossible to attempt any exact calculation for loss of earning capacity during any of the three years in question. However, I consider that an appropriate interim payment for loss of earning capacity in Year 2 would be $16,000.
The schedule continues the same five possibilities into Year 3 but makes adjustments, where appropriate, for increases in salary. I consider that an appropriate interim payment for loss of earning capacity in Year 3 would be $17,500.
The total interim payment I would order for pre-trial loss of earning capacity is therefore $38,000.
I turn now to the claim for interim payments on account of future damages yet to be assessed. This, of course, is a much more difficult exercise, because of the uncertainty about the extent to which the plaintiff may be disabled in the future, thus requiring continuing gratuitous services and suffering a continuing loss of earning capacity, and the amount of future special damages that may be incurred in respect of further medical investigations and/or treatment. I therefore propose to give the parties liberty to apply so that either party may seek a variation of the orders I make in respect of the future, having regard to changes in circumstances.
I see no reason, at least in the short term, why there would not be a continuing need for the plaintiff to require services to be provided to her and why the plaintiff’s family would not continue to meet that need. Furthermore, having regard to the assessment by Dr Crompton that the plaintiff’s neuro-ophthalmic symptomatology is unlikely to be stable for some years, it is most unlikely that the plaintiff will be in a position to enter the work force for at least a further one year. It seems to me that the amount to which the plaintiff may become entitled in respect of gratuitous services during the next year is likely to be something like $15,000 and her loss of earning capacity during the next year is likely to be about $18,000.
As to future special damages, it is likely that there will be more expenditure on medical investigations and treatment in the early part of the next 12 months than the latter part. Notwithstanding that, I propose to make an order for interim payments on a quarterly basis until further order. However, it is to be hoped that if the quarterly amount is exceeded by the actual cost of medical investigation and treatment, the defendants would pay the actual cost and make an appropriate adjustment, if necessary, at the time of the next quarterly payment. Of course, if the defendants fail to do so, the plaintiff may well apply for an appropriate adjustment to the quarterly payment in order to meet the cost of medical investigation and treatment. It seems to me that the total cost of such investigations and treatment during the next year could easily be greater than $12,000.
Having regard to the indicative calculations which I have just made, I order that the defendants pay to the plaintiff the sum of $12,000 on or before 15 February 2001 and the same amount every three months thereafter until further order. I grant to the parties liberty to apply in respect of this order.
SUMMARY
On the question of liability, I order, by consent, that judgment be entered for the plaintiff against the defendants.
In respect of the period from the accident to the date of trial, I order that the defendants pay to the plaintiff:-
(a) for special damages not yet reimbursed $9,260.23

(b) as interim payments on account of
damages yet to be finally assessed -

for travel  $2,500
  for gratuitous services  $60,000
  for loss of earning capacity   $38,000          $100,500.00
$109,760.23

In respect of future damages for gratuitous services, loss of earning capacity and medical investigations and treatment, I order that the defendants pay to the plaintiff the sum of $12,000 on 15 February 2001 and the same amount every three months thereafter until further order, and I grant to the parties liberty to apply.

I shall hear counsel as to interest and costs.

[2001] SADC 13

9 February 2001