Hoysted v Insurance Commission of Western Australia - [2003] WADC 59

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HOYSTED -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2003] WADC 59

CORAM: COMMISSIONER EATON

HEARD: 25-27 SEPTEMBER 2002

DELIVERED : 20 MARCH 2003

FILE NO/S: CIV 2307 of 2001

BETWEEN: HELEN MARGARET HOYSTED
Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant

Catchwords:

Personal injury - Assessment of damages - Crush injury to the left proximal tibia with nerve damage

Legislation:

Motor Vehicle (Third Party) Insurance Act 1943

Result:

Damages of $115,550.85 awarded

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos
Defendant: Mr P K Walton

Solicitors:

Plaintiff: Simon Walters
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506

Case(s) also cited:

Brasser v Graham & Anor [1985] WAR 180
Graham v Baker (1961) 106 CLR 340
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997
Watts v Turpin (1999) 21 WAR 402

COMMISSIONER EATON: In this action the plaintiff sues the defendant for damages arising out of the negligent use of a motor vehicle. The Insurance Commission of Western Australia is the defendant by virtue of the provisions of s 7(2) of the Motor Vehicle (Third Party Insurance) Act 1943. That section provides that where an insured person has caused bodily injury by the negligent driving of a motor vehicle specified in a policy of insurance under the Act and the insured person is dead or cannot be served with process any person who could have obtained a judgment in respect of the bodily injury so caused against the insured person if he or she were living or had been served with process may recover by action against the Commission the amount of the judgment which could have been recovered against the insured person. By its defence filed in this action the defendant has admitted that the plaintiff was injured by reason of the negligent driving of an insured person but denies liability for the plaintiff's loss and damage, denying in particular the plaintiff's allegation that the insured person could not be served with process. I am informed by counsel for the defendant that, in fact, there is no issue as to the liability of the Insurance Commission of Western Australia pursuant to the provisions of s 7(2) of the Act. That being the case, the matter is one for assessment of damages only.

The accident

In April of 1999 the plaintiff, who was then resident at Albury, New South Wales, set off with her husband and their three children to drive around Australia in an old bus which had been acquired and prepared for that purpose. The children, Jenna, Liam and Carly were, at the commencement of the journey, aged 6 years, 4 years and about 17 months old, respectively. It was a journey that had been planned for some time. They intended to be away on the road for about 12 months. Initially they travelled north to Queensland, then through the Northern Territory to Western Australia. They made their way through the Kimberley and the Pilbara to the Gascoyne where, on the evening of 4 October 1999 they arrived at a seaside camping reserve at a place called Bush Bay about 50 kilometres south of Carnarvon. Upon their arrival at Bush Bay that evening they noticed another bus badly bogged in loose sand.
On the following morning, 5 October 1999, the plaintiff's husband David Hoysted joined with several other men in an attempt to extricate the bogged bus from its difficulties. The plaintiff remained at their camp nearby assisting her daughter Jenna with her schooling and talking with other women who were camped at the site. She was aware that the attempts made by her husband and the other men to extricate the bogged bus had proved unsuccessful.
Another man arrived in a 4‑wheel drive vehicle. It appears that he took charge and attempted to tow the bus out of the bog using a towing device known as "a snatch strap". Such a device apparently has a degree of elasticity. The plaintiff became aware that there was to be a further attempt to extricate the bogged bus so she took steps to ensure that the children were not in any danger. Having walked outside to call the children she turned to walk back to her own bus with the noise of the 4‑wheel drive vehicle revving behind her. At that moment, as the 4‑wheel drive vehicle took the strain and as the snatch strap stretched, the towing tongue on the bogged bus broke, releasing the stretched snatch strap causing the strap and the broken tongue to whip through the air striking the plaintiff from behind on both legs below the knees. As she said she was: "only three steps away from the corner of our bus, and next thing I knew, I was flung around and I was on the ground." She had no idea what had happened to her. She could not feel her legs below the knees and could not get up. When asked if she was bleeding she replied that she was but said: "I didn't actually ever see because I was on my face in the dirt." Her husband and others, alerted by Jenna Hoysted screaming, ran to her assistance. Her leg was bandaged and she was taken by car to Carnarvon Regional Hospital, arriving at 11.10 am. A senior medical officer of that hospital later reported that the plaintiff had been suffering pain from an open wound to her left leg. He described her injury as a crush injury to the proximal left tibia. She had suffered loss of skin and subcutaneous tissue and had bruising extending to the calf. The left leg was x‑rayed revealing a defect on the inner aspect of the cortex of the proximal tibia although there was no full fracture of the tibia. Suturing was not required. The wound was dressed. The plaintiff was provided with antibiotic and analgesic medication and given a tetanus injection. She was also given a list of things to purchase from a chemist to enable her husband to replace the dressing on a daily basis. They returned to Bush Bay and, shortly after, resumed their journey, travelling south to Shark Bay.

The progress of the injury

At Shark Bay the plaintiff visited a nurse. She had been in considerable pain and had been taking Panadeine Forte which had made her ill. The nurse redressed the wound and suggested that, as the family were pressing south on their journey, she visit a doctor at Geraldton. At Shark Bay the plaintiff's husband purchased a pair of crutches at a second hand shop to assist the plaintiff who was having great difficulty in moving around.
On 13 October 1999 the plaintiff attended Geraldton Regional Hospital and the leg was again x‑rayed. Dr Geoff Robey, radiologist, reported that there was a tiny cortical defect involving the medial margin of the proximal tibial shaft approximately six centimetres below the level of the knee joint and a tiny linear three millimetre opacity adjacent to the cortical defect which he thought to be a small bony fragment. He found no evidence of any metallic foreign body in the overlying soft tissues. The remainder of the bone and joint detail, he said, was normal. He detected soft tissue infection. The plaintiff said that at that stage both her legs were black from bruising and the left leg, in particular, was "very swollen". She was prescribed further antibiotics.
The family pressed on further south arriving in Perth on about 18 October 1999. On that day the plaintiff attended upon Dr Angelika Elsmann at Morley. She, upon examination, diagnosed soft tissue injury in the hamstring insertions of both the right and left leg and significant induration surrounding the wound on the left leg at approximately 15 centimetres diameter. The plaintiff reported altered sensation of the left shin. Dr Elsmann thought that there was significant infection in the soft tissue surrounding the wound. She advised daily review and dressings. Over a period of time the wound was debrided revealing a sinus approximately two centimetres deep and half a centimetre in diameter appearing to Dr Elsmann to be the full thickness of the muscular layer. The plaintiff complained of ongoing pain in her left knee and both her right and left hamstrings.
Fortunately, the plaintiff's brother lived in a suburb of Perth and had space where the bus could be parked in a paddock behind his house. The plaintiff made daily trips to the doctor. She was still walking on crutches. The family remained in Perth for about five weeks.
Dr Elsmann reported that on the plaintiff's last visit the sinus had closed. The superficial wound was healing. She thought that the plaintiff would be fit for travel noting that there was still ongoing left knee pain and sensory defect. From 18 October 1999 to 16 November 1999, inclusive, the plaintiff attended upon Dr Elsmann on 20 occasions.
The family continued their journey travelling first to Bunbury, arriving on 25 November 1999 and then on to Albany, arriving on 20 January 2000. The plaintiff attended a doctor at both Bunbury and Albany. She continued to have problems with walking and climbing the steps of the bus.
The family left Western Australia and travelled through South Australia. At Paralowie in South Australia the plaintiff attended upon Dr Diwa Cabaron on 7 March 2000. The plaintiff complained of numbness on the anterior part of the left leg which proved to be sensitive to pressure resulting in pain. The plaintiff was given a further prescription for Panadeine Forte. In April of 2000 the plaintiff and her family arrived home at Albury in New South Wales. On 3 May 2000 she attended upon Dr Carmel Ling who reported on 15 May 2000 as follows:
"On examination on 03/05/2000 Mrs Hoysted continues to experience an area of altered sensation on her left anterior shin; an ache behind her left knee in the hamstrings; tender calf muscles; and sharp pain on the medial side of her left knee when she twists or jumps. She finds that she gets pain behind her left knee when she climbs steps or pushes her pusher. The ache in her lower leg worsens over the day. Mrs Hoysted works as a hairdresser and has recommenced for 3 – 4 hours shift and does her work in a sitting position as much as possible. She has been unable to work from the date of the accident until now because of the pain and ache in her leg."
Of course, from the date of the accident the plaintiff and her family had continued their long bus holiday. They had been away for about 12 months, as planned. Dr Ling referred the plaintiff to a physiotherapist to commence active rehabilitation to strengthen muscles.
Dr Ling later referred the plaintiff to Mr Elie Khoury, an orthopaedic surgeon, who first saw her on 29 November 2000. He described a perforating injury to the back of the left proximal tibia which also injured bone. This, he said in a report of 11 December 2000, caused a compound injury and a partial fracture of the proximal tibia which went on to heal. He concluded that the plaintiff had been left with some nerve related damage causing cutaneous loss of sensation over the anterior leg measuring 10 x 15 centimetres in diameter. He noted that the plaintiff suffered ongoing pain as a result of that nerve damage and ordered an MRI scan.
Upon review on 31 January 2001 Mr Khoury noted that the results of the scan were consistent with subcutaneous inflammation around the medial aspect of the tibia.
In a report of 16 July 2002 Mr Khoury noted that the plaintiff complained of discomfort in her left hip which had apparently developed during 2001 and numbness around the left leg and foot. He noted a new problem of buttock pain radiating to the low back on the left side with no apparent cause. He expected those symptoms to resolve with conservative management.
On 5 September 2002 the plaintiff attended upon and was examined by Professor F L Mastaglia, a consultant neurologist. He concluded in a report of 9 September 2002 that, in addition to cutaneous injuries, the plaintiff had sustained partial damage to the right saphenous nerve resulting in persisting sensory symptoms in the right calf. Professor Mastaglia gave evidence before me. In cross‑examination he admitted that the reference to the right calf was erroneous and should, in fact, have been a reference to the left calf. In evidence he explained that the saphenous nerve is a nerve that comes down from the thigh to the medial part of the calf and carries sensation from the skin over the inner aspect of the calf and the inner aspect of the foot and heel. In cross‑examination Professor Mastaglia referred to the plaintiff's injury as a very serious one:
"Not so much because of the initial injury but also because of the secondary complications that developed at the site of the injury in the left calf … and I should say it would therefore not be any surprise to me if there had been residual symptoms in this sort of situation and in particular there are some nerve complications as a result of the scarring around the site of the injury and the infection at that site."

The plaintiff's pre‑accident work history

Having completed Year 12 at Wodonga Technical School in Victoria in 1980 the plaintiff travelled to Melbourne to attend the Australian Academy of Hair Dressing. There she undertook a 14 month course which was completed in March 1982 with the award of a Certificate of Registration as a hairdresser from the relevant board. For about nine months thereafter the plaintiff worked as a hairdresser at Wagga Wagga in New South Wales. In December of 1982 she, with her family, went overseas, first to the United States and then to England. After a tour of Europe with her sisters for a month she returned to England where she and a sister obtained work. In late 1983 the plaintiff, then in London, completed a short haircutting course at the Vidal Sassoon School and received a certificate for doing so. Thereafter she obtained jobs of a housekeeping nature until May of 1987 when she returned to Australia. After a holiday she again worked in various jobs. In February 1988 she returned to live at Wagga Wagga where her parents resided. She obtained work at Pizza Hut in Albury, firstly as a trainee, later as assistant manager and finally as manager of the restaurant. The latter promotion was in September 1989. The plaintiff was then responsible for the entire management of the restaurant. In that capacity she worked up to 60 hours per week and earned a gross income in excess of $600 per week.
In November 1989 the plaintiff met David Hoysted. They were married on 29 February 1992. The plaintiff continued to work as manager of the Pizza Hut restaurant until December 1992 when she took maternity leave. Jenna Hoysted was born in February 1993. Between April 1993 and December 1993, whilst still on leave, the plaintiff completed courses at the Albury Continuing Education Centre in lead‑lighting, calligraphy and sewing. At the end of that year she undertook a course called Work Opportunities for Women at the Albury College of Tertiary and Further Education. The plaintiff felt unable to return to the demands of work at the Pizza Hut restaurant and declined an offer of part-time work managing the restaurant's delivery service.
In February 1994 the plaintiff began a course in computer business applications at the Wodonga College of Tertiary and Further Education which she completed towards the end of 1994. Her second child, Liam, was born on 30 November 1994. Thereafter the plaintiff was occupied as a full-time mother until July of 1997.
On 31 July 1997 the plaintiff returned to hairdressing working for three hours a week at a hairdressing salon for a lady by the name of Leah Cerval. They had met while playing netball. The plaintiff continued her part-time hairdressing until the birth of her third child, Carly, on 8 December 1997, returning to her part‑time work following a brief stay in hospital. The three hours work per week was usually on a Thursday, sometimes on a Wednesday and occasionally on a Monday. It appears as though the plaintiff continued in that work until she left, with her husband and young family, on their trip around Australia.

The plaintiff's post‑accident work history

Not long after her return to Albury the plaintiff spoke with Leah Cerval for whom she had worked prior to their holiday. She resumed work in her employment as a hairdresser within weeks of her return. Again, she was working a three or four hour shift on Wednesday or Thursday of each week. In addition, the plaintiff did the occasional hairdressing work on her own account from home. It appears that in February 2001 the salon changed hands. The new owner, one Roma Butler, continued to employ the plaintiff. In examination‑in‑chief the plaintiff told me that she worked for Roma Butler for three hours a week, occasionally managing to cope with up to six hours per week at a time. She ceased working as a hairdresser at the salon on 14 March 2002. The relevant pages from the weekly time and wages book (Exhibit 6) indicate that in the last nine months of her employment the plaintiff worked for Roma Butler predominantly on a Thursday in each week for periods ranging from three hours to seven and a half hours per day. Occasionally the plaintiff worked on other days of the week. She acknowledged the accuracy of the time record in cross‑examination.
When asked by her counsel whether she experienced any difficulties undertaking hairdressing work the plaintiff replied that she did. She said that after about three or four hours of being on her feet her legs started to swell. She said that she found it difficult to use a mobile stool and that it was impractical to sit while carrying out certain aspects of a hairdresser's job. With respect to working for Roma Butler the plaintiff said that she had been unable to cope with more than six hours at work because she found that her leg was swelling. She was developing aching in the shin and a pain in her hip.
The plaintiff explained, in examination–in‑chief, that she felt that hairdressing was irritating her problems and that she chose, therefore, to change occupations. When asked by her counsel whether she had attempted to work in other capacities that might better fit with her ongoing difficulties she replied that she had not. The plaintiff said:
"I felt that I needed to re‑train in another area so that I could be employable. I choose to go into the child care area. Initially I applied to Charles Sturt University to do the Bachelor of Education, Early Childhood. I was unsuccessful in my application. I saw a careers adviser. He suggested that I start at the beginning and I applied for a course, Certificate 2 and Certificates 3 and 4 in Community Services, Early Childhood."
When asked why she made that choice the plaintiff said:
"Because I felt that I would have the flexibility to be able to stand and sit, that I would be able to be more conscious of my posture and how I hold myself. The work that I've always done has always been people‑orientated and hands‑on."
At the time of giving evidence the plaintiff had completed Certificates 1, 2 and 3 of the course and was about to commence Certificate 4. As part of the course she has undertaken practical placement work at a pre‑school centre and a child‑care centre. When asked how well she coped with the physical demands of those placements she replied:
"I found that I had better flexibility in what I was able to do ‑ that if I felt that I needed to sit down, then I could find an activity with the children that I was able to. There have been some days that I have done work that due to the circumstances of the day, that's not been possible and those days I have found quite difficult. Nevertheless every day by the end of the day my leg is swollen – some days worse than others, dependent on how much I've been on my feet."

The plaintiff wants to continue by completing a Diploma of Community Services, Early Childhood for one year. She then hopes to attend Charles Sturt University and do a Bachelor of Education by correspondence over two years. She will then be able to teach in a primary school. She hopes to be able to work full-time. The plaintiff said that she was presently unable to work full-time because, after being on her feet for a period of time she still endured swelling in the leg and pain in her hip. She said:
"As I said before, if I was a single person without a family then I would just go and do it but because I have a family that need to be considered I'm not able to just come home and put my feet up and I need to – they need me to be a mother to them."
At the time of giving evidence she thought that she was able to cope with placement work of about 20 hours per week but noted that she had worked a 30 hour week.
Also, at the time of giving evidence, she indicated that she suffered from a numb area on the front of her left shin with an area of altered sensation around the numbness. She has an area that swells on the inner side of her left leg below the knee which gets painful if she has been on her feet for a period of time. She also endures aches and pains in her left hip area in the same circumstances.
The numbness is always present. The altered sensations come and go. She described the latter as feelings of pins and needles. Her symptoms, she said, are presently aggravated by being on her feet for a period of time, walking on uneven surfaces, pushing anything that has weight such as a full supermarket trolley, lawnmower or vacuum cleaner and excessive twisting and turning. Presently the plaintiff attends a physiotherapist every seven to 10 days depending on how she is feeling. She can sometimes go for up to two weeks without the need for physiotherapy. She wears orthotics in both shoes. She takes Panadol at the rate of about four to six per week, Naprosyn at the rate of about four to six per fortnight and Cipramil. She sees her general practitioner on average about four times a year.
By way of recreation the plaintiff was, prior to their long holiday, playing netball two or three times a week and was given to occasional walking and cycling. She presently plays no sport and does not cycle. She relies on her husband to do most of the gardening.

The plaintiff's capacity to earn an income

Prior to their journey round Australia the plaintiff's longest period of employment in a single occupation would appear to have been in the area of restaurant management as she rose from trainee to restaurant manager at Pizza Hut in Albury. That came to an end with the birth of her first child. It was an occupation to which the plaintiff never returned. In cross‑examination, the plaintiff explained that, upon returning from their journey around Australia, she had two options so far as employment was concerned, one in restaurant management and the other in hairdressing. The plaintiff said that, prior to embarking on the journey, she knew she could get full-time work upon her return in hairdressing. She had made no enquiries about resuming in restaurant management.
When the plaintiff left her manager's job at Pizza Hut in December 1992 she was pregnant with her first child. Before the birth of her second child she was contacted by Pizza Hut with a request that she return to work on a part-time basis to manage the restaurant's delivery service. She declined. By the time the family began its journey in April 1999 the plaintiff and her husband had three children, the youngest being Carly aged about 16 months. Upon their return Carly was aged 2 years and 4 months with the older children at either pre‑primary or primary school age. The plaintiff almost immediately resumed part-time work as a hairdresser on the basis undertaken by her prior to the journey. Given the demands of a young family it is not surprising that the plaintiff, upon her return, did not entertain a return to the clearly more demanding occupation of restaurant management. In fact, in the period of almost 10 years that has passed since the plaintiff ceased her employment with Pizza Hut there was no evidence of any attempt to return to work in the field of restaurant management whether full-time or part-time or, for that matter, of any enquiry in that regard.
So far as hairdressing is concerned it would appear that the last time the plaintiff worked full‑time as a hairdresser was in 1982 not long after she had received her certificate of registration as a hairdresser in Victoria. She did some part‑time hairdressing while overseas prior to her return to Australia in May of 1987. Some 10 years later the plaintiff returned to part‑time hairdressing working three hours a week at "Leah's Hairdressing Salon" in July of 1997. That continued with a short break at the time of the birth of Carly until the family's departure on their journey in April of 1999.
Towards the end of 1993 the plaintiff attended the Albury College of Tertiary and Further Education completing a course called Work Opportunities for Women. In February of 1994 she enrolled at the Wodonga College of Tertiary and Further Education completing a part‑time certificate in computer business applications. The plaintiff explained: "I felt that it would give me some skills in computer work, so that if I applied for managerial positions, I – it would be an advantage to me." When asked, in examination‑in‑chief, about her intentions concerning future work prior to the family's departure on their journey the plaintiff replied:
"I planned to work full‑time after Carly was out of nappies really – or going to school. Because of the situation with hairdressing, it was more flexible for me to work there, and they have looked at in the future going into restaurant management work, which is why I did the computer course."
Upon the family's return to Albury Carly was, no doubt, out of nappies but was not going to school or pre‑school. I am not convinced that the plaintiff, prior to her departure on the journey in April 1999 had any intention of taking up, upon her return, full‑time work either in restaurant management or as a hairdresser. The plaintiff's evidence suggests, to the contrary, that she was still looking for a career in a field that was less demanding than that of restaurant management, having regard to her young family, but more challenging than hairdressing.
In cross‑examination it was put to the plaintiff that she had instructed her solicitors at the time of the preparation of her statement of claim that she had intended to return to the full‑time occupation of restaurant management and that, more recently she had instructed her solicitors, for the purposes of her schedule of economic loss, that it had been her intention, upon her return from holiday, to pursue full‑time work as a hairdresser. The plaintiff sought to explain by saying that she could have gone into either occupation. I am not satisfied that she had formed either intention. It is the case that the plaintiff, upon her return from their journey, resumed hairdressing on the same basis that had applied prior to her journey.
In her evidence‑in‑chief the plaintiff made no mention of there being any imperative to work full‑time upon the family's return to Albury notwithstanding that, in cross‑examination, she told counsel for the defendant that her husband, upon their return, had difficulty in finding full‑time work having "a couple of jobs on and off".
The plaintiff said that in March of 2002 she chose to train in the area of child care and applied to Charles Sturt University to do a Bachelor of Education. She was unsuccessful. She is now well and truly embarked upon training for a career in teaching. The plaintiff explained that she hopes to teach at pre‑school level and that she will be qualified to teach at primary school after completing a further correspondence course over two years. She intends to work full‑time.

Medical opinion

The defendant called Dr Robert Hart, a consultant orthopaedic surgeon and occupational physician and Dr David Barton, a consultant occupational physician to give evidence. The former, in a report dated 6 September 2002, said:
"Ms Hoysted said that there has been no change in her symptoms for the past two years and her condition is static. She experiences a dull ache in her left hip when resting and has to elevate her left leg if on her feet all day. Symptoms are worse with prolonged weight‑bearing and physical activity. She experiences intermittent swelling of her left leg resulting in a limp and pain in her left hip. There is no restriction on sitting and standing tolerances, with a maximum of two hours. Walking is similarly unaffected on flat surfaces, but if uneven she experiences aching in her left leg. When sleeping, if she rolls to the left and her right leg rests on her left leg she experiences a burning sensation and paresthesia."
On examination he noted that the plaintiff was essentially normal with a heeled slightly depressed scar on the posteromedial aspect of her upper left leg, an area of altered sensation in a band approximately 14 centimetres wide over the anterior left leg and tenderness over the left posterior superior iliac spine and sacroiliac region. He said that there was a full range of pain-free movement of the plaintiff's hips, knees and ankles. Dr Hart noted:
"It is now almost three years since the accident and I would have expected the sensory symptoms in her left leg to have recovered. The distribution of sensory changes is difficult to attribute anatomically to a localised injury to superficial nerves at the site of the puncture wound."
Dr Hart concluded that he could see no reason why the plaintiff could not work as a hairdresser and could see no restrictions on her current and future capacity for employment as a child care worker or, for that matter, managing a Pizza Hut restaurant.
In his report of 6 September 2002 Dr Barton was of the opinion that there was no straightforward physical basis for the plaintiff's ongoing complaints. He thought that her soft tissue injury and possible bony damage would normally be expected to completely settle. He considered her prognosis to be "excellent" and could see no reason why the plaintiff could not physically undertake full time employment as a hairdresser, child care worker or restaurant manager.
The plaintiff relied upon the evidence of Mr Elie Khoury, an orthopaedic surgeon, Professor Andrew C Harper, an occupational physician, Professor F L Mastaglia, a consultant neurologist and Dr Carmel Ling, a general practitioner.
Professor Mastaglia, in a report of 9 September 2002 concluded that, in addition to the cutaneous injuries, the plaintiff had suffered sustained partial damage to the right saphenous nerve resulting in the persisting sensory symptoms in the right calf and possibly also the area of reduced sensation over the anterior aspect of the left shin. Dr Hart had expressed the view that the sensory symptoms in the left leg experienced by the plaintiff should have resolved. He queried the distribution of sensory changes. Dr Barton expressed the broader view that there was no straightforward physical basis for the plaintiff's ongoing complaints.
Dr Hart's concerns as to the sensory symptoms were put to Professor Mastaglia who replied that he had "no doubt at all" that the area was one of genuine sensory impairment. He went on to explain why and to note that Dr Hart, in his examination of the plaintiff, had focussed more on the orthopaedic aspects of her situation. He did not share Dr Hart's prognosis saying:
"… the prognosis for some of the sequelae of the injury are, I think, not good, and I think particularly in relation to the nerve injury and the symptoms emanating from that, namely, pain and sensory impairment, I believe that they will – are likely to be permanent and the prognosis for recovery there is very poor after three years."
Professor Mastaglia thought that the plaintiff's more recently developed hip pain was a secondary phenomenon relating to altered use of the leg, that is, favouring one leg over another.
In response to Dr Barton's expectation of a full and complete recovery Professor Mastaglia indicated disagreement remarking that Dr Barton's expectation of an excellent prognosis was a somewhat "sweeping statement".
He also disagreed with Dr Barton's conclusion that there was no genuine permanent disability. He said:
"The disability under my assessment lies principally in the left lower leg, the knee and below the knee, and consists of pain, sensory impairment over the lower leg, as well as some degree of disfigurement, which is not really a neurological thing but I think that's something that I have mentioned before."
In cross‑examination Dr Barton adopted Professor Mastaglia's opinion that there had been damage to the saphenous nerve. He had in his report of 6 September 2002 noted that the plaintiff continued to complain of numbness and altered sensation around the front of her left shin, pain below her knee in her left leg increased with twisting and walking on uneven surfaces and turning and an ache and pain in her left hip and buttock increased with physical activity along with episodes of swelling of the left leg particularly after a long period at work. He went on to conclude that in his opinion, there was no straightforward physical basis for her ongoing complaints. In cross‑examination he accepted that that was not so, at least in part. I do not accept Dr Barton's conclusion, implicit in his report of 6 September 2002 that the plaintiff had adopted "illness behaviour". His conclusions are, at least in part, founded upon his opinion that there was no straightforward physical basis for the plaintiff's ongoing complaints. As to the impact of the nerve damage in terms of symptoms I accept the evidence of Professor Mastaglia.
Similarly, Dr Hart indicated that he would agree that the plaintiff was presenting with symptoms which were consistent with damage "at least partially" to the saphenous nerve.
As to his conclusion of no permanent residual impairment in his report of 6 September 2002, Dr Hart said in cross‑examination:
"I'm referring there that there hasn't been a loss in the range of movements of her hips and knees. On that basis I was unable to say there was permanent residual impairment. That's not to say that she may not have some persistent sensory loss if in fact the injury had resulted in partial severance of that nerve we discussed earlier. If I might also add, the saphenous nerve is a sensory nerve only and is not innovating muscle, so there would be no loss of muscular power in the lower limbs as a result of that nerve injury."
Professor Mastaglia did express the view, in cross‑examination, that the pain and sensory impairment resultant from the injury to the saphenous nerve was unlikely to have a significant impact upon the plaintiff's employment capacity. He agreed that the plaintiff, in future, would only require ongoing physiotherapy initially by way of posture correction and then intermittently as and when required. Professor Mastaglia agreed, in cross‑examination, with several of the conclusions of Dr Hart to the effect that the plaintiff could work as a hairdresser, child‑care worker or restaurant manager.
The defendant called Ms Debbie Larson, a labour market consultant. She produced a report focussing on five separate occupations, those of hairdresser, child carer, restaurant manager, shop assistant and clerk. Professor Mastaglia expressed the general view that the plaintiff could cope in any of those occupations subject to certain reservations about the position of shop assistant having regard to her left hip pain which had only been present for about six months and which he attributed to an uneven gait.
Professor A C Harper accepted the plaintiff's information to him that she had a standing tolerance of something in the order of two to three hours. He took the view that by reason of that tolerance the plaintiff would be unable to work full‑time as a hairdresser. He thought that she could cope full‑time with child‑care/teaching, working as a shop assistant or clerical worker provided she had the ability to stand or sit and change position from time to time. His observation in relation to the occupation of restaurant manager was that the demands of such a job would vary greatly from position to position.
With respect to Dr Hart's report of 6 September 2002 Professor Harper agreed that there was no need for the plaintiff to have prolonged physiotherapy. As to Dr Hart's conclusion that the plaintiff had no permanent residual impairment Professor Harper accepted that the plaintiff had no physical limitation of movement but insisted that she did have disability being a reduced tolerance for certain things, the distinction being important in the plaintiff's case. In that regard, he was in agreement with Professor Mastaglia who, in his report of 9 September 2002, commenting on future work capacity, said that he anticipated that the plaintiff would be able to work in the area of child‑care although she might be restricted in terms of her ability to stand for long periods. He said that he would classify the plaintiff's injury as moderate in severity and concluded that she did have a residual disability in the lower left limb.
Professor Harper's analysis of the demands of the various occupations mentioned in Ms Larson's report reflected a more practical understanding of the functional aspects of those occupations. In addition, he was more readily accepting of the plaintiff's account of her problems than were Dr Barton and Dr Hart. Having regard to the findings of Professor Mastaglia I regard the opinions expressed by Dr Hart and Dr Barton in their reports of 6 September 2002, to be somewhat harsh. Each resiled to a degree from that position in cross‑examination in the light of Professor Mastaglia's findings which they did not challenge.
I find that the plaintiff, upon her return to Albury in April of 2000 resumed her part‑time work as a hairdresser because that was the most sensible and practical course to adopt at the time having regard to her injury and her family circumstances. I do not accept that she intended, upon return to Albury, to work full‑time either as a hairdresser or restaurant manager. I do accept that she was restricted to some degree in her ability to work as a hairdresser and that she may have worked more hours in that capacity than she actually did but for the injury.
I find that the plaintiff had little or no inclination towards a career in full‑time hairdressing and that her decision to study and train in the area of child‑care and teaching was one that reflected, in part, her need to accommodate a young family, in part, her need to find an occupation that would not aggravate her injury and in part, a need for a more challenging and stimulating career than hairdressing. When asked by her counsel whether she had attempted any other sort of work to see whether that would better fit in with her ongoing disabilities the plaintiff replied that she had not. She said that she had not been coping with being on her feet for more than three to four hours in hairdressing. The wages records admitted into evidence suggested that the plaintiff was working, as a hairdresser, somewhat longer hours than she was at first, prepared to admit.
I accept that the impact of the injury upon the plaintiff subsequent to her return to Albury in April 2000 was such that her capacity to earn an income was reduced. I do not accept that the plaintiff fully employed what remaining capacity she did have. Her counsel submitted to me that I should proceed on the basis that if it had not been for the accident the plaintiff would have worked a significant number of hours as a hairdresser upon her return. Certainly, I accept that, had it not been for the accident, she would have worked, upon her return, longer hours as a hairdresser than she actually did.

As mentioned, I find that the plaintiff's choice of career in child‑care/teaching is one that she may well have made had she not been injured. Her decision to retrain is, however, having regard to all of her circumstances and the impact of the injury, a reasonable one and the loss occasioned by that period of retraining must be regarded as causally related to the injury suffered by the plaintiff even though that may not have been the only factor at play (March v E & M H Stramare Pty Ltd (1991) 171 CLR 506). I should have regard to Ms Larson's evidence to the effect that the level of employment availability for the Albury‑Wodonga area for child‑care workers is limited. I should allow in awarding damages some component for the probability that the plaintiff will not, immediately upon graduation from her studies and training obtain full‑time employment.
I am provided with copies of the plaintiff's income tax returns from and including the year 30 June 1994 to the year ended 30 June 2002. Having regard to my findings in this matter and the plaintiff's work history reflecting, as it does, the acquisition of a young family, those documents are of limited value to me in assessing damages. In the four years between 1 July 1997 and 30 June 2001 the plaintiff received a parenting allowance from Centrelink. In each of those years the plaintiff worked as a part‑time hairdresser earning gross incomes of $1,326 from that source in the year ended 30 June 1998 and of $1,093 from that source in the year ended 30 June 1999. The group certificate from Leah Cerval in the latter year indicates that the plaintiff worked until 25 March 1999. Of course, shortly after that date she and her family left for their long holiday. Her gross income from hairdressing in each of those two years amounted to an average of $25.50 per week in the former and $28.75 per week in the latter. The plaintiff resumed hairdressing for Leah Cerval late in the financial year ended 30 June 2000, her return indicating a gross income of $180 representing a few weeks work in May and June of 2000.
In the year ended 30 June 2001 the plaintiff earned $1,611 in the employ of Leah Cerval until 31 January 2001 and $1,561 in the employ of Roma Butler from 1 February 2001. Her gross weekly income in that year was, on average, $61 per week from hairdressing.
In the year ended 30 June 2002 the plaintiff earned $2,980 gross as a hairdresser. It is the case that, during cross‑examination, the plaintiff admitted that in the years prior to the family's journey around Australia and since their return she had, from time to time, done occasional hairdressing for family and friends for cash income which was not disclosed in her tax returns. The plaintiff explained that the amounts earned were small. I accept that to be the case.
In the year ended 30 June 2002 the plaintiff earned about $1,000 gross from working at child‑care facilities.
In the years ended 30 June 2001 and 30 June 2002 the plaintiff and her husband conducted a business in partnership known as "D I & H M Hoysted", the nature of the business being described in the tax returns for those years as being "Repairer of industrial boilers – incl. maintenance". In the year ended 30 June 2001 the plaintiff included a net taxable income from that partnership in the sum of $2,591 as part of her personal tax return. In the year ended 30 June 2002 the plaintiff included a net taxable income from that partnership in the sum of $8,574 in her personal tax return.
In cross‑examination the plaintiff explained that the partnership business began in early 2001 and ended in early 2002. Her husband was working at Benalla in the construction of a wood‑chipping plant. It seems the partnership operated for that particular job as a means of income splitting to minimise the incidence of taxation. The income generated by the partnership derived from the plaintiff's husband's work. At the cessation of the partnership the plaintiff's husband returned to work for wages for a labour hire company called "Workforce on Tap". He last worked in December 2001 when he fell over some pipes and injured himself. He has been in receipt of workers' compensation payments since then and, when the plaintiff gave evidence, was waiting to have surgery on his hip. He has been at home looking after the children while the plaintiff attends to her course. Carly presently attends a family day‑care centre and the other two children attend primary school.
The income briefly generated by the partnership between the plaintiff and her husband is not a factor that I should take into account in assessing damages. Although the plaintiff attended to the bookkeeping of the partnership and such matters as the preparation of business activity statements for tax purposes, it is clearly the case that the income generated by the partnership was not the result of the exercise of the plaintiff's income earning capacity but rather that of her husband. In any event, the partnership appeared to operate for the purposes of a particular job which came to an end in late 2001 and the plaintiff's husband now has an injury which is apparently impacting on his ability to earn an income.
The plaintiff's counsel suggests to me that, but for the accident, the plaintiff would have worked full‑time either in a managerial capacity or as a hairdresser from early May of 2000. For the reasons already mentioned, that is a proposition that I do not accept. I do accept that the plaintiff did in fact work longer hours in hairdressing than she was initially prepared to admit. To a degree her ability to do so would depend on the availability of work. Approaching the matter in a global way I allow the plaintiff $25,000 by way of past economic loss, inclusive of superannuation and interest.
So far as future economic loss is concerned the plaintiff's counsel put to me that, upon completion of her current course of study, in the event of the plaintiff obtaining employment she would be able to earn an income equivalent to that which she might have earned as a hairdresser. He said that I should have regard to the fact that the plaintiff may not immediately obtain full‑time work as a child‑carer. His contention is that, as a result of the accident, the plaintiff has sustained a reduction in her perimeter of employment. Although my finding is that it is reasonable for the plaintiff to re-train having regard to the difficulties experienced by her in hairdressing I do not regard the plaintiff's ability to earn an income as being limited only to the area of child‑care or teaching. While Professor Harper emphasised the aspects of standing and twisting as being problems for the plaintiff in the field of hairdressing, he also made the point that any occupation which afforded the plaintiff the flexibility of being able to stand or sit and to change her position from time to time would be within her capability. He did not rule out such occupations as shop assistant or clerical worker provided that there was that flexibility of movement not present in the field of hairdressing. According to the evidence of Ms Debbie Larson, while the level of employment availability for child‑care workers in the Albury‑Wodonga area is limited, the employment prospects for sales assistants and clerical workers in that area are moderate.
The plaintiff completed Certificate 3 of her course on 19 September 2002. The course comprised a three hour face-to‑face tutorial once a week. In addition she was required to complete 250 hours practical placement which she did, noting that she had been able to pick up some casual work to make up those 250 hours. She has continued with her hairdressing from time to time. Certificate 4 in the Early Childhood Course was to commence on 17 October 2002 to be completed at the end of November 2002 again with a three hour face‑to‑face tutorial and a requirement for 50 hours of work placement. Some of that work may have been paid.
The plaintiff said that the next stage will be the completion of a Diploma of Community Services (Early Childhood) which she intended to commence in 2003. Again, it will involve tutorials and placement. The diploma would be followed by a Bachelor of Education at Charles Sturt University to be undertaken over two years by correspondence. I expect that the plaintiff will continue to undertake part‑time work during the course of her studies whether that be as a hairdresser or in some other capacity, for example, in a clerical setting or as a shop assistant. I would not regard the limitations imposed upon the plaintiff by reason of her injury as depriving her of her ability to work full‑time in several occupations. It may be that she will be successful in obtaining full‑time work as a child‑carer or teacher upon completing her course of studies. Her disability is such, however, that she should be able to obtain full‑time work in one capacity or another without too much difficulty. Again, approaching her future loss of income in a global fashion I allow $50,000, inclusive of future loss of superannuation benefits.
The plaintiff will need, from time to time, some physiotherapy and will have, from time to time, a need to visit a general practitioner. She claims an amount of $2,000 for psychological counselling being an amount mentioned by Professor Harper. The plaintiff gave no evidence of having attended psychological counselling or, for that matter, of the need to do so in the future. Such therapy was not foreshadowed by either Professor Mastaglia or Mr Khoury. Both mentioned a need for physiotherapy in the future. Professor Mastaglia suggested that there would be ongoing use of analgesia and anti‑inflammatory medications. He said that the plaintiff would be unlikely to require injection procedures or surgery intervention. I allow an amount of $3,000 for future medical treatment and management and an amount of $2,000 to accommodate the need for future analgesia and anti‑inflammatory medication.
On the question of general damages I have regard to the fact that the plaintiff suffered a stunning and traumatic injury which required, initially, a relatively brief period of hospital treatment. Thereafter the plaintiff, continuing on her journey with her family, paid frequent and regular visits to medical practitioners along the way for the purpose of having the wound cleaned and dressed. Complications developed which added to her problems. Seven months after the injury the plaintiff attended Dr Carmel Ling, her general practitioner. She then reported an area of altered sensation on her left anterior shin, an ache behind the left knee, tender calf muscles and sharp pain on the medial side of her left knee brought about by twisting or jumping. In October 2000 Dr Ling reported that the plaintiff was still complaining of constant mild pain below the left knee and altered sensation down her shin. Professor Mastaglia described the plaintiff's injury as being moderate in severity in his report of 9 September 2002.
The plaintiff was not hospitalised for any length of time and has not undergone any surgery or other invasive therapy. Prior to the injury she was an active person who enjoyed netball, cycling and running. She has been deprived of the enjoyment of those activities. Her injury has impacted to some degree on her social life in that dancing is no longer something that she enjoys. Sexual activity with her husband has also been affected. The plaintiff is also left with a noticeable scar on the inner side of her left leg below the knee. It is the nerve damage which gives rise to her ongoing symptoms, as described by Professor Mastaglia. Those symptoms are likely to continue requiring the occasional use of analgesia and anti‑inflammatory medication.
Section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 provides for restrictions on damages for non‑pecuniary loss. That phrase means pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. Section 3C(2) provides that the amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded. As at the date of hearing the maximum amount that may be awarded for non‑pecuniary loss is $240,000. That amount may only be awarded in a most extreme case. Section 3C(4) provides that if the amount of non‑pecuniary loss is assessed to be amount B or less no damages are to be awarded for non‑pecuniary loss. Presently amount B is $12,000. Section 3C(5) provides that if the amount of non-pecuniary loss is assessed to be more than $12,000 (amount B) but not more than $36,500 (amount C), then the amount of damages to be awarded for non‑pecuniary loss is the excess of the amount so assessed over $12,000 (amount B). In other words, $12,000 (amount B) also serves as a deductible if the amount assessed is $36,500 (amount C) or less. Section 3C(6) provides that if the amount of non‑pecuniary loss is assessed to be more than $36,500 (amount C) but less than $48,500 (the sum of amounts B and C) then the amount of damages to be awarded for non‑pecuniary loss is the excess of the amount so assessed over B (amount so assessed minus amount C). In other words, the deductible reduces as assessed damages increase from $36,500 (amount C) to $48,500 (B plus C) and then ceases to have effect.
In the present case I assess the plaintiff's injury and its sequelae to be 17.5 per cent of "a most extreme case". Having regard to the formula referred to above I allow an amount of $35,500 by way of general damages.
On the question of special damages I note that the defendant gives the undertaking sought by the plaintiff to reimburse the Health Insurance Commission for any money paid towards treatment for the plaintiff's injuries resulting from the accident on 5 October 1999. There is agreement as between plaintiff and defendant that pharmaceutical expenses totalling $50.85 should be allowed by way of special damages. I allow that amount.
In summary, I award damages as follows:
Past economic loss  $25,000.00
Future economic loss  $50,000.00
Future medical treatment and management                $3,000.00
Future costs of analgesia and anti‑inflammatory
medication$2,000.00
General damages  $35,500.00
Special damages         $50.85
$115,550.85