Johnson v Rustenburg
[2014] ACTSC 386
•15 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Johnson v Rustenburg |
Citation: | [2014] ACTSC 386 |
Hearing Date(s): | 2-4 September 2013 and 8-9 September 2014 |
DecisionDate: | 15 September 2014 |
Before: | Mossop M |
Decision: | See [101] |
Category: | Principal Judgment |
Catchwords: | PERSONAL INJURY – motor vehicle accident ‑ whether plaintiff was contributorily negligent because she knew or ought to have known that the defendant was intoxicated ‑ assessment of damages |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) |
Cases Cited: | Stafford v Carrigy-Ryan [2014] ACTCA 27 |
Parties: | Taya Johnson (Plaintiff) Adam Rustenburg (Defendant) |
Representation: | Counsel: Mr M Cranitch SC with Mr C Thompson (Plaintiff) Mr J Pappas (Defendant) |
| Solicitors: Carol & O’Dea Lawyers (Plaintiff) Sparke Helmore (Defendant) | |
File Number(s): | SC 671 of 2011 |
Introduction
This is a claim for damages arising out of a motor vehicle accident on 21 September 2008. The accident occurred at a location well known to those who have frequented the Australian National University (ANU), just near the spherical concrete bollards on North Road adjacent to the bridge over Sullivans Creek. The plaintiff, along with a number of other persons, was a passenger in a vehicle driven by the defendant. The car crashed into a light pole and the plaintiff was injured. Breach of duty was admitted. The issues in the case were:
(a)whether the plaintiff was contributorily negligent because she knew or ought to have known that the defendant was intoxicated; and
(b)the damages to which the plaintiff is entitled arising out of the injury to her back that was suffered during the accident.
There was an allegation in the defence that the plaintiff was contributorily negligent because she failed to wear a properly adjusted seatbelt. Ultimately, no submissions were made in support of this allegation and I say nothing further about it.
Facts
The circumstances surrounding the accident were principally of significance in assessing the claim of contributory negligence. The objective material concerning the nature of the accident and the injuries suffered immediately by the plaintiff as a consequence meant that these issues were not seriously in dispute. However, the defendant’s case was that the plaintiff knew or ought to have known that the defendant was intoxicated when she got into his car shortly prior to the accident.
The plaintiff was born on 29 December 1990, making her 17 at the time of the accident and 23 at the conclusion of the hearing.
The plaintiff’s evidence as to the events surrounding the accident was as follows.
Prior to 20 September 2008, the plaintiff had been to a couple of "rave parties". These were described as “16+” raves in that there were no bars and 16-year-olds and over were allowed in. On 20 September 2008 the plaintiff made some arrangements with friends to attend such a party. One way or another, the defendant, whose nickname was “Frazzle”, was arranged to pick the plaintiff up and take her to the rave. At that stage she was living in Hackett in a small bedsitter out the back of a property rented by her father. She was picked up by the defendant and taken in his car to the ANU. He drove in a normal manner and the plaintiff had no concerns about his driving. Prior to being picked up by Frazzle, the plaintiff had taken a single ecstasy tablet.
The event was to take place at the ANU Bar, which is located on the pedestrian part of University Avenue which runs through the centre of the ANU. Just next to the ANU Bar is a bridge, which crosses Sullivans Creek, and the pedestrian thoroughfare then crosses North Road, which runs from the northern entrance to the ANU on Barry Drive down to the car park just beyond University Avenue.
The plaintiff and the defendant drove into the ANU and parked at the car park which I have described in the row of vehicle spaces which is closest to University Avenue. There she met up with two of her friends, Katja Krause and Aracely Flores, known to her as KJ and Cely. Both were fellow students at Dickson College. The plaintiff and her friends thought that the event was similar to the events that she had attended in the past, namely, a 16+ event. However, when they approached the door they saw that there was a bouncer and they were declined admission because they were underage. The defendant, who was not underage, went into the event. The plaintiff denied going into the rave at any time during that evening.
The plaintiff, KJ and Cely were left stranded. They talked and hung around the car park for a while and then walked into Civic. One or other of them got in touch with friends of theirs called Milos and Shaun, and made an arrangement to be picked up by those two young men. They were then driven back to the plaintiff's house, where they sat around and talked and listened to music. No alcohol or illicit substances were consumed there.
At some stage they decided that they wanted to return to the ANU and go to the "after party" ‑ a party being held somewhere in Yarralumla. The three young women got Milos and Shaun to drop them back at the car park on their way to wherever they were going. The plaintiff had communicated with the defendant, who was still inside the venue, and had established that he would be leaving soon. They waited by his car. Anya, KJ's elder sister, and her boyfriend, Tristan, came out first. There was a discussion about going to the after party. The defendant then came out.
There was nothing about the defendant's behaviour that indicated to the plaintiff that he had been drinking or was otherwise intoxicated. She was with the group and was not specifically watching the way the defendant walked but she did not notice any stumbling or anything like that. She assumed that if he was driving he had not been drinking.
The defendant said "let’s go" and there was a "bags not" competition between the plaintiff, KJ and Cely as to who would sit in the rear middle seat of the vehicle. The plaintiff lost. After getting into the car the plaintiff attempted to put on and tighten the lap sash seatbelt that was available in the middle rear seat. She clipped it in and was trying to adjust it so that it would fit her more securely but found it hard to adjust. The defendant commenced driving. He went over a speed bump and the plaintiff hit her head on the ceiling and everyone yelled “stop”. Instead of stopping, the defendant accelerated and crashed into a pole.
I interpose here that a diagram and photographs were put into evidence which show that the vehicle crashed head-on into a light pole on the western side of North Road, immediately adjacent to one side of the walkway which continues west as part of University Avenue. The light pole was next to the well-known line of spherical concrete bollards which prevent vehicles from travelling down the pedestrian walkway, which is a continuation of University Avenue. It is clear that the collision was quite a severe one, in that the light pole was hit head-on and became lodged within the central portion of the front of the car. It appears that after turning the corner, which is at the exit of the car park, the defendant had continued turning rather than straightening up and hence had run off the road to the left.
The plaintiff was thrown forward and hit her face on the centre console. There was blood in her nose and mouth. She describes herself as having pain everywhere. Her ankle hurt. Everyone else got out of the car but she just lay down in the back of the car. She was subsequently released by members of the emergency services. She was put on a stretcher and taken to Canberra Hospital.
Her evidence about the events on that evening was corroborated by Katja Krause. Ms Krause was also 17 at the time of the accident.
Ms Krause had been to two or three rave parties with the plaintiff prior to 20 September 2008. She had been to parties with the defendant and had observed him acting in ways that led her to assume he had been drinking. She considered it notorious that people who attended rave parties took ecstasy.
On 20 September 2008 she was at a housewarming party for a friend of her sister in Ainslie. She caught a bus to the ANU with her sister. Her evidence in chief was that she met the plaintiff and another friend, Iris Ellie, and that the defendant arrived by car. However, in cross-examination, her evidence about whether the plaintiff had arrived before or with the defendant was less clear, although she ultimately maintained the position that the defendant had arrived by himself. She said he offered her some wine but she took one sip from a bottle and put it down beside her. The three of them then went with the defendant to the venue and the girls could not get in because there was a bouncer and they realised it was an over-18 event. The three of them stayed outside the party and did not go into the venue that evening. Her evidence was then consistent with the plaintiff’s about contacting friends, driving around Civic and going back to the plaintiff’s house. She wanted to go home with her sister, who was still at the rave so she travelled back to the ANU. The defendant had said he was leaving soon so they stood outside his car. They observed him walking over the bridge. She said, “he was completely walking straight, looking fine. He was completely normal.” Asked how he spoke she said, “he was fine, not slurring any words, just completely normal.” She denied having any concerns whatsoever about Mr Rustenburg.
She said that after the accident the defendant got something out of the back of the car, came to the window and said, “I’m really sorry” and then just walked off.
She said the plaintiff had not told her that she had taken ecstasy that evening. She had previously observed the effect that ecstasy had on people but did not observe the plaintiff acting as though she had taken ecstasy.
The defendant’s evidence was different in some respects to that given by Ms Krause and the plaintiff. His recollection was that he picked up the plaintiff and they drove to somewhere near the ANU and the plaintiff said something about buying ecstasy. He could remember one previous occasion where he had observed the plaintiff taking drugs. He had seen her displaying the signs of having consumed, ecstasy, namely “dilated pupils, energetic behaviour and just very talkative and lovey-dovey”. After having dropped the plaintiff in Civic he went to meet up with other friends and eventually went to the ANU at about 10:00 pm. He said that once he arrived he got out of the car, walked across the bridge over Sullivan’s Creek and went and paid the cover charge to get into the rave. He was drinking beer and a mixed drink involving vodka during the course of the rave. He said he saw people that he knew, namely, Rebecca Fragnito, the plaintiff, Cely, KJ and Stephen Ford who he knew as Fordy. When he was drinking the mixed drinks and beer he said Rebecca and Fordy were around at that time. He could not say whether the plaintiff was also around at that time. He didn’t recall the plaintiff being inside the rave. Nor could he remember Cely but he said he did remember KJ. Prior to finally leaving the rave he had, at an earlier time, gone out to collect some glow sticks and a bottle of white wine from his car, which he smuggled back into the venue. He sculled the bottle of wine when he was at the corner of the dance floor. He said that after sculling the bottle of wine he spoke to Rebecca and Fordy. Everyone then started packing up and after hanging around a bit he went to the exit. He spoke to Rebecca and Fordy and might have spoken to someone else walking towards the car. The plaintiff was among the group of people walking to the car. He couldn’t recall having a discussion about going to an after party but he thought he had probably spoken to the plaintiff, Cely and KJ. He said he saw the plaintiff outside the venue and that she had dilated pupils and appeared to him to be on ecstasy. He said she appeared “ravey, like slightly-and drunk as well” and that was “just the vibe you get from someone”. He said he was feeling a bit out of it and he could not walk straight he said that “I would speak but not very clearly. I don’t know.” He was feeling affected by alcohol, although, only mildly as “it hadn’t kicked in yet”. He said he felt capable of driving at that stage. His opinion was that he was able to drive safely. He vaguely remembered somebody speaking to him about whether he was fit to drive but could not recall who it was. He thought that when walking he was “like swaying… a touch”. He said that as he drove out of the car park “the alcohol of wine that I had sculled kicked in, in full force and I got double, triple vision, like everything went blurry and I over steered as I was making my way across just exiting to the left of the car park.” After the accident he got some money out of the back of a car and left. He was concerned not to get “busted” for drunk driving and was “freaked out”. He took the money with the intention of buying drugs later that morning.
A police report prepared at some stage after the accident said “all persons in the vehicle were in attendance at a dance party and admitted to consuming alcohol.” There was no evidence to explain this report or whether it in fact related to the plaintiff.
Assessment of evidence
The significance of the differences between the recollection of the plaintiff, KJ and the defendant lies in the extent to which the plaintiff knew or ought to have had knowledge of the defendant’s intoxication. The principal issue is whether or not the plaintiff and KJ were in the venue at the time when the defendant was consuming beer, a mixed drink involving vodka or sculling the bottle of white wine. The next most significant issue is whether there were readily observable indications that the defendant was intoxicated that were observed or ought to have been observed by the plaintiff prior to getting into the defendant’s vehicle.
The overwhelming feature of the oral evidence given was that the defendant’s recollection of events was very limited and, despite his best efforts, unreliable. I formed the view that, although the defendant was doing his best to recall the events of that evening, his recollection was poor. This was, in fact, something acknowledged by the defendant in his own evidence. He accepted in cross-examination that his memory was not too good and that was very apparent from the manner in which he gave evidence and his answers to the questions asked of him. A statement made by him in 2011 was admitted into evidence. While that statement presented his recollection in a more coherent form, in the light of his oral evidence it does not persuade me that his recollection that he saw the plaintiff, KJ and Cely at the rave and his belief that he spoke to them is reliable. The statement, because it is written in definitive terms, gives an impression of certainty which, having regard to my observation of the defendant in the witness box, is unlikely to reflect the reality, even taking into account the fact that his recollection was better in 2011 when he made the statement than when giving evidence in court. As a consequence, I prefer the evidence of the plaintiff and Ms Krause, that they were not able to get into the event and only returned to the ANU shortly before the defendant came out from the rave.
As to what was observable of the defendant there was no evidence that the plaintiff actually spoke to the defendant on the way to the car. Although the plaintiff gave evidence that she and her friends were waiting near the defendant’s car there was also evidence that she moved as part of the group of people heading towards the car. I considered the defendant’s evidence that he was slurring a little bit and could not walk straight was likely to be a reconstruction by the defendant of the likely situation. In relation to KJ’s evidence that he was absolutely fine I think that that evidence is likely to involve an overstatement of the position. However, I am not satisfied that there were any obvious signs of intoxication that were observed or readily observable by the plaintiff on the way to the car. Further, I am satisfied that, had the plaintiff enquired as to his state of sobriety, the defendant would have said that he was able to drive safely.
As at 21 September 2008 s 96 of the Civil Law (Wrongs) Act 2002 (ACT) provided:
96Presumption of contributory negligence—injured person relying on intoxicated person
(1)Contributory negligence must be presumed if—
(a)the injured person—
(i) was at least 16 years old at the time of the accident; and
(ii) relied on the care and skill of a person (A) who was intoxicated at the time of the accident; and
(iii) knew, or ought to have known, that A was intoxicated; and
(b)the accident was caused by A’s negligence; and
(c)the defendant claims contributory negligence by the injured person.
(2)The presumption can be rebutted only if the injured person establishes, on the balance of probabilities, that—
(a) the intoxication did not contribute to the accident; or
(b) the injured person could not reasonably be expected to have avoided the risk.
(3)If the presumption is not rebutted, the damages the injured person would be entitled to, apart from the contributory negligence, must be reduced to the extent that the court considers just and equitable having regard to the injured person’s share in the responsibility for the injury.
(4)For this section, a passenger in a motor vehicle is taken to rely on the care and skill of the driver.
(5)The common law defence of voluntary assumption of risk does not apply to a matter to which this section applies.
For the purposes of this provision, “intoxicated” is defined in s 92 as follows:
intoxicated—a person is intoxicated if under the influence of alcohol or a drug to the extent that the person’s capacity to exercise appropriate care and skill is impaired.
It is clear that each of the paragraphs and subparagraphs of s 96(1)(a) are satisfied, except subparagraph (iii). In relation to subparagraph (iii), the issue is whether the plaintiff knew or ought to have known that the defendant was intoxicated. In the light of my findings above, I am not satisfied that she knew or ought to have known this. The concept of “ought to have known” is a normative one. Consistently with the approach of the Court of Appeal in Stafford v Carrigy-Ryan [2014] ACTCA 27 at [16], I interpret the phrase as involving what a reasonable sober person in the position of the plaintiff would reasonably have known. Because of the definition of “intoxicated”, it is necessary to establish not only that the person had consumed an intoxicating substance but also that “the person’s capacity to exercise appropriate care and skill is impaired”. This involves some assessment of what a reasonable sober person ought to know. This might involve, in another case, interesting questions about the relationship between what a reasonable person should know and the legislature’s presumptions reflected in the concentrations of alcohol which are prescribed for different categories of licence holders. It might also involve an examination of what it means to be “under the influence” for the purposes of the definition. Those questions do not arise in this case. In my view, it is not sufficient, in order to establish that the plaintiff ought to have known that the defendant was intoxicated, that he had spent time on licensed premises, even in circumstances where it would be a reasonable expectation that he had had consumed some alcohol. I accept the plaintiff and Ms Krause’s evidence that their interactions with the defendant and their observations of the defendant were not such that they knew or ought to have known that he was intoxicated in the statutory sense.
Injuries suffered in the accident
The following propositions were not controversial.
(a)The plaintiff suffered a fracture to the anterosuperior corner of the L3 and L4 vertebrae.
(b)The fractures were undisplaced with no neural compromise.
(c)The plaintiff was prescribed bed rest and the wearing of a brace for three months as well as physiotherapy treatment.
(d)The plaintiff suffered swelling of the left ankle, a minor fracture of the nose, a chip to her lower in incisor as well as bruising from the seatbelt.
The most significant issue in terms of the assessment of damages is the impact of the vertebral fractures and whether or not they are responsible for the plaintiff’s ongoing complaints of pain.
The parties agreed that the plaintiff has had no treatment involving any claim to out of pocket expenses since 2011.
Lay evidence about the effect of the accident
Following the accident on 21 September 2008 the plaintiff remained in hospital until 29 September, when she was discharged. She was discharged into the care of her mother wearing a back brace. She was driven to her mother’s home at Boree Creek, a small town west of Wagga Wagga, New South Wales.
For a period of three months she stayed there and was looked after by her mother. Her mother, Raye Field, gave evidence that she assisted the plaintiff with showering, cooking and cleaning. Her mother and stepfather had six other children, all younger than the plaintiff. At that stage, the plaintiff was taking only Panadol. Her mother took her to the general practitioner, Dr Hassain, in Lockhart, a town about 20 km from Boree Creek.
On 13 November 2008 Dr John Fuller, neurosurgeon, reviewed the plaintiff and at that stage she reported that she was without significant back pain. There were no neurological symptoms and an x-ray demonstrated satisfactory healing of her fracture. Dr Fuller saw her again on 15 December 2008 and repeated x-rays demonstrated satisfactory healing of the fractures and no instability. The plaintiff was instructed to remove her brace over the next one to two weeks and then commence physiotherapy. In February 2009 she was reviewed again. She was not experiencing too much in the way of lower back discomfort so long as she limited some repetitive activities. The fractures had healed in a satisfactory manner. She was advised to continue an exercise program to maintain the strength and flexibility of the lumbosacral musculature. At that stage she was returned to her GP’s care. However, her evidence was that she had not actually seen a GP or other doctor about her back condition, other than for medicolegal purposes, since seeing Dr Fuller. She did say, however, that she may have mentioned her back condition when seeing a doctor about another condition.
The plaintiff said that she went to physiotherapy in Leeton but was in so much pain for days that she did not go back.
At the end of 2008 she moved back to Canberra and moved in with her then boyfriend.
She was able to shower herself at that stage. She had ceased using the back brace. On some days her back hurt. On some days it was okay but then got worse towards the end of the day. She was taking Panadol most nights of the week.
In February 2009 she tried to go back to Dickson College to complete year 12. Her evidence was that she went back for two weeks and was in pain and decided that she could not do it. However, she never saw a doctor in relation to treating that pain. I am not satisfied that her reason for ceasing year 12 studies was because of her back pain. She was never a particularly motivated student and I am satisfied that other matters in her life were more likely to have led her to not continue with year 12 study.
In April 2009 she got a job in childcare one day per week at a location in Yarralumla for an organisation called Post and Antenatal Depression Support Incorporated (PANDSI). She said that although she had a lot of fun doing it, her back was really sore. When she got home she would lie down and have Panadol. She only lasted about two months in this job.
In March 2009 she attended a dance party called Godspeed. In April 2009 she was going out to nightclubs.
In about July 2009 she got a job in a cafe called Bellacinos as a waitress and working on the till. She told her employer about what had happened and as a consequence her employer did not require her to do jobs like stacking the fridges or carrying things from the store room. She worked there five days per week from 9:00 am to 5:00 pm.
In September 2009 she attended a DEFQON1 music festival at the International Regatta Centre in Sydney.
In January 2010 she broke up with her boyfriend and returned to Boree Creek. She found a job in a cafe at Lockhart called the Latte Da cafe. There she made sandwiches and coffee and worked on the till. Her mother drove her to and from the job. She worked there three days per week. Had there been work available she would have been able to work five days per week. She still suffered fear when driving in the car with her mother. Although she obtained her learner’s licence she never progressed to her provisional driver’s licence. There were occasions when after work she would need to come home and lie down for a few hours because of her back. She worked at the Latte Da cafe from October 2010 until March 2011 when she moved back to Canberra to live with her new boyfriend. During the period at Boree Creek her mother gave evidence that she would occasionally give the plaintiff a massage around once per week to relieve the symptoms in her back.
In September 2010 she attended another DEFQON festival in Sydney.
In April 2011 she started working at Simple Bites cafe in Belconnen. She described her back as, “still hurting every couple of days, but I was just getting used to it more.” She avoided sitting down for long periods of time. The job involved making sandwiches, coffee and serving customers. She did not do the heavier tasks like stocking the milk and drink fridges because that hurt too much. She worked five days per week from 7:00 am until 4:30 pm.
In June 2011 she was treated by a physiotherapist in Dickson. She had hydrophysio treatment from June until October 2011, once per week, but stopped because she did not think she was getting any benefit from it.
In August 2011 she was promoted to second-in-charge at Simple Bites. She had to work longer hours and that started hurting her back more. She continued working there until March 2012 when she resigned. She stayed with her mother at Boree Creek for a month and then commenced working at ACT Coffee Supplies. When staying at home she described her back as hurting a lot but not more than usual.
The plaintiff described that she has some pain from time to time during the week, sometimes triggered by something identifiable but a lot of the time she said, “it just happens”. She takes Panadol about twice a week. Although her back hurts almost every day she only takes Panadol when she really needs to.
Having commenced at ACT Coffee Supplies in April 2012 she was promoted to manager in November 2012. In December 2012 she started a Certificate III in Business Management. She has now qualified with a Certificate IV in Frontline Management.
Her medical records from the Ginninderra Medical Centre recorded no complaints or treatment for her back pain in the period June 2011 to February 2012. Her medical records from the Gungahlin Medical Practice demonstrated no treatment by a general practitioner there for back pain in the period June to October 2013.
From October 2012 she was living with Matthew Allen and became engaged to be married in February 2013. They lived together in a flat in Franklin although they have moved from a one bedroom to a two bedroom flat within the same building. The plaintiff does most of the house work but Mr Allen helps her with heavy lifting or if her back is sore. Household shopping is done together.
In 2013 the plaintiff’s evidence was that Mr Allen gave her massages with Voltaren or Tiger Balm most nights a week and that was helpful for her back pain. At the end of the day her back was still sore but was bearable and she could get on with cleaning the house. Once or twice a week she took Panadol.
In April 2013 she went to a music festival known as IQON, held at the International Dragway in Sydney. It went from midday until about 10:30 pm. She was dancing some of the time. She had to lie down at one point because of her back for around 10 minutes. Other than that she had no problems with her back on that day.
Matthew Allen’s evidence about this was that she lay down for half of an hour to an hour. In the light of the difference in the evidence it is likely that she laid down for between 10 minutes and an hour. Her capacity to dance at events like this is limited. She does dance, but Mr Allen described her style of dance as being like walking on the spot without spinning or turning. He thought the style of dance was called “stairmaster”.
If she goes on long driving trips she suffers from increased back pain and she needs to move around a lot in the car. Sleeping is fine so long as she is lying on her back.
In May 2013 she went to an event called Unity at the Crave Nightclub.
In May 2014 she had a child, Cooper. Her back got worse as her pregnancy got further along. There were some other complications with her pregnancy due to her blood type. The only painkillers she took were Panadol. She continued working up to 17 April 2014, six weeks prior to the birth of her child. Unsurprisingly, having regard to her pregnancy, she felt exhausted and sore at the end of a working day. Mr Allen did the general household cleaning. She was still able to do the washing and things like that but he had to help more than previously. Her back has not improved since her child was born.
Her intention is to get a night-time job as soon as she can to assist with money but she is not sure how she could do that. While she intends to have another child she will not do that for several years because she does not consider that she would be able to cope with another baby as well as having a toddler.
Sometimes she takes Panadol to assist her sleeping. Mr Allen assists her when he gets home from work in dealing with their child. The amount of assistance depends on how their baby is behaving. He gives her massages a couple of times a week. Her evidence was that this occurred for about 10 minutes on the bed. During pregnancy the massage was almost daily.
Matthew Allen’s evidence corroborated the plaintiff’s in the following respects.
(a)He said that most days since he has been living with the plaintiff she has complained about her back, that it is so sore that she cannot lift things or she needs to lie down and that she complains of a throbbing kind of pain in her back.
(b)When the plaintiff was pregnant he would massage her back almost every night.
(c)He assisted the plaintiff with domestic chores, in particular those that required lifting, vacuuming and lifting heavy loads of washing if she needed him to.
(d)He gives the plaintiff massages, although his evidence about the frequency was somewhat inconsistent with the plaintiff’s. He said it occurs 4 days per week.
(e)The plaintiff will lie down from between 10 minutes and half an hour when he gets home from work about three days per week.
(f)The plaintiff suffers pain during long car trips.
I note at this point that assessing the causal effect of the accident is more difficult in relation to a number of these matters because exhaustion, the need for rest and additional support from one’s partner are all commonly experienced features of being the parent of a young child.
Medical evidence about the effect of the accident
Professor Michael Ryan, a clinical Associate Professor of Surgery, wrote several reports in 2013 and 2014, which became Exhibits D, F, G, H and I. His report of 15 July 2013 said of the plaintiff’s prognosis:
The effect of two levels of endplate fracture at the superior endplates of L3 and L4 will be to prematurely cause the L2/3 and L3/4 disc to dehydrate because of altered disc metabolism consequent on damage to the inferior endplates of both disks.
This will not necessarily cause spinal pain, but may contribute to it.
He mentioned that if the plaintiff were to develop severe disc space narrowing at either of those levels, spinal surgery was a remote possibility.
In oral evidence given in September 2013 Professor Ryan was of the view that it was significant that there was damage to the superior endplates of the L3 and L4 vertebrae. His evidence was that when there was damage to the endplates of a vertebral body it changes the metabolism of the disc. That change was significant for a young person because it may dramatically change the life of the disc. That damage was likely to cause degenerative change which may or may not be associated with pain. His view was that the damage had actually initiated the development of scoliosis.
He considered that because the plaintiff had suffered low back pain since 2008, he would not anticipate any great improvement in her condition.
His view was that she would require anywhere between two and four hours of domestic assistance per week.
In oral evidence in September 2014 Professor Ryan made it clear that he thought that it was not the scoliosis per se that was the cause of the plaintiff’s pain but rather the injuries to the two vertebral endplates. He considered the condition to be similar to lumbar osteochondrosis, which was described by Professor William Butler in 1955. He made it clear that one of the reasons why the plaintiff was not fully rehabilitated was because she needed to do an exercise program. However, he recognised that either due to the existence of pain or because of other things in relation to a person’s life, that kind of exercise program may not be possible to carry out.
In a report dated 25 November 2013 Dr Stevenson, consultant physician, accepted that the scoliosis, because of disc narrowing due to end plate damage, was a possible cause. He did, however, refer to a study of childhood vertebral fracture which indicated that it was not a risk for disc degeneration. He said that the milder scoliosis from which the plaintiff suffered was a good prognosis without surgery even on a 50 year follow-up. Pain was mostly absent, or when present, mild and non-disabling. He said that the scoliosis was not a serious pathology. The main issue was the plaintiff’s fracture and that was stable. He described her symptoms as intermittent, non-specific back pain. He thought that the milder scoliosis was statistically in the non-idiopathic direction but not caused by angulated fracture. He thought her mild scoliosis of itself was in a stable and benign condition. Patients with it have a slightly more than normal non-specific spinal pain but not to the point of disability. As to her prognosis he said:
She should have a good prognosis. She does not have major angulation. She may have a minor increased risk of non-specific back pain, probably non-disabling so long as she retains reasonable activity.
He considered that lifting restrictions were inappropriate and pointed to a study indicating no basis for long-term occupational restriction for patients with scoliosis. He said that in relation to disc injury it is difficult if not impossible to put lifting restrictions on a scientific basis and that those findings seem fairly applicable to other trauma.
Both Dr Ryan and Dr Stevenson thought that the possibility of surgery was remote and that maintenance of reasonable muscle fitness was important to the management of back pain.
Dr Ronald Shnier, a radiologist, examined the imaging available for the plaintiff and his conclusions were, in summary that:
(a)he agreed with Professor Ryan that there were traumatically induced fractures of the superior endplates of the L3 and L4 vertebrae as a consequence of the accident;
(b)the patient is at risk of intervertebral disc degeneration although there had been no appreciable change in the height of the disks since the accident and the latest films of 3 April 2013;
(c)the vertebral body fractures have healed completely;
(d)the plaintiff had scoliosis very early on in the x-rays but by 2013 the scoliosis does appear to have increased; and
(e)there was scoliosis present as at October 2008 but “in all probability the scoliosis has been aggravated by the accident”.
Dr Gauten Khurana, a consultant neurosurgeon, found that,
[The plaintiff’s] examination is relatively unremarkable and there is no concrete neurological signs whatsoever. She has some low back pain symptomatically, but the symptoms were in excess of any findings on the physical examination carried out. The prognosis to remain in the workforce, as long as she is not engaged in physical/significantly manual job, is very favourable. She is doing well at work currently.
He said that the superior fractures were mild and did not appear to be associated with any displacement. He thought that a mild amount of scoliosis was already present at the date of the accident and that had worsened in the 2013 x-rays but only subtly. He agreed with Professor Ryan that the scoliosis is likely to have been traumatically induced:
Given there has been some progression of scoliosis between the first x-ray in the last x-ray that I reviewed, five years apart, and given the mechanism of injury, I do believe on the balance of probabilities the scoliosis was probably the result of the accident.
He did not believe that the injury was causing any of the current symptoms, although that statement appeared to rely on the instruction that he was given that “[the plaintiff] was continuing with vigorous dancing at rave parties in 2009.” That instruction went somewhat beyond the evidence that the plaintiff actually gave in cross-examination, as will be apparent from my findings above. Dr Khurana did not believe the plaintiff presently needed any domestic assistance. He said, “she is able to manage by adapting to her environment and circumstances in an effective way.” He said, “mild low back pain cannot be ruled out and this would be attributable exclusively to the accident.”
In the light of this evidence my conclusions are as follows.
(a)The plaintiff suffered from mild scoliosis at the time of the accident and this has progressed slightly since the accident. That progression is as a consequence of the accident.
(b)Mild scoliosis, such as that suffered by the plaintiff, on its own, is not a cause of pain.
(c)However, the non-specific low back pain suffered by the plaintiff was caused by the accident, either by reason of vertebral end plate damage or otherwise.
(d)The possibility of future surgery being required is remote.
(e)The plaintiff would benefit from increasing muscular fitness in order to manage and control that ongoing back pain.
(f)There is a possibility that the fractures may contribute to the dehydration of the L 2/3 and L3/4 disks and this may contribute to spinal pain but not necessarily so.
Damages
General Damages
The plaintiff was involved in a significant motor vehicle accident. She was required to spend eight days in hospital. She was required to wear a brace for a number of months after that. She suffers from ongoing relatively minor back pain controlled by the consumption of paracetamol. Although some activities have been affected by her back pain, it does not have a significant impact upon her work capacity or lifestyle more generally. In my view an appropriate award of general damages is $90,000 with $50,000 attributable to the past.
Interest on $50,000 for the six years since the accident is $7,200 ($50,000 times 0.02×6).
Income loss
The plaintiff has some limitations on the work that she can do as a consequence of suffering from back pain. Prior to the accident the plaintiff’s ambition was to become a child-care worker. She went to primary school in Queensland. In 2004 she started high school in Queensland. She then attended a high school in New South Wales before moving to another school in Lockhart in 2006. She completed year 11 at the Lockhart Central School at the end of 2007. The plaintiff commenced year 12 at Lockhart Central School but in May 2008 she moved to Canberra to live with her father. She enrolled at Dickson College with the intention of completing year 12. She wanted to obtain her year 12 certificate so that she could become involved in child-care work. She had had that ambition for her whole life. The plaintiff comes from a fairly large family, her mother having six children at home at Boree Creek.
She had attended college for only two weeks when her dad went into hospital so she took some time off school. She intended to return to complete semester two of year 12, however, she had not returned to school at the date of the accident on 21 September 2008. As indicated above, she did attend Dickson College again after the accident but did not complete year 12.
When working for PANDSI in 2009 she was earning $17.58 per hour.
When working for the Latte Da cafe in Lockhart in 2010 she was earning $17.94 per hour.
When working for Bites Catering Services Pty Ltd in 2011 she was earning $19.17 per hour.
Working for ACT Coffee Supplies she was earning a base hourly rate of $16.50 per hour.
In 2014 she was earning $1,353 per fortnight gross, or $1,211 per week net. That corresponded to $605 per week net. Depending on the amount of overtime she did she earned up to $700 per week. The Child Care and Children’s Services Award, which was put into evidence, provided, as at 2013, that a Children’s Services Worker Level 1 would earn $534.50 per week in their third year of employment and thereafter. There are higher levels of Children’s Services Worker, Levels 2 to 5, earning up to a maximum of $722.80 for a Level 5 Children’s Services Worker with more than two years experience. Higher rates of between $712 and $862 per week are available for Assistant Directors through to Children’s Services Director Level 3. There are also rates of between $513 and $605 per week for Child Care Support Workers of Level 1 through to Level 4. The definitions associated with these positions were not disclosed in the evidence. The evidence did not disclose any plans on the part of the plaintiff to take on childcare work at any particular level. The rate of pay available for her one day a week job at PANDSI appears to correspond to approximately the rate payable to a Children’s Services Worker Level 4A with a rate of between $647 and $699 per week, although the rate that she was paid may have been inflated by the work that was paid on a casual basis, which is not made clear by the evidence.
Based on this evidence I am satisfied that, having regard to her family circumstances, the plaintiff is likely to have been motivated and well able to carry out the role of a child-care worker. I accept that, because of her back injury, she considered herself unable to do that work and that has resulted in some financial loss. Doing the best that I can based on the limited wage information that is available, I am satisfied that the wage loss corresponds to around $50 per week. However, there were periods when, due to other events in her life, it is unlikely that she would, in any event, have been deploying her higher wage earning capacity.
At the time of the accident the plaintiff was not working. I am not satisfied that she suffered any economic loss until the beginning of 2009. In the period from March 2009 until June 2009 it is not very clear what she was doing after she ceased employment with PANDSI. However, given that the plaintiff ceased the job with PANDSI because of back pain I will award damages at the rate of $500 per week for this period, being a total of $6,500. That rate reflects the modest net income that she would have been able to earn as a young person entering the workforce without a year 12 qualification. In the period July 2009 to December 2010 (six months) and March 2011 when she returned to Canberra until April 2014 when she ceased work due to her pregnancy (37 months), I will award damages at the rate of $50 per week. That gives a loss of $9,308 (3.58 years x 52 weeks x $50). In relation to the period from February 2010 until March 2011, when she returned to live at Boree Creek following the breakup of her relationship with her then boyfriend, I am not satisfied that she suffered any loss during this period causally related to the accident, as there is no evidence that better paying child-care work was available in Boree Creek or Lockhart and her move there was not caused by the accident, but rather that she had broken up with her boyfriend and wished to move back to live with her family for a period. This gives a total income loss of $15,808.
I will award interest on past loss, weighted towards to the earlier period, by awarding interest at Court Procedures Rules 2006 (ACT) rates on 60% of $15,808 over the period since January 2009, namely, $4,350.
In relation to the future, there are several features of this case which make prediction of the economic impact of her injury more difficult.
(a)There was no clear evidence as to the likely duration of her condition. Both Professor Ryan and Dr Stevenson recognised the potential for the plaintiff to benefit from improving her muscular fitness and hence reduce the impact of her back pain.
(b)The evidence about the precise cause of her condition given by Professor Ryan was not explained or elaborated upon in a way that would permit the relationship between her pre-existing back pain and the back pain that arose upon her pregnancy to be disentangled.
(c)The extent to which opportunities in the hospitality industry that might be available to her when compared with the opportunities available had she remained in childcare was not explored in the evidence.
(d)It is clear that she is likely to have significant time out of the workforce as a consequence of having children, although it is very hard to predict at this stage, only a few months after the birth of her first child, how long that will be. There will clearly be a financial incentive to return to doing some work but, how much work cannot be predicted at this stage. Further, it may be that hospitality-related work provides more opportunities for the part-time or night-time work that she would be in a position to do as opposed to child-care work, which is more associated with ordinary working hours.
In these circumstances I am satisfied that there is likely to be some ongoing diminution of earning capacity as a consequence of the back pain caused by the accident. That diminution arises because of the smaller range of jobs which are available to the plaintiff. Because the period over which the diminution will be productive of economic loss is so uncertain, the appropriate way of dealing with the issue is by way of a buffer. In my view, an appropriate buffer is the sum of $40,000. That is equivalent to the present value a loss of $50 per week over approximately 20 years or a loss of $100 per week over 8.75 years.
Superannuation loss
In relation to past superannuation, 11% of the net loss of income is $1,738 ($15,808 x 0.11). In relation to the future, Exhibit K was an extract from a publication by Furzer and Crestani, chartered accountants, which provides a basis for determining the rate to be applied to after-tax amounts to accommodate the requirements of the superannuation guarantee legislation. Those rates, published in October 2013, had intended to take account of the position from 1 July 2014. They might be applicable where an award other than by way of a buffer is made and in circumstances where the operation of the laws relating to superannuation were fixed. However, in the present case, where I have made an award by way of a buffer and there is presently some uncertainty as to when increases in the guaranteed rate of superannuation will apply, I think it is appropriate to apply instead of the rate of 13% of the net award. This gives a figure of $5,200 in relation to the future.
Griffiths v Kerkemeyer
In relation to domestic care, following the release of the plaintiff from the Canberra Hospital on 29 September 2008 the plaintiff stayed with her mother until December 2008 when she moved back to Canberra to live with her then boyfriend. That was just after she had removed the brace in accordance with Dr Fuller’s instructions and by 19 February 2009 she was not really experiencing too much by way of lower back discomfort. I am not satisfied that she received any domestic assistance caused by her injuries in the period after she moved back to Canberra to live with her boyfriend and his family. The evidence that she gave was, “I was able to shower myself and do all that kind of thing but his mum did the cleaning and cooking and he helped me with heavy lifting or anything like that.” That evidence was at such a degree of generality that I cannot be satisfied that the domestic work being done by her boyfriend’s mother was as a result of a need caused by the accident or simply the lot of long-suffering parents who have the pleasure of accommodating their teenage children’s boyfriend or girlfriend. As a consequence I will allow domestic assistance at two hours per day for the period of three months following her release from hospital. The rate for domestic assistance of this kind was agreed at $25 per hour. This gives a figure of $4,600 (92 x 25 x 2).
In relation to the period after that and until the present, the evidence as to any requirement for domestic assistance was limited. There was some evidence as to her mother and her current partner giving her massages. The evidence about this was either generalised or inconsistent. I accept there have been occasions when the plaintiff has had the benefit of massages from her mother and from her current partner. In relation to her mother I accept her evidence that massages were approximately once per week during the year she was at home in 2010, the equivalent of 25 hours at $25 per hour is $625.
During the period of the plaintiff’s pregnancy, having regard to the prevalence of back pain during pregnancy, I am not satisfied that the requirement for massages was attributable to the accident.
In relation to other domestic assistance, the evidence was not very clear. I accept that the plaintiff needed to be driven to and from her work in Lockhart. There was some evidence explaining the reason that she did not pursue the driver’s licence. In my view, it is likely that, but for the accident, she would have, either enthusiastically or reluctantly, obtained a driver’s licence and not required that kind of assistance from her mother. I will allow 35 minutes per day for 55 days shown on her wage records when she worked at the Latte Da cafe, giving a total of 31.25 hours at $25 per hour which equals $1,031. I will allow 20 hours for assistance by her mother in getting her to and from Canberra for appointments with Dr Fuller. This gives $500 (20 x $25).
In relation to other minor domestic assistance, I am not satisfied that the assistance given involves any consistent pattern of assistance beyond that which is likely to have occurred between a young couple in any event. However, there is likely to have been some additional assistance provided by Mr Allen and I will allow an additional 50 hours, which gives a sum of $1,250, to cover miscellaneous other matters, including massages given by Mr Allen.
This gives a total award for Griffiths v Kerkemeyer of $8,006. Interest on past Griffiths v Kerkemeyer was not claimed.
In relation to the future, the evidence was that the plaintiff has some difficulty with lifting her child and some lifting during the course of domestic work. There were no specific activities which were identified as activities that she would have done but for her back injury. It is clearly consistent with most young families with young children that there is a significant degree of sharing of domestic work in any event. Because of the uncertainties about the prognosis and duration of the plaintiff’s condition and the absence of any clear evidence about a change in the work undertaken by her partner as a consequence of the existence of her injuries, I am not satisfied that anything other than a modest buffer should be awarded in relation to the future. I am not satisfied, in the light of the inconsistencies in the evidence that massages occurred as frequently as indicated by the plaintiff and Mr Allen’s evidence, although I am satisfied that massages were occasionally given. I will award the amount of $5,000 in relation to Griffiths v Kerkemeyer in the future.
Out of pocket expenses
Out of pocket expenses for the past were agreed at $10,588. No claim was made in final submissions for interest on this amount.
In relation to the future I do not consider that it is appropriate to award damages for the remote prospect of surgery. Surgery was a merely theoretical possibility inconsistent with the known facts about the plaintiff’s back condition since the accident and with significant risks not recommended by either Dr Ryan or Dr Stevenson. Although damages may be awarded in relation to the chance of a future operation, that is not the case where the chance does not arise above mere speculation. The plaintiff continues to take Panadol to manage her pain. The evidence about the likelihood of that requirement continuing was limited. I will allow an amount of two dollars per week for 10 years for that medication, leading to an award of $900. Beyond that period would be mere speculation.
I will also allow a buffer of $2000 to take into account the chances that her condition may require further investigation and specialist treatment in the future. While the plaintiff’s history does not indicate that specialist review is likely, the prospect of disc dehydration and the long future which must be considered means that the chance of that occurring must be taken into account. That leads to a total award of $2900 for out of pocket expenses.
In summary the damages that I will award are as follows:
General Damages $90,000 Interest on past component $7,200 Income Loss Past $15,808 Interest on past $4,350 Future $40,000 Superannuation Loss Past $1,738 Future $5,200 Domestic Care Past $8,006 Future $5,000 Out of pocket expenses Past (agreed) $10,588 Future $2,900 Interest on past 0 TOTAL $190,790.00
The orders of the Court are:
1.Judgment be entered for the plaintiff against the defendant in the sum of $190,790.00.
2.The usual order as to interest.
3.The defendant is to pay the plaintiff’s costs as agreed or assessed.
4.Order 3 does not take effect for a period of 14 days and, if within that period either party notifies my associate by email that it wishes to be heard in relation to costs, does not take effect until further order of the Court.
| I certify that the preceding one-hundred and one [101] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Mossop. Associate: Date: 16 February 2015 |
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