Kamari v Simmonds-Thatcher
[2020] VCC 961
•6 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-18-04645
| SUDABH KAMARI | Plaintiff |
| v | |
| BRANDON JAMES SIMMONDS-THATCHER | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2, 3, 4, 5 and 9 June 2020 | |
DATE OF JUDGMENT: | 6 July 2020 | |
CASE MAY BE CITED AS: | Kamari v Simmonds-Thatcher | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 961 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Action for damages arising out of a transport accident on 14 November 2015 – causation – negligence of the defendant – contributory negligence of the plaintiff – method of calculation of loss of earning capacity in the future and past – assessment of general damages – “no case” submission by defendant
Legislation Cited: Transport Accident Act 1986; Evidence (Miscellaneous Provisions) Act 1958
Cases Cited:Masters Home Improvement Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88; Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594
Judgment: Defendant found 25 per cent liable for negligence for transport accident and plaintiff found 75 per cent contributorily negligent for transport accident. General damages assessed at $200,000. Pecuniary loss damages assessed at $315,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis with Mr B Johnson | Kenyon Lawyers |
| For the Defendant | Mr C J Blanden QC with Ms A L Wood | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This proceeding was a claim by the plaintiff for damages, both pain and suffering damages and pecuniary loss damages, from the defendant, arising from injuries that she received in a transport accident which occurred on 14 November 2015. The proceeding was conducted as a judge alone trial. The hearing was conducted by way of videoconferencing, referred to colloquially as a “Zoom” hearing.
2 A formal Court Order was made that the technical requirements pursuant to s42G of the Evidence (Miscellaneous Provisions) Act 1958 (“the Act”) are met and all parties consent to the making of the direction in this Order. The direction was made pursuant to s42E(1) of the Act. The effect of this Order was that all counsel and all witnesses appeared remotely from the Court.
3 At the close of the plaintiff’s case, the defendant made a “no case” submission. The defendant elected to call no further evidence. The “no case” submission was unsuccessful, and the matter proceeded to submissions from both parties.
The claim
4 On 14 November 2015, the plaintiff, together with her two children and other friends, had attended at a social gathering in the Glenroy area. At the conclusion of the social gathering, the plaintiff, together with her children and three of her friends and their children, engaged a maxi taxi to take them back to their respective homes. The first drop-off point was at the address of 60 Hartington Street in Glenroy.
5 The parties opened the case and then requested the Court attend at the scene of the collision for a view. The plaintiff and her legal representatives and the defendant and his legal representatives attended at the view, being at Hartington Street in Glenroy, which runs in a north-south direction. The scene of the accident was a short distance south of the T-intersection with Mitchell Street in Glenroy. Mitchell Street travels in an easterly direction from Hartington Street. There is a speed hump south of the intersection of Mitchell Street, which runs in an east-west direction across Hartington Street. The northern edge of the speed hump is 8 metres south of the intersection of Mitchell Street. The width of Hartington Street at the scene of the accident is 7 metres from kerb to kerb. The speed hump, itself, is 5 metres in width from the northern edge to the southern edge of the speed hump. Senior Constable Anthony Hull (“Mr Hull”), the attending police officer, gave evidence that the plaintiff was on the road after the accident, a distance some 10 metres south of the northern edge of the speed hump.
6 The defendant was travelling in a southerly direction on Hartington Street prior to the collision. The plaintiff was crossing Hartington Street from west to east on foot. At a point shortly north of Mitchell Street, Hartington Street veers generally in an easterly direction, but continues to travel in a north-south direction.
7 The plaintiff gave evidence that the maxi taxi came to a stop position outside the premises at 60 Hartington Street, Glenroy. She stated that the taxi stopped on the western side of the street. The front wheels of the taxi were on the speed hump and the rear wheels were on the southern side of the speed hump. The plaintiff stated that she was going to assist Mrs Faraji, who resided at 60 Hartington Street, Glenroy, to carry some items to her house.
8 The plaintiff was the first person to alight from the taxi by opening a sliding door on the western side of the taxi. At the time the plaintiff alighted from the taxi, she had a plastic bag containing a blanket belonging to Mrs Faraji. The plaintiff turned left to walk in a southerly direction to the rear of the taxi. She stated that she could see that there was no traffic travelling north along Hartington Street. When she got to the back of the taxi she walked across the rear part of the taxi. The plaintiff stated she stopped, looked to her right to see if any traffic was coming from the south, and then stepped out across the road in order to look to her left to see if there was any traffic coming from the north in Hartington Street. The plaintiff stated that she was then struck by the car. The plaintiff was unable to precisely say how many steps she took, but she thought it was one to two steps before she was struck by the car. She was walking.
9 The plaintiff, in her evidence, stated that she had no opportunity to look to her left before she was struck by the defendant’s vehicle. The plaintiff further stated that she was struck from the left and that the impact was to her left arm. The plaintiff was unable to say what part of the defendant’s car struck her. The plaintiff gave evidence that she was in a great deal of pain and lying on the road at a point south of the southern edge of the speed hump after the accident. She was near the kerb of Hartington Street on the eastern side of the road.
10 The plaintiff was attended to by ambulance officers and taken to the Royal Melbourne Hospital. The plaintiff was in a great deal of pain after the injuries to her left wrist and face.
11 The plaintiff conceded that she did not see the defendant’s vehicle prior to the collision. The plaintiff’s evidence was that she had no opportunity to look to her left and conceded that she did not look to her left prior to the impact. The plaintiff stated, when she stopped at the back of the taxi, she could not see to her left because of the taxi itself.
Leading Senior Constable Anthony Hull
12 The plaintiff called evidence from Mr Hull, who was the attending police officer on the day of the collision. Mr Hull had taken notes of his conversation with the defendant driver at the scene. The notes and measurements that he took of the scene were marked exhibit “D” in the proceeding. Mr Hull also prepared an incident report, which became exhibit “E”.
13 Initially, Mr Hull issued the plaintiff with an infringement notice for crossing the road when unsafe. He later withdrew that notice. I note that Mr Hull only had a short conversation with the plaintiff at the scene of the collision to verify her identity and was unable to communicate any further with her due to her lack of the English language and the pain she was in at the scene.
14 Mr Hull took notes of his conversation with the defendant in this case at the scene of the collision. The notes of the defendant’s conversation were in summary form. In the course of his evidence, Mr Hull was taken through what the notation meant. A fair summary of the conversation between Mr Hull and the defendant is as follows:
“I was travelling south along Hartington Street Glenroy. I slowed at the speed hump and saw the taxi stop. I saw a lady get out of the taxi. As I drove over the speed hump all of a sudden, this lady ran out from behind the taxi and ran across the road in front of me. I braked but hit her on the passenger side of my vehicle. After I hit her, she fell to my left onto the road.”[1]
[1]Transcript (“T”) 105
15 Mr Hull did not give any evidence in relation to the discussions with the defendant about the speed of the defendant’s vehicle at any of the following times:
(a) when the defendant first saw the taxi;
(b) when the defendant saw the plaintiff get out of the taxi;
(c) the speed of the vehicle at the approach to the speed hump; and
(d)the speed that the defendant’s vehicle travelled while going over the speed hump.
16 In this case, there was no direct evidence about what speed the defendant’s vehicle was travelling at any time prior to the collision. Mr Hull stated that the defendant had told him that he had seen the lady getting out of the taxi before he approached the speed hump.[2] Mr Hull also stated that the incident report prepared by him back at the station after he had left the scene of the collision noted that the initial point of impact was the left front panel of the defendant’s vehicle, and he described the level of damage to the vehicle as minor.[3]
[2]T105
[3]T111
17 Mr Hull noted that the defendant had a passenger by the name of Mr Tatar Tokerangi. Mr Hull noted that Mr Abdul Nagi was the driver of the maxi taxi. Mr Hull did not take statements from either of these witnesses at the scene of the accident.
18 Mr Hull gave evidence of the following measurements he took at the collision scene:
(a)the northern edge of the speed hump is 8 metres south of the intersection of Hartington Street and Mitchell Street, Glenroy;
(b)the width of the road surface in Hartington Street is 7 metres from gutter to gutter;
(c)the width of the speed hump is 5 metres from the northern edge to the southern edge;
(d)the plaintiff was on the roadway in Hartington Street at a point 10 metres south of the northern edge of the speed hump and near the driveway of 60 Hartington Street, Glenroy.[4]
[4]T106-107
19 Mr Hull stated that Hartington Street, at the point of the collision, was wide enough for a car to pass the parked maxi taxi, with approximately one metre either side of the moving car.[5] Mr Hull was unable to state whether or not the advisory speed hump sign of 20 kilometres was in position on the northern side of the speed hump on the day of the collision.[6]
[5]T116-117
[6]T124
Mrs Amar Faraji
20 Mrs Faraji was a resident at 60 Hartington Street, Glenroy. Ms Faraji gave evidence that the taxi became stationary opposite her home in Hartington Street. Mrs Faraji stated that the plaintiff was the first to get out of the taxi and was carrying a plastic bag with a blanket in it. Mrs Faraji, herself, was taking her child from the taxi to her home. Mrs Faraji stated that when she was closing the rear door of the taxi, she heard an accident. She did not hear any brakes prior to the accident and she just heard the other ladies in the taxi screaming after the accident. Mrs Faraji was unable to state how fast or slow the plaintiff was moving as she crossed the road. She did not see the collision itself. Mrs Faraji stated that the 20-kilometre speed hump sign was on the pole north of the speed hump on the day of the collision.[7]
[7]T134
Mrs Ziba Azerang
21 Mrs Ziba Azerang was also a passenger in the taxi at the time of the collision. Mrs Azerang stated that prior to the plaintiff leaving the taxi after it had stopped outside 60 Hartington Street, Glenroy, there was a conversation between the women in the taxi to organise holding the plaintiff’s youngest child. Mrs Azerang was unable to give any direct evidence of the circumstances of the collision, in particular, the speed of the defendant’s vehicle, whether it braked, or at what speed the plaintiff crossed Hartington Street prior to the collision.
Ms Sascha Curran
22 The final witness in this case was Ms Sascha Curran. Ms Curran was a legal assistant in the plaintiff’s solicitor’s firm, Kenyon Lawyers. Her evidence related to a conversation she had with Mr Naji, the taxi driver, in an attempt to obtain a statement from him. Her evidence was that Mr Naji stated he did not remember the accident.[8]
[8]T144
23 At the close of the plaintiff’s case, the defendant made a “no case” submission. No further evidence was called in the case. The only further evidence was tendered medical reports. I have previously made a Ruling in respect of the “no case” submission. The details of that Ruling are a matter of record and are part of my general considerations of liability in this case. The test I am now required to apply to the issue of negligence is different from a “no case” submission.
24 The plaintiff bears the onus of proof that the defendant failed to take reasonable care to avoid the risk of injury to the plaintiff as he was driving south along Hartington Street, Glenroy on 14 November 2015.
Analysis
25 The drawing of inferences in cases such as this require that the inferences are to be based on facts established by admissible evidence. The process of reasoning must constitute a valid inference that it is not to be speculation or guesswork. Where an inference is to be drawn in favour of a party who bears the onus of proof in the case, the conclusion must be ‘the more probable inference’ from those facts. In short, the inference drawn by a court must be reasonably considered to have a greater degree of likelihood than any other competing inference. In assessing inferences or determining whether an inference is to be drawn as a matter of probability, the tribunal of fact is not required to consider each primary fact, established by evidence, in isolation. The process is that the Court is to consider the totality of the facts together, giving effect to their united and combined force.[9]
[9]Masters Home Improvement Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88 at paragraph [101]
26 Mr Blanden, on behalf of the defendant, stated that there is no great need to deal with the inferences in this case, as the Court only needs to deal with the established facts to make a determination.[10] The plaintiff is the only witness who has given any direct evidence of the circumstances leading up to the collision. I have had the advantage of observing the plaintiff giving her evidence and being cross-examined extensively by Mr Blanden, on behalf of the defendant. I assess the plaintiff to be an honest and reliable witness in the giving of her evidence in respect of the issues of liability in this case. The plaintiff made the appropriate concessions during the course of her cross-examination and evidence in general.
[10]T309
27 There is no direct evidence in this case about what speed the defendant’s vehicle was travelling at any time, up until the point of collision. I accept, on the evidence before the Court, that the advisory speed sign of 20 kilometres was on the pole north of the speed hump on Hartington Street on the day of the collision. The only evidence of the defendant’s driving and observations prior to the collision is from the statement made by him to Mr Hull, the attending police officer. The defendant stated to Mr Hull that he first observed the plaintiff getting out of the taxi as he approached the speed hump. For that observation to be made by the defendant, he would need to be some considerable distance north of the northern edge of the speed hump so as to see the plaintiff on the other side of the maxi taxi. The plaintiff has had time to walk to the rear of the taxi and then across the rear of the taxi and stop. I accept that the plaintiff did stop prior to walking out onto Hartington Street in front of the approaching vehicle driven by the defendant. The plaintiff has then looked to her right in a southerly direction on Hartington Street and seen it was clear for her. She has then started to cross the road in an attempt to get an opportunity to look to her left for traffic coming from the north along Hartington Street. I accept the plaintiff’s evidence that she has taken one, perhaps two, steps prior to being struck by the defendant’s vehicle. I find that the plaintiff was walking, and not running, as stated by the defendant to the police officer, Mr Hull.
28 The plaintiff stated that she did not have an opportunity to see what was coming from her left. The inference is that once the plaintiff had stepped out onto the roadway past the rear right side of the taxi, she did not look in a northerly direction to see the defendant’s vehicle. That finding means that the plaintiff is predominantly responsible for the collision occurring.
29 The defendant is also negligent in causing the collision between his vehicle and the plaintiff. The basis of the defendant’s negligence is that he failed to keep a proper lookout as he was proceeding in a southerly direction along Hartington Street. The defendant’s evidence is that he observed a woman getting out of the taxi on his right as he approached the speed hump. He has continued at an unknown speed to cross the speed hump, when he next sees the plaintiff running across the front of his vehicle. I find that if the defendant did see the plaintiff alight from the taxi, that he must have been at a considerable distance from the speed hump when he first observed her. His failure to continue to observe or satisfy himself that the plaintiff was not in his pathway as he travelled along the roadway, is a basis for him failing to keep a proper lookout. I accept that the plaintiff would have temporarily been out of his sight due to the bulk of the taxi.
30 As you travel along this road, if the taxi was parked on the western side of the roadway, there is only room for the defendant’s vehicle and, at the most, a metre either side of it, as he travelled down the road. Given the nature of the roadway and the defendant’s observation of the plaintiff alighting from the taxi, it was incumbent upon him to travel at a speed where he could stop. While I am unable to find a precise speed of the defendant’s vehicle on approach to the speed hump and crossing the speed hump, I find that in the circumstances of this case, as outlined by the plaintiff, the defendant was travelling at an excessive speed. I do not accept the defendant’s statement to Mr Hull that the plaintiff was running from the back of the taxi across the road in front of him.
31 I find that the point of collision between the plaintiff and the defendant’s vehicle was to the left front area of the defendant’s vehicle. The approximate point of collision on the roadway was south of the southern edge of the speed hump in Hartington Street. The plaintiff had crossed over Hartington Street and was near the eastern side of Hartington Street when struck by the defendant’s vehicle. At a walking pace for the plaintiff, the defendant, if travelling at an appropriate speed, would have had ample time to avoid the collision.
32 There is no evidence in this case where the defendant’s vehicle came to rest after the point of collision. The police officer gave evidence that he could see no sign of braking by the defendant.
33 Mr Blanden submitted that the statement made by the defendant to the police officer was a statement tendered as to the truth of its contents. Mr Blanden relied upon the defendant’s statement that he had slowed as he approached the speed hump. In this case, there is no evidence of what speed the defendant was travelling prior to seeing the plaintiff or him approaching the speed hump. There was also no evidence as to what speed the defendant reduced his vehicle to as it approached the speed hump.
34 Mr Blanden also submitted that the plaintiff was invisible to the defendant, because she was behind the taxi as he approached the speed hump. The evidence, if the defendant’s statement is to be accepted, is that he saw the plaintiff getting out of the taxi, and this could only have occurred if he was some considerable distance north of the taxi and the speed hump, at the time of making that observation.
35 It is clear on the evidence that the plaintiff did move out onto Hartington Street from behind the taxi. This is the second time the defendant would have seen the plaintiff. It is the defendant’s failure to observe or watch for where the plaintiff was moving that gives rise to negligence on his part.
36 Mr Blanden submitted that the defendant braked before the collision. As I have previously noted, Mr Hull’s evidence was that there was no evidence of any braking on the roadway. There is also no precise evidence in the statements made by the defendant to Mr Hull as to where he actually applied his brakes and when. Mr Blanden stated that the situation presented to the defendant was that he had no chance of avoiding a collision with the plaintiff. That statement depends on a number of factors, including the speed with which the defendant approached the speed hump, the braking, if any, that took place, and, more particularly, what observation the defendant maintained as he approached the speed hump and travelled in a southerly direction along Hartington Street.
37 If I do not accept Mr Blanden’s submission that because the defendant saw the plaintiff getting out of the taxi, he was keeping a proper lookout, that part of the observation by the defendant if, indeed, he made it, was only the first part of his responsibility to keep a proper lookout as he was approaching the speed hump, and travelling between the taxi and the road on his left, travelling in a southerly direction on Hartington Street.
38 Mr Blanden also submitted that the speed of the defendant’s vehicle can be gauged by what he described as a relatively low-speed impact. The submission was that there was minimal damage to the defendant’s vehicle and that the initial injuries to the plaintiff were only a broken wrist and cut nose. In his submission, Mr Blanden submitted the plaintiff would have been projected forward approximately 3 metres by the collision. There was no evidence to support that proposition of the plaintiff being projected by the collision. I do not accept that what is described as minor damage to the defendant’s vehicle, or the injuries to the plaintiff, are proper indicators of the speed of the defendant’s vehicle prior to collision.
39 For all the above reasons, I find that the negligence of the defendant was a cause of the collision between his vehicle and the plaintiff on 14 November 2015.
Contributory negligence
40 I accept Mr Blanden’s submission that the plaintiff is a significant contributor to the cause of the collision. The plaintiff stopped behind the taxi and clearly saw that it was clear for her to cross the road, as there was no traffic travelling in a northerly direction along Hartington Street. The plaintiff, in her evidence, effectively conceded that she did not look to her left prior to walking out from the back of the taxi. Her evidence was that she did not have an opportunity to look to her left.
41 The fact that the plaintiff did not look to her left is the most significant causal factor in this collision occurring. If the plaintiff had looked to her left, she would have seen the approaching vehicle driven by the defendant, and either not continued with her path across Hartington Street or, alternatively, moved at a much quicker rate in order to get across the street before the defendant’s vehicle arrived.
42 The plaintiff could have remained behind the taxi and turned to her left so that she could have a view of southbound traffic along Hartington Street. She did not take that course.
43 I assess the plaintiff is 75 per cent responsible for the collision. I assess that the defendant is 25 per cent responsible for the collision.
Damages
44 As a result of the collision, the plaintiff has suffered a number of physical injuries. The predominant injury is to the plaintiff’s left wrist.
Left wrist
45 The plaintiff was taken from the scene of the collision by ambulance to the Royal Melbourne Hospital. She remained in the hospital from 14 November 2015 until her discharge on 20 November 2015.[11]
[11]Plaintiff’s Court Book (“PCB”) 46
46 On 14 November 2015, when the plaintiff was examined on her arrival at the Royal Melbourne Hospital, the trauma team noted as follows:
“… On examination she was tender over the left elbow and wrist, which was swollen. There was swelling across her face and nose. There were also abrasions over the left wrist and nose.”[12]
[12]PCB 45
47 The radiology examinations conducted on that day confirmed the following diagnoses:
“1) Oblique fracture through the left distal radius
2) Distal left radioulnar joint is disruption (DRUJ)
3) Right nasal laceration
4) Undisplaced nasal fracture.”[13]
[13]PCB 46
48 The plaintiff has undergone four separate surgical procedures to repair her left wrist:
· On 15 November 2015, the plaintiff was taken to theatre for operative reduction and internal fixation of the fracture to her left radius.
· On 18 December 2015, the plaintiff underwent surgery to insert K-wires to her left wrist to stabilise the repair.
· On 19 December 2015, the plaintiff was admitted to the Royal Melbourne Hospital Emergency Department with post-operative dizziness and chest pain.[14]
· On 22 February 2016, the plaintiff was examined under anaesthesia for the removal of the K-wires and to assess the stability of her left wrist.[15]
[14]PCB 46
[15]PCB 46
49 Following the operative procedure on 22 February 2016, the plaintiff complained of ongoing pain and burning in her left wrist. The diagnosis at that time was scar neuroma, and the plaintiff was encouraged to continue with hand therapy. The pain and burning sensation continued to be suffered by the plaintiff.
50 An MRI scan performed on 21 July 2016 revealed that the ulnar styloid fracture was still ununited and the distal left radial ulnar joint reduction (“DRUJ”) had not improved. On 1 October 2016, a cortisone injection was administered in the Royal Melbourne Hospital Orthopaedic Outpatients’ Clinic to the plaintiff’s left wrist.
51 On 21 October 2016, the plaintiff underwent a neurolysis of the palmar cutaneous nerve to alleviate the burning pain she experienced in her left wrist. The plaintiff has had no further surgery on her left wrist and she has had extensive hand therapy and physiotherapy treatment to alleviate the pain and lack of mobility in her left wrist. The plaintiff has also been prescribed Lyrica and Zoloft, and analgesia, to deal with her pain and depression. The prescription of Lyrica was altered to Clonidine and Amitriptyline in June 2017.
52 In July 2018, the plaintiff was referred to Advanced Healthcare, Boronia, for pain management by her general practitioner.[16] The plaintiff completed a network pain-management program. The plaintiff was encouraged to continue with physiotherapy and home and gym-based exercise to help with her symptoms. The plaintiff continues with that treatment and exercise routine to the time of the trial.
[16]PCB 53
53 The plaintiff had moved to live at Warragul in the week prior to the trial. The plaintiff’s move to Warragul was a condition of her visa to be in Australia. The temporary effect of the move to Regional Victoria is that her medical treatment has been interrupted, with a further change of general practitioner being necessary.
54 Mr Russell Miller, orthopaedic surgeon, has examined the plaintiff on a number of occasions for the purposes of this proceeding. Mr Miller’s last substantial report was dated 5 August 2019. This report was tendered in evidence. Mr Miller was not required for examination by the defendant. In his report, Mr Miller stated as follows:
“Currently Ms Kamari reports the following symptoms:
° Left Hand/Forearm/Wrist
This is her major problem. She has ache, discomfort and pain in the left forearm, hand and wrist with feelings of numbness and tingling in the hands. She has difficulties with activities of daily living and has noticed a loss with dexterous work and power work. She states her symptoms fluctuate. She feels they are ‘worse’ than when she was last reviewed by me. They continue to cause her sleep disturbance.
… .”[17]
[17]PCB 84
55 The plaintiff reported taking Panadeine Forte, Moxicam, Amitriptyline, Lyrica and Panadeine Forte as medications. The plaintiff was having weekly physiotherapy.
56 On examination of the plaintiff’s left forearm and wrist, Mr Miller noted the following:
“Left Forearm/Wrist
Examination of the left wrist revealed scars along the volar aspect of the wrist. There was diffuse tenderness and hypersensitivity. The range of motion was:
Dorsi Flexion 20°
Palmar Flexion 15°
Ulnar Deviation 10°
Radial Deviation 10°
There was marked irritability during wrist movement.
Neurological Examination- Left Upper Limbs
Neurological examination revealed markedly diminished sensation involving the thumb, index and middle fingers. There was wasting of the thenar muscle. There was marked weakness of finger flexion and wrist flexion.
… .”[18]
[18]PCB 86
57 Mr Miller’s opinion was:
“° Left Forearm/Wrist
The client suffered a severe injury to the left forearm with a fracture of the distal radius and ulna for which the client has undergone a sequence of operations. The injury has been associated with median nerve injury and the client is not planning to undergo further reconstructive surgery.
… .”[19]
[19]PCB 87
58 In Mr Miller’s opinion, it was reasonable for the plaintiff to decline any further surgery for her left wrist and arm.
59 Mr Miller then addressed the plaintiff’s capacity for work. He stated as follows:
“From the point of view of the left upper extremity the client will have difficulty with work that involves repetitive left arm actions, use of the left arm for power work or dexterous work.
From the point of view of her cervical and lumbar spine injury she will have difficulty with work that involves repetitive bending, repetitive lifting, lifting of weights more than 5 kilograms and will have a requirement to shift her posture on a regular basis.
Given my understanding of this lady's age, education level and limited language skills a return to work will be difficult to achieve in this case.”[20]
[20]PCB 88
60 The plaintiff has continued to engage in English classes two days per week and has expressed and ambition to work in childcare. While an ambition to work in childcare was described in submissions as “aspirational”, it is a clear indicator that the plaintiff does intend to resume some paid employment in the future. Her ability to engage in physical work involving repetitive use of her left arm and wrist is limited and accepted by the medical opinions in this case as not suitable for the plaintiff.
Psychiatric injury
Dr Prem Chopra, consultant psychiatrist
61 The plaintiff was referred to Dr Prem Chopra as a part of the multidiscipline care plan to assist her.[21] Dr Chopra reported the plaintiff expressed a pre-occupation with pain and the impairment of her level of functioning due to the injury to her wrist. The plaintiff described intrusive thoughts. Dr Chopra diagnosed the plaintiff as suffering from the symptoms of Post-Traumatic Stress Disorder (“PTSD”) arising from the transport accident on 14 November 2015.[22]
[21]PCB 49
[22]PCB 50
62 Dr Chopra referred the plaintiff for counselling by a psychologist. The plaintiff was receiving counselling from Dr Joanna Paterson, psychologist, at Advanced Healthcare until she moved to Warragul. There was no report tendered by Dr Paterson, so a proper assessment of how the PTSD treatment has progressed is not possible on the evidence.
Dr Nathan Serry, psychiatrist
63 The plaintiff was examined by Dr Nathan Serry, psychiatrist, in October 2017. He noted the plaintiff was suffering from a degree of pre-existing stress, given the plaintiff’s marital breakdown and adjustment issues in the process of coming to Australia as a refugee. Dr Serry’s opinion was the plaintiff was suffering from a level of depression due to pain and loss of function due to the injury to her left wrist.[23] The plaintiff has been prescribed Zoloft prior to the 2017 appointment with Dr Serry but was no longer taking that medication at the time of the appointment.
[23]PCB 107
64 I find the plaintiff has suffered symptoms of PTSD as a result of the transport accident. I accept that due to the pain to her left wrist and the resultant disability, that the plaintiff has, in the past, suffered from Depression as a result of the transport accident. I find that the plaintiff’s psychiatric symptoms are improving as time goes by and that the plaintiff’s psychiatric symptoms will decrease into the future.
Neck and back
Dr Navid Hamedani, general practitioner
65 The plaintiff also complains of neck and back symptoms, which were caused by the transport accident. The plaintiff’s general practitioner, Dr Navid Hamedani, in his report dated 10 February 2019, sought approval for a medical branch block procedure to the L2, L3, L4 and L5 bilaterally, to determine the extent of the injury to the plaintiff’s spine.[24] The procedure did not take place.
[24]PCB 68
66 The plaintiff had an MRI scan of her lumbar spine on 9 June 2018.[25] The plaintiff was complaining of lumbar back pain. The comment on the bottom of the radiological report states as follows:
“There is pathology in the lumbar spine which may account for back pain. There is no radicular compression. Post-traumatic pathology is not seen.”[26]
[25]PCB 48
[26]PCB 48
67 Mr Miller has reviewed an MRI scan of the cervical spine and the lumbar spine of the plaintiff. In his report of 9 September 2019, he opines as follows:
“° MRI- Cervical Spine
This revealed evidence of degenerative disease in the mid cervical level with moderate foramina! stenosis at the C3/4 level. No other abnormalities noted.
° MRI- Lumbar Spine -19/06/2018
This revealed loss of disc signal at the L4 and evidence of degenerative changes at L4/5 and L5/S1. There is no evidence of disc prolapse or neurological compromise.”[27]
[27]PCB 90
68 Mr Miller went on to state as follows:
“I refer to my report dated 05/08/2019, section 4, sub point, cervical spine and lumbar spine. This confirms my view that the client has suffered a musculo-ligamentous strain and aggravation of degenerative disease in the cervical and lumbar spines. There is no evidence of other pathology and I remain of the view, the prognosis for the cervical and lumbar spine is only fair.
In terms of requirement for further treatment, the client is unlikely to require any form of surgical intervention for the spine.”[28]
[28]DCB 91
69 The aggravation of the plaintiff’s lumbar spine and cervical spine as a result of the transport accident have resulted in additional pain and limitation of the plaintiff’s ability to work and enjoy her life.
TMJ Derangement
Mr George Dimitroulis, oral and maxillofacial surgeon
70 The plaintiff claims to have suffered an internal derangement of her temporomandibular joint (“TMJ”) as a result of the transport accident. Mr George Dimitroulis, oral and maxillofacial surgeon, has examined the plaintiff and given an opinion that the diagnosed internal derangement of the plaintiff’s TMJ is likely to be caused by the transport accident.[29] Mr Dimitroulis advised surgery to rectify the symptoms of pain in the mandibular condyles of the plaintiff’s jaw. The plaintiff’s complaint of jaw pain came to light in 2019. The jaw pain symptoms have not been longstanding since the transport accident and the future prognosis is unclear, as the bilateral arthroscopy to the plaintiff’s TMJ’s has not taken place. The symptoms and complaints set out by the plaintiff in respect of her jaw condition are a relatively minor part of the loss of her enjoyment of life and suffering in the past and the future.
[29]PCB 67
Scarring
Mr Murray Stapleton, plastic and hand surgeon
71 The plaintiff has suffered scarring to the inside and outside of her left wrist as a result of the operations to it. The photographs of the scarring were in exhibit “B” in this proceeding, and because the matter was heard by videoconferencing process, a proper view of the plaintiff’s scarring could not take place. The scarring to the left wrist is obvious and more prominent on the inner aspect of the plaintiff’s left wrist. Mr Murray Stapleton, plastic and hand surgeon, examined the plaintiff’s scarring and noted as follows:
“The scar on the flexor surface of her left wrist is 6 cm in length. On the back of the wrist, on the ulnar side, is a 5 cm vertical scar and there is a 2 cm scar extension, which runs towards the thumb side. She has a 1 cm scar on the nasal rim on the right-hand side.”[30]
[30]PCB 94
72 On examination, the scars were not ulcerated, depressed or elevated, and not attached to underlying tissue or bone. The scars were soft and smooth. In Mr Stapleton’s opinion, it was the tenderness of the scars that interfered with the plaintiff’s activities of daily living. The scarring had stabilised and could not be improved by further surgical revision.[31]
[31]PCB 95
73 The scarring to the plaintiff’s left wrist is a reminder to her of the accident, and the main feature is the appearance and tenderness of the scars of her wrist, which are permanent.
74 In her submissions, counsel for the plaintiff submitted the appropriate figure for pain and suffering and loss of enjoyment of life, both past and future, was $300,000. Counsel for the defendant submitted the appropriate figure for general damages was $150,000.
75 I take into account all the matters referred to in the evidence of the plaintiff and the medical opinions expressed in respect of each of the injuries to the plaintiff when assessing the appropriate figure of general damages. The treatment the plaintiff has undertaken, including surgery, physiotherapy, psychological counselling and pain management treatment, has been successful in ameliorating the symptoms of pain and disability. The main problem for the plaintiff is, and always was, the injury to her left wrist.
76 I assess the sum of $200,000 as a fair and reasonable award to the plaintiff for all the pain and suffering and loss of enjoyment of life that she has suffered in the past, and will sustain in the future, as a result of the injuries she incurred as a result of the transport accident on 14 November 2015.
Pecuniary loss damages
77 The plaintiff claims past loss of earnings and future loss of earning capacity as a result of the injuries she suffered in the transport accident on 14 November 2015. The claim by the plaintiff is a claim for total loss of work capacity, both from the time of the accident to the date of the trial and into the future. At the time of the transport accident, the plaintiff had been in Australia since 2013. The plaintiff only worked a two-day trial at Artin Trade International on 5 and 6 November 2015.[32] Her pay was to be $281 gross per day. She was offered full-time work to commence on 15 November 2015. Due to the accident, the plaintiff did not take up that paid employment.
[32]T21
78 The plaintiff had separated from her husband in 2014, the year before the transport accident.[33] At the time of the transport accident, she was the sole carer for her two children, then aged four years and six months. She was forty-one years old. The plaintiff’s evidence was that she would have worked full time at Artin Trade International as a picker and packer of second-hand clothes.[34]
[33]T22
[34]T21
79 The plaintiff’s counsel filed a document entitled “The Plaintiff’s Claim for Loss of Earnings and Loss of Earning Capacity” dated 4 June 2020. The detailed calculations for past loss of earnings are set out in that document. In summary, the plaintiff claims a loss of $712 net a week as at the date of the accident (and applied an annual 3 per cent increase to weekly earnings for the period from 14 May 2017 to 4 June 2020). The period between the date of the accident and 14 May 2017 is excluded from the calculations due to the operation of the provisions of the Transport Accident Act 1986. The total net past loss for that period was calculated to be $127,000. The plaintiff also claims loss of superannuation at 9.5 per cent of the annual net losses for the same period, calculated to be a total of $13,800. The total net loss was said to be approximately $140,800.
80 The plaintiff had not worked previously in Australia, except for the two-day trial at Artin International. The plaintiff had worked as a carpet weaver in Iran and completed a hairdressing apprenticeship in Iran prior to coming to Australia as a refugee. At the time of the transport accident, the plaintiff was a single parent caring for very young children. There was no evidence in this case about the childcare arrangements for the children while she was to undertake full-time employment. In the period between the transport accident and the trial, the plaintiff has undertaken English classes two days a week from 9.30am to 3.00pm each day. On two other days of the week, she has taken cooking classes and sewing classes for the same period of time.
81 The normal contingencies of life, such as illness, unemployment, other accidents or other issues arising from caring for her own children without extended family support here in Australia, all give rise to the application of a discount to a straight arithmetic calculation of loss of earnings, past or in the future.
82 The fact that the plaintiff was able to engage in courses, particularly cooking and sewing classes, are indicative of the fact that she has the capacity to use her arms in the bilateral sense. The plaintiff is right-hand dominant and does have a restriction on her driver’s licence to make use of a knob on the steering wheel of the car. The extensive attendance at English classes will mean her language barrier to employment opportunities will decrease and her chances in the future for employment will be enhanced accordingly.
83 The plaintiff gave evidence of an ambition to study childcare for future work. This work would be suitable given her non-dominant hand limitations, and her eagerness to pursue this course is evidence that she can do it. The plaintiff’s counsel described this ambition as “aspirational”. I assess the plaintiff as a person who is going to make the best of her opportunity in her new country, Australia. While the injuries received in the transport accident are a setback for her, she impresses me as someone who will do everything to improve her life, that includes getting back to paid employment and looking after, and making opportunities, for her two young children.
84 The plaintiff’s counsel argued that the appropriate manner to calculate the future loss of earnings was the age of sixty-seven, as follows: Net earnings per week x 632.1 = $519,000, approximately.
85 The plaintiff also particularised a superannuation claim based on 9.5 per cent of the loss, being a total figure of $56,700. The total loss of earnings was approximately $575,000. The plaintiff submitted that a 15 per cent discount for vicissitudes reduced the total claim for loss of earning capacity in the future to $489,000.
86 In this case, there was no evidence the plaintiff was going to work until the age of sixty-seven years. There was no evidence of the net weekly earnings of a childcare worker. In this case, there was no evidence of the time it would take for the plaintiff to be qualified as a childcare worker and her prospects of obtaining that type of work in Warragul, or wherever she may live, to obtain that employment. For the past loss of income assessment, I am required to take into account the following matters:
(a)the arithmetic calculations setting out the loss of approximately $140,000;
(b)the fact that the plaintiff was a sole carer for two very young preschool children;
(c)the plaintiff had no extended family support in Australia;
(d)between 2014 and 2018, she was going through divorce proceedings with her husband, including some potential Department of Health and Human Services involvement with respect to her children;
(e)the plaintiff was able to attend English classes for two days per week, cooking classes one day a week and sewing classes one day a week. The class sessions were from 9.30am to 3.30pm each day;
(f)the plaintiff had limited English skills and no formal education beyond the equivalent of Grade 3 here in Australia. Employment opportunities would be limited to physical work;
(g)while the role at Artin Trade International was lined up and full time, there was no evidence or guarantee about how long that the job would last;
(h)the fact that the plaintiff was doing the courses for four days a week, improving her chances of employment in the future, means she could not be in paid employment at the same time as doing the course.
87 After considering all of the matters, I assess the plaintiff’s past loss of income, including superannuation, at $70,000. Mr Blanden, on behalf of the defendant, submitted that the appropriate manner to assess the loss of earning capacity was pursuant to the principles in Victorian Stevedoring Pty Ltd v Farlow.[35] Mr Blanden submitted that the defendant took no issue with the arithmetic calculations submitted by the plaintiff. The defendant’s submission was that the plaintiff’s method and assumptions were incorrect. I do not accept that this case is a Farlow case when it comes to the proper way of calculating the loss of earnings or loss of earning capacity. The common feature between the Farlow case and this case is the non-dominant hand or wrist injury. The application to employment and employment opportunities are completely different between the two cases.
[35][1963] VR 594
88 I find that the appropriate way to assess the future loss of earnings and superannuation as a capital sum in today’s money value is to calculate the net weekly loss and apply the appropriate multiplier. Once that figure is arrived at, then the discount for vicissitudes is to be applied to arrive at a fair and reasonable compensation for loss of income earning capacity in the future.
89 The factors to take into account when assessing fair and reasonable compensation for future loss of earning capacity for the plaintiff are as follows:
(a)What age would the plaintiff have worked to, be it sixty-seven years or some earlier or later time in her life?
(b)What would her net income per week be: $821 as posited, or some higher or lower figure as a childcare worker, or in some other employment?
(c)What chances of unemployment, illness or other family setbacks meaning she could not work, such as childcare and the like?
(d)What chance of the plaintiff getting work in Warragul as a childcare worker or some other capacity?
(e)Would the plaintiff move her place of residence to obtain work?
(f)Would the plaintiff work full time or part time, given her role as the sole carer for her children?
(g)What chances of promotion to increase the plaintiff’s earnings once she obtained employment?
(h)While this was not raised directly in this case, whether or not the plaintiff would repartner, and what influence that would have on her employment in the future?
(i)The plaintiff is forty-five years old and is basically an unskilled labourer with limited English skills; and
(j)What delay time between now and the qualifications for childcare, or some other employment in the future?
90 If the above matters are factors going to the assessment of the vicissitudes applicable to the plaintiff, on the basis of all the evidence, I am satisfied that the net weekly loss would be approximately $820. Given the uncertainties of looking into the future and the lack of clear evidence the plaintiff intended to work to age seventy, I do accept that she intended to work for as long as she could to advance her life and that of her two children. I accept that $632 is an appropriate multiplier to apply in this case.
91 While I accept the plaintiff is, and was, optimistic about her prospects for her working life generally and her ability to earn income into the future, I assess her vicissitudes of a 50 per cent discounted figure, not the 15 per cent as submitted by her counsel. The pecuniary loss damages are the addition of $70,000 for the past loss of income and $245,000 for the future loss of income. The plaintiff’s total pecuniary loss damages are $315,000 as a result of the transport accident on 14 November 2015.
Conclusion
(1)The defendant’s negligence is a cause of damage to the plaintiff.
(2)The plaintiff is contributorily negligent in the cause of the collision to her.
(3)The defendant is 25 per cent negligent and the plaintiff is 75 per cent negligent.
(4)The plaintiff’s general damages for pain and suffering and loss of enjoyment of life are assessed in the sum of $200,000.
(5)The plaintiff’s total pecuniary loss damages are assessed in the sum of $315,000.
92 I grant leave to the parties to make submissions on the appropriate orders for judgment, interest and costs.
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