Kelly v Culakovski
[2014] VCC 950
•18 July 2014 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-05493
| MARCELLE KELLY | Plaintiff |
| v | |
| ALEX CULAKOVSKI | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16, 17, 18, 19, 20, 23 and 24 June 2014 | |
DATE OF JUDGMENT: | 18 July 2014 (Revised) | |
CASE MAY BE CITED AS: | Kelly v Culakovski | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 950 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – injury to shoulders and neck – aggravation of migraines –pain and suffering – medical and like expenses – loss of earning capacity.
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; Smith v Gellibrand Support Services Inc [2014] VSCA 20; Wilson v Collingwood Store Pty Ltd [2014] VSCA 20; O’Donnell v Reichard [1975] VR 916; Jones v Dunkel (1959) 101 CLR 298; JLW (Vic) Pty Ltd v Tsiloglou & Ors [1994] 1 VR 237
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R McCredie with Ms S A Lean | Lennon Mazzeo Lawyers |
| For the Defendant | Mr D Masel SC with Mr C S O’Sullivan | Lander & Rogers Lawyers |
HIS HONOUR:
1 On 28 August 2009, Marcelle Kelly had been shopping in Burke Road, Camberwell. She was about to enter her parked vehicle when a section of marble (or similar material) fell from a nearby shopfront and struck her on her head (“the accident”).
2 Mrs Kelly alleged that her injuries were caused by the negligence of the defendant, who is the owner and occupier of the premises from which the material fell. He has admitted that negligence on his part was a cause of injury to her.
3 Mrs Kelly seeks damages for pain and suffering, past and future medical and like expenses and for loss of earning capacity.
4 The parties are in dispute as to the extent of injuries suffered by Mrs Kelly in the accident and the expenses and loss of earnings attributable to it.
Background
5 Mrs Kelly was brought up and educated in Melbourne. She completed her VCE and has obtained various other qualifications to which I will later refer. At the time of the accident, she was employed by Trewarne Antique & Fine Jewellery Pty Ltd (“Trewarne”), a family company commenced by Mrs Kelly’s grandfather. Trewarne operated various retail jewellery shops, originally in the City, but in more recent times, at various suburban locations, including at the Chadstone Shopping Centre.
6 Trewarne is currently owned jointly by Mrs Kelly’s father and by her brother, Travis Trewarne, who is managing director.
7 Mrs Kelly had always been a keen skier and snowboarder. She had learnt at an early age, and I accept, that she was a talented snowboarder. At one point, she had envisaged that she might have progressed to the elite competition level but that did not occur. Nevertheless, I accept that she was a competent skier and snowboarder who enjoyed those sports.
8 Mrs Kelly married Michael Kelly in 2007. She had met him some years earlier through snowboarding. It was a sport that they enjoyed together.
9 Mrs Kelly has two daughters – Winter, born in May 2008 (about 15 months before the accident) and Odette, born in September 2010 (about 13 months after the accident). They are now aged six and three respectively.
10 From about the age of ten, Mrs Kelly had suffered from migraine headaches. She recalled taking medication in the form of Mersyndol, which she said would put her to sleep for periods of about eight hours, after which her symptoms would resolve. Some years later, a new medication, Imigran, became available, and this proved helpful for her. Her evidence was that with Imigran, her migraines would usually disappear within three hours, following which she felt normal. She recalled taking Imigran during her last years at school. She was no longer required to spend days in bed as a consequence of her migraine episodes. Nevertheless, she recalled that she continued to suffer from a migraine headache about once every fortnight during this period, unless something particularly stressful occurred, in which case they would occur more often.
11 Despite her condition, she was able to engage in skiing activities. She took part in races for her school. She regularly went on skiing holidays.
12 Mrs Kelly commenced working on a casual, part-time basis with Trewarne whilst she was still at school. She worked during school holidays and on Saturday mornings.
13 On leaving school, she had initially hoped to study landscape design but did not do well enough in her final school year to be accepted into such a course. She worked for a time for Trewarne and then spent a year overseas. Soon after her return, she recommenced work for Trewarne. She was engaged in the sorting of diamonds and gems, customer service, watch repairs, window displays and administrative work for the company at one or other of its retail outlets.
14 Mrs Kelly obtained qualifications in Antwerp. She completed a course as a diamond technician, diamond grader, and became a qualified gemmologist. She later qualified as a jewellery valuer.
15 In this period, she said her general health was good. She engaged in tennis, golf, swimming and running. She enjoyed outdoor life.
16 Mrs Kelly worked at the Trewarne stores at Chadstone, South Melbourne, Templestowe and Southland. She performed some duties from home, where she was able to work on a computer linked to the company, and perform work relating to stock records.
17 Notwithstanding her evidence as to her prior good health, the history given by her various doctors indicated that, prior to the accident, she experienced significant problems with headaches and migraines.
18 A history taken in recent times by Dr Richard Sullivan was of a long history of headache problems spanning back to her childhood, with a strong family history of migraines, with both her mother and father suffering from that condition. She had tried a significant number of medications to treat the migraines, including prophylactics such as beta-blockers, tricyclics and gabapentinoids.[1]
[1]Court Book (“CB”) 62 (Exhibit M)
19 In May 2006, she was referred by her general practitioner, Dr Popescu, to Dr Richard Peppard, a neurologist. Dr Peppard obtained a history from her, which he recorded as follows:
“She has a headache tendency that dates back to when she was about 10 years old, with frequent and disabling migraines through late childhood, adolescents (sic) and early adult life. The headaches would occur almost weekly and would often be disabling for days at a time.”[2]
[2]CB 19 (Exhibit L)
20 There was no evidence from Dr Popescu, a doctor who I would have expected to know of Mrs Kelly’s general health in the years leading up to May 2006, of the extent of her problems leading up to that time, her complaints concerning headaches or migraines, and of any treatment provided for such complaints.
21 In May 2006, Dr Peppard reported back to Dr Popescu that Mrs Kelly had a long history of migraine dating back to the age of ten, with frequent headaches through late childhood and adolescence. He stated:
“She gets a headache most days which starts with tightness along the upper border of the trapezius in her shoulders, spreading to the upper posterior cervical and occipital region and then settling in the temporal region. If it lodges on the right side, the headache may be severe and she may require Imigran. With the Imigran she feels tired and has some tightness in her neck but often the most severe headaches are stopped. If the headache is on the left side, it can be less severe. Mild-to-moderate headaches occur most days and may be partially controlled with Panadol and Nurofen.”[3]
[3]Exhibit 6
22 In 2006, Dr Peppard commenced treating Mrs Kelly by means of Botox injections. At the time, Botox was a new method of treatment for migraines. It had previously been administered to treat conditions such as Parkinson’s disease. Botox was injected to various parts of her head, face and neck. Such treatment proved successful in controlling her headaches and migraines. Dr Peppard described it as an “outstanding result”. Mrs Kelly had apparently described the result to him as “life transforming”.[4] These injections were given at intervals of about three months. After such time, it appears that the effect of the Botox wore off and headaches and migraines resumed. She would then receive further Botox treatment.
[4]CB 19 (Exhibit L)
23 Mrs Kelly’s evidence was that when she had previously suffered from a migraine, she would need to retire to a darkened room and lie down. On any view, they were quite debilitating.
24 By July 2007, Mrs Kelly was seeing a Dr Sitlington as her general practitioner at a medical clinic in Surrey Hills. She became pregnant with her first child in the latter part of 2007. During the course of that pregnancy, her headaches and migraines spontaneously ceased. She took about four weeks off work. Her headaches and migraines resumed some months after the birth of her child.
25 Botox injections were discontinued during her pregnancy. Continuation of such treatment during pregnancy was assessed as a health risk. As it turned out, the treatment was unnecessary due to the spontaneous cessation of headaches and migraines.
26 By April 2009 (about four months before the accident), Mrs Kelly’s headaches and migraines had returned. She requested further Botox from Dr Peppard, who referred her to Dr David Prentice, another neurologist, for such further treatment. In a letter to Dr Peppard dated 1 April 2009, Dr Prentice stated:
“She has suffered from migraines since the age of ten and now has problems with chronic daily headache, with a strong cervico-genic component, but some migrainous features.”[5]
[5]Exhibit 5
27 Dr Prentice injected her with Botox in early April 2009.
28 I accept that the histories referred to by Dr Peppard and Dr Prentice, and set out above, accurately reflect what she told them at the respective times.
29 Mrs Kelly had not been happy with Dr Prentice’s manner and, in July 2009, she returned to Dr Peppard for further Botox treatment. He recorded that in both April and July 2009, she had had a very good and predictable response to the Botox treatment.[6]
[6]CB 19 (Exhibit L)
30 Mrs Kelly continued to see general practitioners at the Surrey Hills clinic and from about February 2008, mainly saw a Dr Marchant, who she has continued to see up to the present time.
The accident
31 On 28 August 2009, a section of granite or marble fell from a shopfront and struck Mrs Kelly. Although she did not see it fall or strike her, that it did so is not in issue. She recalled standing beside her car, about to place her young child in the car. Her next memory is of lying on the bitumen roadway of Burke Road and of her body lying over the gutter and kerb. She was no longer holding her child. She heard the child crying nearby and observed her to be in the arms of her mother-in-law with whom she had been shopping.
32 An ambulance was called. She was placed in a neck brace and taken to the Epworth Hospital. There, she had a CT scan of her brain and x-rays of her cervical and thoracic spine. No abnormalities were detected. She was discharged home.
Post-accident
33 Soon after the accident, Mrs Kelly saw an osteopath, who suggested that she wear a cervical collar. Her right arm and hand were tingling. This symptom has since resolved.
34 Mrs Kelly alleges that her headaches and migraines returned in an aggravated and debilitating form. She states that Botox treatment since the accident has not provided the same relief from headaches and migraines as it did before. She alleges that her condition has not resolved and she has been unable to work to the same extent as she did before the accident.
35 Mrs Kelly continued with treatment from Dr Peppard. It is likely that Botox treatments were administered in October 2009, October 2010 and December 2010.
36 In January 2010, she again became pregnant. With this pregnancy, her headaches and migraines did not cease. They continued. The evidence of Dr Peppard was that it was not uncommon for persons suffering from migraines to have spontaneous relief from that condition with a pregnancy. However, the degree of such relief might vary from one pregnancy to the next. It was not uncommon for a person to experience relief from symptoms with one pregnancy and no relief during the next.
37 Dr Peppard prescribed Deralin as a migraine prophylactic agent for a short time but this caused some increase in her headaches. Apart from Botox treatment, she purchased over-the-counter medication, Nurofen and Panadeine, which she took regularly.
38 In April 2010, Mrs Kelly was referred by Dr Marchant to Dr du Toit, a sports physician. He noted a good range of cervical spine flexion and extension, with some upper cervical spine pain at the end ranges. He thought her pain was most likely cervical in nature, coming from the upper cervical facet joints, with associated cervicogenic headaches. He thought the best treatment option was for Mrs Kelly to have a range of diagnostic nerve blocks. However, she did not undergo such treatment at that time, probably because of her second pregnancy.
39 In February 2012, Dr Peppard referred Mrs Kelly to Dr Richard Sullivan, an interventional pain specialist and anaesthetist. In March 2012, he performed bilateral medial branch nerve blocks, which resulted in significant attenuation of her headaches for a prolonged period. In that light, in October 2012, he carried out a procedure known as pulsed radiofrequency stimulation (“PRF”) and a radiofrequency denervation procedure (“RFD”), which Mrs Kelly said was, at that time, largely ineffective. A second round of branch blocks was carried out in December 2012, and a third round in April 2013. These produced some benefit.
40 On 2 May 2014, Dr Sullivan performed a right-sided medial branch nerve RFD at the C3-4-5 and C6 levels and further RFD treatments of the third occipital nerve and suprascapular nerve. Following that procedure, Mrs Kelly has experienced a marked improvement in her condition. This was something Dr Sullivan said that he expected. In his report of 17 June 2014, he stated that she was still in a zone where he would not expect to see any dramatic reduction in her pain until two to four months after such denervation procedure. Nevertheless, Mrs Kelly reported a significant improvement in her symptoms soon afterwards. To date, her evidence is that the improvement has been sustained. Her evidence was that the effect had been “great”.[7] Although she was still taking pain medication at night, she had been exercising every day, was happier and was in less pain.
[7]T71
41 An MRI scan of her cervical spine performed on 1 March 2012 was reported as being normal. A CT scan conducted on the same date showed some minor degenerative change of the right C4-5 facet joint with other joints appearing normal.[8]
[8]CB 11b (Exhibit Q)
42 There is no suggestion of any cognitive disturbance following the accident.
The extent of the injury suffered in the accident and its effect
43 It was not disputed that in the accident Mrs Kelly suffered a blow to the head with a resultant haematoma and neck pain. She wore a cervical collar for some time afterwards. She suffered minor bruises and abrasions to her right leg and back. The ambulance records indicated there had been no loss of consciousness, although on the basis of Mrs Kelly’s evidence, I consider that she may have briefly lost consciousness. In any event, she appears to have some post-traumatic amnesia, in that she has no recollection of being struck by the slab or as to what happened to her child in the period immediately following the accident.
44 No injury has been demonstrated on CT scan of her brain, or on CT or MRI scans of her cervical spine. At most, there is a possibility but not a probability that the minor degenerative change at the right C4-5 facet joint is related to the accident.[9] However, the fact that scans or other radiological investigations have not demonstrated any abnormality is not conclusive. It does not, in itself, establish that no soft tissue injury has occurred.
[9]T331 – Dr Sullivan
45 Mrs Kelly‘s case was that, whilst she had suffered long-term migraine problems before the accident, her condition had not significantly interfered with her life in terms of employment and recreational activities. Essentially, her case was that she had suffered a significant and debilitating aggravation of her pre-existing headaches and migraines and had developed debilitating neck pain.
46 The defendant’s case was that Mrs Kelly had suffered from a significant underlying chronic condition involving headaches, migraines and neck pain prior to the accident and that the aggravation of that condition was limited in duration to a period of about six months following the accident. Thereafter, the defendant submitted Mrs Kelly’s symptoms have been attributable to her pre-existing, underlying condition.
47 In any claim involving an aggravation of a pre-existing condition, it is necessary to make a comparison of the claimant’s pre and post-accident symptoms. A claimant is only entitled to be compensated for those injuries of which the negligence of the defendant was a cause.
48 I accept that Mrs Kelly’s pre-existing, underlying condition was a significant one. She had been prescribed a variety of medications for it for more than twenty years. However, I accept that the condition had not prevented her from leading a relatively active and satisfying lifestyle. I accept that:
(a) She had been able to complete her education up to Year 12 and had been able to obtain the jewellery qualifications referred to previously.
(b) She had been able to participate in snow sports from an early age and had continued to do so right up to the time of the accident and at a relatively high standard.
(c) Soon after completion of her schooling, she had been able to travel to Europe, where she either worked or holidayed for about a year.
(d) Upon her return to Australia, she had worked at a ski resort for the winter season.
(e) She had been able to work for Trewarne for more than a decade before the accident.
49 This is not to say that her prior condition was minor or insignificant. In May 2006 (three years before the accident), at the time Dr Peppard first saw Mrs Kelly, he reported to Dr Popescu in these terms:
“Thank you for referring this pleasant 31 year old woman with a long history of migraine dating to the age of ten. She had frequent headaches through late childhood and adolescence. Her menstrual periods did not start until she was about seventeen. They did not seem to influence the frequency or severity of the headaches … .
She has tried Sandomigran without benefit and with a constant feeling of tiredness.
She gets a headache most days which starts with tightness along the upper border of the trapezius in her shoulders, spreading to the upper posterior cervical and occipital region and then settling in the temporal region. If it lodges on the right side the headache may be severe and she may require Imigran. With the Imigran she feels tired and has some tightness in her neck but often the most severe headaches are stopped. If the headache is on the left side it can be less severe. Mild-to-moderate headaches occur most days and may be partially controlled with Panadol and Nurofen.
Massage, acupuncture and swimming seem to loosen the feeling in the muscles of her neck and shoulders and improve her headache tendency … .
She has common migraine superimposed on some tension-type headache symptoms … .”[10]
[10]Exhibit 6
50 When Mrs Kelly saw Dr Prentice on 1 April 2009 (some five months before the accident), he reported to Dr Marchant as follows:
“Many thanks for your referral of this very nice 34 year old woman for ongoing management of her headaches. She has suffered from migraines since the age of ten and now has problems with chronic daily headache, with a strong cervicogenic component, but some migrainous features and she still has a fairly good response to Imigran for acute treatment. She has been on Deralin in the past, which she feels was of some benefit and was having regular Botox injections every three to four months up until August 2007. She stopped the injections to have a baby and her headaches improved substantially during her pregnancy … .
Marcelle tells me that she has seen multiple specialists about her headaches in the past and has also had acupuncture, osteopathy and chiropractic treatment and had scans in the past, which were all normal … .
She had quite marked cervical muscle spasm, particularly on the right side and there was tenderness over the upper sternomastoid and lower trapezius muscles … .
In summary, Marcelle has the problem of chronic daily headache, with features of common migraine and cervicogenic and tension type headache as well. She has responded well to Botox injections in the past and was agreeable to further treatment. I have administered 50 units across her frontotemporal regions today, 5-10 units in the lower right trapezius and upper sternocleidomastoid and 5 units either side in the occipital and sub-occipital regions. I have given Marcelle a script for Deralin 10 mg bd and I have also given her a script for Imigran nasal spray to see if this is more effective than the Imigran tablets, which tend to make her nauseous … .”[11]
[11]Exhibit 5
51 Counsel for Mrs Kelly submitted that these reports were merely “snapshots” of her condition as at the dates of those reports. I disagree. These were reports setting out the histories given to the respective specialists by Mrs Kelly in May 2006 and April 2009. These were given well prior to the accident and any contemplated legal proceedings. The histories given were consistent. I consider they were provided to those doctors honestly by her. The picture painted is, I consider, of a woman with significant symptoms of daily headaches, migraines and cervicogenic involvement.
52 I do not accept that Mrs Kelly only suffered from neck problems after the accident, and particularly note the observation by Dr Prentice of cervical muscle spasm on the right side when he saw her some months earlier.
53 I find that Mrs Kelly’s chronic, underlying, pre-accident condition was of considerable significance to her. Notwithstanding, and to her credit, she appears to have made every effort to live as full a life as she could.
54 After the accident, Mrs Kelly suffered from a sensitive scalp in the vicinity of the crown of her head where she was struck. For a time this interfered with hair care, but it has resolved.
55 I consider that Dr Marchant and Dr Peppard were important witnesses, because they had treated her both before and after the accident.
56 Reports of Dr Marchant of March 2011, May 2013, March 2014 and May 2014 were tendered. In addition, Dr Marchant gave oral evidence. Dr Marchant was of the view that Mrs Kelly’s headaches were considerably worse after the accident and that her ability to work was much reduced. In March 2013, she considered Mrs Kelly had no capacity for work.[12] More recently, she considered she had a capacity to work four hours per week.[13] Further, she considered that the overall effect of her restricted work, domestic and social activities had had a devastating effect on her psychological status.[14] I note however that Mrs Kelly has never been referred to a psychiatrist or been prescribed anti-depressant medication.
[12]CB 35 (Exhibit K)
[13]CB 38 (Exhibit K)
[14]CB 38 (Exhibit K)
57 Mrs Kelly had reported to Dr Peppard that, after the accident, the effect of Botox treatment was partial, with an improvement in migraines, but still experiencing constant, dull pain at the side of her head and more prominent neck pain.[15] In his January 2011 report, Dr Peppard stated that it was likely that her headache tendency was significantly exacerbated by her head injury. In his report of July 2013, he stated that from the time of the accident, her headache, migraine tendency, neck tightness and pain had all been major problems. He said he had no record of her having neck pain or tightness before the accident.[16] This statement appears to be inconsistent with his letter of 22 May 2006.[17] Nevertheless I accept that Dr Peppard found that her condition overall was worse after the accident, and his recollection was that her neck pain was more persistent after the accident rather than episodic as it was before.[18]
[15]CB 20 (Exhibit L)
[16]CB 23 (Exhibit L)
[17]Exhibit 6
[18]T286
58 In his report of June 2014, he opined:
“Marcelle Kelly had a significant and sustained increase in her headache and neck pain following the injury she sustained on 28 August 2009. She had a significant migraine tendency prior to this but was functioning very well both in her work as a mother, in running a household and in her job outside the home with the assistance of these treatments. Following the accident there had been a marked impairment of her function in all of these areas.”[19]
[19]CB 29 (Exhibit L)
59 The defendant placed considerable emphasis on the fact that Mrs Kelly has travelled extensively since the accident, internationally and within Australia. The evidence concerning that travel was:
(a) Within approximately two weeks of the accident, she travelled to Thailand with her husband and sixteen-month old baby for ten days. Shortly after her return, she told Dr Marchant that she had got on very well.
(b) Shortly after her return from Thailand, she and her baby flew to the Gold Coast. The evidence did not disclose for how long.
(c) In February 2010, she flew to the United States with her husband and baby and stayed at a ski resort, Jackson Hole, for ten days. Her evidence, and that of her husband, was that she rarely skied and then only on easy runs.
(d) In June 2010, she holidayed on the Gold Coast. The evidence did not disclose for how long or with whom.
(e) In October 2010, she travelled to Byron Bay for her sister’s wedding.
(f) In March 2011, she flew to Hong Kong with her brother, Travis, to attend a jewellery trade fair.
(g) In April 2011, she flew to Perth to attend her brother-in-law’s wedding.
(h) In June 2011, she flew to Thailand with her husband and two daughters, who would then have been aged nine months and three years respectively.
(i) In September 2011, she holidayed at the Gold Coast for about one week, presumably with her husband and daughters.
(j) In December 2011, she travelled with her husband and daughters (then aged three-and-a-half years and fifteen months) to Europe for about five weeks, where they stayed at various ski resorts in Germany and in Austria, including Innsbruck, St Anton and Oberlech. Again, her evidence was that she skied very little on that holiday.
(k) In June 2012, and again in August 2012, she and her family holidayed at Mount Buller, a ski resort in Victoria.
(l) Later in August 2012, she holidayed for nine days at Palm Cove, in Far North Queensland.
(m) In February 2013, she and her husband and friends holidayed at a ski resort in Japan for two weeks.
(n) In April 2013, she holidayed at the Gold Coast with her family.
(o) In July 2013, she holidayed at Mount Buller with her family.
(p) In September 2013, she holidayed in Bali with her family.
(q) In January 2014, she told Dr Weissman of recently attending a wedding in Palm Beach, North Sydney.
(r) She gave evidence that she had arranged a holiday at Mount Buller in July 2014.
60 The defendant submitted that these holidays put Mrs Kelly’s complaints of increased pain and incapacity since the accident into some perspective. I agree.
61 I consider that international and interstate travel can be hard work and stressful for anyone and especially so if travelling with two very young children. I accept the defendant’s submission that her willingness to travel as she has done indicates that she has, in the main, enjoyed those holidays and been keen to embark on further trips. I accept that Mrs Kelly was probably better able to cope with longer trips by flying business class rather than economy class.
62 I do not accept that the fact of such travel amounts to proof that there has been little wrong with Mrs Kelly since the accident or that there has been no exacerbation of her pre-accident condition. However, I do consider that Mrs Kelly has, to an extent, exaggerated the extent of that exacerbation.
63 The history provided by her to Dr Marchant on 7 September 2009 of extreme pain and being unable to move since her discharge from Epworth Hospital on the day of the accident[20] is, in my opinion, not consistent with her journeys to Thailand and to the Gold Coast in September and October 2009. I note Dr du Toit’s finding, in April 2010, that she had good and adequate range of cervical spine flexion and extension, with discomfort only at the end range of those movements.[21]
[20]CB 32 (Exhibit K)
[21]CB 17 (Exhibit R)
64 In August 2012, Mrs Kelly was seen by Dr Weissman, psychiatrist, at the request of her solicitors. She told him that she had a permanent headache after the accident and that she required “around the clock care” for almost one year at home.[22] I consider that that history was a gross exaggeration.
[22]CB 81-2 (Exhibit S)
65 Dr Marchant, Dr Peppard, Dr Sullivan and Dr Gaitanis were largely unaware of the extent of Mrs Kelly’s post-accident travel.
66 Dr Sullivan saw Mrs Kelly for the first time in February 2012. She told him that she had had about three months of continuous migrainous headache after the accident.[23] He was not told of her holidays in Thailand and the Gold Coast in that period. I find it most unlikely that she would have embarked on those trips in the midst of a three-month migraine.
[23]CB 61 (Exhibit M)
67 In April 2012, Dr Sullivan apparently had no knowledge of Mrs Kelly’s five-week holiday in Germany and Austria just a few months earlier. At the time he wrote his report of May 2013, he had no knowledge of her further holidays at Mount Buller, Palm Cove, Japan or the Gold Coast.
68 Dr Gaitanis was Mrs Kelly’s treating psychologist. He saw her initially on referral from Dr Sullivan in November 2012, nearly three-and-a-half years after the accident, and then on five further occasions between that time and March 2014.[24] He made no reference in either of his reports or in his clinical notes to any of her travel or holiday activities over that period. He said that the opinions expressed by him were based on a belief that she largely stayed at home.[25] He said he was surprised that she had travelled extensively over the period that he had been seeing her.[26] Later in his evidence, he said that he might have been aware of a ski trip.
[24]T334
[25]T339
[26]T340
69 Dr Gaitanis had expressed an opinion in both of his reports that Mrs Kelly’s “social activities have remained limited as she finds it difficult to manage the pain for extended periods away from home”.[27] In cross-examination, he was asked what social activities he was referring to. He said that he only had a note that her attendances at a mother’s group had dropped off.[28]
[27]CB 47, 55 (Exhibit N)
[28]T338
70 Dr Gaitanis’ lack of knowledge concerning Mrs Kelly’s lifestyle and activities gives me little confidence in his opinions as to the extent of her psychological or physical problems, the degree to which they relate to the accident and as to her capacity for work. I place little weight on his opinions.
71 Dr Peppard knew nothing of Mrs Kelly’s extensive travels. For instance, he saw her on 2 December 2011 and again on 13 February 2012.[29] He knew nothing of her five-week holiday in Germany and Austria in the interim.
[29]Exhibit T
72 Dr Marchant had been aware of Mrs Kelly’s intended trip to Thailand in September 2009. She was told by Mrs Kelly that she had got on very well and had had a good time in Thailand. There was also mention in her clinical notes in October 2009 of Mrs Kelly having a break in Queensland with her daughter. She was unaware of any other travel by Mrs Kelly since.
73 Travel was obviously a relatively large and important part of Mrs Kelly’s life between August 2009 and the present. The lack of knowledge of her treating general practitioner and specialists of her holiday activities is puzzling. I am not satisfied that it can be explained merely by Mrs Kelly thinking such matters were irrelevant to those treating her. For example, Dr Gaitanis was advised about a reduction of mother’s group activities. It is difficult to accept that Mrs Kelly considered that a reduction in these activities might be relevant but not her extensive travel activities, if they had presented any problems for her.
74 I am left with the conclusion that any problems experienced by her during those holidays were relatively minor, not of sufficient consequence to mention to those treating her, and not sufficient to deter her from further travel.
75 Taking all of the evidence into account, I am satisfied that Mrs Kelly’s headaches and neck pain have been, to an extent, worse since the accident. Notwithstanding her extensive travel, and allowing for the fact that she has had two small children to raise, I am satisfied that her recreational and employment activities have been reduced to an extent since 2009 by reason of an exacerbation of her headaches and neck pain. Mrs Kelly carries the onus of establishing the degree to which those pre-existing symptoms have been exacerbated. Whilst I accept there has been an exacerbation, I am not convinced that degree is substantial.
76 The defendant further submitted that, notwithstanding the improvement in Mrs Kelly’s condition following with Botox treatment from 2006, I should not be satisfied that such treatment would have continued to be beneficial indefinitely. Reliance was placed on:
(a) The evidence of Dr Sullivan that Mrs Kelly’s pre-injury condition would have been likely to have required future multi-modal treatment regardless of the accident;
(b) The evidence of Dr Peppard, that treatment by Botox, although successful between 2006 and 2009, may not have continued to be successful indefinitely.
77 The defendant submits that there is a real prospect that she would have been in her present state regardless of the accident. I accept that, although the Botox treatment had been beneficial in the period spanning about three years leading up until the date of the accident, it might not have been successful indefinitely. I accept the medical evidence that its continued efficacy was not certain. Its effect may have declined in the future.
78 Submissions were made by the parties concerning the principles laid down in Watts v Rake,[30] Purkess v Crittenden,[31] Smith v Gellibrand Support Services Inc[32] and Wilson v Collingwood Store Pty Ltd.[33] In Purkess, when discussing the Court’s decision in Watts, the High Court said:
“… We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. … .”[34]
[30](1960) 108 CLR 158
[31](1965) 114 CLR 164
[32][2014] VSCA 20 at paragraphs [64] to [77]
[33][2014 VSCA 20 at paragraphs [31] to [42]
[34]Purkess (supra) at paragraph [4]
79 Here, I am satisfied that Mrs Kelly has made out a prima facie case that her headache, migraine and neck pain were, to a degree, exacerbated as a consequence of the accident. Whilst there was evidence that the efficacy of her Botox treatment might have declined or even ceased, there was no evidence that it probably would have done so. Treatment of migraines by Botox is still relatively new. I am merely satisfied that there was a chance that the efficacy of such treatment might have fallen away at some time after August 2009, regardless of the accident. On that basis, I find that the prospect of the Botox treatment ceasing to be effective at some time after 2009 is a vicissitude for which I should make allowance in my assessment of damages.
80 In addition to claimed physical injuries, I am satisfied, on the basis of the evidence of Dr Weissman and, to a lesser extent, Dr Gaitanis, that as a result of the accident, Mrs Kelly has suffered from a mild to moderate Post-Traumatic Stress Disorder, and a moderate Chronic Adjustment Disorder with Depressed and Anxious Mood.
Pain and suffering damages
81 In assessing fair and reasonable damages for pain and suffering, I have taken into account the lifestyle led by Mrs Kelly and the symptoms suffered by her both before and after the accident. Although I have concluded that there has been an exacerbation of her pre-existing headaches, migraines and neck pain, I consider that she has still retained a reasonable quality of life. She is, I consider, able to take good care of her young children, administer the family home and engage in substantial recreational activities.
82 I accept that Mrs Kelly’s skiing and snowboarding activities have been reduced somewhat by reason of the exacerbation of her pre-existing condition. However, I am not satisfied that she has barely skied on her holidays to ski resorts in the United States, Europe and Japan. She holidayed in Japan with a number of other couples, none of whom were called to give evidence. There was no evidence that such persons were unavailable to give evidence.
83 The defendant tendered two DVD films depicting Mrs Kelly on 28 August 2012, and on 17, 18, 19, and 21 December 2013. These films depicted Mrs Kelly engaging in fairly non-descript activities such as taking her child to kindergarten, and walking into and out of the family home. On occasions, she was observed carrying her youngest child on either her right or left hip in a normal and relaxed manner. On one occasion, she was observed to jog across the road without apparent difficulty. At no time was she seen to perform any particularly vigorous activities involving her shoulders or neck. She did not appear at any time to be in any discomfort.
84 I accept that the accident would have been a frightening experience for Mrs Kelly. To be lying in the gutter, unaware of the whereabouts of her child and hearing her crying would have indeed been distressing. However, I am not satisfied that she suffers from any significant Post-Traumatic Stress Disorder or psychiatric or psychological condition as a consequence of the accident.
85 Taking all of the evidence into account, I consider that an award of pain and suffering damages in the sum of $90,000 is fair and reasonable.
Loss of earning capacity
86 In February 2012, Ms Lewis saw Mrs Kelly at the request of the defendant. She obtained a history from Mrs Kelly that she worked in a family jewellery business and “has always worked part-time”.[35] (My emphasis)
[35]CB 115 (Exhibit 9)
87 In an undated report prepared by Dr Gaitanis (but clearly prepared in or after June 2013),[36] Dr Gaitanis reported that:
“At the time of injury, Ms Kelly had been working part-time for the family jewellery business. Since the accident in 2009, she had been unable to work.”
(My emphasis)
[36]CB 45 (Exhibit N)
88 In his oral evidence, Dr Gaitanis said that the report set out the information that he had been provided with at the time of his initial assessment of Mrs Kelly on 30 November 2012.[37]
[37]T335
89 Mrs Kelly was adamant that for many years prior to the accident, she had worked for Trewarne on a full-time basis. This was corroborated by the evidence of her brother, Travis, who is, and was in August 2009, the manager of Trewarne. He confirmed that, at the time, she had recently been appointed as the manager of the new Chadstone store and that she had worked full-time for Trewarne for some years before.
90 The histories taken by Ms Lewis and Dr Gaitanis are puzzling. It is likely that Dr Lewis’ first report would have been seen by Mrs Kelly or at least by her solicitors as long ago as early 2012. When reviewed by Ms Lewis in April 2014, Mrs Kelly appears to have made no attempt to correct the history previously recorded.
91 Dr Gaitanis’ report was requested by her solicitors and presumably read by Mrs Kelly and/or her solicitors from about mid-2013. It would appear that he was never asked to clarify that history as reported by him. Counsel for Mrs Kelly merely tendered the report (together with a later report) from Dr Gaitanis without asking him anything about that recorded history. In cross-examination, he confirmed that that was the history that he took from Mrs Kelly.[38] Despite being re-examined concerning various matters contained in that report, the history taken concerning her having worked part-time at the time of the injury was not touched upon.
[38]T337
92 In evidence, Travis Trewarne stated that, before her accident, Mrs Kelly was working between only two and three days per week at Chadstone but also performed work from home.[39] He stated that she went from full-time to part-time duties after her first daughter, Winter, was born.[40]
[39]T216
[40]T217
93 The defendant submits that I should treat evidence concerning Mrs Kelly’s pre and post-accident history work with caution because no-one from the Chadstone store had been called to give evidence at the trial. There were some six other employees who worked at the Chadstone store in 2009, in the period before and after the accident. There was no evidence that any of those persons were unavailable to give evidence at the trial. The defendant submitted that I should draw an inference that the evidence of the members of the Chadstone staff would not have assisted Mrs Kelly’s case.[41] I accept that submission.
[41]O’Donnell v Reichard [1975] VR 916; Jones v Dunkel (1959) 101 CLR 298
94 The defendant further submits that I should have regard to evidence concerning the opening of Trewarne’s new Chadstone store. It had involved a very expensive fit-out involving some $500,000 and had been an important investment for the company. The new store opened the day before Mrs Kelly’s accident. Notwithstanding, at approximately 11.00am on the day following its opening, Mrs Kelly was engaged in shopping with her mother-in-law at Camberwell. She had earlier made plans to holiday in Thailand in mid-September 2009. Even allowing for the fact that the fit-out might have taken longer than expected, that holiday had been planned for a time very soon after the scheduled opening of the store. The defendant submitted that it was unlikely, if Mrs Kelly was truly the full-time manager of the store, that she would be absent from it the day after its opening and planning holidays a few weeks after its opening.
95 I accept that at times before the birth of her daughter, Mrs Kelly did work full-time for Trewarne. However, it is clear that she only worked two to three days per week at the previous Chadstone store, at least from the birth of her daughter. Although she may have done some work from home, I am not satisfied that she was working full-time at the date of the accident, nor that it was her intention to return to work full-time, at least whilst she had a young family.
96 Nevertheless, it is probable that she would have returned to longer hours once her children became more independent. It is clear that Mrs Kelly and her husband (a partner in a law firm in Melbourne) were relatively comfortable financially. Unlike some young mothers, she probably did not need to work.
97 Mrs Kelly makes no claim for loss of earnings between the date of the accident and 31 October 2012 (during which time she received her full salary from Trewarne). She claims that, since that date, she has only been able to work on a very limited basis from her home, performing some data entry work for Trewarne. Her evidence was that she works about three hours per week and is paid $30 per hour gross.
98 She claims that, but for the accident, she would have earned $982.38 per week after tax and that superannuation of $111.71 would have been paid on her behalf by Trewarne. For the 90 weeks from 31 October 2012, she claims $98,468.10, less the amount she has actually earned with her part-time employment of $5,790, a total of $92,678.10 in respect of the past. The defendant conceded the accuracy of the calculation but not liability to pay such amount.
99 With regard to the future, Mrs Kelly claims net loss of earnings and superannuation at the rate currently earned by a comparably qualified employee of Trewarne, Karen Marchioni – $1,039 per week. The parties agreed that the actuarial multiplier reflecting the value of $1 per week for Mrs Kelly to age 65 was 768.7. It follows that her claim for future loss of earnings is about $800,000 less a discount for reflecting her actual earnings since, and vicissitudes of life.
100 Counsel for Mrs Kelly conceded that it should be taken into account that she has been, and still is employed by a family company. As her Counsel put it, she has a “privileged access to employment”.[42] That is, she is more likely to be employed by Trewarne in the future even though she might be required to take more time off than usual, compared to an employee outside of her family.
[42]Paragraph 5.1 of Counsel’s written submissions
101 Counsel conceded that an allowance should also be made to reflect Dr Peppard’s view that Mrs Kelly might improve in the future and that she might work more hours than at present, especially when her young children are less physically dependant on her. Against these vicissitudes, he submitted a contrary allowance should be made for the possibility that she may have worked beyond age 65, that the business of Trewarne might not always be as successful as it now is, or that the business might be sold by her father and brother, leaving her exposed in an open employment market. He submitted a discount for vicissitudes of about 40 per cent was reasonable in respect of future loss of earnings.
102 The defendant submits that no loss of earnings post 31 October 2012 has been established. He submits that Mrs Kelly has made a lifestyle decision not to work beyond her current hours and that she has a capacity to work far greater hours if she chose to. He submits that she can work remotely from home and that, if she worked at one or other of the retail shops of Trewarne, she would work effectively as manager and could, to a large extent, control the nature of her work and delegate all heavy or strenuous tasks to others. She would be able to regularly alternate standing or sitting and take regular short breaks.
103 Medical opinions as to Mrs Kelly’s current work capacity varied.
104 In March 2012, Ms Lewis, neurosurgeon, considered that, from a physical point of view, Mrs Kelly had recovered from her injuries. However, in April 2014, she considered that, although Mrs Kelly had recovered from the mild head trauma associated with accident, she had developed neck pain and worse migraine headache. Although there had been some improvement, Ms Lewis considered there that full recovery was unlikely. She thought that maximum recovery was likely to have been over the first two years following the accident. Notwithstanding, she thought Mrs Kelly’s capacity for work depended on her psychiatric state rather than her physical state.[43]
[43]CB 119-120 (Exhibit 9)
105 Dr Sullivan’s view was that if her headache was well controlled, it was possible she could perform light duties that did not aggravate her pain.[44]
[44]CB 64 (Exhibit M)
106 Dr Peppard could foresee an increase in her hours of work over the next five years to a few half days per week and, eventually to 50 to 60 per cent of her previous work capacity.[45] These views were expressed before he was made aware of her extensive travel over the past five years. Nevertheless, in oral evidence, with knowledge of her travels, he did not alter his views concerning her work capacity. He agreed that the results of her most recent RFD procedure were encouraging.
[45]CB 27 (Exhibit L)
107 In March 2014, Dr Marchant expressed the view that Mrs Kelly’s capacity for work was limited to four hours per week.[46] However, in her oral evidence, it became clear that Dr Marchant had little knowledge of Mrs Kelly’s travel activities since 2009. Evidence of the extent of those trips was put to her. She expressed surprise at that evidence, as she would not have thought Mrs Kelly would have been capable of those activities.[47] She stated that the evidence of Mrs Kelly’s willingness to undergo such travel did change her view as to the likelihood of her expanding her involvement in the workforce. She said she would now expect a greater likelihood of a return to the workforce and to a greater extent.[48] In re-examination, she opined that if Mrs Kelly was able to lie down in business or first class flights and had someone to help her with the children, she would not necessarily have had issues with her neck. If that were the case, she did not think her opinion as to work capacity would be altered.[49]
[46]CB 38 (Exhibit K)
[47]T254
[48]T256
[49]T257
108 In June 2013, Mr Justin Moar, physiotherapist, considered Mrs Kelly had a capacity for part-time work in the order of two to three hours per day, two days per week, along with restrictions of sitting no longer than 20 minutes at a time, no sustained or repetitive cervical flexion or rotation, no reaching above shoulder height, no repetitive pushing or pulling, and no lifting or carrying of more than 3 kilogram weights.[50] At the time of her last attendance in January 2014, he thought she had not improved.
[50]CB 72 (Exhibit O)
109 Dr Weissman, psychiatrist, saw Mrs Kelly at the request of her solicitors in August 2012 and January 2014. He considered that, on purely psychiatric grounds alone, despite her mild to moderate accident-related psychiatric symptoms, there was probably no incapacity for work.[51]
[51]CB 91 (Exhibit S)
110 Assessment of loss of earnings in this case is not an easy task. Notwithstanding, I have come to the conclusion that, in calculating her loss, I should take into account the following:
(a) There was a genuine risk that the improvement in her pre-accident condition by Botox treatments may not have continued indefinitely. In the event that that occurred, there was a real prospect that she would not have been able to continue working or, at least, not on a full-time basis.
(b) With two young children, I find it likely that, regardless of the accident, Mrs Kelly would have chosen not to work for a time until they were older and required less direct care.
(c) Notwithstanding her exacerbated symptoms, there is a real prospect that her recent improvement will continue and Mrs Kelly may return in the future to full-time work with Trewarne or at least to longer working hours than those currently engaged in by her.
(d) Mrs Kelly’s extensive travel since August 2009 does cause me to conclude that she has a greater working capacity than that currently exercised by her.
111 In all of the circumstances I am not satisfied that Mrs Kelly has established a loss of earnings for the period from November 2012 until the present. Regardless of the accident, I am not satisfied that she would have returned to substantial working hours in that period with Trewarne or any other employer. I am not satisfied that she would earned more than she has in fact earned between November 2012 and the present.
112 With regard to the future, I note that Mrs Kelly is currently aged thirty-nine, and is married with two daughters aged six and three. There was no evidence from her or her husband as to whether or not they had plans for any further children. However, she is at an age where she and her husband might well contemplate additional children. I consider that the age of her two children and the prospect of further children will impact on the likelihood of her returning to full-time employment, and would have done so regardless of the accident.
113 But for the accident, I consider she would have returned at some stage to full-time work with Trewarne or possibly another jewellery business. I consider it likely that she would still have been affected by her pre-existing chronic condition, in that she would have been required to take some time off work as a consequence of headaches and migraines.
114 In determining the reduction in her earning capacity, I do not consider that a precise mathematical calculation is possible. Mrs Kelly carries the burden of establishing the extent of her loss. Regardless of the difficulty in assessing the value of a loss, the Court is required to do the best it can.[52]
[52]JLW (Vic) Pty Ltd v Tsiloglou & Ors [1994] 1 VR 237 at 240
115 I find, on the balance of probabilities, that as a consequence of injuries from the accident, Mrs Kelly has suffered a moderate reduction in earning capacity. I accept that she has suffered from more headaches and migraines since the accident and that these, had she been attempting to work full-time, would have resulted in her taking more time off work than would otherwise have been the case. However, I do not accept that such injuries would have prevented her from working in effectively a full-time position with Trewarne after November 2012.
116 In coming to my assessment of Mrs Kelly’s loss of earning capacity, whilst I am satisfied her earning capacity has been reduced, I am not satisfied that reduction is more than about 20 per cent.
117 Counsel for Mrs Kelly submitted that Ms Marchioni’s current earnings should be the starting point for calculating Mrs Kelly’s loss of future earnings. Her current net salary (with an allowance for superannuation) is $1,039 per week. Applying the agreed multiplier to age 65 (768.7), a sum of $798,679 is calculated.
118 He submitted that I might allow a 40 per cent discount to reflect:
· Normal vicissitudes of life –such as ill health;
· That her symptoms might improve in the future;
· That she might be able to do more hours of work when her children became less physically dependant on her.
119 He correctly pointed out that vicissitudes might be positive and not always negative. For instance, she might have worked in the family company past the age of 65.
120 However, those submissions were based upon an assumption that Mrs Kelly currently had virtually no earning capacity. I am not satisfied this is so. I consider that she is capable of working considerably more hours than she is currently working. I consider that she has effectively made a lifestyle choice to reduce her hours of work to a few hours per week from home, enabling her to care for her young children and manage the family home.
121 I accept that it is appropriate to commence with a starting figure of $1,039 per week (Ms Marchioni’s wage including superannuation) as reflecting Mrs Kelly’s earning capacity but for the exacerbation of her condition resulting from the accident. A loss of 20 per cent of that amount is approximately $208 per week. Applying the agreed multiplier to age 65 (768.7), a gross loss of $160,000 is calculated. From this, I consider a reduction of 15 per cent should be made to reflect the normal vicissitudes of life. I assess her future loss of earnings at $136,000.
Medical and like expenses
122 With regard to the cost of Botox treatment, Dr Peppard’s evidence was that before the accident, he was administering Botox about quarterly. He anticipated that, even if the accident had not occurred, he would have continued to treat her quarterly and indefinitely.[53] Since the accident, Mrs Kelly has continued to be treated with Botox about quarterly, with a break during her second pregnancy. I am not satisfied she has established that the accident has resulted in any additional Botox cost. I am not satisfied she has established that Dr Peppard’s fees relate to injuries sustained by her in the accident.
[53]T300
123 Mrs Kelly has undergone nerve blocks and RFD treatments. Past fees for Dr Sullivan of $10,186 are claimed. Whilst it is possible that such may have been administered regardless of the accident, I consider that it is probable that it was recommended as a consequence of exacerbation resulting from the accident. I accept that such treatment was reasonable and the cost of it should be allowed. In addition, it appears likely that she will continue with such treatment twice yearly in the future. I accept Counsel’s calculations that the cost of that treatment, calculated on a weekly basis, is $33.50. Applying a multiplier to her anticipated date of death (976.2), a sum of $32,702 is calculated for the future cost of such treatment. There was a prospect that she would have come to such treatment regardless of the accident, and a prospect that her current treatment regime may not continue indefinitely. In the circumstances, I consider it appropriate to discount the figure calculated for the future by about 50 per cent. Accordingly, I allow $26,500 for those past and future treatments.
124 With regard to massages, Mrs Kelly had such treatment regularly before the accident. Her evidence was that these earlier massages were merely for enjoyment. In contrast, I note the history provided by her to Dr Peppard in May 2006 that “massage, acupuncture and swimming seem to loosen the feeling in the muscles of her neck and shoulders and improve her headache tendency”.[54] I am not satisfied that Mrs Kelly has established that massage expenses were incurred as a consequence of injuries sustained in the accident.
[54]Exhibit 6
125 Expenses relating to Pilates exercise classes are claimed – 88 visits in the past from May 2011 and ongoing. Pilates exercises are undertaken by many persons in the community regardless of injuries. There seems little doubt that they are seen as beneficial in achieving and maintaining general fitness. Although Mrs Kelly apparently did not partake in such classes before the accident, she may well have benefited from them had she done so. I am not satisfied that the need for those classes arises from injuries sustained in the accident.
126 On the same basis, I am not satisfied that the need for ongoing physiotherapy relates to the exacerbation of her condition in the accident. That is not to say the Mrs Kelly may not find physiotherapy treatment useful currently or in the future.
127 Chiropractic expenses are claimed. There was no evidence concerning the nature of such treatment, the symptoms relevant to it or of the person providing such treatment. I am not satisfied that it related to exacerbation of injuries sustained in the accident.
128 Mrs Kelly claims expenses relating to psychology consultations – $1,200 for the past and $3,000 for 15 sessions in the future. Dr Marchant referred her for such treatment. On balance, I consider such referral probably relates to injuries resulting from the accident and, in the circumstances, I consider it was reasonable for her to undertake them. In his six consultations to date, Dr Gaitanis seems to have discovered relatively little of her quality of life and limitations. Nevertheless, Dr Marchant still opines that some further attendances are warranted. I shall allow the amounts claimed of $4,200 under this head.
129 Mrs Kelly claims house cleaning expenses of $12,480 in the past and $78,096 for the future. I am not satisfied that the need for such services relates to any exacerbation of injuries sustained in the accident.
130 With regard to expenses relating to visits to her general practitioner, Mrs Kelly relies upon the evidence of Dr Marchant that in the two years prior to the accident, she had attended on fourteen occasions whilst in the two years following the accident, she attended on twenty occasions.[55] I note further, that in the five months of 2014, she has attended on only three occasions. There was no evidence as to precisely what any of these attendances related. I am not satisfied that it has been established that there have been additional attendances relating to the exacerbation of injuries in the accident.
[55]CB 40 (Exhibit K)
131 In the Particulars of Special Damage dated 18 June 2014 filed on behalf of Mrs Kelly, an amount of $6,234.80 is claimed for “Medical – Other” expenses. These other expenses were not identified in evidence and I am unable to be satisfied that they related to injuries sustained by her in the accident.
132 Likewise, an amount of $3,851 is claimed for “Rehabilitation Expenses”. These were not identified in evidence. I am not satisfied as to what they relate.
133 Mrs Kelly claims $4,063 for past pharmaceutical expenses based on 75 per cent of the total spent of $5,418. There was no evidence as to what expenses were incurred by her prior to the accident. There was no evidentiary basis for attributing 75 per cent of her incurred expenses to injuries sustained in the accident. There was no evidence that her pharmaceutical expenses were any more after the accident than before it. I make no allowance under this head.
134 For the reasons set out above, I allow the following amount by way of past and future medical and like expenses:
· Nerve Block and RFD procedures $26,500
· Psychology consultations $4,200
_______
$30,700
Conclusion
135 For the reasons set out above, I assess Mrs Kelly’s damages in the sum of $256,700 made up as follows:
· Pain and Suffering Damages $90,000
· Loss of Earnings $136,000
· Medical and Like Expenses $30,700
_______
$256,700
=======
136 I shall hear the parties regarding any consequential orders sought.
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