Kopp v Pigram
[2003] QSC 248
•1 August 2003
SUPREME COURT OF QUEENSLAND
CITATION:
Kopp v Pigram & Ors [2003] QSC 248
PARTIES:
SHANNON GAIL KOPP
(plaintiff)
JEFFREY PIGRAM (OWNER)
(first defendant)
EVAN WELLDON
(second defendant)
COMMERCIAL ASSURANCE COMPANY OF AUSTRALIA (ACN 004 478 371)
(third defendant)FILE NO:
S9433 of 2002
DIVISION:
Trial Division
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
1 August 2003
DELIVERED AT:
Brisbane
HEARING DATE:
22, 23, 24 July 2003
JUDGE:
Muir J
ORDER:
Judgment for the plaintiff
CATCHWORDS:
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES - where the plaintiff was injured in a head-on traffic accident - whether the injuries suffered by the plaintiff were caused by the negligence of the second defendant
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - Non-Pecuniary Damage - Pain and Suffering - Loss of Amenities or Capacity for Enjoyment - where claim for pain and suffering and loss of amenities
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - Method of Assessment - Reference to Amount Claimed - where claim for past and future economic loss
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - Method of Assessment - Voluntary Obligations - where application of the principles in Griffiths v Kerkemeyer relevant - whether services provided by a family member whilst the plaintiff was in hospital could be said to be a valid claim - whether in the circumstances the travel costs of the plaintiff's family members could be said to be a valid claim
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - Other Pecuniary Damage - where the parties agreed on the quantum of special damages suffered by the plaintiff
Chan v Mills (1995) 22 MVR 391
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hillier v Lucas [2000] SASC 331
Longden v British Coal Corporation [1998] AC 653
Morgan v Gibson NSWCA No. 40377 of 1996, 6 June 1997.
Van Gervan v Fenton (1992) 175 CLR 327
Wilson v McLeay (1961) 106 CLR 523
COUNSEL:
J A Griffin QC with S J Given for the plaintiff
R M Myers for the defendantsSOLICITORS:
Cleary & Lee for the plaintiff
Carter Newell for the defendants
MUIR J: The plaintiff was injured at about 9.45 pm on 1 September 1996 in a head on collision between a Daewoo Cielo driven by her and a Ford Fairlane driven by the second defendant on the Mt Marrow Quarry Road at Mt Marrow on the crest of a hill opposite the entrance to the Mt Marrow quarry. She claims damages for negligence against the second defendant. The plaintiff did not proceed with her claim against the Fairlane’s owner, the first defendant.
The basis of the plaintiff’s claim
It is alleged in the statement of claim that the collision was caused by the negligence of the second defendant for which the third defendant insurer is liable. The particulars of negligence on which reliance was placed on the trial are –
1. Failing to keep any or any proper look out.
2. Failing to exercise reasonable care and skill in the driving, management and control of the (vehicle).
3. Failing to take evasive action to avoid or minimise the collision.
4. Failing to keep his vehicle as close as practicable to the left hand side of the carriageway in contravention of Regulation 22 of the Traffic Regulations 1962.
The defendants allege that the accident was caused or contributed to by the plaintiff’s negligence, the particulars of which are substantially the same as those alleged by the plaintiff against the second defendant.
The plaintiff’s account of the circumstances surrounding the accident
The plaintiff’s evidence is to the following effect. She was familiar with the Mt Marrow Quarry Road, having travelled on it between the Oakey Aviation Centre (where she was stationed as a soldier) and her parents’ home approximately twice a week. On the evening of 1 September 1996, she was returning to Oakey from her parents’ home and thus travelling towards the Warrego Highway. She expected the roadway at the top of the hill opposite the quarry entrance to be rough and for that reason followed her practice of lowering her speed to no more than 60 kms an hour as she approached that point. As she neared the crest of the hill she noticed car lights on high beam in front of her. She slowed her vehicle down to about 55 kms per hour and proceeded up the hill to the rough section of the road. She was then confronted with very bright headlights shining in her eyes. She does not recall the actual impact and does not recall having reached the rough section of road opposite the quarry gate at the time of the accident. She denies travelling onto the wrong side of the road.
The second defendant’s account of the circumstances surrounding the accident
The second defendant, the first defendant and a Mr Bell were driving back from Ipswich to Rosewood, having been to the cinema. The second defendant, not having consumed alcohol, was the nominated driver. The first defendant was in the front of the vehicle asleep and Mr Bell was a passenger in the rear seat on the off side.
The second defendant had travelled on the subject section of road about 12 times a year for a number of years and was aware of what he described as “a large pothole” at the top of the crest. His speed at the time of the accident was about 90 kms per hour. He had been looking straight ahead prior to the accident but did not see approaching headlights until the Daewoo was about 10 metres from him in the middle of the road. He does not recall braking or dimming his headlights but pulled hard to the right in an attempt to avoid a collision.
A police officer, Sergeant Boyce, who investigated the accident on and after 1 September 1996, gave evidence to the following effect. The road in the general location of the accident scene is undulating. The crest of the hill on which the accident occurred is close to the quarry entrance. At the time there were double continuous white lines in the centre of the road on both sides of the crest with a gap 37.7 metres wide in the location of the quarry entrance. The northbound lane at the scene of the accident was 3 metres in width and the southbound lane 3.2 metres. The northbound lane is that used to travel in the direction of the Warrego Highway. After the collision, the great bulk of the Fairlane was on the northbound lane of the roadway with a portion of the front driver’s corner in the southbound lane. It had swung around 180 degrees to face north and had sustained most of its damage “on the front passenger side in the engine bay … area”.
The Daewoo was positioned a number of metres to the south of the Fairlane, front on and roughly at right angles to the road with only the front section of the car’s engine area encroaching onto the bitumen surface of the roadway.
Opposite the entrance to the quarry, the road surface had been badly chopped up to the extent that for most of the width of the northbound lane there was loose gravel and, perhaps, remnants of bitumen. The surface of this area varied in depth, and at its maximum, was about 10 centimetres lower than the adjoining road surface. The rough surface extended over the centre line onto the southbound side of the road but not to such a degree that a driver would be unable to avoid it by keeping as close as possible to the left hand shoulder of the bitumen.
In cross-examination, Sergeant Boyce said that he had seen worse sections of road, that it would not be “the most comfortable section of road to drive through” but that “you could traverse it okay if you slowed down a fair bit”. He noticed some tyre marks and “gouge marks” in the road surface which he concluded were related to the accident. All four of the gouge marks observed and plotted by him were in the northbound lane. The mark closest to the crest was the only one located close to the centre line.
A mark (or series of marks) which Sergeant Boyce took to be a tyre mark, commenced in the gravel some distance to the north of the accident site and continued on along the edge of the bitumen surface for some 12 metres veering slightly inwards towards the centre line. Sergeant Boyce determined that the mark was fresh by virtue of the fact that, in the area in which it could be seen on the gravel shoulder of the road, it was undisturbed by any tyre marks.
The circumstances in which the accident occurred
Both sides advanced various theories by reference to the gouge and tyre marks in support of their respective cases. I confess that, in the absence of expert scientific evidence, I am unable to obtain much assistance from them. The essence of the defendant’s case is that the plaintiff veered onto the southbound lane to avoid the rough patch in the road, either deliberately or in consequence of being startled at striking the rough surface of the road. As a result, the second defendant was suddenly confronted with a vehicle on his side of the road and swerved to the right in a attempt to avoid a collision.
It was put to the plaintiff in cross-examination that she had told Mr Bell when he visited her in hospital that she had swung into the middle of the road to avoid the pothole. The plaintiff denied this and neither Mr Bell nor the first defendant were called to give evidence.
The evidence discloses that the second defendant did not reduce his speed at any stage and had not noticed the Daewoo until immediately before the collision. The plaintiff, on the other hand, had noticed the Fairlane and had dipped the Daewoo’s headlights in consequence. The plaintiff was well aware of the rough surface of the roadway at the quarry entrance and had slowed to accommodate it. In these circumstances, it is improbable that the plaintiff would have veered onto the wrong side of the road as a result of striking the pothole or in order to avoid it.
It is difficult to avoid the conclusion that the second defendant was distracted and not keeping a proper lookout immediately prior to the accident. Had he been driving with due care and attention, he would have noticed the Daewoo’s lights. As it was, he came on the Daewoo suddenly, was shocked and, according to him, swung his vehicle to the right across the oncoming path of the Daewoo. This, one might think, made certain a collision between the two vehicles.
The second defendant explained this rather unorthodox manoeuvre to the right as implementing an intention to avoid running off the left hand shoulder of the road into trees with a drop down an escarpment beyond the shoulder. The evidence suggests, however, that there was room for the Fairlane on the shoulder of the road even if it left the bitumen entirely. It is likely that the Fairlane strayed onto the incorrect side of the road, either as a result of inadvertence or in consequence of an overcorrection by the second defendant, after the Fairlane’s left wheels had run off the bitumen onto the shoulder of the road. I find that the Fairlane was on the incorrect side of the road at the time of the collision without legal justification.
I mention, for completeness, that I formed the impression that the plaintiff was attempting to give an honest account of events relating to the accident and her claims. I consider that her evidence is likely to be more reliable than that of the second defendant, who appeared ill at ease in the witness box and failed to advance a plausible explanation for the manoeuvre I have described. If, as Sergeant Boyce thought, the markings on and beside the road were connected with the collision, they provide, on balance, further support for the plaintiff’s version of events.
For the above reasons, the plaintiff has established that the accident and, necessarily, her injuries were caused by the second defendant’s negligence. It was common ground that establishing liability against the second defendant would establish liability also against the third defendant. I find also that there was no negligent conduct of the plaintiff which contributed to the accident.
The plaintiff’s injuries
The plaintiff who was almost 20 years of age at the time of the accident suffered a midshaft fracture of the left femur, a closed proximal, one-third fracture of the right femur, a lacerated tongue, minor abrasions, cuts and bruises, a minor head injury and severe bruising and swelling of and around her external genitalia. She was initially admitted to the Princess Alexandra Hospital on the evening of 1 September 1996 and transferred to the Ipswich Hospital on 11 September 1996. She was discharged on 26 September and admitted to the 2nd Field Hospital at Enoggera.
During her hospitalisation, she had an operation on each thigh to fix the bone by means of an implant and a subsequent operation for the implant removal. The thigh injuries were treated successfully and it is her knee injuries which caused and continue to cause most of her continuing pain and discomfort. The thigh operations, however, have left her with quite prominent and extensive scars on the outer thighs.
Dr Meibusch, orthopaedic surgeon, in a report of 23 July 1999, reported that –
“There is significant scarring of both lower limbs … the (left) thigh is ¾ inch smaller than the right … She has discomfort and pain at times in both knees … (which most likely originates in a traumatic chondromalacia patellae … where the undersurface of the kneecap and the adjoining articular surface of the femur may be damaged on impact when the patellae is forced against the femur forcefully or sheered across it.”
He assessed the plaintiff’s overall impairment as about 7½% loss of each lower limb. Dr Meibusch concluded also that he plaintiff’s injuries should not interfere with “her military career nor her social and physical life”. He was also of the view that she could undertake employment which did not involve “walking long distances … up ladders and down gangways and that sort of thing”.
Dr Morris, orthopaedic surgeon, who saw the plaintiff in July 2002 was of the opinion that the plaintiff had a 10% permanent incapacity to her legs, that she may require arthroscopic debridement of her knees, that she “would be best able to perform … a sitting type of job”, she could work as a medical receptionist or a secretary but, “might find it more difficult to work as a store person as she would have to bend down and walk and claim ladders”.
Dr Sharwood, orthopaedic surgeon, in a report of 9 August 2000, notes -
“Her main complaint now is that of pain around her knees. She says this is associated with some swelling but denies any locking. She has difficulty with squatting though she can squat. She has difficulty standing up and also complains of snapping around her hip, particularly on the right side as she performs this activity. … She tells me the pain in her knees does not keep her awake at night, though she does have difficulty sleeping because of some hyposensitivity of the skin around the medial aspect of her left knee. She describes this area of skin as being very tender and sore and she cannot tolerate its being rubbed or pressed.”
He expressed the opinion –
“Future treatment may be required for her knees. Arthroscopy and chondroplasty of the patellae may improve the symptoms, though there is no guarantee that they will. She may, in the very long term, develop patello femoral arthritis, though one cannot at this stage predict the severity or the likely effect of that condition.
Based on the signs that she has in her knees, I would rate her overall disability at thirty percent (30%) due to the fact that she has patello-femoral pain, manifest difficulty in walking up stairs, inability to walk distances and a total inability to run. She also has a degree of impediment in her participating in sport, both socially and competitively.”
In cross-examination, Dr Sharwood concluded that the extent of lower limb impairment using AMA guidelines would be 4%. His opinion was that the plaintiff would have to avoid in future employment any activity which involved prolonged standing, prolonged sitting or inability to change position on a regular basis.
The psychiatric and psychological evidence
Dr Foxcroft, psychiatrist, first saw the plaintiff when she was referred to him by her army medical officer on 23 October 2000 for treatment “of depressive symptoms and symptoms of post traumatic stress”. At the time the plaintiff saw Dr Foxcroft she gave a history of “rage attacks and labile and unstable moods with evidence of depression”. She also described recurring nightmares which decreased in frequency after the expiration of 12 months from the date of the accident. In Dr Foxcroft’s opinion the plaintiff, subsequent to and as a result of her accident, suffered from post traumatic stress disorder and a major depressive disorder. He reported that the plaintiff, as at 14 November 2001 –
“… continues to have some residual symptoms of post traumatic stress disorder and residual symptoms of depressed mood, poor sleep patterns, poor concentration, nightmares, and avoidance of any reminders of the accident.”
He concluded that the plaintiff had a “significant psychological impairment as a result of the accident” which was “likely to persist” and that the plaintiff was likely to require ongoing psychological and psychiatric treatment “including the use of antidepressant medications and the need for continued psychiatric and psychological counselling” at approximately monthly intervals. In cross-examination, he accepted that the plaintiff was capable of re-entering the work force.
Dr Byth, psychiatrist, saw the plaintiff on 15 May 2002 and diagnosed her as suffering from post traumatic stress disorder and an adjustment disorder until 2001 “when these conditions went into clinical remission following treatment”. He concluded the symptoms of these disorders were now “very mild and below the threshold of clinical severity”. He doubted that she had any psychiatric incapacity arising from the psychological consequences of the motor vehicle accident and concluded that she would not require any further psychiatric treatment.
Dr Byth saw the plaintiff again on 6 May 2003 when he diagnosed her as suffering from a mild adjustment disorder with depressed mood. He doubted that “her physical injuries in the MVA, which seemed to have now partly improved” were making much, if any, contribution to that condition. He concluded that her post traumatic stress disorder was in remission but later commented “I doubted that her physical injuries in the MVA in 1996 were currently severe enough to be contributing much to this current episode of Adjustment Disorder”.
Dr Byth was of the view that the plaintiff’s original post traumatic stress disorder symptoms resulted from a number of factors which included the breakdown of a relationship with a male friend, her relocation to Sydney away from family support, family illness and difficulties with fellow employees. He concluded that her current depressive symptoms are likely to improve and go into remission when legal proceedings are completed and that “… she is probably too depressed, angry and irritable to cope with paid work”.
Mr Fox, a psychologist, interviewed the plaintiff on two occasions and consequent upon those consultations gave reports dated 20 June 1999 and 1 May 2003. In both reports he said that he was unable to quantify the plaintiff’s psychological impairment resulting from her injuries. In his first report he concluded that the plaintiff was a person “with a high energy level who would psychologically fare poorly with restricted capacity for physical activity”. In his second report he expressed the view that because of the plaintiff’s aptitudes and inclinations she was “ideally suited” to a military career.
An occupational therapist who assessed the plaintiff in December 2000 reported to the plaintiff’s solicitors in January 2001 that, although the plaintiff was able to “fulfil the demands of stores person”, she was unable to meet the demands of soldiering “because of the pain and limitations she experiences in her knees”. The plaintiff reported to the therapist that she was unable to run on account of knee pain and thus could not participate “in all components of the fitness requirements”. She said that although she did regain “class 1 fitness” she was unable to continue with the running required to maintain that classification.
The plaintiff’s pre-accident history
The plaintiff, who was educated to year 12 standard, enlisted in the Australian Army in September 1995 and at the time of the accident was a storewoman at the Oakey army aviation base. She was an active sportswoman, playing netball and participating in competitive equestrian events.
After leaving school she completed one year of a two year Associate Diploma of Information Technology course at TAFE and later commenced a TAFE food and beverage course before joining the army.
The plaintiff’s post accident history
A vague and garbled history of the plaintiff’s service career and of her medical and psychiatric symptoms was given on the trial and no attempt was made to establish a coherent chronology of events by reference to documents. Despite this, the evidence is sufficient to permit the following findings.
After the accident, the plaintiff returned to duty at Oakey on 4 January 1997, when she was given a classification which confined her activities to the base. She was also granted exemption from strenuous physical activity.
In July 1997, after a medical board examination, she was declared combat zone exempt and in April 1998 she was classified class 2. In November 1998, in order to avoid the prospect of being discharged as physically unfit, the plaintiff concentrated on improving her physical fitness and succeeded in being classified class 1. The physical activity involved in this process, however, caused her a considerable amount of pain. She continued to perform her duties but her superior, Corporal Warbrooke, noted that her performance had deteriorated. He said she became rebellious, less motivated and required more supervision.
Through this period, the plaintiff had been attempting to obtain de facto status for herself and another soldier with whom she had been keeping company. She applied for a transfer to Moorebank near Sydney to be near him but the relationship broke up before the transfer came through. Nevertheless, she proceeded with the transfer when it was approved.
The officer in charge of her section at Moorebank, who gave evidence, formed a favourable opinion of her competence and aptitude. He was unaware of any inability on her part to carry out her duties.
The plaintiff sought and was granted a transfer back to Oakey in January 2000 and married in July 2000. Her classification was reduced to class 3 on 24 November 2000 as a result of difficulties she was experiencing with her knees.
On 23 October 2000 she was referred to Dr Foxcroft by her unit medical officer for treatment of depressive symptoms and symptoms of post traumatic stress.
The plaintiff’s classification was reduced to class 4 in June 2001 and it was determined by a medical board on 6 September 2001 that she be discharged as unfit on the basis of her knee pain, which prevented her from gaining the necessary fitness standards, and psychiatric illness stemming from the motor vehicle accident aggravated by workplace harassment.
After the accident, the plaintiff suffered the psychiatric disorders identified on the psychiatrists’ reports. She made determined efforts however to put these behind her and to resume the level of fitness necessary for continued service (class 1). She managed successfully for a time but eventually found her levels of knee pain too great to permit the requisite levels of physical activity. As her physical activity decreased, her weight increased. This, and the increasing realisation that she would be unable to continue in the army, contributed to the lowering of her self-esteem and the exacerbation of her psychiatric symptoms.
It was argued on behalf of the defendants that any psychiatric problems the plaintiff may have sustained as a result of the accident had ceased by 2001 and that her later symptoms were associated with matters such as the stress of legal proceedings and child raising. It was submitted also that the break up of the plaintiff’s relationship with the soldier resident in Sydney; illness in her family and harassment in Sydney, were also fresh causes of her psychiatric symptoms.
Whatever her psychiatric state, her physical injuries prevented her from maintaining a class 1 classification and it necessarily followed that she would not have been able to avoid being discharged.
But, in any event, I do not accept the defendants’ submissions in this regard. I accept Dr Foxcroft’s evidence which is supported by the assessment of the relevant military board and the evidence of Dr Naughton that the plaintiff’s psychiatric condition resulted from the accident and its consequences. The matters on which the defendant relies were generally transitory in nature and were operating on a condition which arose from the accident and its inevitable consequences.
I accept the evidence of Dr Byth to the effect that until the conclusion of this litigation the plaintiff’s psychiatric impairment impeded her ability to resume paid employment. I do not accept, however, his opinion on the cause of the impairment. In my view, the evidence establishes that it would have been difficult for the plaintiff to obtain and keep employment for some months after her discharge from the army and for some months prior to the trial.
Pain, suffering and loss of amenities of life
The plaintiff underwent considerable pain in the days and weeks after the accident as a result, in particular, of her fractured femurs, lacerated tongue and injured genital region. She has few residual problems as a result of the thigh injuries but her knee injuries continue to cause pain, have led to her departure from the army and reduce her employment prospects. These matters have contributed to her psychiatric condition. Her inability to exercise strenuously has also played a role in her weight gain and prevented her from engaging in active sporting pursuits. She continues to experience pain in sexual intercourse and remains distressed by scarring and disfiguration of her external genitalia and thighs. I consider that an appropriate award, having regard to these factors, is $50,000. I allow interest on $25,000 at 2% per annum for 6.9 years.
The plaintiff’s economic loss claim
The plaintiff claimed economic loss of $768,714 made up as follows –
· Past Salary $43,154.91
· Allowances (40% thereof) $10,976.00
· Interest @ 5% for 6.9 years $18,674.00
· Taxation Relief (40% thereof) $2,789.00
· Future: $704,899.77 (less 30%) $493,442.84
· Superannuation $48,293.00
Major Muller, the career manager for the Royal Australian Army Ordinance Corps prepared what he described as “a standard career profile of a soldier within the Operator Supply trade”. The profile showed that such a soldier would spend two to five years as a private, three to five years as a corporal, four to six years as a sergeant, four to six years as a warrant officer class 2 before attaining the rank of warrant officer Class 1. The table was accompanied by a letter containing the rider –
“It is difficult to determine the career profile of a soldier as promotion is based on merit. Pte Masters was at the early stage of her career and therefore there is limited information on her performance and promotion potential.”
In evidence-in-chief, the following explanation was given as to how the profile was constructed –
“… there are trade notes as to what courses are required from an individual for certain lengths and certain qualifications and also a minimum time in length – at each length, before they can be considered for promotion. Then we take all that into account and then look at the trade structure and – and therefore on how quickly we require people to be promoted to maintain that trade structure and also based on historical evidence and also their performance by retention levels and average of times throughout the corps or wherever they may be.”
In cross-examination, Major Muller agreed that one can only speculate as to whether a particular private and the commencement of his or her career would be likely to fit the profile. He further said that there was insufficient information available to him about the plaintiff in order to enable him to assess whether she had the leadership qualities required to be promoted to sergeant. He also gave evidence of a fairly standard attrition rate in the Ordinance Corps of between 10 and 13 percent per annum.
Mr Nunan, the plaintiff’s solicitor, did an exercise for the purpose of calculating past economic loss showing the plaintiff’s salary and allowances on the basis that she fitted Major Muller’s profile, became a corporal in 1999 and a sergeant in 2003. He also assumed, for the purposes of the exercise, that she would have had 182 days service in East Timor and 92 days service in Bougainville. Future economic loss, also based on the career profile, was calculated on the basis that the plaintiff would have been a sergeant from July 2003 until January 2007, at which time she would have been promoted to warrant officer second class. The exercise then proceeded on the assumption that the plaintiff would have remained in that rank for four years before being promoted to warrant officer class one and that she would have retired with that rank at age 60 in 2036. The total future economic loss so calculated was $704,889.00. From that figure a 30% deduction was made “for maternal commitments, early retirement etc”. The etc was said to include an allowance for the income which the plaintiff could have been expected to earn from non-military employment after her discharge.
Assessment of future economic loss
The defendant’s counsel submitted that the assessment of future economic loss should be approached on the basis of “loss of a chance” and that this should be done as a “global assessment”. It was submitted that the range of such global assessments was between $50,000 and $100,000, but that the facts here did not support an award at the top of the range.
There are obvious difficulties in predicting the plaintiff’s career path had the accident not happened. The plaintiff was an active, well-motivated, young woman with a pleasant disposition and who related well to her peers and superiors. She enjoyed a physically active life style and army life suited her. Whether she would have maintained her enthusiasm and continued to get the same enjoyment from it after marriage and the advent of children though is open to doubt.
The conclusion I have reached is that it is likely that she would have persisted in her military career for some time after having one child, and perhaps even more, having regard to her enjoyment of military life and the financial security and advantages offered by it. I consider it probable that she would have progressed to the rank of corporal after about five years from the commencement of her service, but promotion beyond that was rather less certain. Although the plaintiff was well motivated, the evidence does not disclose that she had any particular ambition or had even given much thought to a possible career path.
There is little evidence either that she was likely to have undertaken courses of a technical nature which would have made her promotion beyond the rank of sergeant likely or that she would have undertaken, readily, the study necessary for higher promotion. I consider it probable that after ten or so years she would have become a sergeant and remained in that rank for as long as she continued in the services. In making that assessment, I take into account, amongst other things, Major Muller’s evidence of upward mobility in the Ordinance Corps.
The plaintiff, however, is able to obtain employment in a reasonably broad range of activities within the limitations expressed in the evidence of the orthopaedic specialists. The only evidence about income levels in such employment was that of Dr Foxcroft who in cross-examination said that the award for a medical receptionist was “somewhere in the high $30,000”. The current rates of pay for corporals vary between $35,788.00 and $36,881.00 per annum and those of a sergeant between $40,000.26 and $41,249.00 per annum. Those pay rates do not include benefits and allowances which can be reasonably substantial. The service allowance for a sergeant is to the order of $7,000.00 per annum and that for a corporal is approximately the same. There are other benefits as well, such as meal, clothing and accommodation allowances and a higher rate of pay whilst on exercise.
Because of the matters I have just mentioned, there is little to enable me to measure the likely loss of income of the plaintiff as a result of her having to seek employment outside the army. Plainly, she has suffered some loss through the loss of a secure occupation with a clear avenue of promotion which suited her disposition and capabilities. She has been removed from that environment to one in which there is likely to be more competition and in which she will find it much more difficult to find employment suited to her physical and mental requirements. There is thus a higher likelihood of periods of unemployment in the future. Additionally, she will miss out on the allowances and financial entitlements available to a member of the armed forces, including a higher percentage contribution to superannuation by the employer.
As is apparent from what I have said, the plaintiff’s loss admits of no precise calculation and I take up the defendant’s counsel’s invitation to make a jury assessment whilst rejecting the contention that there is some “range” of award which has general application. I conclude that the plaintiff’s loss is an average of $9,000.00 per annum over a period of 15 years. That assessment which is based substantially, but far from entirely, on a loss of benefits and entitlements, includes a discount on account of the vicissitudes of life, such as the possibility of early termination of the plaintiff’s military career as a result of injury, family commitments, changed attitudes to family life and the like. It is further discounted on the 5% tables to arrive at a present day value of $93,000.
I mention that I have not taken into account in this calculation the amount of a small pension to which the plaintiff is entitled. It was agreed between the parties that it should be regarded as an incapacity pension and on that basis it was submitted on behalf of the plaintiff that it should be disregarded. Reliance was placed on United Kingdom authorities such as Longden v British Coal Corporation.[1] The defendants’ counsel did not oppose this approach if, as he submitted, future economic loss was to be assessed on a “global” basis.
[1][1998] AC 653.
Past economic loss
I am not satisfied that, apart from some loss of relatively minor benefits, the plaintiff suffered any compensable economic loss prior to her discharge from the army on 13 January 2002. Her past economic loss is the net salary she would have earned as a corporal between the date of her discharge and the date of trial. The service allowance should be taken into account but not a uniform maintenance allowance, as there was no evidence that that allowance exceeded the expenses for which it was awarded. Although similar considerations may apply to aspects of the service allowance, it is reasonable not to interfere with it as any advantages gained by the plaintiff in that regard are offset against loss of other benefits such as the possibility of higher earnings on exercise and overseas postings. Interest at 5% is allowed on one-third of the sum so arrived at for 6.9 years. The sum so arrived at should be reduced by one-third to allow for the probability that the plaintiff could have been in paid employment for a substantial period between 13 January 2002 and the date of the trial.
Griffiths v Kerkemeyer (Past gratuitous care)
The parties have agreed a rate of $12 an hour for past services rendered and $14 an hour for future services. The past services consist of a claim for past gratuitous care rendered in the following circumstances. –
1. 2.9.99 to 26.9.96 Care (in the form of washing clothes, providing moral and emotional support, assisting with showering, exercise, meals and providing meals) for 6 hours a day by the plaintiff’s mother whilst the plaintiff was in the Princess Alexandra Hospital.
2. 26.9.96 to 20.9.96 Care whilst at home by the plaintiff’s mother and sister in preparing meals, assisting in the eating meals, washing clothes, assistance with showering, toileting and performing general house duties, driving the plaintiff to and from medical appointments.
3. 30.9.96 to 29.11.96 Care and assistance on weekends provided by the plaintiff’s mother for 2 ½ days per week on weekdays and 6 hours per day on weekends whilst the plaintiff was a patient at the 2nd Field Hospital Enoggera. The claim encompasses services of the nature of those claimed in 1. above.
4. 30.11.96 to 2.1.97 5 hours care per day as described in 2. above whilst the plaintiff was residing with her parents.
5. 2.1.97 to 13.4.97 After the plaintiff’s return to Oakey, 2 hours care and assistance per day provided by her mother on weekends at an average of 2 weekends per month. The care encompasses the mother’s driving to Oakey on a number of occasions to pick up or return the plaintiff, assistance in eating, preparation of meals, washing clothes, performing general household duties, assisting with toileting and showering, as well as driving the plaintiff too and from medical appointments.
6. July 1998 to the present Assistance provided by the plaintiff’s husband 2 hours per week in washing ironing and performing other domestic duties as well as mowing, gardening, shopping and heavy lifting.
Mr Meyers challenged the validity of the claims for assistance provided whilst the plaintiff was in hospital on the basis that it was not reasonably necessary for services of the nature of those claimed to be provided by the plaintiff’s mother whilst the plaintiff was hospitalised. He further submitted that if the level of services provided by the hospitals was reasonable, no claim under this heading could be justified. He submitted also that the costs of travel to and from hospital, the costs of parking at hospitals and the claim in respect of the plaintiff’s husband’s assistance were unsupportable. Some of the claims were challenged also on the basis that some of the services rendered probably would have been provided gratuitously even if the accident had not occurred.
Van Gervan v Fenton[2] establishes that the fact that the services in question may have been provided gratuitously had the accident not occurred is not a disqualifying factor, but that it is essential that the plaintiff establish a need for such services.[3] It is also established that visits by a person to a hospitalised relative are compensable if the visits are reasonably necessary to meet the plaintiff’s physical and/or emotional needs.[4] It is not permissible, however, for a plaintiff to be compensated for services which a hospital or other such institution would have provided to the plaintiff for no additional charge had a third person not elected to provide the same services gratuitously. In those circumstances, the gratuitous provision of the services cannot be said to have been reasonably necessary.
[2](1992) 175 CLR 327.
[3]Van Gervan v Fenton (supra) at 331-332 and Griffith v Kerkemeyer (1977) 139 CLR 161 at 165, 175, 192.
[4]Cf Wilson v McLeay (1961) 106 CLR 523; Chan v Mills (1995) 22 MVR 391; Hillier v Lucas [2000] SASC 331 and Morgan v Gibson NSWCA No. 40377 of 1996, 6 June 1997.
Whilst the plaintiff was in the Princess Alexandra Hospital and the Ipswich Hospital, the evidence suggests that she was in need of emotional assistance and that such assistance materially contributed to her well-being and psychological as well as physical recovery. I have no reason to suppose that the plaintiff was not required to arrange for her own clothes to be washed. Furthermore, the evidence discloses that the levels of staffing were such that some assistance in showering and exercising as well as with meals was necessary for the plaintiff’s proper care and to assist with her rehabilitation. In respect of item 1, I allow 4 hours over 23 days at $12 an hour. I allow item 2 as fully justified.
Item 3, in my view, includes some matters which are more properly attributable to a mother’s desire to be with and to comfort and assist her child than to any demonstrated need. I allow half of the claim for 9 weeks x 4½ days/week x 6 hours/day at $12/hr. ($1,458).
I allow item 4.
The claim for the period 2 January 1997 to 13 April 1998 (item 5) is excessive having regard to the fact that by this time the plaintiff had returned to duty at Oakey. Whilst not doubting the general accuracy of the evidence of the nature and extent of services rendered, it seems to me that only approximately one-third of those services can be justified. I allow $480 (one third of the claimed amount of $1440).
I find item 6 probably overstated as failing to sufficiently take into account a normal division of domestic duties and the fact that some matters such as shopping were and are likely to be attended to jointly out of companionship. I allow two-thirds of the claim of $6552 ($4,368).
The plaintiff’s claim for $8,260.75 on account of her parents’ travelling expenses is to be approached on a basis similar to that discussed above. I find that the first four claims of $450, $100, $168.75 and $45 respectively, in respect of the period from 2 September 1996 to 30 September 1996, are justified. The claims for transporting the plaintiff on an average of 3 times a week from Lowood to the 2nd Field Hospital Enoggera between 30 September 1996 and 29 November 1996 are also justified as is the next claim for $180. The evidence, however, does not support the $5,616 claim for the transportation of the plaintiff on an average of twice a week between Oakey and Lowood from 2 January 1997 to July 1997. In that regard, I accept that, having regard to the physical condition of the plaintiff in the early stages of her return to work, some such assistance was reasonably necessary and I allow the sum of $1,000 in consequence.
Special damages
The following are agreed –
Refund to HIC $38.70
Refund to Department of Defence $6,403.00
Miscellaneous $1,000.00
Provision for future arthroscopes $7,000.00
Conclusion
For the above reasons, there will be judgment for the plaintiff against the second and third defendants. I invite the parties to provide an agreed schedule of damages to reflect these reasons and to prepare an agreed minute of order. Costs will follow the event unless the defendants are able to show good reason to the contrary.
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