Logan as tutor for Logan v Logan

[2010] NSWDC 128

CITATION:	Logan as tutor for Logan v Logan [2010] NSWDC 128
HEARING DATE(S):	18 May 2010-19 May 2010
JUDGMENT DATE:	21 May 2010
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1) Verdict and judgment for the plaintiff in the sum of $362,525. 2) The defendant is to pay the plaintiff’s costs on an ordinary basis, up to and including 10 December 2009 and on an indemnity basis thereafter. 3) The exhibits will be retained for twenty-eight days. 4) After compliance with its obligations under the Health and Other Services (Compensation) Act 1995 which I note involves the payment to Medicare of $348.70 and after deduction of s 83 expenses of $2,405. The defendant is to pay the sum of $4,746.30 to the plaintiff’s solicitor upon his undertaking to pay that amount to the plaintiff’s tutor in reimbursement of medical expenses paid by her on behalf of the plaintiff. 5) The balance of the judgment sum is to be paid to the New South Wales Trustee and Guardian for investment by the New South Wales Trustee and Guardian on behalf of Tayah Nicole Logan until she attains the age of eighteen years. 6) These orders are made in accordance with the provisions of s 77 of the Civil Procedure Act 2005.
CATCHWORDS:	INFANT - Assessment of damages - Facial scarring and psychological disorders - Affect on quality of life current and future - Affect on future income earning capacity
LEGISLATION CITED:	Civil Procedure Act 2005 Health and Other Services (Compensation) Act 1995 Motor Accidents Compensation Act 1999
CASES CITED:	Amoud v Al Batat [2009] NSWCA 333 Fegan by her tutor Rozenauers v Lane Cove House Pty Limited [2007] NSWCA 88
PARTIES:	Brooke Michelle Logan as tutor for Tayah Nicole Logan (Plaintiff) Louison Reginald Logan (Defendant)
FILE NUMBER(S):	2006/00298524
COUNSEL:	Mr G Radburn (For the Plaintiff) Mr M A Cleary (For the Defendant)
SOLICITORS:	Attwood Marshall Lawyers (For the Plaintiff) Moray & Agnew Solicitors (For the Defendant)

JUDGMENT
1 Tayah Logan was injured in a motor vehicle accident that occurred on 26 April 2003. At the time, she was four years old, she is now eleven. She seeks compensation in respect of the injuries that she suffered in the accident.

2 Breach of the duty of care was admitted and the dispute between the parties related to the extent to which her injuries and ongoing disabilities will affect her in future for the purposes of assessment of general damages and her loss of income earning capacity.

3 The plaintiff suffered a facial laceration in the accident. The laceration extended from her right lower lip, down her chin and cheek and into her upper neck. She received immediate treatment from plastic surgeons at the Mater Hospital in Brisbane, followed by a period of three months of healing, during which it was necessary to clean and dress the wound at two to three hourly intervals.

4 The plaintiff is of part Aboriginal heritage. For this reason, her treating medical practitioners were concerned to avoid the development of hypertrophic keloid scarring and to minimise its consequences if it developed. Five months after the accident her treating doctors introduced a procedure to apply pressure to the area of the scar.

5 A chin strap was initially used to hold the silicone pressure pad in position. The strap slipped and it was therefore necessary to use a full face mask. The plaintiff wore the face mask for 23½ hours a day for a period of 9 to 12 months. Exhibit M is a photograph of the plaintiff wearing the face mask.

6 On 31 March 2004 revisionary surgery was undertaken at the Mater Hospital to deal with lumps that were forming within the scar. After the surgery the use of the mask was suspended for three months and then resumed for four months.

7 The consequences of the injury to the plaintiff were twofold. She is left with substantial facial scarring and she has developed a psychiatric disorder with a physical manifestation through encopresis at times of stress.

8 Inspection of the scarring confirmed the description given to it by Dr Hunter Fry in his statement of reasons provided to the Medical Assessment Service, following assessment on 21 October 2009. I adopted this description because it is the most recent of those provided by a number of plastic surgeons. Dr Fry wrote:

The face shows a V shaped scar on its side, extending over the jaw line on the right side. The upper limb is near vertical and slightly curved, extending from the red margin of the lower lip, about 1 centimetre inwards from the angle, downwards over the jaw line for a length of approximately 5 centimetres. The horizontal section extends from immediately to the right of the mid line for 7 centimetres, upwards to the outer side of the ascending ramus of the mandible. This is illustrated in clinical photographs.

The scar is soft and lacks induration. The majority of the scar is pigmented. The vertical section is spread to about 3 millimetres, the horizontal section is spread to as much as 5 millimetres, the spread lessening as it extends over to the right. The outer side of the vertical scar is slightly in advance of the inner side (to the left) and the vertical scar does show some depression along its length. It is visible with indoor illumination 3m away.

9 Dr Gahankari noted that one section of the scar was wide and that it was a common observation that scars have a tendency to widen during the growing years of a young person. It was generally accepted by plastic surgeons that there were prospects that the appearance of the scar could be improved with revisionary surgery, but that this should not be undertaken until the plaintiff is in her late teens.

10 Dr Gibson indicated that the improvement could be substantial. Dr Gahankari recommended further surgery to improve the appearance of the scar to some extent, by narrowing the widened area of the scar. He warned of a real risk of hypertrophic change. Dr Gibson also noted the effect on the quality of the scar because of the plaintiff’s ethnic origin.

11 The result was therefore that, although some prospect of improvement by further surgery, that surgery is not without risk and there is no prospect that the scar will be entirely removed.

12 In addition to the scar, the laceration damaged nerves in this area of the plaintiff’s face, so that there is an element of palsy in the right side of her lower lip. The result is that the plaintiff’s smile is uneven, she is prone to drooling and to collection of food in this area.

13 Speech therapy has failed to resolve a tendency to slur her speech when she is tired.

14 The plaintiff’s tutor, her mother, said that as the plaintiff is growing the scar is becoming darker and more prominent in appearance. The plaintiff is required to apply sunscreen daily and zinc cream to protect the scar in summer months. Vitamin E cream and rose oil are also applied as a means of minimising the appearance of the scar.

15 The psychological aspects of the claim were as troubling as the scarring. Mrs Logan described the plaintiff as a happy and sociable four year old who was fully toilet trained prior to the accident. Almost immediately upon discharge from hospital after the accident, the plaintiff exhibited significant anger, she had tantrums and she developed separation anxiety. She also suffered from encopresis, a condition that involves faecal soiling.

16 Mrs Logan said there had been some improvement in these symptoms over time but the plaintiff continued to exhibit anger through tantrums and to suffer from intermittent periods of encopresis at times of stress and anxiety. She refused to stay overnight at the homes of her friends and continued to express a need to be close to her mother.

17 Her school is aware of her symptoms and is understanding of them. Her Aunt teaches at the school and is a person to whom the plaintiff can turn if she soils herself on a school day. When they go out, Mrs Logan is required to take spare underwear and wipes.

18 Mrs Logan said the plaintiff was struggling academically. She attributed this to the plaintiff’s frequent absences from school while attending medical appointments for treatment associated with the accident and to the number of times when the plaintiff has come home from school because of panic attacks.

19 Mrs Logan acknowledged that the plaintiff engaged in a number of social and sporting activities, including swimming, jazz and ballet dancing and netball and that she had friends with whom she enjoyed spending time. She agreed with the suggestion that the plaintiff was confident and happy when she was dealing with her friends.

20 The plaintiff has received some counselling since the accident, but it is not currently ongoing.

21 Ms Wright, a psychologist associated with the plaintiff’s primary school, provided counselling in 2006 and 2007. She described the plaintiff’s presenting problems as separation anxiety, avoidance of discussion of the accident, outbursts of anger at home and infrequent faecal soiling during the day. She reported a general increase in stress and anxiety among family members, particularly affecting Mrs Logan, who was also treated by Ms Wright.

22 Mrs Logan did not agree with Mrs Wright’s reporting that the plaintiff exhibited no behavioural problems or other anxieties at school, stating the Ms Wright had not witnessed the plaintiff’s tantrums. It was clear that Mrs Logan did not consider that Ms Wright’s treatment was of benefit to herself or to the plaintiff. Mrs Logan was questioned about Ms Wright’s comments suggesting she failed to cooperate with the treatment. She replied that she thought Ms Wright was paying too much attention to her and insufficient to the plaintiff.

23 She said the plaintiff’s gains in self assurance and self confidence were the result of her strong and supportive family network.

24 Ms Wright reported that the plaintiff experienced significant psychological problems after the accident and that in addition to separation anxiety she had symptoms of post traumatic stress disorder, including anxiety in response to reminders of the accident and avoidance of those reminders, nightmares and difficulties sleeping.

25 She reported a phobia of doctors and hospitals and the development of encopresis. Ms Wright was of the opinion that these problems had minimal effect on the plaintiff’s education and social life. She thought her symptoms were manageable so that she would be able to function well in her day to day life. She considered that management of the plaintiff’s problems required treatment. The treatment of Mrs Logan was proposed to remove her levels of anxiety and to acquaint her with techniques to assist her to deal with the plaintiff’s oppositional behaviour.

26 Dr Crittenden, psychiatrist, examined the plaintiff in September 2007. She reported the plaintiff’s symptoms and noted several positive aspects, including her social and sporting activities. She described the plaintiff as socially well integrated, enjoying the company of friends. Notwithstanding these positive aspects, Dr Crittenden diagnosed adjustment disorder with anxiety and encopresis.

27 Contrary to the opinions of Ms Wright, Dr Crittenden considered that no treatment was necessary at that time. She considered that future treatment would be required at times of anxiety provoking situations or crises. She expressed concern that, as the plaintiff approached later childhood and adolescence, her psychological function might be affected by her attitude to her body image.

28 Dr Dennerstein examined the plaintiff at the request of the Medical Assessment Service in October 2009 and arrived at an identical diagnosis to that provided by Dr Crittenden. Dr Bogan, a psychologist specialising in rehabilitation of young people with acquired brain injury, examined the plaintiff in September 2006. His diagnosis was also identical.

29 Dr Bogan’s testing of the plaintiff’s intellectual functioning placed her in the average to low average range in various areas. He also suggested that some of her problems were related to other health conditions from which she suffered after the accident. No other expert suggested this proposition.

30 Dr Dennerstein declined to assess the plaintiff’s whole person impairment as a result of her psychological injuries, stating that her condition had not stabilised. This was based upon the concerns that she shared with Dr Crittenden that the plaintiff’s condition could not be judged until she had to deal with body image issues as she progressed into adolescence.

31 I acknowledge this difficulty, but having met with the plaintiff in the course of inspection her scar, heard the evidence of Mrs Logan and read the medical reports, I concluded that it was in the plaintiff’s best interests that her claim be resolved and that she be relieved of the ongoing stress and anxiety of continued litigation, in particular, the unavoidable requirement to submit to further multiple medical examinations.

32 This posed particular problems in assessing the claim for future income loss. At the age of 11 she has no clear career ambition, although Mrs Logan said she has spoken of becoming a doctor, a vet or a dancing teacher. Difficulties of assessing future income losses of children, when there is no pre-accident employment history, have been addressed in a number of cases.

33 My attention was drawn specifically to the seemingly dramatically different approaches taken in two of those cases: Fegan by her tutor Rozenauers v Lane Cove House Pty Limited [2007] NSWCA 88 and Amoud v Al Batat [2009] NSWCA 333. The defendant argued that Fegan was authority for the proposition that a lump sum award as a buffer against future income loss could not be made because it indicated that the Court was speculating as to the plaintiff’s future employment prospects.

34 I did not accept that proposition. On my reading of that authority, the Court of Appeal upheld the trial judge’s finding that the plaintiff had not provided evidence that her particular disability would in fact be productive of income loss, having regard to her most likely future circumstances, but for the injury.

35 Amoud was similarly a decision that depended on its own facts. However, Basten JA in his reasons helpfully set out a number of steps to be taken in applying, as required in the case before me, the provisions of s 126 of the Motor Accidents Compensation Act 1999.

36 Starting at [23], he said that s 126(1) imposes on the plaintiff, the burden of proof in order to satisfy the Court of the claimant’s most likely future circumstances but for the injury and the assumptions about future earning capacity and other events that would form the basis of calculation of the income loss.

37 Section 126(2) requires the Court to adjust an award for damages against the contingency that the diminution in earning capacity caused by the accident would have occurred in any event. Subsection (3) requires the Court to state, for the purposes of transparency, both the assumptions made and the percentage by which the damages were adjusted in accordance with those assumptions.

38 Applying those steps to this case, obviously the most difficult part of the process was the assessment of the plaintiff’s most likely future circumstances but for the injury. The evidence as I have noted suggested that she is in the average to low average level of intellectual functioning and that careers in medicine or veterinary surgery are remote prospects. I accepted therefore the contention of her counsel, that it is most likely that the plaintiff will adopt a career path that will return her an average weekly wage. This is currently $816 per week for females in New South Wales.

39 As to s 126(2), there was nothing in the plaintiff’s very limited pre-accident history to suggest that she would have suffered in particular from a psychological condition, even if the accident had not occurred. There was no record in the psychiatric reports of a history of disorders within her family background. Therefore, I found no warrant to apply a discount greater than the standard 15% cent and to take account of the deferral period until the plaintiff reaches income earning age.

40 In respect of both non-economic loss and loss of income earning capacity, the defendant argued that there were prospects of improvement of the scar with surgery and that the finalisation of this litigation would prospectively improve the now intermittent encopresis so that with counselling, the effects of the adjustment disorder would be ameliorated. The defendant argued that the evidence suggested that there were no limits placed upon her income earning capacity that were attributed to the accident.

41 I was left with a less optimistic outlook concerning the plaintiff’s future prospects. It is now seven years since her injury and notwithstanding the resilience that one might expect of an infant child, the plaintiff continues to suffer from significant psychological symptoms, one of which is encopresis. This condition alone, although now intermittent, must continue to be a limiting factor affecting her independence and self confidence, both socially and in the labour market.

42 This litigation is but one of the stresses she will face as she matures and deals with day to day adult life. None of the medical reports suggested that the disorder would resolve. To the contrary, reservations were expressed by the psychiatrists in suggesting that the plaintiff’s condition was not yet stable because of the potential deterioration in her psychological health as she matures and deals with her disfigurement as an adolescent and adult.

43 The disfigurement is substantial and noticeable. Revisionary surgery will be required because the scar will increase in width as the plaintiff grows. The prospect that its appearance would be improved by surgery must be balanced against the risk of the development of greater hypertrophic change.

44 In the circumstances and taking account of the disfigurement and the significant psychological injury, I assess the plaintiff’s non-economic loss at $200,000.

45 As to her future income loss, while there was no evidence of any physical impediment to employment in any field that the plaintiff chooses, I considered that she would be disadvantaged in some limited areas by her appearance. She will be more significantly disadvantaged by her psychological symptoms.

46 I decided that it was not possible to calculate income loss on an precise net weekly basis and that a lump sum by way of a buffer should be allowed to compensate her. The figure of $150,000 was proposed on behalf of the plaintiff, on the basis that it equated to about $150 per week for a working life of about 47 years or to three years of income. I did not regard this approach as unreasonable, but it did not take account of the fifteen per cent discount for contingencies or the deferral period. Applying discounts for these factors, I arrived at a lump sum of $100,000.

47 The parties agreed that the plaintiff should be compensated for past out-of-pocket expenses in the sum of $7,500 and for the future, taking account of the need for surgery, counselling and topical applications in the sum of $25,000.

48 The value of past attendant care services was agreed in the sum of $30,025.

49 The result was that there will be a verdict and judgment for the plaintiff in the sum of $362,525.

50 The orders that I make are as follows:

1) Verdict and judgment for the plaintiff in the sum of $362,525.

2) The defendant is to pay the plaintiff’s costs on an ordinary basis, up to and including 10 December 2009 and on an indemnity basis thereafter.

3) The exhibits will be retained for twenty-eight days.

4) After compliance with its obligations under the Health and Other Services (Compensation) Act 1995 which I note involves the payment to Medicare of $348.70 and after deduction of s 83 expenses of $2,405. The defendant is to pay the sum of $4,746.30 to the plaintiff’s solicitor upon his undertaking to pay that amount to the plaintiff’s tutor in reimbursement of medical expenses paid by her on behalf of the plaintiff.

5) The balance of the judgment sum is to be paid to the New South Wales Trustee and Guardian for investment by the New South Wales Trustee and Guardian on behalf of Tayah Nicole Logan until she attains the age of eighteen years.

6) These orders are made in accordance with the provisions of s 77 of the Civil Procedure Act 2005.

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