Lomas v Bodle

[2001] WADC 141

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   LOMAS -v- BODLE [2001] WADC 141

CORAM:   YEATS DCJ

HEARD:   2-5 APRIL 2001

DELIVERED          :   15 JUNE 2001

FILE NO/S:   CIV 4165 of 1999

BETWEEN:   LISA SHARON LOMAS

Plaintiff

AND

STEPHEN GREGORY BODLE
Defendant

Catchwords:

Damages - Motor vehicle accident - Plaintiff seven months pregnant at time of accident - Severe cruciate ligament injury to left knee - Deterioration and future surgery as well as arthritic changes expected - Severe scarring and vision problems requiring future surgery - Consideration of child rearing responsibilities and family finances on the plaintiff's ability to exercise her retained earning capacity - Need for gratuitous services - Award for pain, suffering and loss of amenity: $63,000 - Total award $215,822

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943, s 3C and s 3D

Result:

Total damages award $215,822

Representation:

Counsel:

Plaintiff:     Mr G Droppert

Defendant:     Mr D R Sands

Solicitors:

Plaintiff:     Separovic & Associates

Defendant:     Marks & Sands

Case(s) referred to in judgment(s):

Abbott v Pacific Industrial Co (WA) Pty Ltd, unreported; FCt SCt of WA; Library No 970079; 4 March 1997

Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 92 ALR 53

Bowen v Tutte (1990) A Tort Reps 81-043

Dare v Pulham (1982) 148 CLR 658

Graham v Baker (1961) 106 CLR 340

Griffiths v Kerkemeyer (1977) 139 CLR 161

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

Mann v Ellbourn (1974) 8 SASR 298

Medlin v State Government Insurance Commission (1995) 182 CLR 1

Morris v Zanki (1997) 18 WAR 260

Thomas v O'Shea (1989) A Tort Rep 80-251

Van Gervan v Fenton (1992) 175 CLR 327

Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Black v Motor Vehicle Insurance Trust [1986] WAR 32

Boban v Henry [1999] WADC 153

Bresatz v Przibilla (1962) 108 CLR 541

Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997

Cameron v Sullivan [1962] QWN 32

Campbell v Wilson [1970] 1 NSWR 333

CSR Readymix (Australia) Pty Ltd v Payne (1977) A Tort Rep 81-432

De Blank v Stemberger [2000] WASCA 358

Hendrie v Rusli (2001) 32 MVR 240

Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192

Lawson v Charles Hull Contracting Pty Ltd, unreported; DCt of WA; Library No D970271; 10 September 1997

The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569

Thiess Properties Pty Ltd v Page (1980) 31 ALR 430

Van Velzen v Wagener (1975) 10 SASR 547

Wright v Shire of Albany (1993) A Tort Rep 81-239

1. YEATS DCJ:  The plaintiff claims damages for injuries she suffered in a motor vehicle accident on 10 January 1998.  Liability is admitted.  The extent of her economic loss and the appropriate award for gratuitous services are the principle matters in issue.

History

1. The plaintiff lived in Rockingham and was employed as a credit officer at Cockburn Cement at the time of the motor vehicle accident.  She was 31 years old at that time and was seven months pregnant.

2. She had been employed continually from the time she completed year 12 in 1985 until the time of the accident.  She spent three years as a bank teller for the R&I Bank from 1985 to 1988.  She left because she preferred to work closer to home and took a position with the Fremantle Credit Union.  She became a Member Services Adviser and held that position for three years until 1991.  Then she moved to Ozcom Credit Union as a loans officer, a position she held from 1991 until 1995.  She left that position in late 1995 in order to work closer to home.  She took a position with Optus World as an administrative assistant in November 1995 and held that position until July of 1996 when she was employed by Cockburn Cement as a credit officer, a position she held at the time of the accident.  The plaintiff gave evidence that she particularly enjoyed her job at Cockburn Cement; she considered it a good company that looked after her.  Her work was varied so that she was never bored; her work took her into the city occasionally.

3. The plaintiff outlined the duties that she was involved in which required her to use a computer.  She processed credit applications from sales and made credit checks; she had to move from a computer on the supervisor's desk to a file and then to a different work station for photocopying, sending out letters, or faxing reports.  Her duties including processing payments which required her to match cheques with dockets, locate invoices and move up and down - pulling up documents and checking dispatches.  She also had to make telephone calls concerning whether orders had been received and print a daily report.  At the end of every month statements were sent out and that was a time when for about a week the credit officers worked long hours until the job was done.  She also had to prepare reports for the board at the end of the month.  Some statements were as small as one page but others were five or six inches thick with a hard cover and had to be stored in compacters.  The compacters were storage shelves of about four shelves and the top one was too high for the plaintiff to reach.  Some were between shoulder height and waist height some were lower.  The plaintiff gave evidence that her work was very physical and involved pulling boxes of statements in and out of the compacters.  Once a month the plaintiff travelled to the office in the city to sit in on creditors meetings for a half day.

4. According to the plaintiff all of the employment she had held over the years was quite active.  When she worked as a teller at the R&I Bank she was required to stand on her feet all day.  At Fremantle Credit it was a sitting job but she had a drawer that opened onto her knees.  When she worked as a loans officer she was in and out of her office three or four times a day conducting interviews and moving to the fax and other work stations to compile documents.  Her job at Optus involved the receipt of big boxes full of telephones which needed to be unloaded and put in systems as goods received.  There was also customer billing and sales work to be done.

The accident

1. The plaintiff was driving at the time of the accident.  Her vehicle was hit head on by a car on the wrong side of the road.  She became unconscious during the accident and has no recollection of it.  She woke in the emergency room at Rockingham Hospital and was soon transferred to Fremantle Hospital.  She sustained a number of injuries which doctors have variously described as moderate to severe.  These included:

   •a fracture of the mid portion of the right clavicle;

   •a fracture of the left humerus;

   •an open penetrating injury of the left knee associated with posterior cruciate and medial collateral ligament injury;

   •lacerated right forehead;

   •blurred and double vision developing.

2. The result of all of these injuries was that initially both arms and her left leg were immobilised; she was not able to roll or move in bed.  Her problems were compounded by her pregnancy and she was taken to King Edward Memorial Hospital by ambulance where she spent three days during which her baby was monitored.  The plaintiff described the monitoring and the need to move her around as being excruciatingly painful.  This was also a time when she was terrified that her baby had been hurt in the accident.

3. The plaintiff's husband had been in the vehicle with her at the time of the accident.  He was kept overnight in Rockingham hospital and then discharged.  He came to Fremantle Hospital and assisted the plaintiff during her hospital stay.  He helped her to the toilet, he fed her and he shampooed and conditioned her hair.  While in hospital the plaintiff commenced physiotherapy on a machine to bend her knee and arm and she described those exercises as very very painful.  She was on that machine an hour at a time sometimes twice a day.  Once the plaintiff was able to return home she continued with physiotherapy and hydrotherapy two or three times a week.  Her husband drove her or her mother took her.  They tried to arrange appointments on the same day.

4. The plaintiff's daughter Jade was born on 27 February 1998 by caesarean section.  For eight weeks following the birth the plaintiff was unable to have any physiotherapy or hydrotherapy.  She was unable to look after her baby in the early weeks as her arms were useless.  The plaintiff breast fed her daughter but could only hold her for a very short time.  She fed her lying down with her husband bringing the baby and then taking the baby away to be burped.  During that period after the birth of Jade the plaintiff said she simply did not sleep much, only three to four hours a night in fits and starts.  She took Temazepam and Panadeine Forte until Jade was born and after that got by with Panadol.

5. The plaintiff has worked very hard on her physiotherapy which she was able to resume along with hydrotherapy late in April and May of 1998.  She continued to go to the gym until January of 1999 and continued her physiotherapy until June of 1999.  In January of 1999 she started yoga and tried to walk every day.  I was impressed by the reports of all the doctors that her continued work on physiotherapy and then yoga and her work at strengthening her thigh muscles had been very helpful in stabilising her left knee.  She made every effort to recover.

6. The plaintiff's problems with blurred vision associated with headaches developed at the time of the accident but were expected to resolve.  Six months after the accident she experienced some post‑traumatic stress problems; she imagined terrible road accidents and imagined herself and her baby being injured.  The plaintiff has been left with a scar on her head although it is not noticeable in her hair and it does not bother her.  She has another scar on her upper left arm which she covers with clothing.  The serious scarring she has suffered is to her left knee, scarring that I accept will require plastic surgery at some stage.  The plaintiff intends to have that plastic surgery but she will need to keep the knee straight and not move it for four weeks following the operation.  The plaintiff intends to wait until her husband has time to help her with the children before that surgery is scheduled.

7. During her second pregnancy her knee became more symptomatic but seems to have plateaued.  She describes her knee as better now but not as good as it was prior to her pregnancy.

8. The plaintiff, her husband and her mother‑in‑law, who gave evidence at the trial, all described the plaintiff as a very active person prior to the motor vehicle accident.  She played indoor volleyball, involved herself in aerobics, and walked the dog every day through the sand dunes.  She and her husband enjoyed camping, hiking, and rock climbing, she also enjoyed rollerblading.  The accident has severely limited her physical activities.  Her knee limits her so that she no longer can walk on uneven ground.  She accepts that rock climbing and that sort of thing is now out of the question in any event because of the two young children but her injuries, particularly her knee injury, has left her with severe limitation on any kneeling, squatting, or bending of the knee.  She has raised two children now to the ages of three and six months without being able to kneel or squat on the floor.  If she needs to be on the floor to tie a shoe or pick up something she has to sit on the floor and then get herself back up.  The plaintiff described the early time with her first baby Jade as being severely limited and gave evidence that she had lost that bonding that could be expected to occur between mother and child.  That happened because she was unable to pick up Jade to cuddle her, hold her and physically deal with her in those very early weeks.

Treatment

1. The day after her motor vehicle accident the plaintiff underwent open reduction and internal fixation of the fractured left humerus with an interamedullary nail.  She also underwent exploration, debridement and wash‑out of laceration of her left knee.  Her right forehead laceration was debrided, irrigated and sutured.  Her mid‑shaft fracture of her right clavicle united spontaneously after she was initially required to wear a sling.

2. Because of persistent pain and tenderness in her left knee the plaintiff received a celestone injection on 30 June 1999 which provided some relief.

3. In November 1998 the plaintiff had surgery to remove the nail holding the left humerus bone together.  As a result of that surgery her left arm was useless for about two weeks.

4. The plaintiff's treatment needs now are primarily future needs.  There was evidence of the likelihood that she will require not only plastic surgery for the scarring on her knee in the near future but also surgery on her knee later in life.  I will consider those matters later in this judgment.

Employment

1. The plaintiff had only intended to take six months maternity leave from Cockburn Cement following the birth of her daughter on 27 February 1998.  She then intended to go back to work full‑time and have the baby cared for in a day care centre as her sister had done.  The motor vehicle accident changed her plans.  She had applied for maternity leave to commence 30 January 1998, expiring on 1 August 1998.  When her maternity leave expired the plaintiff wrote seeking part‑time employment.  When none was available she extended her maternity leave for a further six months to 1 February 1999.  When that period had ended the plaintiff wrote to Cockburn Cement indicating that she was in a position to return to work on a part‑time basis only, a maximum of four hours a day.  She further advised that should there be no part‑time position available she would tender her resignation.  Cockburn Cement had no part‑time positions available so that in a letter dated 31 December 1998 the plaintiff resigned her position.

2. The plaintiff has made no other applications for part‑time work.  She did not apply to any other employers or look for other work.  The plaintiff explained that she did not seek part‑time work in 1999 for financial reasons.  This arose from her husband's financial position.  He had been unemployed having been made redundant shortly before the time of the motor vehicle accident.  He had intended to have a month off in January 1998 and then seek work closer to Rockingham.  As things eventuated he did return to work casually in April 1998 and then, in January 1999, he commenced an adult apprenticeship.  That was at a much lower salary than he had been earning prior to the motor vehicle accident.  Because of his very low earnings the plaintiff gave evidence that she had calculated the family finances if she worked part‑time in 1999 and found that her pay, less tax, less child care, and less all of the benefits the family was receiving from Centrelink along with the health card made it uneconomic for her to work part‑time.  As the plaintiff saw it, it was not worth it financially for her to work part‑time since 1999 because of her husband's low income and the benefits they would lose.

The second child

1. The decision not to return to work for financial reasons led the plaintiff and her husband to the decision to have another child in 2000 rather than waiting as they had intended to do.  The plaintiff said she had intended originally to have just six months leave following the birth of Jade in February 1998 and then return to work full‑time.  They planned later when Jade was nearing school age to have a second child.  However once the plaintiff found she was at home with Jade in 1999 and once she found working part‑time would not be financially viable, she and her husband decided to bring forward their planned second child Emma who was born in October 2000 about six months prior to the trial.

Expert evidence

1. Dr John Kingsley Kerr, a consultant in rehabilitation medicine, gave evidence that he had seen the plaintiff on seven occasions since July of 1998.  In his opinion she was totally unfit for work from the time of the motor vehicle accident in January 1998 until about a year later when he saw her on 16 February 1999.  From that time he considered her able to return to part‑time clerical work but because of the significant injury to her left knee she would need to have a position that did not place any stress on her knee.  At that stage Dr Kerr considered that she had a work capacity of three to four hours per day.

2. Since February 2000 Dr Kerr considered that she could work 20 to 25 hours per week.  His clinical findings were the same as in 1999; she had not recovered fully from her knee problems.  Her employment would have to be light clerical duties and she would need to avoid getting up and down very often through the day.  She required sedentary employment.

3. Mr Kerr's opinion as to her present work capacity was encapsulated in his report of 26 March 2001.  He noted that as a consequence of her knee injury the plaintiff continues to have restriction of knee function and left sided knee pain of significance.  She is unable to squat, kneel, run or jump and has to walk upstairs slowly.  Mr Kerr was of the opinion that the plaintiff would be able to undertake 20 to 25 hours of work each week when her family responsibilities allow it but, because of her absence for some years now from the workplace, she will need to retrain to a limited extent.  She will need to develop skills in the use of word processing, electronic bookkeeping and such things as internet access.

4. As to her future treatment needs Dr Kerr's view was very guarded.  So far as her left knee is concerned he predicted continuing instability giving way from time to time and the potential precipitants of early arthritic change.  Mr Kerr anticipated she will have pharmacological treatment in the form of anti‑inflamatories and physiotherapy to maintain her thigh muscles.  He believed there is a 50 per cent chance that within 10 years she will require an arthroscopy to clean up debris in the knee joint.

5. Mr Kerr is also of the view that there is a 60 per cent likelihood that she will require a knee replacement 15 to 25 years from now.

6. Under cross‑examination Mr Kerr indicated that he expected that once her children grow up and reach an age when they no longer need to be picked up or carried that she should be able to exercise her work capacity for 20 to 25 hours a week of clerical work duties.

7. Mr Soo Tee Lim, orthopaedic surgeon, gave evidence and described the care he had given the plaintiff.  Her injuries at the time of the motor vehicle accident included a fracture of the right clavicle, fracture of the shaft of the left humerus and also severe open laceration of the left knee on the antero‑medial aspect.  Mr Lim indicated that his diagnosis for her left knee is one of post‑traumatic chondromalacia of the patello‑femoral joint of her left knee with posterior cruciate ligament rupture.  Mr Lim considered her fit for office type duties where she could sit and said her duties should not involve any prolonged standing.  She could not do any work that involved kneeling or squatting, nor could she do any heavy lifting.  Mr Lim assessed her percentage of permanent disability of the left knee to be 20 per cent and recommended that she maintain fitness with gym exercises and yoga and use anti‑inflammatories and analgesia as prescribed.

8. Mr Lim gave his opinion concerning her future treatment needs.  He considered that there was a 50 per cent or less chance that within 10 or 15 years she will require a knee replacement but it is speculative and depends very much on how the knee behaves and how well she takes care of it.  Mr Lim is also of the view that within four to five years there is up to a 50 per cent chance that she will require cruciate ligament tibial osteotomy.  Mr Lim provided details of his estimated costs of all of these procedures.

9. Under cross‑examination Mr Lim agreed that the symptoms in the plaintiff's knee had improved after the birth of her second child and he expected the symptoms would improve as the demands of her children lessened.  He anticipated that she could only undertake part‑time duties for a start and noted that even getting on and off a chair in an office puts stress on the knees.  He said it depended on the nature of the office duties.  Mr Lim agreed that he considered she would be fit for office work when her child was two years old and that he thought it was normal to commence part‑time work.  He also said that her present capacity is similar to her condition in January 2000.

1. Mr Lim said that he considered she may need to start part‑time and see how she goes but if she were in an administrative position for example, where she need not do a lot of leg work, she may well be able to do full‑time work.  Mr Lim considered that was possible.

2. Dr David Delahunty, ophthalmologist, gave evidence that he first saw the plaintiff in March of 1998 and had made three reports.

3. It was Dr Delahunty's opinion that the double vision the plaintiff suffered from was caused by the closed head injury.  He said the usual course of these injuries is for spontaneous resolution which may be partial or complete but in some cases may require surgery.  Because resolution of this problem can take three to six months he did not originally treat her.  In March of 2001 Dr Delahunty reviewed the plaintiff and noticed that her symptoms had not resolved.  She experienced double vision when looking to the extreme right or left or when looking in the rear vision mirror while driving, symptoms that were experienced primarily when she was tired.  He noted that before her second pregnancy her symptoms had largely resolved.  At that time he felt that it was likely that the symptoms and incapacity would reduce and possibly resolve over the coming year as her sleep patterns improved.  This may see the restrictions to her work also removed.  In Dr Delahunty's opinion if her symptoms persist despite a more normal sleep pattern she may require a strabismus operation to reduce the symptoms.  At the moment she was able to control the symptoms by adopting a particular posture and they were dependant on fatigue.  Dr Delahunty said it was highly likely that she would ultimately require the surgery; he put that chance at 75 per cent.

4. Dr Ross Jose, the plaintiff's general practitioner, gave evidence and submitted a number of reports.  Her present symptoms he found to include deteriorating symptoms in her left knee and some residual left shoulder pain.  Dr Jose generally agreed with Mr Kerr's view that she could do 20 to 25 hours of clerical work a week.  Dr Jose believed the knee has improved since May of 2000 and that she has less pain generally than a year ago.  She walks with less of a limp and she has been doing her exercises.  Nonetheless Dr Jose believes she will have some problems as she gets older.

5. Dr Peter Anthony Connaughton, a consulting occupational physician, reviewed the plaintiff on 19 March 2001.  In Dr Connaughton's opinion she is currently fit to work for five hours a day in a clerical, administrative or managerial role.  But, based on her description of the duties involved in the jobs she did prior to the motor vehicle accident, Dr Connaughton accepted that she would have difficulties performing all of those duties on a full‑time basis.  He noted however that not all such jobs are so physically demanding and suggested that a range of common place ergonomic precautions would be of considerable assistance.  Dr Connaughton agreed that she needs to avoid activities such as kneeling, squatting or crouching as well as prolonged standing, lifting at or above shoulder height, or repetitive stair or ladder climbing.  Nonetheless in his view there were a range of administrative and managerial jobs which would fit and which she would be quite capable of doing which, in his opinion, would involve significantly less physical demands than caring for two young children.  In view of her current domestic responsibilities Dr Connaughton would not suggest that she return to work for more than five hours a day but as her domestic responsibilities decrease he believes she will be able to resume full‑time employment.  Specifically Dr Connaughton said that when her youngest child is two years old in 18 months time the plaintiff should be able to work full‑time.

6. Dr Connaughton was of the view that the plaintiff could carry out the role of a loans officer or a branch manager, limited to five hours a day because of her current responsibilities with the physical and other demands of raising her two young children.

7. Dr Connaughton was called by the defendant and was extensively cross‑examined on behalf of the plaintiff.  Under cross‑examination he maintained that with current ergonomics and current best practice in workplaces that the load and stresses on the knee in some managerial and administrative jobs would be less than what most people would do in normal daily domestic activities.  When discussing sedentary employment he would not restrict her to only sitting; Dr Connaughton said people with this sort of condition prefer to be able to intermittently get up and walk around and move around.  Normally that would be once every half hour or once every hour so the knee does not stiffen up.  Dr Connaughton certainly did not want her to spend more than 50 per cent of her time on her feet but suggested she will need to get up and move around occasionally.

8. Dr Connaughton described a branch manager's job as typically responsible for supervising and training of employees, monitoring the quality of performance, introducing new policies, in some banks hiring and firing staff and being responsible for budgeting and policy implementation.  He said it was essentially a desk job but certainly one in which she could get up and walk around every half hour or an hour.  Dr Connaughton's particular experience in this area has arisen from his work with banks in Perth placing persons with injuries such as those that the plaintiff has received back into employment.

9. Dr Connaughton also thought that the plaintiff had the capacity to undertake work as a loans officer.  Although he conceded there are different types of loans and different responsibilities in different branches, the job was primarily an administrative clerical one, a sedentary job which involved answering the phone, operating a computer, interviewing clients, making decisions about loans, and visiting clients.  Some loan officers have responsibility for juniors, depending on the branch.  Dr Connaughton considered it a relevantly sedentary job compared to her description of her duties with Cockburn Cement.

10. It was suggested to Dr Connaughton that it is not easy to gain employment after a significant injury.  Dr Connaughton conceded that to be the case but indicated that it is more of a human resources question than a medical question in the sense that equal opportunities laws require that there be no discrimination against persons with a disability.  In his view if she wanted to go back into full‑time work involving sedentary duties it would be discriminatory not to allow her to do that.  Dr Connaughton's experience was that discrimination is perhaps less in relation to the actual disability than the process that has followed the disability.

11. Dr Connaughton gave a good deal of evidence under cross‑examination about factors affecting a person's availability for employment.  He said that availability for employment is not only influenced by physical condition but also by other factors so that you cannot consider the question in terms of simply an orthopaedic or anatomical model.  For example in this case Dr Connaughton said the plaintiff would not now be in work in any event because she was within the six month period of her maternity leave.  In Dr Connaughton's view part of her current anatomical impairment and disability is as a result of the aggravating and compounding affects of the combination of a second pregnancy and children and their effect on the injury.  But he conceded that she had originally planned to return to full‑time work after six months maternity leave and without the injury of the motor vehicle accident he expected she would be available now.  Dr Connaughton did concede that any surgery she might have in the future be it eye surgery, plastic surgery, or knee surgery would temporarily interfere with her work capacity.

12. During re‑examination Dr Connaughton clarified his opinion that the employer's discrimination is less to the disability than to the process that follows the disability.  He explained that employers are fearful of legal risk rather than medical risk.  They are afraid that symptoms may worsen and that they are at risk of legal action being taken against them.

13. Dr Connaughton went on to explain the difference between his speciality and that of Dr Kerr.  Dr Connaughton explained that his work is solely related to rehabilitation of people into the workplace whereas Dr Kerr covers other areas such as physical rehabilitation and rehabilitation of people with specific medical conditions.  Dr Kerr is concerned with the general rehabilitation where Dr Connaughton is specifically concerned about getting people with injuries back into the workforce.

14. Dr Connaughton explained that he worked with a number of banks in Perth where he sees about two patients a week to assess them and assess their injuries and non‑work related medical conditions and to advise on return to work programs for them.  He also has taken on work for other organisations and for a whole range of employers.  Dr Connaughton said that unfortunately a cruciate tear such as the plaintiff has experienced to her knee is a relatively common injury and he has been involved with placing many people with that sought of injury back into the workforce.

Assessment of Damages

1.Past loss of earning capacity

1. The law in this area is clear.  A plaintiff is compensated for loss of earning capacity, not loss of earnings (Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 16 per McHugh J: Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed (1990) p 224). At the same time it needs to be borne in mind that "an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or maybe productive of financial loss." (Graham v Baker (1961) 106 CLR 340 at 347.) Thus damages can be awarded for loss of earning capacity only to the extent that that loss produces or might produce financial loss (Medlin per McHugh at 18). Earning capacity is an intangible asset that has a value only to the extent that it is or could be exploited financially (Medlin at 18). In assessing damages then I need to first determine whether there is a loss of earning capacity and then, having regard to the established facts of the past and the probabilities of the future, determine the damages that flow from the loss of that capacity (Mann v Ellbourn (1974) 8 SASR 298: Medlin at 19).

2. In this case there is clear evidence of loss of earning capacity by the plaintiff as a result of the injuries she suffered in the motor vehicle accident.  The plaintiff impressed me as a young woman who was very career minded.  She and her husband did not set out to have a family immediately after their marriage in the mid‑1990's.  I accept their evidence that the first child was unplanned.  The plaintiff demonstrated her career mindedness from the time she left school after year 12.  She has been in continuous employment with varied employers and, at the time of the motor vehicle accident, was employed doing work she enjoyed as a credit officer with Cockburn Cement.  That job offered her many advantages; it was located near her home.  Her work was varied and challenging.  She enjoyed the job and the prospect the job offered of regular salary reviews.  I accept that her first pregnancy was unplanned and she intended to return to full‑time work after taking six months maternity leave.  I also accept the plaintiff's evidence that she did not intend to have her second child for another three or four years after her first daughter was born.  Her second child was planned at a time when her first child would have been ready for pre‑school so that the plaintiff could have again returned to full‑time employment after six months maternity leave following the birth of her second child.

3. At the time of the accident the plaintiff was employed by Cockburn Cement as a credit officer earning $33,920 per annum or $496.40 net per week.  The plaintiff originally claimed for three weeks loss of sick leave entitlements for the period from the date of the accident until the commencement of her maternity leave, but the evidence showed that there was unlimited sick leave at Cockburn Cement.  That part of the plaintiff's claim falls away because her loss of earning capacity for the three week period was not productive of financial loss.  The plaintiff's maternity leave extended from 30 January 1998 to 31 July 1998.  I accept the plaintiff's evidence that she would have returned to work full‑time at the end of that six months maternity leave had it not been for the injury that she suffered in the motor vehicle accident.  I also accept Dr Kerr's evidence that she was completely disabled and unable to return to work at that time.

4. The only obstacle to awarding damages for total loss of earning capacity for the period 1 August 1998 to 31 January 1999 arises from the plaintiff's pleadings.  In further and better particulars filed on 28 March 2000 the plaintiff noted that she went on maternity leave from 30 January 1998 to 31 January 1999.  In her particulars she made no claim for the period of her 12 months maternity leave.  At trial however she has claimed for total loss of earning capacity from 1 August 1998 to 31 January 1999.

   "Pleadings and particulars have a number of functions; they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it … they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial … and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court.  Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings … .  But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence.  Particulars may be amended after the evidence in a trial has closed …, though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence.  … " (Dare v Pulham (1982) 148 CLR 658 at 664.)

5. The situation of the plaintiff in Dare's case was analogous to the situation of the plaintiff in this case.  In both cases the evidence at trial tended to show a larger loss than that particularised in the pleadings.  No objection was taken in Dare's case or in this case to the evidence supporting the larger claim.  As the High Court noted, damages are at large and not confined by the particulars (Dare's case at 666). This is not a case where the evidence of total loss of earning capacity has taken the defendant by surprise. As was said in Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 92 ALR 53 per Dawson J at 63:

   "However, that rule is merely a rule of pleading which must give way to considerations of a more fundamental kind if the justice of the case requires it.  Pleadings are but a means to an end and not an end in themselves … ."

   Therefore I assess damages for total loss of earning capacity for 26 weeks from 1 August 1998 to 31 January 1999 in the amount of $12,906.40.

6. There was evidence that the plaintiff would have had a salary of review with effect from 1 July 1998, 1 July 1999, 1 July 2000 and again in December 2000.  Thus by April 2001 her annual salary would have been approximately $37,500 gross per annum, an increase of approximately 10 per cent.

7. I accept the evidence of Dr Kerr that the plaintiff was partially fit and able to do approximately 20 hours of clerical work per week from 1 February 1999.  There was some evidence from Dr Connaughton as well as in Mr Kerr's final report that for the past 12 months prior to trial the plaintiff was fit to work full‑time in a clerical position if it had not been that she had the care of the two young children.  Dr Connaughton's opinion, for example, that once her youngest daughter reaches the age of two that the plaintiff should be able to take up full‑time work indicates that it is her need to care for young children that is now keeping her from full‑time employment and not her accident caused injuries.  The situation is also complicated by the fact that the plaintiff failed to exercise her 50 per cent work capacity for financial reasons related to her husband's low earnings.  While she makes no claim for total incapacity from 1 February 1999 her decision not to re‑enter the workforce on a part‑time basis from that date has affected her ability to re‑enter the workforce later without retraining.

8. Likewise I must consider the plaintiff's choice to bring forward the birth of her second child.  If her incapacity to work at the present time arises not so much from her accident caused injuries but from her domestic duties involving raising her two young children those factors need to be considered in assessing damages.

9. It was on the basis of these unusual circumstances that the defendant contended that it is not possible to make a simple calculation of damages for past loss of earning capacity.  I do not accept that submission because this is a case where we do know the weekly earnings and we are able to calculate approximately what the plaintiff would be earning if she had remained in full‑time employment following the birth of her children.

10. Thomas v O'Shea (1989) A Tort Rep 80-251 at 68,701 ‑ 68,702 established the rule governing the onus of proof in damages claims for personal injuries:

    "The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre‑accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings.  (Also see Bowen v Tutte (1990) A Tort Reps 81-043)."

11. In my opinion this is not a case however where the burden has shifted to the defendant.  The plaintiff has proved that she lost her pre‑accident earning capacity but she has made no effort to find alternative employment.  The evidence shows that she tried to return half time to Cockburn Cement in January 1999 but no part‑time work was available from that employer.  She made no further efforts to find work.  Her decision not to seek work was based on economic factors which I have mentioned earlier.  But she has not shown that she has been unable to find alternative employment.  The evidence shows that the plaintiff has a significant residual work capacity and there is no evidence she is unable to find alternative work.  In these circumstances the evidentiary burden in Thomas v O'Shea does not arise (Abbott v Pacific Industrial Co (WA) Pty Ltd, unreported; FCt SCt of WA; Library No 970079; 4 March 1997 per Pidgeon J at 13).

12. The issue is whether the decisions of the plaintiff in deciding not to seek half‑time employment in 1999 for financial reasons arising from her family finances and her decision to bring forward the birth of her second child are events which should reduce or discount her award of damages for past economic loss.  In approaching this issue I am guided by the High Court's decision in Medlin's case.  In that case a 56 year old university professor was injured in a motor vehicle accident.  He resumed his duties but took early retirement four and a half years before he would have been obliged to retire.  His decision to take early retirement arose because of evidence accepted by the trial Judge that pain and sleeplessness arising from his accident caused injuries made him no longer able to discharge both teaching and research duties at a sufficiently high level to satisfy himself.  The evidence showed that his employer the university was not concerned.  In these circumstances the High Court held that his decision did not break the chain of causation nor did it amount to a failure to mitigate his loss.  The rule established by the High Court is:

    "In these circumstances, the relevant question was not whether the plaintiff 'should' have continued in his University post or whether his decision to retire was not 'reasonable' but whether, in the context of what was reasonable between the plaintiff and the defendant in determining the defendant's liability in damages, the premature termination of the plaintiff's employment was the product of the plaintiff's loss of earning capacity notwithstanding that it was brought about by his own decision to accept voluntary retirement.  (Medlin's case at 11.)"

1. McHugh J stated his reasons on a somewhat different basis not entirely accepted by the majority but reached the same result in the case.  He said, at 22:

   "It does not seem to me to matter in this case whether the plaintiff's act of early retirement is attacked as a voluntary act that was a novus actus interveniens or as a failure to mitigate loss.  His retirement would be novus actus interveniens or a failure to mitigate loss only if it was unreasonable in all the circumstances.  If the retirement is treated as going to mitigation, the onus is on the defendant to prove that the plaintiff failed to mitigate his loss.  If it is treated as going to causation, the onus is also on the defendant.  In Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 at 139 Walsh JA said, correctly in my opinion, that, if a person has the post‑accident capacity to do a particular job but a question as to the reasonableness of a refusal to do it arises, the onus is on the defendant to show that the refusal was unreasonable. … Similarly, where a plaintiff with impaired earning capacity resigns from a position that he or she is capable of retaining and sustains a financial loss, the onus is on the defendant to prove that the resignation was unreasonable. Whatever approach is followed in this case, therefore, the onus is on the defendant to prove that the plaintiff acted unreasonably in retiring early."

2. In this case I am required to consider the plaintiff's decision not to exercise her part‑time work capacity and her decision to bring forward the birth of her second child in the context of what was reasonable between the plaintiff and the defendant in determining the defendant's liability and damages.  In that context I must consider whether her failure to utilise her work capacity was a product of her loss of earning capacity notwithstanding that it was brought about by her own decisions.  Approached in that way I believe there is no question but that the plaintiff's decision not to work for financial reasons and her decision to bring forward the birth of her second child were reasonable decisions in the circumstances in which she found herself as a result of her accident caused injuries.  She was unable to return full‑time to the job she so much enjoyed at Cockburn Cement.  If she could have worked full‑time in 1999 I accept that she clearly would have done so.  Her inability to do so flowed directly from her loss of earning capacity.  Likewise, it was part‑time work which was not financially viable in the plaintiff's family circumstances in 1999.  Her full‑time employment would have been financially appropriate for her family.  In these circumstances her decision in my view was the product of her partial loss of earning capacity for which the defendant is liable to compensate her.

3. Having found herself at home full‑time her further decision to bring forward the birth of her second child was reasonable and flows in my opinion from the plaintiff's loss of earning capacity.  She does not claim damages for the six months she had maternity leave in any event after the birth of her second child.  One factor however arises in this case which takes the plaintiff's situation somewhat outside the principle in Medlin's case.  That is the impact of her domestic duties arising from the need to care for two young children on her ability to exercise her earning capacity.  I believe it is open on the evidence of Dr Connaughton, whose evidence I accept, that from 12 months prior to trial the plaintiff had recovered her capacity for full‑time clerical duties.  But Dr Connaughton accepted that her hands were more than full caring for her daughters until the youngest reached the age of two some eighteen months after trial.

4. So far as the plaintiff's past loss of earning capacity is concerned I am of the opinion that her loss still flowed from the loss of earning capacity she suffered as a result of injuries in the motor vehicle accident.  I have reached that conclusion based on her present condition wherein because of her knee injury she is unable to kneel, squat or do any heavy lifting.  Before the motor vehicle accident the plaintiff was a very career minded woman but I accept that now, as an injured person, with accident caused limitations, she would be unable to combine child rearing with full‑time work.  Without the injuries she suffered in the motor vehicle accident the plaintiff did seem to me to be the sort of energetic woman who could have combined care of young children with full‑time work.  As between the plaintiff and the defendant I am satisfied the plaintiff's inability to exercise her earning capacity because of her domestic duties has been the product of the loss of earning capacity arising from accident caused injuries, a loss for which the defendant is liable.  In all the circumstances it seems to me that the best basis for the award I need to make is to calculate the loss from 1 February 1999 until the date of the trial on the basis of a 50 per cent loss of earning capacity, then to reduce the period by 26 weeks, the period she would have been on maternity leave for her second child.  The calculations are for 114 weeks less 26 weeks for maternity leaves = 88 weeks x $250 = $22,000.  That results in a total figure of $34,906.40 for past loss of earning capacity.

   2.Interest on past loss of earning capacity

5. I calculate interest as $34,906.40 x 6 per cent x .50 x 3 years = $3,142.

   3.Future loss of earning capacity

6. The plaintiff claims future loss of earning capacity at 50 per cent of her earning capacity from now until age 65.  Based on Dr Connaughton's evidence and Dr Kerr's evidence I do not accept that she is presently incapacitated from working full‑time in clerical work because of her injuries arising from the accident.  It seems to me a fair reading of Dr Connaughton's evidence and of Mr Kerr's evidence is that it is her domestic duties that are now keeping her from exercising her work capacity.  I accept that limitations on her energy arising from her loss of earning capacity will continue for 18 months until her youngest daughter is two years of age.  But from that time I accept that she will be able to return to work.

7. At the same time the plaintiff has some difficulties that I do need to take into account when considering future loss of earning capacity.  In the first place in the near future she is going to require plastic surgery on her left knee which will undoubtedly cause her to miss four weeks of work.  She needs to be compensated for that.  Likewise she has not yet gone back to work and she will need to obtain employment and some retraining.  I accept Dr Connaughton's evidence that a failure to provide full‑time employment to her because of her knee disability would be discriminatory if she is applying for sedentary clerical work.  I accept Dr Connaughton's evidence that she could work as a branch manager or a loans officer.  She is a woman who has given evidence of being very career minded and I would expect from seeing her in court and from hearing of her successes in her employment prior to the accident that she will be successful in finding employment.  At the same time some retraining will be needed now that she has delayed so long in getting back into the workforce.  I also accept that having been out of the workforce for so long she may well prefer to go back part‑time when she commences.  The need to begin with part‑time employment is a product in my opinion of her loss of earning capacity and the defendant should compensate her for that inability to exercise her full earning capacity.  I believe six months is a reasonable period to expect for her to work part‑time, a period when she would be compensated for a 50 per cent loss of her earning capacity.

8. There are other factors which will be continuing which limit her ability to find work and therefore will be productive of financial loss arising from her loss of earning capacity.  She is clearly disabled from kneeling, squatting or having a job which requires her to lift anything above shoulder level.  So she is not available for every job that will come along.  Other factors that I need to consider are the vision problems she has, particularly when she is tired.  If she returns to work that may require surgical correction.  Dr Delahunty said it was highly likely (75 per cent) that she would ultimately require the surgery and, of course, returning to work will undoubtedly lead to greater fatigue and therefore problems with her vision.  The plaintiff also has a substantial chance of needing cruciate ligament tibial osteotomy in the next four to five years and a total knee replacement in 15 to 20 years.  Any of these surgical interventions will undoubtedly cause future loss of earning capacity to the plaintiff, losses for which the defendant should compensate the plaintiff.

9. I accept the defendant's contention that this is a case where compensation for future loss of earning capacity cannot be calculated as a weekly loss of earning capacity.  All of the circumstances and contingencies to which I have referred impact in various ways and at various times on the plaintiff's earning capacity and will result in loss of earnings.  In these circumstances this is a case where I believe I should compensate the plaintiff for her future loss of earning capacity by way of a lump sum.  Taking account of all of these matters and doing the best I can I award a sum of $55,000 to the plaintiff for future loss of earning capacity.

   4.Past loss of superannuation benefits

10. I accept the plaintiff's calculations that the average rate of $20.60 from 1 August 1998 to 4 April 2001 for 114 weeks that past loss of superannuation benefits = $2,348.40.

    5.Future loss of superannuation benefits

11. On the basis on which I have calculated future loss of earning capacity as a lump sum dependant on a wide variety of factors I believe the only fair assessment would be to award 10 per cent of her $55,000 or $5,500 for future loss of superannuation benefits.

    6.Gratuitous services

12. Damages can be recovered with respect to care or services provided gratuitously (Griffiths v Kerkemeyer (1977) 139 CLR 161). The real loss for which damages are awarded is the loss which gives rise to the need for care or services (Van Gervan v Fenton (1992) 175 CLR 327). The plaintiff does not have to show that the need is or may be productive of financial loss; the value of those services is the appropriate means of quantifying the loss (Morris v Zanki (1997) 18 WAR 260).

13. It is always important to remember that:

    "The assessment of damages for personal injuries in a negligence action is not an exact science.  It must always be governed by considerations of practical commonsense in the context of the circumstances of the particular case."  (Van Gervan's case at 343)

14. There is no question the injuries suffered by the plaintiff as a result of the defendant's negligence gave rise to the need for care and services.  Her broken collarbone resulted in her right arm being in a sling and unusable for a period of time.  Her fractured left humerus had a nail placed in it so her left arm was useless as well.  Her left knee was badly lacerated (a 20 centimetre laceration) with considerable internal damage.  Stiches closed her head laceration and she had vision problems.  Besides all this she was seven months pregnant at the time.

15. I accept the evidence of the plaintiff and her husband that he fed her initially in hospital, assisted her with bathing, toileting and washing her hair.  When she came home her husband continued to provide the day to day personal care she required.  She needed help getting out of a chair and out of bed because she had no use of her arms.  She continued to need help with bathing, toileting and all household duties including cooking, cleaning and gardening.  She needed to be driven to all appointments.  The plaintiff's mother pitched in by cleaning the house for three hours each week.  The plaintiff's mother‑in‑law helped with cleaning, cooking and driving for three hours each week.

16. The birth of her daughter on 27 February 1998 added to the plaintiff's need for personal care.  She breast fed her daughter but could not lift her, hold her during the first few months.  She was a colicky baby and needed up to eight feedings a day.  The plaintiff's husband brought the baby to her to be fed while she lay on the bed, then returned to burp the baby and settle her.  The plaintiff's husband continued his personal care for the plaintiff including help with showering, toileting, cooking, cleaning, gardening and driving the plaintiff to appointments.  The plaintiff was improving in this period.  For example she was able to use her arms as evidenced by the entry she made in her diary, Exhibit 7, on 13 March.  Her mother continued to clean but for only three hours a fortnight.

17. From April 1998 the plaintiff's husband went back to work and the plaintiff's need for personal care and home help was reduced considerably.  However in late November 1998, when the plaintiff had surgery to remove the humeral nail, the plaintiff again needed extensive care both personal and domestic from her husband and her mother.

18. The plaintiff's need for gratuitous services has gradually reduced; from December 1998 until trial the plaintiff claims 10 hours per week for her husband's assistance with cleaning, childcare and gardening.  This is primarily a result of her severe left knee injury which prevents her squatting or kneeling.  She is unable to bathe the baby and do some cleaning and gardening chores.  As to future gratuitous services, the plaintiff claims 10 hours per week for a further five years for additional home help the plaintiff's husband will need to provide because of the plaintiff's knee disability.

19. At trial the plaintiff tendered a schedule, Exhibit 4, of home help/personal care.  The schedule set out the hours and services allegedly provided to the plaintiff by her husband, her mother and her mother‑in‑law over various periods of time since the accident.  The defendant challenged the reliability of the schedule on a number of bases.  First of all Exhibit 4 purported to document gratuitous services grossly in excess of those claimed by the plaintiff in further and better particulars of her pleading filed 28 March 2000.  One year prior to trial in March 2000 the plaintiff claimed a total of $20,035 for past and future gratuitous services.  At trial the plaintiff claimed $31,860 for past gratuitous services and a further $27,156 for future gratuitous services.  The defendant contends the claim at trial is exaggerated.

20. Under cross‑examination neither the plaintiff nor her husband could explain how their recollection had changed so much between March 2000 and the date of trial.  Neither could recall providing the earlier figures to their solicitors.  Each gave evidence that the hours claimed in Exhibit 4 at trial had been worked out using the diary, Exhibit 7, they kept from 10 January 1998 through to early December 1998.  Reliance on the diary however proved to be somewhat problematic because on 16 February 1998 the diary shows the plaintiff's husband commenced a five day dogman's course from 7.00 am to 3.00 pm daily.  During that week he dropped the plaintiff off at her mother's while he was away.  The dogman's course was not reflected in Exhibit 4 which contradicts to some extent the assertions of the plaintiff and her husband as to how they worked out the details of the claim for gratuitous services.

21. The defendant suggests I should limit the plaintiff's claim to her pleadings but, for the reasons I referred to in assessing her loss of earning capacity, I do not believe that the disconformity between the evidence and the particulars should disentitle the plaintiff to a verdict based on the evidence (Dare v Pulham at 664). The justice of the case requires that I consider the evidence and make a fair assessment based on the evidence. This was not a case where the defendant objected to the reception of evidence contrary to the pleadings. The evidence came in without objection. I do accept the defendant's submission, however, that the disparity between the particulars and Exhibit 4 does affect the credibility of the plaintiff and her husband. I accept the submission by counsel for the plaintiff that the particulars are simply wrong in that they claim for care of the infant prior to her birth and completely leave out personal care of the plaintiff, care which she obviously needed while her left humerus and right collarbone healed. No one could suggest that a person without the use of either arm did not require personal care. But when I look at the number of hours now claimed I am satisfied the claim is inflated and does not reflect what the plaintiff's husband actually did in providing personal domestic assistance to her. That is particularly so bearing in mind the provisions of s 3D(2) of the Motor Vehicle (Third Party Insurance) Act 1943 which provides that no damages are to be awarded for the value of the services if the services would have been or would be provided to the person even if the person had not suffered the bodily injury.  I consider a considerable amount of the care of the infant and the home help would have been provided in any event.

    •For the period January and February 1998, seven weeks I am prepared to allowed three hours per day for the plaintiff's husband for personal care and an additional two hours per day for home help.  That is a total of 35 hours per week.  For the week of 16 February during the dogman's course I reduce that to 20 hours.  I also allow six hours per week for cleaning, cooking and driving assistance provided by the plaintiff's mother and mother‑in‑law.

    •For the nine weeks following the birth of the baby in March and April 1998 I am prepared to allow six hours per day for personal care and two hours per day for home help by the plaintiff's husband as well as six hours per week of help from the plaintiff's mother and mother‑in‑law.

    •From April 1998 when the plaintiff's husband returned to work until November 1998 a period of 30 weeks, I allow an hour a day personal care and an hour a day home help for the plaintiff's husband amounting to 14 hours a week.  I also allow 1.5 hours per week cleaning help for nine of those weeks.

    •For the two week period in November/December 1998 when the plaintiff had her humeral nail removed I allow six hours per day personal care and 20 hours per week home help.

22. From December 1998 until trial, a period of 118 weeks, I allow an hour per day for home help, including help with bathing of the babies, cleaning and gardening.  That is seven hours per week.

23. There is a further factor arising from s 3D(3) of the Motor Vehicle (Third Party Insurance) Act 1943.  In any week where the total hours exceed 40 hours the award of damages for gratuitous services is limited to the average weekly earnings at the time the services were provided.  Those average weekly earnings are determined quarterly and have been set out in a schedule Exhibit 14.  That limitation will have effect in six of the seven weeks in January and February 1998 where I have allowed 41 hours per week (average weekly earnings $570.30), for the nine weeks in March and April 1998 where I allowed 62 hours per week (average weekly earnings $572), and for the two weeks in November/December 1998 when I allowed 62 hours per week (average weekly earnings $566.40).

24. The rate of $12 per hour for gratuitous services has been agreed.

    For January - February 1998 $570.30 x 6 + 26 x $12 =      $3,733.80

    For March - April 1998, $572 x 9 =   $5,148.00

    For April to November 1998: 30 x 14 x $12 + 9 x 1.5 x 12 = $5,202.00

    For two weeks November/December 1998 $566.40 x 2 =   $1,132.80

    From December 1998 to trial, 118 x 7 x $12 =                  $9,912.00

    Total past gratuitous services   $25,128.60

1. The plaintiff is entitled to interest on $25,129 calculated x 6 per cent x.50 x 3 = $2,262.

2. So far as future gratuitous services are concerned I consider three hours per week cleaning and gardening assistance for five years provides reasonable compensation to meet the plaintiff's need for such services 3 x $12 x 226.3 = $8,147.

   7.Past travelling

   Expenses agreed at $600.

   8.Future travelling

   Expenses will be minimal.  I award $500.

   9.Future medication

3. The only medication the plaintiff is taking is Panadol.  There has been no evidence of cost.  An award of $100 is more than adequate.

   10.Future general practitioner attendance

4. The plaintiff claims for future general practitioner attendance expenses for six attendances per annum for 15 years.  Her claim is supported by Dr Jose's evidence at p 13 of the book of medical reports who said that she would be likely to need that many attendances.  But her claim is not reflected in the regularity of her past visits to Dr Jose.  I accept that the expected problems with her knee may possibly lead to knee replacement surgery in 15 to 25 years.  She can expect to require visits to her general practitioner during a 15 year period but I believe two visits a year would be sufficient.  The plaintiff claims $2,077.  I allow $700.

   11.Future specialist attendance

5. The plaintiff also claims for future specialist attendances on the basis of three attendances each year for a period of 15 years.  I am prepared to allow for two attendances a year and to allow the amount of $800.

   12.Future physiotherapy and yoga expenses

6. The plaintiff is not having any physiotherapy at the moment and has not had any since 1999.  So far as her yoga expenses are concerned I believe she would have been involved in some sort of exercise regime in any event following the birth of her children.  Nonetheless I accept the evidence of Dr Jose that the yoga is important for the strengthening of her knee and I accept that if her knee would deteriorate thigh‑strengthening exercises through a physiotherapy program might be required.  Taking account of all of these matters I am prepared to allow $3,000 for future physiotherapy and yoga.

   13.Future surgery expenses

7. In assessing damages which depend on what may happen in the future the Court must make an estimate as to what are the chances that a particular thing will happen and reflect those chances in the amount of damages it awards (Malec v J C Hutton Pty Ltd (1990) 169 CLR 638).

8. Dr Ker and Mr Lim each predict that the plaintiff may require knee replacement surgery in 10 to 25 years at a cost of $13,586.  Dr Ker gave evidence that there was a 60 per cent chance of the plaintiff needing such surgery while Mr Lim, the treating surgeon put the chances at less than 50 per cent.  The parties agree that the appropriate award is $13,586 x .417 (the multiplier for 15 years) x 50 per cent = $2,832.68 rounded down to $2,500.

9. There is also a 50 per cent or less chance that the plaintiff will require a knee reconstruction in three to four years costing $5,970.  I accept the defendant's calculation and award $2,436.

10. There is also a 50 per cent chance that the plaintiff will need a tibial osteotomy.  I accept the defendant's calculation and allow $1,752.

11. There is no question the plaintiff will require plastic surgery on her knee at a cost of $2,850.  I expect the plaintiff will put off such surgery until her second child is less physically demanding.  I allow $2,500.

12. There is a 75 per cent chance that the plaintiff will need eye surgery at a cost of $2,966.  That need will probably not arise if at all until the plaintiff returns to work in 18 months when tiredness may aggravate her symptoms.  I award $1,500.

    Total Future surgery expenses $10,688.

    14.Pain suffering and loss of amenity

13. I accept the plaintiff's evidence of the severe pain and discomfort she suffered as a result of her injuries.  I accept her evidence of the severe stress the accident caused her in worrying that her unborn child might have been injured.  I accept that the first few months after the accident were a nightmare for her and took from her the pleasure and joy of preparing for and welcoming her first baby.  I accept her evidence that not being able to hold and cuddle her oldest daughter has deprived her of the normal bonding she should have expected from her first baby.

14. Besides the severe pain and discomfort the plaintiff initially suffered, she can now look forward to further problems with her knee - the pain of plastic surgery, the probable deterioration of the knee and the likelihood of arthritic changes.  Besides that she faces the real possibility of further major surgery on her knee and of eye surgery.

15. The impact of this injury on the plaintiff's lifestyle has been severe.  She had always been an active person involved in sport and regular exercise.  That part of her lifestyle is reflected in her commitment to physiotherapy and yoga to strengthen her knee.  She has been left unable to kneel or squat, a condition she has had to tolerate throughout the raising of her two young children.  She is limited now in walks she can take, not being able to walk on uneven ground, and in her day to day activities with her children including fun things like not being able to dance with her oldest daughter.

16. The limitations imposed by her severe knee injury are life long and deteriorating.  In all the circumstances I accept that the plaintiff is entitled to a substantial award of damages for her pain suffering and loss of amenity.

17. This aspect of the award is governed by s 3C of the Motor Vehicle (Third Party Insurance) Act 1943.  The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded.  (Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997.)

18. The maximum amount is $225,000.  Taking account of all of the factors I have mentioned, in my opinion, the severity of the plaintiff's non‑pecuniary loss is 28 per cent of the maximum amount = $63,000.

Summary of Award

Pain, suffering and loss of amenity  $63,000

Past loss of earning capacity  $34,906

Interest on past loss of earning capacity  $3,142

Future loss of earning capacity  $55,000

Past loss of superannuation benefits  $2,348

Future loss of superannuation benefits  $5,500

Past gratuitous services  $25,129

Interest on past gratuitous services  $2,262

Future gratuitous services  $8,147

Past travelling expenses  $600

Future travelling expenses  $500

Future medication  $100

Future general practitioner and specialist attendances          $1,500

Future yoga and physiotherapy  $3,000

Future surgery expenses  $10,688

Total award  $215,822