Macey v Giblett - [2014] WADC 13

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MACEY -v- GIBLETT [2014] WADC 13

CORAM: DEANE DCJ

HEARD: 26-30 AUGUST 2013

DELIVERED : 31 JANUARY 2014

FILE NO/S: CIV 3001 of 2011

BETWEEN: CATHERINE MICHELLE MACEY
Plaintiff
AND
KEVIN LOLYA GIBLETT
Defendant

Catchwords:

Personal injury claim arising out of motor vehicle accident - Defendant admits liability - Assessment of damage only - Plaintiff's capacity for work - Duration of plaintiff's incapacity for work - Whether plaintiff fit to carry out duties consistent with her preaccident occupation - Whether plaintiff failed to mitigate her damages

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 s 3C, s 3D
Civil Liability Act 2002 s 10A

Result:

Damages assessed and awarded

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Simon Walters
Defendant: K N Allan

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

Fox v Wood (1981) 148 CLR 438
Jones v Putley [2004] WADC 49
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Montemaggiori v Wilson (2011) 58 MVR 497
Plenty v Argus [1975] WAR 155

DEANE DCJ: This trial concerns an issue of assessment of damages only, as liability has been admitted on behalf of the defendant. The matter arises out of a motor vehicle accident which occurred on 27 October 2010 between a bus driven by the defendant and a motor vehicle driven by the plaintiff.

The pleadings

As a result of the accident which was caused by the defendant's negligent manner of driving it is pleaded that the plaintiff sustained an abrasion to her right elbow and a soft tissue injury to the cervical spine, thoracic spine, lumbar spine and both shoulders. It is pleaded that these injuries produced:
(a)pain, stiffness and tenderness of the right elbow, neck, mid‑back, lower back and both shoulders;
(b)limitation of movements of the right elbow, neck, mid‑back, lower back and both shoulders;
(c)anxiety and posttraumatic stress disorder; and
(d)headaches and discomfort together with sleep disturbance.
It is alleged that these injuries have been ongoing.
It is common ground that following the accident the plaintiff was taken by ambulance to Royal Perth Hospital where a radiological review of the cervical spine was undertaken and thereafter she was reviewed by her general practitioner and saw a range of treating health professionals including chiropractors, an osteopath, and psychologists. As the evidence at trial revealed the plaintiff also consulted or was reviewed by a number of specialists including occupational health physicians and two psychiatrists as well as exercise psychologists. It is pleaded that as a result the plaintiff has incurred cost and expense with respect to medical treatment and management for the injuries sustained in the accident and has suffered loss. The cost and expense has been met by either the defendant's insurer or Medicare Australia. It is claimed the plaintiff has incurred and paid expense with respect to medical treatment and management, which I understand in part has been met by the plaintiff's parents.
The plaintiff claims that she anticipates incurring further cost and expense with respect to medical treatment and management into the future and for this reason the statement of claim pleads that the plaintiff claims ongoing review with her treating medical practitioner, psychological counselling in the sum of $2,500, a supervised exercise programme in the sum of $1,500 and continued chiropractic treatment in the sum of $1,000. A claim is made for specialist assessment for possible future treatment, osteopath and the continued consumption of analgesic and anti‑inflammatory medication in the global amount of $25,000.
It is said that the plaintiff has suffered economic loss and a diminished perimeter of employment. On behalf of the plaintiff it is pleaded that she earned approximately $728.80 gross or $626.80 net per week prior to the accident. Following the accident the plaintiff was absent from work from 27 October 2010 until the present which I understand to be a reference to the date of the filing of the statement of claim being 22 August 2013. That is a total of 125.40 weeks. As at the date of the filing of the statement of claim damages for past economic loss were claimed in the amount of $91,391.52 gross or $78,600.72 net. It is further pleaded that should the plaintiff suffer further absence from work after the date of the statement of claim prior to trial those particulars will be provided. It is pleaded that the plaintiff had suffered a reduced perimeter of employment as she is no longer able to engage in activities which involve repetitive bending and lifting, prolonged sitting or standing, working with the arms raised above shoulder level and as a result it is said that the plaintiff is prejudiced when competing in the open labour market. A claim in the sum of $150,000 from the date of the pre‑trial conference until the plaintiff attains 67.5 years of age is made. A claim is also made for past loss of superannuation benefits as it is said the plaintiff claims a loss of $91,391.52 in gross earnings and 9% of gross earnings lost being $8,225.23 in past loss of superannuation benefits is claimed. There is also a claim for future loss of superannuation benefits given that the plaintiff claims to have lost $150,000 in future loss of earnings as a global sum and 9% of that sum being $13,500 is claimed relevant to future loss of superannuation benefits.
Although par 11 of the statement of claim appears to seek damages for past and future gratuitous services as a result of care provided to the plaintiff from family members and friends in personal and home duties, I do not understand that claim to have been pursued at trial and so it falls away.
By reason of the injuries sustained in the accident and the alleged resulting permanent disabilities in combination with the plaintiff's current symptoms it is alleged that she has experienced pain and suffering and loss of enjoyment of life as well as loss of amenities and will continue to do so in the future and so a claim is made in relation to that. The plaintiff claims interest at 6% per annum or such rate as the court deems fit from 27 October 2011 or such other date as the court deems fit on any award of damages pursuant to s 32 of the Supreme Court Act1935 as amended. It should be noted that it appears to me that the date of 27 October 2011 referred to in the amended statement of claim filed on 22 April 2013 is a typographical error and should read 27 October 2010 being the date of the accident in which the plaintiff was involved and for which liability has been admitted on behalf of the defendant.
The position of the defendant is essentially one of denial in relation to the particulars of injury and particulars of damage pleaded in the statement of claim and puts the plaintiff to proof as to any injuries sustained in the accident. The defendant submits that after the accident the plaintiff suffered no loss of consciousness, no pain and got out of her motor vehicle herself without assistance from others.
Further and in the alternative, the defendant says that the plaintiff has failed to mitigate any loss that she may have suffered.
The defendant asserts that since on or before June 2011 the plaintiff has been fit for employment as:
(a)catering assistant/kitchen hand;
(b)counter hand;
(c)wait person;
(d)manager;
(e)front of house/maître d';
(f)animal carer;
(g)shop assistant;
(h)stable hand; or
(i)comparable employment.
It is said that the plaintiff has failed to train, search, or apply for employment in any capacity for which she has been fit. The defendant pleads that the plaintiff could have earned an income equivalent to her earnings prior to the accident and could have reduced the damages she claims for economic loss and diminished perimeter of employment accordingly.
Specifically, the defendant asserts that the plaintiff's level of physical activity including horse care, showing and riding as well as working out at the gym since the accident is inconsistent with the plaintiff's claims that as a result of the injuries sustained in the accident she:
(a)was absent from work;
(b)suffered a reduced perimeter of employment; and
(c)required care from family members and friends in personal and home duties.

The evidence

The plaintiff

The plaintiff, Ms Macey, was born on 20 August 1979. After completing year 10 at high school she studied hospitality and catering for a further two years in lieu of years 11 and 12 of high school. Thereafter the plaintiff worked in a number of occupations within what might broadly be described as the hospitality and catering industry. Between January 1996 and May 1997 she worked at Hungry Jack's. It was during this period that she first consulted a chiropractor, Dr Scott in relation to ongoing treatment lower back pain. From July 1997 to December 1999 the plaintiff was employed as a manageress at Michel's Patisserie and then between January 2000 to October 2004 in which year she was diagnosed with Crohn's disease. Ms Macey was employed as a waitress as Café Bella Rosa. Between 8 December 2004 and 1 March 2009 the plaintiff was employed as a manager at Catalano's Café in Victoria Park.
She described her work in those various establishments as consisting mainly of waitressing and kitchen hand duties, although the plaintiff described herself as something of an all-rounder in the sense that she could also work front of house and back of house.
On 27 February 2009 the plaintiff commenced employment at Scotch College as a dining assistant/supervisor of students from the boarding house in the dining hall at dinner time. She described that this work also involved essentially carrying out the duties of a kitchen hand in combination with supervising the boys. Physically the plaintiff said she was required to lift buckets of produce often weighing between 15 and 20 kg. She was responsible for rearranging the tables in the dining hall on occasion and setting up the tables for dining purposes. She was required to set up the bain‑marie by putting water into it and carrying buckets in order to do that. She was required to carry bowls of desserts and such-like which were often heavy to the tables for serving purposes. On occasion she was required to work at functions in the dining hall but generally her work consisted of an eight hour day with a half hour lunch break between 11.00 am and 7.00 pm Monday to Friday of each week. The plaintiff's job description is contained in a document on page 180 of the plaintiff's book of documents.
It was clear from the plaintiff's evidence that she has had a very longstanding involvement and a very great interest in horses and equine matters which commenced in about 1984 when she was 5 years of age. She owned her first horse when she was 12 years of age and since that time has owned a number of horses. In 1989 the plaintiff commenced employment at Broad Acres Riding School as a stable hand. She acquired her current horse formally called Lights of Wembley more commonly known as Phoenix in 2001. That horse is 15.3 hands high and turned 19 years of age in December 2013. For the purpose of these reasons the horse will be referred to as Phoenix.
Although the plaintiff was employed in a number of occupations in the hospitality and catering industry, given her interest in horses it was also necessary for her to attend to the needs of her horse, usually on a daily basis.
Whilst the plaintiff was working at Scotch College prior to commencing work at around 11.00 am she would travel to where her horse Phoenix was stabled which was about 15 to 20 minutes from the plaintiff's home. At around 6.30 am to 7.00 am she would commence cleaning the stable by raking out the manure and dumping it. She would organise the horse's feed for the evening and for the following morning. Given that the plaintiff was also heavily involved in equine and riding competitions she would ride her horse for about an hour by way of training. Looking after a horse and dealing with the animal's needs according to the plaintiff's evidence was quite physically intensive work not only in terms of the various physical activities which were undertaken by way of riding and training but also by way of, for example, feeding the horse which required bags of chaff weighing around 20 or 30 kg being placed in a storage bin where it was made up into 5 kg bags of food.
In terms of competition riding in which the plaintiff had been engaged since she was 14 years of age, she competed in dressage events where the horse would be taken through its paces involving walking, trotting and cantering as well as the movements of leg yielding and such like by the rider. Various arena figures would also be practised involving figures of eight and changing across the diagonal in an arena. The plaintiff and her horse also competed in halter classes where the plaintiff was required to run next to her horse and perform a workout allocated by the show judge. Another type of competition in which the plaintiff used to engage was that of hacking, where once again the horse is ridden.
Prior to the accident the plaintiff gave evidence that she was regularly competing in horse shows not only at the Royal Show but also at competitions held in the metropolitan area by pony clubs and riding associations. This occurred approximately twice a month and the plaintiff explained that she and her horse Phoenix were always placed in these competitions. Exhibit 1 (13 ‑ 31) in the plaintiff's book of documents shows a series of photographs including photographs of trophies and ribbons which the plaintiff won with the three horses she has owned and ridden over the years. There were also photographs in that exhibit of the plaintiff holding a rifle and a pistol which she explained reflected her involvement through her family with competition shooting. This involved the plaintiff dressing in a cowboy type costume and shooting rifles, pistols and shotguns in various scenarios at metal targets. The plaintiff was also successful in this form of competition and won a number of trophies as she competed about twice a month in this particular activity. Like caring for horses and competition riding the plaintiff said her other interest in competition shooting was also physically demanding.
In her evidence the plaintiff gave a quite graphic description of the motor vehicle accident which occurred at around 10.30 am in the morning as she was driving her white Holden Jackaroo fourwheel drive vehicle along Shepperton Road heading towards the city on her way to work at Scotch College. She was driving in the left hand lane next to the bus lane. As she approached the intersection of Shepperton Road and Albany Highway to move onto the Causeway she was facing a green light. She drove her vehicle into the intersection but the bus driven by the defendant hit her vehicle on the left hand side. The plaintiff's vehicle then went slightly sideways before hitting the median strip and beginning to roll. The vehicle rolled three to four times and landed on its roof. The plaintiff who through fear at this time had her eyes closed then opened them and realised that she was wearing her seatbelt but hanging upside down inside the vehicle. She was somewhat disoriented but undid her seatbelt and began to crawl through a very small gap out of the passenger side of the vehicle as she was unable to get through the driver's side window. A drawing of the scene of the accident and the various positions of the vehicles completed by the plaintiff is exhibit 3. Exhibit 2 (39 – 42) consists of a number of photographs of the plaintiff's vehicle after the accident.
There were a number of people in the area at the time who attended to the plaintiff who was in shock and hyperventilating. Police and ambulance as well as the fire brigade attended and from there the plaintiff was taken by ambulance to Royal Perth Hospital. X‑rays were taken but did not demonstrate any fractures or prevertebral soft tissue swelling and so after a few hours the plaintiff was released from hospital in order to go home. She did not lose consciousness and the hospital records reflect no specific complaint of pain. At that time the plaintiff said she had neck pain and pain from the top to the lower part of her back as well as a graze on her right arm near the elbow. There were tiny shards of glass around her eyelashes which had to be removed. Exhibit 40 tendered on behalf of the defendant is a report from Dr Hirsch of Royal Perth Hospital compiled from patient notes which indicates Ms Macey did not lose consciousness and complained of no specific pain. The only injury noted was a superficial abrasion over the outer aspect of the right elbow.
At her boyfriend's suggestion the plaintiff made arrangements regarding the towing of her vehicle after she left hospital and before she went home. Following this over the next few days she attended her general practitioner, Dr Craig Turner and her chiropractor, Dr Scott whom she had been attending since childhood to control her asthma and for general maintenance on a monthly basis given that the plaintiff's family had considerable faith in chiropractic treatment. She also attended for a scan on her abdomen given that her stomach was swollen.
Over the next weeks following the accident, the plaintiff's evidence was she found it extremely difficult to get out of bed given her back and neck pain. She had difficulty walking and caring for herself. Her needs had to be attended to by her mother and her boyfriend given the plaintiff was spending most of the day in bed, save for the occasions when she would be taken to attend medical appointments. The plaintiff felt anxious and suffered anxiety attacks for which her general practitioner referred the plaintiff to a psychologist, Dr Linda Davidson. When Dr Davidson ceased practice after about 24 sessions with the plaintiff, Ms Macey then was referred to another psychologist, Ms Georgina Timms whom she has continued to consult, given her ongoing symptoms of anxiety, approximately every four to six weeks. Following the accident, the plaintiff not only sought treatment from her chiropractor, Dr Scott but she also attended upon another chiropractor, Dr Lourie, and at time of trial she was receiving chiropractic treatment from him once a month. Ms Macey changed chiropractors because following the accident she was not happy with Dr Scott's advice and wanted a second opinion. According to the plaintiff her back and neck pain has decreased since the accident, although she still has pain in her neck and more particularly in her lower back.
Following the accident the plaintiff received, on her recollection, about 85% of her wage for a period of two years as her employer, Scotch College, had a journey gap insurance cover policy. She was referred to a document in the plaintiff's book of financial documents at page 1 being a PAYG payment summary indicating that for the period 1 July 2010 to 30 June 2011 the plaintiff received gross payments of $14,450, the gross fortnightly pay being $1,457.60 and the net being $1,263.60. The balance of her pay in that financial year came from the journey policy but the payments from the policy were apparently not taxed at the time. A gross figure was paid out under the policy and consequently of recent times the plaintiff said she had received a tax bill in relation to that.
In mid‑2012 the plaintiff wanted to return to work on a part‑time basis at Scotch College in order to see if she could manage the work. She was informed however that there was no longer employment available for her at the college apparently because the work of the catering department had been outsourced from 1 June 2012 with LAPG and this was confirmed in a letter dated 16 August 2012 from the bursar of Scotch College to the plaintiff. Ms Macey denied that the fact that the insurance payments to her pursuant to the journey claim policy held by Scotch College would come to an end in October 2012 was what prompted her to comment to her treating practitioners that she was thinking of and wishing to return to some form of employment. Rather she said she had been considering doing so well before mid‑2012 but did not feel she was physically capable of carrying out any form of employment before mid‑2012.

The plaintiff said that in addition to undergoing medical treatment with a view to recovering and returning to work she also attended the gym and the pool as part of a rehabilitation programme recommended by her chiropractor, Dr Lourie and funded by the Insurance Commission. She undertook this rehabilitation at the Thornlie Leisure World commencing on her recollection in about mid‑2011.
She continued attending the pool and the gym until about three months prior to trial. This was five days a week and for three of those days the plaintiff was supervised and graduated from work in the pool to work in the gym involving floor based exercises and strengthening exercises, so she was working with weights as well as cycling and using the treadmill under the guidance of an exercise physiologist. The Insurance Commission ceased funding the gym and pool programme and thereafter the plaintiff's parents paid for her to continue the programme through Guardian Exercise Rehabilitation commencing around 31 May 2012 at $100 per hour. The plaintiff's parents also paid for her attendances upon Dr Lourie at Kelmscott Chiropractic Clinic in 2011, 2012 and 2013 ranging from about $30 to $90 a session. In addition, the plaintiff's parents have paid for her to attend sessions with the psychologist Ms Timms as well as attendances at West Perth Osteopathic Clinic, which was originally recommended to the plaintiff by her general practitioner, Dr Turner. The plaintiff believed that some of those sessions with the osteopath may have been covered by the Insurance Commission but she was unsure. Relevant also to her claim for special damages the plaintiff engaged Advanced Personnel Management to assist her to find employment which was not successful in the end. Exhibit 7 (1 – 133) contains documentation relevant to the plaintiff's schedule of special damages claimed.
In addition to engaging that organisation to assist her to find employment the plaintiff said that she also personally made enquiries in her local area at lunch bars and cafés as to whether there was work available and to this end she provided those places with a copy of her resume. This too was unsuccessful. The plaintiff kept a job seeking diary reflecting the efforts she made seeking employment in the latter part of 2012. She also sought work as a sales assistant at Horseland in Midland and finally, as at 5 January 2013, the plaintiff obtained work as an assistant manager at Angels Rest Feline Retreat. The plaintiff's job seeking diary became exhibit 8. Exhibit 9 is a letter confirming her employment at the cattery where she works Monday to Friday, approximately three to four hours a day, being paid $20.40 per hour, resulting in her clearing about $300 per week. The work at the cattery involves the plaintiff ensuring that the cattery is clean and that the cats are placed in specific runs. She cleans out the litter trays daily and fills up water bowls daily. She grooms the cats and on occasion may have to give medication and injections to them. Further to feeding the cats the plaintiff also has to ensure that on departure the run occupied by any particular cat is clean and ready for the next arrival. According to the plaintiff it is not a large cattery and her hours of work per day cannot be increased as there are no further hours on offer. In addition, working the hours she does causes the plaintiff to feel very tired and very sore in her lower back and neck for which she takes Panadol and uses herbal liniment as well as attending the chiropractor from time to time.
The plaintiff gave evidence that following the accident she was unable to attend to her horse for a couple of months and so her mother had to carry out the chores connected with feeding the horse. Some sisters of a couple of the plaintiff's friends being Rebekah Barrett and Renee Bol also assisted in looking after the horse by exercising, riding and rugging the horse four to five days a week. Those two persons also competed with the plaintiff's horse mainly at breed shows but also in relation to dressage and a small amount of jumping. It was in this context that both those persons took the plaintiff's horse to the 2011 Royal Show and in exhibit 10 (32 – 38) there are photographs of those two persons riding and dealing with the plaintiff's horse Phoenix at the 2011 Royal Perth Show. Counsel for the defendant confirmed that there was no suggestion that the plaintiff rode the horse at that particular show in 2011. The plaintiff explained that as she was the owner of the horse she was required to fill in the application form for the 2011 Royal Perth Show horses' breed section but she did not ride or show the horse at any events at that show. This documentation is reflected in exhibit 11.
In the following year however, the plaintiff did compete at the Royal Show in both the halter and ridden classes. She explained that she was able to do this as a result of undergoing acupuncture four days prior to the Royal Show and by taking painkillers on a regular basis the night before the Royal Show. In addition some form of spray‑on liniment was applied by the plaintiff quite regularly throughout the day of the show, albeit she said she still competed under a significant amount of pain. She explained her ability to participate in the events on the basis that her treating practitioners had set it as a goal for the plaintiff to attain and she herself was curious to know if she could cope with the physical demands involved. The plaintiff believed that a combination of adrenalin and painkillers, along with the herbal liniment spray and the assistance of her support crew, enabled her to compete, although she said she was unable to walk for two days following the show and it took her about five days to recover. In the few months leading up to trial the plaintiff had returned to riding her horse but stated that she was probably only able to undertake a quarter to half of what she was able to do prior to the accident. Whilst the plaintiff said she can walk, trot and canter with her horse and had recently commenced doing leg yield and shoulder‑in and canter counter she is still unable to jump and run with the horse because of the pain involved.
In 2008 approximately two years before the motor vehicle accident the plaintiff enrolled in a Diploma of Equine Smart Bowen Therapy. She explained that this therapy works on rehydrating fascia tissue as well as internal organs of the horse to increase its health. As at the date of trial on the practical side of the diploma the plaintiff had completed work on 10 horses of the 150 horses she was required to work on to satisfy the requirements of that unit. The last practical course she did in relation to this aspect of the Diploma was in 2008. In relation to the theory side of the course the plaintiff enrolled in a TAFE course in about August 2011 after her accident dealing in horse management and occupational health and safety relevant to the anatomy and physiology of horses. As at the date of trial she had passed four units of that part of the course but was still undertaking the final two units. By enrolling in the Bowen therapy course it was the plaintiff's intention she said to commence her own business carrying out equine Bowen therapy. She explained that she had not completed the practical requirements of the course due to time restraints and her physical limitations following the motor vehicle accident. The physical therapy which must be carried out on the horse according to the plaintiff is physically demanding and she is unable to sustain the work required for any period of time because it causes her pain. She had anticipated completing the full course on a part‑time basis in three to four years but as at trial it was apparent that there was still a large amount of the practical component of the course to be undertaken and completed.
Apart from the difficulties in completing a Bowen therapy course the plaintiff said the sequelae of the accident had impacted upon her life in the sense that she had difficulty undertaking domestic chores and was unable to change bed sheets or carry out any activity requiring repetitive bending because this resulted in pain in her lower back. She experienced difficulty in hanging clothes on the line and lifting her arms up and she was limited in her ability to shop as she could not lift and carry heavy bags. Vacuuming causes her pain as does mopping and sweeping. She cannot carry out any cooking that involves lifting of heavy pots. As a result of physical inactivity following and continuing from the accident the complainant said that her weight had increased by about 10 kg and due to depression approximately a month or two prior to trial she had commenced taking antidepressants on the recommendation of her psychologist. This medication called Loxalate costs about $20 for a month's supply. Prior to her most recent bout of depression the plaintiff said she had suffered an earlier episode about six months after the accident and at that time was experiencing suicidal thoughts as well as other symptoms consistent with depression.
In cross‑examination the plaintiff agreed that at the time of the accident because she was working at a school she was not required to work during school holidays and so she made up her 37 1/2 hour working week not by doing overtime but by simply doing the necessary hours during term time to fulfil the award requirements. She also agreed that although she was earning more money whilst she was working at Catalano's Café, she took a reduction in wages to work at Scotch College because the hours were more flexible given that she did not have to start work until 11.00 am and this allowed her time to care for her horse in the mornings as well as in a number of school holidays. Further the plaintiff became tired of working at night in the café.
As part of her award Ms Macey was entitled to 10 days sick leave per year. The plaintiff was referred to a number of leave application forms in the defendant's book of documents (exhibit 13) some of which bore her signature but others were unsigned and she did not recall sighting the documents previously. She had two days off work on 9 and 10 June 2009 supported by a medical certificate but she had no clear memory of this. She did recall having a day's leave to attend a funeral in July 2009 and accepted she probably had a day off work on 7 September 2009. She had two days non‑consecutive sick leave in October 2009 and two days non‑consecutive sick leave in February the following year. She had a further day's sick leave in March 2010 and then another day off due to sickness in April 2010. In June that year she had another day of sick leave and believed she may have had a day off in July due to the fact that a couple of boys at the school were suspected of having swine flu. In August the plaintiff was absent for a day, possibly due to a cold and finally, on the face of it, Ms Macey was to have had three days sick leave from the date of the accident on 27 October 2010 although it is clear that she did not return to work on 1 November. The plaintiff agreed that given she suffers from Crohn's disease she may have taken some sick leave or personal leave for that reason whilst she was employed at Scotch College because the symptoms can be quite debilitating and include diarrhoea, stomach cramps, vomiting and abdominal bloating.
Ms Macey explained that as she now has to attend work at the cattery by 8.30 am she does not care for her horse in the mornings. Rather, she attends the stables after about 3.00 to 3.30 pm in the afternoon on weekdays when she has finished work and then on Saturdays and Sundays. She has assistance in caring for the horse which was unnecessary to a large extent prior to the accident but now for example, she needs help to lift bales of hay for the horse. Both prior to and following the accident the plaintiff confirmed that caring for her horse Phoenix would take about three hours per day and even more time would be required to prepare the horse leading up to a competition. This type of preparation requires the horse being bathed and its tail, mane and forelock being plaited prior to a show. Black make‑up is also applied to the horse to enhance any black features on the animal's face or legs for show purposes. In addition, the horse needs to be put onto a float and then the float needs to be transported along with other goods to the particular show where the horse and the equipment then have to be unloaded. The plaintiff agreed that she was passionate about her involvement in the equine world and accepted that in relation to competing she did feel nervous and stressed at times and further, working in the hospitality industry was stressful which is why she complained to Dr Turner about suffering from stress. She also complained to him prior to the accident of suffering from fatigue which is a symptom of Crohn's disease. The symptoms of that disease flared up in February 2010 causing the plaintiff to complain to Dr Turner that every three months or so she suffered from vomiting and diarrhoea lasting one to two days and for that reason she was referred to a gastroenterologist. In 2007 she was placed on a special diet in relation to food sensitivity following from the Crohn's disease.
Ms Macey admitted that in about January or February 2011 following the accident she was able to drive between her home and the stables where Phoenix was agisted, although she still required considerable assistance in caring for the horse. She advised Dr Turner in September 2011 that she was starting to feel considerably better, though only spending about half an hour with her horse each day as others were physically caring for him. By December 2011 following a graduated routine the plaintiff said that she was doing walking and a little bit of trotting for 20 minutes, two to three times a week with the horse but there was no cantering. She was also considering a graduated return to work at about this time if she felt capable of doing so and this was discussed with Dr Turner. By July 2012 the plaintiff advised Dr Turner she was feeling generally better as she had been doing a rehabilitation course suggested for her. She denied however that despite enrolling in the TAFE course and generally building up her riding capacity she did not attempt to return to work at Scotch College because her main interest or priority was looking after her horse Phoenix. Rather, she said that it was because she knew that she was physically incapable of being able to stand on her feet for eight hours a day at work. It was only when she contacted Scotch College to enquire about a graduated return to work that she was informed the catering and hospitality work had been outsourced. That was also the reason during this period the plaintiff said she did not seek employment elsewhere because she believed that there was still employment available for her at Scotch College.
Ms Macey agreed that she told the psychiatrist, Dr Cheng in June 2011 that about that time she would rise at 7.30 am and go with her mother to see Phoenix. She saw the horse on a daily basis, morning and afternoon, and also supervised the girls coming to ride and exercise the horse. The remainder of the day was taken up with appointments as well as undertaking hydrotherapy but little else.
She admitted that in late 2010 she did harbour some anger against Scotch College because she could not obtain information as to what was happening with her wages and she agreed she told Ms Davidson, the psychologist whom she had commenced seeing, that she had decided to have war on Scotch and that she was sick and tired of being a doormat for employers. Nonetheless the plaintiff said she was still desirous of returning to work at Scotch College as reflected in her approach to them in mid‑2012. Ms Macey said when she made those remarks to Ms Davidson she was angry, upset and depressed given what had happened to her in the accident and the fact she could not obtain the information she wanted regarding her wages. The plaintiff also kept a diary at Ms Davidson's suggestion regarding her daily activities and she was cross‑examined about her entries in that diary which became exhibit 15 (174 – 188) at some length. She did not have a recollection of maintaining that diary but agreed that the writing in the document was hers. For the most part the diary entries are not dated and they are in essentially a shorthand form, sometimes containing a reference to the time of day or evening. The first page of that diary is contained at page 174 of the defendant's book of documents and commences with an entry for a Saturday referring to day 1 of a horse riding clinic where the plaintiff said she would have been at her instructor's place for the clinic. The same entry refers to a recovery day on the Monday and an osteopath's appointment. There are references to feeding her horse and watering the garden. There is also a reference to washing the horse rugs but the plaintiff said her boyfriend would have assisted her to do that but she did not make a specific note of it as she did not know she had to be that specific with her notations in the diary. Where there is reference or entries regarding cooking the plaintiff said she performed that in a supervisory role with others and again with reference to packing gear and loading horses into the float she would have been acting in a supervisory capacity. At page 185 of the defendant's book of documents there is a diary entry for a Saturday which is dated 12 March 2011 but the plaintiff said the date was not in her handwriting. On that occasion she said that her boyfriend would have assisted her with the shopping to which she made reference and later in the day she would have been tending to her horse Phoenix but with the assistance of Renee Bol and Rebekah Barrett. The following day the plaintiff agreed that she rose at 4.00 am for an early start to attend a horse show but again she had considerable assistance from others in preparing the horse and transporting it to the show. Although no reference in any detail was made to this assistance, the plaintiff pointed out that it was simply in a very summarised or point form and was not a detailed description of everything that occurred and everyone who was involved in what occurred. From the plaintiff's recollection those diary notations or entries were made in an attempt to keep a note of the routine of her day to avoid sliding into depression and she would not necessarily make an entry on the day that the event or activity occurred.
As previously noted after the psychologist Ms Davidson retired the plaintiff commenced seeing another psychologist, Ms Timms, in about mid‑2011. The plaintiff agreed that about this time she wanted to work on a part‑time basis if possible, but denied that this was in order to accommodate her equine interests and activities rather, she said it was to ascertain whether she could cope with working. Ms Macey also agreed that in early 2012 she would have informed Ms Timms that she was under stress given the plaintiff had been told she was responsible for the accident. She explained she did this because a company was ringing her to obtain money for damages caused to the bus as a result of the accident as well as damage to a traffic light that was hit by the plaintiff's car, and she understood therefore that she was being told she was responsible for the accident and she advised the caller to contact the insurance company or her lawyer. She then said she accepted she was aware that she was not responsible for the accident and claimed she told the caller this but she was still stressed in the circumstances.
In exhibit 17 at pages 202 and 203 of the defendant's book of documents, the plaintiff in her job resume as at 2012 prepared on behalf of the plaintiff by the organisation that was assisting her to find a job, Ms Macey describes herself as a highly motivated person who is goal orientated with a strong focus on developing a career in the hospitality industry. She further describes herself as hard working with initiative and someone who is essentially able to work well in a team. That resume was left with five possible potential employers in the area near where the plaintiff lived between 1 November and 14 November 2012. She did not leave it at the feline retreat as apparently the plaintiff obtained that job through word of mouth.

After her graduated return to riding her horse towards the end of 2011 the plaintiff did not return to one hour rides until August 2012 at which time she was participating in only one or two ridden classes from which point she built up her stamina. The only time that Ms Macey has engaged in halter class work was at the Royal Show in 2012. Prior to that she believed she may have participated in one equine show and possibly another two in 2013. The plaintiff previously explained in her evidence what preparing and packing up and unpacking for a horse show involved and made the point that whilst prior to the accident she could do a good deal of it herself she still needed assistance. Following the accident the amount of assistance that the plaintiff requires to prepare for and participate in a horse show is more extensive. She also gave evidence that she had discussed with various treating practitioners her proposed participation in horse shows and said that she had been advised to attempt to try and participate in those shows to the extent that she felt she was able to do so and the plaintiff said she has followed that advice. Although Ms Macey attended the Gosnells Winter Breed Show on 7 August 2011 as indicated at page 218 of the defendant's book of documents, she said that she did not ride in that show with her horse and either Renee Bol or Rebekah Barrett would have done that. She said a similar routine would have applied to the Gosnells Winter Breed Show on 4 September 2011 in which her horse Phoenix participated in two events again with Rebekah Barrett and Renee Bol riding the horse and the plaintiff supervising with the assistance of her mother. The details of those two horse shows and another horse show in which Phoenix participated about the same time are to be found in exhibit 19 (218 – 220) in the defendant's book of documents.
In fact the plaintiff indicated that in the latter part of 2011 she believed that her horse was participating in one or two shows per month. It was not until the 2012 Perth Royal Show that the plaintiff personally participated with her horse as she previously described in her evidence and prior to that she participated in one show in August or September in the ridden, not halter class at the Karragullen oval. Phoenix also participated in a Horse Breed Show on 11 March 2012 in Orange Grove but Ms Macey explained that Rebekah Barrett would have been riding Phoenix for the purposes of that show. That was also the situation that existed on 24 March 2012 when Phoenix competed in yet another horse show. Given that the 2010 Perth Royal Show occurred before the accident in which the plaintiff was involved she confirmed that she participated in a number of events at that show but did not believe that she was placed in any of the classes. She did not participate as she explained as a rider or competitor in the 2011 Perth Royal Show but competed in three events in the 2012 Perth Royal Show. In that last show the plaintiff and her horse were placed sixth in the first event and second in the remaining two events as confirmed in exhibit 20 (234 ‑ 238) of the defendant's book of documents. Exhibit 22 (207 – 211) of the defendant's book of documents is further results of the plaintiff competing with her horse in the Perth Royal Show in 2010 before the accident.
During the course of cross‑examination a number of DVDs of surveillance video of the plaintiff were played in court. These DVDs of surveillance material ran for varying lengths of time.
The first lot of DVD surveillance footage played to the court was one upon which counsel for the defendant placed a good deal of reliance. It became exhibit 23A and was filmed on 30 September 2011 at around about 12.30 pm. It is not clear exactly when the plaintiff started engaging in the activity the subject of the footage. It generally depicts the plaintiff cleaning the interior of the rear of her four‑wheel drive vehicle and she is seen to be moving relatively freely leaning in or bending into the vehicle and stepping out of the vehicle backwards. There is some lifting of the plaintiff's arms and she at one point is seen carrying a vacuum cleaner to the side door of the vehicle. The plaintiff is seen bending over the front passenger seat and then vacuuming a rear passenger area, bending in the car to do so. She then picks up the vacuum cleaner and carries it to the other side of the car where Ms Macey proceeds to vacuum clean the driver's side of the vehicle and then the passenger's area behind the driver's side. The plaintiff then proceeds to the rear of the vehicle and climbs inside the rear before climbing out again. Ms Macey then climbs back into the rear interior area and exits backwards. She is then seen placing a bag of rubbish into an open bin near the car before closing the bin lid. Ms Macey then takes what appears to be a rug from the rear passenger area of the vehicle and closes all doors. She then moves towards a bin and tips the bin very slightly.
Later that same day the plaintiff drives to Thornlie Leisure World and enters the building. She then exits at a later point and drives to a property where she is seen to be sitting in the vehicle talking to two females. The plaintiff then drives her vehicle to what appears to be a rural stud as one can see the plaintiff's horse grazing in a scrubby area. The plaintiff moves towards her horse and around it apparently attending to it. This particular DVD is not very lengthy.
Exhibit 23B is a second DVD of surveillance footage taken on 7 October 2011 just after 3.00 pm. The plaintiff is seen arriving at Leisure World in Thornlie. The plaintiff is next seen at around 4.19 pm that day at a stables area walking around and there are other people and horses in the vicinity. The plaintiff is seen to put a halter on her horse before leading it off and throwing a rug over the horse and arranging it on the animal. Ms Macey agreed that the rug in question was rectangular but she could not say how much it weighed. There is another female in a red top visible on the footage and then a third younger female joins the plaintiff and the female in the red top. A female is massaging a horse by apparently pressing into the body of the horse using both hands and lifting her arms up and stretching out her arms to perform this manoeuvre. It should be stressed that the female carrying out this activity is not the plaintiff nor is the horse Phoenix and this is accepted by the defendant. The massaging activity goes on for some minutes. The plaintiff can be seen speaking to another female on the footage before a third younger female joins them. On this footage Ms Macey agrees that she appears to stretch out her arm in order to close an iron gate behind her. She is carrying a white plastic tub in her hand which is empty save for an empty chaff sack within it.
There is a third DVD of surveillance footage also taken on 7 October 2011 in the interior of a gym commencing at around 3.20 pm. It must be said that the quality of this particular footage and therefore the visibility is not particularly good. It seems to show the plaintiff lying on a bench and lifting her legs up in towards her chest area before moving her legs from side to side and in and out towards her waist area. She is then seen to be lifting her arms back and forth to her shoulder area. Ms Macey then proceeds to walk on a treadmill without any apparent difficulty whilst watching a TV screen. This continues for some 10 minutes or so although it must be said that the plaintiff's pace on the treadmill while regular is not particularly fast.
A fourth DVD of surveillance footage taken on 13 December 2011 was played to the court but it must be said that it shows very little and is not of any particular value.
Exhibit 24 consists of a number of DVDs of surveillance footage which run for about 114 minutes. They show the plaintiff attending and participating in a number of equestrian events at the Perth Royal Show on 5 October 2012. Ms Macey is wearing an equestrian costume and initially appears standing next to Phoenix holding his reins. The plaintiff appears to be relaxed and moving relatively freely. She is then seen to lead the horse away and to stand behind the horse before leading him around again moving relatively freely. The plaintiff then begins to run very briefly next to the horse before stopping and standing next to him and then leading the horse off as she walks next to him again with relative ease and at a reasonable pace. Ms Macey then bends down and appears to pick something off the ground before walking with the horse a short distance again. She then runs next to the horse at a reasonable pace for about 15 seconds before slowing to a walk and leading the horse to receive a red ribbon. She runs briefly next to the horse in the arena with no apparent difficulty before removing the ribbon and leading the horse off as she bends down slightly.
Ms Macey is then seen standing next to the horse and she once more runs next to Phoenix but for a very brief time before slowing to a walk and bending down to pick up the red ribbon before placing it around the horse's neck. At this point Phoenix also has a blue ribbon around his neck. Ms Macey is standing next to her horse patting his neck and chatting to another competitor. She then leads the horse off again around the perimeter of the arena and out of it. Once more Ms Macey appears to move with relative ease before returning back as she moves back into the arena area. There then follows about 20 minutes of footage where the plaintiff is just walking Phoenix around the arena area before she and the horse leave the arena.
The next portion of the footage shows Ms Macey mounted on her horse as she turns her head to talk to someone and look about her. She is seen to ride the horse off slowly as she sits in an upright position before stopping to chat to people in a nearby group. The plaintiff then rides Phoenix around the arena at a slight trot, bouncing in the saddle slightly for a short time. She is then seen sitting on the horse chatting to another competitor before she rides the horse at a trot around the arena and picks up pace a little before the horse then slows to a walk. Phoenix then goes into a very slow canter for a very brief time before slowing down and commencing to canter slowly once again.
Further DVD footage of this event shows Ms Macey sitting on Phoenix before moving off a trot and then stopping. A judge then appears to remove a red ribbon from around the horse's neck and Ms Macey is seen to bend down to the side of the horse for a very brief time. She remains seated in a stationary position on the horse without apparent difficulty in moving. The plaintiff bends down to the side of the horse to an extent as the horse walks off before stopping. There are different views of what the plaintiff and the horse and are doing on that same video presumably taken either from a different place or a different camera. The plaintiff is standing next to Phoenix turning her head to the right at an angle of about 45 degrees before she starts walking next to Phoenix. Ms Macey then stops and appears to be fairly relaxed and happy in her movements. She then leads Phoenix off slowly around the arena at an even walking pace before stopping and bending in front of the horse with relative ease. The horse is then led off at an even walking pace by Ms Macey who breaks into a run next to the horse for a number of seconds. She is then seen standing next to Phoenix and leading him off before again breaking into a brief run next to the horse without apparent difficulty. She is seen to bend from the waist to put a ribbon on the ground before leading Phoenix off again. She then jogs very briefly next to Phoenix before walking and then stopping. At one point Ms Macey waves a riding crop in her right hand up and down with some energy but only for a very short period. She is next seen running beside the horse with apparent ease for about six seconds before slowing to a walk and bending down from the waist to pick up a ribbon and putting it around the horse's neck.
Ms Macey is next seen leading Phoenix out of the arena and lifting her left arm to wave at some onlookers. At this point the plaintiff is holding a riding crop in her left hand and moving that arm relatively freely. This footage also shows lengthy shots of the plaintiff from a front view to the rear view and from the left and right sides.
The plaintiff is next seen riding the horse as it trots very briefly. She is sitting upright and appears comfortable as she turns her head and neck relatively freely. At one point she is seen to gesticulate with both hands and nod whilst chatting briefly with another rider and pointing her riding crop in her right hand with that arm outstretched. She is also seen waving with her left arm and nodding her head relatively freely. Then follows a little more footage of the plaintiff riding the horse as it proceeds very briefly at a reasonably quick trot.
Not surprisingly, the plaintiff was cross‑examined in some detail about portions of the video surveillance footage. In relation to the footage showing her vacuuming her fourwheel drive motor vehicle the plaintiff explained that before she embarked upon this activity she had been in bed and had done nothing between getting up at 7.30 am and after noon when she believed she commenced vacuuming the vehicle. She was not sure of the precise time she commenced the activity and pointed out that she was advised by Dr Turner, her general practitioner, to try undertaking daily activities such as vacuuming and further said that the video footage did not show her having to rest from time to time which she normally had to do. Ms Macey said that vacuuming her vehicle or in her home was not an activity she carried out frequently. Her evidence was that where she is seen attending the gym at Thornlie Leisure World she was simply following her rehabilitation programme before attending to her horse and preparing him for bed where she did a little sweeping of sand from his hooves but not a great deal else.
In relation to the DVD surveillance footage of the Perth Royal Show on 5 October 2012 the plaintiff agreed it was her sitting on, riding and walking with the horse Phoenix explaining that between herself and Rebekah Barrett the horse had been ridden leading up to the Royal Show to get him prepared to perform. The day prior to the show it had taken an hour or so to wash, plait and sew the mane, forelock and tail which the plaintiff had done standing on a grooming stool. She repeated that she had undergone acupuncture for a number of days prior to attending that particular show and further she was taking painkillers and using a herbal spray to assist her to get through the day.
The plaintiff also gave evidence that she has great difficulty lying on her back for more than a few moments and prefers to lie on her side as a result. Whilst at the gym when she is doing her rehabilitation and has to lie on her back Ms Macey said she has a towel propping her up for that purpose. In the end the plaintiff said that she has good days and bad days in terms of her pain level and ability to move and she cannot predict on any given day in what condition she will be. When it was put to Ms Macey that a sticker on the back of her vehicle reading, 'Born to ride, forced to work' essentially summed up her attitude she rejected that assertion saying it was a joke sticker of the sort people sometimes put on the back of their motor vehicles. Her evidence was that she has always worked all her life (the implication being when she was old enough to do so) and she added that if she did not work and earn money then she would be unable to support her horse and her passion for horse riding and competing in equestrian events.
As at time of trial Ms Macey said she was of the belief that she would not be able to work as a catering assistant or kitchen hand because she did not believe she could work on her feet for eight hours a day, nor did she believe she was capable of carrying heavy objects or lifting heavy objects such as plates or carrying out the type of physical work that is required in hospitality which is a fairly fast paced work environment. Her current work as an animal carer at the feline retreat, albeit on a part‑time basis, has given the plaintiff some confidence that in the future she will be able to return to full‑time work. In addition, according to the plaintiff after she commenced work at the feline retreat, she made a number of other applications to taverns and bars near her home for work but there were no vacancies available. She explained that those efforts were not mentioned in her job seeking diary because they occurred after she had completed filling out the diary.
Ms Macey accepted that the DVD surveillance footage of 30 September 2011 where she is seen vacuuming her motor vehicle occurred the day before the commencement of the 2011 Perth Royal Show in which she did not compete. Given that she was able to vacuum the car on 30 September the plaintiff was asked why she was then not fit enough to compete in the Perth Royal Show the following week and she explained that she simply was not able at that point to run next to Phoenix or to ride him which was why she had to ask Rebekah Barrett and Renee Bol to do it on her behalf. The plaintiff's evidence was further that leading a horse around places more stress on a person's back than riding the horse because one has to run on a grassed or solid surface at quite a fast pace which the plaintiff said she did not do in the 2012 Perth Royal Show as she was actually moving at quite a slow pace. She said riding a horse, particularly if one is a very experienced rider, doing rising trot does not hurt one's back whereas if one was doing a sitting trot then one would suffer some pain because one would be sitting to the actual two‑beat of the trot which jars the rider's back more. Cantering does not cause difficulty in terms of pain to the back because it is a smooth rhythm nor does walking cause pain to the back. However, the plaintiff said that running definitely causes pain to her back and it is an activity that she is still unable to carry out for any distance.
At time of trial in giving her evidence the plaintiff said it was her intention if possible to compete in the 2013 Perth Royal Show in the sense that she would be participating in the ridden class but she would not be participating in the halter class as Rebekah Barrett would be doing that on her behalf. Where in exhibit 24 at the 2012 Perth Royal Show the plaintiff is seen sitting on Phoenix while the horse trotted she said that was a rising trot where one actually rises to the beat of the trot which does not cause pain because the rider is moving up and down with the movement of the horse. On the other hand if one was doing a sitting trot that would involve the rider basically bouncing on the horse's back which could cause pain.

Linda Macey

The plaintiff's mother, Linda Macey, gave evidence and told the court that she worked full‑time as an enrolled nurse at Hollywood Hospital. She works solely on night duty doing eight shifts per fortnight between the hours of 9.15 pm to 7.15 am. Essentially Mrs Macey was of the view that her daughter had a good work ethic and prior to the accident she had not known her to be out of work. She described the plaintiff as being physically active given she was involved in swimming and cross‑country running as well as the gun club. She said the plaintiff was particularly involved in and committed to her work with horses and had been active in that regard from about 5 years of age. Although the plaintiff left home at 17 years of age her mother had very regular contact with her daughter between then and the date of the accident because she was involved in assisting the plaintiff showing her various horses at numerous events over a 20‑year period. Before the plaintiff acquired her own driver's licence her mother would drive the plaintiff and the horse float to various shows and on arrival would assist the plaintiff to prepare the horse for various events by grooming the horse and generally preparing the horse be at its best. Mrs Macey would assist in packing and unpacking the car and helping the plaintiff dress for various equine events. She also assisted the plaintiff with cleaning out the stables and preparing feed for the horse. Her evidence was that she would do whatever was required to assist her daughter relevant to her equine interests.

Following her endeavours to obtain employment having engaged an employment consultant in the latter half of 2012, the plaintiff herself obtained paid employment for three hours a day, five days a week, at the feline retreat where she was working at the time of trial. As I understood the plaintiff's evidence she was generally coping in the job from a physical perspective and it appeared to me that the plaintiff was confined to working those hours as that was all that was available at the time.
Overall on the evidence, I find that the plaintiff has made a very significant physical and psychological recovery since the time of the accident and this improvement is ongoing which, in turn, is a positive indicator that the plaintiff will in time be able to return to full‑time employment in a range of occupations including working in the hospitality and catering industry. On 31 January 2013 when reviewed by Dr Cheng the plaintiff advised him not only that she had recently returned to paid employment at the feline retreat but she also told him that she was seeking part‑time employment waitressing or working as a kitchen hand for a couple of nights a week.
At that time Dr Cheng was of the opinion that the plaintiff did not require any ongoing medication from a psychological perspective but he believed that it would be advisable for the plaintiff to continue to consult a psychologist once a month for the next 6 to 12 months which would take the period to January 2014. In December 2012, Dr De Felice was of the opinion that the plaintiff should continue consulting a psychologist for treatment on a monthly basis until the end of 2014. In considering and comparing these two opinions it seems to me that the most appropriate finding is that the plaintiff should continue to engage in psychological counselling once a month until the end of June 2014. Dr De Felice was also of the opinion that the plaintiff may well require medication from a psychological perspective until mid‑2014 which again would take the period to the end of June 2014.
Ultimately Dr Harper was of the view that the plaintiff's capacity for full‑time unrestricted employment may remain compromised to mid‑2014.
Taking these opinions into account in combination with all of the other relevant evidence I find that by the end of June 2014 the plaintiff will be in a position to return to full‑time employment although I accept that given her accident and history of unemployment for about two years following this requires that there be some award of damages for the prospect of the plaintiff's possible lack of competitiveness in the workforce after 5 January 2013.
In the light of these findings I now turn to the issue of the award of damages.

Past economic loss

(a)As at 27 October 2010 the plaintiff was working as a kitchen hand at Scotch College where she was earning $1,263.60 net per fortnight or $631.80 per week.
She remained unemployed until 5 January 2013 – a period of 114 weeks.
$631.80 x 114 = $72,025.20

(b)From 5 January 2013 until 31 January 2014 (date of judgment) – a period of 56 weeks.
The plaintiff's hourly rate was increased from $18.22 per hour to $19.15 per hour in or about November 2011 (exhibit 4, page 169) so by about 5% taking the current weekly earnings to $363.35 per week.
Loss from 5 January 2013 to 31 January 2014
$363.35 x 56 = $20,347.60

(c)Loss from 1 February 2014 to 30 June 2014 – a period of 21 weeks
$363.35 x 21 = $7,630.35

Total past economic loss
$72,025.20 + $20,347.60 + $7,630.35 = $100,003.15

(d)Interest on past economic loss
$100,003.15 less amount paid under AHI policy, $64,686.19

Loss = $35,316.96
Interest calculation
$35,316.96 x (114+56 + 21 = 191 weeks) ÷ 52 x 3% = $3,891.65

Fox v Wood (1981) 148 CLR 438 component

Counsel for the plaintiff submits that exhibit 27 sets out the 2012 tax calculation showing the tax payable on a full year of payments to the plaintiff pursuant to the AHI Journey Claim Policy to be $2,767.09. Further, counsel submits that the plaintiff received those payments for two years so the calculation in this regard is $2,767.09 x 2 = $5,534.18.
In the circumstances however I am not prepared to make an award under this head of damages because I accept the argument submitted on behalf of the defendant. This situation differs from that where workers' compensation payments have been made to a plaintiff who has received a net amount by way of weekly payments of workers' compensation where the tax has been deducted. In this case it is common ground that the plaintiff received gross rather than net payments pursuant to the journey claim policy and now has a liability to repay those funds and the tax relevant to the monies she received pursuant to the policy. The plaintiff in her evidence confirmed that she has received a taxation bill which she must pay. If the plaintiff were to receive a Fox v Wood component I accept that she would be doubly compensated because the plaintiff has already received that amount of money. In a situation where one is dealing with a plaintiff who has received payments of workers' compensation that plaintiff has to repay the gross amount of the workers' compensation received when in fact they only received the net amount in the first instance. Therefore a plaintiff in that situation has to repay more money than they received. In this situation the plaintiff, having received the gross amount previously, simply now has to repay the tax component of the payments she received.

Past superannuation

(a)The plaintiff was receiving superannuation at 9% (exhibit 4, page 2).
$728.80 x 9% x 114 weeks = $6,355.86

(This covers the period 27 October 2010 to 5 January 2013.)

(b)Thereafter the plaintiff's loss has been in the sum of $363.35 net per week. Superannuation is approximately 9% per week = $32.20 per week for 77 weeks = $2,479.40
Total loss = $8,835.26

(This covers the period 6 January 2013 to 30 June 2014.)

(c)Plus interest at 3% for 191 weeks
$8,835.26 x 3% ÷ 52 x 191 weeks = $973.57
Total loss of past superannuation = $9,808.83

Future loss

Despite the finding on the evidence that by 1 July 2014 the plaintiff will be fit and able to return to full‑time work it is appropriate in the circumstances to make an award on a global basis for future loss.
This is because given the plaintiff's history of injury and her subsequent time off work she will to a degree be less competitive in the labour market. It also takes into account the evidence of Professor Mulvey that in some fields of employment where the plaintiff might be expected to apply for work there is considerable competition for vacancies and in other areas it is not always easy to obtain full‑time employment or immediate employment.
On this basis a global award of $60,000 is made for future loss.
It should be noted that in arriving at this global award of damages for future economic loss, the plaintiff did not give evidence that she intended to work until a particular age.
This does not preclude a court from making an assessment on the basis that the plaintiff will continue to work until reaching 65 years of age.
In this case given the plaintiff's work history and work ethic prior to the accident as well as her commitment to rehabilitation and her stated desire to return to the workforce on a full‑time basis I am satisfied it is more probable than not that the plaintiff intends to work until the age of 65 years.

Future medical treatment

Taking into account the evidence of the psychiatrists Dr De Felice in December 2012 and Dr Cheng in January 2013 I make an award for future psychological treatment for the plaintiff once a month for 18 months from January 2013 to June 2014 at $140 per session.
18 x $140 = $2,500
If this treatment is treatment is undertaken I do not consider it necessary for the plaintiff to also be attending her general practitioner bi‑monthly for psychological treatment and so I make no award in relation to this aspect of the claim for damages.
Dr Cheng did not consider in January 2013 that the plaintiff required ongoing medication to assist with psychological difficulties, though Dr De Felice in December 2012 was of a contrary view.
The distinct tenor of the plaintiff's evidence was although she experienced periods of depression and low mood from time to time her preference was to address the problem without the use of prescription medication.
Ms Macey has now returned to the workforce albeit on a part‑time basis and she intends to increase her hours of work. She has also returned slowly to engaging in horse riding and showing her horse and in August 2013 at trial gave evidence she intended to participate with some limitations in the 2014 Perth Royal Show in early October 2014.
In the circumstances I am not persuaded that there should be an award for the cost of purchasing antidepressant medication in the future.
I am persuaded that a modest global award of $500 should be made for any future attendances by the plaintiff upon her general practitioner and a chiropractor for treatment for her accident related injuries only should be made.
That is a total award of $3,000 for future medical treatment.

General damages

I find that following the accident the plaintiff has suffered considerable pain and discomfort as well as stiffness and tenderness particularly in her neck and back with associated limitation of movement in those areas. In addition, I accept that she has suffered a level of anxiety and stress to the point where she required psychological and limited psychiatric intervention. She has suffered intermittent headaches and some sleep disturbance. Fortunately, over time and with appropriate treatment these conditions have improved markedly. It is the case however that these injuries have impacted negatively upon her enjoyment of life and her ability to carry out her usual activities including her equine activities particularly until about mid‑2012. To an extent her social life has been curtailed and for a time following the accident the plaintiff suffered a degree of emotional distress in relation to nightmares and reported flashbacks. However, from a psychiatric perspective, I am not persuaded that the plaintiff continues to suffer a major depressive disorder which has compromised her ability to function.
The plaintiff has in the past been limited in the physical activities, including horse riding and showing her horse, which she has been able to undertake but as previously noted this situation is subject to significant ongoing improvement.
The plaintiff's injuries arose out of a motor vehicle accident which occurred after 1 July 2010. The provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 govern the amount of damages to be awarded to a plaintiff for non‑pecuniary loss.
Non‑pecuniary loss is defined in the Act to include pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. It also imposes a limit on the award of damages which can be made for non‑pecuniary loss. Section 3C(2) provides that damages must be assessed for a plaintiff's non‑pecuniary loss as a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded. The maximum amount that may be currently be awarded is $379,000. Further, s 3C(3) provides that the maximum amount may only be awarded for a case which is assessed to be a 'most extreme case'.
The approach to be applied in determining this issue was discussed by the court in Southgate v Waterford (1990) 21 NSWLR 427. Although the New South Wales legislation considered in that case was in somewhat different terms to s 3C of the Act as it stood at the time, that legislation provided that damages for non‑economic loss were only to be awarded in cases where there had been a significant impairment of an injured person's quality of life and required the court to assess the amount of damages to be awarded for non‑economic loss as a proportion, determined according to the severity of the non‑economic loss, of the maximum amount which that legislation permitted to be awarded. In carrying out this exercise the court said it was necessary for the judge to conceive 'a most extreme case' and although opinions may vary as to what constituted 'a most extreme case' it was said that clearly quadriplegia would fall into that class.
Whilst the individual circumstances of each case will vary and must be considered individually it is permissible to gain general guidance from comparable authorities or verdicts. In this matter the court was referred to a number of such cases the most relevant of which in my view is Jones v Putley [2004] WADC 49, a decision delivered by Mazza DCJ. In that case the plaintiff was a 39‑year‑old female commercial cleaner who was injured in a motor vehicle accident for which liability was admitted. The trial judge was satisfied that the plaintiff had suffered a soft tissue injury to her neck and lower back which disabled her from working as a commercial cleaner from the date of the accident and further that the symptoms resulting from her injuries rendered her permanently unable to work as a commercial cleaner. The court was however satisfied that the plaintiff was not permanently disabled from employment in any capacity and was capable of sedentary work as a part‑time clerk. The plaintiff had suffered adverse emotional effects as a result of her injuries and being involved in the accident. They were not such as to cause a major depressive or adjustment disorder but she had suffered mood and personality changes and a degree of psychological distress. In the circumstances of that case the plaintiff was assessed as being at 15% of a most extreme case and was awarded general damages on that basis.
In the circumstances of this case taking into consideration all of the relevant evidence of the plaintiff and the witnesses, including the medical witnesses, I am of the view that damages for the plaintiff's pain and suffering and loss of enjoyment of life caused by the accident should be assessed at 14% of a most extreme case. It follows therefore that the award for the plaintiff's non‑pecuniary loss taking into account deductable decreases should be $34,060.

Special damages

Exhibit 7 tendered on behalf of the plaintiff during the course of trial is a schedule of special damages claimed in combination with invoices supporting those claims. The total amount claimed by way of special damages is $13,018.50 in addition to interest at 3% for a given period.
The defendant resists the claim for special damages and points out that $15,730.07 has already been paid by or on behalf of the defendant in this regard. The argument is that there is no evidence of any reasonable or necessary basis for the defendant to be liable for the cost of the further treatment obtained by the plaintiff as set out in the schedule of special damages. Counsel for the defendant submits that there is no evidence that as a result of the accident the plaintiff needed further chiropractic care especially as prior to the accident Ms Macey was in the habit of attending for chiropractic treatment by way of maintenance. In addition, it is submitted that there is no evidence that as a result of the accident Ms Macey needed further consultations with her general practitioner Dr Turner, as she regularly attended him in any event for treatment for a variety of complaints prior to the accident. In relation to the psychological treatment, it is put that the defendant has already paid $4,856.40 to the psychologist Ms Davidson and $3,525.30 to the psychologist Ms Timms for psychological treatment each of those persons gave the plaintiff. It is the defendant's position that there is no evidence of any relevant medical referral for ongoing treatment by Ms Timms or indeed any other psychologist and further, that there is no evidence of efficacy of the treatment provided to the plaintiff by Ms Timms. Therefore it is said that there is an absence of evidence that it was reasonable or necessary for the plaintiff to have further psychological treatment.
It is pointed out that the defendant has already paid $3,444.85 to the ORS Group, a rehabilitation provider and further that there is no evidence to support any reasonable ongoing need for rehabilitation services after February 2012 when payments on behalf of the defendant were stopped by the Insurance Commission.
It is the case that according to the evidence of Dr Turner the plaintiff did require further consultations with him following the accident as a result of the injuries that she sustained in that accident. Moreover, Dr Turner took the view that the treatment by an osteopath was appropriate and necessary for the plaintiff's condition and her rehabilitation. In the circumstances he felt that chiropractic treatment whilst useful would not be a focussed or specific as osteopathic treatment but I did not understand his evidence to be to the effect that during the relevant period of time there was no need for the plaintiff to undergo either osteopathic or chiropractic treatment. It is correct that prior to the accident the plaintiff did attend for chiropractic maintenance, but as I understood her evidence and the evidence of Dr Turner in particular, after the accident there was a particular emphasis on dealing with the injuries sustained by the plaintiff in the accident. The plaintiff's evidence was that this treatment was beneficial to her.
Dr Turner was also of the opinion that it was appropriate to refer the plaintiff for psychological treatment first to Ms Davidson and when she retired, Ms Timms took over the treatment. This was also beneficial from the plaintiff's perspective in relation to her rehabilitation in dealing with her emotional state. It would certainly seem on their evidence that both the psychiatrists Dr Cheng and Dr De Felice considered in the circumstances that psychological treatment was both appropriate and warranted to deal with the plaintiff's psychological and emotional issues. That is something that both of them considered should be ongoing at least for a period of time following the accident and this is referred to in the findings in relation to their evidence.
Clearly it was desirable that the plaintiff pursue her rehabilitation endeavours with a view to returning to the workforce and clearly a rehabilitation provider is best placed to provide such services. In my view there was an ongoing need for those rehabilitation services to continue after February 2012 when payments on behalf of the defendant were stopped.
In addition, the evidence is clear that the treating medical practitioners were of the view that an important and necessary part of the plaintiff's rehabilitation was increasing her physical fitness and mobility by way of hydrotherapy and a gym programme. I have found that this was a legitimate view and further that the plaintiff was committed to this aspect of her rehabilitation, which it would appear has been quite effective.
For these reasons I am persuaded that in the circumstances of this case the plaintiff is entitled to an award of special damages as claimed in exhibit 7.
As per exhibit 7 $ 13,018.50
Interest at 3% for 191 weeks = $ 1,434.53

Summary

In summary damages are allowed as follows:
Past economic loss and interest  $103,894.80
Past superannuation and interest  $    9,808.83
Future loss$ 60,000.00
Future medical treatment  $    3,000.00
General damages  $ 34,060.00
Special damages and interest  $ 14,453.03
Total$225,216.66