Marchant v Maitland
[2004] WADC 80
•6 MAY 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MARCHANT -v- MAITLAND [2004] WADC 80
CORAM: NISBET DCJ
HEARD: 15-17 MARCH 2004
DELIVERED : 6 MAY 2004
FILE NO/S: CIV 2704 of 2002
BETWEEN: DONNA RUTH MARCHANT
Plaintiff
AND
JOHN WILLIAM MAITLAND
Defendant
Catchwords:
Damages - Assessment - Rear end collision - Soft tissue injury - No objective pathology - Some differences in medical opinion - Allegation of malingering - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Award of $103,591.61
Representation:
Counsel:
Plaintiff: Mr G Droppert
Defendant: Mr P R Momber
Solicitors:
Plaintiff: Paul O'Halloran & Associates
Defendant: Peter Momber
Case(s) referred to in judgment(s):
Dyers v R (2002) 192 ALR 181
Jones v Dunkel (1959) 101 CLR 298
Jongen v CSR Ltd & Anor (1992) A Tort Rep 61,706
Case(s) also cited:
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bresatz v Przibilla (1962) 108 CLR 541
CSR Readymix (Australia) Pty Ltd v Payne [1998] 2 VR 505
Graham v Baker (1961) 106 CLR 340
Hendrie v Ruslie [2000] WASCA 420
Marsland v Andjelic (1993) 31 NSWLR 162
Medlin v State Government Insurance Commission (1995) 182 CLR 1
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Van Gervan v Fenton (1992) 175 CLR 327
Wright v Shire of Albany (1993) A Tort Rep 81239
NISBET DCJ: The Plaintiff brings an action for damages against the defendant for injuries she said she sustained in a motor vehicle accident in which she was involved on 18 August 1998.
Background
The plaintiff was born on 1 June 1966, the youngest of five children. She attended high school until Year 12, ceasing school and going immediately into full time employment with Coles where she had worked part time during her later high school years. She worked her way up to be the second‑in‑charge of the fruit and vegetable section, doing all of the usual tasks that one sees being done when one visits a supermarket, namely stocking and re‑stocking shelves, stocktaking and the like. Some of this work was heavy. She explained that a lot of her time she was required to lift bags of fruit and vegetables weighing 20 kilograms.
She left Coles in December 1994 in order to work for her aunt at a delicatessen her aunt owned and operated in Scarborough. Unfortunately she was subjected to an armed hold‑up there, and so she terminated her employment, finding part‑time work and assisting in the care of her father, her mother having died and her father being ill.
She fairly quickly thereafter found full‑time employment with Woolworths at its State office in Kewdale where she worked as a data entry clerk in the fruit and vegetable section. This was a change of career for the plaintiff because it mostly involved computer work, with her being seated for much of the day at a computer terminal.
During this period of employment she married her husband, Clint, after a two year courtship. During this period too, the plaintiff settled a claim arising out of a motor vehicle accident in which she was involved on 27 May 1989, and whilst the plaintiff could not remember the details of the settlement, she agreed it was a substantial claim even though she had only had two weeks off work, one immediately following the motor vehicle accident and another after she had a fall at work and exacerbated her symptoms.
The motor vehicle accident of 18 August 1998
The plaintiff testified that she was on her way to work on this day when at about 8.00 am she was stationary on Tonkin Highway at its intersection with Collier Road waiting for the traffic lights governing that intersection to change. She said that she heard a screech of brakes, and then a thump, and then her car went "flying forward". She said that she herself went "flying forward and backwards so fast", and recalls that "the tape actually came out of the tape deck", and that her car "just went."
After the collision she got out of her car and confronted the defendant noting that "his car was a mess and glass was everywhere" but that the damage to her vehicle was "quite minimal". She did however, notice that the bonnet to the defendant's car was "all crunched up".
The first issue to resolve from this narrative of events is whether or not the collision was as minor as the defendant's counsel submitted. In his cross-examination of the plaintiff, defendant's counsel concentrated on the minimal damage to the plaintiff's vehicle but did not cross‑examine her about the damage to the defendant's vehicle.
The plaintiff's husband described a telephone conversation he had with the defendant a week or two after the accident. He testified that the defendant telephoned to see how the plaintiff was. He told the defendant that his wife "wasn't real flash" whereupon the defendant apologised. Mr Marchant then asked the defendant if his car had been repaired and he testified that the defendant replied "Well it's pretty bad. The insurance company still hasn't got back to me as to whether they were going to write it off". Mr Marchant was not cross-examined about this evidence and it wasn't challenged in any way. The defendant was not called as a witness by the defence, and no explanation was offered to the court as to why he was not called, an important omission bearing in mind the nature of the attack made upon the plaintiff's case by the defendant arising out of an allegation that the collision was almost trifling.
In these circumstances I can infer that the defendant's evidence would not have assisted the defendant's case on this point: Jones v Dunkel (1959) 101 CLR 298. [The application of this rule to civil trials is unchanged since Dyers v R (2002)192 ALR 181.] In the circumstances therefore I conclude that whilst the damage to the plaintiff's vehicle may have been relatively minor, there was extensive damage done to the defendant's vehicle such that its insurer was contemplating writing it off.
Next, in relation to the collision there was an issue as to how far and in what direction the plaintiff's car was shunted off the roadway by the collision. The defendant's counsel cross-examined the plaintiff on the basis that there were inconsistencies in her reporting of this event, and particularly that she told Dr Hagen that she was shunted "off the road" when, so the line of cross-examination went, she was not pushed completely off the road at all.
Having reviewed all of the medical practitioners' reports of what the plaintiff told them in relation to the circumstances of the collision, I find that there is no inconsistency at all. Having regard to the failure of the defendant to offer evidence himself, I am entitled to infer that he could not give any evidence which would have assisted his case in relation to this issue. Accordingly then, I further conclude that the plaintiff's car was shunted off the roadway in the direction of the median strip, and whether it fully left the roadway or not, this is a further indication that this was not an insignificant or trifling collision, but one which was more significant than that alleged by the defendant.
Plaintiff's injuries
In her statement of claim as amended on the first day of the trial, the plaintiff particularised her injuries as follows:
"(a)soft tissue and/or ligamentous injury to the plaintiff's neck;
(b)soft tissue and/or ligamentous injury to the plaintiff's lower back;
(c)injury to facet joints in the lower back;
(d)aggravation of pre-existing injury of the neck;
(e)consequential post traumatic stress syndrome and/or adjustment disorder with anxiety and/or pain syndrome."
The plaintiff testified that following the accident she was able to drive to her husband's place of employment nearby and he advised her to go and see her doctor. Her regular general practitioner, Dr Bauer, was not on duty that day and so she went home, went to bed and slept she said, for 16 hours or so.
The next day she said that when she woke up she couldn't get out of bed, she was bruised and sore from the seat belt, and her husband had to roll her out of the bed she was in that much pain. She noticed that her neck and back were sore. The neck she described as having "flared up" and the back pain she described as "new". She described feeling like she'd been run over and was so bad that she couldn't get out of bed.
Her sister came to visit her and took her to a general practitioner nearby, Dr Pham. Dr Pham diagnosed a whiplash injury, and later, when asked to report on his findings he described her injuries as follows:
" 'Whiplash Syndrome' Pain to the cervical area down to her thorax and lower back. There was stiffness at the neck and headaches. There was stiffness to the lower back."
Subsequently the plaintiff presented to her usual general practitioner, Dr Bauer, on 28 August 1998 and whilst he managed and supervised treatment for a time, as far as I could tell he has not given a formal diagnosis of the plaintiff's injuries. This is not uncommon. Many of the medical practitioners who have provided reports have either not been asked, or have not offered a formal diagnosis, settling instead for a description of the plaintiff's symptoms. A good example of this is Professor James Taylor who was asked to give a specific diagnosis, and in his report of 7 December 1999 under heading "Findings and diagnosis" wrote :
"See above. In addition it would be my suspicion that her pain is arising from the L5/S1 disc rather than the facets, though there may be a contribution from both discs and facets, with a degree of instability due to loss of muscle tone and supporting muscles. The abdominal supporting muscles are weak. This is probably from the deconditioning associated with the chronic pain."
The words "See above" were basically referring to the history and the complaints of pain made to him by the plaintiff. A number of the other practitioners proceeded in the same fashion, that is to say without giving a formal diagnosis of the plaintiff's injuries, and being content to merely describe her symptomatology. In this category are Dr Murphy, Dr Gee and Professor Hollingworth.
Mr Peter Watson, a neurosurgeon, diagnosed the plaintiff as having "… signs and symptoms relating to soft tissue and ligamentous injuries of the cervical spine and of the lumbar spine, but with no evidence of either spinal cord or nerve root impingement." Dr Fitch diagnosed the plaintiff as having sustained "… a facet joint sprain of her lumbar spine. This was superimposed on minor pre-existing but totally asymptomatic facet joint degeneration of the L5‑S1 level … This injury has been complicated by post traumatic stress syndrome with abnormal pain response." Dr Michael Hagan, a psychiatrist, diagnosed the plaintiff as having sustained "… adjustment disorder with mixed anxiety and depressed mood, chronic." Finally, Dr Stewart Brash diagnosed the plaintiff as having suffered "… only a soft tissue injury to the spine as a result of the accident." He went on to offer the opinion that the plaintiff "… does have strongly formed Abnormal Illness Behaviour."
In terms of objective pathology to explain the plaintiff's symptomatology, there is none. Whilst Dr Fitch thought that minor degenerative changes in the plaintiff's spine were abnormal, no‑one else seems to have been of that opinion, and certainly none of the radiologists thought the plaintiff's radiography remarkable. The report of Sprague Kam Glancy of 24 August 1998 in respect of the plaintiff's neck and back is typical:
"CERVICAL SPINE
Vertebral alignment appears normal and no underlying bone injury or abnormality is demonstrated. The neural foramina bilaterally are intact. No osseous cervical rib or other intrinsic pathology can be seen.
LUMBAR SPINE
Vertebral alignment in the lumbar region appears normal with no evidence of any underlying bone injury seen. The intervertebral disc spaces are well preserved and no spondylolysis or listhesis is seen. The facet joints bilaterally appear intact. Both sacroiliac joints appear within normal limits."
Reports to the same effect are seen from Westminster Radiology on 29 August 1998 and 21 September 1998. An MRI Scan ordered by Professor Taylor found no MRI evidence for disc related pathology, and "minor L5/S1 facet degeneration."
There seems to be to be little doubt but that the plaintiff has not proven that she has sustained any bony injury to her spine, either in the neck or the back, and that any injury that she sustained must be regarded on any objective view of the evidence as being a soft tissue injury of only mild to moderate severity, coupled with an adjustment disorder.
Plaintiff's symptoms and treatment
When asked to explain her current symptoms (T54) the plaintiff responded "Current symptoms? pain in the lower back, increased by sitting, spreading to my buttocks sometimes."
She then indicated that she had pain in the small of her back, radiating down to the top of the buttocks. She then went on to describe in a little more detail that she had the following symptoms:
1.Daily stiffness and pain in the lower back;
2.Daily cramping of the lower back;
3.Spasms, which the plaintiff described as 'sharp nasty pains, like a knife' every two or three weeks;
4.Daily spread of the low back pain to the buttocks into the right leg with associated numbness of the top of the right leg;
5.Weekly headaches, which the plaintiff has associated with an exacerbation of the neck injury she sustained in her 1989 accident, and said that prior to this accident she did have headaches associated with her previous neck injuries, but they were not as regular, coming every couple of months;
The plaintiff described the loss of amenities that she sustained in everyday life in consequence of these symptoms. The way in which she described her life suggested that there was not a single aspect of the incidents of everyday life with which she did not have difficulty.
Added to this is the fact that the plaintiff and her husband had a daughter, Jessica, born 14 June 2002. I would have thought that this was a relatively significant event in the plaintiff's life, but it was not mentioned at all in her chronology filed in court. Additionally, there is very little evidence to be gained from any of the medical reports which suggest that the plaintiff had a difficult pregnancy, or that her pregnancy exacerbated her symptoms. This I thought unusual for a plaintiff complaining of chronic low back pain. She did testify that her medication regime had to change after she became pregnant, but there was very little evidence offered that the pregnancy itself was difficult or exacerbated her lower back symptoms. Indeed, she told Dr Hagen that her pregnancy wasn't too bad. She did complain however, that after Jessica's birth she had difficulty holding her to feed her, and she has continuing difficulties in attending to her bathing, nappy changing, carrying her around the house and the like.
Other aspects of the plaintiff's evidence of the intrusion of her injuries upon her everyday life, apart from the physical symptoms described above, were that her symptoms precluded her from returning to her former employment until January 1999 when she attempted a return to part time work but was unable to cope. Then on 21 June 1999 her employment at Woolworths was terminated. During all relevant times she continued to receive Certificates of Unfitness for work.
The plaintiff further testified that other aspects of everyday life were considerably interfered with too. She could no longer do the heavy cleaning that she formerly did, or much of the cooking. The sexual side of her marriage was almost non‑existent. Social intercourse faded away, there were no more holidays, and so apart from living the life of a virtual invalid, the plaintiff also described herself and husband as living an almost hermit like existence. She tried to go to the pictures a couple of times but found it all too difficult. She could no longer participate in the car rallies and other social outings that went with her husband's membership in the car clubs they belonged to before the accident, and could no longer go away for long weekends to various tourist destinations in Western Australia, as they had done in the past. This was because they used to drive as far north as Kalbarri and as far south as Margaret River and the like, and she could no longer tolerate sitting in the car for that length of time. She only did light shopping and had become very dependent upon her husband. So much so that when her husband went away as he regularly does in the course of his employment, she had to engage the services of Dial an Angel in order to get by.
By reason of all of these complaints of her symptoms and her loss of amenities, many medical practitioners have sought to improve the plaintiff's lot with the prescription of a variety of treatments. In the absence of any objective pathological or radiological explanation for her complaints of pain and her symptoms, the relevant medical practitioners all ruled out any operative intervention. She has however, been prescribed and undertaken a course of pain management at the Cambridge Pain Management Clinic under the supervision of Dr Geoffrey Gee. This involved a supervised rehabilitation programme of exercise with Dr Ponchard, an exercise physiologist, consultation with Mr Christopher Semmens, a clinical psychologist, and treatment from Dr Gee who prescribed a facet joint injection which gave the plaintiff only temporary relief. She also saw Professor Taylor, was reviewed by a neurosurgeon, Mr Peter Watson, a rehabilitation specialist, Professor Hollingworth, and a psychiatrist. All have stressed that the plaintiff must regain some physical fitness and have advised the plaintiff accordingly.
She has certainly undergone some attempts at regaining fitness, but descriptions of her attitude to her treatment range from those who are of the opinion that she has done everything asked of her – which includes the plaintiff herself – and those that think her commitment to her own rehabilitation is nothing short of pathetic.
Plaintiff's prognosis
Most of the medical specialists who have seen the plaintiff have noted the absence of any objective, pathological or radiological explanations for her complaints of pain and other symptomatology, and for the extent of disability with which she presents herself. Further, most of the medical practitioners who have seen the plaintiff thought that she should have regained her former health and capacity for employment within a relatively short time after the accident.
All of the initial diagnoses were that the plaintiff would recover and resume her pre‑accident life within a relatively short time, although Dr Pham, the doctor who first saw the plaintiff, declined to make a prognosis deferring instead to the plaintiff's regular general practitioner, Dr Bauer. Nevertheless, he did say that her injuries were only of the soft tissue type, and concluded his only report by saying: "I hope she will do well with exercises, physiotherapy and a trial of acupuncture would benefit." Dr Bauer, when he was asked for a prognosis responded on 12 February 1999 that it was uncertain, but that he would expect resolution over the next 6 to 12 months. Professor Taylor's prognosis was for a "slow and partial recovery over the next year or more." Dr Murphy, in February 2001, thought the plaintiff unfit for full time work for the following two years.
A year after the accident, Mr Semmens the psychologist, said this with regard to the plaintiff's prognosis:
"… I have concerns with the medium‑term resolution of her pain difficulties. This, however, is more an area for comment from an expert medical opinion rather than from myself. Mrs Marchant has made very good gains from a psychological point of view but, as mentioned before, I see her as somewhat fragile. Nonetheless, I would see her psychological prognosis as encouraging."
Dr Gee, in November 1998, expressed his desire to see the plaintiff make a prompt recovery, but said: "… issues such as distress, frustration and a tendency to tears are early warning signals of a prolonged process – which is clearly not in anyone's best interest".
In October 1999, Mr Peter Watson thought the plaintiff should be given a strict strengthening and exercise programme, and went on to say that he would be "…very surprised if she was not able to respond to that programme and to return to work, even to full time hours, within a period of 12‑18 months from now." Then in May 2001 Mr Watson wrote:
"I must say that I am somewhat surprised that her symptoms have not improved more despite the passage of 18 months of time, and I would be surprised if Mrs Marchant was unable to work in any clerical occupation at any time in the future.
Mrs Marchant, in my opinion, should still improve sufficiently for her to be able to return to work in a clerical occupation. I would be surprised if she could not return to part time work of up to 20 hours per week, and very surprised if, in the longer term in a further 12 to 18 months she could not return to full time work as she was prior to the motor vehicle accident.
It would be my opinion that Mrs Marchant has not been precluded from returning to work as a clerk, as she was pre‑accident.
The overall permanent disability I would place on Mrs Marchant, purely in relation to the motor vehicle accident would be a 5% (five per cent) permanent disability of the lumbar spine. I do not believe she will have any permanent disability of the cervical spine as a result of the motor vehicle accident.
Despite the rather disappointing improvement in the passage of the last 18 months, I would still be optimistic for Mrs Marchant's long term recovery given her MRI scan and examination findings. I believe that she will improve symptomatically over that time."
When Professor Hollingworth saw the plaintiff in March 2000, he expressed the view that all the investigations had failed to show any reason other than soft tissue injury for the plaintiff's symptoms. He said that the very minor facet joint degeneration shown on the MRI would not account for all of her symptoms and he expected the plaintiff would be able to return to her full time employment in due course. He was further of the opinion at that time that the plaintiff would not be left with any permanent impairment or disability or restriction in her choice of job opportunities. Professor Hollingworth was however, highly critical of the plaintiff's failure to make progress with her exercise programme, and whilst as his reports disclose, he was, generally speaking, quite sympathetic to the plaintiff, he thought she was not trying very hard to improve her position, although he did acknowledge that the plaintiff thought that she had tried.
By the time the plaintiff saw Dr Fitch in July 2002, he thought the plaintiff exhibited an abnormal pain response having regard to the radiological examinations and his clinical examination, and it seems he thought that after four years out of work, the plaintiff's prospects of returning to the workforce in the then foreseeable future were poor.
Dr Hagen thought the plaintiff was engaging in abnormal illness behaviour and required cognitive behavioural therapy to change her perception of herself. Importantly, he did not think that the plaintiff was malingering, ie, exaggerating her symptoms for monetary gain, or deliberately exaggerating her symptoms for what is sometimes called the secondary gain of all the attention that is focussed on the injured person. Rather, as I understood his evidence, he thought the plaintiff abnormally believed that she was sick, and there he thought was the place for cognitive behavioural therapy. Further, Dr Hagen testified that he had personal experience of people responding to cognitive behavioural therapy, and thought that the prospects of the plaintiff responding to it would be significantly enhanced once the litigation was concluded.
Finally, Dr Brash was unequivocally of the opinion that there was nothing wrong with the plaintiff. She had sustained a minor soft tissue injury which should have resolved such that she could resume the activities of daily living and full time employment immediately, from a physical point of view, although he acknowledged again, as with other medical practitioners, that the plaintiff was exhibiting abnormal illness behaviour.
My impression of the plaintiff
When I saw the plaintiff both whilst giving evidence and in court, I found her behaviour hard to reconcile with the fact that she has no discernable pathology to explain her symptomatology. In this regard I prefer the evidence of all of the other witnesses about the radiological signs of degenerative change in the plaintiff's spine to that given by Dr Fitch. In my opinion the radiological changes seen in the plaintiff are perfectly normal and do not explain her symptomatology, a view supported by the majority of medical practitioners.
Accepting that she did suffer a minor soft tissue injury, then her physical symptoms are out of all proportion to her injury, and have been and are being greatly exaggerated. I reject the submission of the defence that this however, is a malingering, or alternatively, a deliberate exaggeration of symptoms for rewards other than financial rewards. Initially I thought the plaintiff perhaps just one of those very gentle people who could not cope with any assault to her everyday life, lacking any robustness at all. However, in the line which separates very gentle from timid, in the end result I thought the plaintiff timid. Her personality came through as being fragile as described by Mr Semmens.
I should also observe that I noticed a change in her demeanour from when she was being examined to when she was being cross-examined. During her examination-in-chief, she presented as timid. She spoke barely above a whisper, and her voice often faded away so much so that she had to be reminded on a number of occasions, to speak up. Sometimes this can be a mechanism by which an untruthful witness will try and disguise his or her lack of veracity. But I do not think such is the case here. When she was being cross-examined however, apart from barely answering questions at all, she began to contort her face and grimace, and appeared as if she was bewildered by the questions she was being asked. Again, it is difficult to explain why this might be so, however, I have concluded that these are all part and parcel of her abnormal illness behaviour.
On the evidence as presented and particularly, having regard to Dr Hagen's evidence, I think it more probable than not that this motor vehicle accident has precipitated this behaviour in the plaintiff. For whatever reason she lacked the normal coping mechanisms most of us take for granted, such that what would be a minor set‑back for most people became major for the plaintiff. Psychiatric or psychological injury is of course compensable if caused by the negligence of the defendant, as is the case here.
I should not leave this discussion without recording my opinion of the surveillance evidence. Unlike Dr Fitch who thought the surveillance evidence clearly demonstrated the plaintiff's injury, I thought it did not. In particular, the video surveillance film of 30 November 2000 reveals a marked contrast in the plaintiff's capabilities. Initially she is seen walking with a slight limp, sometimes barely noticeable, and then she sits on a bench by the sea from which she gets up very stiffly and walks off slowly and with a slight limp. Then she is seen to stop and talk to someone, and during the course of the discussion the plaintiff looks animated and free in her movement. She hurries away from the other person at a markedly fast pace, showing no signs of any restriction in movement. When asked about this video in re‑examination (T176), the plaintiff said that she was talking to an older woman and that she wanted to get away from her because she had pains in her back. She said that she was talking and she was trying to get away, and in the video she said that she could see that "I know the pain. I just wanted to get home after my walk and rest my back." All I can say is it didn't look like that to me.
The plaintiff's husband impressed me as a dedicated family man, and I have no doubt that he now does most of the home making, and has a significant role in the care of his daughter. He was a witness of the truth.
Assessment of damages
Non pecuniary loss
In my opinion the preponderance of the evidence strongly suggests that if the plaintiff applies herself diligently to a full course of supervised physical rehabilitation, and undertakes cognitive behavioural therapy prescribed by Dr Hagen then she should be able to resume her pre-accident fitness within a period of 12 to 18 months at the most. There will then be no reason why she should not have another child as she and her husband planned and hoped for, and when the needs of the children permitted, there should be no reason why she should not return to work.
I accept the opinion of Dr Hagen and some of the other medical practitioners that once the plaintiff is relieved of the stress associated with these proceedings, one of the prime causes of her anxiety will have been extinguished and she will be psychologically more receptive to treatment. Nevertheless, for the past five and a half years the plaintiff has had her life significantly disrupted by injuries caused by the negligence of the defendant. Though the physical injuries were comparatively minor, they were the immediate cause of prompting an overly defensive reaction in a person naturally timid, and with a somewhat fragile personality.
Section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 requires me to assess the plaintiff's non‑pecuniary loss for pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life, and bodily or mental harm as a percentage of the maximum amount which may be awarded only in a most extreme case. Various medical practitioners have described the plaintiff's injuries at between 5 per cent and 20 per cent of loss of function of the spine expressed as a whole. Added to this I must assess the additional impact of the mental element of her non‑pecuniary loss, and I have come to the conclusion that the plaintiff's loss represents 15 per cent of a most extreme case. Presently amount A provided for by s 3C(1) of the Act is $249,000 and amount B (commonly called the threshold or the deductible amount) is presently $12,500 and hence the plaintiff's award under this head will be $24,850.
Economic Loss
The plaintiff's claim for economic loss has been complicated by Jessica's birth on 14 June 2002. The plaintiff testified (T66) that prior to her accident she and her husband planned for two children and that what they thought would happen was: "…I'd work up to the birth or one month before and then I'd take 12 months off, at least 12 months off, and go back to work part time until she was at kindergarten, pre‑school, and go back full time. That was the plan…we would have separated them [the births of the two children] probably when Jessica went to pre‑school, then I would have another one, probably three or four years' gaps." This is not a particularly unusual scenario these days, but I must say I am not persuaded that this is what the plaintiff would have done. The impression I gained from the type of person that she is, is that she would not have returned to work until her two children were at school, but she wasn't cross-examined about this.
Having regard to the matters already canvassed, I am of the opinion that the evidence establishes that the plaintiff has been unfit for work from the time of the accident, and allowing adequate time for full and appropriate rehabilitation, the plaintiff would remain unfit for work at least on a full time basis for the next 18 months. Since the birth of Jessica however, I think that the probabilities of the plaintiff returning to part‑time work as postulated, by June 2003 are evenly divided, and accordingly I propose to assess the plaintiff's claim for past economic loss on the basis that she was unfit for work until the birth of Jessica on 14 June 2002 and that she lost the prospect of returning to part time employment from 14 January 2003, and then assess the value of that loss from then until the date of this judgment.
According to exhibits 3 and 4 the plaintiff's calculation of past economic loss on the basis of a net income of $347.78 per week appears accurate. Her net pay for the fortnight ended 23 August 1998 was $693.50 which is very close to the $347.78 net per week calculated by reference to the Income Tax Returns, but it does show that to date the claim from the date of the accident is incorrect because the plaintiff was paid up to and including 23 August 1998, and whilst lost sick leave would be a factor if the plaintiff continued in the same employment, that is not the case here, and hence the calculation of past economic loss will run from 24 August 1998. I will also assume for the purpose of the calculation that the tax deducted included the Medicare levy.
Calculating then the plaintiff's past economic loss from 24 August 1998 until 14 May 2002, a month before Jessica's birth, there are a total of 194 weeks which at $347.78 net per week gives the sum of $67,469.32. From this must be deducted the sum advanced by the defendant on account of lost earnings namely, $36,514.33 resulting in an award for past economic loss in the sum $30,954.99.
To this must be added interest at 3 per cent for 5.7 years until judgment, and being the sum of $5,293.30.
As to the plaintiff's claim for future economic loss, I've come to the firm opinion that the plaintiff would not have resumed work between the birth of her children, and would not have resumed work until both children were either at school or Jessica was in school, and the next child old enough to go into day care or kindergarten, by which time the plaintiff should well and truly have recovered from her psychiatric injury. Nevertheless she has lost the opportunity of working between 14 June 2003 and the period when I expect that given appropriate treatment she will be fit to resume full time employment in about November 2006, and a global award is therefore indicated which I fix conclusive of the lost prospect of superannuation in the total sum of $5,000.
Past superannuation
The plaintiff has lost the benefit of her employer's contributions towards her superannuation at an average rate of 7.5 per cent per annum of her gross earnings of $22,063 per annum for the period from 24 August 1998 until 14 May 2002 when she would have stopped work to have Jessica, a period of 3.72 years. The resultant sum of $6,155.57 needs to be reduced by 30 per cent to take account of the approach used in Jongen v CSR Ltd & Anor (1992) A Tort Rep 61,706. The award is therefore $4,308.90.
Gratuitous Services
The plaintiff makes a significant claim for gratuitous services seeking $20,520 for those rendered in the past, and $23,730 for those to be rendered in the future. The defendant disputes both claims and submits that there should be no allowance for any gratuitous services at all on the basis that the need for them has not been established. The evidence with regard to gratuitous services, whilst not extensive, was that the plaintiff's husband now does a considerable portion of the work done within the household. There are some complicating features of this however. The first being the birth of Jessica, and the second being that on Mr Marchant's own admission, he did little in the way of household duties before the plaintiff's accident, spending most of his leisure time working on his cars. His contribution was to the heavier work around the garden of the house, but even then the plaintiff said that she was interested in the garden as well and did some of the work there too. The hourly rate at which any award for gratuitous services should be allowed was agreed between the parties at $12 an hour, and on the evidence presented I think the evidence establishes that the defendant's negligence created a need for Mr Marchant to provide services to his wife that she would ordinarily have performed, and which would represent a fair share of the household work load which I allow three hours per week for the period from 18 August 1998 until the date of judgment, a period of 5.7 years. The resultant sum is $10,670.40.
As to the future, allowing 18 months for the plaintiff's recovery of her pre‑accident levels of fitness and mental health after undergoing the recommended courses of treatment set out by Dr Hagen (and others), I think it more probable than not that Mr Marchant's services will average out at about 2 hours per week over this period, calling for an award of $1,872. I should say that I see no need to apply a discount table to an amount that is relatively modest for a period that is very short.
Past paid services
The plaintiff makes a claim for $1,736.15 for services which she has paid for in the past, and being for Dial an Angel, Weeding Women and Flying Domestics. Having regard to the nature and extent of her psychiatric disability which has been quite debilitating, I formed the opinion that the evidence discloses a need for these services when they could not be delivered by Mr Marchant, and accordingly I will allow the sum claimed, and there will be an award to comprise $1,736.15.
Future paid services
The plaintiff claims for services to be rendered to her in the future, being for baby sitting and household assistance whilst her husband is away, and while she attends to all of the various therapies that she must undertake in order to recover her pre-accident levels of fitness. Again, I would have thought that these would average out at two hours per week for the next 18 months. These services cannot be obtained as cheaply as those rendered by Mr Marchant, and must be paid for at the commercial rate of $17.50 per hour, and there will be provision in the award therefore to cover this cost of $2,730.
Special damages
The plaintiff claims for "special damages" in accordance with the schedule which became exhibit 6. The defendant has agreed the amounts but not the need for the treatment. The evidence establishes the need for treatment in my opinion, the defendant failing to distinguish between the need for treatment and its failure. I decline to make any allowance however, for the provision of items for Jessica as claimed, being a swivel jogger, a baby change table and an Aria Grey stroller because all of these items are required by new parents in any event, and the evidence did not establish any particular need for them in my opinion, and accordingly, the total amount allowed will be $4,488.65. Of this sum interest should only be allowed on the amounts that have so far been paid by the plaintiff, namely $1,179 which will be allowed at 6 per cent per annum because most of the accounts were paid many years ago, and hence, for 5.7 years the amount allowed is $403.22.
Travelling expenses
The evidence discloses that the plaintiff undertook the travelling itemised in the schedule which came into evidence as exhibit 8, and as the rate of 30 cents per kilometre was agreed by the defendant, there will be an award in the sum claimed of $3,139.20.
As to the future, there will be a limited need for further travelling whilst the plaintiff attends all of the therapy she must attend in order to regain her pre-accident fitness, and I will allow a global amount of $100 to cover these costs.
Future treatment
The plaintiff makes a significant claim for the cost of further treatment, however, in my opinion the evidence only discloses a need for her to visit her general practitioner perhaps for four times over the next 18 months to obtain medication, review progress and the like, and at $31.20 per visit, and the sum allowed here is $124.80. For the supervised rehabilitation exercise regime, hydro-therapy, massage and physiotherapy recommended by the various specialists to assist the plaintiff to regain physical fitness all the medical practitioners say the plaintiff must undertake, I allow the sum of $2,000.
Looking at the psychiatric therapy the plaintiff requires, and the cognitive rehabilitation therapy recommended by Dr Hagen, together with the schedules of costs appended to his reports, the evidence discloses that the plaintiff will need approximately 10 sessions with a psychiatrist at $178 per session for a total cost of $1,780, and then for cognitive rehabilitation therapy, I allow 20 sessions at $172, the total sum of $3,440. I appreciate that Dr Hagen thought the plaintiff may require 15 sessions, but having regard to the entrenched nature of her abnormal illness behaviours, I'm allowing extra sessions so that the plaintiff can undergo intensive cognitive rehabilitation therapy in the early stages of her treatment. The total award under this head of claim therefore is $7,344.80.
Future medication
As the plaintiff weans herself off drugs over the next 18 months or so, and follows the treatment regime recommended by Dr Hagen, her need for medication will reduce, and I make a global assessment for future medication of $700.
Summary
In summary therefore, the plaintiff's award will be as follows:
Non pecuniary loss $24,850.00
Past economic loss $30,954.99
Interest on past economic loss $5,293.30
Future economic loss $5,000.00
Past loss superannuation $4,308.90
Past gratuitous services $10,670.40
Future gratuitous services $1,872.00
Past paid services $1,736.15
Future paid services $2,730.00
Special damages $4,488.65
Interest on special damages $403.22
Travelling expenses $3,239.20
Future treatment $7,344.80
Future medication $700.00
Total$103,591.61