Maric v Nguyen
[2020] WADC 2
•17 FEBRUARY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MARIC -v- NGUYEN [2020] WADC 2
CORAM: LONSDALE DCJ
HEARD: 24-26 JULY & 2 AUGUST 2019
DELIVERED : 17 FEBRUARY 2020
FILE NO/S: CIV 1523 of 2016
BETWEEN: JELENA MARIC
Plaintiff
AND
VAN TOM NGUYEN
Defendant
Catchwords:
Personal injuries - Assessment of damages - Injury to right wrist - Turns on own facts
Legislation:
Evidence Act 1906 (WA), s 79C
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C
Result:
Judgment for the plaintiff in the sum of $1,037,800
Representation:
Counsel:
| Plaintiff | : | Mr B L Nugawela |
| Defendant | : | Mr G P Bourhill |
Solicitors:
| Plaintiff | : | Friedman Lurie Singh & D'Angelo |
| Defendant | : | Tottle Partners |
Case(s) referred to in decision(s):
Bowen v Tutte (1990) Aust Torts Reports 81‑043
Cohen v Ninkovic [2000] WASCA 169
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Montemaggiori v Wilson [2011] WASCA 177
Shire of Leonora v Cooper [2008] WASCA 247; (2008) 51 MVR 397
Teubner v Humble (1963) 108 CLR 491
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
LONSDALE DCJ:
Introduction
On 4 February 2015 the plaintiff, who was then a 38‑year‑old hairdresser, was injured in an accident whilst riding her motorcycle.
The plaintiff, who is right hand dominant, sustained a number of injuries the most significant of which was a comminuted fracture to her right wrist. As a consequence, she is permanently disabled. She continues to suffer pain and discomfort. She has not worked since the accident and is unable to work as a hairdresser again.
The defendant has admitted liability and the matter came before me for an assessment of damages.
The medical evidence
Immediately after the accident the plaintiff was taken to Royal Perth Hospital. X‑rays showed a comminuted intra‑articular fracture of the right distal radius and widening of the scapho‑lunate interval indicating ligamentous injury. Two days later, the plaintiff underwent surgery to have the fracture openly reduced and internally fixated with a plate and screws. She was discharged from hospital on 7 February 2015 with a splint.[1]
[1] Exhibit 1, page 11 (report of Dr Ron Hirsh dated 8 April 2015).
The plaintiff was reviewed by her general practitioner Dr Penny O'Sullivan two days after being discharged from hospital. Dr O'Sullivan noted tenderness through the plaintiff's right leg, bruising, soft tissue injury, tender muscular trigger points, shoulder pain, right lower back pain and lateral chest wall pain.[2]
[2] Exhibit 1, pages 1 - 3 (report of Dr Penny O'Sullivan dated 11 March 2015).
Following Dr O'Sullivan's review, the plaintiff continued to experience numbness in the right middle and ring fingers.[3]
[3] Exhibit 1, pages 4 - 9 (report of Dr Ron Hirsch dated 12 March 2015).
Dr O'Sullivan reviewed the plaintiff again in February and March 2015. She concluded that the plaintiff was not fit to return to work but thought she was unlikely to suffer permanent disability.[4]
[4] Exhibit 1, pages 4 - 9 (report of Dr Penny O'Sullivan dated 22 April 2015).
In June 2015 the plaintiff consulted hand, wrist and elbow surgeon, Mr Jeff Ecker who recommended arthroscopic examination of the wrist and distal radioulnar joint to determine whether the plate and screws should be removed and whether fusion should be undertaken.[5] Mr Ecker conducted arthroscopic surgery on 17 July 2015 and referred her for hand therapy.[6]
[5] Exhibit 1, pages 13 - 14 (report of Mr Jeff Ecker dated 9 June 2015).
[6] Exhibit 1, page 19 (report of Mr Jeff Ecker dated 17 July 2015).
Two weeks later, Mr Ecker reviewed the plaintiff and noted her ongoing pain, depression and lack of sleep. He suggested removal of the plate to remove some of the pain and improve her function. Her other options were to accept the pain or consider radioscapho‑lunate fusion with excision arthroplasty of the distal scaphoid.
Mr Ecker thought that ultimately the plaintiff may require a full wrist fusion but noted that, as a hairdresser, she would need a functioning wrist that moves to an optimal level. Mr Ecker thought a limited wrist fusion would result in an approximately 60 degree arc of motion which was not a normal range but hopefully sufficient for her to continue cutting hair. As a full fusion would make it difficult for the plaintiff to continue cutting hair, Mr Ecker recommended proceeding with a limited intercarpal fusion (and considering having a full wrist fusion later). He recommended referral to a psychologist as she appeared to be depressed.
By October 2015 the plaintiff had moved to Queensland to live. There she sought an opinion from Dr Peter Rowan, a specialist in shoulder, elbow and hand surgery. Dr Rowan agreed with Mr Ecker's recommendation for a limited wrist fusion. He considered that the plaintiff might require a full wrist fusion later in life.[7]
[7] Exhibit 1, pages 24 - 25 (report of Dr Peter Rowan dated 27 October 2015).
In November 2015 the plaintiff returned to Perth so that Professor Rene Zellweger, a specialist hand surgeon, could operate to remove some bone formation, the plate and screws.[8] Following that surgery, the plaintiff returned to Brisbane. She developed a post‑operative infection and was admitted to hospital for antibiotic treatment in January 2016.
[8] Exhibit 1, page 27 (report of Professor Zellweger dated 7 December 2015).
In March 2016, the plaintiff consulted Dr Mark Ross, orthopaedic surgeon. Dr Ross noted that the wrist was very stiff; it was fixed in slight extension of 5 degrees and only extended a further 5 degrees ‑ 10 degrees from that position. There was a 5 degree arc of motion with no flexion and was very painful. There was hardly any radial or ulnar deviation. There was 70 degrees supination and 50 degrees pronation. There was some finger stiffness, although it was not severe.[9]
[9] Exhibit 1, page 37 (report of Dr Mark Ross dated 6 November 2017).
On 12 May 2016, Dr Ross performed partial fusion on the plaintiff's wrist. Two months later the fusion had healed. Dr Ross noted that the wrist was solid 'from a structural point of view' but that the plaintiff was continuing to have problems with pain and stiffness in her wrist and fingers.[10] Little changed over the next six months.
[10] Exhibit 1, page 39 (report of Dr Mark Ross dated 6 November 2017), exhibit 7 (photographs).
In August 2016, the plaintiff consulted orthopaedic surgeon, Dr Steve Csongvay who reported that there was 'significant non‑union' of the wrist. Dr Csongvay thought the most advisable option was for her to have a complete wrist fusion; this would result in her continuing to have a stiff wrist but significantly less pain.[11]
[11] Exhibit 1, pages 28 - 29 (report of Dr Steve Csongvay dated 8 August 2016).
In October 2016, the plaintiff saw Dr James Thomas, a consultant pain management specialist who noted that the plaintiff had allodynia, dysaesthesia, stabbing, needling and burning pain. He diagnosed complex regional pain syndrome. He saw her again in September and recommended Pamidronate infusions (which she ultimately received in June 2018).
In May 2017, Dr Ross reported that the plaintiff was suffering significant levels of pain (which she had been treating with the drugs Targin and Endone). Dr Ross observed relatively poor motion of the wrist which was stiff at 25 degrees of extension.
Dr Ross next reviewed the plaintiff in September 2017 and noted poor response to topical pain management cream. Finger motion was improving but the plaintiff was suffering ongoing chronic pain.[12] Dr Ross reported that the plaintiff continued to suffer complex regional pain syndrome. The plaintiff was reviewed by Dr Leigh Atkinson, neurosurgeon some six months later. Dr Atkinson concluded that the plaintiff did not meet the diagnostic criteria for complex regional pain syndrome. Dr Atkinson doubted there would be any benefit to further surgery and suggested review by another orthopaedic surgeon.
[12] Exhibit 1, pages 36 - 42 (report of Dr Mark Ross dated 6 November 2017).
At about this time the plaintiff was referred by the defendant's insurer to Dr Stephen Coleman, a hand and upper limb surgeon. Dr Coleman considered that the plaintiff should undergo a wrist fusion because the plaintiff did not have complex regional pain syndrome (which is a contraindication for undergoing a full wrist fusion). Dr Coleman thought the plaintiff's pain would not improve otherwise. He noted the plaintiff's reluctance to have further surgery but thought that a fusion was a reasonable option in the long term.
Since the accident the plaintiff has attended numerous sessions of hand therapy (up to three times per week) with fluctuating (but limited) gains in her range of motion and pain levels.
Plaintiff's education and work history
The plaintiff gave evidence. She was born on 24 April 1977 in Bosnia‑Herzegovina. She lived there until she was 7 or 8 before moving to Serbia where she completed secondary schooling at the age of 17. The plaintiff then travelled to the United States on a basketball scholarship at a school in Wyoming.
After finishing school in Wyoming the plaintiff commenced studying business administration at Santa Monica College in Los Angeles. She did not complete that course and moved to Brisbane with her family.
From 1997 to 2001 the plaintiff completed a hairdressing certificate and apprenticeship. Following this she specialised for two years in high fashion hairdressing. In total, she trained for six years.
The plaintiff claimed to have received hairdressing stylist awards in 1999 and 2000.
The plaintiff's employer in Queensland was Finlay Otago. He was a master hairstylist. His hairdressing salon catered for a high‑end clientele in a cultural and artistic hub of West Brisbane. The plaintiff was then earning approximately $910 net per week.
In 2002, the plaintiff moved to Tokyo to take up employment as a senior hair stylist. She remained there until September or October 2008.
Whilst working in Tokyo the plaintiff taught English to Japanese children two days a week. She did this in order to improve her language skills and understanding of Japanese culture. She said that teaching English paid well, but she was unable to give any details.
The plaintiff left Japan in 2008 for Serbia with her (Serbian) partner, who had been diagnosed with terminal cancer. After her partner died, the plaintiff returned to Tokyo to work in a high end hair salon. After working in Tokyo for a further period of time, the plaintiff travelled for about two years. In this time she supported herself financially by renting out her apartment in Belgrade (which she had purchased whilst she was living and working in Japan).
In April 2012 the plaintiff came to Australia to visit her family and stayed for three and half months before going to Europe. At the beginning of 2013 she had a skiing accident whilst holidaying in France. This resulted in her requiring knee surgery from which it took about a year to recover.
In 2014 the plaintiff's friend Patricia Byrne who was the proprietor of McMillans hair salon (McMillans) in King Street, Perth offered her employment as a hairdresser. The plaintiff commenced work there on 9 December 2014. She had been working there five and a half weeks when she was injured in the accident. She has not worked since.
Evidence of loss of earning capacity
Mr Otago gave evidence for the plaintiff. He knew of the salon in Japan where the plaintiff had worked. He thought the plaintiff could have worked as a master stylist because was a skilled colourist and cutter. She was one of his favourite employees. Mr Otago said that when he retired in 2008 a good master stylist would earn approximately $1,459 net per week.
Documentary evidence revealed that whilst working in Japan in 2007 the plaintiff earned approximately $1,826 net per week before a living tax of $1,200 was withheld in that year, or possibly other years (as to which the plaintiff was unsure).
Ms Byrne (who had met the plaintiff in the salon in which they had both worked in Tokyo) knew her as a competent all‑rounder. Ms Byrne's offer of employment was on an income sharing basis. The plaintiff entered into a lease arrangement with Ms Byrne whereby she would pay Ms Byrne 30% of her takings as rent and would receive 25% commission on all retail sales.
Records reveal the plaintiff to have earned an average of $966 net per week in the five and a half weeks she worked for Ms Byrne before the accident.
Between 5 January 2014 and 5 September 2014 (a 35 week period) two other contractors had earned $80,514 and $72,048 gross respectively - or $2,300 and $2,058 gross per week respectively. This amounted to $1,642 and $1,495 net after tax. After deductions for rent and GST, their net income worked out to just over $1,000 per week.
The evidence as to the earnings of employees at McMillans was difficult to analyse. There was a paucity of information about what hours they worked, and how experienced and competent they were. They were all subcontractors.
Ms Byrne no longer owns the salon but presently works there as a paid employee. Her income last year was $90,000 gross per annum or $1,730 gross per week. This amounts to $1,296 net per week.
At the time the plaintiff commenced work with Ms Byrne, she claimed to have been offered work at a salon in Tokyo (known as the Gold Salon). She claimed she intended to accept the offer some time in the near future.
The plaintiff tendered (with the consent of the defendant) a document purporting to be a written offer of employment from the Gold Salon in Tokyo.[13] The plaintiff did not however call the author of that document and the defendant disputed the veracity of its contents.
[13] Exhibit 2, pages 48 ‑ 49.
It is unnecessary for me to make a determination as to the veracity of the purported offer in that document because the document is hearsay and does not otherwise meet the criteria for admissibility under s 79C of the Evidence Act 1906 (WA). Consequently, it is not appropriate to assess the plaintiff's loss of earning capacity based on that document.
I accept that the plaintiff may well have been considering returning to Japan at some point in the future but I find she had no firm plans in that regard.
Findings of fact in relation to plaintiff's earning capacity
The plaintiff submits that a net loss of $2,000 net per week is a realistic estimate of the plaintiff's loss of past and future earnings. I consider that figure to be too high: there is no evidence that the plaintiff had in fact attained the status of master stylist and no evidence that this was a realistic sum for employed hairdressers in Western Australia. Also, the plaintiff had not worked in Perth previously and had not worked in Australia for some years. She had no certain plan for her future employment. There was no evidence about the labour market for hairdressers in Australia or abroad.
The defendant's position is that past loss of earnings should be calculated on the basis of a loss of $1,000 net per week. The defendant relies on the evidence of what the plaintiff earned in the five and a half weeks prior to her accident and other contractors employed at McMillans.
In my view, the figures proposed by the defendant are too low given the plaintiff's skills, experience, reputation in the hairdressing industry and capacity for hard work. I find the evidence of Ms Byrne and Mr Otago to be persuasive on this point.
The plaintiff had skills and experience as a hairdresser above the norm. Even before the plaintiff had left for Japan, Mr Otago regarded her as 'exceptional' and as capable of performing many of the tasks of a master stylist.
Mr Otago's evidence was that (in 2002) a good master stylist in Australia could have earned approximately $100,000 gross per annum ($1,900 gross per week or approximately $1,400 per week net). Although his opinion was based on somewhat antiquated evidence it seems unlikely that salaries for highly skilled hairdressers would have significantly decreased.
Ms Byrne's evidence was that after five and half weeks working for her the plaintiff 'had not really started' (with the expectation that the plaintiff's work output would have increased over time). Ms Byrne hoped that the plaintiff would take over the running of the salon whilst she took some time off.
I consider that the evidence of what Ms Byrne presently earns is a more realistic comparator for what the plaintiff could have earned in time.
If I extrapolate from the evidence of what Ms Byrne presently earns working three to five days per week, I arrive at a figure of $150,000 gross per annum or $2,885 gross per week ($1,998 net per week after tax). However, Ms Byrne had previously owned her own hair salon and so I must inevitably conclude that she had an established reputation in Western Australia and a regular clientele. Consequently, I consider it is appropriate to temper the comparison between the earning capacity of Ms Byrne and the plaintiff.
Doing the best I can in the circumstances, I will assess the plaintiff's economic loss on the basis that for the first six months after she commenced at McMillans her income would have been approximately $1,000 net per week. Thereafter it is likely to have increased to $1,200 net per week. Then after 12 months I would have expected she could have earned $1,500 net per week.
In my view, it is also reasonable to assess the plaintiff's future loss of earning capacity using the same weekly amount (subject to any findings as to retained earning capacity).
The plaintiff submits that whilst in theory she has the capacity to find alternative employment, in reality she is effectively unemployable. This is evidenced by the fact that she has not worked since the accident because of her significant disability and a present absence of realistic alternative employment options.
The defendant does not suggest that the plaintiff has failed to mitigate her loss (Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 22 ‑ 23) and accepts that to date she has been unable to work in any capacity. However, the defendant submits that the plaintiff has a retained earning capacity on the basis that, were she to undergo a course of study and retrain, she would ultimately return to her pre‑accident earning capacity.
The defendant adduced evidence from the psychologist Jacqui Rochester. Ms Rochester's evidence was the plaintiff had self‑referred to her on the suggestion of her solicitor in Perth. Ms Rochester provided the plaintiff with advice concerning potential courses of study and alternative careers.[14]
[14] Exhibit 14 (report of Jacqueline Rochester dated 22 October 2018).
The plaintiff agreed that Ms Rochester had suggested she consider courses in psychology and criminology. The plaintiff had emailed Ms Rochester to say she had attended some classes (to gauge her interest). She found the criminology and psychology course interesting. She thought the information technology course was also 'OK'.
Ms Rochester assessed the plaintiff as suitable for other vocations. She identified possible roles as an economist/economic analyst, management consultant, business analyst, intelligence analyst or policy analyst. She agreed that these roles all required the plaintiff to have a university degree such as in economics, finance, criminology or psychology.
Ms Rochester ruled out the plaintiff being employed as a sales representative or hair salon manager because it would require her to lift and carry stock or require hands on work with clients. She considered that the plaintiff's reported physical restrictions would impact on her ability to work as an IT/computer programmer or technical officer.
Ms Rochester agreed in cross‑examination that she had not considered the affect of the plaintiff's physical impediments (such as the ability to type) on her ability to complete a university degree.
The plaintiff described her present typing tolerance as 45 minutes. In cross‑examination she denied that voice recognition dictation was a viable alternative to typing because she had tried it but found that (because of her accent) it did not work. She tried using it in Serbian but because of a lisp found it hard. She agreed with counsel for the defendant that it was necessary to spend some time training but had tried to no avail.
The question of whether the plaintiff would be capable of completing a university degree highlights an area of controversy in the case ‑ namely whether the plaintiff should have a full wrist fusion in the expectation that it will reduce her pain.
In their earlier reports, Mr Ecker and Dr Ross had expressed reservations about whether a full wrist fusion was desirable. However, neither has seen the plaintiff for some time. Also, any reservations Mr Ecker had about the plaintiff having a full wrist fusion were made in the context of a then hope that the plaintiff might retain some range of motion to enable her to continue cutting hair. Now that it is accepted she can no longer work as a hairdresser, this is no longer a dominant concern.
On 12 March 2019, Dr Leigh Atkinson expressed the opinion that the plaintiff did not have complex regional pain syndrome. He expressed some reservation about the place for further surgery.[15]
[15] Exhibit 1, page 143 (report of Dr Leigh Atkinson dated 28 March 2019).
However, Dr Coleman considered that the plaintiff should undergo a wrist fusion because the plaintiff did not have complex regional pain syndrome (which is a contraindication for undergoing a full wrist fusion). Dr Coleman thought the plaintiff's pain would not improve otherwise. Dr Coleman noted the plaintiff's reluctance to have further surgery but thought that a full fusion was a reasonable option in the long‑term.
Dr Stephen Coleman expressed his opinion that the plaintiff should have a full wrist fusion thus:[16]
The main consideration for a full wrist fusion is that it has a chance of reducing her current pain. There are some uncertainty as to whether exactly the pain is coming from but I suspect it is in the mid‑carpel joint. Prior to any wrist fusion, I would anticipate the treating doctor would firstly try a local anaesthetic into the mid‑carpal joint to see if this settles the pain. Apparently, Ms Maric did have such a procedure in November 2017 by Dr Thomas. I would also recommend a CT scan to confirm that there may be some problem with the mid‑carpal joint that could explain her pain. The previous proximal radial fusion is solid, and the case of her pain is not non‑union from the procedure of Dr Ross …
I do not see any reason for Ms Maric not to undergo a wrist fusion. There has been no recent suggestion of infection. She does not have complex reginal pain syndrome and although this is a rare complication for surgery to an upper extremity, there is no specific reason that this will occur or be a contraindication for undergoing a full wrist fusion. It is similar to the partial wrist fusion that she previously had by Dr Ross.
…
There has been little change in Ms Maric's pain, and one therefore is less optimistic about any improvement in her current pain unless further treatment is carried out. One would normally expect to allow at least 12 months for resolution of pain, but this timeframe has now elapsed.
[16] Exhibit 1, pages 18 - 121 (report of Dr Stephen Coleman, 11 March 2019).
Dr Coleman's opinion is also consistent with the opinion of Dr Steve Csongvay who, in August 2016 reported that there was 'significant non union' of the wrist and, were the plaintiff to undergo a complete wrist fusion, this would result in her continuing to have a stiff wrist but significantly less pain.[17]
[17] Exhibit 1, pages 28, 29 (report of Dr Steve Csongvay dated 8 August 2016).
Having regard to these opinions, the preponderance of medical evidence does (in my view) suggest a full wrist fusion would now be beneficial.
The plaintiff's position was that she had feared that having a wrist fusion might well worsen - or not result in a significant improvement in her pain. However, in her evidence the plaintiff said she had (recently) spoken to Dr Coleman who told her that the fusion will reduce rather than increase her pain. On the basis of that advice, she believes she will have that procedure.
Should the plaintiff undergo wrist fusion and her pain is reduced, I see no reason why she could not complete the necessary study in order to qualify for the alternative vocations identified by Ms Rochester - or indeed other similar vocations.
My observation of the plaintiff in the witness box was that she was quick witted and intelligent. She was not cognitively impaired by pain, even though pain is a constant feature of her life.
The plaintiff has a good academic record. Her Serbian school grades showed that she completed an accelerated high school programme achieving very high grades. She also completed a high school diploma in the USA, again achieving good grades. She had enrolled at the Mining and Geological Faculty in Belgrade but did not proceed with study due to her deciding to emigrate to Australia.
The plaintiff is fluent in a number of languages including Serbian, Bosnian, Croatian and English. She also speaks some Japanese, Italian and Greek. She has skills in administration, information management and customer service.
Dr Ki Douglas, occupational physician, thought that the plaintiff did have some function enabling her to use a computer and a phone and was able to write slowly with the right hand, but not for long periods. Dr Douglas suggested that she could use voice activated software on a computer with retraining.
Although the plaintiff claimed to have not had much success with the use of voice activated software, I consider that it is likely that the plaintiff would be able to use a dictation program (such as Dragon) provided she persevered and received training.[18]
[18] Exhibit 1, page 57 (report of Dr Ki Douglas).
Dr Douglas reviewed the plaintiff in February 2018. Dr Douglas thought the plaintiff would be unable to do a job which required the use of both hands because of the limited movement in the right wrist; nor was she able to perform tasks which required lifting or which required her to use two hands. Dr Douglas thought the plaintiff was suitable to a sedentary job using her left upper limb only. Ms Rochester had dismissed the idea of employment as sales representative, for example, because of the need to lift and carry boxes.
Some allowance must be made for the fact that as the plaintiff is at a disadvantage in terms of the tasks that she can do, she is likely to be less attractive to potential employers and is less capable of earning an income: Shire of Leonora v Cooper [2008] WASCA 247; (2008) 51 MVR 397 [46], [50].
Despite the plaintiff's disability and current pain levels, I am of the view that she has a significant retained earning capacity for the following reasons.
The plaintiff is only 42 years of age and would be able to retrain. She is highly intelligent and has a good academic record making it likely she would be accepted into a university course. She impresses as being a highly motivated individual and I have no doubt she would easily pass.
Although the plaintiff has significant physical restrictions, there is technology (such as voice activated computer software) which, provided it is adapted to her needs and she receives training, would enable her to study and obtain employment in one of the occupations identified by Ms Rochester. No doubt there are other occupations which she would be suited to. For example, she has the skills to work as an interpreter, provided she completed the necessary study to qualify. I consider that in time she will be able to equal or exceed her earnings as a hairdresser.
Despite the plaintiff's physical restrictions, she is capable of performing tasks which do not require her to be physically active.
As the plaintiff is to be compensated for loss of earning capacity it is not necessary for me to make a finding as to the specific career path the plaintiff would have followed had she not been injured. What I must determine is the economic value of her lost earning capacity had she chosen to exercise it.
Ms Rochester gave evidence about suitable courses of study and potential occupations consequent upon completion of those courses. It is true, as the plaintiff pointed out, that there was no evidence as to the market for the type of employment she considered to be suitable. But the assessment of damages for loss of earning capacity is not an exact science and need not involve a mathematical calculation. Assessment of loss of earning capacity is to be assessed according to considerations of practical common sense having regard to the facts of the particular case: Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, 343; Insurance Commission of Western Australia v Weatherall [2007] WASCA 264 [241]; Montemaggiori v Wilson [2011] WASCA 177 [28].
Notwithstanding that neither party adduced evidence of the availability of employment within the plaintiff's capacity or evidence as to how much she could have earned in such employment, I must do my best to place a value on her loss of earning capacity: Bowen v Tutte (1990) Aust Torts Reports 81‑043, 68,086; Insurance Commission of Western Australia v Weatherall [236] ‑ [239].
There are two ways in which I can assess the plaintiff's retained earning capacity. I can either assess it as a percentage of her pre‑injury capacity: Bowen v Tutte. Alternatively, I can make a modest global allowance taking into account her significant retained earning capacity and other contingencies: Shire of Leonora v Cooper [51]; Cohen v Ninkovic [2000] WASCA 169.
In my view, the most practical approach is to allow for a period of time for the plaintiff to have a wrist fusion, to study or retrain, then a further period to enable her to obtain employment. I will then make an allowance for an ongoing loss of earning capacity.
I will allow six months for the plaintiff to have surgery and recover, three years to complete a degree or retrain for an alternative occupation and a further six months for her to seek employment.
To calculate her future loss of earning capacity, I will do this in two parts. I will first allow $1,500 per week for four years and then make a global award to represent her loss of earning capacity consequent on her physical disabilities.
In my view, doing the best I can, a global award of $100,000 for ongoing loss of earning capacity is appropriate.
Contingencies for past and future loss of earning capacity
Courts in Western Australia have adopted a discount for future contingencies at between 2% and 6%: Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298 [161], [179] and [189] (and authorities cited therein).
In this case, I consider that the discount for contingencies should be at the upper end of that range to account for the possibility for example that the plaintiff, had she chosen to remain a hairdresser, may have developed a repetitive strain injury (as did Mr Otago). I will allow a discount of 6% for contingencies.
Calculations as to past loss of earning capacity
The calculations for past loss of earning capacity are as follows:
•For the first six months after the accident (February 2015 - August 2015): $1,000 per week x 26 weeks = $26 000.
•For the second six months after the accident (August 2015 - February 2016): $1,200 per week x 26 weeks = $31,200.
•For the period 4 February 2016 - 17 February 2019: $1,500 x 211 weeks = $316,500.
•Total past loss = $373,700.
•Less contingences of 6% = $351,278.
Interest past loss of earning capacity
The plaintiff has already received the sum of $79,905 as advance payment for loss of earning capacity. Therefore interest should be calculated on the allowance for past loss less that amount ie: $271,373.
The interest on past loss at 3% for the 5.05 years from the date of the accident is therefore $41,113.
Calculation as to future loss of earning capacity
My calculation of future loss of earning capacity for the first four years at $1,500 per week is:
•$1,500 x 177 (being the 6% multiplier for 4 years less 9 weeks) = $265,500.
•Less contingencies of 6% = $249,570.
•A global award of $100,000 for a reduction in earning capacity.
•Total loss of future earning capacity - $262,260 + $100,000 = $349,570.
Loss of superannuation
The plaintiff was not paid superannuation whilst in Japan where she worked as a subcontractor. When she returned to Australia she also worked as a subcontractor and was not paid superannuation.
There was no evidence that the plaintiff would have continued to work as anything other than a subcontractor, or self‑employed sole trader. Therefore there is no basis to allow for past or future loss of superannuation.
Non-pecuniary loss
The plaintiff testified that before her accident she was very active. She used to train in 'Krav Maga', a form of Israeli martial arts. She had played basketball, soccer, ping pong, tennis and had previously enjoyed outdoor pursuits such as skiing, hiking, rock climbing, skateboarding, windsurfing and kite surfing.
The plaintiff's evidence suggests she was very good at sport. When she was a child, the plaintiff was a table tennis champion and claims to have won a national competition in Czechoslovakia at the age of 11.
She described herself as a 'really good' skier and 'amazing' at basketball (hence her scholarship to university in Wyoming). She is now able to shoot basketball hoops but only with her left hand. Since the accident she has been unable to engage in any sport (although she does some swimming, using a special splint designed for that purpose).
Prior to the accident the plaintiff would play soccer about once a week. She no longer plays soccer because she fears her hand being knocked. (On one occasion she knocked her hand, causing it to become really swollen and painful and was unable to sleep for about 10 days.)
The plaintiff described motorcycle riding as one of her passions, but she has not been able to ride a motorcycle since the accident.
The plaintiff used to lead an active social life which involved going to fashion shows, clubs and dining out. Since the accident, she has been unable to afford to go out.
The plaintiff is in constant pain. At the time she gave her evidence she described her level of pain at 4 or 5 out of 10.
I observed the plaintiff to be wearing a splint. She has a total of seven splints which she uses depending upon the activity she is engaging in.
In the witness box, the plaintiff demonstrated her ability to extend and flex. I observed, consistent with her counsel's description, that she had about 5 degrees of extension. She described how, on days when her pain increased, her fingers would have the appearance of having big sores causing pain to spread through her hand into her elbow.
She described sharp pain radiating from the back of her wrist up her forearm, past her elbow and into the upper right side of the neck resulting in cramps.
The plaintiff described constant pain in the middle of the dorsal aspect of her wrist which sometimes becomes unbearable and is 'like someone stabbing you'.
The plaintiff has had over 200 sessions of hand therapy but denies that hand therapy decreases her pain. She finds some release with the use of a TENS machine. She uses an electronic muscle stimulator (EMS) machine to prevent atrophy of her muscles.
The plaintiff achieved limited relief from the use of a Ketamine cream and a Pamidronate infusion but they made her feel sick, weak, unable to move and feeling like a 'space cadet'.
The drugs Targin and Endone caused her mood swings, sleepiness and irritability. She has tried herbal pain medicine and tried 'mirror box therapy' (a therapy designed to trick your brain into not feeling pain) but did not find it helpful.
The accident has prevented the plaintiff from doing a job she loved. She has been affected financially, physically and mentally. She describes feeling depressed and living with her parents because she has no other choice.
The plaintiff has significant scarring on her hand and wrist which has unsightly hair growth.
The plaintiff passes her time reading, going to therapy, spending time with her brother's children and taking them to school. Her social life is virtually non‑existent and she does not have many friends in Brisbane.
It is plain from the evidence of the plaintiff (supported by the medical evidence) that the plaintiff has suffered, and for the foreseeable future, will continue to suffer significant pain and discomfort. Her injuries have had a profound effect on her enjoyment of life. They have resulted in a considerable loss of amenity and diminution in her ability to participate in activities that she previously enjoyed or might in the future enjoy: Teubner v Humble (1963) 108 CLR 491, 506.
The plaintiff had led an extremely active life prior to the accident and participated in a range of sports and activities as well as enjoying a full social life. The plaintiff derived significant enjoyment from her work as a hairdresser. She had always wanted to be a hairdresser and had hoped to return to that profession. She is therefore deserving of a significant award for loss of amenity.
The evidence of the plaintiff gives the impression of someone who has little hope for the future. She lives with her parents because she has no other choice. She is unemployed and is presently struggling to think of an alternative career. She feels hamstrung by the physical limitations imposed upon her by her injuries. She is in constant pain which is sometimes worse than at other times.
It is obvious that the accident has profoundly affected the plaintiff mentally. Both the plaintiff and Ms Feldman believe their relationship broke down because of her moodiness.
The plaintiff's father, Dragan Maric observed that the plaintiff's mood dramatically changed after the accident. She became very 'strange, withdrawn, angry and depressed'.
Using the threshold schedule provided by the defendant[19] (about which there was no dispute) and based on the formula under s 3C of the Motor Vehicle (Third Party Insurance) Act 1953 (WA) I would assess non pecuniary loss at 25% of the maximum which, according to the schedule is $106,250.
[19] Exhibit 16.
This is a significant proportion of the maximum but is justified because of the substantial degree of the plaintiff's pain and suffering, her loss of amenity and enjoyment of life and bodily harm. Although following a wrist fusion there is likely to be a decrease in her pain and suffering, I do not foresee a significant improvement in her amenity and enjoyment of life. That is because she will still be incapable of participating in many of the activities she previously enjoyed.
Gratuitous services
Immediately following the accident and after her various surgeries the plaintiff required assistance to perform everyday tasks. She required assistance in dressing - particularly buttoning her clothes and tying shoelaces. She was unable to engage in heavy cleaning such as vacuuming, mopping, sweeping floors, loading and unloading laundry, pegging clothes on the line, folding clothes, making the bed, cooking and meal preparation, washing up, loading and unloading the dishwasher and gardening.
Ms Byrne allowed the plaintiff to live with her rent free following the accident and for some time after that. She assisted her by providing her with meals, driving her to appointments and a variety of domestic chores. She also helped the plaintiff on the occasions she returned to Perth for surgery or to visit specialists.
The plaintiff moved to Melbourne to live with Belinda Feldman in about September 2016 and remained there until August 2018.
Ms Feldman did almost all of the cooking, cleaning and shopping for the plaintiff. The plaintiff was unable to drive so Ms Feldman would drive her everywhere. Initially, Ms Feldman would help the plaintiff seven or eight hours per week but after the plaintiff became more proficient with the use of her left hand, she would rely on Ms Feldman less.
After moving back to Brisbane to live with her parents, the plaintiff relied on them to do things such as cooking, shopping, mowing, cleaning, cutting up food and driving her to medical appointments.
The plaintiff estimates that since she moved in with her parents in August 2018, they would have spent about seven hours per week looking after her.
The plaintiff is able to use her left hand for going to the toilet, washing her hair, brushing her teeth and engaging in light cleaning such as wiping benches or sinks. She has learned to drive an automatic car with her left hand, whilst resting her right hand on the door. She has a spinner knob device enabling her to drive. She does as much as she can with her left hand such as using a steam mop to clean floors.
The plaintiff is still unable to lift anything heavy with her right hand because her grip is quite weak. If she needs to lift something heavy, she uses her other hand. She has difficulty opening bottles but can do so with the use of special tools. She needs help to cut food such as steak. She has difficulty with typing and handwriting. If she writes for more than half an hour she gets a cramp. She still writes with her right hand but finds it 'impossible' to do so with her left hand.
The plaintiff presently lives on the upper floor of her parents' house in Brisbane. The plaintiff's father, Dragan Maric gave evidence that he cleans her room including vacuuming the floor and making the bed. Either he, his wife, or their son does the laundry. The plaintiff's father and brother do the gardening. The plaintiff tries to help by picking up weeds with her left hand.
Whilst some of the services provided to the plaintiff by her family and friends would have been provided in any event or were provided out of sympathy to the plaintiff (rather than to fulfil a direct need arising out of the accident), the plaintiff did nevertheless require significant assistance.
In April 2016 Dr Douglas noted that the plaintiff required domestic assistance for heavy cleaning and changing the bed sheets and also for laundry and cooking for up to 10 hours per week.[20] In his report dated 7 February 2018 (following his assessment of her on 30 January 2018) he estimated she would require less assistance than previously - approximately 2 ‑ 3 hours per week. He thought this was likely to be ongoing into the future.
[20] Exhibit 1, page 56 (report of Dr Douglas dated 11 April 2016).
It is common ground that the plaintiff was and still is severely restricted in many aspects of her life as a consequence of her injuries. Immediately following her operations, she would have required more assistance than at other times. The plaintiff's present physical restrictions are such that there is still much she cannot do, despite there being some improvement and stabilising of her symptoms.
Given that the plaintiff has had significant needs in terms of assistance with domestic chores but also getting to and from appointments in the first two years after the accident, in my view it is reasonable to make an allowance of 10 hours per week for the first two years and then two and a half hours per week after that. The parties have agreed an hourly rate of $32 for gratuitous services.
Calculations for past gratuitous services
The calculations for past gratuitous services are:
•For the first two years after the accident (5 February 2015 - February 2017): $320 per week x 104 weeks = $33,280.
•From 5 February 2017 - 17 February 2020: $80 per week x 159 weeks = $12,720.
•Total past gratuitous services = $46,000.
Interest on past gratuitous services
Interest on past gratuitous services at 3% on $46,000 for 5.05 years = $6,969.
Future gratuitous services
Although the plaintiff is able to do more than she had previously, she still requires daily assistance for some activities such as making the bed, doing the laundry, doing large shopping trips and cooking. Once the plaintiff undergoes a wrist fusion, her pain levels are likely to reduce.[21] Consequently she will require less assistance.
[21] Exhibit 1, page 28 (report of Mr Steve Csongvay) and exhibit 1, page 188 (report of Dr Coleman).
The defendant has suggested a calculation based on the plaintiff needing very little assistance after a period of approximately 17 years following surgery to have her wrist fully fused. However, even with a wrist fusion, the plaintiff's disability will be such that there will always be things that she cannot do, regardless of her pain levels.
Dr Douglas was of the opinion the plaintiff will continue to adapt but will require ongoing assistance for 2 ‑ 3 hours per week. Dr Douglas did not suggest that there would ever be a point in time where she did not need assistance to perform certain tasks. Consequently, in my view, I should make an allowance for gratuitous services for the estimated duration of her life.
Doing the best I can, and allowing for a slight reduction in her need for assistance in the future I will allow two hours per week for the rest of her life.
Calculation for future gratuitous services
The calculation for future gratuitous services is as follows:
•17 February 2020 - 4 April 2064 at $64 per week x 830 (multiplier for 45 years) = $53,120.
Special damages
The parties have agreed a global award of special damages at $8,500 (representing out of pocket expenses including Medicare, travel, parking, pharmacy and flights) which I will allow.
Future medical expenses
The parties have agreed future medical expenses at $25,000 which I will allow.
Future education expenses
The parties have agreed $50,000 for future education expenses which I will allow.
Adjustments made to final calculations under the slip rule
Judgment in this matter was scheduled to be delivered on 20 December 2019.
On 19 December 2019 the parties were provided with an advance copy of my reasons. Prior to the hearing on 20 December 2019, the plaintiff filed a schedule of proposed slip rule amendments. On 20 December 2019 I adjourned the matter to permit the defendant to address me in relation to the issue of the plaintiff's proposed slip rule amendments.
At the commencement of the hearing on 11 February 2020 Mr Nugawela (who had been counsel for the plaintiff at her trial) sought leave to withdraw on the grounds that he was no longer instructed as counsel.
I then invited submissions from the plaintiff who appeared unrepresented.
The plaintiff made an application to re-open the case and adduce further evidence to challenge my findings of facts. It is sufficient for me to say that there was no proper basis for a re-opening of the plaintiff's case. I declined her application.
I advised the parties that I would hear submissions about the errors in calculations but would reserve my decision until 17 February 2020.
The defendant conceded that there were some errors in the calculation of past economic loss and past gratuitous services which would result in a net increase in the award to the plaintiff. The defendant also accepted that I should recalculate past economic loss and past gratuitous services to the date of my reserved decision - an approach which would necessitate me making a reduction in the calculations for future economic loss.
I ordered that the defendant file and serve the plaintiff with a schedule of proposed recalculations by close of business on 12 February 2020. I ordered that the plaintiff file and serve a response to the defendant's recalculations by the close of business on 13 February 2020.
Having now considered the parties' written submissions, I have made adjustments to the calculations for past economic loss, past gratuitous services (and interest thereon). As I have calculated past economic loss and past gratuitous services to the date of judgment, there has been a corresponding adjustment to the allowance for future economic loss and future gratuitous services. The global award for future economic loss remains unchanged.
The result of the recalculations are slight increases in the awards for past loss of earnings and past gratuitous services (and corresponding interest) and a slight reduction for future loss of earnings.
The changes reflect a net increase in the overall award to the plaintiff in the amount of $25,964.
Summary of award
The summary of the award is as follows:
Summary
Past loss of earning capacity
$351,278
Interest on past loss
$41,113
Future loss of earning capacity
$349,570
Past gratuitous services
$46,000
Interest on past gratuitous services
$6,969
Future gratuitous services
$53,120
Special damages
$8,500
Future medical expenses
$25,000
Future education expenses
$50,000
Non‑pecuniary loss
$106,250
TOTAL
$1,037,800
Orders
There will be judgment for the plaintiff in the sum of $1,037,800.
Costs
I will hear the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
IG
Associate to Judge Lonsdale17 FEBRUARY 2020
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