Martinez v OCS Services Pty Ltd - [2009] WADC 42

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MARTINEZ -v- OCS SERVICES PTY LTD [2009] WADC 42

CORAM: MACKNAY DCJ

HEARD: 17-20 NOVEMBER 2008

DELIVERED : 27 MARCH 2009

FILE NO/S: CIV 1154 of 2006

BETWEEN: MARIA MARTINEZ
Plaintiff
AND
OCS SERVICES PTY LTD
Defendant

Catchwords:

Damages - Assessment - Plaintiff 49 year old female cleaner at time of accident - Fractured lower leg and other injuries - Total award of damages $459,349.10

Legislation:

Nil

Result:

Plaintiff entitled to judgment in the sum of $459,349.10

Representation:

Counsel:

Plaintiff: Mr M D Cuerdin
Defendant: Mr A P Hershowitz

Solicitors:

Plaintiff: Paul O'Halloran & Associates
Defendant: SRB Legal

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

Black v MVIT [1986] WAR 32
Brown v Dato Pty Ltd (2006) WASCA 170
CSR Limited v Eddy (2005) HCA 64; (2005) 80 ALJR 59
Fox v Wood (1981) 148 CLR 438
Jongen v CSR Limited (1992) A Tort Rep 81 ‑ 192
Syd Matthews & Co Pty Ltd v Cavanagh [2005] WASCA 178

MACKNAY DCJ:

Introduction

The plaintiff is aged 55 years, having been born on 17 September 1953 in Spain.
She is married with two male children, aged 33 years and 22 years respectively.
The elder son, Inigo Martinez, lives at home with the plaintiff and her husband.
The plaintiff's family migrated to Australia in 1981.
In 1988 the plaintiff's husband sustained a back injury and ceased employment, and since that time has been in receipt of social security, the present form of that being a disability support pension.
Following her husband's cessation of employment, the plaintiff, who had worked in Spain prior to her marriage, and for about five years, as a factory hand, began part time work as a cleaner, initially with the Education Department, and in 1989.
That work was at the South Coogee Primary School.
In 1999 the defendant assumed responsibility for the cleaning of that school, amongst others, and the plaintiff then became an employee of the defendant.
2003 the school building was closed and the school re-opened in a new building, with the plaintiff continuing her duties there.
On 14 July 2003 the plaintiff was injured when she fractured her left lower leg whilst stepping down from a chair on which she had been standing whilst dusting a ceiling fan.
The plaintiff alleged the accident was caused as a result of the negligence of the defendant.
That was denied by the defendant, and the matter proceeds to trial in respect of both liability and quantum.
In the course of the trial the defendant acknowledged that it had been guilty of negligence, leaving the matter as one for assessment of damages only.
In that regard, apart from a denial of loss the defendant in the alternative alleged that the plaintiff had fail to mitigate any loss by failing to undergo reasonable psychiatric medical treatment, such resulting in failures to take reasonable steps to increase her level of activity and "to alleviate her requirements for caring".

Plaintiff

The plaintiff said that on 14 July 2003 the accident occurred when she fell heavily as she tried to step down from the chair on which she was standing to clean the fan, for reasons of which she was unaware.
After a failed attempt to stand she said that she crawled to the door and called for help, that being forthcoming, and an ambulance being called.
The plaintiff said that she was taken to Fremantle Hospital, where she was found to have a broken left lower leg, and initially treated by Professor Kuster, undergoing surgery on 16 July 2003, and being discharged on 23 July 2003, on two crutches and with a walking frame.
There was further surgery to the left leg on 2 September 2003 by way of a bone graft, the plaintiff said, after which she had pain from the left hip to the knee.
The plaintiff said that she developed sleeping problems, became very tense and the sexual relationship with her husband dwindled to nothing, which affected her marriage.
Her right arm developed soreness and within a year of the accident she developed symptoms in her right shoulder, the plaintiff said, but continued utilising crutches.
The plaintiff received a sympathetic block, from which complications arose requiring three days in Fremantle Hospital, she said, and saw Dr Coleman who prescribed tablets which made her very sick.
The plaintiff said that she underwent surgery on 13 January 2006 at the hands of Dr Stoffel in Kaleeya, and further surgery in August 2006.
The plaintiff said her pain was on a scale of 10 at the maximum when she broke her leg and was now no less than six to seven, whilst her pain in the left hip to knee area was six to seven or eight, the lower leg four and the right shoulder three to seven.
Her pain had increased, the plaintiff said.
She slept very poorly, the plaintiff said and took mostly Panamax, as other medication gave her side effects.
The plaintiff said that she was very depressed and stressed with daily headaches and mood changes, and felt tired and weak.
She did undertake hydrotherapy and received physiotherapy and had the use of a TENS machine, she said.
Her life had changed, the plaintiff said, as she was formally independent and active and enjoyed a social life with friends, all of which had been lost.
Prior to the accident the plaintiff said she had gone to the beach, and a swimming pool, had used exercise equipment at home and had engaged in sewing and knitting as past-times.
She was no longer able to drive a car, she said, did not do much, and was in bed most of the time.
She was able groom and care for herself, she said, but had to sit in order to dress.
The plaintiff said that she ambulated outside with a crutch all of the time, but did not use that inside generally.
Prior to the accident she said that she did all of the housework and shopping and gardening, other than lawnmowing, but since the accident she had done nothing beyond a little help with cooking when she felt well.
Mr Martinez took her to the doctors and her son Inigo Martinez took her to hydrotherapy if he was available, the plaintiff said, and her husband did all of the housework and gardening with a little help from Inigo, who had a job.
The plaintiff said that her husband spent four hours or something similar per day on housework.
Prior to the accident the plaintiff said she would carry out laundry duties once or twice daily, would clean the bathroom including the shower every day, vacuum and brush the house for cobwebs weekly, dust every couple of days, and iron about three times per week.
The house was in a much poorer state now, she said, as she had tried to keep it to a standard and it was now very difficult.
In relation to her work future the plaintiff said that but for the accident she might have worked to age 70 years, as she enjoyed socialising there, and the job, and it also brought in extra money.
She had been the recipient of a wife's allowance in relation to the disability support pension since 1988, the plaintiff said, and presently received about $400 per fortnight in addition to workers' compensation payments.
As to any medical problems or attendances prior to the accident the plaintiff said that on separate occasions many years before she had attended Fremantle Hospital with right or left knee symptoms, but at the time of the accident was unaware of any injury and simply had experienced pain from time to time.
The plaintiff said that she had not been reluctant to have psychiatric treatment after the accident but could not afford to pay for it.

Medical evidence

The plaintiff called no evidence from any doctor who was treating or had treated her for any accident caused injury and put forward in that respect only four pages of out patient notes from the Fremantle Hospital and Health Service.
The last of those reads:
"This lady has a 5 to 6 year history of left sided lower limb problems after a Schatzker type 5 tibial plateau fracture. She has had multiple operations with bone graft, which led to a lateral cutaneous nerve of her thigh damage during bone graft harvesting from the iliac crest. She has suffered ever since from pain down the anterior and lateral aspect of the thigh to the knee, especially in her left knee when she is walking.
On 6^th December last year she was presented and discussed in the Thursday meeting. The general opinion was that it was still too early for a left side total knee replacement. The other problem is that she is certainly suffering from neuropathic nerve pain, which is influencing her gait in a significant degree, which cannot be relieved by a total knee replacement.
Today she presents with one elbow crutch with a markedly left sided antalgic gait. She tells me that it at least 50% due to the thigh pain. On examination she has neuropathic pain over the anterolateral scar at the level of her left knee. She has a decreased range of motion to about 80-90°. Her knee is quite antalgic and therefore proper AP testing could not be performed. She has pseudolaxity of the lateral collateral ligament, however she complains mostly about pain inside the knee located over the medial compartment.
She has had 2 previous arthroscopies, the last one in 2006 by my colleague Dr Khoo, and has partial meniscectomies. There were moderate cartilage defects ranging from grade 1 to grade 2 at the time.
MRI arranged by Mr Brankov at her last visit, confirms these tri-compartmental cartilage changes with status post medial and lateral meniscectomy of the left knee.
After this second arthroscopy she had 3 local anaesthetic plus steroid injections into the knee, which have not helped too much.
I had a long discussion with her and presented her to Mr Lim, who examined her again and discussed everything in detail. We feel that at this stage a knee replacement is not indicated yet since her knee is not severely arthritic. There is a neuropathic component of pain around her knee and in the thigh and we have advised Maria that this pain will not go away with a total knee replacement. She has already been told about this in the past during consultations by the Chronic Pain Service, (Dr Pat Coleman). She has stopped the medication for her neuropathic pain because they make her drowsy. At the present time she does not feel that another consultation with the Pain Service will be of benefit, however she says that hydrotherapy has helped a lot and she wants to continue with that. No further referral is necessary.
She is coming to the conclusion today that she is not ready for a total knee replacement yet. I have rebooked her for review in 2 years time, however we have given her the option to phone up for an appointment should things become acutely worse with her left knee."
The note was signed by a Registrar.
That course of evidence was followed despite the defendant's plea that the plaintiff had failed to mitigate her damage by undergoing psychiatric treatment.
The defendant put in evidence two medical reports from the hospital.

Medico-Legal evidence

The plaintiff's solicitors arranged for her to see an orthopaedic surgeon, Mr Tony Robinson, initially in April 2007, after which he gave the following diagnosis:
"1.Osteoarthritis of the left knee following an intra-articular fracture of the tibial plateau.
2. Soft tissue inflammation in the region of the fracture.
3. Neuralgia paresthetica on the left side. This is due to damage of the lateral cutaneous nerve of the thigh.
4.Lower impingement of the right shoulder."
An x-ray and ultrasound of the right shoulder had been arranged, he said.
The plaintiff was likely to develop increasing osteoarthritis of the left knee, the doctor stated, and it might be necessary for her to have a further chondroplasty in the future, and in the long term it was possible she might need a total knee replacement.
He said there was a permanent disability of the left knee of 30 per cent.
The following week, Mr Robinson reported the plaintiff had undergone an ultrasound of the right shoulder, which was reported on as showing impingement syndrome and a partial tear of the rotator cuff, so that he thought she ought have a steroid injection.
Mr Robinson saw the plaintiff again in November 2008, and reported that in addition to osteoarthritis of the left knee, neuralgia paresthetica of the left thigh and "mild" impingement of the right shoulder, which he thought was due to use of an elbow crutch, she had swelling of the left ankle due to favouring of the right leg.
Mr Robinson stated that he believed the plaintiff would need a total knee replacement "in the next five years", at a cost of $20,000.
She ought also have a steroid injection in the region of the damaged left thigh nerve, and one in the sub-acromial space of the right shoulder, he said.
The plaintiff was permanently unfit to work as a school cleaner, he said, and he did not think she would be able to do other forms of work, given her left knee pain and right shoulder pain.
In the event that she underwent a total knee replacement, the plaintiff would still have problems performing household and domestic work, Mr Robinson said, although he believed that she would be able to carry out some household tasks such as waist-level cleaning, vacuuming and sweeping.
In evidence given de bene esse Mr Robinson said that his view as to the timing of a left knee replacement was based on the plaintiff's age of 55 years, together with the desirability of a recipient being over 60 years, as the "life span" of such, when successful, was on average 17 years.
The success rate was in general terms about 90 per cent, he said, and the recovery period around six months.
The plaintiff had experienced difficulty kneeling and following a procedure would probably not be able to kneel nor do a deep squat, the doctor said, and would therefore have difficulty with things like low cleaning and would only recover 50 per cent of her functional capacity in relation to household work, a figure he later conceded could be 75 per cent.
Mr Michael Alexeeff, an orthopaedic surgeon, saw the plaintiff for the defendant's solicitors in December 2004 and on two further occasions, the last in November 2008.
Following a review in May 2006, the doctor expressed a diagnosis as follows:
"1.Severe comminuted displaced fracture of the left proximal tibia classified as Schatzker Type VI fracture of the proximal tibia, which is a widely acknowledged classification system. Status – post-initial open reduction internal fixation and subsequent bone grafting. Fracture union.
2.      Lateral cutaneous never of the left thigh dysthesia.
3.      resolved reflect sympathetic dystrophy.
4.      Post-traumatic arthropathy left knee.
5.Degenerative medial compartment arthropathy right knee."
He also said the plaintiff was unfit for her previous employment, and given her age and limited vocational skills was "effectively unemployable".
Following his November 2008 review, Mr Alexeeff stated in his opinion the plaintiff would require knee joint replacement in the near future, after which "her quality of life should improve commensurately" and she "may even be able to return to the workforce".
In relation to the plaintiff's right shoulder, the doctor said her symptoms might be secondary to a degree of low grade impingement or might reflect shoulder capsulitis, and treatment ought to commence with injection into the sub‑acromial space, and then, if necessary, into the gleno-humeral joint, although he had not seen evidence of arthritis in the later.
Mr Alexeeff said in evidence that he did "a lot" of knee replacement surgeries.
The plaintiff's knee was arthritic, and to require her to wait five years for surgery was "nonsensical", he said, and her age was not a factor, there being evidence that 25 year outcomes were quite feasible, although he later agreed that was the best possible outcome.
The success rate now suggested was over 90 per cent, he said, and the plaintiff's knee pain from the arthritis would go completely.
A good outcome gave a zero to 120 degree range of motion, he said.
Mr Alexeeff was not sure that the plaintiff had any particular shoulder condition, he said, did not think it was related to her crutch use and believed it could be treated, the rotator cuff apparently being intact and the use of a crutch not bringing on an impingement.
Mr Alexeeff said the plaintiff was more like to have capsulitis, but he could not tell.
As to the statement in his last report that such would be "secondary", the doctor said that term referred to all cases other than where a patient had a frozen shoulder, and it was possible the plaintiff may have hurt her shoulder when she fell at work.
It was in any event, insignificant in terms of where it fitted into her pathologies, he said.
The plaintiff should be able to drive, he said, and "activities of daily living which include things like house chores should all be well within her grasp".
A nerve release procedure could be undertaken with the plaintiff's left thigh, he said, and significant improvement in her symptoms ought result although she may be left with some sensory deficit.
His waiting list for surgery was over two months, the doctor agreed, and a patient could "actually function" three months post-operatively, at which time tradesman were back at work, although optimum functionality was ordinarily reached at 12 months, a period which might be extended to 18 months in the plaintiff's case, given her history.
After a procedure kneeling, crouching and squatting were all within the capacity of a patient, the doctor said.
The defendant also called an occupational physician, Dr Alan Home, who had seen the plaintiff at its request on a number of occasions between May 2004 and November 2008.
Following his last review, the doctor reported that the plaintiff complained of constant right shoulder pain, mild at rest and increasing with lifting movement, which he considered did not disclose evidence of any significant rotator cuff tear, but which would benefit with injections, with an 80% likelihood of significant improvement after such.
Dr Home said he agreed total knee replacement of her left knee was likely to be beneficial.
The plaintiff's pain management was sub-optimal, he said, and he also recommended she undertake psychological counselling.
There was no permanent reason to exclude her from driving a car or increasing her level of sedentary activity, the doctor said, although in his opinion the plaintiff then had no capacity to undertake alternative work given, amongst other things, her physical disabilities, age, inadequately managed pain and psychological complaints.
In evidence, Dr Home agreed the plaintiff also had some pain distal to the left knee, in the proximal part of the leg, and following her most recent surgery, but he was hopeful that would resolve.
The myalgia paraesthetica said to be experienced by the plaintiff in the left thigh was the worst he had encountered, the doctor said.
In relation to the plaintiff's proposed total knee replacement, Dr Home said he saw maybe 12 patients each year who had undergone that procedure, and of those about half had a good outcome, with about 30 per cent having a moderate and 20 per cent having poor results.
As good outcomes were not necessarily returned to him, the doctor said he might have "a slightly skewed population".
A good result would mean there was still a slight restriction of flexion, Dr Home said, whilst a moderate result could produce some mild restriction of extension and some moderate restriction of flexion of the knee.
The doctor agreed there was a range of outcomes, with a poor result not producing any improvement.
The plaintiff was referred by her solicitors to a psychiatrist, Dr Jane Fitch, and was first seen in May 2004.
Dr Fitch reported that the plaintiff complained of a range of symptoms, whilst her speech demonstrated "negative cognitive shift with guilt, worthlessness, hopelessness, and helplessness", and the doctor's clinical diagnosis was of major depressive disorder of moderate severity with secondary anxiety, the disorder being directly attributable to the accident.

The plaintiff would benefit from psychiatric treatment, the doctor said, including prescription of an antidepressant and frequent review for a year, and ought also undergo stress management and relaxation with cognitive behavioural therapy.
She was, the doctor said, totally unfit for work.
Dr Fitch next saw the plaintiff in April 2006, and reported the plaintiff had not been referred to a psychiatrist and had received no treatment for her psychiatric disorder.
The plaintiff was suffering from a major depressive disorder with generalised anxiety and some phobic avoidance behaviours, the doctor stated, and as her symptoms had been present for more than two years the prognosis for full resolution was poor.
The plaintiff still required treatment, she said.
Dr Fitch reported that she saw the plaintiff again in October 2008 when the plaintiff had a chronic pain syndrome in addition to her depressive disorder.
The plaintiff continued to present as significantly depressed, the doctors said, and it was unfortunate she had not received the treatment outlined in the doctor's earlier report, so that her prognosis had accordingly worsened.
In evidence Dr Fitch said cultural factors were relevant given the plaintiff's Spanish background, as was the failure of the treating doctors at Fremantle Hospital to address her mental state or co-morbid psychiatric conditions.
Of patients who develop chronic pain the doctor said that the literature suggested 50 per cent would go on to develop a separate psychiatric condition that required treatment.
Dr Fitch said that she believed the plaintiff's left sympathetic dystrophy would remain a problem, and her depression would persist, even if she had good outcomes for the left knee and right shoulder.
The defendant also referred the plaintiff to a psychiatrist, Dr Julia Charkey-Papp, who reviewed her on one occasion, in April 2006, and who reported that in her opinion the plaintiff had "a chronic pain syndrome, associated with the psychological and emotional symptoms inherent to it without a bon(a) fide separate psychiatric diagnosis identifiable under the circumstances".
The doctor said that from a psychiatric view point the plaintiff was fit to resume her duties and work as a cleaner.
In relation to treatment, "a muti-disciplinary pain management strategy, including cognitive behavioural therapy might be the only avenue to effect some change, apart from the finalisation of the claim", she said.
As to the absence of any primary psychiatric disorder, in evidence Dr Charkey-Papp stated:
"… I could not find any evidence from the history provided by Ms Martinez, the complainant, at the time in terms of symptoms or complaints of the magnitude and duration that would have satisfied the criteria for diagnosing a major depressive disorder or a reactive depressive disorder for that reason. Her main complaints consisted of the pain which had a direct and indirect effect upon her life. So I – I ask specifics –specific questions, as well as listened to her proffered history, looking for these symptoms, as I usually do, but I could not – I could not detect these symptoms at the time."
The doctor agreed that an absence of treatment would not have assisted the plaintiff and said that had such begun in 2004 the plaintiff would have had "an 80 per cent likelihood of getting better".
Reduction of the plaintiff's pain now would give her very good prospects of "actually getting better from her depressive disorder", Dr Charkey-Papp said, although she agreed the plaintiff's response to such an improvement in pain "might be less optimistic" than with someone not her position.
Dr Murray Nixon, a general practitioner who also practised for a time at the Perth Human Sexuality Centre, saw the plaintiff, apparently for her solicitor, in May 2006, and reported that the plaintiff had presented with sexual dysfunction comprising a loss of libido secondary to chronic pain and possibly analgesia, and inability to become aroused due to the aggravation of pain involved, particularly of the left leg.
The plaintiff's solicitor also referred her to Ms Jan Bishop, a nurse with additional qualifications and substantial experience in rehabilitation, who carries on business under the name, "Bennu International Consultancy".
Ms Bishop provided three reports in which she expressed views as to the nature and level of paid assistance the plaintiff had required or was likely to require.
In July 2007 Ms Bishop reported that the plaintiff needed 28 hours of multi-skilled carer assistance per week and four hours of heavy domestic assistance per month.
She later advised that if Mr Martinez became unable to assist the plaintiff in relation to appointments the carer would be required for an additional eight hours per week.
Part of a role of a multi-skilled carer was to assist a disable person to become more independent, Ms Bishop said, and the need for a person with that training would diminish as that occurred.

Other evidence

The plaintiff's husband, Mr Jesus Martinez, who is aged 60 years, said that he had worked as a marine engineer until he crushed lumbar vertebrae in a work accident.
His present pension income was $410 per week, he said, plus a stipend from Spain, and he did not do any paid part-time work.
Prior to the accident, the plaintiff did all the household work, he said, with assistance only in relation to heavy work.
Since the accident, the plaintiff had done nothing, Mr Martinez said, and he did most of the work, spending at least four hours per day on it, in addition to gardening work and driving the plaintiff, whilst their son Inigo also did some work.
Before the accident, the plaintiff was a happy person with friends, but since it she had changed for the worse and become pessimistic, he said.
Inigo Martinez is aged 33 years and said that his mother had done everything before the accident, apart from some outside work done by his father.
The work was now done by him and his father, Inigo said, and he did the main shopping, vacuuming, some hanging of laundry, clearing of the table and dishwashing, together with lawn mowing, and also drove the plaintiff to her aqua and hydrotherapy.
Inigo said he now also worked three days per week at a library, and two days per week at a Coles store.
Prior to working full-time, he had done an average of one hours work per day at home, he said, but now did less.
Inigo did not pay any board, he said.

General findings

The plaintiff's evidence as to her condition was consistent with the bulk of the medical evidence, and she impressed me as a genuine witness, whose depression became readily apparent after she had spent a substantial time in the witness box.
She has, I would find, been unable to work since the accident or to continue with her household chores beyond what she described.
I accept Dr Fitch's evidence as to the plaintiff's mental state on review and since, and where in conflict would prefer her evidence to that of Dr Charkey-Papp, who saw the plaintiff but once, and whose stated observations of her condition were inconsistent with what I have found was the case.
In relation to the plaintiff's shoulder, knee and thigh injuries, I would generally accept the evidence of Mr Alexeeff, and would prefer that evidence to the evidence of Mr Robinson where there was conflict.
I was impressed with Mr Alexeeff's evidence, including that as to the appropriate timing of a total knee replacement, and its likely aftermath, in circumstances where he practises in that field, unlike Mr Robinson.
Dr Home, who of course practises in the rehabilitation area, generally sees, as he acknowledged, cases where there was a problem with the outcome of a total knee replacement, and his views as to likelihood and mobility were affected by that.
Given the evidence of Mr Alexeeff, I would not accept the view stated in the hospital outpatient notes, given the plaintiff's failure to call a specialist medical practitioner to explain and justify that view.
It follows that it would be appropriate for the plaintiff to have surgery by way of a total knee replacement as soon as possible, and that there is a 90 per cent chance of a successful outcome.
It also follows that the plaintiff's shoulder condition is likely to be largely amendable to treatment, as is the left thigh.

Whether contributory negligence

In my view, the plaintiff was not guilty of contributory negligence in not undertaking psychiatric treatment.
There is no evidence before me that such a course was advised by any of her treating doctors, and indeed Dr Fitch proceeded on the basis that there had been a failure by those doctors to make such a recommendation.
The plaintiff of course was and is suffering from significant depression, whilst her knee injury proved largely resistant to improvement despite the considerable surgical and other treatment that she received in respect of it.
It was the opinion of Dr Fitch that the plaintiff developed a suspicion of doctors and medication, and given her educational and cultural background and in the circumstances I consider that is understandable, and in circumstances where the advice as to treatment was given only in a medico-legal report sent to her solicitors, and not from a treating doctor, I do not consider that the defendant has established that it was unreasonable for the plaintiff to fail to seek such treatment.

Damages

The heads of damage pursuant to which the plaintiff claim, and my findings, are as follows:
•General Damages
The plaintiff sustained significant injuries, which have had a profound effect on her, and have required substantial treatment including surgery, with a likelihood of major knee surgery in the future.
I allow $75,000.
•Past Loss of Economic Capacity
The sum claimed, which included the so-called Fox v Wood (1981) 148 CLR 438 component, was $41,225 for a period to 7 September 2008, with a weekly sum of $156.99 thereafter.
The defendant agreed with the first and did not dispute the later, and I adopt each.
The total is then $45,730.
•Past Loss of Superannuation
A question arises as to the amount of the deduction to be made from the employer contribution to superannuation to reflect taxation, fund charges, the possibility of fund losses and the like.
Since the decision in Jongen v CSR Limited (1992) A Tort Rep 81 ‑ 192 the figure of 30 per cent arrived at by Anderson J has been widely used.
However in the light of recent reforms to the taxation law in relation to superannuation that figure would now seem too high.
The plaintiff put forward a deduction of 15 per cent and I think that is reasonable and would utilise the same.
The sum to 7 September 2008 is then $3,218 and the amount thereafter 9 per cent of $157 per week, less 15 per cent, to the present date, or $344.40, from which I derive an allowance of $3,562.40.
•Interest on Past Loss of Superannuation
I allow $610.24.
•Future Loss of Economic Capacity
It was not suggested by the defendant that the plaintiff would be able to return to work following her likely knee surgery, and I proceed on the basis that will not occur.
A question does arise as to whether the loss should be calculated only to age 65 years, when the plaintiff would have become eligible for an aged pension, or whether it ought to be calculated to age 70 years, given the plaintiff's evidence as to her pre‑accident work intentions.
The plaintiff would generally seem to have been in reasonable health for her age, and although the defendant has stated and sought to raise some past medical attendances, there was no plea that her working life would have been attenuated in any event.
In all the circumstances, I think there ought to be some allowance for work after age 65 years, but that allowance ought be simply by way of assessment of a lump sum, rather than by any calculation, given the degree of uncertainty as to the extent and duration of such work.
The multiplier to age 65 years is 380, and the loss, after a deduction of 6 per cent for the usual contingencies (see Black v MVIT [1986] WAR 32) is $56,080.40.
To that, I add the sum of $10,000 to reflect the loss in economic capacity after age 65 years.
Given the nature of the later allowance, the first ought be rounded up, and I allow $66,100.
•Future Loss of Superannuation
At the rate of 9 per cent to age 65 years, and after deductions for fund, taxation and costs, and contingencies, the sum of $4,290 is derived, which I round up to $4,750 to reflect the loss after age 65 years.
•Past Voluntary Assistance
The plaintiff originally sought an allowance based on there having been a need for the provision of 40 hours assistance per week, for 5.3 years, and that a reasonable rate would be $16 per hour.
As appears below, the number of hours claimed was eventually greatly reduced.
The defendant does not dispute the monetary rate or the period, but says the number of hours is excessive, and suggests 9 hours per week would be reasonable.
The decision of the Court of Appeal in Syd Matthews & Co Pty Ltd v Cavanagh [2005] WASCA 178 was cited as showing the basis on which a claim of this kind ought be assessed.
That case accurately portrays aspects of modern High Court decisions on the topic.
It does not provide any particular assistance to the defendant, for the "give and take" rule referred to has little role to play when an injured claimant is unable to contribute to the notional bargain.
It is the case that the work done by the plaintiff's family in part clearly represents not the provision of services to her, but rather a replacement of the services previously rendered by the plaintiff to her family.
The loss of the ability to provide services to others does not sound in damages based on the cost of their replacement: CSR Limited v Eddy (2005) HCA 64; (2005) 80 ALJR 59 at [68]; Brown v Dato Pty Ltd (2006) WASCA 170 at [56], [78].
Much domestic work of course is to the benefit of all members of a household, and a loss of the ability to do that does not fall within that rule.
Further, there is a degree of artificiality in the making of any attempt to separate out the various kinds of domestic tasks.
Nonetheless, it is necessary that some attempt should be made, although any result is necessarily somewhat arbitrary.
Here the plaintiff submitted that Ms Bishop's figure of 28 hours per week ought be adopted as a reasonable measure of the amount of domestic work and assistance provided after the accident, and that 25 per cent ought be deducted from that to reflect things done purely for the benefit of other members of the household, so as to result in an assessed need of 21 hours per week, or three hours per day.
It is the case that the plaintiff's needs would have varied over the period since the accident, which is now in excess of five years.
Any attempt to break that period of up would not in the circumstances be practical.
In my view, the defendant's submission as to the extent of the plaintiff's need does not accord with the medical and other evidence, and I consider the plaintiff's submission reasonable and would allow 21 hours per week at the rate of $16 per hour for the period since the date of the accident.
That results in an allowance from that date to the present of $99,792.
•Interest on Past Voluntary Assistance
At a half rate of 3 per cent I allow $17,094.37.
•Future Voluntary Assistance
The plaintiff originally claimed $580,000.
Consequent on the evidence of Mr Alexeeff, counsel for the plaintiff accepted that it would be reasonable to adopt a period of 12 months to allow for the plaintiff to undergo total knee replacement and the necessary subsequent rehabilitation.
I think that is reasonable, and the present value of the plaintiff's loss in respect to that period is $17,136.
As to the position thereafter, I have already indicated that I accept Mr Alexeeff's evidence as to the plaintiff's likely physical position.
The plaintiff will be likely to be still subject to some psychological deficit, and that might be an impediment to a full recovery, and I think should be allowed for.
Any allowance ought also recognise the possibility of a less successful outcome in relation to the knee surgery.
Given the above it is appropriate to make a global allowance.
The amount sought for the period thereafter is approximately $71,470, but for the reasons given that is too high and I allow $35,000. The award under this head is then $52,136.
• Future Travelling Expenses
I was told these were "not pressed", and make no allowance under this head.
•Future Medical Expenses
These were said to be agreed in the sum of $44,000 and I allow that.
•Special Damages
These include statutory allowances of $43,604.09 and an agreed sum of $7,000, a total of $50,604.09, which I allow.

Conclusion

The plaintiff's entitled to allowances as follows:
General Damages   $ 75,000.00
Past Loss of Economic Capacity  $ 45,730.00
Past Loss of Superannuation  $   3,562.40
Interest on Past Lost of Superannuation  $      610.24
Future Loss of Economic Capacity  $ 66,100.00
Future Loss of Superannuation  $   4,750.00
Past Voluntary Assistance  $ 99,762.00
Interest on Past Voluntary Assistance  $ 17,094.37
Future Voluntary Assistance  $ 52,136.00
Future Travelling Expenses  -
Future Medical Expenses  $ 44,000.00
Special Damages   $ 50,604.09
TOTAL:$459,349.10
The plaintiff is entitled to judgement against the defendant in the sum of $459,349.10.