McDermott v Barker
[2001] QDC 114
•22 June 2001
DISTRICT COURT OF QUEENSLAND
CITATION: McDermott v. Barker [2001] QDC 114 PARTIES: COLLEEN ELIZABETH McDERMOTT (Plaintiff)
And
CORAL ANNE BARKER (Defendant)FILE NO/S: 162 of 1996 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: Maroochydore DELIVERED ON: 22 June 2001 DELIVERED AT: Maroochydore HEARING DATE: 12-14 June 2001 JUDGE: J.M. Robertson, D.C.J. ORDER: The plaintiff’s claim is dismissed with costs. CATCHWORDS: NEGLIGENCE – Personal Injuries – damages – plaintiff injured when she fell from horse during riding lesson given by defendant – experience of rider
EMPLOYMENT LAW – Breach of statutory duty – plaintiff injured when she fell from horse during riding lesson given “in the course of” her employment – whether employment conditions unsafe
Cases cited:
Rogers v. Brambles Australia Ltd. [1998] 1 Qd.R. 212
Hatzimanolis v. A.N.I. Corporation Limited (1992) 173 CLR 473
Kingsholt v. Goodyear Tyre and Rubber Co. Australia Ltd (No. 2) (1987) 8 N.S.W.L.R. 707
Peachey v. Mount Isa Mines Ltd. (C.A. No. 660 of 1995, unreported judgment of the Court of Appeal 24.11.97 per Byrne J)Statutes considered:
Workers’ Compensation Act 1990, s.41
Workplace Health and Safety Act 1989, s.9COUNSEL: Mr R.I.M. Lilley for the plaintiff
Mr R.W. Morgan for the defendantSOLICITORS: Cartwright Richardson and Stringer for the plaintiff
Jeffrey Cuddihy & Joyce for the defendant
The plaintiff sustained shoulder and knee injuries when she came off a horse named Sonny on 6 August 1993. Although the defendant was reluctant to admit it during her evidence, it is admitted in the pleadings that at the time she was giving a riding lesson to the plaintiff. It is also admitted that the plaintiff was employed by the defendant at her riding school at Cooroy; but that the day of the incident was a Friday and the plaintiff’s day off. The plaintiff says that the riding lesson (and all other riding lessons given to her by the defendant after she commenced work at the riding school) was part of her remuneration. This is denied by the defendant. It is common ground that the plaintiff was intending to compete in a dressage training competition on the following weekend; and that the defendant had given the plaintiff two earlier lessons, on the 2nd and 3rd August, on Sonny to help her prepare for the dressage competition. As to how the plaintiff came off Sonny, and the circumstances immediately leading up to the incident, is in dispute. The plaintiff alleges that the defendant was negligent and in breach of s.9 of the Workplace Health and Safety Act 1989 and seeks damages. There are a number of important factual issues that are in dispute and as a matter of convenience I will deal with these in turn.
Was the lesson part of the plaintiff’s employment conditions?
There was a great deal of evidence on this issue. The plaintiff says that her first contact with the defendant was as her pupil, and this is not disputed. There was some variation about when she first had lessons which is not surprising, given the passage of time. The plaintiff had lessons with the defendant for about six months more or less on a weekly basis for which she paid. Probably, some time in 1991 the plaintiff enquired about working for the defendant and she was engaged on a trial basis for approximately $50 per week. In March 1992 the plaintiff was employed full time initially with JobStart assistance at the basic rate for a stable hand. The defendant acknowledges that before the plaintiff was employed she paid for her lessons, afterwards she did not. It is common ground that when the plaintiff agisted her horse Shannon on the defendant’s property, the agistment fee was deducted from her pay. The defendant says she gave the plaintiff many lessons, both individually and in group lessons, after she started to work for her, for which she was never paid, but denies that the lessons were part of the employment package. Despite this, there are only a very small number of lessons recorded in the appointments book for 1993; a few in February, and the lessons on Sonny on the 2nd and 3rd August. Sarah Birch who worked for the defendant in a similar capacity to the plaintiff in 1993, said she had some lessons in group classes when there were spaces free for which she never paid. She said she never regarded these lessons as part of her remuneration package. Apart from this, she was never asked details of her pay structure; nor were any wages books produced from that time. Kaye Darling gave evidence that she took lessons at the riding school for about 12 months in 1992-93. She knew both the plaintiff and the defendant and other students. She is a business woman and had a conversation with the defendant about the employment conditions of the workers. She says that the defendant told her that the plaintiff’s lessons were part of her employment conditions. She was understandably, not sure of the exact terms of the conversation but she was sure of its effect. I find that it is more probable than not that the lessons provided to the plaintiff by the defendant were part of the plaintiff’s remuneration. Mr Lilley submits that such a finding will have significant legal consequences by application of the principle in Rogers v. Brambles Australia Ltd. [1998] 1 Qd.R. 212; and see Peachey v. Mount Isa Mines Ltd. (C.A. No. 660 of 1995, unreported judgment of the Court of Appeal, 24.11.97 per Byrne J.) I will return to this point later, particularly by reference to the particular circumstances of the lesson being given at the time of the incident.
The disposition of the horse Sonny
In 1993 Sonny was about 12 years old. He was a large black thoroughbred horse of 16.1 hands. The plaintiff gave evidence that a few days before the incident, while she was lunging Sonny he bucked and went “really silly”. She says she told the defendant about this. The defendant denies this. In her evidence before me, the plaintiff said she had ridden Sonny for two months prior to the incident; and had ridden him during the dressage lessons on the 2nd and 3rd August. She did not suggest that Sonny had ever done anything to concern her while she was actually riding him. In her first statement to WorkCover on 27 October 1993 the plaintiff said something different:
“8.I had trouble riding the horse previously and on Thursday 5 August 1993. I spoke to Coral and told her that the horse had been bucking and going really silly in the round yard.”
As I have noted, she never said anything in her evidence to suggest that she had ever had trouble riding Sonny prior to 6 August 1993. The plaintiff was the only witness to suggest any defect in Sonny’s disposition, and when looked at as a whole I have to say that the plaintiff’s evidence fell well short of any suggestion that the horse, because of his disposition, was in any way responsible for the incident. The overwhelming effect of the evidence from those who knew Sonny well is to the effect that he was a placid, well trained horse who was obedient and responsive. I do not intend to set out in detail the evidence on this point. It is suffice to say that the horse’s owner (Brian Falloon), the defendant who had ridden Sonny and known him since 1989, Mr Hoevenaars, and Mr Gross gave similar evidence to this effect, which I accept. On the basis of the evidence of these witnesses, I also find that Sonny was well trained in dressage. The defendant never suggested that he was a “school master” – a description of a horse which means he is so well trained and obedient that he is able to detect rider inexperience and react positively to it – until after the evidence of Mr Hoevenaars. Mr Hoevenaars is an expert in horses and the sport of riding. He gave evidence on the telephone from Holland, at a time when the defendant was not in the courtroom. He knew Sonny well and he first suggested that the horse was a school master. Mr Lilley suggested to the defendant that her use of the term was sinister; but I have to say that having heard the expression from Mr Hoevenaars it seemed to aptly sum up the qualities of the horse to which I have earlier referred.
The riding experience and ability of the plaintiff
Again this issue occupied some time during the trial. It is an important feature of the plaintiff’s case that she was an inexperienced rider (particularly in dressage) under the control and direction of an experienced instructor (the defendant). The plaintiff’s own evidence does not in any way support a finding that she was an inexperienced rider. She was 23 at the time of the incident. She had been riding since she was 8 or 9. Her father was a horse man, although he never gave her any lessons as such. She had mustered cattle for her father at Caboolture. Since meeting the defendant in 1990 she had many riding lessons. She had worked with and around horses for the defendant from 1991 until the incident. She had ridden at dressage competitions on a number of occasions, and had ridden her own horse Shannon in dressage lessons and competition. She knew Sonny well. She had fed and rugged him for the whole time she worked for the defendant. In 1993 she had frequently lunged the horse. For the two months prior to the incident, she had ridden Sonny on her estimate about 16 times, including a bush ride with the defendant. She had ridden him twice in the dressage lessons on the 2nd and 3rd August. An important focus of the evidence of the expert called by the plaintiff – Sandra Pearson-Adams – was her conclusion (based on what she had read) that the plaintiff was not ready to be entered in dressage competition and should have been so informed by the defendant. Mrs Pearson-Adams based her conclusions as to the riding ability of the plaintiff on statements made by the defendant. After the incident, the plaintiff was asked to make a statement by the Workers’ Compensation Board. Her statement dated 16 December 1993 is Exhibit 14. There are two statements in Exhibit 14, virtually identical including one dated 16 December 1993. The defendant responded to the plaintiff’s statement with a very lengthy statement which is Exhibit 16. It comprises 28 pages of hand writing and goes into minute detail. The basic thrust of the criticisms of the defendant by Mrs Pearson-Adams is predicated on two quotes from Exhibit 16 which are reproduced in the report dated 4 October 2000 page 1 last paragraph which forms part of Exhibit 2. The first passage:
“Colleen was (and still is) a most inefficient, unfeeling rider who has not developed balance or any feel for riding a horse.”
is from page 25 of Exhibit 16 and is said to be in response to Item 13 in Exhibit 14. The second passage:
“Colleen is considered a beginner rider, that is a person at the start of her riding career, still struggling with the basics of balance and technical knowledge and not yet able to train the horse.”
is also from Exhibit 16.
The defendant in her evidence, and Mr Morgan her counsel, attempted to relate these apparent opinions of the plaintiff’s riding ability to her ability to train a horse. Whereas the second passage can be so related, the first cannot and it is disingenuous to contend otherwise.
Having read the whole statement, the two passages have to be read and understood in context. As a general comment, the defendant’s statement is argumentative, self-serving and is particularly critical of the plaintiff; and contains a number of factual propositions which she does not seem now to maintain. As she was not cross-examined about these points, it would be unfair for me to use them against her; and I mention them to demonstrate only that the opinions expressed by the defendant, particularly the first, upon which Ms Pearson-Adams relies to express her opinions, cannot be accepted as an accurate reflection of the plaintiff’s experience at the time. There are a number of propositions that support my conclusion; I will refer to only three.
In the statement, the defendant goes to some length to emphasise that prior to the incident the plaintiff had only ridden Sonny twice and on both occasions under her supervision. She now accepts the plaintiff’s own evidence that she had ridden Sonny many times in the two months prior. The statement by the defendant is self-serving because she emphasised on a number of occasions that only she rode horses to keep them in work on behalf of her clients.
The second point relates to the use of a whip. This is an important factual issue which I will have to determine. The plaintiff says the defendant suggested a whip be used to move Sonny from a trot into a canter. The defendant now positively denies such a suggestion. In her statement made much closer in time to the events, she states:
“I do not recall asking Sarah to go and get a whip. I am not even sure that Sarah was standing by.”
Sarah Birch has given evidence that she was standing nearby and that she was not asked to get a whip. It is clear that the defendant was not aware of what Sarah would say when she made Exhibit 16.
The final point in this regard relates to the behaviour of Sonny during the lesson prior to the incident. The plaintiff says that she worked and trotted Sonny for about 50 minutes without a problem but was having trouble getting him into a canter. The defendant now does not dispute this. When the plaintiff said just this at item 9 in Exhibit 14, the defendant in Exhibit 16 responded thus:
“It is actually rather a ridiculous statement, as no one training a horse will ride it for fifty minutes with no canter work, but work in all paces is spread throughout the riding time, and it would be more usual to canter the horse in the “warm-up”. From item no 8 onwards the statement reads like a melodrama with a deliberate set of circumstances leading to “the accident” as the climax.”
As I have said, the defendant was not cross-examined about these three factual propositions. I mention them only to demonstrate why I am not prepared to rely on her descriptions of the plaintiff’s riding ability to which I have earlier referred.
The plaintiff’s own evidence is that she had had regular lessons since commencing her employment, and had had dressage lessons on her horse Shannon and attended some competition on Shannon. She had ridden Sonny regularly for two months and on the two uneventful dressage lessons under the defendant’s direction on the 2nd and 3rd August. Importantly, Fred Hoevenaars and Michael Gross – both experienced horsemen who had given lessons to the plaintiff and who knew Sonny well – gave evidence that the plaintiff riding Sonny in a dressage lesson was completely acceptable. The defendant too who had extensive knowledge of the plaintiff’s skill level and Sonny’s capabilities saw no problem at all in the plaintiff riding Sonny in dressage training. I find therefore that it was reasonable for the defendant to encourage the plaintiff to ride Sonny with a view to competing the following Sunday in a dressage training competition.
With these findings in mind I now turn to the events of the 6 August 1993.
It is common ground that for 40 – 50 minutes of the lesson, there was absolutely no problem with Sonny. I infer therefore that throughout this time the plaintiff was in control of the horse.
One of the particulars of negligence relates to the use of spurs and a whip. Dealing first with the spurs, it is common ground that the plaintiff was no novice in the use of spurs. She owned her own dummy spurs, and had ridden her own horse in dressage training and competition using her spurs and a dressage whip. It is common ground that on the two early occasions (2nd and 3rd August) the plaintiff did not use spurs and/or a whip on Sonny. I find that the plaintiff was having some difficulty on those earlier occasions in maintaining Sonny in a canter, and that she raised the idea of using spurs in the lesson on the 6th August and that the defendant agreed and encouraged the plaintiff to try the spurs. For the first 40-50 minutes the plaintiff rode Sonny in a tight circle under the supervision of the defendant, and I infer, inevitably used her spurs in that time without a problem. Indeed, the plaintiff in cross-examination conceded as much in saying (page 75 lines 3-5):
“… I’d been riding the horse for 50 minutes. I think if the spurs had’ve upset him we would’ve known in the first five minutes.”
Given my findings about Sonny’s ability, I conclude therefore that the use of spurs had nothing to do with the incident which lead to the plaintiff sustaining injuries.
The plaintiff says that after 40-50 minutes when she was having difficulty in keeping Sonny in a canter, the defendant suggested she used a riding crop. The plaintiff said in her statement dated 16 December 1993 (part of Exhibit 14)”
“Coral asked Sarah to go and get a whip. Sarah handed the whip to Coral who handed it to me.”
In that statement she does not say that she hit Sonny with the whip. Rather she seems to say that Sonny went into a canter and bolted without any instruction from her. She said:
“12.I was nervous after the trouble I had had with the horse previously when the horse went into a canter the horse bolted. I gripped with my legs to hold on to the horse and the spurs came in contact with him. The horse was in a small arena and took off with great speed. We were in an 18 metre circle and the horse got faster and faster. I thought the horse would try and go through the wire so I pulled on the reign (sic) as we came around the corner. I was thrown off the horse and the horse stopped.”
In her evidence before me, the whip and the spurs played a major part in causing the horse to go faster. The plaintiff said (page 18 lines 14-20, page 19 lines 1-8):
“Then within asking for the canter, I’ve hit him with the whip and the spurs having come on and off we’ve gone. … very fast, very out of control, very flighty. Not the Sonny I’d been riding, not the Sonny I knew. I’d cantered Sonny, … I’ve been riding him for approximately two months so I had known Sonny enough to know that wasn’t normal; this was something that was new to me.”
The plaintiff did not use the term “bolted” in her evidence. That is not surprising, given that the lesson was being conducted in the small arena which is 30 metres x 15 metres wide. I find that the arena was not enclosed with wire as the plaintiff seemed to suggest in Exhibit 14. The horse could not have “bolted” in such a small space.
The defendant now positively denies that a whip was ever used. She is supported in that evidence by Sarah Birch who was present throughout. Sarah Birch gave evidence by telephone from the U.S.A. She left the employ of the defendant in 1995 and it is not suggested that she has any particular interest. Mr Lilley cross-examined her about some differences between statements made by her to the Board and her evidence to me, but it was never suggested that she has in any way changed her evidence about the whip. Mr Lilley submits that because she is still maintaining that there was no lesson going on, as opposed to the defendant giving the plaintiff help, I should reject her evidence. Sarah Birch was present throughout. She was preparing horses for riding lessons and was very close to the arena. She observed the last stage of the incident in its entirety. I accept her evidence. It follows that I am satisfied that it is more probable than not that a whip was not used and the plaintiff’s evidence to the contrary cannot be accepted.
On the basis of Sarah Birch’s evidence, which again supports the defendant’s recollection, I am satisfied that Sonny never “bolted” nor did he ever get out of a canter. Miss Birch said he sped up; she thought as a result of an instruction from the plaintiff, but never got beyond an extended canter. It is common ground that Sonny never broke from the tight circle in which he had been ridden for the whole lesson. When the plaintiff hit the ground, the horse immediately stopped. That is hardly the conduct of a horse “very out of control”.
The plaintiff says that she endeavoured to stop Sonny by pulling on the reins. She says that Sonny did two or three circles before she came off. She says she was upright in the saddle, but concedes that she panicked (for example, page 75 line 11). In Exhibit 14 she said that she was “thrown off” the horse. She told me that she recalled going around “and the next thing I remember is hitting the ground”. I prefer the evidence of Sarah Birch on this point. To some extent she supports the defendant’s recollection. She says that the plaintiff leant forward on the horse and lost position and started to lean over his neck. She recalls the defendant telling the plaintiff to sit back up straight and pull him up with the reins. The plaintiff recalls the defendant telling her to get off his back which amounts to the same thing. Miss Birch says the plaintiff’s position on the horse fell apart, and it appeared to her as though the plaintiff “baled”, i.e. jumped off deliberately. Her evidence is consistent with the plaintiff panicking; and it is consistent with my finding that the behaviour of the horse had nothing to do with the plaintiff’s fall. The plaintiff had more than adequate riding experience, both generally and in dressage and she knew the horse, to know that to lean forward on the neck of a horse will in fact instruct the horse to go faster. The defendant’s instructions to the plaintiff were appropriate; however I find that the plaintiff did not heed them because of her panic.
It follows that the plaintiff’s claim based on the use of spurs and whip must fail. The claim also alleges that the defendant was negligent in allowing the plaintiff to ride a horse who was too big for her to control. This particular was not really actively pursued as part of the plaintiff’s case; however it was not expressly abandoned. Sonny was a large thoroughbred horse of 16.1 hands. However, as I have noted the plaintiff knew him well and had ridden him for two months without a problem. Although he was a taller horse than the plaintiff’s own horse Shannon, on the evidence the horses were of a similar weight. Further, Mr Hoevenaars and Mr Gross did not think that Sonny was too big for the plaintiff. The plaintiff’s claim based on the allegation must also fail.
The final particular of negligence and/or breach of statutory duty was added without objection during the course of the trial. It is pleaded in these terms:
“(viii)Providing and using for the purpose of the lesson … a dressage training arena which was approximately 31 metres by 14.9 metres and substantially less in area (42.2% less) than the minimum recommended size of 40 metres by 20 metres.”
Until receipt of Mrs Pearson-Adams’ first report (4 October 2000) the plaintiff had never suggested that the arena was too small for the lesson.
It is common ground that dressage arenas for the purposes of competition are always a minimum of 20 metres wide. The evidence of Mrs Pearson-Adam, based on her opinion as to the plaintiff’s riding experience, is that the arena was too narrow. The weight I give to her opinion is significantly undermined by the findings I have already made about the plaintiff’s ability; and my comments in relation to the defendant’s statements in Exhibit 16 which so influenced Mrs Pearson-Adams. There was a larger arena available; but against that the plaintiff had already ridden Sonny twice in the small arena in a dressage lesson without incident. Further, the lesson on 6 August 1993 proceeded without incident for approximately 50 minutes. Until that point, the plaintiff had controlled Sonny well in the circle in the small arena; and, importantly even after he sped up he maintained the circle and never broke from it. Further, both Mr Hoevenaars and Mr Gross gave opinion evidence that the use of the smaller arena was reasonable and safe. Sarah Birch said she preferred the small arena because it gave her as a rider more control. On this point, for the reasons stated, and bearing in mind the personal knowledge of both rider and horse held by Mr Hoevenaars and Mr Gross I prefer their evidence (which supports the defendant’s own expert opinion evidence on this issue) to that of Mrs Pearson-Adams. It follows then that the plaintiff’s claim based in negligence must fail. In reaching this conclusion, I have taken into account the evidence from all the experts who gave evidence at the trial that horse-riding is a dangerous sport. The plaintiff conceded as such in her evidence. Mr Gross, who is an internationally accredited horseman who has ridden at Grand Prix level in the United States, told me that he has, despite his extensive experience, sustained many serious injuries pursuing his sport. He sustained a broken ankle when mounting a horse on one occasion.
Breach of statutory duty
I have already found that the plaintiff’s lesson on the day of her injury, was part of her remuneration package. In that sense she therefore sustained her injury “in the course of her employment” within the meaning of s.41 of the Workers’ Compensation Act 1990: and see Hatzimanolis v. A.N.I. Corporation Limited (1992) 173 CLR 473. It is common ground that the relevant statutory duty is that set out in s.9 of the Workplace Health and Safety Act 1989:
“to ensure the health and safety at work of all the employer’s employees except where it is not practicable for the employer to do so.”
Mr Lilley helpfully in his written submission framed the plaintiff’s case based on breach of statutory duty in this way:
“5. The plaintiff proved there was an apparently safer arrangement available for the lesson. The evidence which you will accept is to the effect that:
5.1 There is an accepted way of introducing aids to a rider who is inexperienced with a particular horse in dressage both Mr Gross T223 L7-14 and 38-41 and Mrs Pearson Adams T122 L 10-20 gave evidence about the introduction of aids.
5.2 It had been a known safety factor for many years in horse riding that an arena too small for the task is restrictive and potentially dangerous Mrs Pearson Adams T120 L28-32. It was not suggested to Mrs Pearson Adams that this was not the case.
5.3 There was a full size arena available Barker T168 L18-20.
5.4 A rider of Colleen’s ability even when the defendant’s description is interpreted as she would wish by Mr Hoevenaars is at a greater risk of suffering injury. Hoevenaars T 194 L 33-50.”
As to 5.1, I do not accept (on the basis of the findings set out above) that the plaintiff could be described as “inexperienced”. She was certainly not inexperienced in the use of spurs, and I have specifically found that a whip was not used. My findings as to her knowledge of and experience in riding Sonny are also relevant in this regard. As to 5.2, for the reasons stated above, I prefer the evidence of Mr Gross and Mr Hoevenaars to that of Mrs Pearson-Adams; because of their extensive personal knowledge of horse and rider. To move to the larger arena was the “last” option as far as Mr Gross was concerned; and indeed I accept his evidence that he would not have even considered such an option with the plaintiff and Sonny. I re-iterate that the plaintiff had ridden Sonny for approximately 50 minutes on that day (to add to the lessons in the same arena on 2nd and 3rd August) without incident. The horse had remained in a 15 metre (approximately) circle throughout, and even when he moved into an extended canter and his rider panicked, he remained in that circle. The size of the arena, in my view, had nothing at all to do with the plaintiff’s injuries.
It is true as Mr Lilley submits that the defendant did not present her case at trial on the basis of the onus upon her to prove impracticability: Rogers v. Brambles per Pincus JA at 218, following Kingsholt v. Goodyear Tyre and rubber Co. Australia Ltd (No. 2) (1987) 8 N.S.W.L.R. 707, however the breach of statutory duty (particularized in the same way as the claim in negligence) was specifically denied in the Defence. I am satisfied that the defendant has discharged the onus upon her, and the plaintiff’s claim based on a breach of statutory duty must fail.
Quantum
Pain and suffering
The plaintiff suffered a shoulder injury and a knee injury in the fall; and has since developed an anxiety disorder. Dr Morgan, consultant Orthopaedic Surgeon, gave evidence for the plaintiff and I accept his evidence. She has suffered a loss of 5% of normal right upper limb function referable to the right shoulder joint, and 25% total loss of normal right lower limb function referable to the rupture of her anterior cruciate ligament in her right knee. This later injury will progressively degenerate, such that Dr Morgan predicts that at some point (perhaps in her late 50’s or early 60’s) she will have to have a total knee replacement at an estimated cost of $18,000 (in today’s terms). She would then be left with a final loss of some 40% of normal right lower limb function.
The plaintiff also developed an anxiety disorder as a result of the injuries and disability. The plaintiff says she had her first panic attack approximately four months after the fall. She told Dr Reddan that her first attack was in 1995; but the plaintiff was not cross-examined about this apparent discrepancy and I accept her evidence in this regard. Dr Gelb states (in Exhibit 4):
“This accident and the subsequent surgery and prolonged rehabilitation acted as a serious stressor which precipitated an Anxiety Disorder, namely Panic Disorder with Agrophobia.
With a combination of mediation and cognitive behaviour therapy, Ms McDermott has significantly improved but she continues to suffer from minor symptom attacks on a regular basis. She no longer suffers from phobic symptomatology and has been progressively re-integrating socially.”
Dr Gelb, who has treated the plaintiff, wrote that report on 4 July 1998. His latest report (28 May 2001) indicates that she has improved since 1998 but continues to suffer from some symptoms of anxiety and depression. Dr Reddan was inclined to agree with the diagnosis of panic disorder but opined that the accident was not the sole aetiology for the attacks, particularly as there was (on the history she was given) a considerable time gap between the accident and the first panic attack. For the reasons stated, I have accepted that the first panic attack occurred much closer in time to the accident, than was told to Dr Reddan. On the other hand, Dr Reddan has taken a very full history of the plaintiff’s personal circumstances, and, in cross-examination Dr Gelb conceded that he was not aware of some stressors in the plaintiff’s life around the same time of the accident, e.g. an incident three weeks before when she was kicked in the head by a horse and knocked unconscious into a water rough from where she was rescued, and a relationship problem around the time of the accident.
Economic loss – past and future
I find that the plaintiff did suffer an anxiety disorder which was significantly brought on by the accident, but which has since significantly abated such that the plaintiff is now able to lead a normal social and working life.
The plaintiff was 21 or 22 when she first started to work for the defendant. She had previous employment as a kitchen hand for two years, eight months with the Noosa council, six months as a receptionist with Raine and Horne, and six months as a cleaner at a resort.
Since her accident, she has had seasonal work of two months as a sorter at a Macadamia Nut Factory and a two month job as a data entry operator.
She has almost completed a computer course and she is also pursuing her interest in and love of horse riding. She has completed a Level O in Basic Horsemanship through TAFE. She returned to riding nine months after the fall. She had trouble at first with her confidence, but she has persisted and now has her own horses on her parents’ place. She still has some difficulties with her right knee in terms of controlling a horse, but that does not interfere in her ability to participate in the sport. She has applied unsuccessfully for two jobs at equestrian centers; but it is not suggested that her leg problems had anything to do with her not obtaining those jobs.
I agree in part with Mr Lilley that future economic loss should be assessed on the basis of some disadvantage in the labour market and I have concluded – given the length of time between the injury and the trial – that the award should be modest; and assessed on a global basis at $20,000. Past economic loss should be significantly discounted to take into account what the plaintiff has received and the factors referred to above. I will allow her $150 per week for 6.5 years which is $50,700 and interest on that sum of 5% for 6.5 years.
I assess pain and suffering at $45,000 of which $35,000 is attributed to the past. She is entitled to 2% on $35,000 for 7 years, which is $4,900.
Specials (including HIC refund) are admitted at $16,707.
Mr Lilley advanced a modest claim for gratuitous services; based on the evidence of the plaintiff her mother helped her for 2.5 hours a day for the first three months which is $2,300 and I will allow a further $1,000 for the occasional car trip to doctors etc., when the mother drove. There is no evidence to support a claim for such services in the future. She is entitled to interest on the past component of 5% for 7 years which is $805.
I will allow $18,000 for the future operation costs on the basis of Dr Morgan’s evidence and $6,000 to cover past and future superannuation based on the relevant percentages.
I assess damages at $184,889.50:
Future economic loss $20,000.00
Past economic loss - $150/wk for 6.5 years 50,700.00
Interest on past economic loss at 5% for 6.5 years 16,477.50
Pain and suffering 45,000.00
Interest on $35,000 at 2% for 7 years 4,900.00
Specials 16,707.00
Interest on specials (there is insufficient evidence to calculate an interest component, but I have allowed $3,000.00 as a global amount) 3,000.00
Past gratuitous services 3,300.00
Interest on $2,300 at 5% for 7 years 805.00
Future operation costs 18,000.00
Past and future superannuation 6,000.00
_________
$184,889.50
The order of the Court is that the plaintiff’s claim be dismissed with costs.
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