Millbrook v Davies No. DCCIV-01-444
[2004] SADC 66
•6 May 2004
Meredith Anne Millbrook v Kathryn Davies
[2004] SADC 66CIVIL
JUDGE DAVID SMITH
This is an assessment of damages. The plaintiff claims damages against the defendant for personal injuries and consequential losses arising from a motor vehicle collision which occurred on Daws Road on the afternoon of the 6th April 1998. The defendant drove her vehicle into the rear of a motor vehicle in which the plaintiff was a front seat passenger. The plaintiff was wearing a seat belt at the time.
This action is subject to the constraints of s35A of the Wrongs Act 1936 (SA) (as amended). Section 35A has been repealed by s20A of the Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002. However, the new provisions, which came into operation on the 1st December 2002, do not apply to this claim because the motor vehicle collision which gave rise to this action occurred before the commencement date of the new provisions.
The Claim – The Defence
In summary, the plaintiff alleges that she sustained:
·a spraining injury to her cervical spine;
·a rotator cuff tendonitis or sub-acromial impingement of the right shoulder;
·migraine headaches; and
·a Post-Traumatic Stress Disorder and an Adjustment Disorder with depressed mood.
She alleges that these injuries have not only caused her ongoing pain and suffering but more particularly have permanently incapacitated her from work as a nurse at the Repatriation General Hospital. She claims damages for a number of non-economic and economic losses.
The defendant resists these claims and contends, inter alia, that some of the claimed disabilities pre-existed the accident and/or are disabilities which would have emerged in any event. In particular, the defence queries whether the shoulder injury was caused by the collision at all.
Credibility and Reliability
Defence counsel, Mr James, contended that generally I could accept the plaintiff as credible and reliable. But he then added what he called a number of caveats. He submitted that the plaintiff, in her evidence, was occasionally deliberately uncooperative and even “a little bit belligerent”. He contended that in respect of her complaints about the onset of migraine headaches and as to the range of movement of her right arm, as a consequence of her alleged shoulder injury, her evidence was inconsistent with her presentation to the various treating medical practitioners. Finally, he said that she exaggerated her symptoms, though probably not deliberately. So, said Mr James, her evidence should be weighed with caution.
There were a number of distressful topics of family history, the relevance of which would not have been immediately obvious to the plaintiff. Understandably she was reluctant to elaborate upon them. She was perhaps “a little bit belligerent”. In my view this did not impair her credit. It was an understandable reaction to the intrusiveness of the legal process. Further, I do not find the points made about her lack of consistency at all compelling. In all, I accept the plaintiff as a truthful witness. So too, I accept her as a reliable historian as to the material matters which I need to make findings about.
There was minimal conflict in the medical evidence adduced by both sides. For instance, I do not regard Mr Robin Williams’ reports as being in any material conflict with, for instance, the opinions of Mr Glenn McCulloch. There is a difference of view between the psychiatrists Dr David Kutlaca and Dr Kathryn Tiller. Dr Kutlaca diagnosed an Adjustment Disorder. On the other hand Dr Tiller, in the end, diagnosed a Major Depression and Post-Traumatic Stress Disorder. These are much more serious conditions. I prefer Dr Tiller who gave evidence and convincingly explained her diagnosis. Dr Kutlaca did not give evidence. In the end, I accepted what the plaintiff said about the effect on her of these psychological injuries. The precise label was not crucial to my conclusions.
Pre-existing medical conditions – conditions likely to emerge in any event – onus of proof – causation
As to the issue of whether the claimed disabilities, namely the psychological or psychiatric injuries and the migraine headaches, predated the accident or were likely to emerge in any event, I remind myself that the liability of the defendant is confined to the injuries caused by the accident. Whilst such liability does not extend to disabilities which result from pre-existing conditions, if a pre-existing condition is exacerbated by the effects of the subject collision, then it will be compensable to the extent of that exacerbation. So too, the defendant is not liable for disabilities which were going to arise irrespective of the accident. However, if the accident accelerated the onset of these disabilities and/or exacerbated them, then to that extent the defendant will be responsible (see Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164). As to who bears what onus of proof, Barwick CJ, Kitto and Taylor JJ said at 168 of Purkess v Crittenden (supra):
“We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant.”
As to the general onus, the plaintiff must show that the defendant by her negligent driving has caused these injuries. The causation must be established on the balance of probabilities (see Hall v Foong (1995) 65 SASR 281 per Debelle J at 301; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 355). In particular, what must be proved is that the neglect caused or “materially contributed” to the damage (see Bonnington Castings v Wardlaw [1956] AC 613; Birkholz v RJ Gilbertson Pty Ltd (1985) 38 SASR 121 per King CJ at 130).
The plaintiff’s personal history – background circumstances
I set out hereunder my findings as to the background circumstances. Much of the factual history is uncontentious. There were, however, isolated pockets of dispute. I will identify those areas and make specific findings in respect of them as I traverse what is a narrative.
The plaintiff was born on the 15th October 1952, so she is now 51 years old. She was the second of five children. Her early childhood was not happy. Despite that, she performed well at school. She completed Year 11 at Daws Road High School. In 1970, at the age of 17, she married her first husband Brian, whom she met at school.
After leaving school she undertook teacher training. She obtained a Diploma of Teaching followed by the Degree of Bachelor of Education which was conferred upon her in 1982. In that degree she majored in Health Education. She also completed a Graduate Diploma in teaching English as a second language. Whilst she was studying for her degree, but after obtaining the diploma, she worked as a relieving teacher.
In 1983, or thereabouts, the plaintiff separated from her first husband Brian. They were divorced in 1983 (14). There were three children of that marriage, namely Michael born on the 17th January 1971, Karen born on the 18th February 1972 and Kevin born on the 22nd October 1980 (31).
In 1985, the plaintiff obtained a position as an Education Project Officer with the Drug and Alcohol Services Council (15). She wanted a promotion and in order to obtain it she needed some knowledge of drugs (15). So she embarked upon a nurses training course at the Repatriation General Hospital at Daws Road. She started training in January 1986 (15). She decided to stay in employment at the Hospital. She explained “I just loved it there, I thought it was just where I was meant to be” (15). She completed the three year hospital based nurses training course in January 1989 and so became a Registered Nurse (16).
In the late 1980’s the plaintiff met her second husband Paul. He was a patient at the Repatriation General Hospital. He had lost his right arm and right leg in a motorcycle accident (31). The plaintiff lived with Paul for some years before marrying him in 1992. By then there were two children of this union, namely Benjamin born on the 31st January 1989 and Daniel born on the 22nd August 1990 (31). In 1989, in order to have Benjamin, the plaintiff took maternity leave (16). But in 1990, in order to have Daniel, the plaintiff resigned. She explained that her resignation was tendered on the understanding that she would regain her position at the Hospital when she was ready to come back to work (16). She did indeed return to work at the Hospital in 1991 and remained there until the accident on the 6th April 1998 (17).
She described her work after her return in 1991 in the following terms:
“I was a registered nurse. When I first went, in 1991, I was working in the intensive care unit, where I stayed for several years, and got to the position where I would be in charge in intensive care, so you would have the responsibility for coordinating the whole shift and all of the staff on the shift. After that, I moved from there and worked in surgical wards and, as the children got older, I found the shift work really difficult, so I transferred to working full-time night duty, which suited me better; I was more available for the children.” (17)
She commenced working night shift, (ie 11pm to 7am), in around 1995 (17). She described night shift in the following terms:
“... on night duty, there would only be a sort of minimum amount of staff, so, even though I was in charge, I would need to help shift the patients – the post-operative patients. So there was quite a lot of lifting and moving of patients, because they would be post-operative, so quite sore, and things like that. It was very busy, it was sort of flat out all night sort of work, but it was good, I loved it.” (17)
As at the date of the accident the plaintiff was classified for pay purposes as a Registered Nurse in her sixth year of service. She had been working night shift since 1995 and her income taxation records for the year ending 30th June 1997 show a gross income of $42,861 (see Exhibit P2).
The plaintiff said that when she settled into employment at the Hospital her plan was to “… go up the sort of management ladder …” (41). To that end, approximately 6 months before the accident, she applied unsuccessfully for promotion to Evening Manager which was a Registered Nurse 2 position (41). She said she was planning to continue to apply for such positions until she got a promotion (41).
The plaintiff was regarded by Ms Vivian Ma, the Director of Nursing, as a “competent staff member who was capable and eligible to apply for promotion (167).
Before the accident the plaintiff had an active social life. She played 10-pin bowling, bridge and mixed with her nursing friends and with her husband’s naval friends and entertained at home (41).
I turn to the plaintiff’s previous medical and psychological or psychiatric history. She said that since the age of 30 she had suffered with migraine headaches. She explained that they were sometimes so severe that her doctor would inject her with Pethidine to relieve the pain (18). She said that in recent years modern medications had addressed the pain (18). She detailed several other previous health problems, namely hypothyroidism, a broken arm and two instances of back strain caused by lifting (18, 19). I accept that, putting aside the migraine headaches, none of these injuries have caused long-term problems. In my view, they play no part in this assessment.
Between the 7th and 20th July 1994 the plaintiff was hospitalised in the Fullarton Private Hospital for what she called “depression caused by marital problems” (19). She said that she recovered and until the collision of the 6th April 1998 she was not troubled by any psychiatric symptoms (19). The psychiatrist Dr Kathryn Tiller treated the plaintiff throughout this previous episode. She said that the plaintiff recovered from this bout of problems which she described as “marital difficulties with associated anger and depressed mood as well as migraines” (see Exhibit P1 report dated 30th March 2001 at pp3, 9).
It seems clear, particularly from what emerged from cross-examination of the plaintiff, that her domestic problems continued. In particular, in the period up to the accident, the plaintiff was troubled by strife between her son Kevin and her husband Paul which occasionally erupted into violence (154). Her son Kevin was expelled from school as a result of an alleged assault on another student. There was a civil action against him for damages in respect of that assault (154). Further, the plaintiff’s daughter Karen had a drug problem (159), and Karen’s two children – the plaintiff’s grandchildren, were assaulted by Karen’s partner, Allan, who was the father of one of the children (160). Finally, the plaintiff told the Court that her husband Paul was apparently given to leaving the home from time to time when the internal strife in the household became too much (160). Dr Tiller accepted, as I do, that whilst these matters constituted considerable stresses in the plaintiff’s life, until the accident, the plaintiff was coping. In short, Dr Tiller was not deflected from her diagnosis of what psychiatric problems flowed from the accident.
So such was the plaintiff’s situation as at the date of the accident. I now turn to the accident of the 6th April 1998 and its aftermath.
Accident – 6th April 1998 - aftermath
I accept that the plaintiff received a severe buffeting in the collision. In particular, she suffered:
·either a cervical ligamentous injury or an aggravation of an already degenerative cervical disc giving rise to pain in the neck area and paresthesia down the right arm;
·a dual injury to the right shoulder described as being firstly, a partial thickness tear of the rotator cuff, and secondly, a straining injury to the acromio-clavicular joint causing impingement, both injuries giving rise to pain and restriction in movement;
·onset of more frequent and more severe migraine headaches; and
·a Major Depression and Post-Traumatic Stress Disorder.
Neck Injury
The plaintiff said that immediately following the impact, which she conceded was not severe, she felt pain in her neck “straight away” (20). She consulted her local general medical practitioner Dr Helen Goldsworthy on the day of the accident when she complained of neck pain and attendant restriction. Dr Goldsworthy prescribed ice and Panadol and when the pain and restriction did not abate she referred the plaintiff to the neurosurgeon Dr Glen McCulloch (21). Dr McCulloch, having diagnosed the cervical spinal injury, prescribed conservative treatment such as physiotherapy and pain medication (see Exhibit P1). The plaintiff suffered “pins and needles” extending down both arms which abated after “months” and recurs now intermittently. The plaintiff said of the neck pain that “... there are days when it doesn’t hurt very much but it always hurts” (24). She said that the pain and restrictions in her neck affect her ability, for instance, to drive a motorcar and to attend to her housework (24).
Shoulder Injury
I find that the shoulder injury resulted from the collision. The suggestion that it did not, dissolved in the course of the trial. It is likely, as it was pointed out by the orthopaedic surgeon, Mr Richard Pope, that the plaintiff braced herself in the impact and so strained the joint and tore the rotator cuff (77). The failure of the plaintiff to complain to a medical practitioner until consulting with Mr McCulloch on the 1st May 1998 does not undermine this conclusion. After all the 1st May 1998 is not so long after 6th April 1998. Further, as Mr McCulloch said, the focus of attention was initially the neck sprain (226). So too I am not deflected from this finding by the so-called inconsistent demonstration of arm or shoulder joint movement. Again, I think Mr McCulloch’s explanation of this is more than reasonable. He said:
“Q.What would account for the fact that she’s worse off later, on your second account, at least in terms of free movement.
A.It may simply be that a greater degree of information is present from her using her arm in a fairly normal sort of fashion, or it may also be that the symptoms are more apparent as her neck symptoms have settled. I think what’s important in trying to determine causation is that the first physical examination performed within less than four weeks of the injury does not show a normal shoulder examination. That to me is highly relevant.
Q.And the tear, in the end.
A.Yes, and the fact that it’s a tear, rather than just straight-out degenerative changes is also, I think, relevant.”
(226, 227)
Surgery eventually resolved this shoulder injury but it was preceded by the plaintiff having to withstand some uncomfortable conservative measures. Physiotherapy had no effect and tended to increase the pain. Anti-inflammatory medication did not significantly improve the pain and three sub-acromial injections of cortisone only temporarily improved the situation (28; see also Exhibit P1 report of Dr Richard Pope dated 20.11.01 at p2). So on the 28th November 2001 Dr Pope performed “a right shoulder arthroscopy/rotator cuff repair and open excision of the outer end of the clavicle”. The pain abated some three months after that surgery (24). The plaintiff said she suffers now only a feeling of weakness in the joint (24, 29). She now has a full range of movement (28).
Migraine Headaches
When asked by her counsel about migraine headaches the plaintiff said:
“It was almost like a constant migraine for a couple of months. It was just horrible. It was pain so bad that I was just vomiting and, you know, other symptoms like the flashing – I was very sensitive to light. I sort of went everywhere with sunglasses and spent a lot of time with those little things that you put over your eyes, just in bed, just laying there, because everything was just horrible.” (24)
She said that while she previously suffered with migraine headaches once or twice a month, (52), the migraines she endured for two months following the accident were more severe and they were more frequent than before the accident (24, 25). The migraine headaches now are more frequent. I accept that.
Psychiatric or psychological disabilities
I now turn to the psychological disabilities. In her report of the 21st January 2000, the plaintiff’s local general medical practitioner, Dr Helen Goldsworthy, contended that the plaintiff, as a result of the accident, suffered an exacerbation of her previous depressive illness (see Exhibit P1). Dr Goldsworthy referred the plaintiff to Dr Tiller who treated her in 1994. Dr Tiller saw the plaintiff on five occasions between the 20th November 2000 and the 21st March 2001. She diagnosed a Major Depression and a Post-Traumatic Stress Disorder. Having regard to the plaintiff’s evidence as to her symptoms, (39-41), Dr Tiller’s reports (Exhibit P1) and Dr Tiller’s oral evidence as to the presenting symptoms (122, 123), I accept that the accident caused these two psychological conditions. In particular, I am satisfied that the accident materially contributed to the onset of the psychological injuries. No doubt problems or stresses were in place, but the accident, and its effects on the plaintiff, pushed the plaintiff over the edge. Further, I do not regard it as inevitable that, accident aside, she would have ceased to cope. In particular, I accept that the accident contributed to the collapse of the plaintiff’s marriage. As Dr Tiller said, the marriage “... depended on her being healthy, providing an income, providing sexual function, and I think just generally putting more in, in terms of keeping things together.” (131).
I turn now to my findings as to the aftermath of the accident.
Aftermath
So the plaintiff, in the months following the collision, endured the pain, discomfort and restriction which attended the physical injuries. Further, the psychological injuries took their toll so that her family life became difficult to control. The treatment recommended for the neck injury, namely hydrotherapy, was so painful it caused her to cry (25). She persisted at physiotherapy for a year or so (26). The right shoulder was also painful and the range of movement of her right arm was restricted. The migraines were also disabling and arose if she engaged in physical activity such as cleaning her house (26). She was unable to return to work and nor was she able to attend to her household chores (26). The family helped with essential household work (27). She resorted to chiropractic treatment in addition to the physiotherapy and hydrotherapy (27). She stopped the chiropractic treatment when the defendant refused to continue to pay for it. She gradually became depressed. Arguments erupted between her and her husband. On the 16th November 1998 her husband left the marriage saying “... that he could not handle this anymore ...” (30, 90).
In July 1999, the plaintiff underwent a functional evaluational test for her return to work at the Repatriation General Hospital. The test however, determined that she was unable to resume that employment. Her treating specialist Mr McCulloch would only certify her fit for light duties. The Hospital could not make light duties available to her. The Director of Nursing, Ms Vivian Ma, explained that “light duties” positions were only available to staff injured in the course of work (165; Exhibit P3). It was not until 9th February 2001 that the plaintiff was actually terminated (32; see letter of termination Exhibit P4). The plaintiff became “miserable” and even contemplated suicide (40, 41). She commenced looking for other work.
At the end of 1999 or the beginning of 2000, the plaintiff began a relationship with a Federal Politician, Mr Patrick Secker (92). She was trying to resume her life. She was playing bridge at least once a week (90), and at some stage around about this time tried to resume 10-pin bowling. She was unable to manage the 10-pin bowling and abandoned it in 2001 (113). In June 2001 she worked in Mr Secker’s electoral office replacing one of his staff who was away. She was paid for that work (98). She said that she was hopeful of obtaining a permanent staff job in Mr Secker’s electoral office but he would not agree to it, citing as a reason, the fact that it would not be good for staff morale to have his partner working in his office (99). The plaintiff insisted during this time she was on the lookout for work and was regularly, for instance, consulting the Advertiser and the Australian (104-110). She was then a member of the Liberal Party and in the year 2000 became a member of the Council of the Liberal Party (93). She held various other offices in the Party and sat on advisory committees. The evidence as to this is rather imprecise, but I accept counsel for the plaintiff Mr Stanley’s submission that much of this activity was carried out after hours and should not be regarded as in any way equivalent to sustained work. Indeed, the plaintiff emphasised that much of the time she spent with Mr Secker, apart from the paid time in the electoral office, was weekend time.
On the 24th December 2001 the plaintiff was diagnosed with carcinoma of the anus (see Exhibit P1). This affliction had no relationship to the accident. Over the ensuing four to five weeks she was treated with chemotherapy and radiotherapy. The treatment was successful (see Exhibit P1 agreed report of Colorectal Surgeon Mr Nicholas Reiger dated 15th July 2002). In respect of this ailment, the parties agreed the following facts:
·the plaintiff has gone 18 months without evidence of cancer;
·the lifetime risk of a patient in the position of the plaintiff reduces with the effluxionof time;
·the patient is not regarded as cured until she has been disease free for a period of five years;
·at this stage there is a less than 20 percent chance of the plaintiff’s cancer recurring.
During the period of this chemotherapy and radiotherapy, the plaintiff distracted herself by playing bridge in company with her sister (90). Following or at about the time of this treatment in early 2002, the relationship with Mr Secker ceased (99).
With the help of the defendant’s insurer she secured a nurses job with Clinpath Laboratories on the 17th September 2002 (47; see also Exhibit P9).
Counsel for the defendant submitted that during the period when the plaintiff was in the relationship with Mr Secker, and at the same time appeared to be exceedingly busy working in politics, she had effectively abandoned any prospect of obtaining employment. He submitted that she should be denied any allowance for economic loss during this time. In the end, this submission amounted to a plea that the plaintiff had during this time failed to act reasonably, and therefore should be denied an allowance for economic loss for that period (see McGregor on Damages 16th Ed at paras 282-356; Luntz Assessment of Damages 3rd Ed pp 100-107).
When confronted by the suggestion that she had given up looking for work during her time with Mr Secker, the plaintiff offered a range of responses. First of all she said that she was unsure whether she did apply for other jobs when she was with Mr Secker. She thought she did but she was unsure (104). In the end, she insisted that although she had no written material verifying it, she was on the lookout for employment and was consulting the Advertiser and the Australian on a regular basis (104-110). I accept that. I conclude that the plaintiff was living in the hope that she could not only maintain the relationship with Mr Secker but obtain employment with him. Further, she had withstood considerable rejection and failure by this stage. So I am not prepared to conclude that the plaintiff in this period has behaved unreasonably by devoting her time to Mr Secker. I consider that she was counting on some support and employment with Mr Secker which simply did not come to fruition. In all the circumstances that was not unreasonable. I include “in all the circumstances” her perilous state of health by reason on the accident including in particular the Major Depression and the Post Traumatic Stress Disorder.
So the plaintiff now lives with and cares for the youngest two of her five children, namely Benjamin aged 15, and Daniel aged 13. She works as a nurse with Clinpath Laboratories. She described the work in the following terms:
“I work in a collection centre most days, but also as a nurse that does rounds of hospitals, collecting blood. One day a week I do a round of various hospitals, including St Andrews, Abergeldie and Parkwynd, and Burnside, and the other days I work in a collection centre which is located inside Burnside Hospital, and, as well as working in that collection centre, I go up into the wards and take blood from patients there. Mostly, my job entails collecting blood from people who come in, but also I perform ECGs and arterial blood gas sampling, so I need to take blood from the arteries. As well as that, I do various other things; taking swabs and toenail clippings, and that sort of sampling, for pathology tests to be performed on the samples.” (47-48)
She works 62.5 hours per fortnight plus “an hour or two overtime” and she is paid $18.60 per hour (49). She said that her plan before the accident was, and still is, to work until the age of 65 years (51).
The plaintiff still has neck pain. She explained that there are days when her neck did not hurt very much “but it always hurts”(24). The shoulder is weaker (24). She still experiences migraine headaches particularly on the day that she is “on the road” collecting samples (48). She remains apprehensive about driving, though she is not quite as frightened as before (40). The dreams about the car accident do not occur “so much anymore …” (40). The problems of not feeling safe and an inability to concentrate or remember have abated as has the suicide ideation (40).
I now turn to the assessment
Assessment
Non-Economic Loss – Pain and suffering
As indicated, this action is subject to the constraints of s35A of the Wrongs Act 1936 (SA) as amended. The plaintiff clearly qualifies for non-economic loss (see s35A(1)(a)(i)). The sum prescribed is $1,530.00 (see s35A(1)(b)(i) and (ii)). So, according to the severity of the injuries and the effect of them on the plaintiff’s life, a numerical value of between 0 – 60 is to be chosen and applied to the prescribed sum.
These injuries have had a devastating impact on the plaintiff’s life. They contributed to the demise of her marriage and spelled the end of her prized employment at the Repatriation Hospital. Though she has largely recovered there is ever present neck pain, weakness in the shoulder, more severe migraine headaches and some sequelae from psychological injuries. She will not be able to return to her chosen career as a full time clinical nurse.
In my view the appropriate numerical value is 15. Applying that to the prescribed sum, the allowance for past and future economic loss and pain and suffering becomes $22,950.
There is no interest to be added to this allowance (see s35A(1)(b).
Past Economic Loss – Past Loss of Earnings.
I start under this heading by setting out some matters which might be regarded as obvious.
1)Since 1995 the plaintiff had been working night shift which often spanned weekends or portions thereof. The rosters, (Exhibits P5, P15, and P16), the Awards and Enterprise Agreements (Exhibit P12 and P12A) show considerable penalties or lifts in the basic rates of pay apply.
2)As at the date of the accident the plaintiff was classified as a Registered Nurse Level one in her sixth year of service (i.e. RN1:6). The years of service entitle the nurse to a pay increment. A promotion would have meant that the plaintiff would become a Registered Nurse Level two in her first year as such (i.e. RN2:1).
3)The plaintiff did not work again for the Hospital after the 6th April 1998. However, her income taxation records show payments to her from the Hospital of long service leave and sick leave totalling $13,286.11 (see Exhibit P17). Counsel for the plaintiff, Mr Stanley, submitted that the sum of $10,621.65 should be treated as income to the plaintiff. I accept that and the basis upon which that sum was calculated (342; see Graham v Baker (1961) 106 CLR 340 at 351). Counsel for the defendant, Mr James, accepted that but argued for a discount on the overall allowance for the reason that the said payments to the plaintiff were an accelerated benefit (345). I do not agree that it is an accelerated benefit and so decline to apply any discount for that reason.
4)Before obtaining the job at Clinpath Laboratories the plaintiff worked for the Member of Parliament Mr Patrick Secker. It appears from the evidence that some of the work was paid work and some of it was voluntary. The plaintiff was in a relationship with Mr Secker during this time. There is no accurate quantification of the payments. It is common ground that Exhibit P8 is not exhaustive of the monies paid by Mr Secker. Clearly such payments must be brought to account in the calculation of past economic loss. The 2002 income taxation return shows income to the plaintiff of $11,038.00 (see Exhibit P2). There was considerable discussion during addresses about how I should treat that sum (347-350, 384). It was within the power of the plaintiff to establish whether or not that sum or portion of it was a Government pension or a payment from Mr Secker. She could not or did not do so. I think all I can do is take it on its face. It is income and should be brought to account in full. Further, counsel for the defendant urged me to award no economic loss to the plaintiff for the period she was with Mr Secker on the basis that during that time she had abandoned the notion of working. I confirm my earlier view about that submission (see paras 41 and 42 above).
5)On the 24th December, 2001 the plaintiff was diagnosed with carcinoma of the anus and then was successfully treated. Dr Reiger said that, in all, she would have been unavailable for work from 8 to 10 weeks (see Exhibit P1). So any calculation of past loss would have to take account of the plaintiff’s inability to earn in that period by reason of an unrelated cause.
6)Finally, the earnings from the less remunerative work at Clinpath Laboratories must be brought to account. The plaintiff earned from Clinpath $17,491.00 net to 30th June 2003 (see Exhibit P2) and has been earning at the rate of $18.36 per hour since then.
There were effectively three calculations of past economic loss argued before me, namely the Aggerbeck Calculation (see Exhibit P13), the Defendant’s Calculation and the Plaintiff’s Calculation. These all provided some indication of the plaintiff’s past loss and a basis upon which to value the future loss. In the end, the requirement under both this heading and also in respect of future economic loss, is that I fix a sum which is reasonable recompense to the plaintiff to the extent to which her lost or diminished earning capacity resulting from the accident has been, and will be, productive of pecuniary loss (see Graham v Baker (supra) at 347; Mann v Ellbourn (1974) 8 SASR 298; Medlin v SGIC (1995) 182 CLR 1; Husher v Husher (1999) 197 CLR 138 at 142-143). Placing a reasonable valuation on the entitlement for past loss is an easier exercise than for the future given the closed period and the full earning history leading up to the loss.
I set out hereunder, in table form, the basis for a calculation of past loss. I have borrowed some but not the entire table from the helpful final submission of counsel for the defendant. The table is primarily based upon the Nurses Awards and Enterprise Agreements applicable in the period since April 1998 (see Exhibit P12). As can be seen, the table anticipates the promotion of the plaintiff to Registered Nurse Level 2 on the 1st April 2001.
In order to ensure the calculation is to date, I have obtained a copy of the most recent Nurses (South Australian Public Sector) Enterprise Agreement 2001 which was operative from the beginning of the first pay week following 1st October 2003 to 31st March 2004 which I have marked Exhibit P12A. Further, to bring the calculation up to the date of this judgment, namely 6th May 2004, I have merely continued to assume a net weekly income of $750.00 from 31st March 2004 to 6th May 2004.
Date Classification Gross Yearly Income Gross Weekly Income Tax Net Weekly Income Number of Weeks Loss Total Net Loss for Relevant Period 6/04/98-1/07/98 RN1:6 $34,372.00 $661.00 $137.00 $524.00 12 weeks $6,288.00 1/07/98-1/07/99 RN1:7 $36,801.00 $707.00 $152.00 $555.00 52 weeks $28,860.00 1/07/99-1/07/00 RN1:8 $39,344.00 $756.00 $167.00 $589.00 52 weeks $30,628.00 1/07/00-1/04/01 RN1:8 $40,892.00 $786.00 $175.00 $611.00 39 weeks $23,829.00 1/04/01-1/10/01 RN2:1 $43,855.00 $643.00 $195.00 $648.00 26 weeks $16,848.00 1/10/01-1/10/02 RN2:1 $46,234.00 $889.00 $209.00 $680.00 52 weeks $35,360.00 1/10/02-1/10/03 RN2:2 $49,811.00 $957.00 $231.00 $726.00 52 weeks $37,752.00 1/10/03-31/03/04 RN2:3 $51,305.00 $987.00 $237.00 $750.00 26 weeks $19,500.00 1/04/04-6/05/04 RN2:3 $51,305.00 $987.00 $237.00 $750.00 5 weeks $3,750.00
$202,815.00
So the notional starting figure is $202,815.00. However, the above calculation is made by reference to the basic award salary and does not itself account for the fact that since 1995, in order to maximise her income and suit the management of her home and children, the plaintiff had been working night shift, including weekends. A perusal of the Awards and Enterprise Agreements, (see Exhibits P12 and P12A) shows the following loadings:
·night shift 15%
·Saturday 50%
·Sunday 75%
·a public holiday 50%.
It is notable that the gross salaries, in the Aggerbeck Calculation, which was based upon a randomly constituted night shift roster for an hypothetical nurse, were 17% higher than the basic award salary (see Exhibit P13). Further, in her last full taxation year before the accident, which was the year ending the 30th June 1997, the plaintiff, who was of course working night shift, earned $42,861 when the basic award applicable to her for the following year was approximately $10,000 less namely $33,015 (see Exhibit P12).
The evidence in the case does not indicate that the plaintiff would have forsaken night shift (17, 41, 63). Further, I do not agree that the evidence supports the contention that in order to obtain a promotion, which she wanted, the plaintiff needed to abandon night shift and undertake ordinary day duties. The Director of Nursing, Ms Vivian Ma, repeatedly resisted the suggestion that the plaintiff was disadvantaged by remaining on night shift (167, 177, 178).
So in my opinion the above tabled calculation of what is essentially the starting figure to be reasonable and realistic needs to be increased at least by the night shift loading of 15%.
I agree with the plaintiff’s counsel Mr Stanley that to do so is more than fair to the defendant because it takes no account of the loadings for weekend work. I have come to no concluded view about what the plaintiff’s rosters show as to the regularity of the plaintiff working the early part of the weekends. Counsel could not agree. An “in depth” analysis by me is not warranted, given Mr Stanley’s submission, which sought only an uplift of the notional starting figure for past economic loss by 15% for night shift. Suffice it to say that the plaintiff’s rosters showed she worked night shift weekends on a regular basis (see Exhibits P5, P15, P16).
I increase the notional starting figure for the allowance for past economic loss by 15%. It becomes $233,237 (ie $202,815 x 15% = $30,422 + $202,815 = $233,237).
The above starting figure of $233,237 requires some discounting. The fixing of an allowance for economic loss, both past and future, is effectively the valuation of what the plaintiff would have earned but for the accident. Put another way, the loss of income generally has been proved in accordance with the principles of causation but to quantify it requires valuing what the plaintiff, but for the accident, might have earned.
In arriving at the above figure, I have proceeded on the basis that the plaintiff would have:
·remained in employment at the Hospital;
·remained on night shift;
·obtained the promotion to RN2;
·encountered no illnesses, other than the cancer which occurred in December 2001; and
·sustained no disabling non-compensable injuries in any event.
The above matters are assumptions most favourable to the plaintiff about what might have been the case had the accident not occurred. They are not past events which can be proved as fact. All that can be done is to evaluate the prospect or degree of probability that some or all of the above matters might have come to pass (see Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 542-3; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 per Deane J at 118-119; Luntz Assessment of Damages 4th Ed. pp94-101). A discount is necessary to arrive at a reasonable valuation of what might have been earned. What then should be the extent of it?
As I have indicated, for the past, given the closed period and the long history of working, which facilitates predicting what could be reasonably expected, the “degree of probability” of the above matters coming to pass is high. I think a reduction of 15% is appropriate. So the starting or notional figure becomes $198,252.
That notional allowance presupposes that the plaintiff has earned nothing since the 6th April 1998. That of course is not so. The following deductions are to be made:
· for long service leave and sick leave paid to the plaintiff by the Hospital (see (3) above)
$10,622.00
· for income as disclosed on the 2001/2002 notice of assessment but left unexplained (see (4) above)
$11,038.00
· for the 8 to 10 weeks, but say 9 weeks, of incapacity due to cancer treatment a reduction of 9 x $680.00 (see (5) above)
$6,120.00
· for the net income earned from Clinpath Laboratories from 17th September 2002 to date being
- $17,491.00 net for year ending 30th June 2003 (see Exhibit P2) plus
- $21,580.00 net (re 62.5 hours per fortnight plus 1‑2 hours overtime @ $18.36 per hour being $475 net per week for 45.43 weeks from 30th June 2003 to 6th May 2004) (see (6) above)
$39,070.00
Total $66,850.00 So the notional allowance for past loss becomes $198,252 less $66,850 being in round figures: $131,400.00
In my view there is no basis to further reduce the above allowance. I am of the view that it is a reasonable allowance for the plaintiff’s past loss of earnings. I therefore fix $131,400 as the plaintiff’s past economic loss.
Interest
The plaintiff is entitled to interest on this past economic loss (see s39 of the District Court Act 1991). The period of the calculation is from the date of accident when the liability to compensate arose, namely effectively six years. The sum should be discounted to account for the accumulation of the loss over the period. The parties agree that I should use 6% as the appropriate interest rate. Accordingly, the calculation (ie $131,400 x 6% per annum x 6 years ÷ 2) results in an allowance for interest of $23,652.00.
I turn to future economic loss.
Future Economic Loss – Future Loss of Earnings
The injuries sustained by the plaintiff in the accident have precluded her from returning to nursing work in the hospital environment. The evidence of Ms Vivian Ma together with, in particular, the evidence of Mr McCulloch makes that clear.
The task under this heading of loss is to fix a present sum of money which compensates the plaintiff for the extent to which her diminished earning capacity, as caused by the accident will produce pecuniary loss. Essentially the exercise is that of assessing the present value of the plaintiff’s future earnings as if the accident had not happened.
One method of quantifying this loss is to identify the net weekly loss caused by the effects of the accident and then arrive at a present value of that loss for the plaintiff’s future working life by making an actuarial calculation discounting the resultant capitalised sum if necessary for any foreseeable vicissitudes of life.
I turn then to that exercise.
Given that the plaintiff has a residual earning capacity the present dollar value of her lost earning capacity is the difference between what she would have been earning now had the accident not occurred and what she now earns (assuming she is now doing the best she can as I do). Referring to the table above and loading the net weekly income by 15% for nightshift work her net weekly income, but for the accident would have been $863.00. However, she is now actually earning net per week $475.00. So the extent of her diminished earning capacity expressed as a weekly dollar loss can be reasonably be said to be the difference of the above two sums, namely $388.00.
So I turn to the actuarial tables in order to arrive at a capital sum. The plaintiff is 51 years old. Applying the net weekly loss of $388 to the appropriate annuity value, namely 517.9 produces a capitalised sum of $200,945.00.
I turn to the question of discounting for negative contingencies such as illness, lack of continuity of work and non-compensable disabling accidents. There is no presumption in favour of discounting on the basis of some presumptive reasoning to the effect that the advantageous contingencies of life are inevitably outweighed by the disadvantageous (see Bresatz v Przibilla (1962) 108 CLR 541 per Windeyer J at 543; Campbell v Nangle (1985) 40 SASR 180 per King CJ at 186, 187; Fitzgerald v Goonan [2000] SASC 332; Beare v Slattery (2000) 218 LSJS 338 per Gray J at p.18).
However, in arriving at the capitalised sum of $200,945.00 there are a number of assumptions positive to the plaintiff’s case which have gone into the calculation, namely:
·that the plaintiff would remain in employment at the Hospital until retirement;
·that the plaintiff would remain on night shift till 65;
·that the plaintiff would start the future (ie from 6th May 2004) at least with the promotion to RN2 in place;
·that she would encounter no illnesses; and
·that she would sustain no disabling non-compensable injuries.
Further, the above calculation does not recognise the established risk of the cancer re-emerging and impacting upon her future earnings.
I think a discount is required to account for those matters. I regard 25% as sufficient. So reducing the above figure to that extent produces a notional allowance of $150,708.75.
Another approach is to evaluate the future loss by reference to a percentage loss of work capacity. This methodology involves estimating the percentage extent of a plaintiff’s diminished earning capacity, expressing it as a weekly dollar loss, and by applying actuarial tables, arrive at a capitalised sum which would represent some indication of the present value of the plaintiff’s future loss (see Murray v Dawson (1996) 24 MVR 244 per Lander J at 252, 253; Dessent v Commonwealth (1977) 13 ALR 437; Carson v Knott [1999] SASC 71). If the figure for the percentage incapacity is struck in the most sensible way, this method should arrive at the same conclusion as the earlier approach. The steps are as follows:
·the plaintiff now earns $475 net per week whereas but for the accident she would have earned $863 net per week;
·the percentage reduction in net weekly earnings is 45%;
·therefore the reduction in capacity is 45%;
·the loss per week then is $388 (ie 45% of $863);
·applying that sum to the annuity value of 517.9 produces an undiscounted capitalised sum of $200,945.00.
If however this percentage incapacity was related not to the disparity between what she did earn and what she now earns, but rather some measure of physical incapacity alone such as is seen in medial reports, the figure would be less. The injuries sustained by the plaintiff when considered against the spectrum of injuries generally are not severe. But the consequences of the accident to the plaintiff have been severe. She at the age of 51 years is precluded from her chosen and loved career which at the time of the injury she was exploiting to the hilt. She plainly has the capacity to do many of her previous nursing duties but not all. However, the marketplace demands full capacity. Hence, she has lost her employment. The oft quoted words of Stephen J at 361 in Wade v Allsopp (1976) 10 ALR 353 are appropriate:
“... the process of selecting one from a number of applicants for employment is, on each occasion, an all or nothing affair in which the applicant with diminished capacity may each time be wholly unsuccessful”
As indicated above, in the end, the plaintiff is to be awarded a sum which is reasonable compensation for her future loss of earnings. The above calculations are indicative only. Bearing all the circumstances of the case in mind and having regard to the calculations, I allow the plaintiff $150,000.00 for future economic loss.
This heading of loss attracts no interests (see s35A(1)(k)).
Loss of Superannuation Benefits
The parties agreed that the Court could fix the allowance for the plaintiff’s loss of superannuation benefits at 11% of the assessed damages for future economic loss.
Accordingly, I allow the sum of $16,500.00 (ie 11% of $150,000) for loss of superannuation benefits.
Special Damages
The special damages have been agreed at $1,516.27. The plaintiff has paid that sum (237, 238).
Interest on Special Damages
The plaintiff is entitled to interest on the above sum. I will assume that the payments making up the sum have been made over the period since the accident. The parties have agreed that the applicable rate of interest is 6% per annum. So the calculation (ie $1,516.27 x 6% per annum x 6 years ÷ 2) results in an allowance for interest of $273.00.
Future Medical Expenses
The plaintiff under this heading seeks compensation for the cost of ongoing occasional chiropractic treatment and migraine medication.
As for the chiropractic treatment, from time to time since the accident the plaintiff has resorted to such treatment to address the neck pain. The last consultations before the trial were in March and April 2003 (see Exhibit P14). The surgeon Mr McCulloch said that a treatment every four to six weeks would be reasonable (229). Currently the cost of a treatment is $30.00 (see Exhibit P14). The plaintiff described the beneficial effects of the treatment which was in the nature of a remedial massage (27). As indicated she has recently stopped the treatment because she could not afford it.
The claimed cost of the migraine medication is controversial because the migraine headaches pre-existed the accident and before the accident the plaintiff was using medication. There was ongoing debate at trial about the cost of this medication and the extent to which the plaintiff was entitled to a reduction in the cost of it (248-254). The full cost of the medication is $19.33. The plaintiff has been paying only $3.70 and the government subsidy was $15.63 (248). The schedule of Special Damages (Exhibit P14) suggests the cost to the plaintiff was $3.20. I will work on that basis. The schedule demonstrates the plaintiff purchased this medication on almost a weekly basis.
I have accepted that as a result of the accident the plaintiff’s pre-existing migraine headaches were more severe and more regular. I accepted Mr McCulloch’s explanation of the aetiology of the migraine. It applies to this case (228).
So in my view the plaintiff is entitled to a present sum for the ongoing cost of chiropractic or therapeutic massage. So too, she is entitled to a present sum for the cost of the migraine medication. However, she is not entitled to full reimbursement of this expense because it is plain that she would in any event have purchased this medication. The effects of the accident have exacerbated and increased the frequency of the pre-existing propensity to suffer this form of headache. I infer from this that she now needs to take more than before.
I decline here to make any actuarial calculation. The parameters of these claims are vague and imprecise.
I allow $7,500 for the present value of these two future expenses.
Gratuities Household Services
This heading of loss is circumscribed by s35A(1)(g), (h) and (2). It is accepted that the award here is to be modest and reflect the fact that the plaintiff’s son and niece helped her with household chores in the early months (27).
I allow the sum of $1,000 for these gratuitous services which sum includes interest.
Summary of Assessment
Non-economic loss
(prescribed sum $1,530 numerical value 15) $22,950.00
Economic loss – loss of earnings
Past $131,400.00
Interest $23,652.00
Future $150,000.00Loss of Superannuation Benefits $16,500.00
Special Damages $1,516.27
Interest $273.00
Economic loss – Medical expenses
Future $7,500.00
Gratuitous Household services
Past (including interest) $1,000.00
Total $354,791.27
I will not enter judgment for the above sum. Counsel for the defendant asked me not to do so until he could be heard as to what sums had already been paid to the plaintiff by the defendant.
Accordingly, I will hear the parties as to the judgment to be entered bearing in mind the above assessment and also as to costs.
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