| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MITCHELL -v- MITCHELL [2004] WADC 184 CORAM : BLAXELL DCJ HEARD : 1 & 2 JULY 2004 DELIVERED : 10 SEPTEMBER 2004 FILE NO/S : CIV 2344 of 2002 BETWEEN : ANNE-LOUISE MITCHELL Plaintiff
AND
DOMENIC MITCHELL
Defendant
Catchwords: Damages - Personal injuries - Assessment of damages for serious neck and back injuries - Young pregnant mother with two infant children - Claim for services provided both to plaintiff and by way of replacement of her previous care for family - Pre-accident intention to resume career as legal secretary once children at school - Substantial reduction in residual working capacity - How damages to be calculated
Legislation: Nil
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Result:
Judgment for the plaintiff in the sum of $461,322 Representation:
Counsel:
Plaintiff : Mr K J Bradford
Defendant : Mr G P Bourhill
Solicitors:
Plaintiff : Bradford & Co
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Burnicle v Cutelli [1982] 2 NSWLR 26
Easther v Amaca Pty Ltd [2001] WASC 328
Griffiths v Kerkemeyer (1977) 139 CLR 161
Newman v Nugent (1992) 12 WAR 119
Sullivan v Gordon [1999] NSWCA 338
Thomas v Kula [2001] WASCA 362
Van Gervan v Fenton (1992) 175 CLR 327
Weinert v Schmidt [2002] SASC 340
Case(s) also cited:
Allan v Fletcher [2001] SASC 167
Villasevil v Pickering [2001] WASCA 143
Wylde v 'Arriza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
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1 The plaintiff claims damages for personal injuries suffered in a motor vehicle accident on 16 April 1999. At the time she was a passenger in a motor vehicle being driven by her husband, the defendant, and it is admitted on his behalf that the accident occurred as a result of his negligence. 2 The matter has come on for hearing for the assessment of damages, and the defendant does not challenge the plaintiff's evidence as to her injuries, symptoms, treatment, and residual disabilities. The only substantial issues to be determined (apart from the quantum of damages) concern the level of gratuitous services the plaintiff has required as a result of her accident caused injuries, and the extent to which she has sustained a loss in her future earning capacity.
The circumstances of the accident 3 The plaintiff was born on 14 December 1965 and at the date of the accident was 33 years of age. On 16 April 1999 the plaintiff, her husband, and two children were staying at her parents' bed and breakfast establishment near Nannup. The plaintiff and her husband borrowed her mother's vehicle to travel into town to buy some groceries. While Mr Mitchell was driving on the return journey, he went to overtake another vehicle on a section of road which was being repaired. As Mr Mitchell was performing this manoeuvre his vehicle left the road, hit some trees and overturned.
The plaintiff's injuries and treatment 4 As a result of the accident the plaintiff lost consciousness and woke up to find herself by the side of the road, having been removed from her vehicle by some bystanders. They had taken this step notwithstanding the plaintiff's serious injuries because of their fear that the vehicle was about to explode. 5 The plaintiff was in a lot of pain and was informed by an ambulance attendant that she had "very serious injuries". She was then taken by ambulance to Nannup Hospital and on the way had to be injected with Pethidine for pain relief. 6 From Nannup Hospital the plaintiff was transferred to Bridgetown Hospital where she continued to receive Pethidine injections. At that time the plaintiff was approximately 28 weeks pregnant, and there was considerable concern for the fate of her unborn child. While at
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Bridgetown Hospital the plaintiff was catheterised, and placed in a Jordan frame and cervical collar. Early on 18 April 1999 she was transferred by Royal Flying Doctor Service to the Royal Perth Hospital. 7 Upon admission to Royal Perth Hospital the plaintiff was complaining of pain in her thoracic spine, the left side of the neck, the right shoulder, the left knee, and in her sternum. Upon examination her neurological system was intact but there was tenderness over areas of her spine. An ultrasound revealed the foetus to be apparently viable and normal. Xrays were performed which revealed a fracture of the C6/7 cervical spinous process–lamina and a T7 thoracic flexion compression fracture but without injury to the spinal cord. This compression fracture was assessed as being significant because it involved a 15 per cent loss of body height anteriorly. 8 The plaintiff came under the care of the orthopaedic surgeon, Mr P Woodland. He considered that the C6/7 fracture was stable and could be treated by use of a Philadelphia collar to be worn continuously for at least eight weeks. However, Mr Woodland believed that the thoracic spinal injury was potentially unstable with the risk of progressive flexion deformity if it was not treated appropriately. Although surgery on the thoracic spine was not necessary, he recommended that the plaintiff be confined to bed in a spinal brace. 9 As I understand the facts, the recommended brace could not be applied because of the plaintiff's pregnancy. She nevertheless remained immobilised in bed and had to be "log rolled" by two nurses every two hours. 10 Because of the pregnancy the plaintiff was unable to take strong analgesics and consequently the relief of her pain was very limited. She then developed abdominal pain which raised concerns about the viability of her pregnancy. She also suffered a urinary tract infection which required removal of her catheter. 11 While lying in bed, the plaintiff was postured on her side with pillows. As she could not be showered, personal hygiene was effected by way of sponging in bed. During this time it became evident that the plaintiff was severely psychologically traumatised. In this regard she was claustrophobic and was also anxious about her carers causing further injury whenever she was being moved. 12 On 23 April 1999 the plaintiff was transferred to the Spinal Rehabilitation Unit at Shenton Park. While en route to the rehabilitation
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hospital she was taken to the maternity section at King Edward Memorial Hospital, where an assessment was made that the pregnancy continued to be viable. 13 At Shenton Park Hospital the plaintiff continued with the same regime of confinement to bed, the wearing of the Philadelphia collar, log rolling every two hours, and sponging as and when required. She remained in considerable pain particularly in the neck, back and left knee. Upon admission the plaintiff was unable to void and she developed severe itchiness, bladder discomfort, spasms, and a vaginal discharge. She was then assessed by a urologist who had the catheter removed and placed the plaintiff on antibiotics. The plaintiff also developed a red rash on her neck as a result of sweating under the Philadelphia collar. 14 After three weeks bed rest the plaintiff was gradually mobilised initially by means of a pulpit frame with two persons standing either side. By the time of her discharge from hospital on 13 May 1999 the plaintiff was able to walk without the help of a frame. By that time xrays showed a satisfactory position and alignment of the cervical spine and thoracic spine fractures. The plaintiff was then sent home with special chairs and bath boards and told to report regularly to the Outpatient Clinic at the Rehabilitation Hospital. 15 When reassessed on 27 May 1999 the plaintiff was found to be managing reasonably well apart from experiencing an ache in the lower cervical and mid thoracic regions. On 10 June 1999 the plaintiff was still complaining of some low back pain but this was considered to be a probable result of her pregnancy rather than her injuries. When examined once again on 15 July 1999 the plaintiff had delivered a healthy baby without complication and was not reporting any specific problems apart from tingling and aching in the mid thoracic region. 16 Xrays performed on 15 July 1999 showed that the C6/7 fractures had healed very well with no evidence of instability. The thoracic spine xrays showed a healing fracture at the T7 level with residual flexion deformity (kyphosis) of approximately 20 degrees. The plaintiff was advised that she should progressively increase her activities and remove the Philadelphia collar. 17 From the time of the plaintiff's return home in May 1999 a nanny was appointed and paid for by the defendant's insurer. This nanny remained with the plaintiff for some five or six months and attended to
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daily tasks within the home. However, the nanny did not provide any nursing or other assistance to the plaintiff. 18 For approximately three months after her return home the plaintiff required regular assistance (from friends and relatives) with showering and dressing. She was unable to attend to her young children, and as from 30 June 1999 was breastfeeding her newly born child Lucy. This required Lucy to be placed by others in a convenient position against the plaintiff's breast. The plaintiff continued to avoid strong pain medications by reason of the breastfeeding of her child. 19 By October 1999 the plaintiff still had strong pain and significant restriction of thoracic movements. She was referred by Mr Woodland for physiotherapy and was treated with specific mobilisations, heat, mobility exercises, and postural re-education. This treatment initially resulted in significant improvement, but on 23 November 1999 the plaintiff presented with severe lumbar pain radiating into her left leg and knee. She was found to have restriction of movement around the left sacroiliac region which was thought to be secondary to the prolonged immobilisation associated with the original injury as well as the pregnancy. The treatment that was then prescribed (including the use of a sacroiliac support belt) brought about a significant decrease in pain and improvement in the range of movements. 20 Thereafter the plaintiff's condition stabilised and on 23 March 2000 she was discharged from the Spinal Outpatient Clinic. Xrays at that time showed no progression or worsening of the thoracic kyphosis, and a satisfactory healing in both the cervical and thoracic spines.
The plaintiff's continuing disabilities 21 Although the plaintiff made a very good recovery from her serious spinal injuries, she has been left with a significant upper thoracic flexion/kyphotic deformity (as previously outlined). It is Mr Woodland's assessment that in the long term she will have some restrictions in cervical spine movement and more significant limitations in the thoraco-lumbar range of movement and abilities such as lifting loads. He also considers that there is an approximate 10 per cent chance of developing significant thoracic and/or lumbar back pain in the long term. This is because the kyphotic deformity at the T7 level may result in increased degenerative change as well as compensatory lumbar lordosis (hyper extension) brought about by increased thoracic kyphosis. It is also possible but unlikely that such pain and degeneration may ultimately require surgical treatment (see Mr Woodland's reports of 15 July 1999 and 24 April 2002).
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22 On 12 January 2001 the plaintiff was examined by the orthopaedic surgeon, Mr N J Batalin, at the request of the defendant's insurers. Mr Batalin's findings were consistent with those made by Mr Woodland. He noted an approximate 15 per cent restriction of thoraco-lumbar spinal movements due to the kyphotic deformity at the T7 level. There was also an approximate 10 per cent restriction of cervical movements. In his report dated 12 January 2001, Mr Batalin further noted:
23 It was Mr Batalin's assessment that the plaintiff had been left with permanent disabilities of about 10 per cent of the cervical spine, 15 per cent of the thoraco-lumbar spine as a whole, and 1 per cent of each knee (expressed as a percentage disability of the lower limb as a whole). In his opinion it was also possible that there may be some progression of degenerative changes affecting the thoracic spine, and to a lesser extent, the lower neck and both knees. 24 Mr Woodland was asked to make a similar assessment in his report of 19 November 2002, and in his opinion the plaintiff has a 25 per cent loss of full efficient use of the back including lumbar and thoracic spine, and 20 per cent loss of full efficient use of the neck/cervical spine.
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25 By reason of these disabilities the plaintiff will need lifelong medical follow up requiring attendances on her general practitioner a few times a year and a spinal orthopaedic specialist at least every two years. There will also be the need for intermittent physiotherapy when symptoms become exacerbated. The plaintiff may also need radiological assessment of her injuries every three to five years. (See Mr Woodland's report of 19 November 2002 and Mr Batalin's report of 12 January 2001.)
26 These disabilities have had obvious impacts on the plaintiff's physical capacities, and in particular her ability to lift significant loads, to repetitively bend, and to perform heavy gardening or household chores. 27 As a result of the accident the plaintiff has also suffered a further and somewhat unusual cosmetic disability. At all material times she has had a congenital capillary malformation on the left forehead and upper eyelid which is commonly described as a "port-wine stain". This lesion was reasonably pale and of no great concern to her prior to the accident but it has subsequently become darker with the development of multiple small dark blue nodules within the stain. 28 It is not in issue that the plaintiff's port-wine stain has darkened following the accident and she has been examined by the dermatologist, Mr Carl Vinciullo. It is Mr Vinciullo's opinion that: "The natural history and progression of port-wine stains in many individuals is for them to become darker and to develop nodules. According to the patient's history, there was no indication of these lesions prior to her motor vehicle accident. As a result, it may be feasible that the trauma and bruising in this area has stimulated the development of deeper ecstatic vessels in this area which are now proliferating. To this extent, the development of a port-wine stain may be partly or totally caused by the injury." 29 There is some prospect for treatment of this condition using a laser. In Mr Vinciullo's opinion, 10 or more such treatments (at a cost of $550 per session) should result in considerable fading of the port-wine stain.
The evidence relevant to the plaintiff's claim for services 30 At the date of the accident the plaintiff was not only pregnant but she had the care of her two young sons James (aged 5 years) and Jacob (aged 2½ years). As her husband was in full-time employment, she also had responsibility for the bulk of the family's domestic chores.
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31 The defendant's insurer having accepted liability for the plaintiff's claim, it very sensibly provided the services of a nanny for some six months following the plaintiff's discharge from hospital. During this period the nanny did all of the washing, ironing and cleaning for the family. She also took James to and from school, generally looked after Jacob (including the changing of nappies), did some of the shopping, and performed other odd domestic chores.
32 On week days the plaintiff's husband was away from home between approximately 7.00 am and 5.30 pm. The nanny would arrive at the house before Mr Mitchell left for the day and would depart after he had returned home. As a general rule the nanny would have the evening meal ready for the family before she left. 33 The usual routine was that Mr Mitchell would then bath the two boys, serve the evening meal and clean up afterwards as well as attend to any other chores that remained to be done. The general tenor of the evidence is that chores which previously might have been shared by the plaintiff and the defendant were now performed by him alone. 34 The defendant's insurer also paid for the services of the Silver Chain Nursing Association to attend daily to shower and dress the plaintiff and to attend to matters of personal hygiene. 35 In addition, the plaintiff received frequent assistance from three neighbouring friends (Sue Kipping, Fiona De Koning, and Julie Donnelly), two of whom had nursing qualifications. The plaintiff was particularly reliant upon these friends when the nanny's services ceased, and they assisted with tasks such as showering and dressing, bringing James home from school, preparing meals, ironing, gardening, and helping to care for the baby Lucy following the latter's birth on 30 June 1999. According to the plaintiff, Lucy was called "the community baby" because everyone had a hand in looking after her. 36 It is the plaintiff's estimate that during the first six month period when the nanny was there, the total assistance from her three friends would have averaged approximately three hours per day. During the six month period following the nanny's departure, this assistance (together with the additional assistance provided by her husband) would have averaged approximately five hours per day. These estimates are consistent with the evidence of the relevant witnesses (the proofs of whom have been tendered by consent), and have not been challenged by the defence.
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37 By approximately one year after the accident the plaintiff was able to walk normally but had to be careful in performing many physical tasks. From May 2000 onwards the plaintiff gradually increased her activities and after a period of about three years seems to have reached the stage of maximum recovery. Since then the plaintiff has been able to generally care for her children and to perform a majority of household tasks. The plaintiff does, however, avoid particular tasks which involve lifting, repetitive motions, or adopting fixed postures. These include cleaning the bathroom and ironing.
38 The evidence indicates that the plaintiff's husband still attends to chores such as ironing, cooking, and bathing and showering of the children, which he did not attend to prior to the accident. The plaintiff also continues to receive occasional assistance from her neighbouring friends. Some chores, such as ironing and bathroom cleaning, are performed much less frequently than before. 39 The plaintiff estimates that in order to have all domestic chores performed to her normal standards, and to replace her husband's and friends' additional services, it would be necessary to employ a part-time domestic worker for approximately one day per week.
Evidence relevant to the claimed loss in earning capacity 40 The plaintiff ceased her secondary schooling after obtaining her Achievement Certificate at 15 years of age. She then attended Edwards Secretarial College for one year before obtaining employment. The plaintiff's first job in 1982 was as a hotel telephonist/typist, and she subsequently held a number of positions such as receptionist and secretary. In 1989 the plaintiff obtained employment as a legal typist firstly with the Crown Law Department and then with a private legal firm. Her references from that time describe her as being extremely diligent, competent and efficient. 41 During this period the plaintiff had travelled to Britain for a brief working holiday. In 1990 she returned to Britain for two years and worked as a secretary initially for the legal department of a local authority and then for a medical sickness group. She met her husband in England and married him there on 5 December 1992. 42 Soon after marrying, the plaintiff returned to Perth with her husband where their first son was born on 15 June 1993. Since then, the plaintiff's husband has been in full-time employment as an environmental planner with various local authorities.
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43 It is the plaintiff's evidence that at the time of the birth of her first son, she and her husband had planned that she would return to full-time work once James was attending school. In this regard, her husband's employment was the only source of family income and they have always found this situation to be "quite difficult".
44 As a result of the plaintiff giving birth to her second son Jacob on 6 December 1996 she postponed her planned return to work. It was then agreed between her husband and herself that she would not return to work until Jacob was attending school full-time. Similarly, the plaintiff's pregnancy with Lucy at the time of the accident meant that she had once again postponed her plans for a return to work. 45 It is also the plaintiff's evidence that her marriage has been placed under stress as a result of her injuries, and the injuries that her husband himself received in the accident. A regrettable consequence of this is that the plaintiff and her husband have plans to separate as soon as it is feasible for them to do so. 46 It is the plaintiff's belief that but for the accident she would have recommenced secretarial work upon Lucy entering Grade 1 next year. Her motivation in planning a return to work has always been to pay for the costs of private schooling for the children. Her husband's income is insufficient to provide for this, and according to the plaintiff: "The reason that I was always going to have to go back to work was to pay for school" (T 60). 47 The plaintiff and her husband still have firm plans for the education of their children, and envisage Guildford Grammar School for the boys and St Brigid's or Mercedes for Lucy. It is clear from the plaintiff's evidence during cross-examination (T 70-71) that she and her husband have thoroughly investigated the costs and options for private education of their children and have laid down very firm plans for their future. 48 The plaintiff would still like to be able to take up secretarial work but she considers that she is incapable of doing so. She is currently very involved in the local school and occasionally performs voluntary word processing. She finds it extremely uncomfortable sitting and typing and "it flares up in my T7 straightaway". Because of these problems the plaintiff has in recent times declined two separate offers of employment received via friends (T 68). 49 Mr Woodland has ventured the following opinion as to the plaintiff's residual working capacity:
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"I personally feel that if your client so wished, she should be supported in trying to get back into the workforce. I note that your client's work is usually of a secretarial type nature. I personally feel she would have difficulty obtaining full time employment. It would be difficult to say whether she would manage working part-time duties and I fully accept that in the long term she may well develop fatigue type symptoms in relation to her thoracic spine for reasons including associated degenerative change at the fracture site, also increased flexion/kyphotic deformity making it difficult for her to maintain good upright posture. In summary, I believe your client would have some difficulty obtaining work on the open market on account of her documented severe spinal injuries sustained in 1999. I believe she probably would have part-time employability but depending on the type of work involved. I feel that it would be likely to be difficult for her to return to full-time work." (Report 19 November 2002) 50 In June 2004, and as a result of video surveillance evidence obtained by the defendant's insurer, Mr Woodland was asked to review this opinion. However, Mr Woodland considered that the surveillance evidence did not help to quantify any work capacity and he was not prepared to change his previous opinion: … that this lady would be capable of at least part time employment if it involved light duties/sedentary type work. I would not modify my previous opinion that working part time as a secretary would be within her capacity if she so wished. I still feel that there may be some difficulty in working continuous full time work, mainly because of the possibility of developing fatigue type symptoms in her thoracic spine on account of the significant fracture she had at the mid-thoracic (T7) level. This is because of associated post traumatic degenerative change; also altered posture can be associated with aching and fatigue type symptoms with prolonged posture." (Report 29 June 2004) 51 I also have before me evidence of a statistical nature contained in a report by Professor Charles Mulvey (Exhibit 7). This report provides estimates of the mean labour force participation rates, the mean hours worked, and the probable retirement ages of women having similar age, educational, family and financial characteristics to the plaintiff. If it was
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to be assumed that these statistical estimates apply to the plaintiff, they would establish high probabilities that but for the accident: - the plaintiff would have been a participant in the labour force after her youngest child entering school. - the plaintiff would have been in part-time rather than full-time work and perhaps in the region of 24 hours per week. - The plaintiff would have retired at an age earlier than 65 and perhaps in the vicinity of 55 years. 52 I have also been provided with evidence of the current earnings of legal secretaries and clerks.
The legal principles governing the claim for costs of services 53 The claim made by the plaintiff in respect of the services provided by friends and family subsequent to the accident relates not only to those services which assisted herself, but also those services by way of replacement of the care which she herself had previously provided to her family. As to the first part of this claim, it is now clearly settled as a matter of law that the plaintiff is entitled to the reasonable costs (at commercial rates) of meeting the need for services reasonably required by way of assistance to the plaintiff as a result of her injuries (Griffiths v Kerkemeyer (1977) 139 CLR 161; Van Gervan v Fenton (1992) 175 CLR 327). 54 With regard to the claim for the cost of services provided by way of replacement of those previously rendered by the plaintiff to her family, the legal position is not as well settled. For many years it was considered that a plaintiff could not claim the costs of such services, but was limited to an assessment for the loss of enjoyment suffered as a result of being unable to provide household services to his or her family. This assessment was included in the award of general damages for loss of amenities (see Newman v Nugent (1992) 12 WAR 119, 129). 55 However, this position appears to have changed as a result of the decisions of the New South Wales Court of Appeal in Sullivan v Gordon [1999] NSWCA 338, and of the Full Court of the Supreme Court of WA in Thomas v Kula [2001] WASCA 362. In Sullivan v Gordon a five member bench of the New South Wales Court of Appeal overturned a previous decision of that Court in Burnicle v Cutelli [1982] 2 NSWLR 26
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which had espoused the relevant principles consistently with the decision in this State in Newman v Nugent. The full bench agreed with Beazley J that there was not: "… any logical basis for the distinction drawn in Burnicle v Cutelli between the measure of damages in a traditional Griffiths v Kerkemeyer claim and the measure of damages for the loss sustained by the inability to care for a dependent child. The decision, does not in my opinion, reflect the true nature of a claim of this type, based as it is in a loss of pre-accident capacity which gives rise to a specific post-accident need." (Para 58) 56 In this State the Full Court in Thomas v Kula appears to have followed the decision in Sullivan v Gordon when it increased the award of damages in that case for post-accident household services provided to the respondent by her husband. In this regard the allowance for such services was increased: "… to make up for the extra time which Mr Kula spends performing household activities which the respondent would have performed in caring for him generally." (Para 26) 57 In Easther v Amaca Pty Ltd [2001] WASC 328 Scott J allowed a similar claim in respect of the plaintiff's loss of capacity to look after his mother. It was held that the damages claimed in this respect should attract a separate award rather than be reflected in the allowance for general damages. 58 It is also relevant to note that the Full Court of the Supreme Court of South Australia in Weinert v Schmidt [2002] SASC 340 also adopted the reasoning of Sullivan v Gordon. 59 In the present instance, the plaintiff's accident injuries impacted upon her capacity to provide gratuitous care to the other members of her family. To the extent that she lost that capacity it gave rise to the specific post-accident need to replace those services. It follows that, in accordance with the authorities I have outlined, the plaintiff is entitled to damages for the costs (at equivalent commercial rates) of those replacement services.
The assessment in respect of the services claimed 60 In the present case damages in respect of services are only claimed from the date of the plaintiff's discharge from hospital. It is relevant to
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note that at that time the plaintiff was nearing the end of her term and was approximately 32 weeks pregnant. For the following five or six months the plaintiff had the assistance of the nanny provided by the defendant's insurer for approximately 10½ hours per day. 61 During this first period the plaintiff also was assisted by the Silver Chain Nursing Association at the cost of the defendant's insurer. I do not have evidence of the precise period or the frequency of visits by Silver Chain, but I assume that these were daily visits for the purposes of showering, dressing, and attending to medication. Although these services were significant, Silver Chain obviously would not have been there all the time to attend to the plaintiff's accident caused needs. 62 I found the plaintiff to be a credible witness, and I consider that she has given honest estimates of the services provided by family and friends from time to time in addition to those received from the nanny and the Silver Chain. I accordingly accept that during the initial six month period following her return from hospital these additional services averaged approximately three hours per day. 63 During the whole of this initial period the plaintiff was either in the late stages of pregnancy or dealing with her newly born child. I think it is self-evident that even if the accident had not occurred, these circumstances would have brought about the need for services both to assist herself and to replace those that she normally provided to her family. 64 It follows that the allowance for services during this initial period should be reduced by the quantum of services that would have been provided in any event as a result of the pregnancy and birth of the plaintiff's third child. As a matter of logic and common experience I consider that there would have been times during which the plaintiff in any event would have been in need of assistance for more than three hours per day. One would expect that her husband would in any event have attended to domestic chores that he would not normally have done, and that friends and neighbours would have lent their aid. In my view, the provision of a nanny for 10½ hours per day has effectively eclipsed the potential for any residual claim for services during this period. Accordingly I am not satisfied on the balance of probabilities that there is any entitlement to damages for services rendered during the first six months following the plaintiff's return from hospital.
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65 In respect of the subsequent periods I accept that during the following six months the services provided to the plaintiff by friends and family averaged five hours per day, and that during the next three years such services averaged three hours per day.
66 In respect of the last approximate one year period up until trial, it would seem that the plaintiff has been able to cope without the assistance of her neighbouring friends, but that her husband has continued to perform many domestic tasks (such as ironing, cooking, mowing, and bathing and showering the children) that he did not do before. The plaintiff has been able to resume some chores but has difficulty with particular tasks such as cleaning the bathroom and ironing. Consequently, some of these tasks are not performed to the standard that the plaintiff would prefer. 67 The plaintiff's performance of domestic chores does bring on symptoms and in particular throbbing in her back. Consequently she would like to be in a position to obtain paid domestic assistance once a week, and in this regard: "Morning till afternoon would be fine. That way I'd have the ironing done, I could have sort of the bathroom done and – because we have the easterly winds, we have a lot of dust where we live so – and windows particularly." (T 56) 68 The plaintiff claims that a reasonable allowance for the accident caused need for services during the one year period prior to trial and continuing would be 10 hours per week. This is an average of less than 1½ hours per day and covers the services provided by the plaintiff's husband together with the services (which on the plaintiff's evidence) are required but are currently unmet. In my view, based upon the plaintiff's current family circumstances, an assessment based upon 10 hours per week is fair and reasonable. 69 It has been agreed between the parties that the allowance for services should be based upon a commercial rate of $14.50 per hour. On this basis, the assessment of damages for past loss of services should be as follows:
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(c) For the following approximate 14 months up until the date of judgment: $8,796. 70 It follows that the total award for past loss of services should be assessed at $69,493 together with interest (at the rate of 3 per cent for 4.66 years) of $9,715 (viz an overall total of $79,208). 71 As a result of her accident injuries, the plaintiff will continue to be in need of services for the rest of her life. Future events that will impact on the extent of the required services include the likely separation from her husband, the diminishing need for physical care of the children, and the eventual onset of degenerative changes bringing about a further reduction in her capacities. It is fair to base the assessment for future services on the current need of 10 hours per week, but to make an adjustment for contingencies in respect of the other likely events. 72 The plaintiff has a life expectancy of 44 years in respect of which period the appropriate multiplier is 826.5. The current cost of services is $145 per week and in my view a suitable overall deduction for contingencies in all of the circumstances would be one-third. On this basis, the assessment for future services can be assessed at the rounded off figure of $80,000.
The assessment in respect of loss of earning capacity 73 The evidence satisfies me that prior to the birth of her first child, the plaintiff had a full employment history, and by reason of her competency and efficiency, had little trouble in finding work as a legal secretary. Since 1992 the plaintiff has been out of the workforce, and this situation is entirely attributable to her desire to raise a family. The evidence satisfies me that but for the accident the plaintiff is likely to have sought to return to work during 2005 as a result of her third child starting school. 74 It can be expected that as a result of the plaintiff's 13 year absence from her preferred field of work, and of technological changes, a position as legal secretary might not have been immediately available to her. Nevertheless, the plaintiff has always been highly motivated to return to remunerative employment in order to provide a better future for her children, and I am satisfied that she would have taken up the best of whatever alternative positions may have been available. 75 In this regard, there is a statistical likelihood that a woman in the plaintiff's position would have initially returned to part-time employment. However, in my view, the plaintiff is more highly motivated than the
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statistical average, and the probability is that she would have sought full-time employment albeit with the consequence that during the initial stages there may have been some cost for child care. I consider that the plaintiff would also have been motivated to better herself and take whatever training that was necessary to achieve her preferred employment as a legal secretary. 76 As a result of the accident the plaintiff has sustained a deformity of the thoracic spine and associated degenerative changes which make it difficult for her to maintain the posture, and to perform the repetitive and bending tasks expected of a secretary. I find that she is no longer capable of full-time work as a secretary and I accept Mr Woodland's opinions that "it is quite difficult to say whether she would manage working part-time duties" and that "in the long term she may well develop fatigue type symptoms". I further find that although the plaintiff has some limited residual part-time employability in clerical type roles, she will always have difficulty in obtaining work on the open market. 77 The evidence shows that the range of remuneration for legal secretaries is currently between $40,000 and $52,400 gross per annum. In all of the circumstances I have indicated, I consider it reasonable to base the assessment of the plaintiff's future loss on the assumption that but for the accident the plaintiff would from 2005 have commenced to receive gross earnings of $40,000 per annum (or $600 net per week including superannuation). 78 It is also my finding that it is unlikely the plaintiff would have continued to work until the age of 65. In this regard her motivation for continuing to work would not have been as strong once her children had completed their education. It is also a statistical fact that most women in her situation retire at an age earlier than 65 and usually in the vicinity of 55 years. In my view it is reasonable to assume that the plaintiff would have retired at 55 years of age. 79 The multiplier for 17 years until the age of 55 is 563. After deducting the multiplier for one year (51) to allow for the remaining time before the plaintiff would have commenced work, the net multiplier is 512. It follows that the plaintiff's total loss of earning capacity (prior to adjustment for contingencies) is 512 x $600 = $307,200. 80 From this figure there should be an adjustment for contingencies. The contingencies which might increase the award include the possibilities that the plaintiff might have obtained employment at a
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remuneration greater than $40,000 per annum, that she might have worked beyond the age of 55, and that in her residual condition she may be unable to find any employment at all. Contingencies that might decrease the award include the possibility that but for the accident there might have been another child or some other reason for the plaintiff deferring commencement of employment, that technological changes during her absence from the workforce might have reduced her employability, the normal vicissitudes of life, and the prospect that despite her residual incapacities, there is some suitable remunerative position available to her. 81 In my view a suitable adjustment for contingencies after allowing for all relevant factors would be a deduction of 30 per cent. Accordingly, I assess the plaintiff's damages for loss of future earning capacity to be the sum of $215,040.
Other aspects of the assessment 82 The plaintiff is also entitled to an award of damages in respect of all aspects of her non-pecuniary loss. Pursuant to s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 the amount of damages to be awarded for non-pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded (currently $257,000). 83 In the present instance, the assessment of the severity of the plaintiff's non-pecuniary loss must take account of the significant injuries sustained in the accident including a very serious fracture of the thoracic spine, the prolonged period of treatment and recovery at a very difficult time in the plaintiff's life when she was pregnant and gave birth while having the care of two infant children, the residual disabilities including the kyphotic deformity and the darkening of the port-wine stain, the degenerative changes which have already occurred and are likely to develop further, the impact of these events on the plaintiff's marriage and on her enjoyment of her children, as well as her past and continuing pain and suffering. 84 When regard is had to all relevant factors I consider that a fair determination of the relevant proportion is 30 per cent of the maximum amount that may be awarded. Accordingly, the plaintiff will be awarded the sum of $77,100 for her non-pecuniary loss. 85 The parties have also agreed that the plaintiff should be awarded damages in the sum of $10,000 in respect of future medical expenses. It
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is my understanding that all items of special damage have already been met by the defendant's insurer.
Conclusion 86 It follows that the plaintiff is entitled to judgment for the following amounts:
Non-pecuniary loss $ 77,100.00 Past loss of services (plus interest) $ 79,208.00 Future loss of services $ 80,000.00 Future loss in earning capacity $215,014.00 Future medical expenses $ 10,000.00 Total $461,322.00 87 There will be judgment for the plaintiff against the defendant in the sum of $461,322. There will also be liberty to apply in respect of any obvious error of calculation in my assessment.
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