Molloy v Palmer No. DCCIV-98-1848

BETTY MOLLOY v JAYNE ANNE PALMER
[2000] SADC 72

Judge Lunn
Civil

Assessment of damages

I accept the evidence of the plaintiff. It was not challenged by the defendant’s counsel. I also accept the evidence and opinions of the other witnesses. Insofar as there is any conflict between what was said by Mr Paterson, the orthopaedic surgeon called by the plaintiff, and Mr Munyard, the orthopaedic surgeon whose reports were tendered by the defendant, I prefer the opinions of Mr Paterson.
The plaintiff was born on 23 March 1941 and was 59 years of age at the time of trial. She has worked for almost all of her adult life in various secretarial and clerical jobs. From 1980 until July 1994 she worked as the secretary to the manager of the Pipelines Authority. She took a retrenchment package in July 1994 and has since only had casual work. In 1994 she first separated from her husband and the marriage finally broke down at the end of 1996. She has three adult daughters. She continues to live in the former family home at Valley View and has purchased her former husband’s interest in that property. Although it is a much larger home than she presently needs, because of her attachment to it she is likely to continue to reside there. Up until the accident her general health had been good. She had no prior neck, back or knee problems of any significance. Prior to the accident she was an active person with a number of physical sporting and recreational pursuits.
After she left the Pipelines Authority the plaintiff initially had a few temporary jobs. She then again looked for full time permanent employment. Although she made numerous applications, she was unsuccessful in obtaining full time permanent employment. In the 1995 financial year she had some periods of unemployment for which she received social security benefits. She obtained various temporary and casual employment through the Comskil Employment Agency. During much of 1995 she was working casually, but almost full time, for the Child and Youth Health Services, but that job ceased near the end of 1995 and at the time of the accident she did not have any other job arranged.
In the accident on 30 December 1995 the plaintiff was in a stationary car which was forcibly hit from the rear by the defendant’s car. Her driver’s seat broke from its mountings. She was thrown about inside the car and hit her right knee on the steering column. She felt sore in her back and neck and pain subsequently developed in her right knee. She first saw her general practitioner on 2 January 1996 who prescribed rest. Shortly afterwards she had some physiotherapy treatment on her back and knee. In February 1996 she obtained further casual work through Comskil with Child and Youth Health. Although she was still having problems with her lower back and knee, she was able to cope with that employment, albeit with having to do intermittent stretching and exercises to alleviate the pain in her back.
On 13 May 1996 the plaintiff first saw Mr Paterson because of persistent aching and occasional swelling in her right knee. He then thought it was merely an antero-medial contusion which would settle with time. On 18 June she saw him again complaining of increased symptoms of pain and difficulty in walking. He then diagnosed medial meniscal damage and performed a meniscectomy on 28 June. She was away from work for a fortnight as a consequence of this operation. Although Mr Paterson expected a good result after this operation, after about a month her right knee continued to deteriorate with pain, swelling and restrictions in movement and in walking. She was still continuing to experience pain in her lower back and was having intermittent physiotherapy for the back and the knee. At this time her neck was not a significant problem.
In October 1996 the plaintiff started full time casual work with the Firearms Section of the Police Department involving data entry for the guns by-back programme. She worked 35 hours per week while there, but she had to get up and walk around about each twenty minutes because of her back problem. Because of persistent problems with her right knee Mr Paterson carried out further arthroscopic surgery on it on 11 April 1997. She was again away from work for about two weeks after this surgery. She was having hydrotherapy and continued physiotherapy on her knee and back. The right knee continued to deteriorate after this second operation and Mr Paterson advised that it was inevitable that she would require a knee replacement operation.
The plaintiff’s employment with the Police Department finished in August 1997. She then went on a holiday to the USA for four weeks, but she was restricted by her knee in where she could go. On her return she found it difficult to obtain employment. She had a significant period on unemployment benefits. She was continuing to apply for permanent employment, but not surprisingly did not obtain it as she was disclosing some of the problems that she was having with her back and right knee. She was able to obtain some casual, but short term, temporary employment through Comskil. Tests made by Mr Paterson in December 1997 revealed that she had major medial compartment and patello-femoral osteoarthritis in her right knee. She was being prescribed anti-inflammatory medication for her knee and low back, but this was causing her problems with major nose bleeding. On occasions she was needing Panadeine Forte to control the pain, and on many other occasions just Panadol. The function of her right knee continued to deteriorate. From about April 1998 she was walking with a limp and was substantially restricted in the distance for which she could walk. She could not climb stairs or ladders.
In October 1998 the plaintiff left Comskil and transferred to Hayes Personnel in an effort to obtain more casual employment. Through that agency she obtained spasmodic casual work with Auscript typing court transcripts. However, such work was not always available when she wanted it and she continued to have some periods on Newstart benefits in the first half of 1999. More recently she has continued in regular casual employment with Auscript through to the time of trial, but has had difficulties because of continuing pain in her back and neck.
In May 1999 the plaintiff first saw Dr Wright, an occupational physician. He found that she had degenerative changes in her thoracic and lumbar spines, and marked degeneration at the L5-S1. She had some restriction in the normal range of movements at the extremes in her low back.
In June 1999 Mr Paterson gave the plaintiff three injections of Synvisc, which was a new drug for treating arthritis. The results were better than expected and it reduced the pain in the knee and improved its mobility. However, the effect of the Synvisc is only temporary and while its use may enable the knee replacement operation to be postponed, it is still inevitable that the plaintiff’s pain and loss of function in her right knee will require her to undergo the knee replacement surgery in the future. At about this time she was also prescribed Celebrex, which is an anti-inflammatory medication, which did not have adverse side effects. It has also partially alleviated her knee and lower back problems.
In her work at Auscript the plaintiff found she could only manage to work for an average of about twenty hours each week before aggravating her back and neck symptoms. Her knee problems did not restrict her working capacity in this employment. She was continuing to have intermittent physiotherapy and heat treatment for her neck and back. In about October 1999 she substantially increased her working hours in an effort to save some money for a holiday. This led to an exacerbation of her neck problem and to pain in her left arm. The neck pain was affecting her ability to sleep. She then had to reduce her working hours back to about an average of twenty hours per week because of these neck and back problems. She has since not attempted to work more than an average of about twenty hours per week which it was accepted was her reasonable comfort level for working.
On 17 February 2000 the plaintiff was assessed by Ms Morgan, an occupational therapist. She found that she had marked restrictions in neck movement and in the use of her right knee. She found that she was significantly restricted in performing household and gardening work.
No date has yet been set for the plaintiff to have her knee replacement operation. She is not looking forward to it and is keen to postpone it for as long as practicable. It is unclear whether a further course of Synvisc injections will continue to keep her symptoms at a tolerable level. One major incentive for her postponing the operation for as long as possible is that it will reduce the chances of her having to have a second such operation later in life. It is probable that she will have the operation in about the next year or two. It is a major operation involving considerable pain and an extended course of rehabilitation therapy. If it is successful, she could expect to be in hospital for about twelve days and she would require assistance in normal activities for about a further twelve weeks. She would be away from her employment for at least three months after the operation. If the operation is wholly successful, she should not have any major pain in the knee, but it will not have full rotation and she will still be limited in activities such as kneeling, squatting, twisting and bending. Statistically there is about a 5% chance that the operation will not be successful. In that event the plaintiff is likely to have considerable additional pain, extended further periods in hospital and possibly a major permanent loss of function in the knee.
It is unknown whether a successful knee replacement for the plaintiff would last for the rest of her life. There is a significant risk that in twenty to thirty years the condition of the replaced knee would deteriorate to the extent that another knee replacement would be required. There is some prospect, but no certainty, that the plaintiff will require a second such operation.
The plaintiff’s continued low back and neck problems have resulted from natural degenerative changes in her spine which were asymptomatic before the accident, but which have been made symptomatic as a result of it. There is some possibility, but no great likelihood, that some other trauma in her life would have made the degenerative changes symptomatic at some stage even if she had not had the accident. These problems with her back and neck are likely to be permanent. Likewise there is some possibility, but no great likelihood, that other trauma would have caused the problems with her right knee even if she had not had the accident. However, as she has not as yet had any similar problems with her left knee this is some indication that but for the accident it was unlikely that there would have been degenerative problems with her right knee up to the trial.
Under s35a(1)(d) of the Wrongs Act no damages are to be allowed for the plaintiff’s loss of earning capacity in respect of the first week of her incapacity. At the time of the accident she had not arranged any further employment to commence in early 1996. There is some reasonable chance, but no certainty, that she would have commenced other casual employment earlier than she did in February 1996 if she had not been suffering the effects of the accident. From February 1996 to August 1997 the plaintiff did not suffer any significant loss in her earning capacity as a result of the accident except for the periods in which she did not work immediately after the two knee operations. Her earning capacity would have been improved if she had obtained permanent full time employment in that period. I allow her a small amount of damages for the chance that the consequences of the accident deprived her of a chance of obtaining full time employment in that period. Her age was clearly against her obtaining such full time permanent employment even if she had not suffered the accident. It was common ground that the nett difference after tax between what the plaintiff could have earned from full time casual employment if she had not had the accident and the average of twenty hours per week which she was able to work in casual employment from September 1997 until trial was $186 per week. In assessing this loss allowance is to be made for the possibility that she may have suffered similar disabilities from other causes and that in any event she may not have had full time work in this period. I allow $50,000 damages for past economic loss. In this period she received Newstart or similar unemployment benefits. On the evidence it is impossible to calculate how much. Of the $3,993 which was received in the 1994/1995 year it is not disclosed how much, if any, was received for periods prior to the accident on 30 December 1995. I treat almost all of the $13,521 received for such unemployment benefits as being attributable to after the accident. It is likely that she would have had some periods of unemployment even if she had not been disabled from the accident. I find that she would only have had about half of the periods of unemployment if there had been no accident and thus that half of the Social Security benefit would be repayable to Centrelink. In assessing damages for past loss I have also made some small allowance for her disabilities precluding her from obtaining full time employment between September 1997 and the trial.
It is likely that the plaintiff will retire from paid employment at age 65. The chances that she would work beyond this age are roughly balanced out by the chances that she would not have worked to this age. As a result of the disabilities from the accident the plaintiff now only has a future earning capacity based on working an average of twenty hours per week whereas if there had been no accident it would have been about 35 to 37 hours per week. This equates to a nett loss of earnings at present of $186 per week. However, again this must be discounted for the chances that she would have incurred her disabilities through other events and even if the accident had not occurred, the employment market would have been such that she would not have been able to have obtained such additional employment. In addition she will have no income for at least the period of three months after her first knee replacement operation, and possibly for much longer if the operation is not successful. There are also substantial risks that her present casual employment at Auscript may not be available to her after she takes off the necessary time for the knee operation and that sufficient other suitable work will not be available to her in that event for her to work even an average of twenty hours each week. A small allowance is also to be made for the chance that her disabilities have deprived her of the chance of obtaining full time employment between the trial and age 65. Damages for future economic loss are assessed at $45,000.
The outstanding past special damages are agreed at $758. (Many others had already been paid by the defendant’s insurer.)
Even with some improvement in her right knee after the knee reconstruction operation, the plaintiff will continue to need to employ people to do her lawn mowing, other heavier gardening work, window cleaning and house painting. But for the accident she would have done all of this herself, although I make some allowance that she may have needed to have employed someone to do it in any event if she had suffered her disabilities from other causes or because of advancing age. While no evidence was adduced about what would be the commercial cost of painting her whole house I make some significant allowance for painting work as she is house proud and would have been likely to have kept up the good appearance of the house.
The present cost of the knee replacement operation, including physiotherapy, is $20,400. If there are complications, the cost would be much greater. The cost of post-operative domestic assistance is likely to be about $600. The plaintiff will need to have rails installed in her bathroom at a cost of about $200. An allowance is made for the possibility of the cost of a second knee replacement operation in about twenty to thirty years time. The plaintiff will require intermittent physiotherapy in the future on an irregular basis to deal with flare-ups of her neck and back problems. She will have the expense of consulting her general practitioner several times a year and Mr Paterson about once every two years. There is likely to be the cost of at least one further course of Synvisc injections which on present costs would be about $600. There will also be ongoing costs of pain relief and anti-inflammatory medications. I allow $51,000 for future special damages.
Prior to the accident the plaintiff went line dancing four times a week, participated in a walking group twice a week and played social tennis twice a week. Apart from a few occasions shortly after the accident to see whether she could return to such activities she has not done so and will not ever do so. She is restricted in the activities which she can engage in with her seven grandchildren. The appearance of her right knee is such that she does not like to wear clothes which expose it. She can no longer wear high-heeled shoes. She loves travelling, but is now restricted in her activities when she does travel, and in particular in the distance for which she can walk and where she can walk. Her disabilities from the accident have caused, and will continue to cause, a major impairment in her enjoyment of the amenities of life. On the scale of 0 to 60 a numerical value of 10 is assigned for non economic loss. On the agreed multiplier of $1,450 damages for non economic loss are assessed at $14,500.
After the accident the plaintiff had assistance from two of her adult daughters for about one hour every two weeks to assist her in cleaning the wet areas of her house and doing other cleaning tasks which her disabilities precluded her from doing. Because of her daughters other family responsibilities they ceased providing these services at about the beginning of this year. Damages for past gratuitous services are assessed at $500.
The plaintiff is entitled to an award of interest on her past economic loss from the time at which the loss was incurred until trial at a commercial rate, but not in respect of such periods where she has received unemployment benefits. In addition interest at 4% per annum is payable on the past gratuitous services. I fix an award in lieu of interest of $4,500.
In summary the plaintiff’s damages are assessed at:

Past economic loss $ 50,000.00

Future economic loss 45,000.00

Non economic loss 14,500.00

Past special damages 758.00

Future special damages 51,000.00

Past gratuitous services 500.00

Interest 4,500.00

Total $ 166,258.00

[2000] SADC 72

24 August 2000