Nash v Tomkinson
[2009] QSC 252
•3/09/2009
SUPREME COURT OF QUEENSLAND
| CITATION: | Nash v Tomkinson & Anor [2009] QSC 252 |
| PARTIES: | TARA KAITLYN NASH |
| Plaintiff | |
| v SHONA JOY TOMKINSON | |
| First Defendant & | |
| RACQ INSURACNE LIMITED ACN 009 704 152 | |
| Second Defendant | |
| FILE NO/S: | S94 of 2008 |
| DIVISION: | Trial Division |
| PROCEEDING: | Hearing |
| ORIGINATING | |
| COURT: | Supreme Court Mackay |
| DELIVERED ON: | 3 September 2009 |
| DELIVERED AT: | Mackay |
| HEARING DATE: | 25, 26, 27, 28 August 2009 |
| JUDGE: | McMeekin J |
| ORDER: | Judgment for the plaintiff against the second defendant in the sum of $374,631.20 |
CATCHWORDS: DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY where the plaintiff was injured in a motor vehicle accident – where liability is admitted – where damages are assessed under the Civil Liability Act 2003 (Qld) – damages for loss of future earning capacity assessed on the basis that plaintiff would have pursued a career as a professional dancer but for the injury.
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – MITIGATION OF DAMAGES – where plaintiff was injured in a motor vehicle accident – where liability is admitted – where damages are assessed under the Civil Liability Act 2003 (Qld) - where the plaintiff has a residual but unexploited earning capacity – whether the plaintiff has made an election to remain unemployed unconnected to the existence of any compensable injury.
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT –special damages - whether plaintiff established loss arising out of defendant's tort
Civil Liability Act 2003, s 55 s 62
Civil Liability Regulation 2003, ss 3,4 schedule 3, regulation
11, 12
Bugge v REB Engineering Pty Ltd [1999] 2 Qd R 227
Mallett v McMonagle [1970] AC 166Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
| COUNSEL: | J Baulch SC for the plaintiff M Glen for the defendants |
| SOLICITORS: | Macrossan & Amiet for the plaintiff Quinlan Miller & Treston for the defendants |
The plaintiff, Tara Kaitlyn Nash, claims damages for personal injuries suffered in a motor vehicle accident on 30 September 2005. Liability is admitted. It is necessary to assess the quantum of damages.
The assessment is governed by the provisions of the Civil Liability Act 2003 (“CLA”) and the Civil Liability Regulation 2003 (“the Regulation”).
Ms Nash was born on 27 September 1987 and so is presently aged 21 years. She was aged 18 years when injured. At the time of the accident Ms Nash had returned to her home in Mackay from Melbourne. She had enrolled in one of the largest dancing academies in Melbourne, “The Edge”. She was training to be a professional dancer.
General damages
Ms Nash suffered a severe crush fracture of the L1 vertebral body. Dr Shaw, her treating orthopaedic surgeon, described the fracture as a stable. A CT scan carried out on 1 October 2005 confirmed a “burst compression fracture of the vertebral body of L1 with intact posterior elements”.[1] At seven weeks post accident Dr Shaw referred Ms Nash for physiotherapy recording that she “has no pain with the exception of mild left back discomfort with certain activities”.[2] She had made a good recovery and more quickly than the average due to her fitness.
[1] Dr Cook’s description – Ex 5 at p 4
[2] Ex 25
Nonetheless Ms Nash was left with significant disability. There is a loss of more than 50% of the normal anterior body height of the vertebra together with an angular kyphosis and mild scoliosis.
The orthopaedic evidence was consistent that whilst Ms Nash had made a very good recovery she has suffered a disruption to the normal mechanics of the spine and would suffer degeneration as she aged. Dr Shaw considered that in the short term – 5 to 10 years - Ms Nash would do quite well as she was young, very fit and strong for her height (about 165 cms or 5‘6”). However in the longer term, as she ceased to be so active, she would develop back ache at the fracture site and would have chronic back ache of some nature.
The parties are agreed that the appropriate classification of the injury is under Item 91 of Schedule 4 to the Regulation and that the appropriate Injury Scale Value is in the mid range at 27.
The assessment provided relies upon the “Guides to the Assessment of Permanent Impairment” published by the American Medical Association, 5th edition (“the
AMA 5 Guide”) which is the preferred method under the Regulation.[3]
[3] See ss 11 and 12 of Sch 3 of the Regulation.
The parties agree that I should apply s 62(f) of the CLA and calculate general damages at $37,000.
Past economic loss
The plaintiff seeks $59,858 under this head of loss and the defendant contends that there should be no award at all.
The essential assumptions underlying the plaintiff’s submission are that but for the accident she would have completed her training at the Edge by December 2005, entered the workforce in January 2006, and successfully pursued a career in professional dancing with a prospective income of $720 net per week. Given the vagaries of the profession a significant discount was called for and a 40% discount applied. Because of the accident it was submitted Ms Nash had not completed her training until the end of 2007. She then decided to change career paths to accommodate the discomfort in her back caused by vigorous dancing. She determined on a singing career, took singing lessons, and entered into a Recording Services Agreement with Reform Records Pty Ltd (“Reform Records”) dated 14 April 2008 pursuant to which she was to perform and produce albums with a group of girls to be known as the “Rice Girls”. To the date of trial Ms Nash had earned no income from her professional entertaining career.
The defendants’ submission was that the plaintiff had made an excellent recovery, had no ongoing pain or discomfort, and consequently had no restriction on her capacity to dance or engage in any pursuit that she chose. The path that the plaintiff had followed since the injury, the defendant contended, was unaffected by the subject injury.
There are three essential questions to resolve:
(a) Should I accept Ms Nash’s evidence that dancing caused her discomfort and pain to a degree that warranted her looking to an alternative career;
(b) If yes to the first question:
(i) Has Ms Nash unreasonably failed to mitigate her loss by pursuing a career as a professional singer? and (ii) What would Ms Nash’s probable earnings have been but for the injury?
The defendants’ attack on the plaintiff’s credit was based on two pieces of evidence – the DVD evidence of Ms Nash performing subsequent to the accident in an apparently unrestricted way, and her statements to doctors and in the Statements of Loss and Damage which it is said did not accurately portray the extent of her dancing activities.
I reject the attack on the plaintiff’s credit. Whilst it is clear that Ms Nash was quite capable of dancing which involved extreme movements of the spine and for lengthy periods with no apparent pain or restriction that is not the same as the assertion that such dancing had no effect on her. The plaintiff’s evidence, and before the DVDs were shown to her, was that she could dance, and do so in an unrestricted way, and without pain. It was the aftermath she said that was the problem.
There were several pieces of evidence that supported her claim. First her friend, Ms Mancuso, swore that she was evidently in pain after school each day and after performances.
Dr Shaw, her treating surgeon, and a very experienced orthopaedic surgeon called by the defendants, said that he would be surprised, given her injury, if she did not suffer pain following such dancing as he observed on the DVDs.
Jan Millard, the plaintiff’s dancing teacher when she was a child in Mackay, visited the plaintiff in her dressing room after a performance in Melbourne subsequent to her injury, and found her crumpled to the floor and distressed. I am conscious that Ms Millard was very favourably disposed to the plaintiff but I cannot accept that she was making this evidence up. Indeed it only emerged very late in her evidence.
The defendant called evidence from one Craig Phillips, a physiotherapist who treated Ms Nash during 2006. Ms Nash attended on him on 5 occasions between April and September. There was no doubt that Ms Nash attended on Mr Phillips because she was suffering pain in her back and needed assistance. He did not disagree with the proposition that she was distressed at times when she saw him. These attendances confirmed the impression I had that Ms Nash showed great determination in persisting with her dancing despite her difficulties.
Finally the plaintiff, without any doubt, had a passion for her chosen career of dancing. I am quite satisfied that she would not have given up that career unless she was having significant difficulties.
The defendants’ submission that Ms Nash was merely taking a break from dancing and would return when it suited her is an unattractive one. It ignores significant probabilities. The evidence, and evidence relied on by the defendants, is that dancer’s have very restricted careers. They are usually considered too old by the time they are 30. To give up dancing for a year or two in your early twenties is to throw away a significant part of your performing career and when at your peak. The defendants’ argument requires that I assume that Ms Nash, despite her evident passion, was prepared to do this and effectively for no guaranteed return. In my judgment she would not have done this but for compelling reason and that reason was the realisation that to continue to dance at the elite level on a professional basis would involve more discomfort than she could bear.
The reliance on the allegedly misleading statements comes down to a very narrow point. Essentially the defendant says that whilst Ms Nash had said that various movements involved in dancing caused her pain she had not made clear to the doctors or in her Statement of Loss and Damage that the pain was not necessarily during the activity but after it, when she cooled down. These out of court statements depend for their accuracy on the precise question asked and the plaintiff’s understanding of what is the import of the question asked of her. Essentially the submission involves the assumption that the plaintiff would have appreciated when talking to doctors or her solicitor the importance of the timing of the onset of her symptoms and of the distinction between pain during a performance and pain after it. I very much doubt that she did.
Once it is accepted that Ms Nash was suffering pain as a result of her dancing then it is clear she was well advised to try something else. Dr Cook, an orthopaedic surgeon, thought that Ms Nash ought not “endeavour to pursue the dancing component of her Performing Arts as this results in increased back pain”.[4] That, with respect, seems sound advice.
[4] Ex 5 at p 5
I turn to the second issue raised by the defendant – has the plaintiff unreasonably failed to mitigate her loss by pursuing a career as a singer?
It is clear that Ms Nash must have some talent as a singer. Mr Wridgeway, a director of Reform Records, is backing the Rice Girls project financially. He has 30 years experience in the industry and I assume well placed to make these judgments. As Mr Baulch SC who appeared for the plaintiff submitted, the plaintiff has wanted to be an entertainer all her life and it can hardly be said to be unreasonable, given the support that she has received from Mr Wridgeway, for her to pursue a career as such. True it is that the prospective income is uncertain but the rewards, if successful, can be spectacular.
One point that the defendants make is that the contract with Reform Records leaves the plaintiff with a great deal of spare time. She attends for singing lessons on two evenings for a total of 5 hours each week. Ms Nash is required by her contract to make herself “reasonably available for all manner of publicity and promotion, in addition to performances for video recordings and producing merchandising materials” but “subject only to your bona fide professional commitments”.[5] Reform Records took her to Bali from 22nd August to 2nd September 2008 for promotional purposes. The recording of one song can take many months[6] and Ms Nash is
committed to producing an album of at least 10 songs.[7]
[5] Ex 17 cl 8
[6] Ex 6 para 186
[7] Ex 17 at cl 2
Ms Nash has the undoubted capacity to engage in a variety of employments such as retail sales or clerical work. The medical evidence is that she is precluded by her injury only from heavy or moderately heavy work. Given her size (about 49 kgs) it is unlikely that those restrictions would have much effect on Ms Nash’s earnings.
Ms Nash has in fact engaged in some limited work as a casual retail sales assistant from 18 November 2008 to 18 March 2009 with Lolita Clothing working 2 shifts for 4 to 5 hours each day and from 14 May 2009 to the present with Guess, another clothing and accessory store. She presently works for about 10 hours per week and
earns $246.50 net.[8]
[8] The plaintiff’s quantum statement was at variance with the evidence – see para 185 of Ex 6 where she speaks of 13 to 15 hours per week cf T2-7/50. I have assumed that the wages set out are accurate.
Where, as here, the defendant has by her tort taken away the plaintiff’s principal source of potential earnings then an evidential burden comes onto the defendant of demonstrating alternative employment opportunities: see the discussion in Bugge v REB Engineering Pty Ltd[9]. To some extent that burden was discharged. In cross examination Ms Nash said that she could have done more work as a retail sales assistant but, as she didn’t want to, she chose to do less hours and eventually to cease her employment with Lolita.[10] This was not related to any discomfort but reflected Ms Nash’s views on her life choices. While she is perfectly entitled to make such decisions she cannot do so at the defendants’ expense.
[9] [1999] 2 Qd R 227
[10] T2-7/40
The inference that I draw from the evidence is that Ms Nash could have continued her employment with Lolita on much the same basis as previously had she wished. She has foregone something in the order of $1400[11] in earnings as a result of her decision to give up casual work. While Ms Nash’s responses were consistent with the proposition that her employer could have provided her with more hours of work whilst employed at Lolita’s that was not explored and no evidence proffered by the defendant of the availability of more extended hours. The evidence justified some modest reduction of damages for these arguments.
[11] I have used the wages at para 185 of Ex 6 as a guide
The third issue is what would Ms Nash have earned had she not been injured?
The first question that must be addressed is to determine from when it is that the loss should be assessed. Ms Nash contends that she was “on track” to graduate from the Edge at the end of 2005 and would then have commenced work and the submission made on her behalf assumes that as certain. The subject accident occurred in September. The final year assessment was to occur in December.
The plaintiff’s flat mate Ms Mancuso was called to say that she achieved her Certificate III in December 2005 and, in her opinion, she was an inferior dancer to Ms Nash. Hence it was argued it followed that Ms Nash also would have completed her course by that date. The difficulty with the evidence is two–fold – Ms Mancuso was hardly an unbiased observer and she was not shown to have the necessary expertise to make the assessment. Other, better qualified, witnesses were called.
Those witnesses were Ms Bishop, the Course Manager, and Ms Eavis, the CEO and Talent Manager of the Edge. Both were familiar with Ms Nash’s performance at the Edge in 2005. They disagreed as to the likelihood of Ms Nash gaining sufficient competency by the end of the year to achieve her Certificate III in Dance Performance. Ms Bishop thought that Ms Nash would have graduated by the end of the year as she considered her deficiencies as minor things involving timing and posture. She rated Ms Nash as in the top 3 or 4 in her class. Ms Eavis thought that the problem areas were of greater significance.
Both Ms Bishop and Ms Eavis had applied their signatures to a document headed “Edge Mid Year Assessment Standard Sheet” dated 21st July 2005.[12] Both claimed to have been involved in the assessment of Ms Nash at that time. Ms Bishop said that she doubted that Ms Eavis did in fact attend at the assessment but Ms Bishop plainly had no memory one way or the other. Ms Eavis claimed to recall the plaintiff very well. She seemed to me to demonstrate a very good knowledge of the plaintiff’s capacities and of her comparison with others at the school. Her evidence of Ms Nash’s deficiencies at that time was not inconsistent with the evidence that Ms Bishop gave. I am satisfied that both were in a position to make a valid assessment.
[12] Ex 15
There are two significant points. First that mid year assessment sheet was accompanied by another document headed “Competency Based Mid Year Assessment” completed by Ms Bishop[13] in which Ms Bishop considered Ms Nash to be deficient in three areas – Classical Ballet, Jazz Dance, and Musical Theatre. In order to graduate at the end of the year Ms Nash had to achieve competencies in those three areas and maintain the standard that she had reached in 10 others. As a result Ms Bishop recorded “NY” in the section of the document which reads “Yes on task for Competent for end of Year or Not Yet competent” followed by “Y/NY”. In other words the contemporaneous record indicates that Ms Bishop entertained some doubt about competency being achieved by the end of 2005.
[13] Ex 14
Second, Ms Eavis based her assessment on the significance to the course as a whole of Jazz and Ballet. They comprised nearly one-half of the course because mastery was essential for a professional dancer, and were three to four times the importance of the other components of the course. Thus, to be deficient in those areas meant that a deal of work was left to be done.
I am not satisfied that Ms Nash would have achieved her Certificate III by December 2005 if uninjured. The probabilities are that the accident set Ms Nash back about 6 months. She undoubtedly had restrictions and loss of confidence in early 2006 which she had to overcome.
The next question to address is what Ms Nash would have probably done upon gaining her Certificate III. Even if Ms Nash had achieved her Certificate III by December 2005, or by mid 2006 as I think likely, it is far from clear that she would have entered the work force at that stage. As matters transpired she did achieve her Certificate III by December 2006 but then chose to spend a further year at another academy – Patrick Studios Australia (“Patricks”). She plainly did so to obtain further training in dance. Why she thought that was necessary was never clear to me. Ms Eavis said that by the time Ms Nash had finished at the Edge in 2006 she was a fully competent professional dancer. Her technical deficiencies had been overcome. The statement in the Statement of Loss and Damage that she went to Patricks to obtain singing lessons is not in accord with her own evidence or activities. While she took singing lessons at Patricks Ms Nash had not given up her hope of a career in dancing and the majority of her time was spent training in dance. That decision to change careers came at the end of 2007.
Ms Nash said that she left the Edge because the Edge was unable to award her a Diploma in Dance recognised internationally. The Edge lost its accreditation to award such a Diploma during 2006. Patrick’s did not have that accreditation either. Given this history I am not persuaded that it ought to be assumed that Ms Nash would have been ready to go into the workforce in December 2005 or July 2006. I find that but for the accident the plaintiff would have been ready to seek full time work in about July 2007 rather than December 2007.
An argument was put that Ms Nash was not as competent a dancer after the subject accident as before or that she did not achieve the competency that she might have but for the injury. The submission was principally based on Ms Nash’s own view and her assertion that she was a front line dancer before the accident, ie one who was placed at the front of the group during the performance, and was not after. The best dancers she believed were placed at the front. The evidence is far from clear that Ms Nash was disadvantaged in her placement after the accident compared to her position before it. Accepting that premise there remains considerable difficulties with the argument.
The best evidence of the significance of the placement of the dancers can come from the person in charge of the placement to explain his or her reasons. No such person was called. Ms Eavis was not asked to deal expressly with the point but she said that there were three better dancers in Ms Nash’s year and in the following year four more dancers came to the Edge who were superior to Ms Nash. That would explain any lack of front line placement if talent was the significant reason for such placement. As I understood Ms Nash’s evidence the person best placed to say why placements were made was probably Mr Todd Patrick, the Director at the time, who left the Edge to set up his eponymous academy. He was not called.
No one independent of the plaintiff expressed the view that Ms Nash was a less competent dancer subsequent to the accident. The fact that she achieved her Certificate III subsequently, and her evidence that she was capable of dancing in an unrestricted way subsequently, both tend to the opposite conclusion. No evidence was led from any person qualified to express an opinion that there was any noticeable restriction or affect on technique that could be attributed to the back injury. There is no doubt Ms Eavis thought that she was a better dancer subsequently. In my view there is no basis on which to find that Ms Nash’s competence as a dancer, at least at present, has been adversely affected by the accident caused injuries.
I turn then to the assessment of the past income loss. Mr Baulch’s submission assumed that the evidence supported available earnings as ranging from $600 to $900 net per week and took $720 as a mid-point. I am conscious that the attaining of the level of competence attested to by Ms Eavis despite a significant back injury says a deal about Ms Nash’s determination and skill but Mr Baulch’s submission tends to gloss over the difficulties facing the plaintiff.
The assessment of damages for any young person yet to embark on a career is speculative. Here the plaintiff was pursuing a career that was more than usually uncertain. There was the ever present risk of injury such as the dislocated knee that ended the career of Ms Mancuso. The plaintiff was not interested in musicals which further restricted the available work. The plaintiff’s preferred form of work would have been at casinos, here and overseas, and on cruise ships where longer term contracts are offered. Long term contracts are much sought after and hence the competition for positions is fierce – it is not unusual for a hundred or more to audition for a role.
Mr Baulch’s submission commenced with the proposition that few dancers had as promising a future as Ms Nash, that as a result her future was more assured, and hence it was reasonable to base the assessment on the evidence of the career paths and earnings from two accomplished and successful dancers - Ms Louw and Ms Martin. The commencing premise is not made out and in my view neither of the witnesses provides a particularly good guide to the assessment.
While Ms Nash was an accomplished dancer of professional standard that does not mean that she was in any way superior to the hundreds of similarly qualified dancers throughout Australia.
Even had Ms Nash been at the very forefront of her class that was essentially irrelevant to the prospects of obtaining work according to Ms Bishop. But the plaintiff was not at the forefront of her class. While Ms Nash performed well at the academy in Mackay it is quite apparent that the competition in Melbourne was much more significant. Both Ms Bishop and Ms Eavis considered that she was not at the top of her group in 2005. Ms Bishop ranked her about 3rd or 4th in her class. Ms Eavis thought that she was about mid-way in a class of eight. As I have said, according to Ms Eavis, the class of 2006 contained stronger dancers again.
Ms Martin is of a similar age to Ms Nash. No direct comparison was made of their respective qualifications but Ms Martin had completed a Diploma of Dance following a two year course and subsequently won a scholarship to a dance school which she attended for 6 months, neither of which Ms Nash could claim. She commenced seeking work in mid 2007. She earned the bulk of her income from one musical production “Monty Python’s Spamalot” which ran from October 2007 to April 2008 and had performed in another shorter musical called “Crazy For You”. Given Ms Nash’s lack of interest in musicals Ms Martin’s income is therefore not greatly helpful. While it might be said that economic necessity might have forced a change of view that has not been Ms Nash’s approach to life to date. Ms Martin had had about 11 months of work over three years and in addition performed at corporate events on an ad hoc basis about once a fortnight when not in full time
employment. She had a taxable income of approximately $32,000 in 2007-2008.[14]
[14] See Ex 24 - $37,575 gross less $5519 deductions. $33,120 was from the one employer
Ms Louw is aged 30 years and so, in dancing terms, a generation ahead of the plaintiff. She ceased working on cruise ships in 2004 and her evidence is therefore very much dated. She had kept herself in reasonably constant work over seven and a half years on cruise ships and prior to that in casinos. The evidence was that the owners of cruise ships have greatly reduced, if not ceased entirely, their employment of female dancers since the onset of the global financial crisis during 2008. Casino work too has reduced. Jupiters Casino was the only casino with its own production and hence the most stable employment but Jupiters closed that production about 12 months ago. While there were greater prospects overseas the competition too was greater. Finally the global financial crisis has had an affect on employment opportunities in Asian casinos.
There was evidence of a more general kind about prospective employment. On the positive side both Ms Eavis and Ms Bishop thought that attendance at the Edge and their conferring of a Certificate III qualification would be of assistance in securing employment. Ms Bishop said that seven of ten students would obtain employment within 12 months of graduating with placing in the class irrelevant. That opinion of course means that there was a significant risk that Ms Nash would achieve no employment at all within 12 months of finishing her training. .
Ms Heaton, a theatrical agent with considerable experience in the placing of dancers, said that employment in Australia was transient and sporadic. She agreed that only 15% of dancers obtained full time employment, that there was only a very low level of income for dancers in Australia, that most dancers would on average earn less than $15,000 per annum and dancers essentially required a second job to survive. She said that while there was a lot of talent in Australia there was nowhere to put them. Competition for overseas work was intense.
Section 55 of the CLA is relevant to this assessment. It provides:
“55 When earnings cannot be precisely calculated (1) This section applies if a court is considering making an ward of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss. (2) The court may only award damages if it satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. (3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award. …”
Mr Glen who appeared for the defendants submitted that the section made no change to the approach required by the common law. In assessing damages in respect of a past hypothetical event I am required to “make an estimate as to what are the chances that a particular thing … would have happened and reflect those chances, whether they are more or less than even, in the amount which [I] award.”: per Lord Diplock in Mallett v McMonagle[15] cited by Brennan CJ and Dawson J in
Malec v JC Hutton Pty Ltd.[16]
[15] [1970] AC 166 at 176
[16] (1990) 169 CLR 638 at 640.
Doing the best I can I assess past loss of income at $25,900.[17] That assumes that Ms Nash would have earned around the average of $15,000 per annum if uninjured, that the risk of no employment at all is balanced by the risk of significantly better work becoming available[18] and with an allowance for commission, income tax and the failure to mitigate arguments.
[17] $15,000 pa less 10% commission net of tax = $252.40 pw x 108 wks less $1,400
[18] And well paid work according to Ms Testro - if you could get it
I have assumed that the plaintiff would not have exercised her capacity to teach dancing given her expressed disinterest in that course but in any case has a capacity to teach at present if she wishes to exercise it.
Future economic loss
But for her injury Ms Nash would almost certainly have pursued a career as a professional dancer. The various factors that I have mentioned in relation to past economic loss remain relevant.
Ms Louw’s evidence is useful as indicating the longevity of a dancer’s life. She had had a similar background to the plaintiff with her early training in Mackay. She too was accepted into a southern academy for further professional training on leaving school but successfully auditioned for a part at Jupiter’s casino at the age of 17 and so did no further training. She went on to have a successful career, as I have said, dancing principally on cruise ships until 2004 when she married, returned to Australia, and took up alternative employment having retrained as a Dental Nurse. She had given birth to her first child a few days before she gave her evidence. Her connection with dancing in the recent past has been as a part time instructor in a local school in Mackay in 2005-2006.
While the recent downturn in the availability of work that I have mentioned means that Ms Louw’s consistency of employment may not be a good guide to Ms Nash’s future the length of her career sits well with other evidence as being reasonably indicative of the average.
There was a deal of evidence indicating that most professional dancers are aged in their twenties. To work to ones’ mid thirties seems to be exceptional. Limiting Ms Nash’s potential career if uninjured to age thirty is consistent with her wish to start a family by her late twenties.
The first task then is to assess the probable loss over the next 8 years. The findings related to the past loss are meant to reflect Ms Nash’s earnings at an early stage of her career. Greater experience should be of assistance in obtaining better paid work.
Ms Nash has a residual earning capacity. I am quite satisfied that Ms Nash can work full time as a retail sales assistant or as a low level clerk. She may well suffer some discomfort in doing so but I am satisfied that could be kept at reasonable levels by altering her position and similar strategies. In those capacities her earnings could exceed that of a dancer. A full time worker could earn an income in the order of $500 net per week under the Award rates.
Adopting an average of $15,000 per annum for a dancer suggests that Ms Nash has suffered no loss of income but such a comparison ignores the fact that she has lost the chance of the very much greater incomes that are potentially available to a dancer. Long term contracts do come up and incomes in excess of $1300 per week are quite possible. Ms Martin’s income of $37,575 indicates the possibilities. It needs to be borne in mind that was her income in her first professional year.
That loss of a chance needs to be measured against the singing career presently being pursued. Mr Ridgeway considered that the “Rice Girls” concept had better than a minimal chance of success. His involvement he considered added to those chances. His evidence of the current proposals was that he had received a number of offers from overseas TV networks to put together a reality TV program which would “ostensibly” start filming in November and which would be a three month “shoot”. The future depended on support from sponsorship brokers and none had yet been forthcoming. As well the group was close to finishing an album with 10 or 11 songs recorded. The only indication that he gave of potential incomes was a range of incomes from $600 to $2,000 per week. Out of 5000 clients seven had been successful. If successful then the band would probably tour and that required physical stamina that would test Ms Nash’s capacities in my view.
On balance the chances of significant success with the singing career are nowhere near to the same level as with the dancing career.
I assess the loss over the period to age 30 in a global sum of $10,000. To arrive at that figure I have assumed that a professional dancer working full time could gross approximately $50,000 per annum as a reasonable long term average equivalent to a net income of $700 per week after commission and tax. I have assumed a loss then of $200 per week and that Ms Nash had only a 15% chance of achieving that level of income. I have assumed that the chance of significant success as a singer is matched by the chance of significant success as a dancer over and above my
assumptions.[19]
[19] $700 less $500 = $200pw x 346 (multiplier for 8 yrs on the 5% tables) = $69,200 x 15% = $10,380
In my view the significant impact on Ms Nash’s prospective earnings of her injury after her professional career would have ended would be in the field of dance instructor. Ms Nash presently says that she has no interest in teaching dancing but it seems very likely that she would have sought to use that capacity once her professional career was over. The probabilities are that she would have exercised this capacity on a part time basis while raising her family or pursuing other work. Working to maximum capacity she probably would have worked about 20 hours per week for the school terms. I have based that assumption on Ms Louw’s evidence.
While I am satisfied that Ms Nash can still teach dancing, as Ms Eavis says, she clearly will have limitations especially as she gets older. Dr Shaw spoke of her developing a chronic back ache within 5 to 10 years. Ms Millard who conducts the local academy in Mackay, and the one Ms Nash attended, indicated that she would not find Ms Nash attractive as an employee because of her back injury. Ms Louw spoke of the physical nature of the instructor’s role.
Because of the inevitable chronic back pain that she will suffer I think it unlikely that Ms Nash would be capable of exercising this capacity in her now injured state especially on the assumption that this would be in addition to other demanding activities whether they be rearing a family or working outside the home.
The best guide to current levels of pay for a dance instructor was provided by Ms Millard. She pays $25 per hour to young teachers and $30 to $40 per hour for more experienced teachers. Guest instructors can receive up to $180 per hour.
I assess the loss for the balance of Ms Nash’s working life at $225,000.[20]
[20] There are many imponderables but the following is a rough guide: $35 per hr x 20hrs x 40 wks = $28,000 gross = $480 net x 556 to age 60 (902 – 346) x 85% = $226,848
Future Paid Assistance
Mr Baulch contended for an award of $45,210 based on a need for paid domestic assistance of two hours per week over the next 30 years.[21] The defendant contends for an assessment of $10,000.
[21] The agreed rate for the provision of care is $27.50 per hr x 822.
There is no medical evidence to support the claimed need. Ms Mancuso spoke of the difficulties that she had observed that the plaintiff has in vacuuming and cleaning dishes. Dr Shaw confirmed that any activity leaning forward can aggravate back pain and that vacuuming is often the subject of complaint by those who have back pain. Suffering some increase in levels of discomfort however does not of itself justify a need for assistance.
The only restriction that the medical evidence supports relates to heavy or moderately heavy work. The plaintiff will have more trouble later in life than for the next 5 to 10 years.
To compensate for those occasions that such heavier work would arise and for the occasions where levels of discomfort would significantly restrict an ability to perform tasks such as vacuuming I will allow a global sum of $15,000.
Future Treatment & Gymnasium Costs
The plaintiff claims a global allowance of $20,000 principally for occasional visits to a general practitioner, gym membership fees, and the provision of the costs of a personal trainer. The defendant concedes an amount of $5,000.
The medical evidence supports the importance of maintaining fitness and core strength. While there has been no need for medical treatment for some years it is plain that Ms Nash’s condition will worsen with time.
The parties’ have agreed that the cost of gym membership is $750 per annum, of a visit to a general practitioner is $68 and of a personal trainer is $40 per half hour.
In my view the plaintiff’s claim is well founded. It equates to an allowance of about $25 per week over 30 years. Gym membership alone would cost over $14 per week and that is now a necessity for the plaintiff.
Special Damages
There is an argument about special damages.
The plaintiff claims $450 for the cost of various drugs. The defendant’s complaint is that there is no supporting documentation. The claim depends on my assessment of the plaintiff’s credit. I am satisfied that there was a need from time to time for medication. The claim being unsupported by any receipt means that it is really little more than a guess. Given the modest amount claimed (about $2 per week) I am satisfied the cost is reasonable.
The plaintiff claims $4,895 for fees paid to Patrick’s, $7,200 for the cost of taxi fares to get to singing lessons, $650 for other travel costs to get to singing lessons, and $260 for the cost of singing lessons. The defendant contends that nothing should be allowed for these items.
As I have said it is not shown that the need to attend Patricks arises out of the accident caused injury.
In my view the costs of travel to get to singing lessons should not be allowed. As the defendant contends they are wholly disproportionate to the cost of lessons obtained, but in my view there are more fundamental points. For the plaintiff to pursue her dancing career she would almost certainly have been required to travel about Melbourne get to the venues for her performances. I have made no discount in the award for this expense but as this claim shows the costs of getting about a major city with no car or license is very significant. I am not satisfied that these costs would be in addition to the costs that the plaintiff would have been required to incur had she not been injured.
As well it is incumbent on the plaintiff to establish that the loss arises from the defendant’s tort. To that end she needs to show that she had some deficiency in her singing, that that deficiency reasonably needed to be remedied to pursue her singing career, and that these lessons were reasonably effectual in doing so. All that is known is that Mr Ridgeway wants her to attend the lessons. That in my view is not enough to sheet the costs home to the defendants.
I disallow the disputed items save for the costs of pharmaceuticals.
I assess the special damages in the amount of $13,879.55.
Summary
In summary I assess the damages as follows:
Pain Suffering and loss of amenities of life $39,000.00 Past economic Loss $25,900.00 Interest on past economic loss[22] $1,182.49 Past loss of Superannuation Benefits[23] $2,331.00 Future Loss of Earning Capacity $235,000.00 Future Loss of Superannuation benefits $21,150.00 Future Domestic Assistance $15,000.00 Future Treatment Costs $20,000.00 Special damages $13,879.55 Interest on special damages[24] $1,188.16 Total Damages $374,631.20 [22] $25,900 x 2.195% x 2.08 yrs
[23] Past and future calculated at 9% - s 56 CLA
[24] At 2.195% over 3.9 years
Orders
There will be judgment for the plaintiff against the second defendant in the sum of $374,631.20.
I will hear from counsel as to costs.
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