| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : NORTON -v- MEDCALF [2003] WADC 99 CORAM : NISBET DCJ HEARD : 6-8 FEBRUARY 2003 DELIVERED : 6 MAY 2003 FILE NO/S : CIV 2819 of 2001 BETWEEN : NATALEY JANE NORTON Plaintiff
AND
DAVID ANTHONY MEDCALF
Defendant
Catchwords: Damages - Personal injuries - Motor vehicle accident - Effect of prior accident - Past and future economic loss - Turns on own facts
Legislation: Motor Vehicle (Third Party Insurance) Act 1943
Result: Award of $31,497.49
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Representation:
Counsel:
Plaintiff : Mr T N Cullity
Defendant : Mr B C Sierakowski
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : B C Sierakowski
Case(s) referred to in judgment(s):
Howe v Teefy (1927) 27 SR (NSW) 301
Malec v J C Hutton Pty Ltd (1990) 92 ALR 545
Medlin v State Government Insurance Commission, (1995) 182 CLR 1
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Nil
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Background 1 The plaintiff brings an action in damages for the personal injuries she sustained in a motor vehicle accident on 8 November 2000. Liability is not in issue. 2 The plaintiff was born on 18 March 1967 and was accordingly almost 36 years of age at trial. She left school at age 17 and, looking for a career in nursing, she commenced work in 1985 as a nursing aide in a private C Class Hospital. A difficulty with juvenile arthritis, since resolved, caused her to leave nursing and look for a career elsewhere. She obtained employment in photography laboratories working her way up to the position of supervisor in three years. During this period she became interested in the more difficult types of photographic laboratory work, restoration of old photographs and the like, and this in turn led to an interest in make-up artistry for weddings. During one of her holidays from her photographic laboratory work she undertook a nail technology course and later, in 1992, she undertook a course in beauty therapy and obtained employment part-time at a beauty salon. She then qualified as a beauty therapist whereafter she determined to start her own business coordinating her beauty therapy with her sister's hairdressing salon. Her sister had followed their mother into the hairdressing profession, the mother having started the salon many years previously. The salon was in Cambridge Street in Wembley and the plaintiff's business she named "The Natural Way". In somewhat of an understatement she told the court that the business "didn't thrive financially". Indeed, as came out during cross-examination (!) the plaintiff would work as a shop assistant in a lunch bar in the city from 7.00 am to 10.00 am, her income from that occupation supporting her business. 3 The plaintiff persisted with her business being conducted in this fashion, that is, supported with income from other sources, for about four years during the years 1992 to 1995 inclusive when she said she had to "shut the doors". Apart from the business being unsuccessful she also contracted a contact dermatitis from the solvents and other materials she had to use in the acrylic nails side of the business. 4 Looking for another vocation she completed a real estate sales person's course in 1996 and obtained a job selling real estate with Woolley & Associates in West Leederville. From there she obtained employment with Davey Real Estate in Scarborough, at the same time
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continuing with her beauty therapy but not in a salon. Finding real estate exceptionally competitive she returned to her interest in cosmetics and obtained a job as an in-store demonstrator with Clarins working between 25 and 35 hours a week.
First motor vehicle accident 5 On 30 April 1998 the plaintiff was stationary in her vehicle in Scarborough Beach Road when her vehicle was struck by a glazier's truck causing the plaintiff's vehicle to be "written off". As a result of this accident she sustained injuries to her neck and lower back, the neck injury being restricted, she said, to the left side. Additionally she suffered with headaches, a fractured toe and problems with the lower right leg. She also had difficulties with balance and vision. Her most significant problem following the first accident however was with depression. She was being treated by a psychiatrist with anti-depressant medication for a period of about 18 months. She made a claim for damages in respect of the injuries she sustained in her first accident which claim was settled in or about January 2000. Medical reports relating to the plaintiff's injuries sustained in the first accident came into evidence, among them Exhibits D2 and D4, two reports of Dr John Ker, a rehabilitation specialist and two reports of Mr Nicholas Anastas, an orthopaedic surgeon, respectively. In his report of 6 September 1999 Dr Ker wrote: "I would be hopeful that over time your client's condition would resolve further. I would expect that with ongoing active exercise and strengthening of her axial skeletal musculature, her physical tolerances would improve. I would be hopeful that the intrusiveness of her headaches, which at the current time is modest, would settle further. … Currently your client is undertaking a variety of forms of work relating to the beauty industry, both its practice and teaching. She is performing these on a part-time basis. I believe that she intends to expand the scope of her self employment over the space of the next six to twelve months during which, in addition to her current 'beauty industry' work, she is expressing some interest in work in the retail sales industry for fashion clothes and footwear.
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I believe at the present time she has the capacity to work in and around 3 – 4 hours per day, although she often finds that her work function is preserved best, currently, by having days of absence from work to recuperate from the previous days activity. I would expect that over time this would improve further." 6 By way of comparison, Mr Anastas in his report of 15 March 1999, some six months earlier, wrote: "On her presentation to me today I would pass her as being fit to return full time to her pre-accident occupation as a promotional demonstrator for a cosmetic company. She is further fit to continue with her teaching role as a beauty therapist and as indicated above this does not involve her in any more than lecturing and allowing her to sit and stand at will. She mentioned today that she is now tiring of beautician work and envisages doing a course as an interior decorator." 7 In October of 1999 the plaintiff met her present husband who motivated her to wean herself off her anti-depressant medication and to return to full-time employment. With the assistance of persons who gave her introductions to employers she found casual work and ultimately found a job at the Australian College of Beauty Therapy. She was successful in obtaining a position there as a lecturer in beauty therapy for two classes a week, that is to say for about six hours. When she took this position she understood her hours would increase and in October of the year 2000 the plaintiff was told that another lecturer was thought to be unsatisfactory and that her position would becoming available and she was asked if she was interested and she said that she was. At this stage she was pregnant with a baby due in January or February the following year.
The accident 8 On the late afternoon of 8 November 2000 the plaintiff was on her way to work. She was seven and a half months pregnant. She was stationary behind another vehicle in Cedric Street, Osborne Park waiting to make a right hand turn onto the freeway when she saw a bus coming up behind her which looked as if it was not going to stop. It did not. The plaintiff's car was thrown forward and then bounced back from the car in
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front of her and then apparently hit again by the bus, bouncing it out into the far left hand lane, spinning it so that it finished up in front of the car which had originally been in front of the plaintiff's vehicle. The bus driver immediately stopped and ran to apologise. The plaintiff was in shock. She had a mobile telephone and called her husband, a police officer. Each of Mr Norton and his partner arrived in separate vehicles at the scene of the accident within a short time. The plaintiff was very concerned for the welfare of the baby she was carrying. She said: "I actually thought that the baby had got squashed by the steering wheel and my concern was obviously of the baby. As far as feeling, did I feel any sensations, I can't remember that far back." 9 The plaintiff's husband took her to Osborne Park Hospital which in turn sent her to King Edward Memorial Hospital by ambulance and from there she was taken to Sir Charles Gairdner Hospital but returned to King Edward Memorial Hospital where she stayed for four days. In hospital she was very worried about the baby. It did not move for about a day and a half following the accident. The plaintiff was terrified that she would lose her baby. 10 Upon her discharge from hospital the plaintiff returned to work at the Australian College of Beauty Therapy because, she said, it was so close to the end of the term that she was concerned that her employers would not be able to find another lecturer. 11 Notwithstanding the plaintiff's various complaints, medical practitioners were reluctant to prescribe medication or strong analgesia because of the imminent birth of the baby. Her general practitioner gave her some acupuncture and a mild herbal tonic to assist her. The plaintiff's daughter Jessica was born on 1 February 2001.
Injuries and symptoms 12 Dr Koh notes in his report of 17 December 2000 (he having first seen her on 17 November 2000) that she complained to him of neck pain, left shoulder pain and low back pain. Examination was consistent with her complaints of pain, Dr Koh noting additionally that the plaintiff was tender over both buttocks. 13 Mr Peter Watson, a neurosurgeon, examined the plaintiff on 15 December 2000. In his report of that date Mr Watson noted that
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immediately following this accident the plaintiff complained of a recurrence of symptoms in the cervical spine involving the left sided paraspinal muscles, headaches in the left occipital region and the post auricular region and pain bilaterally into both scapulae. He noted that she also had lower back pain radiating from the buttocks up into the paraspinal muscles and pain down the posterior aspects of both legs. He said that she had severe pain in the coccyx region and on a manual examination he thought there may have been some coccygeal trauma "or even a fracture". 14 The plaintiff's evidence about her injuries and symptoms following the accident are coincident with those of the medical practitioners and to my mind it is particularly relevant that the plaintiff felt well enough to be able to return to work albeit it on a reduced basis after the accident and before her baby was born. 15 After the birth of her baby however, her reporting of her symptoms changed. In evidence she said that her symptoms "became a lot more savage, you could say. I don't know if it was from the delivery because I had an emergency caesar but the pain – everything started to come out, to settle down, so to speak, the bones, etcetera, from giving birth so the pain was excruciating after the birth, yes. I couldn't lift Jessica. I couldn't put her to my chest to breast feed her. I couldn't carry her and bath her – nothing." Notwithstanding this description she said that she went back to work three weeks later doing one class of three hours a week from 6.00 pm until 9.00 pm and later two classes per week. The report of Dr Koh of 16 March 2001 is also a little at odds with her description of her symptoms at that time. He wrote: "Her low back pain has improved and most of her symptoms are in the upper back. She currently states that her leg and low back pain is sporadic in nature and her neck pain has also improved significantly; instead of being constant it is now intermittent in nature. She however complains of upper and mid back pain, which she describes as being constant and approximately 6 out of 10 in intensity. She currently works 6 hours per week, but is unable to perform some of her housework. She is unable to do any vacuuming or hanging out of clothes, as well as scrubbing the bathroom. Her symptoms are aggravated by carrying her baby during breast-feeding." 16 Dr Koh repeated these observations in his report of 3 July 2001. He stated:
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"[The plaintiff] has had an exacerbation of symptoms which is related to nursing her baby. She currently works 6 hours weekly as a beauty consultant and for a period of 3 weeks was working 15 hours weekly. [The plaintiff] copes well with her work as it does not entail much physical extension. She is, however, experiencing much pain with nursing her baby and with lifting." 17 Mr Norton said that his wife struggled after the birth of their daughter. He said that she had a lot of difficulty holding the baby, that she was unable to pick her up and hold her normally, certainly for any length of time "… and I basically took over a lot of the mothering duties, if you like". Mr Norton then went on to explain, as the plaintiff had previously, that he had originally planned to take two weeks of his annual leave at about the time the baby was born but upon seeing the plaintiff unable to cope he arranged to take accumulated long service leave and other leave for some five and half months during which time he said he did practically everything except breast feed the child. 18 This evidence has to be compared with Exhibit P7 the weekly Time Pay and Wages book for the Australian College of Beauty Therapy which shows that after the birth of Jessica on 1 February 2001 the plaintiff returned to work in the week ending 28 February in which week she worked three hours and from then on there is a regular pattern of employment averaging six hours a week in the months of March and April increasing in May and June to 71 hours and 37½ hours for those months, respectively. There was another increase in July of 2001 and again in October of 2001 with the months in between varying considerably. These reduced in December and January of 2001, 2002 respectively, when I understand that the school closes down for a summer vacation anyway. And further, the plaintiff moved with her husband to Yarloop on 12 February 2002.
The move to Yarloop 19 Each of the plaintiff and her husband explained that in April of 2000 they, together with the plaintiff's sister bought a house in Innaloo the idea being that the three of them would share all of the costs including those of a significant mortgage. At this stage the plaintiff did not know that she was pregnant and each of she and her husband had planned that she would be returning to work full-time in the near future having gradually increased her hours of employment and having gradually recovered from her depression arising out of the first motor vehicle accident. Certainly,
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when the plaintiff discovered that she was pregnant her work hours did not diminish and I accept the evidence of the plaintiff, Mr Goodwin and Ms Murphy that the plaintiff was being considered for a full-time position to replace another lecturer in the business whose employment was to be terminated. After the plaintiff's (second) motor vehicle accident and the birth of her child her ability to work increased hours was suddenly significantly curtailed which put great financial pressure on Mr Norton. The seeming solution to all of this was for him to apply for a transfer out of his then position as a senior constable with the Major Crime Group working as a forensic major crime scene investigator, and to return to country service where, as the officer in charge of a country station he received additional allowances, picked up some bailiff work and enjoyed the amenity of rent free housing. He applied for and obtained the posting to Yarloop which has had the financial attractions it was thought to have but regrettably has placed a great deal of strain on the parties' marriage such that there is talk of them separating. 20 The plaintiff described the move to Yarloop as being particularly stressful for her. She describes herself as being miserable and hating it. Additionally there was an unplanned pregnancy which spontaneously aborted for reasons she is unsure of but ascribes to her stressful situation. Both the plaintiff and her husband said that they were considering a situation in which the plaintiff would return to Perth to be near her family with Mr Norton remaining in Yarloop for the balance of the minimum term of his posting viz another two years. 21 Nevertheless the plaintiff has undertaken some work in Yarloop. She has a contract to clean the police station which she does with her husband's assistance. She has arranged a couple of hours a week at the Harvey Senior High School teaching grooming and deportment. She has made a couple of friends at the Day Care Centre.
Current symptoms 22 The plaintiff's evidence about her current symptomatology was a bit vague but to be fair, she was never asked outright to describe them. Evidence about her current symptoms was however led through Dr Ker and in particular through his report of 7 January 2003. In that report he described a consultation with the plaintiff which had taken place on 10 December 2002. At that time Dr Ker noted: "[The plaintiff] continues to describe dull headaches and neck pain as a result of her previous accident. She describes her
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23 Further describing this consultation in the course of his evidence to the court, Dr Ker said that on this occasion the plaintiff was:
"… deeply concerned and distressed by the simple fact of her restriction that she found in her day-to-day living as a result of her pain. She was tearful, she was describing at time [sic – at that time] disruption with intimate matters with her husband. She seemed to be rather more hopeless with respect to securing improvement in her functioning, being able to manage and control her pain. It was actually a consultation in which her whole demeanour was very different from my three previous experiences. On my three previous experiences I found this lady to report accurately her symptoms and identify for me the life that she had crafted despite her pain. On this occasion it did seem that much of that robustness, if you like, had finally drained away." 24 Nevertheless it is as well to record that none of the medical practitioners who have examined the plaintiff and have referred her off for various forms of radiological and other examinations have been able to find any underlying pathology which explains her symptomatology. They all put it down to "soft tissue injury". And all agree that recovery from this type of an injury is, generally speaking, just a matter of time. In the case of Mr Peter Watson however he did add that in his experience where there was a soft tissue injury on top of a previous injury of a similar type or to a similar part of the anatomy, recovery generally took longer. He
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stressed he was not aware of any epidemiological studies to this effect but this was his own experience. The way I understood it, a second injury of the soft tissue type can be seen as having some sort of layering effect upon the first.
Future employment capacity 25 This then brings me to a consideration of the plaintiff's future employment prospects. Dr Ker thought that the plaintiff would return to perhaps 20 hours employment per week although when he could not say. He added that he would be surprised if the plaintiff was able to achieve a return to work in excess of 20 hours per week. 26 Mr Watson was asked whether there was any reason why the plaintiff could not undertake anywhere between six and 30 hours work a week both at TAFE and the Australian College of Beauty Therapy if she was to return to Perth and those positions were available to her. He thought she could work as a lecturer for that range of hours. Mr Nicholas Anastas, an orthopaedic surgeon, testified that he had seen the plaintiff and reported on his findings upon examination after both of her accidents and that as far as he was concerned on his assessment of the plaintiff on 11 December 2001 she was fit for full-time work. 27 Dr C S Koh was the plaintiff's general practitioner. He was to give evidence in the trial but I was told that due to a misunderstanding he did not attend at the time arranged for his appearance and instead his reports were admitted into evidence by consent being a bundle of reports Exhibit P6 and a further bundle of reports relating to the first motor vehicle accidents which were received into evidence by consent as Exhibit D5. In various of his reports Dr Koh indicates that the plaintiff was capable of continuing in employment for the varying times she described, for example, on 16 March 2001 Dr Koh reported: "[The plaintiff] currently works 6 hours weekly. She is somewhat limited in what she can do at home and a significant part of her time is taken up with looking after her child. It is likely that she should be able to continue working 6 hours weekly. Should she choose to resume her lecturing at TAFE or the Australian College of Beauty Therapy, I see no reason why she should not try working additional hours." 28 On 3 July 2001 Dr Koh reported:
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"[The plaintiff] is coping with working as a lecturer on beauty therapy, working up to 15 hours a week and she should be able to continue in this capacity." 29 And, finally, Dr Koh reported on 6 November 2001: "[The plaintiff] will be unable to work full-time as a beauty therapist at this time. She is however coping well with her work as a lecturer. She continues to have problems with lifting and doing repetitive work which involves holding her arms in the forward position. She should be able to continue working in the capacity as a lecturer working 9 – 12 hours a week." 30 The plaintiff's evidence about her retained income earning capacity was somewhat scant. It is, of course, complicated by the fact that she now resides with her husband in Yarloop as previously mentioned, and that opportunities for employment in and around Yarloop are significantly limited. Certainly the range of employment available there is not the same as would be available to her in Perth. She testified that she kept in touch with the proprietors of the Australian College of Beauty Therapy who had offered her full-time employment if she had returned to Perth. This was confirmed by Mr Goodwin. In this connection however it is difficult to discern what "full-time employment" means but, doing the best I can with the evidence as it was presented to me, it did not seem to me that it meant 35 hours a week or more for 52 weeks of the year less annual leave, public holidays and the like. However, I have come to the firm opinion that the plaintiff is fit to resume her pre-accident duties. The absence of any underlying pathology to explain the plaintiff's symptomatology, the evidence that the plaintiff's injury being of a soft tissue type would heal in time and her active pursuit of employment whilst living in Yarloop are all strongly suggestive to me that the plaintiff has made an effective recovery from her injuries and has been fit to return to her former duties for some time. It is the fact that she is in Yarloop which prevents her from obtaining remunerative employment, not her injuries.
Assessment of damages 31 The parties were in general agreement that there are in this case four heads of damage left for my determination they being general damages, economic loss, gratuitous services and future treatment. The plaintiff's claim for special damages have been agreed by the parties in the sum of $292.60.
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General damages
32 As was pointed out by the Full Court in Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997, since the insertion of the provisions of s 3A, s 3B, and s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 ("the Act") assessments of general damages in awards to which those provisions relate requires the putting of the "nature and extent of the injuries sustained by the [plaintiff] and their effects into a category of 'a most extreme case' ". (Per Franklyn J at 13.) Whilst he did not expressly say so Franklyn J approved the reasoning of the Court of Appeal of New South Wales in Southgate v Waterford (1990) 21 NSWLR 427 dealing with the provisions of s 79(2) of the Motor Accidents Act 1988 of New South Wales which is to similar effect as the provisions of the Act. He cited with apparent approval the judgment at p 440 which set out the methodology involved in an assessment of this type: "There are a number of ways by which trial judges could approach the task of apportionment required by [the Act]. It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by [the Act]. But clearly, because the task in hand is that of awarding damages for 'non-economic loss', it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by [the Act] be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and [the maximum amount]; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'. " 33 In this case counsel for the defendant urged upon me a view of the evidence which would categorise the plaintiff's claim as being in the range of 5 to 7½ per cent of a most extreme case and, accepting that the present maximum amount is $240,000 to be awarded for "a most extreme case" the maximum amount which could be awarded to the plaintiff in his
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submission was the sum of $18,000 less the deductible amount provided by the Act of $12,000, leaving a net award for the plaintiff in the sum of $6,000. 34 I turn now to try and put the plaintiff's injuries, her pain, suffering and loss of amenities within the context of a most extreme case. I have remarked earlier in this judgment that there are some incongruous features of the plaintiff's presentation to the court and to her medical practitioners save for one attendance upon Dr Ker in December of 2002 when he obviously thought that the plaintiff was the worst he had ever seen her. I apprehend however that this was an emotional state and there was some difficulty on the evidence in disentangling the factors which were obviously causally related to ie, caused by, the negligence of the defendant and those which were not. Largest among these emotional factors are the plaintiff's failure to come to grips with life in a small country town as the wife of the local senior policeman. This feature of West Australian life is not confined to the plaintiff. It is shared by the spouses of schoolteachers, public servants and others for whom a country posting is part and parcel of the job. The question is whether what I might term for the sake of brevity as "the Yarloop factor" is to be regarded as compensable. The difficulty here in finding a causal relationship between the Yarloop factor and the defendant's negligence is the dearth of evidence on the point. I was not given any chapter and verse of the financial positions of each of the plaintiff, her [now] husband and her sister when they purchased the house in Innaloo in April 2000, the inability of the plaintiff and her husband to manage which was given as the central cause for their decision to move to Yarloop. It may very well have been that the hopes of the plaintiff and her husband that the plaintiff would return to full-time employment were misplaced having regard to the continuing effects of her first accident, and that managing what seems to be a large mortgage would always have been beyond them. Hence the plaintiff would not have proven that the Yarloop factor is compensable. Clearly there seems to have been some element of a calculated risk on the part of the plaintiff and her husband because Mr Norton told me that he viewed the purchase of this house as a "roundabout way of trying to get the plaintiff back to working full time" after her first accident. 35 In the end result, after a careful analysis of the evidence I have not been persuaded by the plaintiff on the balance of probabilities that the additional factors of stress and distress, of isolation and anxiety, of separation from her sick mother and the like are matters which are compensable and accordingly I will not be making any allowance for those matters. Notwithstanding this finding however the plaintiff was
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clearly subjected to a most distressing accident. It is difficult for a man to imagine the feelings of anxiety and fear that a woman would face when seven and a half months pregnant she is involved in an accident of the type the plaintiff had to endure. I think too, that it would be difficult for a woman who has not ever experienced pregnancy to appreciate what this must have felt like for the plaintiff. Then there was the fact that the baby did not move for about a day and a half following the collision and then again there must have been the wait until the baby was successfully delivered, albeit it by an emergency caesarean section, to see if it was truly healthy. These matters take this case out of the ordinary in my opinion. This is not just another case involving soft tissue damage to the neck and lower back which might have been categorised in the way it was put by counsel for the defendant. 36 Next I look at the loss of amenity of life that the plaintiff endured following the birth of her child. I accept her evidence that the birth brought on a renewed bout of symptoms or an exacerbation of the symptoms she was already experiencing, whichever it may be. This does not strike me as being at all unusual. But I do have some reservations about the depth of its impact, particularly as the plaintiff went back to work at a job which she otherwise described as being somewhat difficult to perform on a full time basis because of the postures involved and the like. True it is that her hours were not great but I would have thought that had she been as debilitated as what she said, she would not have been able to have managed any employment, at least during the five and half months that her husband took off to assist her with the care of the child. Nevertheless there is no doubt that the plaintiff suffered a loss of appropriate contact with her newborn baby because of her injuries and the residual effects of this upon the plaintiff cannot be ignored. It is a truly precious time which has been lost to her. There is, too, the additional strain placed on the marriage by understated but clearly present difficulties with intimacy. The physical symptoms themselves have gradually waned, as my review of the medical evidence suggests. They are at a level now where I think they are manageable and where I think it can be confidently predicted that in time, that is within the immediately foreseeable future of the next year or two, with this case behind her, there being no underlying pathology to prevent it, the plaintiff will return to her pre-accident state of health. 37 Bringing all of these factors together in my opinion the plaintiff's pain, suffering and loss of amenities is in the proportion of 10 per cent of a most extreme case and it follows that I reject the submissions of counsel for the defendant that to categorise the plaintiff's pain, suffering and loss
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of amenities as being one tenth of that of say a quadriplegic, would be wrong. This would ignore the incremental effect of 10 per cent upon 10 per cent upon 10 per cent etc, etc, etc. This means that the plaintiff's award under this head is $24,000 less the $12,000 deductible under the Act leaving a net award of $12,000.
Economic loss 38 Whilst acknowledging that this head of damage is ordinarily dealt with separately for its past and future components, counsel for the defendant submitted that in this case the plaintiff's evidence fell so far short of being able to establish any readily identifiable past loss and any readily calculable future loss that the two should be dealt with together "globally". By this I understood him to mean in essence that the assessment was just too difficult to perform. Difficulty of assessment of damages has never been a bar to assessment however, a court simply just has to do its best with the evidence presented: Howe v Teefy (1927) 27 SR (NSW) 301 where Street CJ said at 306: "… If a plaintiff has been deprived of something which has a monetary value, a jury is not relieved from the duty of assessing the loss merely because the calculation is a difficult one or because the circumstances do not admit of the damages being assessed with certainty." 39 Accordingly, I will do my best with the evidence to make an assessment of damages in respect of each of past and future economic loss. In the circumstances the plaintiff put forward a claim for past economic loss which can only be regarded as large and, she did it late by amending her answers to the defendant's request for further and better particulars of her alleged economic loss to substitute a claim for $10,957.41 with a claim for $49,888.95. By those amended particulars the plaintiff pleaded:
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earned $514.00 net per week on average instead of approximately $216.00 net per week on average. On that basis the Plaintiff's average net loss per week is not less than approximately $298.00 net per week: $298.00 net per week x 160 weeks to trial = $47,680 $47,680 + $2,208.95 = $49,888.95" 40 The sum of $2,208.95 therein referred to is a reference back to Particular 1(d)(i) which reads: "Save for the accident, at TAFE the Plaintiff would have earned a net sum of $40.17 net per week between the 8th November 2000 and the 18th December 2000 and between the 7th January 2001 and the 18th December 2001, being 54.99 weeks or $2,208.95 in total." 41 In my opinion, however, this claim ignores the potential effect of the plaintiff's pregnancy and subsequent birth of her child upon her earnings bearing in mind that her baby was born on 1 February 2001 and it further ignores her previous earnings history as accepted by her as being accurately set out in the document Exhibit D1. 42 Certainly there was evidence before the court by two witnesses Mr Ian Goodwin and Ms Winifred Murphy, the proprietor and enrolling officer respectively of the Australian College of Beauty Therapy that the plaintiff would have been offered increased hours and have taken over what they regarded as the full-time position previously occupied by a Ms Priscilla McKnight. But a full-time position in this connection in the words of Mr Goodwin was a minimum of 24 hours over three days "with a possibility of 5 days". Additionally it is to be noted that the Australian College of Beauty Therapy appears to have operated its business along the lines of a school taking holidays at roughly the equivalent times of school holidays. Certainly the plaintiff said that the College wound down over December and January. Whether there were other breaks during the year is difficult to say and an examination of Exhibit P7 does not assist in this regard. Further, there was no evidence called from the West Coast College of TAFE which would assist in identifying what her likely income would have been at that place was it not for the accident.
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43 There is one final difficulty with the plaintiff's claim in this regard which must also be noted, and that is that the particulars of claim and the basis of calculation of the plaintiff's claim for past economic loss, makes no attempt to bring to account the plaintiff's actual earnings as opposed to her average earnings. Further it was not explained to me how a calculation from 7 January 2001 to the date of trial would reveal a calculated loss over a period of 160 weeks ie, in excess of three years when, doing the best I can, the period in question is a little over two years.
44 All of the different factors in tension with one another in any attempt to calculate the plaintiff's past economic loss – the definitive past history versus the conjectural future; the real impact of the plaintiff's pregnancy and childbirth if it was not for the accident – all conspire to suggest to me that I must undertake an assessment of the type described by the High Court in Malec v J C Hutton Pty Ltd (1990) 92 ALR 545 at 549: "If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. … The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place." 45 In my opinion the plaintiff's past income earning history coupled with the probable impact upon her earning capacity of the birth of her child does not inspire confidence that she would have increased her hours of employment to 26 hours per week as claimed. In my opinion the prospects of that occurring were evenly divided and I propose therefore to make a calculation based upon that premise. Likewise there was no evidence upon which I could rely that the plaintiff's position with TAFE would have continued. Accordingly, I calculate that for the period
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following the accident until the move to Yarloop in February 2002, a period of 15 months, the plaintiff had a prospective loss of about $200 a week or $13,000. Allowing that in my opinion her prospects of realising this income were evenly divided, I will allow $6,500 for past economic loss for this period. [I pause to observe that when I refer to the plaintiff's past income earning history, for the financial years 1993 to 2000 inclusive, her average earnings gross per week, before deduction for business expenses and ignoring income from social security were $126.49.] After the move to Yarloop, the position is somewhat more complex. Whilst I have not made any allowance in general damages for the anxiety and distress felt by the plaintiff in consequence of this move, the position with regard to economic loss has to be viewed somewhat differently because the question is whether the plaintiff continued thereafter to suffer a loss of income earning capacity – see for example Medlin v State Government Insurance Commission, (1995) 182 CLR 1; 127 ALR 180. 46 The medical evidence is divided. Mr Anastas thought the plaintiff fit to resume her pre-accident duties on 11 November 2001 when he examined her (Exhibit D3 refers), ie, before the move to Yarloop the following February. Mr Watson thought the plaintiff was fit to work at her pre-accident level of employment when he last saw her in December 2002 (T130), but at about the same time Dr Ker saw her at her worst. On balance I prefer the views of Mr Anastas and Mr Watson. Putting one emotional consultation to the side, they approach that of Dr Ker who is more cautious. Doing the best I can with the evidence, I think the plaintiff is now fit to resume her pre-accident duties and hence for the period following her move to Yarloop and up until judgment I must make some assessment of her loss of income earning capacity, which I assess in the sum of $2,500. This is "global" in the sense that I can't quantify the loss any better on the state of the evidence. 47 I turn now to the calculation of future economic loss. The plaintiff's claim for future loss of earning capacity was (very) broadly put as follows: "The plaintiff claims a global sum of $50,000 for loss of perimeter of employment." In my opinion the plaintiff is now fit to resume her pre-accident employment and accordingly I make no provision for future economic loss.
Gratuitous services 48 The claim for gratuitous services was restricted to the period immediately following the birth of the plaintiff's daughter on 1 February
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2001 when her husband took five and a half months of accumulated annual and long service leave in order to assist the plaintiff and care for their daughter. The calculation is to be made at an agreed rate of $12 per hour and notwithstanding the uncontradicted evidence that Mr Norton continued thereafter to render as much assistance to the plaintiff as he could both personally and in respect of her mothering duties for their daughter, no claim has been made past that which I have just described. Mr Norton said that he spent between four and five hours a day in his estimation during that five and a half months performing almost every chore in respect of the baby and on his wife's behalf as could be imagined, doing everything practically except breast feeding the child, as he put it. Mr Norton was an honest and straightforward witness in my opinion and I have no reason to doubt his evidence. I thought it was reasonably and modestly put. There was no attempt to gild the lily and, further, he acknowledged that even if it had not been for his wife's accident he would have still have been involved in the incidents of care as his work commitments would have permitted him. Counsel for the defendant conceded that Mr Norton was a fair witness and that he was not gilding the lily but asked rhetorically whether the services he rendered were gratuitous services. The answer to this is, I think, in the fact that initially Mr Norton had only planned to take two weeks of annual leave to be at home with his wife and newborn baby but seeing the extent of his wife's dependency after the birth of the baby he made immediate arrangements to take further accumulated leave. I have no doubt that he would not have taken this additional leave were it not for the position that his wife was in. The Act of course provides that there can be no award for gratuitous services unless the threshold amount of $5,000 is exceeded which, in my opinion in this case it clearly is. In this regard I think it is appropriate to take four and a half hours a day for February, March, April, May, June and half of July of the year 2001. On my calculation this is 165 days which, multiplied by 4.5 hours gives 742.5 hours, which at $12 an hour is the sum of $8,910. Counsel for the plaintiff said that this calculation came to $9,072 but it was not explained to me how this sum was arrived at.
Future treatment 49 This head of claim may be shortly dealt with. The plaintiff wanted a "small global award for future treatment" whilst at the same time conceding that there was no evidence to support the claim at all. There will be no award for future treatment in the absence of any evidence
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which establishes on the balance of probabilities firstly, that it is needed, and secondly, over what likely future period and thirdly, at what cost.
Special damages 50 Special damages as already noted have been agreed in the sum of $292.60.
Interest 51 The plaintiff claims interest on economic loss and gratuitous services which, being losses accumulating over time, involve applying half an appropriate rate (6 per cent) over the whole period and hence I am prepared to allow 3 per cent per annum on $16,610 for the period from 8 November 2000 to judgment which is 2.41 years hence $17,910 x 3 per cent x 2.41 years = $1,294.89.
Summary General damages $12,000.00 Past economic loss $9,000.00 Future economic loss Nil Gratuitous services $8,910.00 Future treatment Nil Special damages $292.60 Interest on past economic loss, gratuitous services $1,294.89 Total $31,497.49
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