O'Reilly v Wilkinson No. DCCIV-98-97 Judgment No. D33

O’REILLY V WILKINSON

[1999] SADC 33

JUDGE BURLEY. The plaintiff claims damages for personal injury arising out of a motor vehicle accident. Paragraphs 1 and 2 of the statement of claim (which have been admitted by the defendant) are as follows:-
“1..... On the 29th January, 1995 at about 11.00 am the plaintiff was a pillion passenger on a Harley Davidson motor cycle registered no. TGW-291 being ridden by the defendant in a southerly direction on the main road between Morgan and Swan Reach in the State of South Australia.
2...... At the time and on the road above described the defendant lost control of the said motor cycle on a sweeping right hand bend causing the motor cycle to leave the said road, slide on the gravel and hit a post causing the plaintiff to fall off the said motor cycle.”
The plaintiff pleaded that the accident was caused solely by the negligence of the defendant and that has been admitted by the defendant.
It is not in dispute that the plaintiff fractured her left wrist as a result of falling off the motor cycle. I find that after the motor cycle hit the post referred to in paragraph 2 of the statement of claim, the plaintiff fell off the motor cycle to the left of the motor cycle, she attempted to break her fall by bracing herself with her arms, that in carrying out that movement her left wrist was fractured when she hit the ground and that the position of the fracture was at the waist of the left scaphoid bone which was displaced with angulation. I find that she was admitted to the Flinders Medical Centre on 29 January 1995 and discharged the following day. Her wrist and lower left arm were enclosed in a plaster which she wore for a period of eight weeks. There was continuing non-union at the fracture site. On 18 August 1995 the operative procedure of bone graft and screw fixation was undertaken and a further plaster was applied. That plaster was removed on 1 November 1995. On 30 September 1996 the screw previously inserted was removed.
The plaintiff claims damages for non-economic loss, economic loss, loss of superannuation benefits, special damages and gratuitous services.
The plaintiff maintains that she has continued to suffer pain and disability in respect of the injury to her left wrist since the date of the accident and that her disability is permanent.
Some aspects of the plaintiff’s claim were not the subject of dispute and may be summarised as follows. The plaintiff is entitled to recover as part of her claim for economic loss, the sum of $700.00 for the period of eight weeks immediately following the accident when she was unable to resume work. It is not in dispute that immediately prior to the accident she was earning approximately $100.00 per week net after taxation. The provisions of Section 35A(1)(d) of the Wrongs Act preclude recovery of damages for loss of earning capacity in respect of the first week of incapacity. Consequently she is entitled to an award in the sum of $700.00 for the period of eight weeks after the accident.
It is not in dispute that the plaintiff’s father performed a number of services for the plaintiff after the accident which attract an award of damages for “gratuitous services”. The defendant accepts that the amount that she be allowed for such services is the sum of $375.00 and I award that sum.
During the course of the trial the parties informed me that the defendant had by his insurer paid all but $190.00 of the plaintiff’s medical expenses. Consequently the plaintiff’s claim is limited to that sum and I award that sum as past medical expenses.
So far as damages for non-economic loss are concerned, I am required to assess those damages in accordance with the provisions of Section 35A(1)(b) of the Wrongs Act. That provision is as follows:-
“(b).. if damages are to be awarded for non-economic loss, they shall be assessed as follows:
(i).... the injured person’s total non-economic loss shall be assigned a numerical value on a scale running from 0 to 60 (the greater the severity of the non-economic loss, the higher the number); and
(ii)... the damages to be awarded for non-economic loss shall then be calculated by multiplying the prescribed amount by the number assigned under subparagraph (i);”
It was agreed that the prescribed amount is $1,450.00. The award so calculated is for past and future non-economic loss. The non-economic loss contemplated by the provision is for pain and suffering and loss of amenities experienced by the plaintiff as a result of the injury she sustained in the accident. It is necessary to determine the nature and extent of the injury in order to arrive at the proper assessment of damages under this heading. My findings as to the nature and extent of the injury are also relevant to the question of non-economic loss both past and future.
The plaintiff gave evidence as to the pain and suffering and disabilities experienced by her since the accident. She was an impressive witness. She did not seek to exaggerate her claim. On the contrary, she presented what I consider to be a balanced and sensible view of the nature and extent of her injury. She called her father and the defendant (who is her partner) to give corroborative evidence relating to the nature and extent of her injury and disabilities. They were both credible witnesses and they corroborated the plaintiff’s case in a material way. The pain experienced by the plaintiff and the disabilities to which she is subject have been confirmed by the medical evidence, in particular the evidence of Dr G Jose who originally examined the plaintiff at the request of the defendant’s solicitors.
Dr Jose took a thorough history and I find that all the essential elements of the history taken by Dr Jose have been established by the plaintiff at trial. It forms a convenient summary in relation to the position of the plaintiff up to 19 May 1998 when Dr Jose wrote his report to the defendant’s solicitors. I quote from Dr Jose’s report:-
“SUBJECT ACCIDENT
This occurred on 29/1/95. She told me she was riding pillion on a motor bike and they were on their way to Swan Reach to a Bike Show. They had come off the ferry at Morgan and were on the last part of their trip to Swan Reach. The rider was on a sweeping bend and evidently took it too fast at an estimated 100kph. He got into some gravel and lost control of the bike and hit a white post. The rider kept on the bike and went down the embankment and then up again on to the road but in the process Ms O’Reilly had been dislodged and had fallen with both her arms outstretched and had also damaged the left side of her helmet. She was wearing leather gloves and jacket and leather boots and she was quite familiar with both motor cycle riding and pillion travelling. She had no loss of consciousness. She told me her left glove had worn through with the friction on the gravel and she had some grazing on the front of her wrist but this was not bleeding and was not major. This seems to have been her only major injury.
An Ambulance which had come over on the ferry with them stopped and asked her if she needed any help which at that time she did not but she had a sore left wrist. She went on to Swan Reach to the Bike Show and during the day had to get some Panadol from another Ambulance person who was there for the Show and later in the day she had to use a sling.
They came back to Adelaide that night and she went to Flinders Medical Centre she thought around 9.00pm. By that time her wrist was very swollen and sore and the examining Intern who was Dr Wangel as I read this photocopy of the Flinders Medical Centre notes had admitted her to Hospital and kept her fasted for what she thought was an operation to reduce and internally fix the fracture the following morning. Evidently she was seen probably by Dr Krishnan, Orthopaedic Surgeon, or one of his team in the morning and he advised plaster immobilisation which was done and she was discharged on 30/1/95.
I note she saw Dr Zimmerman 3╜ weeks later. She took the plaster off but then Ms O’Reilly had to drive to Noarlunga, get it x-rayed and come back to Aldinga Beach to have the plaster re-applied. I have not seen the films to date that were taken at that time and this would have been in February 1995. That plaster was evidently too tight and Dr Zimmerman had to remove and replace it.
After that Flinders Medical Centre finally took the plaster off after 8 weeks following the accident. The x-ray evidently showed that the fracture had not united. At some point she had an isotope bone scan which may have shown avascular necrosis of the proximal pole of the scaphoid but again I have not seen that either at the moment. She was given a brace then by Dr Krishnan which she wore for about 3 months.
Her wrist remained still and very painful and she sought a second opinion so she was referred by her Doctor to Dr Peter Viiret, Orthopaedic Surgeon. Dr Viiret first saw her I note on 2/8/95. He believed surgery was necessary and this was carried out on 18/8/95 when bone was taken from her left hip and the fracture was bone grafted and internally fixed using a Herbert screw. Following that her wrist and forearm was in plaster for 11 weeks. When she came out of plaster she did not require a support but some symptoms continued. She told me she had restricted wrist movement and pain. The pain worried her particularly after a day’s work and it used to keep her awake at night and in fact still does after activity. It was considered necessary by Dr Viiret to take the screw out about 12 months post operative. She has had no further treatment since that time and she recalled no further x-rays.
She had some exercises to try to improve her wrist movement and ended up going to a gym to try and help it. She is quite familiar with gym activities because she had been doing weights and gym work prior to the accident.
EMPLOYMENT
At the time of this accident she was working in retail sales in a Tobacconist Store at Marion Shopping Centre. She worked part time and she was only working 1-2 days a week. She is a single mother and she has two young daughters one aged almost 11 and the younger 8╜. Following the accident she had 2-3 weeks off work. She told me she had a very good boss but at the time she could not handle opening the large cartons of cigarettes as they were shipped and she had more difficulty lifting them as I understand they are of the order of 3’ x 3’ in measurement. She also found it difficult when dealing with money. She is dominantly right handed but she needs both hands for her work and most other jobs. The Tobacconist Store ownership changed in July 1997 and there was also a change in location. The new boss offered her to manage the shop, that is doing 40 hours a week, but she had to decline that because she found that on her one working day of the week she got home with her wrist and arm aching and she did not think she could cope with that on a five day or more basis.
She decided then to study Community Services and Health in 1997 initially at the Noarlunga TAFE. This year she is studying at Panorama TAFE doing Primary Health Care. She told me that this would eventually qualify her for the work of an Enrolled Nurse but she could not be sure she could do that work, and I would agree, with her wrist problem as it is at the moment. She is intending therefore to do Health Promotion or similar work. She still works at the Tobacconist one day a week.
CURRENT COMPLAINTS
These are limited to her left arm dominantly her wrist. She had no complaint about her neck or her neck movement.
In her left wrist she demonstrates reduced dorsiflexion and palmar flexion to about half range and both of these movements give rise to pain if she attempts to stretch them further. For example she could not do pushups and she has not been able to go back and do weights for example at the gym. At the shop she still is not able to do the heavy lifting, these are the ‘shippers’ as she terms them and she also has some difficulty cleaning the shelves where she has to take articles off the shelves, re-price them and clean underneath them.
At home she told me she does most things. She cannot use a can opener and she has to get one of her children to do that. She also has difficulty opening a jar and has to use great care with that as this causes aching afterwards. She can vacuum because she does that one handed but mopping she needs two hands and she cannot do that. She also told me she cannot ride her 750cc XJ Yamaha motor bike because she cannot manage the clutch. She has not ridden this since the accident.
Her assessment was that since she had the screw removed her wrist ‘is worse’ possibly because she has been trying now to do more with it.
She also mentioned that she power walks for exercise now, not carrying weights, but after a time she develops numbness up the front of her left forearm. She also has tried typing on a computer and this makes her forearm numb in the same way. This does not involve her fingers but extends from wrist level to below the elbow.
Again she has no complaint about neck movement or neck pain.
EXAMINATION
She presents as a pleasant person and does not appear to exaggerate her symptoms. I examined her in the presence of a Registered Nurse.
Left Wrist
Palmar flexion is a little better than 40║, the dorsiflexion is just 40║. Ulnar deviation is reduced compared with her left by at least 10║. Radial deviation is only marginally reduced. She is very tender over the scaphoid particularly anteriorly near the scaphoid tubercle. Rotation movements show no major restrictions in pronation/supination at the inferior radio-ulnar joint level. I note the healed anterior surgical scar and there does not appear to be any significant sensory alterations in her forearm at present as tested to pin prick. Her grip is not as powerful as that in her right hand but neither grip strength appears strong. The movements of her thumb appear within normal expectations. Her elbow also moves normally.
I have arranged for a CT scan of her wrist joint as she describes a transient catching in her wrist activities and this suggests an irregularity of the radio-scapho joint or less likely the scapho-lunate part of the joint. The nature of this injury was a fairly severe one and a forced dorsiflexion injury at some speed and in particular I note the Flinders Medical Centre radiological report which showed there was mild separation of the fracture segments and also Dr Viiret referred to some rotation of the fragments. In other words it has been significantly more severe than the usual scaphoid fracture.
21/5/98
I enclose for your information a photocopy of Dr Geake’s report regarding these examinations. I have also examined the films.
The scaphoid fracture has healed. There is a little irregularity of the distal pole of the scaphoid. This may be associated with the insertion and removal of the screw however. The CT scan reveals an osteochondral defect in the proximal pole communicating with the radio-carpal and the scapho-lunate aspects of the joint. There is also a cystic appearance at the waist of the scaphoid which is not uncommon and I doubt if that contributes to symptoms.
This area in the scapho-lunate region would carry the potential of causing some symptoms. The slight widening of the scapho-lunate interspace may indicate damage to the intercarpal ligament there and it may be wise for her to seek a referral to an Orthopaedic Hand Surgeon such as Dr Malcolm Wicks or Dr Michael Sandow for advice regarding any possible further treatment. I rather doubted if any surgical treatment was required for this. I am also rather doubtful if the range of movement at this stage would be increased. The fracture itself is well healed and the radio-scaphoid portion of the wrist joint seems reasonably normal.
I would estimate she has a residual loss of function in her wrist amounting to 25-30%. As to whether the injury is going to lead to premature osteoarthritic change seems possible in the distant future but whether that will inconvenience her any more is not really predictable but is taken into account in this estimate.”
I find that the nature and extent of the plaintiff’s injury and disabilities are as set out in Dr Jose’s report.
The plaintiff also called Dr Viiret, the plaintiff’s treating surgeon. With one exception there was no material difference between the position taken by Dr Viiret with that taken by Dr Jose. The exception related to the complaints of pain made by the plaintiff to Dr Viiret as recorded in his report and some of the opinions expressed by him when he gave evidence about whether there was a consistency between the complaints made by the plaintiff to him of pain and disability and her subsequent experience of pain and disability after the accident. If the complaints of pain and disability by the plaintiff as recorded by Dr Viiret are taken in isolation, it would seem that by July 1997 the plaintiff was only experiencing intermittent minor pain. This in turn led Dr Viiret to the conclusion that the plaintiff was only restricted from doing heavy physical work or work that involved continuing repetitive movement of the left arm.
The history taken by Dr Jose in May 1998 is quite to the contrary. I therefore have to consider the differences in opinion expressed by Dr Viiret and Dr Jose as to the nature and extent of the plaintiff’s injury and disability. It is clear that Dr Viiret’s conclusions as to the plaintiff’s working capacity were based on an assumption that by mid-1997 the plaintiff was only experiencing intermittent and relatively minor pain. Dr Jose’s opinion was based on the history taken by him in May 1998. The plaintiff seems to have given a different history as to her experience of pain and disability to each of the two surgeons. It seems to me that I should prefer the opinion of Dr Jose to the extent that there is any conflict between his opinions and those expressed by Dr Viiret, because the history taken by Dr Jose is more consistent with the evidence that was given by the plaintiff during the course of the trial which, as I have indicated, I accept.
I find that the plaintiff has since the accident been continuously disabled in relation to the use of her left wrist to the extent that she has and will continue to have a 30 per cent loss of function in the wrist. In the future, because of osteoarthritic change at the joint, the function of the left wrist may deteriorate. I find that the plaintiff has limited movement of the left wrist, particularly in relation to dorsiflexion and palmar flexion. At the extremes of movement of the left wrist she experiences pain, sometimes quite severe pain. The pain and disability experienced by the plaintiff are permanent.
The pain experienced by the plaintiff and the disabilities that she has in relation to her left wrist have markedly affected her ability to engage in gainful employment. Prior to the accident she worked as a shop assistant in a tobacconist store at the Marion Shopping Centre regularly on Saturdays for approximately 8 hours. She also undertook, on an intermittent basis, both before and after the accident, work at one of the kiosks in the Marion Shopping Centre where a photocopying business was conducted. The business conducted from the kiosk was not limited to photocopying. It also involved sale of various items of merchandise and also provided the service of laminating documents. The plaintiff used to help out the proprietor of that business from time to time. She was not paid for her work but she was able to use the photocopying and laminating machinery in the kiosk either free of charge or at a reduced price.
The plaintiff gave evidence as to the limitations imposed upon her by the injury to her left wrist. This aspect of her evidence may be divided into two categories, domestic work both inside and outside the house and paid employment. She said, and I accept, that she has difficulty in performing any function which requires two hands. Most household tasks, such as cooking, cleaning and maintenance require the co-ordinated use of both hands. Similarly, at work as a shop assistant she had difficulty in performing the tasks required of her because of the left wrist injury. The effect of the plaintiff’s evidence is that she is inhibited in two ways: first, there is restricted movement in the left wrist; and, second, with the extremes of movement she experiences pain. I accept her evidence in that regard. It is consistent with the evidence of Dr Jose and the two-fold disability has been amply corroborated by the evidence of the plaintiff’s father and her partner.

I find that the plaintiff is significantly limited in her ability to undertake a task where the co-ordinated use of two hands is required. By reason of the stiffness in the left wrist joint she is significantly impeded from carrying out two-hand tasks, either inside or outside the home or at work. More significantly when stress is placed on the left wrist she suffers pain. Where the stress on the wrist occurs inadvertently, the pain can be quite severe. The cumulative effect of this has a marked effect on the plaintiff’s quality of life. She must remain guarded in her use of her left wrist in order not to cause herself pain. She is frustrated in the limitations imposed upon her by her injury. Prior to the accident she had considerable mechanical and technical skills such that she was able to attend to the routine maintenance of her motor vehicle and her home. At work she proved herself to be a competent and hard working employee.
After the accident she maintained the desire to carry out domestic tasks, such as cooking, cleaning, home maintenance and maintenance on her car, but she has been unable to do so to any appreciable degree. She has not only maintained but has increased her previous working levels, but this has been at some cost to her. On most working days she ends up with pain in her wrist which is debilitating.
Since removal of the second plaster she has had to wear a wrist brace frequently in order to limit the movement of the left wrist so that she did not accidentally cause pain to herself by over-extending her wrist or accidentally knocking it.
The plaintiff has also had resort to what was referred to in evidence as “a wheat bag”. This consists of a small bag, rectangular in shape, which is filled with wheat. This device may be put in a microwave oven and heated up. When placed around the plaintiff’s wrist it provides pain relief. She has and will continue to have resort to this device almost every day.
The plaintiff frequently wears the wrist brace in bed to prevent pain being caused if she rolls over in bed on to her wrist. She also places her left hand on a pillow when she sleeps at night in order to protect the left wrist from accidental movement which might cause pain.
The plaintiff has avoided using medication to obtain pain relief. She quite wisely thinks that the less medication she takes, the better for her health generally. This is an appropriate attitude up to a point. The defendant contended that the extent of her injury and disabilities might be remedied by the taking of medication and by undertaking further operative treatment. I think it is reasonable for damages to be assessed on the basis that, if the plaintiff chose to do so, she could obtain some relief by taking medication. This would not only lessen the debilitating effect of the injury but would also increase her working capacity.
I think the same might be said as to future operative treatment. Dr Jose was of the view that if the site of the fracture were cleaned arthroscopically, the plaintiff might experience some pain relief and a reduction in the limitations on her movement of the left wrist. He identified from an x-ray film that there may be particles of bone present at the site which, if removed, might reduce the pain and restriction of movement experienced by the plaintiff. I think it is appropriate to take such matters into account insofar as the plaintiff’s future is concerned. It was not suggested by the defendant that the plaintiff should have undergone earlier treatment such as that referred to by Dr Jose, but it was submitted that, in the future, by way of medication and limited further operative treatment, she might gain some relief from the pain and disability to which she is presently subject. I accept that submission.
Having made the above findings I turn to the question of assessing damages for non-economic loss. I must compare the nature and extent of the injury and disabilities sustained by the plaintiff with the most serious of cases and assign a number between 0 and 60 to reflect the relative severity of the injury and disabilities sustained by the plaintiff. The plaintiff has full bodily function except for the 30 per cent disability in her left wrist. Her disabilities are a serious impingement on her ability to lead a normal life. The lack of function in her left wrist and the pain she experiences from it are a day to day reminder that she is physically impaired. She was formerly a physically active person, able to look after her home and children and engage in gainful employment in a satisfying manner. There has been a severe curtailment of those activities. That curtailment is permanent. In the future she may limit the pain experienced by her by resorting to medication in a moderate manner and there is some prospect that if she undertakes arthroscopic surgery to her left wrist, the pain and disability may be alleviated, but not to any great extent. In the circumstances of the case I think that on a scale of 0 to 60, her damages for non-economic loss, both for the past and the future, should be assessed by assigning a numerical value of 10 and applying the relevant multiplier. I award the sum of $14,500.00 for non-economic loss.
I turn to a consideration of the plaintiff’s past-economic loss. Apart from the eight weeks following the accident, the plaintiff resumed her employment at the tobacconist one day a week. She also undertook intermittent work at the photocopying kiosk.
In August 1997 she received an offer from her employer to become the manager of the tobacconist shop at the Marion Shopping Centre. Shortly prior to this the ownership of the business had changed hands and the new owner indicated to the plaintiff that he would appoint her as manager of the shop if she was willing to work at least 40 hours a week. The plaintiff said that she took some time to think about the offer. There were two main considerations: whether she was able to undertake full-time work and whether or not proper arrangements could be made for the care of her children outside of school hours and, presumably, during school holidays. She discussed the offer with Mr Wilkinson, her partner, who advised her that if she felt up to full-time employment then she should accept the position. Both the plaintiff and Mr Wilkinson gave evidence about the full-time job offer.
The plaintiff declined the offer because she said that she did not think that she could work full-time with her injured wrist. She said that the pain that she experienced at the end of the one working day per week that she had undertaken after the accident was such that she could not cope with work for five consecutive days.
It was suggested by Mr James, counsel for the defendant, that the reality of the plaintiff’s decision not to accept the job as manager was that she was not willing to work full-time because that would preclude her from affording to her children the time that she thought they needed. I do not accept that submission. It is clear from the evidence, in particular the evidence of Mr Wilkinson, that the plaintiff thought that adequate arrangements could be made for the children if she were to work full-time. It follows that the predominant reason for not accepting the job as manager was the effect that working full-time would have upon her wrist. I think it was reasonable for the plaintiff to have made such a decision. It follows that, but for the injury to her wrist, she would have been able to undertake full-time work at the tobacconist shop at the Marion Shopping Centre from August 1997.
In arriving at the conclusion that the plaintiff acted reasonably in refusing the manager’s position, I have taken into account her evidence that with her present employment, she works 14 hours a week spread over 4 days and her shifts are organised such that she does not work on Fridays, Saturdays and Sundays. She said, and I accept, that she needs Friday, Saturday and Sunday to rest her arm so that she is ready for work on the following Monday.
In my view, since the accident, the plaintiff has been unfit for full-time employment even where the work is of a light nature. The fact is that the plaintiff prior to the accident was only capable of gaining employment of an unskilled nature and such work invariably requires the co-ordinated use of both hands. The plaintiff has been since the accident, and remains, incapable of such work other than for short periods of time.
It was the plaintiff’s expectation that she would earn something in the vicinity of $550.00 gross per week together with superannuation. That assumption is not based on any offer that had been made to her by her employer. She had been in contact with other people who managed stores at the Marion Shopping Centre and as a result of conversations with those people she formed the expectation that she would be paid an annual salary of somewhere between $28,000.00 and $29,000.00. Mr James correctly pointed out that this was not evidence of what she would have earned as a manager. It is only evidence of her expected earnings. I agree with him that I must treat this aspect of the plaintiff’s evidence with caution. Nevertheless, I think her expectation was modest and forms a reasonable basis for assessment of damages for loss of earning capacity.
I must next consider the duration of the loss measured by reference to the plaintiff’s inability to take up the position of manager of the tobacconist shop. From the point of view of past-economic loss the plaintiff contended that the period of loss was from August 1997 until trial in February 1999, with a deduction being made for amounts actually earned. The damages so awarded are not taxable in the hands of the plaintiff, because they are damages for loss of earning capacity. Thus, the respective income rates must be taken from the net income on the one hand that might have been derived and on the other hand the net income that was actually derived.
The plaintiff moved to Kalgoorlie in late 1998. Mr Wilkinson had earlier in the year moved to Kalgoorlie because he was able to find employment as a train driver there. The plaintiff commenced employment with Anglican Homes in Kalgoorlie on 26 October 1998 and she still works there. It was contended by Mr James that because the plaintiff moved to Kalgoorlie, the assessment of past-economic loss based on the manager’s salary would cease from the time of the plaintiff’s move to Kalgoorlie. However, the plaintiff said, and I accept, that if she had not been injured in the accident and she had to make a choice as to whether she would continue in her manager’s position at the Marion Shopping Centre or move to Kalgoorlie, her choice was likely to have been that she would have remained in South Australia so that she could continue her career as a manager. In addition to that, it was the evidence of Mr Wilkinson that, had the plaintiff been able to obtain full-time employment, he may not have moved to Kalgoorlie in order to obtain employment himself because other part-time and indefinite employment was available to him in South Australia such that the combined incomes of himself and the plaintiff were sufficient. In accepting this evidence I find on the balance of probabilities that had the plaintiff been able to accept the position as manager at the Marion Shopping Centre she would not have moved to Kalgoorlie and therefore she would have been able to continue with the manager’s job.
It follows from the above finding that damages for loss of earning capacity prior to the trial must be measured, from August 1997, on the basis that the plaintiff, but for the injury to her left wrist, would have worked full-time as a manager at the tobacconist shop at the Marion Shopping Centre indefinitely.
Mr James submitted that the tobacconist business had been sold yet again and that there was no guarantee that the plaintiff would have been kept on under the new owner of the business. It was apparent from cross-examination that the plaintiff was aware that the tobacconist business had been sold to a new proprietor. There is no evidence before me to suggest that the proprietor would do other than continue the tobacconist business. It may be that it would be under a different name but, nevertheless, the only reasonable inference to be drawn is that the business would continue. To hold otherwise would be to assume that the business was purchased merely for the purposes of closing it down. I am unable to draw such an inference. However, I agree that I must take into account that there was a chance that the plaintiff may not have been kept on as manager, that her hours may have been reduced and consequently her income may have been reduced. The only evidence on the topic is the evidence of the plaintiff given during cross-examination.
It is not clear from that evidence when the business changed hands for the second time, although it is clear that it was sold to the owner of a large chain of tobacconist stores. It seems to me that there was a likelihood that the plaintiff would have been kept on by the new proprietor, not necessarily as manager of the shop. I have to take these matters into account when looking at the question of past-economic loss and, indeed, future economic loss to the extent that that calculation might be based on an assumption that as at the date of trial, but for the accident, the plaintiff would have been working as the manager of a tobacconist store at the Marion Shopping Centre.
I have already dealt with the position with regard to loss of earning capacity for the first eight weeks after the accident. After that time the plaintiff continued to work more or less at the same rate that she had worked prior to the accident and although there was undoubtedly a diminution in her working capacity, it does not seem to me that any economic loss flowed from that reduced working incapacity until August 1997 when she received the offer to manage the tobacconist shop from the new proprietor of the business.
The actual assessment of damages for loss of earning capacity from August 1997 to the date of trial cannot be based on a precise calculation because of the imponderables to which I have referred above. In general terms I think that the plaintiff from August 1997 to the date of trial (approximately 80 weeks) would have earned in full-time employment at the tobacconist shop something in the vicinity of $28,000.00 or $350.00 net per week. What she actually earned on a net basis during the 80 week period is not clear but it seems that it was something less than $8,000.00. Consequently, the damages amount to approximately $20,000.00. This is to be added to the $700.00 damages referred to earlier in these reasons. I award the sum of $20,700.00 for past loss of earning capacity.
As to the future I have already found that the plaintiff is permanently disabled and permanently precluded from full-time work. Nevertheless, she has a measurable, residual earning capacity as demonstrated by her present employment with Anglican Homes. Since she has worked there she has worked for as many as 26 hours per week to as few as 9 hours per week. With some difficulty she is able to work a total of four shifts during the course of the week and these total about 14 hours each week. She receives approximately $250.00 after deduction of tax.
It is not clear what she would be earning either as a manager or full-time shop assistant in respect of a small business but $380.00 net per week would be a conservative figure to adopt. I think I must adopt the conservative approach because there are a number of imponderables. The plaintiff may not have been able to obtain indefinite work as the manager or shop assistant in respect of the tobacconist business at the Marion Shopping Centre, although I think it is likely that, even if she had lost her employment there, she would have been able to gain at least other part-time employment and probably full-time employment if she had chosen to seek full-time employment. It does not necessarily follow that, if she had not continued on as manager of the tobacconist store, she would have continued to work in full-time employment. But there is a possibility that she would have done so and it must be taken into account. I think there is a real possibility that even if she had not undertaken full-time employment she would have undertaken significant part-time employment.
In my view, given the uncertainties that apply, I think it would be appropriate to apply for the future a net weekly earning rate, in today’s values, of about $350.00. From this should be deducted $250.00 as being the likely amount, in present day values, that she would earn in the future. Given that I think that the plaintiff is an industrious person and likes to work so that she has a function outside the home, a reasonable expectation is that she would continue to work until age 65. The relevant multiplier is 803, which gives a product of $80,300.00. I do not see the need to reduce or add to this sum because I have already built into the calculations the imponderables relating to the plaintiff’s future employment both on the basis that she had no injury and on the basis of her actual injury. I would allow the sum of $80,000.00 for future loss of earning capacity.
There remains to be considered the claim for loss of superannuation benefit. I have been provided with the report of Buck Consultants dated 21 January 1999 (Exhibit P5) and that of Brett & Watson Pty Ltd dated 3 February 1999 (Exhibit P6). These are instructive but I do not think that the calculation can be approached with mathematical certainty inherent in those reports. There is no doubt that, because the plaintiff has been deprived of the ability to work full-time from a point when, on my finding, in August 1997 she would have worked full-time, she has lost benefits that would have accrued to her by way of superannuation entitlements. When the calculation is based on a benefit payable at age 65, which I think is the appropriate age, the range of loss given in the report is something under $17,000.00 to about $35,500.00, bearing in mind that 2 per cent needs to be deducted from the figures at page 4 of the report of Buck Consultants. The likely rate of earning capacity of the plaintiff for the future I have found to be $250.00 net after taxation which amounts to about $260.00 inclusive of tax. This amounts to an annual salary of $13,500.00 approximately. The table at page 4 of Exhibit P5 gives me some indication as to what the loss of future superannuation benefit might be. I do not mean to suggest that one applies a specific mathematical formula to work out the loss based on the three figures contained at page 4 of the report. Rather, it gives a guide to what in general terms might be said to be the loss attributable to foregone superannuation benefits. I would assess that at $25,000.00.
I have mentioned that the plaintiff is in a position to attempt to alleviate the pain and disability that she suffers by resorting to medication and also to arthroscopic surgery. It is possible that the plaintiff will have resort to neither of these options, but I should take into account that she may well do so and allowance should be made for the future cost of the medication and surgery. No evidence has been called in relation to either of those matters and, accordingly, I can only adopt a very broad brush in that regard. I would allow the sum of $5,000.00 in respect of this aspect of the plaintiff’s assessment.
In summary my assessment is as follows:-
Non-economic loss......................................... $ 14,500
Past economic loss    20,700
Gratuitous services..........................................         375
Past medical expenses        190
Future medical expenses.................................      5,000
Future economic loss    80,000
Loss of superannuation benefits....................     25,000
........................................................................... $145,765

I will hear counsel as to interest and costs.

[1999] SADC 33

15 March 1999