Panizza v Moir
[2009] WADC 110
•4 AUGUST 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PANIZZA -v- MOIR & ORS [2009] WADC 110
CORAM: STONE DCJ
HEARD: 13-15 MAY 2009
DELIVERED : 4 AUGUST 2009
FILE NO/S: CIV 1715 of 2006
BETWEEN: CHANTELLE ELIZABETH PANIZZA
Plaintiff
AND
JEREMY DAVID MOIR
First DefendantLEISHA BRIGGS
Second DefendantJEANNE EMILY ANTOINETTE
Third Defendant
Catchwords:
Damages - Personal injury - Motor vehicle accidents - Liability admitted - Loss of earning capacity
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Damages awarded
Representation:
Counsel:
Plaintiff: Mr T Offer
First Defendant : Mr C Rimmer
Second Defendant : Mr C Rimmer
Third Defendant : Mr C Rimmer
Solicitors:
Plaintiff: Ian R Farquhar & Co
First Defendant : Jarman McKenna
Second Defendant : Jarman McKenna
Third Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
CSR Ltd v Eddy [2005] HCA 64
De Blank v Stemberger [2000] WASCA 358
Gamser v Nominal Defendant (1977) 136 CLR 145
Graham v Baker (1961) 106 CLR 340
Hendrie v Ruski [2000] WASCA 249
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Paul v Rendell (1981) 34 ALR 569
STONE DCJ:
Introduction
The plaintiff, Chantelle Elizabeth Panizza, claims damages for injuries she sustained as a result of being involved in three motor vehicle accidents on 28 August 2001 ("the first accident"), 13 March 2004 ("the second accident") and 10 February 2005 ("the third accident").
Liability for the three motor vehicle accidents has been admitted on behalf of the first‑named defendant, Jeremy Moir, the second‑named defendant, Leisha Briggs, and the third‑named defendant, Jeanne Emily Antoinette, and the case involves an assessment of damages.
As there is a common insurer in respect of each defendant, it is appropriate to assess quantum collectively, save for the issue of non‑pecuniary loss where separate assessments will be necessary.
Background
Ms Panizza was born on 12 September 1986 and she is now aged 22½ years. She resides with her partner in Gosnells. She ceased working in April 2006, prior to the birth of their son on 10 June 2006. She intends to return to the workforce part-time when their son, who is now 3 years of age, commences kindergarten in January 2010. In the following year she intends to take up full-time work.
The first accident – injuries and initial treatment
On 28 August 2001 Ms Panizza was a front seat passenger in a motor vehicle being driven by her mother on Yale Street, Thornlie. She was nearly 15 years old and on her way to school. At the time she was wearing a seat belt. The car, which was stationary in a line of traffic at a set of traffic lights, was extensively damaged by a rear end crash. Ms Panizza was flung forward. She says she was in shock. She described a whiplash type injury. She felt a bit of pain across her chest from the seat belt and some stiffness. Ms Panizza's mother was also injured in the accident.
Ms Panizza was not taken to hospital but went on to school. Later that day, feeling unwell because of back pain, neck pain and headache, she was taken from school to see Dr Peter Richardson, a general practitioner.
Upon examination Dr Richardson found there were restricted movements of the cervical spine and lumbar sacral spine, tenderness in the upper lumbar sacral spine and lower thoracic spine. She was referred for an X‑ray. She was treated with non-steroidal anti-inflammatories and analgesics. She was certified unfit for work for two days.
The following day she saw Dr Richardson again and complained of headache. She was referred for a course of physiotherapy.
Ms Panizza claims that she sustained soft tissue injuries to her cervical, thoracic and lumbar spine as well as pain and nervous shock as a result of the first accident. (There is no medical evidence to support a finding that Ms Panizza suffered nervous shock as a result of this accident.)
The second accident – injuries and initial treatment
On 13 March 2004 Ms Panizza was driving a motor vehicle in Cannington towards Armadale. Her brother was a passenger. Her car was in a line of traffic when another car did a U-turn causing the cars in front of Ms Panizza's car to pull up short. Her car was struck from behind by another car. She was wearing a seat belt. She described a whiplash type injury which caused pain across her neck "for a couple of days". She had left wrist pain "for a couple of weeks", "a little bit of bruising" on the left clavicle, and back stiffness.
Ms Panizza regarded the second accident, which required insurance repairs of between $3500 and $4000, as less severe in impact than the first accident.
Two days later Ms Panizza attended upon Dr Richardson.
Upon examination Dr Richardson found tenderness and stiffness over the mid-cervical segments of the cervical spine, radiation of pain across the superior border of the trapezius, movement of the cervical spine was three quarters of normal, some stiffness on movement of the lumbar sacral spine in all directions and tenderness of the left wrist with marked pain on extension of the joint. She was advised to take non-steroidal anti-inflammatories and analgesics and referred for a course of physiotherapy.
At T27 Ms Panizza testified about how the second accident affected her:
"--- Basically, it just felt like it stirred everything up to how it was after the first accident. I was still getting, like, a lot of stiffness, burning sensation in my back with headaches more frequently, my lift - my left wrist pain eventually went away."
She stated that after a couple of weeks her pain and discomfort as a result of the second accident improved to the level where she was at with pain and discomfort prior to the second accident.
Ms Panizza claims that she sustained aggravation to her cervical, thoracic and lumbar spine (the injuries sustained in the first accident), bruising to her chest, a soft tissue injury to her left wrist and pain and shock as a result of the second accident. (The evidence does not support a finding that Ms Panizza suffered shock as a result of this accident.)
The third accident – injuries and initial treatment
On 10 February 2005 Ms Panizza was driving a motor vehicle towards Armadale. Her car was stationary at a set of traffic lights when it was struck from behind by another car. Her car which was damaged cost $6000 to repair.
In terms of severity of impact Ms Panizza placed the third accident as more severe than the second accident but less severe than the first accident. To an extent, the photographs of the damage to the car in the second accident, Exhibit 2, and the photographs of the damage to the car in the third accident, Exhibit 3, support that assertion.
Ms Panizza testified that as a result of the accident she suffered frequent neck pain and shooting pains down her left buttock for "a few weeks".
On the day following the accident she attended upon Dr Richardson with symptoms of stiff neck and symptoms in the left thoraco lumbar spinal area.
Upon examination Dr Richardson found there were some mild restrictions to the cervical spine and tenderness over the lower thoraco lumbar spinal area on the left side. She was advised to take non–steroidal anti‑inflammatories and analgesics, rest for a day and have some massage.
Ms Panizza testified that her pain and discomfort as result of the third accident improved to the level where she was at with pain and discomfort prior to the second accident.
Ms Panizza claims that she sustained aggravation to her cervical, thoracic and lumbar spine (the injuries sustained in the first accident) and pain and shock as a result of the third accident. (The evidence does not support a finding that Ms Panizza suffered shock as a result of the third accident.)
Medical
The first accident:
1.On the day of the first accident Ms Panizza attended upon Dr Richardson. I have referred to his observations and treatment above.
2.On 29 August 2001 she was reviewed by Dr Richardson. She complained of headache. She was referred for physiotherapy.
3.On 4 September 2001 she was reviewed by Dr Richardson who noted on her X-rays that she had Scheuermann's Disease. She was advised that she could restart school and continue physiotherapy. She was advised not to play sport for at least four weeks.
4.On 12 and 26 September 2001 she was reviewed by Dr Richardson. She had some lower thoracic spinal pain. She continued with oral medication and physiotherapy.
5.On 5 October 2001 she was reviewed by Dr Richardson. She still had pain in the lower thoracic spine. She was certified unfit for work for a period of two weeks.
6.On 19 October 2001 she was reviewed by Dr Richardson. She had some continuing lower thoracic spinal pain. She was certified fit to return to work on 22 October 2001.
7.On 15 November 2001 she was reviewed by Dr Richardson. She had had a sudden increase in the back pain whilst at the orthopaedic surgeon's rooms. A CT scan was arranged of her lower thoracic and lumbo‑sacral spine. She was certified unfit for work for a period of two weeks from 15 November 2001.
8.On 21 November 2001 she was reviewed by Dr Richardson who advised the CT scan revealed the back pain is totally related to the motor vehicle accident and not the Scheuermann's Disease. She continued with physiotherapy and oral medication. She advised Dr Richardson she was fit for work.
9.On 30 November 2001 she was reviewed by Dr Richardson. She complained of continuing back pain. She was able to carry out part‑time work only.
10.On 5 December 2001 she was certified unfit for work for one day due to continuing back pain.
11.On 13 December 2001 she was reviewed by Dr Richardson and again on 12 January 2002. She advised her back pain was still a problem but improving. She continued with physiotherapy, oral medication and also hydrotherapy. She was certified unfit for work for one day.
12.On 9 February 2002, 9 March 2002 and 16 April 2002 she was reviewed by Dr Richardson. She continued with physiotherapy and oral medication. She had not been able to attend school or work on 11 and 12 April 2002 because of increasing back pain.
13.On 24 July 2002 she was reviewed by Dr Richardson. She advised she stopped school half way through Year 11 because she had been having too much time away from her studies. Her back pain had remained variable. She continued with her home exercise program.
14.On 6 November 2002 she was reviewed by Dr Richardson. She advised there had been little change in her left thoracic pain.
15.On 12 November 2002 she was referred by the insurer to occupational health physician Dr John Suthers. (Exhibit 9 pp 1 ‑ 4)
16.On 3 December 2002 she was reviewed by Dr Richardson. She complained of some tenderness over the left sacral iliac joint.
17.On 14 February 2003 she was reviewed by Dr Richardson. She complained of an increase in her back pain with associated headaches. She was referred to consultant neurosurgeon Mr Soni Narula and for a course of physiotherapy. She was certified unfit for work for one week.
18.On 26 February 2003, 25 March 2003 and 9 April 2003 she was seen by Mr Narula. He reviewed her X-rays which showed significant evidence of end plate disorder which suggested underlying Scheuermann's Disease. He noted the lumbar sacral spine was unremarkable. The CT scan was also unremarkable. Mr Narula also reviewed an MRI scan which confirmed the presence of Scheuermann's Disease in the mid-lower thoracic spine and a bone scan which ruled out a fracture or active underlying Scheuermann's Disease. She was recommended to commence a swimming programme. (Exhibit 6 pp 23 ‑ 26)
19.On 11 April 2003 she was reviewed by Dr Richardson. She was treated with analgesic Digesic.
20.On 13 June 2003 she was reviewed by Dr Richardson who referred her to orthopaedic surgeon Mr Richard Beaver for a second opinion.
21.On 25 June 2003 she was seen by Mr Beaver who considered she didn't have any surgically correctable lesion. He advised her to regain her previous fitness. (Exhibit 6 pp 31 ‑ 32)
22.On 4 July 2003 and 30 July 2003 she was reviewed by Dr Richardson. She still had pain in the left lower thorax. She was advised to continue with swimming and periodic physiotherapy.
23.On 8 January 2004 she was reviewed by Dr Richardson. She complained of recent acute pain over the left thoracic lumbar area. She stated over the previous six months there had been a considerable improvement. She was prescribed analgesic Digesic. She continued with swimming and self‑exercise.
24.On 30 January 2004 she was referred by the insurer to orthopaedic surgeon Mr Nick J Batalin. (Exhibit 9 pp 5 ‑ 8)
25.During 2004, after the second accident, she was reviewed by Dr Richardson on various occasions: 14 May 2004, 22 July 2004, 23 September 2004 and 24 November 2004.
26.On 24 November 2004 Dr Richardson referred her to Mr Narula for a final opinion. She still had stiffness of the back on the left side from the thoraco lumbar spinal area.
27.On 4 January 2005 she was seen by Mr Narula following referral by Dr Richardson. In Mr Narula's opinion she had a 20 per cent loss of function of the lumbar sacral spine. (Exhibit 6 p 27)
28.On 13 January 2005 she was reviewed by Dr Richardson.
29.On 21 February 2005, after the third accident, she was seen by orthopaedic spinal surgeon, Mr Eamonn McCloskey on referral from Dr Richardson. (Exhibit 9 pp 12 ‑ 13)
30.On 26 May 2005 she was seen by Mr Batalin at the request of the insurer. (Exhibit 9 pp 9-11)
31.On 1 July 2005 and 22 July 2005 she was reviewed by Dr Richardson. He was of the opinion that her condition was stable. She continued on medication of Mobic and Panadeine Forte.
32.On 10 October 2005 she was seen by Mr McCloskey on referral by Dr Richardson for an opinion as to the degree of disability. In Mr McCloskey's opinion she has no more than a 5 per cent permanent residual disability of the thoraco lumbar spine. (Exhibit 9 pp 14 ‑ 15)
33.In June 2006 Dr Richardson assisted her with the delivery of her child and he saw her again in January 2007. He observed no changes since the previous June 2006. She continued on non‑steroidal anti‑inflammatories and analgesics.
34.On 9 January 2007 she was seen by Mr Narula following referral by her solicitors. (Exhibit 6 pp 28 ‑ 30)
35.On 20 June 2007 she was seen by Mr Beaver at the request of the insurer’s solicitors. In Mr Beaver’s opinion she has a 15 per cent permanent residual disability of the thoraco lumbar spine. (Exhibit 6 pp 33 ‑ 36)
36.On 20 June 2008 she was reviewed by consultant neurosurgeon Mr Richard Vaughan following referral by her solicitors. He placed the disability for the thoraco lumbar spine at 20 per cent and the cervical component at 5 per cent. (Exhibit 6 pp 17 ‑ 22)
37.On 12 November 2008 she was seen by occupational physician Dr Peter Connaughton at the request of the insurer’s solicitors. (Exhibit 9 pp 16 ‑ 21)
The second accident:
(a)On 15 March 2004 she attended upon Dr Richardson. I have referred to his observations and treatment above.
(b)On 16 April 2004 she was reviewed by Dr Richardson. She advised that the pain she experienced in the cervical spine had now settled and there were no symptoms to her left wrist. However, she still had discomfort in the left thoracic lumbar sacral spine relating to the first accident. She was advised to continue physiotherapy.
(c)On 14 May 2004 she was reviewed by Dr Richardson. All new symptoms that she had received in the second accident had now resolved.
The third accident:
(a)She attended Dr Richardson on 11 February 2005. I have referred to his observations and treatment above.
The present situation
On 6 May 2009 Dr Richardson saw Ms Panizza for an updated assessment of her ongoing condition.
During the interview she complained of low back pain on the left side. She also had discomfort at the lower left thoracic vertebrae area. Dr Richardson observed in his letter to Ms Panizza's solicitors, Exhibit 7, that these symptoms had not changed over the past few years:
"There is restriction of movement of the lumbo‑sacral spine of approximately three quarters of normal. With flexion of the lumbo‑sacral spine there is restriction to the fingertips just below the knees.
At the extremes of movement that she was able to perform she complains of discomfort in her left lower thoracic and left lumbar areas as previously mentioned. Her thoracic pain does correspond to the area of old healed Scheurmans disease. However this pain may be a radiation from site of the pain that she complains of in the left lower lumbar region. Imaging has also noted that there are some facet joint changes in this area."
Dr Richardson noted that prior to her car accidents she had won an athletics' scholarship. She was a triathlete and a three day horse event rider. She was extremely fit. Since her three car accidents she had to cease all these activities. Any sporting or recreational activities are now mostly excluded to her.
On 30 April 2009 CT scans of the lower thoracic spine and the lumbar spine were obtained. In Exhibit 8, a letter dated 30 April 2009 to Dr Richardson from Dr M O Dill‑Macky, the following observations were made from the CT scans: the lower thoracic spine – "The facet joints are normally aligned and well maintained" and the lumbar spine – "There are minor degenerative changes involving the facet joints at L5/S1".
Injuries and the effect of the first, second and third accidents
In her testimony, Ms Panizza was adamant that it was the first accident from which her symptoms had arisen and had continued. She described how after the second and third accidents she also experienced some neck stiffness, sometimes headache and sometimes aggravation of the pain she felt in the buttock upper thigh area (as a result of the first accident). She described the latter pain as shooting pains in the buttock.
In their testimony and medical reports, Dr Richardson, Mr Narula and Mr Beaver do not suggest there was a significant complaint of neck stiffness after the first accident but there was nevertheless evidence that Ms Panizza suffered minor cervical symptoms after the first accident, T120. Although Ms Panizza only complained of headache to Dr Richardson on two occasions, I am satisfied having regard to her testimony, that she suffered headaches from time to time as a result of the first accident.
There seems to be no dispute arising out of the testimony of Ms Panizza and the medical evidence of Dr Richardson, Mr Vaughan, Mr Beaver and Dr Connaughton that the neck pain suffered by Ms Panizza following the second and third accidents was only temporary in each instance. From the medical evidence and Ms Panizza's testimony it appears that within two weeks and at the most a month of each accident the temporary elevation of pain and symptoms resolved.
I find, as counsel for Ms Panizza properly in my view effectively conceded, the second and third accidents caused only an exacerbation of symptoms lasting no more than a few weeks to a month, so the non‑pecuniary loss assessment for each of the second and third accidents would not exceed the threshold under the Motor Vehicle (Third Party Insurance) Act 1943.
The testimony from Ms Panizza and the doctors and medical specialists together with their medical reports clearly established, and I so find (on the balance of probabilities), that Ms Panizza sustained soft tissue injuries to her cervical, thoracic and lumbar spine and suffered back pain as a result of the first accident which resulted in a permanent disability.
All of the doctors and medical specialists agreed that Ms Panizza had changes in her thoraco lumbar spine suggestive of Scheuermann's Disease. Scheuermann's Disease is a curving forward in the thoracic spine, a clinical condition commonly found in adolescents. They agreed the changes in her spine were developmental and naturally occurring. Further, the changes pre-existed the first accident and they were not brought on by any of the accidents.
Mr Narula and Mr Vaughan testified that there had been no change of any significance in Ms Panizza's thoraco lumbar spine over the period from 19 November 2001 (when the first CT scan was undertaken) to 30 April 2009 (when the most recent CT scan was undertaken).
The defendants' counsel submitted that it is clear from the testimony of Mr Narula, Mr Vaughan and Mr Batalin that Ms Panizza has been left with back pain on the left side and with the consensus of opinion being that the diagnosis is of a soft tissue strain injury possibly aggravating or rendering symptomatic the underlying Scheuermann's Disease. Counsel further submitted that whilst there is a possibility that the degenerative changes in her thoraco lumbar spine may have been accelerated by the first accident, he accepted there is unpredictability about the extent to which they might accelerate and they have not accelerated in the past eight years. The medical evidence also established there was a prospect that her underlying degenerative change would have been rendered symptomatic at some other time during her life absent these car accidents.
Although Ms Panizza testified that in the weeks leading up to trial her back pain had increased the medical evidence indicates that overall her condition had improved.
Ms Panizza was advised to perform her own exercises and to undertake swimming and hydrotherapy to increase the strength of her back so as to avoid acute exacerbations of her back pain. She was also advised to avoid heavy lifting and repetitive bending and twisting. The evidence indicates she has acted upon this advice.
School
At the time of the first accident Ms Panizza was almost 15 years of age. She was completing Year 10 at Lynwood Senior High School. Since the beginning of Year 8 she had been accepted into and she was participating in the school's specialist sports program (which did not run past Year 10). Outside of school hours she worked part-time at Hungry Jacks in Thornlie. She had a horse and she was involved in horse riding and equestrian events on the weekend.
Ms Panizza testified that the specialised sports program involved outdoor education, physical sport (tennis and swimming) and theory (first aid, nutrition and physiology). She was one of 25 students accepted into the program and she thought about 70 students might have tried out for it. She enjoyed the course and became upset whilst testifying about it.
Ms Panizza testified that in terms of her career she would have liked to do something sports orientated with horses or teaching. At T12 she said:
"… be a top rider for the country or even go towards the physical education side, being a teacher; teaching students what I was supposed to be learning."
At school she found it difficult to concentrate following the first accident in Year 10. She experienced pain sitting on the science chairs because there was no back support. She found she was lagging behind in her school work because she would regularly miss mornings to go to physiotherapy. When she returned to school in Year 11 her ability to do school work was deteriorating because of lack of concentration. She was having time off and she couldn't keep up with classes. She had to sit out all of the sports classes except general theory because of her medical condition.
She could no longer ride her horse on weekends because of the pain she suffered.
At T17 she explained why she gave up school and sport:
"How were you feeling about your ability to keep up with the pace of school---Pretty, how'd you say it, my ability to keep up would have been drastically reduced.
How did you feel about that---I felt sad. Yes.
Why sad, what made you sad about it---Because obviously when you're at school you're supposed to be achieving your grades to further your career to do what you want in the end.
And what did you think was going to happen with your present - with your then level of functioning---I wasn't really - I don't know really. I - I didn't feel like I could do the sports, and I didn't feel like at that point that I could go that way any more.
You mentioned the sports there, let's turn to that. Your main interest, your main passion before the accident was horse riding---Yes
Were you able to continue that---No."
Work
As a consequence of her symptoms and medical treatment and difficulties associated with her studies because of these issues Ms Panizza left school in mid-June 2002. She obtained full–time employment with Hungry Jacks Thornlie, where there is some kind of structure allowing her to progress in the organisation.
In March 2003 she was offered the opportunity to commence as a trainee in retail operations to become a manager. She took up the traineeship because she could no longer complete her sporting ambition. Hungry Jacks Thornlie was the sponsoring employer and the traineeship was registered with the Apprenticeship and Traineeship Support Network under the auspices of the Department of Education and Training.
Over a period of years she completed certificates 1, 2 and 3 in retail operations and qualified as an assistant manager.
On 6 December 2005 Ms Panizza commenced working as a trainee manager at Hungry Jacks Thornlie.
Since leaving school Ms Panizza has earned the following amounts, Exhibit 4 financial records:
| Year | Gross | Net |
| 2002/03 | $11,091 | $10,225 |
| 2003/04 | $15,464 | $13,855 |
| 2004/05 | $17,676 | $15,425 |
| 2005/06 | $21,653 | $18,972 (to 21 April 2006) |
Ms Panizza ceased working on 21 April 2006 when she took unpaid maternity leave prior to the birth of her son. When she ceased work she was earning approximately $410 net per week.
Although Ms Panizza earned $4,381 gross ($4,361.96 net) in 2001/2002 whilst a full‑time student, her counsel acknowledged that this may have decreased whilst completing Years 11 and 12 at school.
Lifestyle
Ms Panizza met her partner Darren Van Hauwelingen in 2003/2004. They had worked together. He had also completed the certificates in retail operations and he was a manager.
They had lived together in a unit next door to Ms Panizza's mother for approximately three to four years apart from a short period of separation.
At times Ms Panizza had difficulties coping with the relationship because of her back pain. She suffered moodiness and depression. There were difficulties in intimacy.
After their son was born she described her difficulties at T35 as follows:
"---When he was little I had trouble holding him and getting him to sleep, like patting him over his cot because I'd get back pain and I could - I couldn't lift him in and out of the car properly. I always had to get someone's help."
She went on to testify that she doesn't plan to have any more children because (T34):
"---I don't want to add any extra pressure to my back and go through the pain that I had with my back and that when I was carrying him."
She described difficulties, because of her back pain, in bathing her son, putting on his shoes, carrying him and getting the pram in and out of the car.
She testified about difficulties with house work, driving, walking and sleeping because of pain and discomfort. She has been unable to return to sporting activities. She also described difficulties with recreational activities.
Past loss of earning capacity:
Ms Panizza testified that her decision to leave school in mid‑2002 was motivated by the symptoms she was then experiencing which resulted in absences from school and a drop in school performance. She considered that completion of her studies and full physical capacity would have provided a wider range of employment opportunities.
Ms Panizza told some doctors that prior to the first accident she desired to become a professional sportsperson.
There was no evidence as to any student who had participated in the specialised sports program who had gone on to become a professional sportsperson. There was no evidence from Ms Panizza or from any other witness that she was at a level in any sport which might indicate that she had a prospect of pursuing a career as a professional sportsperson. In his closing submissions, counsel for Ms Panizza conceded he was not pressing for an award of damages for past and future loss of earning capacity on the basis that Ms Panizza had lost the opportunity to pursue a career as a professional sportsperson. Accordingly, I make no finding in that regard.
Ms Panizza also testified that she had lost the opportunity to pursue a career as a general physical education teacher as a result of the injuries she sustained.
In Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Brennan and Dawson JJ said the following at 639-640:
"By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false -- for the plaintiff has been injured -- the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past. Lord Diplock said in Mallett v McMonagle [7]:
'The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards'."
The defendants' counsel submitted that Ms Panizza accepted the offer of full–time employment with Hungry Jacks because she was unlikely to have successfully completed Years 11 and 12, for reasons entirely unconnected with the first accident. In this regard it was submitted that before the first accident comments made by teachers in her school reports, Exhibit 5, were suggestive of a student who was distracted, lacked concentration, worked below capacity and needed to pay more attention to home work.
Ms Panizza accepted in her evidence that she was not working to full capacity in her studies at the time of the first accident. She needed to lift her effort to give herself the opportunity of further study. She said that was something she was prepared to do.
There was a noticeable degree of improvement in both marks and positive comments from teaching staff in the school report from the first half of Year 10. In their comments in the earlier reports, the teachers did not indicate Ms Panizza was intellectually or academically unable to deal with the course subjects, only that she lacked application at times.
Having regard to the overall way in which Ms Panizza presented in the witness box, her confident outlook and the positive indications in the school reports I am satisfied that she had sufficient capabilities to complete Years 11 and 12 if she set that as her goal. Further, her sporting prowess and interest in combining that with teaching could have lead to a career as a physical education teacher.
I was favourably impressed by her determination to succeed with the Hungry Jacks traineeship when that was her ambition notwithstanding the pain and discomfort she was experiencing as a result of the injuries sustained in the motor vehicle accidents. She made the best of her situation. She demonstrated a positive and confident approach to her medical condition and recovery. She approached her employment with enthusiasm and took the opportunity to qualify as a manager. With maturity, I would have expected her to approach the final years of schooling and future employment with the same determination.
I accept that the only evidence as to Ms Panizza's desire to pursue a career as a physical education teacher was her own. However, I am satisfied that the prospect of her completing Years 11 and 12 and subsequently qualifying as a physical education teacher, if not for her accident caused injuries, is a possibility and not entirely speculative. In any event, if she had completed Years 11 and 12 she would have been more competitive in terms of future employment prospects.
I accept the submission by counsel for Ms Panizza that it is appropriate to assess past loss of earning capacity on a global basis. Her early entry into the work force has not resulted in significant earnings for her. In this regard I note that:
1.In 2002 Ms Panizza was already earning some income from her part-time work whilst at school;
2.The earnings for full-time work at Hungry Jacks from mid June 2002 to April 2006 were modest;
3.She has had absences from work not covered by sick leave or annual leave resulting in loss of $1,859; and
4.She was 19 ½ years of age when she ceased work in April 2006 shortly before the birth of her son.
Whilst it is not possible to quantify past loss in precise terms, a global award of $10,000 inclusive of superannuation and interest would be appropriate in the circumstances.
Future loss of earning capacity:
Ms Panizza testified about her employment at Hungry Jacks. She had, it seems, an employer who was sympathetic to her condition. The manager was prepared to work around the certain limitations that she had because of her back pain. He allowed her to work around her restrictions on lifting, bending, twisting and being in sedentary positions for long periods of time. He also allowed her to rotate her duties and to pass off those duties onto other people.
Ms Panizza's counsel submits that she might not find a job which allows her those physical indulgences on a full‑time basis. She may have to take up something that is less physically suitable to her on shorter hours. Even if she is able to maintain her job at Hungry Jacks and work her way up through the ranks, she is still earning a relatively modest wage in comparison to the average weekly wage and certainly, in terms of teaching which was one of her ambitions according to her testimony.
Ms Panizza testified that with her present physical limitations and educational background, she anticipates that any return to work will most likely be in the type of managerial role previously undertaken with Hungry Jacks. Dr Richardson, Mr Vaughan and Dr Connaughton testified that she was capable of undertaking other retail or store management roles.
In Graham v Baker (1961) 106 CLR 340 Dixon C.J., Kitto and Taylor JJ said the following at 347:
"[A]n injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss."
In CSR Ltd v Eddy [2005] HCA 64 Gleeson C.J., Gummow and Heydon JJ said the following at [30]:
"The second type of loss is loss of earning capacity both before the trial and after it. Although the damages recoverable in relation to reduced future income are damages for loss of earning capacity, not damages for loss of earnings simpliciter, those damages are awardable only to the extent that the loss has been or may be productive of financial loss. Hence 'the valuation of the loss of earning capacity involves the consideration of what moneys could have been produced by the exercise of the [plaintiff's] former earning capacity'."
The average weekly earnings for Western Australia as at November 2008 were $1,315.70 gross or $950.83 net per week.
According to Exhibit 11, the letter from Hungry Jacks regarding wages for management, the present earnings for an entry level manager at Hungry Jacks amount to $808.50 gross per week (taking the mid-point of the range of $773.00 to $836.00) or $666.47 net per week.
According to Exhibit 12, the School Education Act Employees' Salary Rates (effective from 5 September 2008), the present earnings for a first year teacher are $1,021.75 gross per week ($51,331.00 plus $1800.00 graduate allowance divided by 52 weeks) or $815.28 net per week.
Ms Panizza's counsel submits that on these figures a global award of $120,000 for loss of economic capacity (inclusive of superannuation) would be appropriate and equates to roughly $140.00 per week (plus superannuation) over Ms Panizza's working life to age 67.
The defendants' counsel does not dispute the figures above. However, he submits that even if there is a possibility of Ms Panizza having obtained employment as a physical education teacher, if not for the accident related injuries, the evidence in Exhibits 11 and 12 does not suggest any significant potential loss of income by reason of having lost the opportunity to pursue a career as a physical education teacher. I do not agree. Ms Panizza is presently capable of earning a wage in a management role with Hungry Jacks, considerably below that which she would have been earning had she qualified and pursued a career in physical education teaching.
Further, any return to work for Ms Panizza will be contingent on an accommodating employer being prepared to "take a risk" on an injured employee.
As her counsel recognizes, there is the prospect of Ms Panizza training into higher paying employment in the medium to long term.
A court in assessing loss of earning capacity must be satisfied of two matters as stated in Medlin v State Government Insurance Commission (1995) 182 CLR 1:
"A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that 'the diminution of ... earning capacity is or may be productive of financial loss'."
Lord Diplock in Paul v Rendell (1981) 34 ALR 569 at 571-572 expresses the matter of assessment as follows:
"The assessment of damages in actions for personal injuries is not a science. A judgment as to what constitutes proper compensation in money terms for pain, suffering or deprivation of amenities of life, can only be intuitive, and the assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured. What matters to the parties, however, to the plaintiff and to the insurer of the defendant alike, is the total sum awarded. Neither party is concerned how the assessor of the compensation has rationalized his intuitive assessment of the total amount that the plaintiff ought to recover by apportioning it between the various components, past and future, economic and non-economic loss, and interest on each class of loss, which he has taken into consideration before arriving at his final award."
A court is not required to make a precise calculation of the future earnings lost by a plaintiff and then to discount this by a selected percentage when assessing damages which involve a future or hypothetical situation which has resulted from the injury. What the plaintiff has lost as a result of injury is the chance to earn income in the future and she is compensated for the loss of that chance. In assessing the value of the loss of chance the court has to assess the degree of probability of the future or hypothetical events occurring: Malec v JC Hutton Pty Ltd (supra).
Where there are too many imponderables to make any precise calculation of the damages to be awarded for the loss of earning capacity a global amount has been awarded: Gamser v Nominal Defendant (1977) 136 CLR 145.
In this case there are significant imponderables in making an assessment on a young woman who sustained injury whilst still at school and who then left school to take up employment in the following year, at age 15½.
In all the circumstances, I am satisfied a global award of $75,000 for loss of economic capacity (inclusive of superannuation) would be an appropriate award. This amount takes into consideration the usual contingencies such as early death, sickness, accident and unemployment, which may have reduced her earning capacity in any event. It takes into account the pre-existing Scheuermann's Disease. I have also taken into account the possibility that Ms Panizza may not have ultimately pursued a career as a physical education teacher.
Future special damages
To date, Ms Panizza's medical treatment has been conservative (non‑invasive) treatment and the cost of that treatment has been met by the defendants.
Her future needs are limited to simple pain relief medication and the occasional attendance upon her general practitioner. The medical evidence does not indicate the prospect in the future of any significant deterioration in her condition requiring more intensive medical intervention.
In all the circumstances, Ms Panizza is entitled to a global award of $2,500 under this head of damage for future medication.
Non-pecuniary loss
Section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 provides limits to the amounts that can be awarded for non-pecuniary loss. The present limit is $327,000.
Pursuant to s 3C(1) a court may award general damages for non‑pecuniary loss such as pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm.
A court must undertake an assessment based upon the right proportion between a most extreme case and the case being assessed: Hendrie v Ruski [2000] WASCA 249, De Blank v Stemberger [2000] WASCA 358.
There must be a separate award of damages for non-pecuniary loss arising from each of the accidents. For the reasons outlined above I find that the second and third accidents caused only an exacerbation of injuries and symptoms arising from the first accident lasting no more than a few weeks to a month, so the non-pecuniary loss assessment for each of the second and third accidents would not exceed the statutory threshold and there should be no award of damages.
In the first accident Ms Panizza sustained soft tissue injuries to her cervical, thoracic and lumbar spine and she suffered back pain which resulted in a permanent disability. Although the first accident has not required her to undergo anything other than conservative non-invasive medical treatment and she has not required significant amounts of time away from work, her lifestyle has been impacted. She suffers pain and restriction arising directly out of the injuries and that pain and restriction has affected her academically, occupationally, socially and recreationally.
I award damages for non-pecuniary loss pursuant to s 3C(2) – that is, a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount to be awarded. I assess the proportion at 15 per cent which equates to $49,050.
Section 3C(5) provides that if the amount of non-pecuniary loss is assessed to be more than Amount B but not more than Amount C, the amount of damages that is to be awarded is the excess of that amount so assessed over Amount B.
The prescribed amount for Amount B is $16,500 and the prescribed amount for Amount C is $49,500.
Thus the amount of non-pecuniary loss is calculated at $32,550 ($49,050 less $16,500).
Damages assessment
Past economic loss $ 10,000
Loss of earning capacity $ 75,000
Future special damages $ 2,500
Non-pecuniary loss $ 32,550
Total$120,050
I would therefore award damages in the sum of $120,050.
3
7
1