Partridge v Ireland
[2002] NSWSC 654
•26 July 2002
CITATION: PARTRIDGE v IRELAND [2002] NSWSC 654 FILE NUMBER(S): SC 20761/01 HEARING DATE(S): 21-23 November 2001 JUDGMENT DATE: 26 July 2002 PARTIES :
Plaintiff: Andrea Partridge
Defendant: Wendy IrelandJUDGMENT OF: Hulme J at 1
COUNSEL : Plaintiff: A Hewitt SC
Defendant: WK Dodd SCSOLICITORS: Plaintiff: Stanger & Ryan
Defendant: Hunt & HuntDECISION: Findings on liability and some issues of damages made; Matter adjourned for parties to carry out calculations.
HULME JIN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
NO: 965/99
1 His Honour: On 30 April 1999 the Plaintiff entered into a lease of premises at 37 Corlette Street, Newcastle. Later that day she sought to gain entry at the front of the premises but being unsuccessful commenced to walk down the driveway to No. 33 Corlette Street over which driveway there was a right-of-passageway in favour of the properties at 35-41 Corlette Street.
2 While on the driveway a dog owned by the Defendant, the occupier of No. 33, attacked the Plaintiff. The Plaintiff mounted a paling fence beside the driveway and then, in the course of getting off the fence, fell onto the far side. On striking the ground she injured her left knee.
3 She has brought action against the Defendant both in negligence and in reliance on Section 25 of the Companion Animals Act 1998. So far as is relevant that section provides:-
- 1 The owner of a dog is liable in damages in respect of:
- (a) bodily injury to a person caused by the dog wounding or attacking that person, and
(b) damage to the clothing of a person caused by the dog in the course of attacking that person .
- (a) an attack by a dog occurring on any property or vehicle of which the owner of the dog is an occupier or on which the dog is ordinarily kept, but only if the person attacked was not lawfully on the property or vehicle and the dog was not a dangerous dog at the time of the attack,
4 Presumably because of the existence of the right-of-way and the Plaintiff’s position as tenant, it has not been suggested that sub-section (2) operates so as to exclude the application of sub-section (1). Thus, under sub-section (1) the Defendant is liable for the damage suffered by the Plaintiff.
5 The Plaintiff did not abandon the reliance on the claim in negligence, but adduced no or virtually no evidence directed to it. I am not satisfied that there was any negligence on the part of the Defendant.
6 The injury to the Plaintiff’s knee was severe. She suffered an extensively comminuted fracture of the lateral tibial plateau. She was taken to hospital and operated on the following day after a night of “agony”. She remained in hospital for about a week. During this time she suffered pain, alleviated by morphine, and stress, evidenced by her breaking out in cold sores. When she left hospital her leg from hip to ankle was in a hinged brace which, over time, was adjusted to give her an increasing degree of flexion in the knee joint. Initially, the brace was about as restrictive as a plaster cast. She was on crutches for about two and a half months and then used a stick for about another month.
7 In March 2000 the internal fixation hardware was removed under general anaesthetic. This operation involved an overnight stay in hospital followed by about another 3 weeks on crutches and a stick.
8 Given the extent of the fracture, the operation seems to have been carried out very well. Dr Kerridge, an orthopaedic surgeon who reviewed the Plaintiff on behalf of the Defendant was very complimentary about it. The Plaintiff still has full knee extension and only some 10 degrees loss of flexion. However, there remains extensive damage to the knee joint. One of the results of this is that there is excessive movement and often grinding of the joint on movement. Dr Kerridge opined that the joint would become at least a little worse and further surgery might be required.
9 However the balance of evidence was far more pessimistic. Dr Mitchell, who did the operation said that it was extremely likely that the Plaintiff would develop arthritis and almost certain that further surgery would be required. This would probably include arthroscopy and a 70 to 80% chance of, in the next 10 to 20 years, a total knee replacement. Because of the limited life of such replacements, a second replacement was a distinct, and a third also a, possibility although deterioration of the site of the first might make this impossible. Dr Ghabriel said that the Plaintiff was already developing osteoarthritis and gave a similar, albeit not identical, assessment as to the future treatment. Drs Engel and Hopcroft also thought a knee replacement to be likely. While Dr Kerridge was not unimpressive, the totality of the evidence leads me to the conclusion that one arthroscopy and 1 knee replacement are certain and there is a strong probability of a second knee replacement. In saying that I am conscious of the difference between “certain” and a 70-80% chance. In my view the totality of evidence supports the conclusions at which I have arrived.
10 The problems with her knee impact on the Plaintiff in a variety of ways. She can walk with no apparent limp but has to slow down somewhat to achieve this. Although her demonstrations of walking in the court-room were quite slow and tentative, she freely admitted that her normal manner of walking was not so. Also consistent with her not normally limping or walking tentatively was her concession made in cross examination that on one occasion at work she required assistance moving a table, and that the person providing assistance was unaware of any problem prior to this event. When asked to deny the proposition that people with whom she worked at the Council were unaware of her having any problems for 5 weeks earlier last year, she merely said she could not be sure. I accept that the Plaintiff does suffer pain and other difficulties in this activity, and while quite capable of incidental walking and walking for exercise for a kilometre or two or perhaps more, albeit usually with discomfort, her ability to walk has been significantly impeded by the accident. Carrying weights heavier than moderate – Dr Mitchell suggested a 20 kilogram limit – magnifies the problem. Wet weather tends to make the joint stiff. There is some wasting of the leg.
11 Stairs are also difficult, causing grinding in the joint. The Plaintiff at times adopts the practice of leading with one leg – in Dr Kerridge’s words, “dot and carry”. The knee gives way regularly and on two occasions the Plaintiff has fallen. Clearly there is potential for further injury in this area.
12 Other difficulties the knee injury has caused include kneeling and the Plaintiff has also experienced some difficulty with driving. She said that this activity caused her to become stiff as it required her to remain in a similar position for a period of time. However, when questioned about a number of reports seeming to suggest she could only drive for short periods, and that it was this reason that she and her partner shared the drive to work, she conceded this arrangement was not purely due to her injury but was largely for reasons of convenience.
13 The plaintiff has difficulty in wearing high-heeled shoes. Although conceding she does still wear such shoes she said that she could no longer do so with the same degree of regularity and that she was generally limited to one pair of boots that she wears when she can. She said that by the end of the day however this results in a fair amount of discomfort along with a lot of lower leg bruising.
14 Prior to her accident the Plaintiff participated in a wide range of physical activities. At John Paul College, which she attended for some of her senior schooling, she was age champion in athletics in every year until she left and was cross country champion for at least 2 years in a row. She recounted her participation in swimming carnivals and most sporting activities. She had played representative sport for the Navy and had snow and water skied. She recounted circuit work and cardiovascular exercises like kickboxing exercises and jogging at the gym as enjoyable forms of exercise but also gave evidence of having enjoyed team sports such as netball, softball and touch football. She swam and cycled and when working for Port Waratah Coal Services, she would cycle some 25 kilometres to and from work.
15 When asked as to which of these activities other than cycling she could now partake of, “swimming” was her only response. She can cycle for only about 20 minutes. She does some weight exercises at the gym but cannot do cardio-vascular exercises there. She has put on 8 to 10 kilograms. The Plaintiff gave evidence of missing the other activities and of feeling frustrated due to her reduced capacity to undertake sporting activities, one of the factors she said led her to consult a psychologist. It would seem this situation is somewhat magnified by the fact her partner is physically fit to a level that enables him to compete in iron-man competitions.
16 Apart from the knee itself, the Plaintiff has been left with a 15cm curved scar on the outside of her leg. The scar is clearly visible but not grossly so. She described this as an area of embarrassment and gave evidence of having worked very hard to reduce its severity. Whilst admitting that in hot weather she still wears shorts or, at work, skirts, she said that she is now more prone to wearing pants or long skirts. There has been some wasting of the calf and of the thigh muscles in that leg although the Plaintiff has minimised this by exercise. The Plaintiff also suffers some permanent, albeit intermittent, discolouration over an area of 4 to 5 by 1½ to 2 inches on one side of her calf, of the nature of apparent bruising, probably due to superficial nerve damage.
17 For 12 months subsequent to the braces removal there remained in the Plaintiff’s knee internal fixation hardware. During this period she experienced considerable difficulty with nerve damage, the manifestation of this being unpleasant sensations such as scalding hot water being poured down the inside of her leg and ants crawling across the left hand side of her leg below where the injury was. Although there has been a reduction in these sensations since the hardware’s removal in March 2000, the Plaintiff said the sensations remained ever present, at times worse than others, a fact she attributed to increased activity. When asked to quantify the regularity with which she experiences significant unpleasant sensations she gave an average of 2 or 3 times each week.
18 In cross examination the Plaintiff conceded that six months post injury she was still experiencing continuing improvement, telling her then GP that she was able to walk at least 1km. She agreed that since then her walking tolerance has become greater. She gave evidence to similar effect during cross examination that there had been a marked improvement in her condition up until early 2000 at about which time this plateaued out. Mr Caldwell, the Plaintiff’s partner, also denied the proposition that the Plaintiff’s condition, both physical and psychological, was materially improved from 12 months earlier, saying he believed her condition had plateaud at roughly that time. On a physical level he said consecutive days of work clearly causes the Plaintiff pain.
19 There was also evidence that the accident had a psychiatric or psychological effect on the Plaintiff. She gave evidence of attending on a number of occasions on Roslyn Gould, a psychologist, in an attempt to address such feelings as lack of motivation, poor self esteem and uselessness as well as frustrations associated with her reduced capacity to undertake sporting activities. The Plaintiff said that on bad days she has bouts of crying and feelings of self-pity. She said that she feels dreadful about not being fit for marketing work. For the first few months during which she was seeing Ms Gould the Plaintiff saw her regularly but since seeing Dr Rickarby, a psychiatrist, the frequency of visits to Ms Gould has fallen off. The Plaintiff accepted that she may not have seen Ms Gould for over 12 months immediately prior to trial.
20 Mr Caldwell said that the Plaintiff was a very strong person whom he could not recall ever having seen cry prior to this incident except possibly at a sad movie. However, now, on various occasions, more than weekly, he often finds her crying. He described her as quite emotional about the incident and still very upset by it.
21 Admitted into evidence as part of Exhibit D was a report of Ms Gould dated 1 August 2000. In it she opined that as a result of her injury the Plaintiff suffered an acute stress disorder along with both depression and anxiety. Miss Gould’s assessment of the Plaintiff was that she had gone from an extremely active, joyful, independent and ambitious young woman to one who was anxious, despondent and depressed as a result of her being unable to enjoy her life as previously. She was of the opinion that the accident had had a distinctly adverse effect upon the Plaintiff’s life with the Plaintiff experiencing considerable difficulty accepting and adjusting to her limitations. With regard to her future prognosis, Ms Gould believes the Plaintiff will be vulnerable to psychological difficulties with any deterioration in her medical condition as well as any consequent medical procedures. Ms Gould was unable to estimate with accuracy what such events might entail, except to suggest that limited and focussed supportive counselling would be appropriate at such times to minimise any psychological deterioration.
22 Dr Rickarby first assessed the Plaintiff on 2 April 2001 at the request of her solicitor. At this time he diagnosed significant post traumatic phenomena and pathological grief which he concluded was arrested at stages 1 and 2 with stage 3, mourning, a significant task the Plaintiff had yet to commence. In light of this a second assessment was scheduled 7 days later. Dr Rickarby found the Plaintiff to be in a hyper-alert state, evidenced by her resuming smoking and picking obsessively of her hands to the point of them bleeding. Further he found her to be suffering continual intrusive thoughts of the accident as well as the presence in the Plaintiff of strong ego defences obstructing her ability to deal with radical change. In his report of 12 April 2001, he opined that she needs to do extensive work on her unresolved grief with psychologists and estimated at least 30 sessions would be required. Further he recommended that she maintain regular psychiatric contact once a month for the next 5-6 years. In common with Ms Gould, Dr Rickarby believes that future hospitalisation and surgery has the potential to compound the Plaintiff’s psychological condition. In oral evidence Dr Rickarby said that he would like to see the Plaintiff something like 20 times a year for 2 or 3 years and thereafter 3 or 4 times a year. However a crisis such as a knee replacement or child would take the visits back to 20 per year.
23 During cross examination of the Plaintiff the topic arose of a newspaper article written about her accident and published in a Sydney newspaper. She gave evidence of the humiliation this caused her as a result of its exposing the depressive sequale of her injury to her immediate family and friends. She said it depicted her for the first time as a woman who, in her own words, was depressed, not in control and full of self pity; characteristics she had never previously been known for and which she said were incredibly private to her. The Plaintiff’s contention finds support in a report of Dr Rickarby dated 27 September 2001 in which he stated that her depression seems to have worsened due to the pain and humiliation consequent upon coverage of her accident.
24 It was put to the Plaintiff that she could undertake a high level clerical role. She agreed she had sound computer and administrative skills and could do such a job. I am not sure, however, whether at the time that evidence was given either the cross-examiner or the Plaintiff were directing attention to the inherent nature of the job or the Plaintiff’s capacity to work 5 days per week. I do not read the Plaintiff’s answer that last mentioned way although I accept that a role more sedentary than that she had at the time of trial might well allow an increase in working hours. Nevertheless I am of the view that even in that situation she could not work full time.
25 The Plaintiff suggested that she was over qualified for a clerical job and would probably have difficulty in obtaining one upon the grounds that an employer would not expect her to remain for long. In any event she was not keen on the prospect. It was something from which she had “moved on”. That in my view is a reasonable approach and while it would not entitle a Plaintiff unable to pursue her chosen career to sit by, do nothing and expect a Defendant to as it were pay for all lost income, a forced change of occupation might well lead to a significant increase in general damages. The Plaintiff was ambitious. I think she still is although somewhat dispirited. She wants something more challenging than clerical work.
26 Admitted into evidence as Exhibit K was a list of the Plaintiff’s medical requirements including the medication she is currently prescribed. She presently takes three drugs; Nurofen, an anti-inflamatory tablet to assist with pain relief and the nerve sensations in her leg; Cipramil, an anti-depressant which she also finds effective in easing the nerve sensation she experiences and Panadeine Forte. She gave evidence of having reduced her usage of the last 2 of these by the time of trial, at least in part following discussions with her psychiatrist concerning the potential risk Panadeine Forte poses to her future ability to bear children. (I note that Dr Rickarby mentioned Ibuprofin, i.e. Nurofen and not Panadeine Forte in this connection.) The Plaintiff has reduced her Nurofen intake to once a day. Dr Mitchell said that often Nurofen and Panadeine Forte do not keep pain under control.
27 Exhibit K records the Plaintiff as currently requiring two consultations with Dr Mitchell each year. She said that the regularity with which she sees Dr Mitchell has decreased due to her consulting other orthopaedic surgeons in connection with these proceedings. These have allayed certain fears she had. Indeed in cross examination she admitted having received no active treatment from the doctor since October last year following a fall she had at a social function she was attending and prior to that time not since March of the same year. In light of this, Mr Dodd put to the Plaintiff that her assertion of her acquiring two consultations each year could not be accurate. She denied this stating that if calculated on an average, it would be as she had seen him 3 times the year previously, although she conceded this was in the post injury period. Dr Mitchell was not asked to express a view as to the frequency with which the Plaintiff should see him or someone of his expertise. I am unpersuaded that in the long term the Plaintiff will need to see Dr Mitchell as frequently as claimed although as the knee deteriorates visits are likely for a period at least to become more frequent. However the claim was for only $90 per year. This is so low for 2 visits to a specialist that I propose to allow it.
28 Also recorded in Exhibit K is what is said to be the Plaintiff’s current requirement of 6 consultations with a GP each year. She gave evidence of last consulting a GP approximately one month prior to trial for a repeat prescription of Cipramil but stated that prescriptions were not the sole reason behind her visits. Other benefits she derives from her GP include reduction in pain medication, alternative methods of dealing with pain and assistance via exercise with muscle build up. Most people visit their GP each year in any event. I am not persuaded that the Plaintiff will have in consequence of her injury more than 2 extra (including significantly longer and more expensive visits) in a year.
29 Exhibit K also records the Plaintiff as currently requiring between 10 and 12 physiotherapy sessions each year. She described the timing of these appointments as erratic. Sometimes months will pass without a physiotherapy session as a result of the Plaintiff undertaking a regimented home program. However, following a fall, greater regularity of visits will ensue. She gave evidence of active treatment during these sessions such as electric current treatment to build up muscle which she can supplement via a home maintenance program. Again I am not persuaded Exhibit K does not put the claim too highly. Exhibit M records 5 visits in 2000 and 2 visits in 2001 to the time of trial. Certainly I am not persuaded the Plaintiff will, or needs to, visit the Physiotherapist every month for the rest of her life. I propose to allow 3 visits as an average annual number.
30 The Plaintiff was educated to year 11. She then joined the Navy, leaving it in 1995. There have been some periods of unemployment since but for only a few weeks at a time. Toward the end of her time in the Navy she was involved in recruiting and continued this for a year while in the Naval Reserve. She also undertook a course in hotel management. On discharge from the Navy she went to Port Waratah Coal Services, first as a personal assistant in the human resources department and after she had resigned from this position and at the invitation of the general manager became a “best practice co-ordinator”. She then undertook temporary work for a period.
31 In 1986 the Plaintiff commenced a correspondence degree course at Charles Sturt University. At about the time of undertaking the temporary work she decided that her preference was not for a career in human resources and changed her studies at university from a major in human resources to a major in marketing. Her last examination in that course was in the week before the hearing.
32 In about 1996 or 1997 she took a position promoting the Hunter Mariner’s Super League Football team at a salary of $35,000 gross plus a car and mobile telephone. She reported to the marketing manager. She was then invited to apply for the position of promotions manager with the “NRL” (a merger between the Australian Rugby League and Super League). She was successful in that application and while working in that capacity was on a salary of $50,000 gross.
33 The job required the Plaintiff to live in Sydney and after about 12 months she left it, mainly for personal reasons and because of the job’s demands. Prior to leaving the NRL she had an offer of two jobs in Newcastle and took one with an organisation “Life without Barriers”. She was involved in a training and employment program for people with disabilities, the program being initially funded by the Commonwealth Government. It involved the Plaintiff in networking with and seeing potential employers and assessing the training needs of people with disabilities and helping them to attend interviews with potential employers. Driving, much walking, standing at cocktail parties and other functions were involved. Because the organisation was, at least in some respects a charity, the Plaintiff was paid under an arrangement whereby 50% of her salary was taxed and 50% untaxed. The Plaintiff said that she believed her salary was around $619 per week. She was also provided with a car and mobile telephone. It was while working for Life without Barriers that the Plaintiff was injured.
34 Mr Ferris who was the Plaintiff’s brother-in-law and the CEO of Life Without Barriers at the time confirmed that half the Plaintiff’s income while there was paid in an untaxed form. Further support for the likelihood that not all of her income is referred to in Exhibit 3, a copy of her Group Certificate, is afforded by the relatively low remuneration apparent therein, when compared with what she had enjoyed previously.
35 With her leg still in the brace the Plaintiff resumed work at Life Without Barriers for a couple of hours a day a few days a week. This, however, proved unsuccessful, her limitations jeopardising the programs’ operation, thereby placing funding at risk and this employment ceased. She next obtained employment in July 1999 at her sister’s internet company. Initially her role was restricted to assisting with the administrative running of the office but approximately 4-6 months later progressed to her becoming responsible for the company’s marketing. Once again she encountered problems with the physical component of this employment, such as with driving and lifting boxes. After a year it became apparent that the plaintiff was not coping so she left. In this respect the Plaintiff’s evidence was supported by that of Mr Ferris.
36 Whilst unemployed she continued her university studies, worked on rehabilitating herself and sought work. To this end she registered with a recruitment agency from which she obtained a 5 week position commencing in January 2001 with Port Stephens Council working in their public relations department 4 days a week. Her role was mainly sedentary. Soon after leaving she was informed of another vacancy at the Council for a Civic Events Coordinator, a position for which she applied and received. At the time of trial she was currently still in this position, albeit on a probationary basis, though this probation was then due to expire shortly. She works 3 days a week, each Monday, Wednesday and Friday. In her evidence she described her role as semi-sedentary and said arrangements existed to outsource labour when the job’s physical requirements so demanded. When asked whether she could work any more than 3 days a week, she replied that she had attempted anywhere from between 1 and 5 days a week but feels 3 days is best suited to her physical capacity. In cross examination she maintained this position saying that if she works consecutive days, by the week’s end she is exhausted, in pain, not sleeping well and has to take pain killers. Mr Caldwell gave evidence to similar effect that consecutive days of work cause the Plaintiff pain.
37 I am satisfied that the Plaintiff’s study was not a cause of her not working during the period between leaving her sister’s internet company and when she commenced with Port Stephens Council or working part time more recently. It may well be that her studies benefited from the extra time she had available but given that she passed nearly all of her exams while she was working I doubt that any extra study time can be regarded as of significant value.
38 To a significant extent the above account, and which represents findings by me, comes from the Plaintiff. I confess to having wondered whether her manner of walking in court was not a deliberate exaggeration of her difficulties but at the end of the day I am persuaded it was not. I am persuaded that the Plaintiff has put a deal of effort into overcoming the effects of her injury. She set out to rid herself of crutches early and derived satisfaction by doing so. She has put effort into minimising the scarring on her leg. I am satisfied she has done her best in terms of resuming employment. Generally the Plaintiff impressed me as genuine and truthful.
Damages
39 I would assess general damages in the sum of $125,000. This is the top of the range suggested by counsel for the Plaintiff and slightly higher than the top of the range suggested by counsel for the Defendant. It reflects the very significant impact on the Plaintiff of her injury. It reflects also the possibility that the Plaintiff may choose not to have children because of the difficulties the combination of them and her knee will cause and alternatively some extra assistance which is likely to be required to cope with them. (I have not doubled up this last aspect in my Griffiths v Kerkemeyer assessment although that may have been where it more properly belonged.) The sum also reflects the frustration and disappointment consequent on the probability that the Plaintiff will not be able to pursue employment in her preferred role.
40 These general damages should be assessed as to 50% for the past and 50% for the future.
Past Economic Loss
41 This claim falls into 2 parts. The Part 33 rule 8A Particulars base the first part of this claim on an earning capacity of $770.12 per week gross, consisting of a motor vehicle benefit of $72.12, an allowance of $24.93, earnings actually received of $673.07 and tax of $53.39. The claim after 1 January 2000 is based on what are said to be average weekly earnings for the occupation of a sales and marketing manager. These are said to be $1,357.09 per week gross until 30 June and $1,423.95 per week gross thereafter. These details are to be found in a WorkCase report tendered. To 3 September 2001 her earning capacity was said to have a value of $98,771 while her actual earnings were said to have been $32,469.
42 As advanced in the Plaintiff’s Schedule of Damages at trial the claim was:-
- (i) that the Plaintiff would have worked at Life Without Barriers until the end of 2000 i.e. a further 87 weeks.
- (ii) that from the end of 2000 the Plaintiff would have been employed at Club Nova, a club operating in the Newcastle area,
- (iii) that the value of her employment at Life Without Barriers was $750 per week
- (iv) that the value of her employment at Club Nova would have been no less than $943 per week.
- (v) that the Plaintiff’s actual net earnings should be deducted form the total of these figures.
43 I accept that the Plaintiff would have worked either at Life Without Barriers or at a similar income until at least the end of 2000. I am satisfied that her net income at Life Without Barriers was $2,685.18 per month being the sum of $1,226.93 referred to in Exhibit L and $1,458.25 representing the other half of her gross salary. The latter figure is ¼ of the Plaintiff’s gross salary for 4 months as disclosed in Ex 3, a copy of her Group Certificate. Ignoring cents, $2,685 per month is $619 per week.
44 To the figure of $2,685.18 must be added something to take account of the fact that at Life Without Barriers the Plaintiff was provided with a mobile phone and fully maintained car both of which she could use for her personal wants. On the basis of 40% private use, this is valued in the WorkCase report at $72.12 per week. The Plaintiff did not give evidence of the value of these to her at the time. There was evidence from Mr Goodsir that the value of a mobile phone provided by Club Nova to him was $120 per month. However this figure no doubt reflects Mr Goodsir’s idiosyncratic use of the phone. Common experience teaches that some people use such phones very frequently and some hardly at all. His evidence is of no assistance as to the value of a phone to the Plaintiff. Even in the absence of evidence as to its extent I am satisfied that the phone would have had some value but, given the onus is on the Plaintiff, I do not feel able to conclude that value to higher than the somewhat arbitrary figure of about $25 a month or $6 per week.
45 Mr Goodsir gave evidence that the lease costs of the car provided to him by Club Nova are $8,000 per annum. His car falls within the same general category as that which the Plaintiff had, albeit as a station wagon, its costs may have been slightly higher. However, any such difference was not canvassed and I think I should ignore it. More significantly, the Plaintiff’s was fully maintained and Mr Goodsir’s is not.
46 There was little or nothing by way of evidence which would enable the matters referred to in the immediately preceding paragraph to be translated to the dollar figure for benefits to the Plaintiff. Although it seems to me that such evidence must be available, I think I should make some attempt on my own albeit without forgetting where the onus of proof lies. It seems likely that the car would have been used for work during the week although would have been used to drive to and from work and for some use outside work hours. Presumably the car was available for private use on weekends. At 2 days out of 7, weekends make up 28% of a week. Accordingly I propose to adopt the 40% used in the WorkCase report in determining the annual value of a car to the Plaintiff. Based on general experience, I propose, perhaps somewhat arbitrarily to adopt as a minimum figure for the annual running costs which Life Without Barriers paid but Club Nova did not, $1500.
47 Thus I will proceed on the basis that the net value of her employment at Life Without Barriers was, on a weekly basis, $715 calculated as follows:-
- $619 + 6 (phone) + 1/52(8000 x 40% + 1500) = $715
48 The claim that from the end of 2000 the Plaintiff would have been employed as a marketing manager at Club Nova depended to a very large degree on the evidence of Mr Ferris, who, from about the end of 1999, was the Chief Executive Officer of that club. He said that had the Plaintiff not been injured at the time indicated, he would have appointed the Plaintiff rather than Mr Goodsir to that position and at a higher salary.
49 The relationship between the Plaintiff and Mr Ferris and the extremely favourable nature of Mr Ferris’ evidence means that one should look with a degree of scepticism at that evidence. Despite that scepticism, I am disposed generally to accept it. Mr Ferris had employed the Plaintiff at Life Without Barriers and it may be inferred that at the time of doing that he saw potential in her. The circumstances of the Plaintiff’s employment at the NRL also provides an indication that she was good within her chosen field.
50 Mr Goodsir’s salary package, including superannuation, was according to Mr Ferris worth some $70-80,000 per year. Mr Goodsir gave some details of the components of this which, without superannuation, indicate something of the order of $65,000 a year. According to Mr Ferris, the salary package of the previous incumbent, who had more experience than the Plaintiff was about $120,000 per year and he had authority to go to $120,000 when he employed Mr Goodsir. Mr Ferris said that the value of the Plaintiff’s salary package would have been between $100,000 and $105,000 per year. Later Mr Ferris indicated that these figures were accurate to within $10,000.
51 The claim as advanced in the Plaintiff’s Schedule of Damages was based on Mr Goodsir’s income. It was detailed as follows. $53,000 only was by way of salary. This is $1,019 per week on which the tax payable is, according to the Schedule (and not disputed), $262, leaving a net salary of $757. The balance, untaxed, was made up of:-
- Meals – Mr Goodsir had 4 meals a week at the Club and worked 51 weeks a year. The Schedule but not Mr Goodsir, valued this at 204 meals at $20 each - $4,080 per annum.
- Educational Expenses in the sum of $3,900 per annum
- Private use of a mobile phone at $120 per month or $1,440 per year.
- Internet connection at $25 per month, or $300 per annum.
- Private use of a 2000 model Falcon station-wagon, the lease charges of which are $8,000 per annum.
52 The value of the first 4 or these was calculated at $9,720 or $186 per week and, although it was recognised that it ignored the car, the claim was based on the total of $757 and $186, i.e. $943 per week.
53 Although, at least in part because of a paucity of evidence from her, I am not satisfied that the Plaintiff would have derived all the benefit Mr Goodsir did from the first 4 items mentioned – and thus the non-taxable component of her income would have been lower, I am satisfied by Mr Ferris’ evidence that the Plaintiff’s income would have been no lower than the $943 advanced. However, even though it was not included in the claim in the Schedule, there was no dispute about it and it seems to me that there should also be some allowance for the car. I propose to include it at the annual value of 40% of $8,000. or $61.50 per week, making the total figure $1,004.50 per week.
54 However I think the award should be for more than this. In dealing with Future Economic Loss, I set out why. Past earnings at Club Nova should be calculated on the basis of the “Earning Capacity but for Injury” table with the adjustment for a non-taxable component which I detail.
55 It was agreed that the Plaintiff’s net income between the accident and trial was $45,262.82 as recorded in Exhibit L. The Defendant did not accept that that was all the Plaintiff could have reasonably earned. I am satisfied it was.
56 Accordingly the amount to be allowed to the Plaintiff for Past Economic Loss to the time of trial should be calculated on the basis of:-
Future Economic Loss
At Life Without Barriers $715 p w from the accident to 31 December 2000
At Club Nova $1,004.50 p w from 1/1/2001 to trial.
Less received $45,262
57 In her particulars, the plaintiff’s claim for future economic loss was based on the average weekly earnings figures for sales and marketing managers, said to have a present value of $1,110.923. Allowance was made for expected future earnings as a secretary or personal assistant, said to have a present value of $294,070. In that connection, it was claimed the Plaintiff could work only 12 hours per week till age 34, 20 hours per week after 45 and that she would cease work entirely at 55. The total claim was in the sum of $816,853.
58 The base figures from which these were derived are contained in a WorkCase report which is in evidence. They are set out in the following tables.
59 Earning Capacity but for Injury
30-34 1,423.95 448.59 975.36 35-39 1,557.89 513.55 1,044.34 40-44 1,548.01 508.76 1,039.25 45 plus 1,454.69 463.50 991.19
60 Earning Capacity after Injury
Age band Indexed gross earnings 30-34 660.92 35-39 658.73 40-44 666.41 45 plus 676.29
61 These latter figures were based on the assumption the Plaintiff became a Secretary/Personal Assistant and figures by Stinson, “What Jobs Pay”. Counsel for the Defendant accepted the reliability of Stinson.
62 As advanced in the Plaintiff’s Schedule of Damages at trial, the claim was based in part on the $632 difference between the Club Nova pay rate said to be $943 per week and her current earnings. It was submitted that the Plaintiff’s award should be based on her having suffered such a loss for 25 years, i.e. until she is aged 57. It was submitted that from then until aged 65, i.e. another 8 years, the Plaintiff should be assumed to have lost the sum of $943 per week. The Plaintiff submitted that the usual 15% allowance from these figures should be made for the normal vicissitudes of life but that any higher deduction was inappropriate. The foundation for that submission was evidence from Mr Ferris that the previous incumbent was paid more than Mr Goodsir and that the Plaintiff would also probably have been paid substantially more than the latter.
63 In oral submissions, the Plaintiff’s counsel however pointed out that Mr Ferris’ evidence led to the view that the Plaintiff might well have earned another $50,000 more than Mr Goodsir. On the basis that this was broken up into $30,000 salary and $20,000 allowances, and that the tax on the $30,000 would have been $14,000, it was submitted that the Plaintiff would have received another $650 a week.
64 The Plaintiff’s earnings current at the date of trial were contained in Exhibit L. That showed earnings of $6,243.14 net for the period 1 July 2001 to 16 November 2001, i.e. $ 312.17 per week.
65 The occupations and figures suggested by the Defendant as available to the Plaintiff included Public Relations Officer with gross earnings of $609.50, Personnel Consultant with gross earnings of $645, Personal Assistant with gross earnings of $548.90 and Marketing Officer with gross earnings of $638. These are clearly within the ball-park of the figures relied on by the Plaintiff.
66 I do not fully embrace the way in which the Plaintiff’s claim in this area has been formulated. I accept Mr Ferris’ evidence that the Plaintiff would have been paid more than Mr Goodsir though I am not persuaded it would have been more than the bottom of the range of which Mr Ferris spoke. When regard is had to what Mr Ferris said were the limits of accuracy, that is $90,000 a year, including superannuation. If, as I think reasonable the superannuation represented about 9% of salary, the salary would have been about $82,500. Were I to proceed solely on the basis of Mr Ferris’ evidence that is the figure I would choose for salary. I would have taken the view that the value of the package not paid in a form taxable in the Plaintiff’s hands would have been $9,000 made up of (approximately) $4,000 (meals) plus $320 (phone) plus $3,200 (vehicle) plus $1,500 (vehicle running costs). The rest would be taxable.
67 However, I also take the view that, on the topic of what the Plaintiff would have earned but for the accident, she should generally be limited by her particulars. Defendant’s prepare for trial on the basis of particulars supplied and had the Defendant in this case known that the plaintiff was mounting its claim as, for example Mr Ferris’ highest figure of $105,000 (or possibly) $115,000 it may well have prepared more to meet it. The claim as particularised does derive support from Mr Ferris.
68 Accordingly, and subject to what follows the claim should be calculated on the basis that the Plaintiff’s gross earnings would have been those in the first of the tables set out above. I would calculate her net earnings, had the accident not occurred, on the basis of $9,000 being received in a non-taxable form. As I have indicated I think her earning ability does not include full-time work and would assess it at the figure she has been receiving, $312.17 per week, even though this is lower than the amount particularised. The Plaintiff’s condition has always been in issue in the case.
69 The Plaintiff’s calculation does not take account of a number of factors which in my view it should. Firstly, it proceeds on the assumption that, but for the accident, the Plaintiff would have worked until 65. Many people, even those without children do not, be it because of boredom, a desire for a change or an increased liking for golf. One of the Plaintiff’s attributes that made her a desirable employee was, according to Mr Ferris, her ability to “lift an office”. Not all persons who have those attributes at 30 still have them at 50 or 60. Energy levels do deteriorate with age.
70 One topic about which there was virtually no evidence is the length of time the Plaintiff would have worked had she not been injured. She gave no direct evidence as to her intentions in this regard. She did not express any views as to envisaged retirement age.
71 Furthermore the calculation as to what the Plaintiff would have earned but for the accident makes no allowance for the possibility that she would have children. This topic was not explored in evidence-in-chief. However in cross-examination she said that she would love to have children but had concerns. In the same answer she said that the injury debilitates her to some extent and that, I conclude, is the cause of her concerns. Absent persuasive evidence to the contrary the possibility of children should, as a matter of logic, be taken into account in the calculation and in light of the evidence to which I have just referred, I would have regarded the possibility of children and losing at least some years from work on that account, had the accident not happened, as substantial. No statistics were put before me but my impression based on general knowledge of the community is that those chances would have been no less than 50%. There is no evidence of the extent to which having children would have reduced the Plaintiff’s earnings.
72 The Plaintiff’s intentions, or even whether she had any, on the topics of having children, what interruption any children would be to her working life, and what her working life would be – if she had no children were matters peculiarly within the knowledge of the plaintiff. Apart from the somewhat elliptical references to having children and her discussions with Dr Ricardy about the effects of medication to which I have referred, the Plaintiff gave no evidence of her intentions on any one of these matters.
73 In these circumstances I do not believe I would be justified in inferring that the Plaintiff would have worked beyond 55 or 60 in any event. Indeed, and although I shall adopt 58 as an average between these figures, I have doubts whether any assumption she would have worked for that long is justified.
74 Common experience indicates that there is a substantial chance that, but for the accident, the Plaintiff would have had children and would either cease work in consequence at some stage or at least take a significant amount of time off to look after them, be it years while they were young or by working part time. The conventional allowance for the vicissitudes of life of 15% was arrived at over years in cases which, with perhaps rare exceptions, did not have these features. However in Sullivan v Gordon (1999) 47 NSWLR 319 a 5 member bench agreed with Beazley JA (at 338) that “To the extent that child bearing and rearing might affect a person’s earning ability, it should, in my opinion be reflected in the usual contingencies, unless in the particular case there is evidence to support an increase in the percentage deduction for contingencies”. With respect to those who embraced it, the proposition strikes me as judicial legislation inconsistent with the general principles of assessment of damages and earlier authority on the topic of an allowance for vicissitudes – see for example Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 497-8; GIO of New South Wales v Wojnar (unreported, CA, 15 December 1988) at p7. The assumption that there is no difference between the extent of the working lives of women with the potential of child bearing and other members of the population who do not fall into that category also strikes me as out of accord with what actually happens in the community. However, I feel obliged to bow to the precedent of Sullivan v Gordon.
75 But in this case there was some evidence. It was not much but it persuades me that, but for the accident the Plaintiff desired to have children. Of course, she may not have because of infertility of herself or any partner, because there was no partner similarly inclined at the right time, because she ultimately preferred not to or for other reasons. Given her reservations about the effect of the injury that chance has reduced but I do not think it is gone completely. In these circumstances I propose to apply a figure for vicissitudes of 25% rather than 15%. Obviously there can be no precision in that determination but judged by the without-accident income on which the Plaintiff’s damages are calculated, the increase represents not many years away from work. And in the context of her working life, her childbearing years were and are likely to be sooner rather than later.
Griffiths v Kirkemeyer
76 In evidence the Plaintiff said that she needed approximately 3 hours per fortnight for shopping assistance. This might be compared with Mr Caldwell’s evidence that shopping for groceries and fresh greens for both the Plaintiff and himself takes of the order of 2 hours per week. He said that the Plaintiff couldn’t carry out the weekly or fortnightly grocery shopping alone, inter alia because walking any distance with a trolley would be difficult for her especially down ramps if the trolley were full.
77 I have difficulty in accepting some of this evidence. Shopping centres with trolleys and easy access car parks are sufficiently common these days for the Plaintiff to do the vast bulk of her food shopping without assistance and it was acknowledged that at least at her present residence, a shopping centre was virtually on the way home. I accept that the Plaintiff is, as a result of the accident, more limited than she would have been in the weight she can carry, and that ramps would at times prove a problem but I see no reason why the weekly or fortnightly grocery shopping cannot be broken up into more frequent and smaller expeditions at only a small increase in time spent. I am unpersuaded that the assistance the Plaintiff needs in this respect is more than one hour a week.
78 At the time of trial the Plaintiff was living in her partner’s mother’s home where the latter preferred to do the cleaning herself. The Plaintiff agreed that were she living alone with Mr Caldwell, she would be able to assume some responsibility for the cleaning. She said that cleaning the shower recess created difficulty although in cross-examination she agreed that she could do it. She said that she had difficulty when required to vacuum in excess of 10 minutes. “It is not the physical act of doing it there and then, it is after the fact”. She can pack and unpack the dishwasher although there have been some difficulties in that task.
79 During cross-examination Mr Caldwell conceded that he would not contemplate in any event the Plaintiff doing all of the cleaning, shopping and vacuuming and that he would normally take it upon himself to undertake such tasks as climbing a ladder to change a light bulb or clean the windows. When discussing time spent on cleaning that he now does solely and which he believed would otherwise be shared, he listed cleaning the bathroom floors and other things low down to the ground and vacuuming as falling into this category.
80 The plaintiff also said she avoided jobs involving ladders such as cleaning widows and changing light bulbs. When it was put to her that these were jobs one would expect a man to do in any event, she disagreed stating that prior to her injury she had always carried out these tasks herself. She estimated the time devoted to general household work that she can no longer do to be about 3 hours per fortnight. I should observe that Mr Caldwell’s evidence tended to put the Plaintiff’s claim somewhat higher. I prefer the plaintiff’s evidence.
81 I accept that some assistance is required in connection with cleaning. The vacuuming of a home is not efficiently broken up into one room at a session. Shower recesses and corners of floors and the more inaccessible parts of cupboards do need do be cleaned. However, these last mentioned types of jobs are either small or infrequent. So is the cleaning of windows. I remain unpersuaded that the Plaintiff’s wont before the accident, or that of people generally, is to spend more than, say, 3 hours every 2 or 3 months cleaning windows
82 The Plaintiff gave evidence that prior to her injury she loved to garden. When asked of any problems she now experiences with these activities she stated that these arose in relation to flower beds lower to the ground as kneeling down was not an option for her. A little later, asked to estimate how many hours she had lost in gardening, she gave the figure of 2-3 hours per month for maintenance alone.
83 The Plaintiff estimated that the hours of work needed to do the things she can no longer do was “Four to five, maybe; may be four hours a week”. I am satisfied that for all of the matters to which I have referred under this heading an allowance of 4½ hours per week is appropriate.
84 There was a higher claim for the period immediately after the Plaintiff was discharged from hospital. The plaintiff gave relatively little evidence quantifying the extent of her disability during this period although there is in evidence a report of Jamila Howarth, an occupational therapist which provided some detail. Given the nature of the Plaintiff’s injury, there can be no doubt that many normal tasks would have been beyond her or only accomplished with a great deal of difficulty. In these circumstances I am disposed to place reliance on Ms Howarths’ report.
85 That report records that for a 10 week period after the Plaintiff left hospital she needed about 7 hours a week to help with dressing and underessing and showering and about 10½ hours a week to help with cooking and washing up. The claim advanced in the Schedule of Damages was for 14 hours per week but this may well be as the result of the addition of the second and third rather than the first and second items on page 10 of Ms Howarth’s report. The third item is a claim for 3½ hours. Be that as it may, I am disposed to allow the claim at 17½ hours. Ms Howarth refers to only 10 weeks. However, given the Plaintiff’s evidence as to the time for what amounted to stepped recovery and later disability when hardware was removed, I allow the claim for 13 weeks. It will be after that that the 4½ hour figure to which I have earlier referred commences.
86 (The 3½ hours per week referred to in the preceding paragraph is for meal preparation, cooking and washing up from the end of the initial 10 week period to date. The Plaintiff gave no evidence to support such a claim and it does not sit happily with her 4 to 5 hour estimate. Except insofar as I have been conscious of the Plaintiff’s difficulty with the dishwasher, I have accordingly disregarded this claim.)
87 It is clear law that in the valuation of this claim, commercial rates are to be used. In Exhibit E, it is indicated that an appropriate rate for most of the domestic care, shopping, meal preparation and additional task assistance is $23.65 per hour. In the report of Allison Elvish, an occupational therapist, in Exhibit 1, there are different figures provided for different categories of help. Apart from the tender of the documents, there was little attention given to the differences between or within these reports during the trial. However it should be noticed that in the area of ongoing assistance the figures given by Ms Elvish are significantly below those relied on by the Plaintiff. Most are of the order of about $15 per hour. Although the tasks with which the Plaintiff needs assistance are not all of the one type, I remain unpersuaded that for what is virtually permanent, albeit part time, assistance the cost would be as great as $23.65 per hour. In my view the claim should be allowed at the rate of $20 per hour.
88 There is a further matter to be considered under this heading. If, or in my view when, the Plaintiff has further knee operations, there will be further periods of substantial incapacity. In my view this claim should be increased from 4½ to 17 hours per week for 12 weeks after each of the envisaged operations. The allowance for the second of these periods will need to be discounted for the chance it will not occur. I indicate that chance elsewhere in these Reasons.
Out of Pocket Expenses
89 Out of pocket expenses to the date of trial were agreed in the sum of $14,617, of which the Defendant had paid the sum of $1,506.
Future Medical etc. Expenses
90 As I have said, the Plaintiff’s recurring medical expenses were listed in Exhibit K. They totalled $2,942.30 per annum. There was no dispute about the rates set out in that exhibit and, they seem to me not excessive. I have indicated above that I regard the appropriate allowance for GP visits to be 2, which at the rate quoted amounts to $80 per annum. Specialist visit(s) to Dr Mitchell should be allowed at $90 per annum.
91 I have indicated that physiotherapy visits should be allowed at the rate of 3 per year - $120.
92 Psychological and psychiatric counselling are claimed at the rates of 4 and 6 visits per year respectively for the balance of the Plaintiff’s lifetime. So formulated, these claims do not accord with the evidence which I have summarised above which refers to far more visits in the next 5 or so years but, though indicating the likelihood of a need thereafter, leaves the number of visits very indefinite. I do not suggest greater precision was possible. As average or annual approximations to cover the Plaintiff’s lifetime, the claim as advanced does not seem to me excessive and is allowed. Accordingly, the annual amounts allowed for psychologist and psychiatrist are $640 and $807.90.
93 The claim for medications in Exhibit K included $85 for Nurofen, $59 for Panadeine Forte and $569.40 for Cipramil. However the Plaintiff’s evidence that she has reduced usage of both Cipramil and Panadeine Forte but without disclosing the extent of the reduction complicates the task of assessing this claim. As a best guess I propose to allow these last 2 items at 2/3 of the figure in Exhibit K. The total for medications is thus $504.60.
94 In arriving at these conclusions I do not forget that Dr Kerridge was clearly of the view that the claim was excessive. It would seem that what inspired Dr Kerridge’s view were the Part 33 Particulars rather than the claim as finally advanced but I have borne Dr Kerridge’s critical attitude in mind in arriving at the figures I have.
95 I have stated earlier in these Reasons my conclusion that one arthroscopy and 1 knee replacement are certain and there is a strong probability of a second knee replacement. I would assess that probability as 70%. An appropriate estimate of the time that these will be required is, in the case of the arthroscopy in 12 years and in the case of the knee replacement, at an interval of 12 years, commencing in (say) 18 years time. Those periods should date from January 2000, the time of a report of Dr Mitchell on the topic.
96 Appropriate allowance in the plaintiff’s damages should be made for the costs of these. In that regard I accept the figures given by Dr Mitchell of about $4,000 for the arthroscopy and (say) $19,000 for the knee replacement.
97 There are a number of other components of the Plaintiff’s damages. The parties agreed that the matters of interest, and loss of superannuation benefits should be deferred. In that situation I have left also the more mechanical of the issues which follow upon my findings. It may be that the parties will also prefer to bring up to date the out-of-pocket expenses and make other adjustments to take account of the necessary consequences of the period between trial and the present. Accordingly, having published these Reasons, I shall stand the matter over for a period to enable these matters to be attended to.
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