Patterson v Sutherland
[1988] TASSC 79
•31 March 1988
Serial No B11/1988
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Patterson v Sutherland [1988] TASSC 79; B11/1988
PARTIES: PATTERSON, Anthea Edwina
v
SUTHERLAND, George Fairne
FILE NO/S: 497/1985
DELIVERED ON: 31 March 1988
JUDGMENT OF: Cox J
Judgment Number: B11/1999
Number of paragraphs: 41
Serial No B11/1988
List "B"
File No 497/1985
ANTHEA EDWINA PATTERSON v GEORGE FAIRNIE SUTHERLAND
REASONS FOR JUDGMENT COX J
31 March 1988
This is an assessment of damages for personal injuries suffered by the plaintiff in a car accident which occurred on the 22 July 1982. The impact was relatively slight but caused the plaintiff who was a passenger in a car driven by her mother–in–law immediate and sharp neck pain. She obtained a lift home and the next day, finding herself unable to move her head, saw her local general practitioner who prescribed rest and suggested the use of a soft collar. After a day or so the symptoms went away and further symptoms only re–emerged about four weeks later. I shall return to describe the subsequent history of her complaints and treatment.
The plaintiff was born in July 1954 in New South Wales. She was brought up on farms and in country towns and left school in 1972 having completed her matriculation. She was a keen sportswoman during school years, was elected to her high school council in Wyong and held office as vice president. After leaving school, she procured a job in a supermarket in Windsor where her parents had taken up residence, but after a few months decided to embark on a nursing career. As she had some time to wait before her intake could commence, she worked at the Royal North Shore Hospital as an assistant nurse before her formal training commenced in October 1973. She successfully completed her course in late 1976, having achieved a distinction in the State finals and having topped her class at the hospital final examinations.
While undertaking her course as a nurse, she joined the Army Reserve and was eventually appointed a Lance Corporal in the University of New South Wales Regiment, serving as a section commander in an Infantry platoon. In this regiment she met her husband who held a commission and they were married in October 1976, shortly before her graduation. He was then studying for an Associate's Diploma in Health and Building Surveying and worked as a building inspector for the Mosman Council. Shortly before their marriage, the plaintiff's mother–in–law came to Tasmania and found a 120 acre property at Gardner's Bay near Cygnet, purchased it and undertook to give 20 acres to her son. He accepted the offer and he and his wife took possession at the end of 1976.
Since that time the plaintiff's husband has been engaged in full time work as a health officer, first with a council and for the last 10 years with the Department of Health Services. His mother transferred the 20 acres as promised into his name, he built a home on it for his wife and expected family and he has in his spare time, operated a farming enterprise on the whole of the 120 acre property, his mother apparently permitting him the use of her 100 acres rent free. The plaintiff was discharged from the Army Reserve soon after her arrival in Tasmania, but her husband has remained an active member of it and now holds the rank of Major. In the last year he devoted to Army duties the equivalent for pay purposes, of some 80 days which included two courses of continuous training for 16 days each and many weekends. This pattern is fairly typical of his commitment to the Army and it is likely to continue for up to 20 years before he retires.
It seems that at first the plaintiff and her husband resided with his mother on the farm homestead, but their house was soon commenced and they moved in shortly before the birth of their first child on the 17 March 1979. Both were anticipating a family of up to 6 children and the house was designed to accommodate such a family with four large bedrooms being provided. To finance the construction the plaintiff's husband borrowed $35,000 from a bank.
The plaintiff continued full time nursing after her arrival in Tasmania. The first year she worked for three months at Calvary Hospital as a general nurse and when the opportunity arose, she moved to the Queen Alexandra Hospital in order to acquire her qualifications in Midwifery and Obstetrics, an aim which she achieved. She continued to work until three weeks before her first confinement and was given maternity leave, after which she returned for a short time, but ceased working on or about the 30 June 1979. Six months later she procured part time work at the Huon District Hospital on two nights per week for about eight weeks. Her second child was born on the 25 September 1980 and a little over a year later, she was again engaged in part time work at the Royal Hobart Hospital on two nights per week for a further 13 weeks or so. She has not worked at all as a nurse since the 26 December 1981. It was seven months later that the accident occurred.
Evidence was given that the plaintiff and her husband had a long term plan of building up the farm to such an extent that it would substantially support the family, at least in combination with Mr Patterson's income from the Army Reserve. They appreciated that he would be unable to abandon the security of a full time job with the Public Service while the mortgage remained unpaid and he was required to meet the interest payments thereon, and that additional capital would in any event be required. Their hope was that the plaintiff would be able to earn sufficient money from her occupation as a nurse to provide capital to pay off the mortgage and to improve the farm. Notwithstanding the work engaged in by the plaintiff after the taking out of the mortgage, the principal sum was never reduced.
Profit and loss returns on the farm were tendered for the years ending 30 June 1982 to 1986. Mr Patterson (in whose name alone the enterprise has been conducted) has received income from two principal sources: livestock (sheep and cattle) and small fruits (gooseberries). In those years, gross receipts from the former have been approximately $2,300, $4,550, $4,150, $7,750 and $5,400, while for the latter they have been approximately $3,770, $2,230, $3,400, $2,060 and $2,600. Expenditure on the other hand has exceeded gross income in each year resulting in an operating loss of $5,224, $5,800, $6,000, $4,290 and $7,516. The figures for the last 18 months are not available, but I was told that the herds are reduced and the amount of profit on fruit has also declined. The plaintiff's husband has so structured his affairs that many of his ordinary living expenses such as rates and travel to and from work are met by the farm account. Nevertheless, it is obvious that even on those figures (i.e. disregarding the losses occasioned, it is said, by the plaintiff's physical deterioration, especially in the last two years or so) the plaintiff's expectation that her husband might retire from his present place of employment to devote himself full time to the farm, is not likely to be realised. The plaintiff argues that this expectation would have given her an added impetus to engage in paid employment as a nurse. The defendant on the other hand argues that whatever her disabilities are, her husband could not support the family if he gave up his job with the Department and that the probabilities are that in any event, she would not have had the time, impetus or inclination to return to the work force for a very long time, if at all.
The plaintiff's third child Sally was born on the 23 July 1983, a year after the accident and she has had a fourth pregnancy which miscarried in about February 1987. Her third daughter suffers from asthma and is allergic to dust mites and to a number of foods, such as milk products, eggs, soya products, sugar and yeasts. This necessitates special vigilance in ensuring that the house is vacuum cleaned and the family have adjusted their diet to coincide with that of the child. The plaintiff denied that Sally had marked behavioural problems but admitted that she is naughty on occasions and has a very strong will. I find that she is a demanding child and that the plaintiff accordingly is subjected to considerable stress due to the child's unfortunate condition.
Mrs Patterson senior lives nearby on the property and I have no reason to suppose that her relationship with the plaintiff is anything but cordial and supportive. However she is not in perfect health as she suffers from hypertension and has a history of angina. She is in her late fifties. On one occasion when the plaintiff was hospitalised for the purposes of a myelogram, her mother–in–law was unable to cope with the strain of looking after the three children and the plaintiff returned home somewhat prematurely. It was suggested that the presence of the grandmother would facilitate the plaintiff's exercise of her capacity to work as a nurse, either full time or part time on night shifts, but I find that the plaintiff would be unable to rely upon any significant regular help from her mother–in–law in this respect.
About a month after the collision the plaintiff began to experience pain in her neck and left shoulder. The pain was intermittent and the plaintiff was referred by her general practitioner to Dr Begbie at Huonville who gave her three sessions of acupuncture in September 1982. In a report of the 21 March 1983 to her solicitors, he said this:
"My first consultation after her accident was on 2ns (sic) September, 1982. At this time she gave the following history:–
Involved in MVA on 22 July following which she had pain and stiffness in her neck which settled gradually over 2–3 days. Then approximately 10 days prior to the consultation she developed pain again, this time in her left shoulder and radiating down her left arm, severe enough to warrant daily analgesics ('Digesic') and to keep her awake at night. She also developed headache which radiated to behind the left eye.
On examination her pain was produced on various neck movements and the history and signs were consistent with a whiplash type of injury to the neck. The headaches were arising from the neck and the arm symptoms were consistent with cervical disc damage and consequent nerve root pressure. X–rays were not done as they do not show this type of pathology in the early stages.
I treated her on the 2nd, 9th & 16th of September (with acupuncture) and by phone on the 30th September, 1982 she indicated that there was much improvement and I decided on no further treatment at that stage. I have not had occasion to see her since for consultation."
Between October 1982 and the birth of Sally the following July, the plaintiff was treated by a chiropractor and a physiotherapist, neither of whom was called on the trial. The plaintiff said that she continued to suffer intermittent pain. However it does not appear to have been of any real severity until October 1984 when she returned to Dr Begbie who resumed treatment with acupuncture on about a dozen occasions between then and February 1985 when she was referred to Dr. Jackson, a pain management specialist and Mr Liddell, a neurosurgeon. In February 1984 well before the issue of the writ in these proceedings, she had been sent by her solicitors to Mr Graeme Duffy, another neurosurgeon, for a report which recorded the following complaints at that time and his observations:
"... She says that she has episodic discomfort in her neck which is worse if she is tired or undertakes moderate physical activity. She says that she has had an occasional numb feeling in the left arm. She says that she has had no symptoms in the right arm. She says that she has suffered from no headaches. She said that she is presently having no treatment for her neck, and that she does not take any tablets for it. She said that she is able to do the things she could before, but in particular in her housework she finds that she has to go more slowly and may have to rest for a period between activities. She finds on occasion that her sleep is interfered with. She told me that she had never had symptoms in her neck or arm prior to the accident. She told me that her past health had been good. She has three young children aged from four and three–quarter years to seven months. She is breast feeding the youngest child.
On examination she gave a clear unemotional history. Neck movements were full and did not appear painful. There was a degree of tenderness on palpation of the back of the lower part of the neck and of the shoulder muscles, stretching out from the neck. Power and tone in the arms were normal, the reflexes were symmetrical, sensation appeared normal and there was no muscle wasting. Lumbar spine movements were normal, straight leg raising was full, power and tone in the legs were normal, the reflexes were symmetrical, sensation was normal and the plantar responses were flexor. Her blood pressure was 12080.
I reviewed x–rays of her neck taken on the 30th August 1982. These showed no abnormality.
On the history which this woman has given me I believe that she sustained a kinetic type injury to her neck when involved in a motor vehicle accident in July 1982. She still suffers from recurrent symptoms which are a nuisance more than a marked disability. I don't believe that at this stage further investigations are required. I have suggested to her family doctor that it might be worth her wearing a neck collar on occasions.
Although it is now over eighteen months since the accident I think the likelihood is that her symptoms will slowly improve, but she may be left with a permanent degree of neck discomfort. If this is the case it can be attributed to the accident. In view of the injuries she has sustained there is a 15 percent likelihood that she may suffer from symptoms from earlier degenerative changes in the neck than would have been expected without the accident."
Dr Jackson, on examination in February 1985 found tenderness over C5–C6 on the left hand side and some tenderness in the interscalene groove on that side. He treated her with a cervical epidural on the 8 March 1985 and when he saw her on the 25 March 1985, she indicated that her arm symptoms had settled and that the main complaint was of neck pain. He carried out a facet block on the 10 April 1985, resulting in a significant reduction of her symptoms. Within two months however she complained of a return of symptoms and another facet block had been administered. Thereafter, to the time of trial, she has had a further three cervical epidural injections and 13 facet blocks. The last procedure was carried out in December 1987.
Mr Liddell first saw the plaintiff on the 22 March 1985 shortly after the writ was issued. He described her complaints then and his finding in these terms:–
"Her main pain at the time of seeing me was in the back of her neck, on the left side, and in her shoulder, and at times radiated down to her left elbow. She had some intermittent tingling numbness in the fingers on her left hand, and on one occasion in the fingers of her right hand. She had some associated weakness, and dropped things from time to time. She also had quite severe intermittent headaches following the accident, principally in the occipital region, but also on the right parietal region.
.......................................................
EXAMINATION
On examination, she appeared to be generally well. Her cervical spine movements were not really restricted. However, she had quite marked tenderness in the midline in the lower cervical spine region. She had mild diffuse weakness distally in her left upper limb, with no definite areas of hypoesthesia, and her reflexes, if anything, were a little more brisk on the left than on the right. The remainder of her neurological examination was unremarkable.
.......................................................
PROGRESS
I felt that it was appropriate to investigate her with EMG and nerve conduction studies, together with cervical myelography. I saw her next on the 19th April 1985, and noted that her EMG and nerve conduction studies were normal".
He expressed the opinion on his knowledge at that time, that she had sustained acceleration/deceleration injury to her cervical spine from which she appeared to be making a reasonably satisfactory recovery.
In April 1986, Mr Liddell again saw the plaintiff who complained that the pain at that stage was worse than it had been the previous year and that the facet blocks and epidural injections had given no long term relief to her discomfort. She said she had constant pain in the left side of her neck and shoulder with radiation down the outside of her arm to her elbow. That she had an intermittent "funny feeling" in her left hand and had some non specific weakness and that she had experienced quite severe headaches posterially and had been sleeping poorly. He arranged for her to have further cervical spine x–rays followed by cervical myelography and C.T. scanning and suggested that she consider proceeding on to diagnostic cervical discography with a view to surgery if the latter proved positive. He saw her again on the 22 May 1986 following the myelogram and C.T. scan which were both normal. She expressed reluctance to undergo discography and surgery and sought an opinion from MrSouthby a Melbourne neurosurgeon who indicated that in view of the absence of any neurological signs, combined with the virtually normal cervical myelogram, he was very reluctant to consider surgical intervention.
During his evidence Mr Liddell was asked whether he considered that there was any functional overlay in the plaintiff's condition. His answer was that in as much as she had had pain for a long time or allegedly had had pain for a long time, he felt there were significant psychological factors which were not so pre–eminent that they were overshadowing the physical, but that they were continuing to play a significant part in her symptoms. He thought that surgery was desirable if the discogram proved positive, but respected her reluctance to undergo it. He could not guarantee a cure and acknowledged that there were some risks associated with surgery. Even a successful operation would not take away all the pain although it should significantly reduce it. He acknowledged the possibility that the plaintiff might be suffering from spontaneous degenerative change unrelated to the accident, perhaps made symptomatic by minor trauma associated with her farming activities or lifting of young children, but regarded this as an unlikely explanation in view of her comparative youth and of the lack of demonstrable x–ray evidence of a wearing out process. Even should such a process be occurring, pain would be unusual without some kind of precipitating event. He was also of the view that without surgery the plaintiff could still, in time achieve a very significant level of improvement. With or without surgery Mr Liddell did not anticipate that the plaintiff would recover sufficiently to be classed as fit to undertake general nursing duties in a hospital.
Dr Jackson considered that there was a better than even chance that surgery would improve her symptomatology significantly although not to the stage where she could prudently return to nursing duties which might include heavy lifting. As she was reluctant to undergo surgery, he said he would propose, if her symptoms persist, to continue with his present treatment but at a reduced rate not exceeding three to four epidural injections or facet blocks per year. He too accepted that given the absence of any previous neck injury in other accidents, her present symptoms were caused by the car accident and he found nothing in her history or his examinations inconsistent with that proposition.
Mr Duffy was also called by the plaintiff. He did not think surgery would help her. It would not in his view, totally relieve the symptoms or increase her ability to undertake the full duties of a nursing sister. He said he had reached no definite diagnosis as far as a specific pathological level or organic disorder was concerned but he had no reservations that she was genuine in her complaints and that she was suffering from symptoms attributable to a neck injury which he understood she had sustained in a motor vehicle accident. He felt that she was presently capable of undertaking the job of a health officer, doctor's receptionist or the like, provided no heavy lifting was required. He agreed that it would not be unusual for her symptomatology to resolve or substantially improve without any surgical intervention but spontaneously. He found no evidence of any significant functional overlay.
The defence called orthopaedic surgeon Mr Browne. His opinion can be summed up in this extract from his report dated the 27 July 1987:
"Although Mrs. Patterson complains of significant amount of symptoms, there are no definite objective physical signs to account for them. I understand that she has had a recent x–ray. Even if that proved abnormal, I would not be happy to ascribe the abnormality to an accident which occurred in 1982. As you know degenerative disease of the cervical spine is so common that it appears to develop in the normal course of events, as well as after trauma.
I would not recommend that Mrs. Patterson has any further treatment than that which she has already had. I personally would not have considered her suitable for any particular operation. I would not recommend that she has any invasive procedure such as a discogram. If it was felt imperative to find if she did have any degenerative disease in the cervical spine I would recommend that she has magnetic resonance imaging in Melbourne. As I have already stated I would not accept that a positive result, even from that investigation, could be ascribed as due to the accident of five years ago.
I am not in a position to state that Mrs. Patterson has any measurable impairment of function which could be ascribed to the accident which occurred in July of 1982."
In his evidence he said:–
"In the absence of any demonstrated anatomical pathology, I don't think we've got any right to say what causes the pain, we may have various suspicions or various opinions, but we're not – we've got no sort of scientific right to say that, to say that is so".
Despite the absence of objective signs which might give scientific certainty, I think the evidence as a whole does enable the court to make a positive finding on the balance of probabilities as to whether or not there is a causal connection between the defendant's tort and the plaintiff's injuries.
Mr Dermot Morgan, orthopaedic surgeon, was also called by the defendant. He regarded the plaintiff's history as very unusual but his diagnosis was that she had a soft tissue injury to her neck and that she had probably damaged one or more cervical discs "in a moderate way". He did not consider facet block and epidural injections desirable as in his view they did no lasting good and had a tendency to create a climate of psychological dependency and to cause the patient to "adopt the patient role more than he might otherwise do so". In summary he accepted that she had an injury and had some continuing symptoms, but he did not accept that they were as severe as she described them to him. He thought there were psychological factors tending to make her perceive the symptoms as greater than they are. He would not class her as severely disabled but considered her able to do those nursing duties which do not involve heavy physical activity, such as being a nurse in a doctor's surgery, or being involved in nurse education or public health. He concluded his evidence in chief by saying:
"My view is that the most likely outcome is that Mrs. Patterson will actually improve in the fullness of time, particularly when all this business has finished. No–one can be absolutely definitive and say what her final physical state will be. I tend to feel that she probably will continue to have some intermittent symptoms probably indefinitely, but it's possible they may resolve".
He also said in cross examination that there was no evidence that she has arthritis at the moment but that he believed that she was somewhat more likely to develop it in the future as a result of the accident. I found Mr Morgan's evidence particularly impressive.
Dr Russell Pargiter a psychiatrist gave evidence to the following effect:
"Although I concede that the original trauma can be plausibly blamed for her present condition, I'm of the opinion that over time it has been contributed to and perhaps overshadowed by a number and complexity of psychological and psychosocial factors. These have served to aggravate her perceived disorder and have prevented her from adjusting more adequately".
There had been evidence from the plaintiff that she is on occasions depressed which Dr Pargiter said, having regard to the medicolegal complications, the length of time which had elapsed, the apparent failure of treatment and the stresses and strains of environmental and personal problems, he did not find surprising. Asked to explain the excerpt I have quoted, Dr Pargiter said:
"... I think there is sufficient number of factors to account for the opinion that there is perhaps some greater perception of her disability and pain than would be warranted by the actual injury and its development. First of all, I think it is, as I understand it, she was in the situation prior to the accident of leading an extremely full life and I think she was even then pretty well at the limit of her activities. It seems clear to me that she is a high achiever, a lady of very high standards, great integrity and with a great determination to succeed in these given tasks and perhaps lacking, as I see in her personality, perhaps a degree of flexibility which would allow her to adjust her goals and allow herself to adapt. I think these goals which seem to be shared by her husband was such that it caused her great disappointment and even perhaps feelings of guilt that she was unable to achieve those desired ends.... So I think she was probably at the limit then, the accident, she was really on the knife edge.... And I think the accident was one of the troubles but not the only one.
There was the stress of two pregnancies, one of which miscarried. The other one went to term. There is the lack, I think, of a great deal of support at home because of the distance that they live from her husband's place of work. His necessary absences. That her mother–in–law who does live nearby, is perhaps not a great deal of support insofar as she – her health is not good – and that causes the patient an extra kind of concern that she may be a burden on her mother–in–law and aggravate her ill–health. And of course, I think a major consideration is the anxiety of a young daughter with asthma which is a very frightening disease to observe, especially in a child."
As to the future, Dr Pargiter said:
"There's a strong belief that people get a great deal better after the conclusion of litigation. It obviously depends on the nature of the settlement at the end of it all, but – and it depends on the nature of the litigation and various factors – but I think that the nature of this particular litigation, her attitude to it, and perhaps focusing away from – her attention being continuously drawn to her condition – I would anticipate a very considerable improvement and alleviation and perhaps an increased scope of activities, although I would bow to Mr Morgan's opinion that she's unlikely to get back to full nursing duties."
I accept the opinion of Dr Pargiter that there are psychological factors which heighten the plaintiff's perception of her pain and disabilities. However this is a matter of degree and I do not share what I understand to be his assessment of that degree of aggravation. I think it is clear from his evidence and report that he regarded the objectively undemonstrable pathological condition of the plaintiff as relatively minor and that he in effect looked for some explanation which would account for the gravity of her complaints. The psychological indicia were there, but their effect must be proportionate to the level of actual pathology. In his report he said:
"This is a 32 year old housewife and trained sister with three children referred for a psychiatric assessment to ascertain the reasons why she has not made a satisfactory recovery from the apparently minor injuries received in a road traffic accident five years ago".
In my view and I so find in reliance upon the whole of the evidence that although "apparently minor" and undemonstrated by objective criteria, the injuries received were in fact of a serious nature, the symptoms regressing periodically but nonetheless recurring and deteriorating. It may be that the plaintiff's lifestyle including the additional physical burden of lifting small children, exacerbated the underlying pathology caused by the accident, but that is not a matter upon which the defendant can rely. These ordinary stresses and strains of her life have contributed to a real pathology which causes significant pain and disability. Given her personality, the persistent nature of her pain, the anxieties attendant upon litigation and the ongoing reinforcement of her appreciation of her altered condition by medical examinations for forensic purposes, it is not surprising that her present perception of that pain is more marked than may be the case with other patients with the same pathology. Nevertheless I accept Dr Pargiter's prognosis that a conclusion of this litigation is likely to be followed by a reduction in the effect of the psychological factors he has identified.
The lack of objective evidence as to the precise nature of the plaintiff's injuries and the difficulties experienced by the doctors who have examined her in making a diagnosis, in turn lead to difficulties in making a prognosis. It seems unlikely that she will undergo surgery. She does not wish to and none of the doctors regards her reluctance as unreasonable. All conceded the possibility of further improvement without surgery but there is an enhanced chance that she may suffer from symptomatic arthritis at some unascertainable time. For some time she may quite reasonably, in my view, wish to persist with Dr Jackson's treatment, but it would seem desirable that she should endeavour to wean herself off it in due course. Doing the best I can, it is my assessment that her perception of the pain will markedly improve with the conclusion of this litigation and that her physical condition will likewise improve to the extent that she will not require regular treatment by way of epidural injections or facet blocks and will be able, with some reliance on Digesics by way of medication, to lead a normal and reasonably pain free life, avoiding heavy lifting and very robust activity.
The plaintiff's evidence was imprecise as to the frequency and nature of her pain and other symptoms and their effect upon her. In broad terms I accept the submission of defence counsel that they have not been shown to be severely disabling or constant. The family has continued to live in a relatively isolated country area where the plaintiff has fulfilled her role as wife and mother and has coped with the absences of her husband, not only during working and the associated travelling hours, but also during frequent overnight absences of some length due to his Army commitments. Furthermore, she sought work with the Department of Health Services as a school nurse in her area after her condition deteriorated to the extent complained of by her to Dr. Jackson and Mr Liddell in 1985.
When the opportunity of engaging in such work was offered to her in October 1985, she turned it down, but in fact the job entailed far more travel than she had ever envisaged and by that stage her youngest child was beginning to develop asthma. Although the plaintiff said she declined the job because she did not feel up to it due to her own condition, I am satisfied that even if she had been 100 percent fit, she would not have been able to take it on due to the childrens' call on her time and attention.
Nevertheless, I find that she does suffer quite severe pain intermittently, that it prevents her from doing all of her housework and that it interferes with her activities on the farm. She cannot do the vacuum cleaning, nor hang out washing, do heavy lifting or scrubbing and it has been reasonable to date to have paid help in respect of vacuum cleaning. She can no longer lift heavy bales of hay and in consequence, she is unable to assist her husband on the farm by handfeeding the cattle, delivering calves and lambs and generally assisting with relatively light farm duties which now fall almost exclusively on her husband's shoulders. This in turn complicates the running of the farm because his time is so limited. She can give less help to her husband in respect of the gooseberry crop. A need has developed for frequent spraying prior to harvest and this task, which she could have done before with the added convenience of her being available to do it when the weather conditions happened to be right, is now beyond her. She can do a little picking, but far less than before, and generally her ability to weigh and supervise the picking of the crop has been reduced. Primarily changes in marketing have accounted for the reduction of the crop, but her disabilities have had some effect on its falling profitability. It is impossible to put any precise figure on the value of the plaintiff's reduction in capacity to assist on the farm but it should not be ignored as quite insubstantial. As I have said, I think it will improve with the conclusion of these proceedings.
It was submitted that the plaintiff has suffered a loss of working potential which would have found expression in her rejoining the Army Reserve as a commissioned nurse and in her gradual return to full time nursing duties. I think the prospect of her rejoining the Army Reserve but for the accident, is quite remote and unrealistic. No doubt she did enjoy her time in the Reserve as a young woman in her late teens and early twenties, but she leads a full life on the farm, has three children, and but for the accident, could have had several more. Even now it is quite possible that they may have another child. I think it highly unlikely she would have rejoined for she did virtually nothing about it in the six years prior to the accident and with her husband devoting so much time to the Army, it would be difficult for her to extract herself from her family responsibilities in order to engage in 14 day camps and the like.
As to the prospect of her resuming nursing duties on a part or full time basis, I think for the same reasons that it would be a long time before the plaintiff would in any event have been able to do so. Opportunities presently exist for well remunerated night shift duties in hospitals once or twice a week, but her family commitments would not, in my view, have permitted her to avail herself of them for many years to come. Such work would involve long hours, expensive travelling time, probable disruption of sleep, the need for someone to look after the children in the time between her husband's departure for work and her return home and with three children of school age, one an asthmatic, anything but the most occasional return to nursing would be out of the question for several years.
The plaintiff's capacity to engage in hospital nursing duties has been lost as the result of the accident, but she retains the capacity to engage in reception work, the duties of a school nurse and other types of nursing duties not so physically demanding. She has the capacity for example to do the job she declined in October 1985. The diminution in her working capacity is, having regard to all the circumstances, unlikely to be productive of actual loss for many years to come, and possibly not at all. However, she has lost the ability to engage in well–paid shift work for relatively short periods of time and whereas full time work as, for example, a receptionist in a city, suburban or rural medical practice might have been dismissed as too disruptive to her present life–style and family responsibilities, periodic night shift duties could have proved far more attractive to her. Indeed, that kind of work might well have been the only viable work she could undertake between the time when her children reached the age when she could conveniently do any work at all and the time when they were sufficiently independent to enable her to engage in more regular hours of work, perhaps, less demanding in character.
In my view, the interference with her working capacity as a trained nurse is most likely to occur in a period of time extending from 5 to 10 years hence, approximately. Prior to that time, I think it highly unlikely that she would in any event have been able to undertake such work, while thereafter her diminished family responsibilities would enable her, without perhaps as much travelling, to engage in longer hours of less demanding work which would return much the same financial reward. Even so, it is hard to imagine her being able, over the full 5 year period, to average any greater work load than one night shift per fortnight and some discount should be made for the cost of travelling about 100 kilometres each time she attends whichever hospital might engage her. I am not confining myself to this particular forecast but mention it as a realistic one. She might however have preferred to increase the number of night shifts worked or indeed chosen not to work at all. The possibilities are endless.
I think a sum of $20,000 paid now is sufficient recompense for her reduced ability to contribute to the profitability of the farm and for the interference with her capacity to earn income as a trained nurse.
The only medication taken by the plaintiff is Digesics of which she says she takes between two and four per day but not every day. She said one hundred tablets would last between two and three months. Each such packet costs $26.10 and a prescription is required. Her only current treatment is that administered by Dr Jackson. The evidence is confused and imprecise as to the cost of each procedure (Mr McMahon's evidence I think has transposed the cost of the epidural for that of the more frequent block) but it would seem that they range in total between about $500 for a block and $750 for an epidural. I propose to make a composite award for future medication and medical treatment, the need for each of which I anticipate will gradually decline, the latter more quickly than the former. I also take into account the remote possibility of surgery.
I award damages as follows:
Pain and suffering and loss
of the amenities and enjoyment
of life etc. $17,500.00Future economic loss due to
diminution of the plaintiff's
capacity to fully exercise her
calling as a trained nurse and
to assist in the running of the farm. 20,000.00Future medication and medical treatment. 6,000.00
Domestic assistance (as claimed) 725.00
Cost of transport to doctors 1,716.00
Total $45,941.00
The plaintiff will have judgment for $45,941.00.
0
0
0