Pavlakis v Medical and Fitness Centre Pty Ltd
[2012] NSWDC 193
•19 October 2012
District Court
New South Wales
Medium Neutral Citation: Pavlakis v Medical & Fitness Centre Pty Ltd [2012] NSWDC 193 Hearing dates: 15/10/2012 Decision date: 19 October 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the plaintiff in the sum of $273,264;
2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
3.The exhibits may be returned;
4.Liberty to apply on 7 days notice if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - negligence - occupier's liability; DAMAGES - assessment of claimed heads of damage - evaluation of evidence on probable survival of plaintiff for purposes of assessing future damages Legislation Cited: Civil Liability Act 2002, s 5D, s 15, s 16
Evidence Act 1995, s 60Cases Cited: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158Category: Principal judgment Parties: Caroline Anne Pavlakis (Plaintiff)
Medical & Fitness Centre Pty Limited (Defendant)Representation: Mr A Lidden SC with Mr J Reimer (Plaintiff)
Mr S Torrington (Defendant)
Brydens (Plaintiff)
Hunt & Hunt (Defendant)
File Number(s): 2011/278779 Publication restriction: None
Judgment
Table of Contents
Nature of Case
[1] - [2]
Issues
[3] - [6]
Facts
[7] - [43]
Plaintiff's background circumstances
[8] - [9]
Injury on 21 March 2011
[10]
Initial treatment
[11] - [14]
Medical assessments and subsequent treatment
[15] - [28]
Disabilities that remain
[29] - [38]
Employment effects
[39] - [41]
Domestic effects
[42]
Mitigation
[43]
Assessment of damages
[44] - [113]
Probable life span of plaintiff
[45] - [57]
Non-economic loss
[58] - [61]
Past economic loss
[62] - [73]
Past loss of superannuation
[74]
Future economic loss
[75] - [86]
Future loss of superannuation
[87]
Past domestic assistance
[88] - [98]
Future domestic assistance
[99] - [108]
Future out-of-pocket expenses
[109] - [111]
Past out-of-pocket expenses
[112]
Summary of damages assessment
[113]
Disposition
[114]
Costs
[115]
Orders
[116]
Nature of case
On Monday 21 March 2011, the plaintiff, Mrs Caroline Pavlakis, visited the premises of the defendant, Medical & Fitness Centre Pty Ltd, for the purpose of a medical consultation. Whilst leaving the premises, she slipped on a wet access ramp and fell on her extended left arm, thereby sustaining a fracture to her left humerus.
That fracture was described as a pathological fracture due to the presence of an underlying condition which made the plaintiff's arm vulnerable to fracture. The plaintiff claims the fall occurred as a result of negligence on the part of the defendant, and she consequently claimed damages from the defendant for her personal injuries. The proceedings are governed by the Civil Liability Act 2002 ["CL Act"].
Issues
The defendant conceded it was liable to the plaintiff in damages for negligence in respect of her injuries. The proceedings were concerned with the assessment of the plaintiff's entitlement to the individual heads of damage she has claimed.
A complicating feature of the plaintiff's injury is that the location of the fracture to her left humerus coincided with the site a previously unrecognised lytic bone lesion, which created a weakness in the bone and thus vulnerable to fracture. This was subsequently revealed to be due to an underlying condition of multiple myeloma.
Although the plaintiff's myeloma was successfully treated after the accident, the medical evidence suggests that as a result of that condition, now in remission, the plaintiff's probable life span will be foreshortened. This is a matter that requires assessment. No credit issues arose in the proceedings.
The fact that the fracture of the plaintiff's left humerus occurred at the site of a lytic weakness does not absolve the defendant from liability for the fracture, as the defendant must take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18].
Facts
In the paragraphs that follow, I set out my findings concerning the plaintiff's background, the circumstances and the nature of her injury, and the effect the injury has had upon her.
Plaintiff's background circumstances
The plaintiff was born in 1961. She was aged almost 50 when injured. She is married and her children are independent adults. She was aged 51 at the hearing. During the early part of her working life, after leaving school at the age of 16 years, she had worked in various positions as a shop assistant, a machinist and as a bar attendant. She studied at night and had obtained qualifications as a childcare assistant. She later upgraded those qualifications to enable her to work in childcare as a trainer and assessor of other childcare workers. From 2001 until the time of her injury, she had worked as a trainer and assessor of other childcare workers.
Before the subject injury, the plaintiff had no reason to believe that she was other than fit and healthy. She was active around the house and garden. She also participated in dancing and attended the gymnasium for exercise. She was unaware of any underlying health problems, apart from experiencing some pain in her left upper arm over a period of 7 weeks in the December 2010 and January 2011 period. She was in the course of having that problem investigated when the subject accident occurred. After the accident that arm pain was later shown to have been due to what was described as standard risk multiple myeloma, a malignant haematological condition.
Injury on 21 March 2011
When the plaintiff slipped and fell on the wet tiles of an access ramp on leaving the defendant's premises, she did so on her outstretched arm. At the time, she felt that she had sustained a serious injury to that arm and she could not move it. She also sustained a low back injury. She lay on the wet access ramp where she had fallen, and remained there for some 20 minutes until she was taken to hospital by ambulance.
Initial treatment
The plaintiff remained an in-patient at Nepean Hospital between 21 March 2011 and 1 April 2011. During that time, her pathological fracture was treated by open reduction and internal fixation with a plate and screws. I am satisfied that this fracture would not have otherwise occurred without trauma, and was caused by the fall in question: s 5D of the CL Act.
During the operation a frozen section specimen was taken from the injury site and this later revealed the presence of multiple myeloma. After treatment for her orthopaedic injury by Dr Pavitar Sunner, she was referred to Dr John Taper, a haematologist, for management of her myeloma.
Dr Taper oversaw the treatment of the plaintiff's multiple myeloma. Between April and October 2011, she was given radiotherapy, chemotherapy and an autologous bone marrow transplant of stem cells. In his subsequent report dated 13 January 2012, Dr Taper referred to the plaintiff's disease as being in the form of standard risk myeloma.
Dr Taper noted that after the treatment she had received, the plaintiff's disease was in "very good partial remission". He noted that the plaintiff was well "with a normal performance status" and was not receiving any anti-myeloma therapy. He did not place any restrictions on her activities and encouraged her to lead a normal life, although he did identify a reduction in her median survival prospects, a matter to which I shall return to consider before approaching the task of assessing damages.
Medical assessments and subsequent treatment
On 4 April 2011, the plaintiff consulted Dr Mark Dowsett, her general practitioner. He reviewed the treatment the plaintiff had received and noted she had a residual stiff left elbow due to that arm being immobilised in a sling. At that time, it was thought the plaintiff's fracture might take 12 months to heal, or may not heal at all. Dr Dowsett prepared a report dated 27 November 2011, in which he outlined the course of the plaintiff's problems over the previous 7 months. Dr Dowsett placed restrictions on the plaintiff lifting children in her work. He noted that the plaintiff's employer did not want her to return to work until she was able to lift children.
Dr Dowsett noted that if the plaintiff had not suffered the fall in question she would not have required an open reduction and internal fixation of her left humerus, and bone grafting. He noted that the fall, in conjunction with the pathological fracture, has interfered with the plaintiff's return to her pre-accident employment. In that context, he noted that were it not for the need for that open reduction and internal fixation due to the fall, the plaintiff may have been able to continue working in her position as a child carer, also noting that it was possible the pathological fracture may have occurred at some other time, assuming the myeloma condition had not been investigated, identified and successfully treated beforehand.
On 19 July 2011, at the request of her solicitor, the plaintiff was examined by Dr Richard Deveridge, a consultant surgeon. The resultant report from that examination was tendered by the defendant. Dr Deveridge measured the plaintiff's scar, which he described as widened, trophic and pigmented, and as being 16 cms in length. He also observed a loss of left shoulder contour. Dr Deveridge identified possible delayed union or non-union as a result of the underlying tumour. He expected the plaintiff's physical condition to stabilise from its chronic course in a further 3 months' time, and noted the prognosis would remain guarded. It appears that Dr Deveridge did not examine the plaintiff again.
On 19 July 2011, at the request of her solicitor, the plaintiff was assessed by Dr Thomas Clark, a consultant psychiatrist. He obtained a history that the plaintiff was a perfectionist, and was distressed over what she saw as her ineptitude and difficulty with housekeeping and her inability to maintain her former activities, including dancing and attending a gymnasium. Dr Clark obtained a history that the plaintiff had become withdrawn and felt hopeless. He diagnosed post-traumatic stress disorder and resultant severe depression.
On 12 October 2011, at the request of her solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. He noted the plaintiff was receiving physiotherapy and that the plaintiff still had the plate and screws in her arm. Dr Conrad noted what he saw as a 14 cm slightly thickened and pigmented scar on the plaintiff's left arm. He noted a 15-degree loss of left elbow extension. At that stage the fracture was still in the process of uniting, and he suggested further x-rays for this to be monitored. It seems from this assessment, that the prognosis for improvement as identified by Dr Deveridge on 19 July 2011, had not been achieved at this time.
On 16 February 2012, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Frank Harvey, a consultant orthopaedic surgeon. Dr Harvey noted that in the fall, the plaintiff had suffered a low back injury as well as a pathological fracture of the left humerus. This was the first and only reference to a low back injury in the medical evidence. Dr Harvey obtained a history of residual complains of the left upper arm comprising aching in rainy weather and on prolonged use of her left arm. He also noted the plaintiff was sensitive to the presence of the scar on the left upper arm. Dr Harvey also noted the presence of some problems with abnormal sensations in both hands, as well as right upper limb pain due to favouring of her left arm. He recorded a history of changes in the plaintiff's recreational and domestic activities as a result of her problems.
Dr Harvey made some additional comments concerning the plaintiff's condition assuming the fracture had not occurred. He noted that before the fall, arrangements had already been made for an x-ray to be taken of her left arm in any event, and this would have detected the underlying myeloma. Dr Harvey indicated that this would have led to some form of prophylactic surgical fixation treatment of the lesion that would then have avoided the pathological fracture that the plaintiff ultimately encountered.
Dr Harvey stated that he believed the plaintiff's complaints of pain in her left arm were as a result of the original bone condition and not from the effects of the fracture. That view stands to be evaluated according to the applicable legal principles.
On 5 June 2012, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Robert Kaplan, a consultant psychiatrist. He elicited a history that the plaintiff had become dejected due to her experience of pain and frustration, despite her positive outlook. He noted that at the time she cried because of her changed circumstances. He noted her complaint of loss of confidence and upset at her restrictions, including her inability to physically interact with her grandchildren. He also recorded that the plaintiff complained of reduced concentration, especially when she was in pain. He noted that the plaintiff's condition of chronic pain interfered with many of her activities, and this caused her to feel frustrated, distressed and withdrawn.
Whilst Dr Kaplan accepted that the plaintiff had experienced some distressing and difficult times, including the experience of pain, he described her persisting symptoms as being subclinical in character, and not indicative of a psychiatric injury that had arisen as a result of the accident. That view stands to be reconciled with the views of Dr Clark.
On 2 July 2012, at the request of the plaintiff's solicitor, Dr Conrad was asked to review some radiology films of the plaintiff's right upper arm, which had apparently been imaged in error. He also gave consideration to the partial thickness tear of the plaintiff's right supraspinatus tendon or rotator cuff, evident on an ultrasound study taken of the right shoulder on 28 May 2012.
On 31 July 2012, the plaintiff was re-examined by Dr Conrad. On this occasion, the plaintiff reported a deterioration in her condition in that she had been favouring her left arm and overusing her right arm. Dr Conrad noted that as a result, the plaintiff had developed some pain and stiffness in her right shoulder. He also noted continuing complaints of pain in the left upper arm and shoulder, and restricted extension of the left elbow. Dr Conrad reviewed an ultrasound report of the right shoulder, which indicated a partial thickness tear of the anterior supraspinatus tendon. Dr Conrad had earlier remarked that this was due to the plaintiff overusing her right upper limb. Dr Conrad reviewed a 3 February 2012 x-ray of the plaintiff's left upper arm and noted that the fracture was still in the process of uniting.
On 1 August 2012 at the request of her solicitor, the plaintiff was re-examined by Dr Clark. He elicited a history from the plaintiff that she had become gloomier and more depressed compared to his previous assessment. He noted that the plaintiff forced herself to be optimistic. Dr Clark reiterated his earlier diagnosis but he elevated the diagnosis to post-traumatic stress disorder and a resultant major depressive disorder.
On 2 August 2012, at the request of her solicitor, the plaintiff was examined by Dr James Bodell, a consultant orthopaedic surgeon. Dr Bodell interpreted the 3 February 2012 x-ray of the plaintiff's left upper arm a showing good bony union. He stated that the fracture had healed clinically. Dr Conrad had three days earlier described the same x-ray in slightly different terms, stating it showed callus formation. Dr Bodell referred to the plaintiff's need for domestic assistance, and work restrictions and he described the plaintiff's prognosis as being guarded.
Disabilities that remain
Given my acceptance of the plaintiff and my acceptance of her evidence generally, in the absence of significant challenge on matters of history, I propose to treat the histories summarised as evidence of the plaintiff's post-injury difficulties and treatment: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.
Consistent with that approach, I have drawn upon the unchallenged content of the tendered medical reports to identify relevant aspects of the plaintiff's history, and her reported disabilities.
The plaintiff's low back injury appeared to have only transient effects upon her. The more serious consequences of her injuries concerned her upper limbs and the related psychological problems.
The plaintiff's physical disabilities involve pain, discomfort and restriction of movement of her left arm, especially involving the elbow and shoulder. As a result of sustained favouring of her left upper limb, the plaintiff has developed pain, discomfort and restriction of movement in her right shoulder and arm. She has developed abnormal sensations involving a feeling of pins and needles in both hands. She has a reduced capacity to lift, bend and carry and has restrictions in her ability to reach, especially at the extremities of movement of her arm, and especially overhead. Her leisure and dancing activities have also been curtailed. She also feels uncomfortable driving a motor vehicle.
The plaintiff has been left with a disfiguring scar on her left upper arm. That scar is widened and pigmented. She would rather that it was not there. She also faces the prospect of further surgery to remove the indwelling fixation hardware in her left upper arm, with the prospect of further scarring.
Consequent upon these matters, the plaintiff has developed frustration, distress and a degree of psychological withdrawal. Her psychological problems cause her concentration to vary. There was some disagreement between Dr Clark and Dr Kaplan as to whether the plaintiff has a psychological condition as a result of the effects of her accident. Dr Kaplan, who the plaintiff saw just once, thought not. Dr Clark who saw and assessed the plaintiff twice over a period of just over a year, considered the plaintiff had a post-traumatic stress disorder and a major depression. Those diverse views cannot both stand as correct.
As Dr Clark had the advantage of assessing the plaintiff twice over time, I consider his opinion to be more indicative and reliable concerning the true nature of the plaintiff's psychological problems.
That said, it must be acknowledged that some of the plaintiff's psychological problems would appear to be naturally related to the fact that she had been diagnosed with myeloma, for which she received debilitating treatment and suffered temporary hair loss, and as a result of which her future life span has been foreshortened. As no oral evidence was called to seek to isolate these factors in the analysis, it is not possible to accurately ascertain the extent of the effects of the fracture and its consequences as distinct from myeloma, as being causative of the plaintiff's psychological problems.
My impression is that the change in the plaintiff's post-accident level of physical activity regarding work, domestic and leisure pursuits due to accident-related restrictions, was the predominant cause of the plaintiff's psychological problems, and I so find.
In my view, the plaintiff has demonstrated that the disabilities I have summarised in the preceding paragraphs were caused by the fall in question as they would not have occurred but for that fall: s 5D of the CL Act.
Employment effects
At the time of the accident the plaintiff was working for Penrith City Council as an early childhood teacher. As a result of her injuries, the related surgical treatment, and the subsequent restrictions, the plaintiff has been unable to continue in her career in childcare due to occupational health and safety issues.
It is entirely understandable that where her work involved handling babies and young children, her employer has been reluctant to have her back at work lifting, holding and otherwise handling infants and young children in her charge. This has been a considerable loss to her.
In early 2012, the plaintiff commenced employment with My Gateway as a sub-contractor in the childcare training industry. I accept the evidence of the plaintiff that it is unlikely that she will be able to keep her current accreditation for childcare work due to an inability fulfil the physical requirements of the periodic practical testing involved in maintaining that accreditation. She has sought to ameliorate her economic loss by starting the business called My Gateway in early 2012, but this has not resulted in much in the way of earnings.
Domestic effects
Before the subject accident, the plaintiff undertook all forms of housework, gardening and lawnmowing. These activities have been substantially impeded for her as a result of the effects of the accident. She has had to relinquish some of these tasks to her husband and one of her adult children. In my view, the medical evidence and the evidence of the plaintiff and her husband justifies the awarding of damages for domestic assistance. That claim is evaluated separately in the assessment portion of my reasons.
Mitigation
The plaintiff is under a general law obligation to mitigate the effects of her injuries. She has pursued medical, physiotherapy and allied treatments, and she has attempted to take up alternative employment. In my view, it cannot be reasonably said that the plaintiff has not sought to mitigate the effects of her injury.
Assessment of damages
Before undertaking an assessment of the plaintiff's entitlement to damages it is necessary to deal with the question of the plaintiff's probable life span.
Probable life span of plaintiff
Dr Taper identified the plaintiff's median survival for standard risk myeloma by stating that it "currently approaches ten years". That evidence did not clarify whether that indication was to be reckoned from the time of original diagnosis of the condition, or from the time following the termination of treatment.
The only other evidence which addressed the question of the probable life span of the plaintiff was a report dated 29 November 2011 from Professor Martin Tattersall tendered by the defendant. Professor Tattersall had not examined the plaintiff or reviewed any recent test results relating to the plaintiff's condition. His opinion identified the landmarks for the assessment of survival as being at 3, 4, 5 and 7 years. He also identified the testing of LDH and calcium levels as indicators of early survival, and testing for later survival from the identified 3, 4, 5 and 7 year landmarks as being the assessment of the levels ß2 microglobulin.
Neither party called any oral evidence to clarify or explain these matters, which creates obvious difficulties for the assessment of this important issue.
The treating haematologist's report pre-dated the hearing by 8 months. It made no reference to the tests identified in the medico-legal report tendered by the defendant.
The defendant's medico-legal report from Professor Tattersall, which was not objected to, did not contain the statement required by UCPR r 31.23 and made no reference to the Expert Witness Code. I cannot determine from the evidence whether the solicitor for the defendant in fact provided Professor Tattersall with a copy of that Code as the letter of instruction did not form part of the evidence.
This factor, along with the fact that Professor Tattersall had not examined the plaintiff, and had predicated his prognostic remarks with the statement that he had no knowledge of the current status of the plaintiff's disease, persuades me that I should place little weight upon his report because it is necessarily theoretical in its terms, and does not provide me with any practical assistance in assessing the issue of the plaintiff's probable life span.
That analysis leads me to revisit Dr Taper's letter dated 13 January 2012. Although Dr Taper's letter does not contain any reference to the Expert Witness Code, it is in a slightly different category to the letter from Professor Tattersall. Dr Taper's letter does not seem to be a medico-legal report. It is not addressed to anyone. It seems to be a factual or historical information letter that summarises the position of the plaintiff as at the conclusion of her treatment. In those circumstances, I consider that this report from the treating haematologist represents the most reliable evidence in the case upon which to base findings as to the plaintiff's probable survival.
As Dr Taper has referred to the plaintiff's myeloma as being in partial remission, I infer from his letter that his survival prediction approaching ten years should be read as being reckoned from the time of termination of bone marrow transplant treatment which the plaintiff received in October 2011.
Dr Taper has identified the statistical median for the plaintiff's survival. The fact that survival is expressed to be in statistical terms, and because the median is in the mid-point of the normal curve distribution of the statistical data, this implies that there is some prospect of earlier mortality, as well as some prospect of survival beyond the median figure.
In those circumstances, without evidence having been called that identifies and clarifies the relevant factors that might direct the consideration of this issue away from the median to either end of the extreme statistical possibilities, I propose to adopt Dr Taper's formulation for median survival, but adjusted down to 9 years from the present time, having regard to the fact that a year has elapsed from treatment.
Whilst in some respects this is an unsatisfactory approach, I consider it to be the only reasonable approach open, given the state in which the evidence has been left by both parties.
I reject as unfounded speculation, the submission of the defendant that the plaintiff's probable survival should be substantially discounted, by fifty per cent or otherwise, on account of the factors comprising the survival landmarks identified by the report of Professor Tattersall. There is simply no evidence to support such a submission.
The 5 per cent multiplier for 9 years is 380.1.
Non-economic loss
The plaintiff submitted that the plaintiff's injuries and the sequelae of those injuries justified an award of damages to the equivalent of 38 per cent of a most extreme case pursuant to s 16 of the CL Act. In contrast, the defendant submitted that such damages should be assessed on the basis of 25 per cent of a most extreme case, namely $34,000. In my view, neither of these submissions should be accepted.
The matters relevant to the assessment of the plaintiff's damages for non-economic loss on account of the loss of enjoyment and amenity of her life as a result of the effects of her injuries have been identified at paragraphs [29] to [38] above.
In my view, those physical and psychological disabilities, including the plaintiff's significant left arm scar and the prospect of further surgery, represent significant impairments to the ordinary enjoyment of the amenities of life in an otherwise active person. Even when weighing the overshadowing effects of the plaintiff's myeloma in remission, I considered that the plaintiff has made out her entitlement to significant damages for non-economic loss.
In weighing all of those matters, I consider that the proper assessment of non-economic loss in this case is 23 per cent of a most extreme case pursuant to s 16 of the CL Act, which equates to the sum of $26,000. I therefore assess the plaintiff's damages for non-economic loss in the amount of $26,000.
Past economic loss
The plaintiff claimed past economic loss in the amount of $88,400. The defendant conceded an amount for past economic loss, including superannuation, in the amount of $16,650. This equates to an allowance of past economic loss of about $15,000. In my view, neither of those submissions was of assistance in identifying the appropriate sum for the plaintiff's past loss of income.
The parties were agreed that the plaintiff's financial returns indicated that in 2010, the plaintiff's average net weekly earnings were $508.75. They also agreed that in 2011, the plaintiff's average net weekly earnings were $1030.63: Exhibit "C".
In my view, the evidence does not permit a precise calculation of the claim for past economic loss because of the need to recognise the extent of the contribution of the plaintiff's underlying myeloma to the amount of time the plaintiff had off work.
The evidence suggests that even if the plaintiff had not had the fall, she would have had a timely x-ray diagnosis of myeloma in her painful left arm. She had already been given a referral for that x-ray just before her fall, so from this it could be reasonably inferred that a diagnosis of myeloma was either days or weeks away when the fall occurred. The evidence also suggested the plaintiff would have had some form of prophylactic surgical treatment in any event, to provide her with some internal support to the site of the lytic lesion in her left arm, irrespective of the fall.
That said, the occurrence of the traumatic injury to that site, and the need for more extensive emergency surgery immediately following the fall in question undoubtedly prolonged the plaintiff's inevitable rehabilitation period. There is little doubt that the plaintiff would have had an extended period off work due to the need for treatment of her myeloma in any event. The recuperation period for her surgical treatment to repair the fracture undoubtedly coalesced with the period of inability to work due to the myeloma treatment itself.
There is also little room for doubt that the employer's concerns over the plaintiff's ability to safely carry out the physical tasks associated with the care of infants and young children, would have arisen as a consequence of the prophylactic surgery in the same way as it did following the surgery for repair of the fracture.
These factors must be weighed in any assessment of past economic loss.
If the entire claimed period of economic loss of 1.5 years was to be awarded, in round figures, this would equate to an assessment of about $80,000. In view of the coalescent factors I have identified in the preceding paragraphs, I consider that this sum must be considerably adjusted to reflect the causative impact of those other factors.
In weighing those matters, it is plain that the timing of the surgery was traumatically induced, rather than elective, so it could not be arranged to coincide with leave for elective surgery, and the surgery was more extensive and required a longer period of recuperation. This would have delayed the timing of the plaintiff being able to seek alternative employment.
However, overshadowing those factors is the real prospect that the plaintiff may well have had the same work restrictions placed upon her by her employer as a result of the prophylactic surgery as has occurred following the surgical repair of the fracture.
These matters are not readily amenable to assessment according to a calculation formula. Instead, although to a degree arbitrary, I consider that the appropriate method of assessing this component of the plaintiff's loss is to apportion one-third of the loss as being accident related. This yields the amount of $26,664, which I round off to $27,000.
I therefore assess the plaintiff's damages for past economic loss in the amount of $27,000.
Past loss of superannuation
On behalf of the plaintiff it was submitted that damages for the loss of past employer funded superannuation benefits were in the sum of $9724. This amount represented the conventional calculation of 11 per cent of the submitted past economic loss assessment. In contrast, the first defendant submitted the allowance for this head of damage was incorporated in the award for past economic loss. I do not accept that submission. Instead, I consider that the appropriate allowance for the loss of past employer funded superannuation should be separately assessed. The conventional calculation of 11 per cent of $27,000 yields the sum of $2970. I therefore assess the plaintiff's damages for past loss of employer funded superannuation in the amount of $2970.
Future economic loss
The plaintiff made a claim for future economic loss in the sum of $247,740. This sum was derived from a projection of the sum of $600 per week net at 5 per cent over 10 years, without discount for vicissitudes. In contrast, the defendant submitted that the appropriate sum to be awarded for future economic loss, including superannuation, was $55,500. It was not clear as to how that amount had been derived. For the reasons that follow, I do not accept either of those submissions.
The starting point for the assessment of the claim for future economic loss is to survey the medical evidence. Dr Dowsett indicated that if it were not for the fracture, the plaintiff may have been in a position to continue in childcare. That evidence alone would not enable a finding to that effect on the balance of probabilities. Dr Conrad's view was more definite. He stated that the plaintiff would not be able to work in childcare for the foreseeable future, which, in terms of my finding concerning her probable remaining life span, means for the next 9 years.
Dr Conrad identified a residual earning capacity for alternative sedentary employment for 21 hours per week, with restrictions on driving, lifting, repetitive work with either arm, and reaching overhead or above shoulder level.
In contrast, Dr Taper indicated the plaintiff would have no restrictions on her activities, and he encouraged her to lead a normal life. I do not consider Dr Taper's cited views to be definitive on this issue, as he did not proffer them in the form of an expert opinion, and it is not clear as to whether he was addressing a specific question that had been asked of him in that regard.
The effect of Dr Deveridge's opinion is that absent the fracture, the plaintiff's work fitness would have been affected for some 6 months or so, following which she would have been able to return to her pre-injury employment. I do not find that opinion to be of assistance because it is an artificial analysis, as the traumatic fracture, which he acknowledged to have been significant, cannot be ignored. The fact that the plaintiff had the underlying myeloma cannot be excluded from the analysis: Mt Isa Mines Ltd v Pusey.
Dr Harvey considered that the plaintiff should not undertake any work that places undue stress on her left arm because of the danger of further pathological fractures in that arm. The x-rays and scans cited by Dr Harvey at pages 5 - 6 of his report do not identify any other lytic lesions that would appear to reasonably base that comment.
Dr Harvey also cited altered bone quality "related in the main to the original myeloma condition and the subsequent treatment with radiotherapy". This implies that the other contributing factor is the effect of the traumatic fracture from the fall which has led to the placement of the indwelling plate and screws which could cause additional stresses at each end of the plate, and which could potentially be a site for further fracture. In that regard, the defendant must also take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey.
To the extent that there are additional material causes operating, Dr Harvey's report which states that the prophylactic treatment that would have been applied to the lytic lesion, absent the fall would have led to the same risks and the same incapacity that relates "solely ... as a result of her myeloma" is unreasoned, and as such, is contrary to the requirements of Sch 7 cl 5(c), and therefore unpersuasive. Accordingly, I consider that the defendant has not persuasively shown the plaintiff's ultimate condition would have arisen in any event: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158.
For the foregoing reasons, I do not accept the views of Dr Harvey and Dr Deveridge on these matters, and instead I prefer the views of the treating general practitioner, Dr Dowsett and Dr Conrad.
In approaching the assessment of the plaintiff's claim for future loss of earning capacity, I consider that the projection of a precise weekly sum is contradicted on the evidence. Instead, I consider that the award of a buffer would be the preferred approach. In that regard, and having regard to the inherent imponderables, I consider the appropriate buffer to be an amount of $150,000. In testing the reasonableness of that amount, it can be analysed to be the equivalent of the projection of a little under $400 per week over 9 years.
The imponderables to which I have referred include the possibility that the plaintiff's myeloma that is presently in remission may become active in other parts of her body, such as in her femoral heads as indicated on x-rays, and may require debilitating treatment that will cause the plaintiff to remain away from work for a period, or permanently.
I therefore assess the plaintiff's damages for future economic loss in the form of a buffer amount of $150,000.
Future loss of superannuation
Consistent with my findings concerning the plaintiff's claim for future loss of earning capacity, the conventional formula of 11 per cent of the net amount assessed for future loss of earning capacity, namely $150,000 should serve as the basis for the assessment of damages for future loss of employer funded superannuation benefits, which amounts to $16,500. I consider this sum need not be further discounted in this case because the underpinning buffer amount has already been considerably discounted. I therefore assess the plaintiff's damages for future loss of employer funded superannuation contributions in the amount of $16,500.
Past domestic assistance
The plaintiff made a claim for past domestic assistance in the amount of $13,650, which was comprised of 7 hours of care per week, costed at $25 per hour, over the 1.5 years to the time of the hearing. In contrast, the defendant submitted that past domestic assistance should be awarded in the sum of $5148. It was not clear as to how that sum had been derived. For the reasons that follow, I do not accept either of those submissions.
A review of the medical evidence is instructive on this issue. At the outset of the analysis, I discount the view of Dr Taper to the effect that the plaintiff is able to return to her normal activities without restrictions. That view was overly optimistic and has not been borne out either by time or by the evidence of the plaintiff, which I accept.
I discount Dr Deveridge's view to the effect that domestic assistance should have ceased to be the defendant's responsibility after 6 months because it is based upon an incorrect causation analysis which ignores the fact that there was an underlying lesion which is a complication that the defendant must accept: Mt Isa Mines Ltd v Pusey.
Over the course of his assessments of the plaintiff, Dr Conrad expressed the consistent view that the plaintiff needed 6 hours per week of domestic assistance. Dr Bodell considered the plaintiff needed 8 hours per week of such assistance indefinitely. Dr Harvey considered 7 hours per week for such assistance a little generous, but not unreasonable. Against that background, the plaintiff's claim for 6 hours per week seems to be reasonable, subject to a causation analysis.
The difficulty the plaintiff faces with regard to the claim for damages for past domestic assistance is that it must be shown, amongst other things, that the need for such services has arisen solely because of the injury in question: s 15(2)(b).
In this case the common law principle identified in Mt Isa Mines Ltd v Pusey must be read subject to this limiting statutory provision.
It is plain that the underlying myeloma and the treatment of it was partly responsible for the plaintiff's need for past domestic assistance. Once that position is recognised, it follows that the need for such services cannot be seen to be "solely" because of the injury in question.
The position might have been different if the care needs were much greater than 6 hours per week and the evidence permitted an apportionment referrable to the fracture, but I consider this not to be the case here.
I consider that the allowance of 6 hours per week for past domestic assistance for the period up until the hearing is reasonable but I find that not all of it is solely referrable to the injury.
Accordingly, the plaintiff has not proven that an injury caused need existed for domestic assistance of 6 hours or more per week for at least 6 months: s 15 of the CL Act. As a result I do not award the plaintiff any damages for past domestic assistance.
To allow for the possibility that I may have erred in this assessment, the Appendix to these reasons calculates the value of 6 hours per week from the time of the accident until the time of the hearing in the sum of $12,397.68.
Future domestic assistance
The plaintiff made a claim for future domestic assistance in the sum of $115,612, which comprised the projection of $280 per week at 5 per cent over 10 years (x 412.9). This represented 7 hours per week of domestic assistance costed at the commercial rate of $40 per hour without any discount. In contrast, the defendant submitted that a rounded sum of $20,000 would be the proper amount to award for future domestic assistance. For the reasons that follow, I do not accept either of those submissions.
To a degree, the evaluation of the claim for future domestic assistance involves similar considerations to those that were applied to the evaluation of the claim for past domestic assistance, with the exception of the requirements of the statutory framework of the CL Act.
This is so because I consider the plaintiff's need for future domestic assistance will not be subject to the considerations required by s 15 of the CL Act as it is unlikely that such assistance will continue to be provided to the plaintiff gratuitously by her family members. It cannot be reasonably assumed that the plaintiff's son will provide such services and it is also plain that her husband would rather concentrate on his work and use the monies provided by these proceedings for employing outside assistance for the major components of domestic assistance by actually engaging such assistance. I accept that outside domestic assistance will be employed at commercial rates, which have been agreed at $40 per hour.
This leaves the question of identifying the number of hours to be allowed in such an assessment.
Of the claim of 6 hours per week, consistent with my findings concerning the claim for past care, it must be accepted that some of the need for that care will arise as a result of the effects of the plaintiff's myeloma. It must also be recognised that on account of expediency and economy, some aspects of the domestic assistance presently provided by the plaintiff's husband, such as in the kitchen and laundry, will continue to be provided by him, as it will be impractical to employ outside help with minor everyday tasks of short duration.
It follows, that the major tasks, such as housecleaning, perhaps hanging out the washing and taking it in again, ironing, carrying shopping, gardening and lawn mowing, will be carried out by outside domestic assistance paid for at commercial rates.
The state of the evidence does not reasonably permit an apportionment of these tasks to precisely identify the extent of the plaintiff's injury related need. Nevertheless, some attempt must be made to make an assessment of this need, even though this may appear to be to a degree, arbitrary. Accordingly, I consider that an apportionment of 3 hours per week would be fair to both parties.
The projection of the value of 3 hours per week for commercially paid domestic assistance, or $120 per week, over 9 years (x 380.1) yields the amount of $45,612. Although that projection has already been discounted for mortality, I consider that it should be further discounted for the prospect that should the plaintiff's myeloma become recrudescent, and no longer remaining in partial remission, in which case the domestic assistance claim would be eclipsed by such events.
Alternatively, allowance must also be made for some possible lessening of the need for domestic assistance, such as on account of possible improvement in the plaintiff's condition, or if she downsized her home from the present 4 bedroom house to something smaller and easier to manage and maintain. An example would be moving to an apartment, which would then obviate the need for lawn mowing and gardening.
I consider that a discount of 15 per cent on account of these factors would be appropriate. Applying that discount to the sum of $45,612, this yields an amount of $38,770. I therefore assess the plaintiff's damages for future domestic assistance in the amount of $38,770.
Future out-of-pocket expenses
The plaintiff made a claim for future out-of-pocket expenses in the lump sum of $25,000. This was not based on any calculation founded in the evidence. In contrast, the defendant submitted there should be allowance for future treatment in the sum of $7500.
A survey of the evidence reveals that although the plaintiff is not incurring much in the way of treatment expenses at present, this may change in the future. She may need to have her fixation plate and screws removed if the screws cause problems, she may need occasional medical review and physiotherapy treatment for her upper limbs and shoulders, and she may need to take medications recommended to her by her treating doctors. She may also take up Dr Clark's suggestion for some psychiatric sessions. Dr Harvey has already identified the fact that the plaintiff's humeral fixation plate, as seen on x-ray on 3 February 2012, is showing a slight gap between the fixation plate and the humerus above the fracture site, which indicates the surgery suggested by Dr Conrad may become necessary.
In these circumstances, I consider the defendant's submission to be reasonable, and it should be accepted. I therefore assess the plaintiff's damages for future out-of-pocket expenses in the amount of $7500.
Past out-of-pocket expenses
The parties have been unable to agree on past out-of-pocket expenses. The plaintiff claims $4524.12. The defendant accepts liability for the Medicare, gap and ambulance payments totalling $691.32. The defendant agrees that the plaintiff has expended $3832.80 for other treatments at the Australian Natural Medicine Centre but disputes that this relates to the fracture. I consider that the plaintiff pursued that treatment in her efforts to seek mitigation of the effects of her injury, and I consider the overall amount to be reasonable, and reasonably incurred. I therefore assess the plaintiff's damages for future out-of-pocket expenses in the amount of $4524.12.
Summary of damages assessment
My assessment of the plaintiff's damages is summarised as follows:
(a) Non economic loss
$26,000
(b) Past economic loss
$27,000
(c) Past loss of superannuation
$2,970
(d) Future economic loss
$150,000
(e) Future loss of superannuation
$16,500
(f) Past domestic assistance
$Nil
(g) Future domestic assistance
$38,770
(h) Future out-of-pocket expenses
$7,500
(i) Past out-of-pocket expenses
$4,524.12
Total
$273,264
Disposition
The plaintiff has established an entitlement to a verdict and judgment in her favour in the assessed amount of $273,264
Costs
As the plaintiff has succeeded in obtaining a judgment in her favour, unless any other entitlement can be shown, she is entitled to have her costs of the proceedings paid on the ordinary basis.
Orders
I make the following orders:
(1) Verdict and judgment for the plaintiff in the sum of $273,264;
(2) The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
(3) The exhibits may be returned;
(4) Liberty to apply on 7 days notice if further orders are required.
APPENDIX
CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO THE CIVIL LIABILITY ACT 2002, s 15
(6 hours per week between 22 March 2011 and 15 October 2012)
PERIOD
WEEKS
WEEKLY
s.15
RATE
HOURLY
s.15
RATE
AMOUNT FOR
6 HOURS PER
WEEK
1.
22.03.2011 to 20.05.2011
8.42
$1025.90
$25.64
$1,295.33
2.
21.05.2011 to 15.0.2012
72.14
$1026.00
$25.65
$11,102.35
TOTAL
$12,397.68
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Decision last updated: 19 October 2012
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