Petkidis v Kuric No. DCCIV-99-357

NICOLETTE PETKIDIS V GORDANA KURIC
[2000] SADC 113

Judge C R Lee
Civil

The plaintiff claims damages for injuries which she sustained in a road accident on 26 March 1992. The parties have agreed that she should be awarded 70% of her damages to be assessed.
The plaintiff was born on 6 February 1982. Her parents separated when she was two and a half years of age, and she remained thereafter in the care of her mother. She had no contact at all with her father from about the age of seven. She has one sibling, a brother who is thirteen months older. Her mother remarried in November 1986, but that marriage came to an end in June 1993. The plaintiff’s stepfather was aggressive and abusive towards her brother, but treated her quite well. Her mother is in another relationship which began about two years ago. The plaintiff has a boyfriend, whom she hopes to marry.
The accident occurred on Military Road, Largs North. The plaintiff had alighted from a vehicle which her mother had parked at the kerb, and was struck by a motor vehicle driven by the defendant. She was thrown about three metres, and her head made contact with the bitumen. She was only 10 years of age at the time.
The plaintiff was rendered unconscious in the accident, but only for a minute or so. She remembers her mother calling her name, and her mother confirms that this was immediately before the impact. She then remembers being cradled in her mother’s arms she lay on the roadway. She was taken by ambulance to the Queen Elizabeth Hospital where she was X-rayed, and then to the Adelaide Children’s Hospital (as it then was). A degree of disorientation was observed over some of that time. She was admitted with a depressed right parietal skull fracture, a scalp laceration, a left elbow laceration and soft tissue injury to the left knee. Dr Hanieh, a neurosurgeon, operated to elevate the fracture, which measured five by two centimetres. The elbow laceration was sutured. She was discharged two days later, and thereafter made two visits to the Outpatients Department of the hospital and one visit to Mr Woodroffe, a clinical psychologist at the hospital, on the referral of Dr Hanieh.
After an absence from the last two weeks of the term, the plaintiff’s schooling continued without significant interruption. During year 10, she worked after school at Kentucky Fried Chicken for two weeks and then at Harris Scarfe selling ladies shoes for three months. In the latter job, she worked at the end of each week-day, including from 5 to 9 on Thursday nights. She also worked between 9 and 5 on Saturdays. During year 11, she did work experience for a week at the Hindley Street Police Station. She left Woodville High School in about June 1999 during year 12.
After leaving school, the plaintiff began a course in child care at the Croydon campus of TAFE in July 1999, but only persisted until April or May of this year. She then took a telemarketing job with Bramalco, but was told after one month that she was not suited to the work. She has not worked since, but is looking for retail work in the fashion industry.
This much is common ground. The parties part company at the plaintiff’s submission that symptoms related to her head injury have diminished her prospects of employment with the result that she will sustain future economic loss. The plaintiff says she had hoped for a career in the police force or as a primary school teacher, but can now only expect to work as a shop assistant. The defendant says that any ongoing symptoms were and are due to factors wholly or mainly unrelated to the accident.
The evidence of the plaintiff about her symptoms is that they have taken the form of headaches and loss of memory and concentration. Her headaches, for which she took Panadol and Panadeine, averaged between two to three per week for three months after the accident. For the balance of her primary school years, they occurred regularly on a weekly basis. Then, when she entered high school, the severity and frequency got worse. The frequency was two or three times a week at least. She tried acupuncture and massage in lieu of medication. The indentation left by the skull fracture, although usually hidden by her hair, was a source of constant concern to her. The plaintiff and her mother relate her symptoms of loss of memory and concentration, although complaints were recorded as far back as October 1992, to the build up of her school work in and from year 10. She found that she was not coping with her work including her written assignments. She would have to re-read her work constantly to make sure that she kept on the right track. Most of the time towards the end she would just lose concentration. She became angry and frustrated. Her mother’s evidence is that her anger and frustration was exhibited in relation to her homework as well. In year 11, she chose subjects which would leave open a career in the police force or as a primary school teacher, but her problems continued. She said she started year 12 with high hopes, but again it all got the better of her. Eventually she decided to leave school and enrol in the child care course at TAFE.
The plaintiff said that her teachers at TAFE were telling her that she was not grasping concepts. Her decision to discontinue the child care course was made after a discussion with her field educator at a day care centre. She said she definitely would like to return to TAFE to complete the course part-time. Her field educator told her she would be more than happy to have her back.
As for the present, the plaintiff said she still has headaches very often, and she thinks that they are getting worse. Lack of concentration is still a problem. She is still aware of the indentation, and the left elbow laceration has left a scar.
The plaintiff’s school reports were tendered in evidence. She was in year 5 at Largs Bay Primary School at the time of the accident. Following a change of residence, she did years 6 and 7 at Woodville Primary School, and years 8 to 12 at Woodville High School. The reports disclose that she achieved A and B grades in years 4 and 5, and satisfactory grades in year 7, but that her performance and attitude deteriorated from year 8.
The expert evidence for the plaintiff was given by Professor Donald Simpson (neurosurgeon), Dr Jeremy Hallpike (neurologist), and Ms Glenys Forrester (neuro-psychologist). The plaintiff’s head injury, given the relatively short period of amnesia, should be classified as mild. Nevertheless, mild head injury can produce diffuse impairment of brain function and lead to persistent headaches and loss of memory and concentration. The plaintiff’s headaches are of two types: muscle tension headaches and migrainous headaches. The first is psychological and the second is physical, and the one interacts with the other. Given the coincidence between the accident and the onset of the headaches, and in the absence of a family history, it is likely that the accident was and remains the cause of the headaches. Migrainous headaches can often be treated by prophylactic medication. Symptoms of loss of memory and concentration may not emerge in any significant way in an adolescent until the final years of school when the intensity of work increases and the environment becomes more competitive.
The expert evidence for the defendant was given by Dr David Kutlaca (psychiatrist) and Mr Anthony Walsh (neuro-psychologist). The evidence does not support enduring brain injury or dysfunction. An MRI scan was normal, and the plaintiff’s responses to psychological testing were within the normal range. Her symptoms can be explained by the emotional stresses of her development as an adolescent, especially in relation to events in her life at home.
I am prepared to accept that, in broad terms, the plaintiff’s symptoms were and are as she and her mother describe. Both the plaintiff and her mother were satisfactory witnesses. They gave consistent accounts to the specialists and cogent accounts to me. Moreover, the timing of the onset of relevant symptoms is supported by Mr Hanieh’s referral of the plaintiff to Mr Woodroofe in October 1992.
At the risk of over-simplification, it seems to me that the specialists have approached the problem from different perspectives. The plaintiff’s specialists looked for minor and diffuse impairment of brain function, whereas the defendant’s specialists looked for brain damage. The plaintiff’s specialists were prepared to accept the history of accident and symptoms to infer minor impairment, whereas the defendant’s specialists were not prepared to accept the history to infer damage. The defendant’s specialists focussed upon the difficulties at home, whereas the plaintiff’s specialists did not. As to the last point, the plaintiff and her mother left me with the impression, albeit in hindsight, that the plaintiff coped with the difficulties sensibly and appropriately. I accept Ms Forrester’s view that the difficulties were ‘non-issues’ for the plaintiff.
I find on the basis of the views of Professor Simpson and Dr Hallpike, which views are reinforced by my own acceptance of the general thrust of the history given to me by the plaintiff and her mother, that the plaintiff’s symptoms were and are attributable to minor and diffuse impairment of brain function.
The issue of the impact that the symptoms have had upon the plaintiff’s employability is much more difficult to resolve. Her headaches seem to have been the main problem, but doubtless all her symptoms have interfered at times with her studies, both before and since leaving school. I am prepared to accept that the symptoms played a part in the plaintiff’s thinking in years 11 and 12 about her future career and in her decision to leave school as and when she did. I am also prepared to accept that the symptoms played a part in the plaintiff’s decision to discontinue her child care course at TAFE. On the other hand, the evidence does not enable me to conclude, at least as a matter of probability, that any particular course or career has been completely closed off to the plaintiff. It is probable that, perhaps with the aid of medication, the symptoms, and/or the impact of those symptoms upon the plaintiff’s earning capacity, will ameliorate with the passage of time.
It is true that Ms Forrester thought that the plaintiff would have difficulty in completing the academic requirements of a primary school teacher and in fulfilling the practical demands of that occupation. Ms Forrester also had concerns about the plaintiff wanting to go into the police force. To the extent that Ms Forrester’s views were intended to apply to the future, they are not supported by the other evidence in the case, and I do not accept them as established to the requisite degree of proof. In fairness to Ms Forrester, she did add that a vocational assessment would have been useful, because the topic was outside her area of expertise.
It is also true, as counsel have agreed, that the plaintiff is not eligible to study to become a primary school teacher without first obtaining certain qualifications as a prerequisite. If she still wishes to pursue a career as a primary school teacher, it is probable that her symptoms will not stand in the way. I make the general observation that, given the plaintiff is only 18 years of age and seems to be an intelligent person with a pleasing manner and appearance, her prospects of sooner or later obtaining employment without loss must be rated as reasonably good.
However all that may be, the plaintiff is entitled to be compensated for the chance that her future earnings will be impaired by her symptoms, and by her inability in particular to acquire qualifications in the last two or so years. It must be recognised that the last two or so years were important years for the plaintiff in this context, as they would be for any teenager at the threshold of a career.
It is impossible to predict how long the symptoms, and/or the delay in obtaining qualifications, will have an impact upon the plaintiff’s earning capacity. It is probable that the duration will be short term only, but I cannot ignore the possibility that it will be long term as well. If it is long term, it is likely that the impact will be small.
Except perhaps as a check against gross error, I do not consider that it would be appropriate to accept the invitation of counsel for the plaintiff to select a weekly salary differential to age 60 or 65 or earlier death, and then to capitalise that sum with a deduction for contingencies. An approach of that kind would imply as a matter of probability an on-going incapacity in the long term, and the evidence does not go that far. Notwithstanding the relatively arbitrary nature of the alternative approach, I see no option but to fix a global sum, giving due weight to contingencies, in an endeavour to reflect fair compensation for the plaintiff’s loss. I assess the plaintiff’s future economic loss at $50,000.
I assess future medical expense, mainly if not wholly with respect to medication, at the sum of $400.
Special damages are agreed at $271.45.
I assign the numerical value of 12 to the plaintiff’s non-economic loss. The prescribed amount is $1,370. So the award under s35A of the Wrongs Act 1936 for this head is $16,440.
I do not consider that the evidence establishes the plaintiff’s right to an award for voluntary services rendered to her by her mother.

In the result, the plaintiff is entitled to 70% of the following:-

non economic loss  $16,440.00
economic loss
future earning capacity  $50,000.00
future medical expense   $    400.00
special damages   $    271.45
$67,111.45
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There will be judgment for the plaintiff against the defendant in the sum of $46,978.00.

[2000] SADC 113

6 September 2000