Pryce v Dunlap (No 2)
[2016] ACTSC 353
•1 December 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Pryce v Dunlap (No 2) |
Citation: | [2016] ACTSC 353 |
Hearing Dates: | 28 November 2016 – 29 November 2016 |
DecisionDate: | 1 December 2016 |
Before: | Elkaim J |
Decision: | (i) Judgment for the plaintiff in the sum of $399,106.22. (ii) The defendants are to pay the plaintiff’s costs of the proceedings. |
Catchwords: | CIVIL LAW – PERSONAL INJURY – motor vehicle accident – assessment of damages – whether a redundancy payment has any effect on future economic loss. |
Legislation Cited: | Civil Law (Wrongs)Act2002 (ACT), s 100, 100(2)(d) Motor Accidents Compensation Act 1999 (ACT) |
Cases Cited: | Griffiths v Kerkemeyer [1997] HCA 45; 139 CLR 161 Wall and Lambe v Wall [1998] SASC 7017 |
Texts Cited: | Harold Luntz, Assessment of Damages for Personal Injury and Death, (Butterworths Australia, 4th ed, 2002) |
Parties: | Cheryl Ann Pryce (Plaintiff) Juliana Dunlap (First Defendant) Insurance Australia Limited trading as NRMA Insurance (Second Defendant) |
Representation: | Counsel Mr A Black SC with Mr L Edwards (Plaintiff) Mr B Wilson (Defendants) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) Moray & Agnew (Defendants) | |
File Number: | SC 447 of 2015 |
ELKAIM J:
Introduction
The plaintiff was injured in a motor vehicle accident on 1 June 2013. She has sued the defendants for damages arising from her injuries. The first defendant was the driver of the vehicle responsible for the accident. The second defendant is the insurer of this vehicle.
Breach of duty of care has been admitted so that the matter came before me for the assessment of damages. The plaintiff claims damages under the following heads: general damages, past and future economic loss, past and future medical expenses and, past and future gratuitous assistance. She also seeks interest on general damages and past economic loss.
The defendants do not deny the plaintiff is entitled to damages; rather they say the extent of her injuries, and the quantification of the consequent loss, are significantly less than her claim.
Before the accident
The plaintiff was born in 1965. She was married in 1988 to a Mr Allan Hogan. There is one child of the marriage, Ella, who was born in 1989. The marriage broke up in 1994 leading to the plaintiff becoming depressed. She started to use antidepressant medication and has continued to do so until the present time.
In 1995 the plaintiff commenced employment with the Department of Defence. Over time she was promoted until, in March 2010, she reached Executive Level 1. This entitled her to a net weekly salary of $1,465.00 as at the date of the motor vehicle accident.
The plaintiff has suffered migraines from childhood. They apparently fluctuated in severity over the years but were particularly severe over about a 12 month period around 2009. The plaintiff was suffering from weekly migraines sometimes lasting for days and occasionally requiring her to take time off work. Following a MRI scan of her brain she was referred to a Dr Hawke in Sydney. He is a neurologist. He returned her to a medication she had previously been taking called Topomax. She continued on this medication until the severity and frequency of the migraines abated.
In about 2001 or 2002 the plaintiff suffered a “whiplash” injury in a motor vehicle accident. She was off work for a few days. She suffered neck pain and continued to do so, intermittently, until the accident in 2013. She felt her neck pain had “pretty much” recovered by about 12 months before the subject accident.
In 2010 the plaintiff had about 46 days of absence from work. This was due to a bullying issue which was ultimately resolved after she was seconded to a different department for a period of time.
At the time of the accident the plaintiff’s employment mainly involved human resources matters. She considered a lot of documentation, there were meetings and she dealt with “outfalls” of change to various individuals. About 60% of the day involved work at a desk. The plaintiff said she “loved” her job and had intended to work until age 65.
Also in 2013, the plaintiff was in a relationship with a Mr Donovan. He was the driver of the vehicle in which she was a passenger when the accident occurred.
Despite the various difficulties the plaintiff had endured over the years she nevertheless led an active social life. She often met friends and had dinner parties. She was a member of the Gungahlin United senior ladies soccer team, she attended a gym at Belconnen and she enjoyed working in her garden. She lived in a townhouse with a small front and rear garden. She attended to all household duties both inside and outside the house.
The accident
The accident occurred on Monaro Crescent in Red Hill in the Australian Capital Territory. It was about 3pm and it was raining. The plaintiff was a front seat passenger in a vehicle that was stationary, waiting to make a right-hand turn. The first defendant’s vehicle hit the rear of the vehicle in which the plaintiff was seated.
The plaintiff described the impact as severe although little damage was apparently sustained by the offending vehicle. The plaintiff’s vehicle however, sustained significant damage. The rear window was smashed and, in perhaps the most significant indication of the severity, the dashboard dislodged and fell onto the plaintiff’s knees. The vehicle was a ‘write off’. It could not be driven from the scene. The extent of the damage can be seen in Exhibit C.
After the accident
The plaintiff immediately felt pain in her neck, head and, perhaps to a lesser extent, in her right shoulder. Her daughter picked her up and took her home. Over the next 12 hours she developed significant pain in her low back. On the day after the accident she consulted a general practitioner, Dr Hossain.
The plaintiff was sent for physiotherapy. She said this treatment helped her shoulder which later fully recovered. She returned to work on 17 June 2013 but left after a few hours. The pain was too much for her.
The plaintiff’s employer arranged for some rehabilitation and she later received some changes to her workplace including a desk which could be raised so she could work from a standing position. This measure was of limited value because help was needed to raise the desk.
The plaintiff returned to work on 22 July 2013, initially for three hours a day for two days a week and then gradually increased her hours to full-time by October 2013.
The plaintiff said she was having headaches every day. She was suffering from tinnitus and dizziness and in turn, from nausea.
The plaintiff used leave entitlements in order to, in essence, fund her time away from work. She prepared a summary from the department’s records to reflect the time she had away from work. This commences at page 80 of Exhibit B. On page 82 there are some examples of time off for non-accident related injuries. Under cross-examination, some mistakes in the schedule were highlighted. Their significance was diminished after the parties agreed on the quantum of past economic loss.
This is a convenient point to make some comments about the plaintiff’s credit. Her credit was attacked with one of the avenues of attack being the incorrect portions of her ‘off work’ summary. Contrary to the defendants’ submissions, I thought the plaintiff was a very honest witness who did not exaggerate her symptoms, made concessions when appropriate and could be relied upon to provide accurate information. I do accept that there were mistakes in the summary but I think these were innocently made and certainly do not affect the bulk of the entries.
In addition, I was impressed by the plaintiff’s frank concessions about her pre-accident injuries and work issues.
The plaintiff’s relationship with Mr Donovan ended in about October 2013. In early 2014 she resumed contact with her former husband, Mr Allan Hogan, and they resumed cohabitation in March 2014. Mr Hogan moved into the plaintiff’s residence. Their daughter had left the residence in November 2013.
Returning to the plaintiff’s progress after the accident, the plaintiff said that between November 2013 and July 2014 she had, on average, about one day a week off work. In August 2014 she met a Ms Swavley who was her supervisor. She told Ms Swavley of the difficulties she was having and, by arrangement, reduced her working hours so that she had each Monday of the week off.
Notwithstanding this arrangement, she continued on the same level of pay but sometimes worked longer hours on other days of the week. The arrangement commenced on 22 September 2014. From this time the plaintiff estimated she had, again on average, about five to six hours of absences per week.
The plaintiff described her condition in October 2014. She was still having significant pain in her neck and low back and also headaches and tinnitus. The plaintiff said that medication helped and she was taking a good deal of it. The medication included Panadeine Forte, Mersyndol, Nurofen and Stemetil. The plaintiff said that her consumption of these medications has reduced over time.
The plaintiff ceased work in May of this year, having accepted a redundancy package which included a payout in the order of $100,000. She said that the redundancy package had been offered to a number of employees but she would not have accessed it had she not been injured. She felt that she would benefit from some time off in order to assist her recovery. She accepted that, after a period of time, she could return to the public service and she said that this was something that she would consider.
The plaintiff has also elected to receive her superannuation as a pension, providing her with $1,300 per fortnight. This income, taken with the redundancy package, was said by the defendants to be a reason for the plaintiff to be content with her current position and not interested in exercising her full capacity to work. I reject the suggestion. It misses the point that by taking the pension now the plaintiff is effectively ‘eating into’ the resources that she will depend upon to finance her future.
In addition the plaintiff said she was eager to work and was considering other employment, initially on a part-time and possibly a voluntary basis. I accept her evidence.
A matter which gave rise to considerable cross-examination was the plaintiff’s acquisition of a horse in November 2015. She saw an advertisement on Facebook which offered the horse at no cost provided its upkeep was taken over. She had a prior association with horses and her husband had been an apprentice jockey.
The plaintiff said she regarded the horse as a “therapy horse”. The horse was agisted at an equestrian centre about 30 minutes drive from the plaintiff’s home. It needed to be fed every day and groomed regularly. The plaintiff tried to do these duties herself but on occasion, they were done by her husband or her daughter. Her daughter also had a horse on the same property.
The horse’s feed was kept in a shed at the plaintiff’s home. It would need to be loaded into a bucket, placed in the car and taken to the equestrian centre. The bucket was described as being “domestic” in size. The plaintiff would usually feed both her horse and that of her daughter.
The plaintiff’s husband, a trained cabinetmaker, had constructed a wooden mount to enable the plaintiff to easily mount the horse. The plaintiff said that from time to time her husband would walk the horse with her in the saddle and sometimes she might ride it alone. She found the motion of the walking horse alleviated her back pain. She had tried to trot but this caused her discomfort. I note she was slightly contradicted by her husband who, in his evidence, said he thought she gained relief from trotting as well.
The attack on the plaintiff, in regard to the horse, centred on an allegation that the coincidence of the acquisition of the horse with her cutting her working days down to four days per week was an indication of a change of lifestyle rather than anything to do with her accident. In addition it was suggested to the plaintiff that the fact she could ride the horse indicated that she had exaggerated her symptoms.
In my view the plaintiff, as I have already observed, did not exaggerate her symptoms and I am satisfied that she reduced her working days as a reflection of the pain she was enduring in the workplace. The defendants did not produce any evidence, for example video footage, to contradict the plaintiff’s evidence of her ‘gentle’ use of the horse.
The plaintiff described her current condition as still having headaches, but now lesser in frequency and severity. Her neck still gave her a lot of pain but it had improved since the accident. Her main problem was her low back which was painful all of the time although the medication took the “edge” off the pain.
The plaintiff essentially agreed under cross-examination that with the use of medication her pain was manageable and she was able to carry out most tasks both at work and in the home. I note here that the plaintiff’s claim is not for full economic loss but for almost one day a week, acknowledging that she has retained a significant capacity to work.
I also note, and I think it important, that although it was put to the plaintiff that she had exaggerated her symptoms, it was never put to her that she had no symptoms as seems to be suggested by at least one of the defendants’ medico-legal experts. I should add here that when the defendants’ experts were cross-examined they accepted the plaintiff as having genuinely and accurately relayed her symptoms. They did not agree on the cause of the symptoms but certainly took no issue with her honesty. I agree with their assessment.
In relation to domestic activity the plaintiff said that she found tasks like vacuuming and sweeping to be difficult, and for this reason had engaged commercial cleaners since June 2014. The cleaners did the heavier work and attended fortnightly. Their current cost per visit is $80. It was put to the plaintiff that she could do all of the tasks provided she took her time. She agreed, observing it would take her “two days” to complete the vacuuming. This comment was no doubt made with a degree of hyperbole but does demonstrate the somewhat unrealistic suggestion made by the defendants in an attempt to defeat her domestic care claim. I treat the likening of putting a saddle on a horse to being the same as sweeping as another unsuccessful attempt on the defendants part to minimise the plaintiff’s difficulties in and around the house.
The plaintiff’s husband was also a patently honest witness. He conceded that when the relationship resumed that he would have contributed to the gardening and domestic duties even if the plaintiff had not been injured. He did however draw the line at vacuuming and sweeping saying these were activities he would not have taken on.
Mr Hogan estimated that he spent about one hour a week on “outside jobs”. He thought it would take about half an hour to mow both the front and the back lawns. They needed mowing at least once a week in the summer and less frequently in the winter.
Mr Hogan said he made the wooden block to enable the plaintiff to mount the horse. It was a simple job which he had completed by the time the horse returned from training.
Mr Hogan said that in his observation, the plaintiff was in pain. He noticed this through her restrictive movements, her grimaces and her complaints. He thought that medication helped. He said that she socialised less because she found it difficult to sit or walk for long periods of time.
Medical evidence
Both sides tendered a number of medical reports. The authors of the defendants’ reports were cross-examined.
I do not think it necessary to analyse or describe every report but rather to highlight those observations and opinions which have played a part in the decision making process and which deal with the issues raised by the parties.
I do not see the report of Ms Keser, a psychologist, as taking the matter a great deal further other than confirming the anxiety that the plaintiff suffers when driving, especially in traffic and in wet weather.
There are two reports from Dr Le Leu, an occupational physician. He first saw the plaintiff in February 2015. He noted that the plaintiff had a number of restrictions in the workplace and he felt that those were due to the accident. He thought the low back problems were probably an aggravation of pre-existing degenerative changes. This is similar to the view held by Dr O’Sullivan, on behalf of the defendants, but differs in that Dr Le Leu does not say that the aggravation has ceased. His diagnosis in respect of the plaintiff’s neck is similar.
Notably, and in response to one of the defendants’ submissions, Dr Le Leu thought that the plaintiff’s work restrictions are “likely to be permanent now.”
Dr Le Leu next saw the plaintiff in July 2016. There was little change to his opinion. He said that her work restrictions continued and would be “indefinite”.
The plaintiff relied on three reports from Dr Brooder, a neurologist. I think his views are best summed up in his second report where he stated:
Miss Pryce has now been subject to persistent symptoms over a period of more than three years and over that period of time although there has been some improvement in her symptoms, her symptoms have failed to resolve. Although there is some prospect of an improvement in her current symptoms following additional treatment and with the further passage of time, as she has sustained a significant injury involving her lumbar spine and also her cervical spine associated with aggravation to the underlying degenerative changes, then there is a significant risk that she will remain subject to persistent pain and an associated disability to some degree indefinitely.
Dr Brooder later envisages three years of future treatment. This opinion was relied upon by the defendants as a limiting factor in the assessment of future medical expenses. The opinion must however be read in light of the above quoted passage from Dr Brooder’s report which envisages a real possibility of indefinite problems.
The defendants made the point that the plaintiff’s medical support did not actually support an ongoing incapacity to work. I disagree. I think the plaintiff’s doctors have recognised that the plaintiff has an incapacity which, taken with the stabilisation of her condition, will continue to impact upon her capacity to work. In addition I think the defendants’ doctors ultimately conceded that if the plaintiff had left work due to her incapacity, and if that incapacity was reflected in a stabilised medical condition, then the incapacity would continue into the future.
Turning now to the defendants’ reports; Dr Stubbs, an orthopaedic surgeon, first saw the plaintiff in March 2015. He thought that the plaintiff was able to perform her normal work but unfortunately he had an incorrect history. The plaintiff had by then reduced her working days. When the correct history was put to the doctor during his oral evidence, he accepted that it would affect his opinion. I also note that in his oral evidence, like all of the other doctors who were cross-examined, Dr Stubbs said he entirely accepted the plaintiff’s complaints as genuine.
As far as work capacity is concerned, this passage of the doctor’s evidence is significant:
MR BLACK: I’ve already asked you about them and I understood your previous answer to be that you accepted that she did have these symptoms?
DR STUBBS: Yes.
MR BLACK: Assuming the accuracy of your understanding, that is that she did have these symptoms, I’m asking you do you accept that such symptoms have the capacity to interfere with the ability of a woman in her position to work as an executive public servant full-time?
DR STUBBS: They can, yes.
MR BLACK:If it’s the fact that at the time that you saw her she was working part time, that is four days per week by reason of the intrusive effects of her symptoms you would accept that as a reasonable exercise on her part?
DR STUBBS: Yes.
Dr O’Sullivan is a neurologist. He saw the plaintiff twice, the first occasion being in March 2015. His initial opinion was that the plaintiff had completely recovered over a period of between six and twelve months and that her ongoing symptoms related to degenerative changes in her spine. The immediate difficulty with this opinion is that the plaintiff did not have the symptoms before the accident and they continued unabated after the accident. The opinion that these symptoms could, effectively on one day be due to one cause and then on the next day, or next week, be due to a different cause is simply untenable.
In any event, by the time Dr O’Sullivan wrote his second report after seeing the plaintiff in October 2016, his position had changed because he noted, in relation to work restrictions, that her incapacity due to the accident continued into 2015.
Nevertheless in his oral evidence Dr O’Sullivan maintained his position, apparently based on the absence of neurological symptoms, that the plaintiff’s current condition was no longer due to the accident but rather due to degenerative changes. Once again he could not identify a ‘change over’ date, again rendering his opinion to be difficult to accept. Under cross-examination, the best the doctor could do was to say that after more than two years: “I would have thought the aggravation from that motor vehicle accident would have ceased by that time.”
Dr Home also saw the plaintiff on two occasions. He is an occupational physician. He gives considerable support to the plaintiff. In his view there is a continuing need for domestic assistance. His report is also the primary basis for the medical conclusion that this need will continue for the rest of the plaintiff’s life expectancy (page 11 of his first report).
In his second report Dr Home said:
There is an ongoing requirement for assistance. I anticipate the requirement at 2 hours per fortnight based upon the clinical presentation. There will also be a reasonable requirement for assistance with heavy gardening tasks estimated at one hour per fortnight.
Under cross-examination, perhaps reluctantly, Dr Home was prepared to extend his estimate to two hours per week, although he did make the reasonable qualification that it would be necessary to observe the extent of the plaintiff’s house and garden in order to reach a reliable estimate.
Damages
The plaintiff submitted that $90,000 was the appropriate figure for general damages. The defendants said $45,000 was the correct figure. The plaintiff has now suffered extreme pain over more than three years. The pain, in particular in her back, has been unremitting and to the extent that she is able to carry on a ‘normal’ life, this has been due to her high intake of both prescription and ‘over-the-counter’ medication.
The plaintiff’s pain is likely to continue for at least many years into the future, as will the effect on her social life, her intimate relations and her capacity to generally enjoy the type of life she was leading prior to the accident, including sporting activities. In my view the plaintiff’s submission is both conservative and appropriate.
The plaintiff is entitled to interest on past general damages. I assess interest at 2% on half of the general damages for 3.5 years, producing a figure of $3,150.
Past economic loss was agreed although the parties arrived at the agreement through slightly different methods. The agreed figure is $20,203. The plaintiff is entitled to interest on this sum, which I assess at $3,181.97 (4.5% over 3.5 years).
The difference in methods is reflected in the parties’ respective submissions on future economic loss. According to the defendants, the starting figure, if there is to be any future economic loss at all, is $67 net per week. This figure was calculated using the absences the plaintiff had from work which were supported by medical certificates. There were however more absences than those supported. The plaintiff’s figure was $183 per week, this figure being based on all the absences, other than those conceded by the plaintiff not to have been referable to the accident.
The defendants submitted that I should only apply those absences which were backed up by a medical certificate. This necessarily means that I would reject the plaintiff’s evidence concerning the reasons for the extra absences. I do however accept her evidence so that the starting figure for future economic loss is $183 per week.
The plaintiff, in fact, increased this figure to $200 per week to take into account future inflation and likely rises in income. The figure was essentially a rounding up, not supported by specific evidence. I think there is some justification for an increase from the $183, but absent a specific calculation I am not prepared to increase it to the level claimed. I will allow $190 per week.
Before calculating future economic loss on the tables it is necessary to deal with two further arguments that were advanced by the defendants. Firstly, the defendants submitted that any future economic loss that was allowed should be discounted by the plaintiff’s receipt of a redundancy payment. As this was about $100,000 it effectively cancelled out the plaintiff’s claim for future economic loss.
There is a certain logical attraction in the argument, especially on the basis that it assumes, as the plaintiff submits, that she accepted the redundancy offer only as a result of her injuries. It is clear however, that the authorities do not support the proposition. The issue is discussed in ‘Assessment of Damages for Personal Injury and Death’, (Luntz, 4th Edition at paragraph 8.4.1).
In Wall v Wall [1998] SASR 7017(SAFC 23 December 1998), The Full Court in South Australia examined the argument, and said, from paragraph 95:
[95] It is not enough, however, for a defendant to establish that a plaintiff has received a benefit which he or she would not have received but for the injuries. The defendant must also establish that the benefit received must have been received for the purpose of replacing the earning capacity lost and in circumstances where the payment can be enjoyed independently of any right of action against the tort feasor.
[96] It is the character and purpose of the particular financial benefit which must be explored.
In my view the redundancy payment in this case was a payment reflecting the acceptance of a redundancy package. It was not a payment made to compensate the plaintiff for any diminished earning capacity or to replace that capacity. Accordingly I reject the defendants argument.
The second submission made by the defendants was that if I adopted either the plaintiff’s or the defendants starting figure ($183 or $67 respectively) a further reduction should be made to reflect the possibility that the plaintiff would return to full-time work sometime in the future. The difficulty with the submission is that it is contrary to the overwhelming medical evidence. That evidence is to the effect that the plaintiff’s condition has stabilised and there is not likely to be any improvement (whatever the cause).
Returning then to the calculation of future economic loss, starting with a base figure of $190 per week on the 3% tables for 14 years, the calculation is: 598.3 x 190 = 113,677. This figure must then be reduced by the normal vicissitudes of 15%, resulting in a loss of $96,625.45.
Lost future superannuation benefits, at 11%, are $10,628.80.
The plaintiff’s claim for past medical expenses was agreed at $22,658. In respect of the future, the plaintiff asked for $50,074 made up of medication for the balance of her life totalling $35,074 and a buffer for Pilates and physiotherapy or acupuncture in the sum of $15,000. Visits to a general practitioner were also included in the buffer.
The defendant submitted that $5,000 should be allowed. On the basis that the plaintiff’s condition has stabilised there is good reason to allow the medication claim in full. However the evidence is also to the effect that the plaintiff has gradually reduced her medication since the accident and there is no reason why this will not continue. I also do not think the buffer part of the claim is entirely justified although I do think some allowance should be made. In my view a fair assessment of future medical expenses, including both medication and the assorted other parts of the claim, is $35,000.
Turning now to past domestic assistance, the plaintiff’s claim was made up of the amounts paid to the commercial cleaners ($4,630) plus two hours of gratuitous assistance per week from March 2014 to date ($9,870). The rate of $35 per hour was agreed.
The defendants submitted that the claim should not exceed $5,000. Relating to both past and future domestic assistance, the defendants submitted that I should take into account that Mr Hogan, when he returned to the home, would in any event have contributed to the maintenance of the townhouse, both indoors and outdoors. Mr Hogan essentially conceded that he would have done so, although did not accept that he would have undertaken tasks such as vacuuming or the cleaning of bathrooms.
The plaintiff submitted that I could not take into account Mr Hogan’s evidence because it was contrary to both the principles stated by the High Court in Griffiths v Kerkemeyer [1997] HCA 45; 139 CLR 161 and to s 100 of the Civil Law (Wrongs)Act2002 (ACT). The plaintiff pointed out the distinction to be made with the law in New South Wales where a specific defence to this effect was given in the Civil Liability Act 2002 (ACT) and the Motor Accidents Compensation Act1999 (NSW).
In my view the plaintiff’s position is correct. In particular s 100(2)(d) makes it clear that Mr Hogan’s intentions should not be taken into account.
The next question is the number of hours that should be allowed. There were some slight variations in the evidence but ultimately I think Mr Hogan’s evidence supports a conclusion that he did at least one hour of work per week inside the house and one hour per week outside the house. Accordingly I accept the plaintiff’s claim of $9,870.
As far as the commercial cleaner is concerned, I am satisfied that a cleaner would not have been engaged but for the accident and that the type of work done by the cleaner is work which the plaintiff was either incapable of doing or would have great difficulty in performing. It is not to the point that the work could be done at a very slow pace. My function is to decide if there is a reasonable need for the service. In my view, that test is met by the plaintiff’s evidence and the reasonableness of the need is not affected by the capacity to do the work at an extremely slow pace. Accordingly I also allow the $4,630.
The total allowed for past domestic assistance is $14,500.
Turning to future domestic assistance, the plaintiff claimed $40 a week of commercial assistance and $70 per week of gratuitous services. The claims were made for the balance of the plaintiff’s life expectancy of 37 years and total $129,140.
The defendants’ submission was an allowance of up to $10,000. The submission included reference to there ultimately being an age-related need for the services and the likelihood that the plaintiff will be able to do more of the house work as time goes by. There is an inherent inconsistency in these two points, although I do accept that now that the plaintiff is not working she may well develop, at least for a period in the future, a greater capacity to do more housework. I also think that it is a valid consideration that any need for the services will be subsumed within a need dictated by old age.
In my view an appropriate way to deal with the conflicting considerations is to allow 1.5 hours of gratuitous domestic assistance for the balance of the plaintiff’s life expectancy but to only allow the commercial cleaner for the next 30 years.
On the 3% tables the claim for gratuitous assistance is: 1.5 x 35 x 1174 = 61,635. On the same tables the claim for commercial care is 40 x 1038.1 = 41,524. The total for future domestic assistance is $103,159.
A summary of the damages I have assessed is as follows:
General damages $90,000.00 Interest on general damages $3,150.00 Past economic loss $20,203.00 Interest on past economic loss $3,181.97 Future economic loss $96,625.45 Lost superannuation benefits $10,628.80 Past medical expenses $22,658.00 Future medical expenses $35,000.00 Past domestic assistance $14,500.00 Future domestic assistance $103,159.00 Total $399,106.22
Orders
I make the following orders:
(i) Judgment for the plaintiff in the sum of $399,106.22.
(ii) The defendants are to pay the plaintiff’s costs of the proceedings.
I will hear the parties if any different costs orders are sought.
| I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim Associate: V Wei Date: 1 December 2016 |
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