Radovanovic v Brisbane City Council
[2001] QSC 264
•25 July 2001
SUPREME COURT OF QUEENSLAND
CITATION: Radovanovic v Brisbane City Council [2001] QSC 264 PARTIES: BOGDANA RADOVANOVIC
(plaintiff)
v
BRISBANE CITY COUNCIL
(defendant)FILE NO: 10722 of 1996 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 25 July 2001 DELIVERED AT: Brisbane HEARING DATES: 9 and 10 July 2001
JUDGE: Muir J ORDER: Judgment for the plaintiff in the sum of $63,521.22 together with costs to be assessed on the standard basis on the applicable District Court scale CATCHWORDS: DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES – PERSONAL INJURIES
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – WHERE ECONOMIC OR FINANCIAL LOSS – CARELESS ACTS OR OMMISSIONS – where plaintiff bus driver suffered injury when bus drove over pothole – whether defendant Council negligent in failing to repair pothole
ACI Metal Stamping and Spinning Pty Ltd v Boczulik (1964) 110 CLR 372, cited
Bankstown Foundry Pty Ltd v Braistina (1985-1986) 160 CLR 301, cited
Chapman v Hearse (1961) 106 CLR 11, cited
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, cited
McLean v Telman (1984) 155 CLR 306, cited
Mt Isa Mines v Pusey (1971) 125 CLR 383, cited
Nagle v Rottnest Island Authority (1992-93) 177 CLR 423, cited
Raimondo v State of South Australia (1979) 23 ALR 513, consideredCOUNSEL: P A Hastie for the plaintiff
M T O’Sullivan for the defendantSOLICITORS: Murphy Schmidt for the plaintiff
McInnes Wilson for the first defendant
The matters in issue
The plaintiff claims to have exacerbated a pre-existing degenerative spinal condition on 1 February 1996 when a bus being driven by her in the course of her employment by the first defendant Brisbane City Council drove over a large pot hole in a service road outside the Council’s Mount Gravatt Bus Depot. The essence of the plaintiff’s case is that the Council –
(a) was negligent in failing to repair the pot hole;
(b) was in breach of its duty under section 28 of the Workplace Health and Safety Act 1995 (“the Act”) to ensure the safety of the plaintiff whilst she was at work.
The Council denies negligence and that it breached the Act. It alleges that it took reasonable precautions and exercised proper diligence to prevent a contravention of the Act by, relevantly, implementing appropriate road maintenance systems.
The plaintiff’s pre-accident history
The plaintiff was born on 11 January 1954 in Yugoslavia and was educated there to the equivalent of grade 6. She migrated to Australia with her parents in August 1974. After working for a seafood supplier and as an assistant cook, she commenced work as a bus driver with the Council at the beginning of 1980.
In about 1979, Dr Wilson, orthopaedic surgeon, performed a laminectomy and level 2 dissectomy on the plaintiff in order to alleviate leg pain from which she suffered at the time. That operation appears to have achieved its aim.
The plaintiff worked for the next 16 years as a bus driver. I infer that her employment record was good and that she took little if any time off through sickness or injury before 1996. Her evidence that she was generally happy to take overtime work whenever it was offered was unchallenged.
In a statement to the Workers’ Compensation Board of Queensland dated 20 December 1994, the plaintiff referred to the operation performed by Dr Wilson, stating that it was “to release pressure on my spine”, and that she did not have any further trouble with her back after the operation. She reported that she jarred her back and hip when she drove into a pot hole and noted that although physiotherapy provided temporary relief, since the accident she experienced pain in her back and hip when working. She reported further that: prolonged sitting made her back and hip more painful; four or five months ago her right leg was going numb and she was starting to get pins and needles down the back of her right leg, which latter condition was getting slowly worse; and that a medical practitioner had given her an epidural injection with a view to alleviating her pain. A Workers’ Compensation Board employer’s report discloses that the accident referred to in the above report happened on 30 December 1993. There is no reason to suppose that the 1994 and 1996 statements to the Workers’ Compensation Board are not substantially accurate.
In another statement given to the Workers’ Compensation Board dated 19 February 1996, the plaintiff, after referring to the December 1993 incident, said that –
“As I continued working my back pain slowly got worse. In 1994 I jarred my back whilst driving a bus which aggravated my back and I had further medical expenses. At one state whilst at work I developed numbness in both of my legs … as I have continued my back continued to get worse. I developed pins and needles in my left leg. I cannot recall when this started.”
The 1 February 1996 incident
The speed limit on the access road was 40 kph and, according to the plaintiff, the speed a bus could travel in the vicinity of the pot hole was limited by the existence of a curve. Her evidence was that on 1 February 1996 she was travelling at a speed no greater than 40 kph when she approached the pot hole.
She was aware of its existence and the need to take evasive action which she normally did by going out on to the other side of the road, or moving to the edge of the road. She was reluctant to follow the latter course, however, because of the existence of a sunken grid over a storm water drain at the edge of the road in the vicinity of the pot hole. She said that she was unable to veer onto the wrong side of the road because a large vehicle was travelling in the opposite direction. Immediately on arrival at the depot, she reported the incident to the Depot Officer, Garry Birch, and a union representative, Rocco Ambrogio, was contacted.
Referring to the circumstances of the accident on 1 February 1996, she reported –
“When I hit the pot hole I lost grip of the steering wheel and was jolted. I immediately got pain down the middle of my neck, my back and hip were also a lot more painful. I went into the depot. I reported the incident to Barry Burch.”
The plaintiff was driven home from work and visited that day by her general practitioner, Dr Novic. She did not return to work but received worker’s compensation benefits and then sick pay until her employment was terminated in May 1997.
The plaintiff was prescribed pain killers by Dr Novic who arranged for her to be x‑rayed and seen by an orthopaedic surgeon. The plaintiff says that she experienced a great deal of pain and was unable to attend to every day house work or the maintenance of her yard. She says that the pain increases if she sits or lies for any length of time in the one position. She also states that she was obliged to exchange her manually geared car for an automatic one with power steering in order to reduce the pain of driving. Since the incident in 1996, she says that her pain has prevented her from regarding any work as viable.
I accept that the plaintiff’s account of the incident is generally accurate.
The access road and pot hole
The access road is a private road constructed in about 1992 to provide access to the Australian Taxation Office, the Council Mount Gravatt Bus Depot and the Garden City Shopping Centre. Each of the Australian Taxation Office, the Council and the AMP Society are grantees of rights to use the road. The part of the road in which the pot hole was located was owned by the Council and it was accepted by Mr O’Sullivan, who appeared for the Council, that the Council had the obligation to maintain at least that section of roadway.
The hole was in the south bound lane, almost directly opposite an entry to the car park for the bus depot. The entrance to the bus depot was further down the access road in the direction of Logan Road.
On 13 February 1996 Council pavement engineers, Schramm and Carton submitted a report on the access road to the director of the Council’s Management Services in which the following conclusions were expressed and the following recommendations made -
“7.0 CONCLUSIONS FROM EVALUATION
The existing AC surfacing is approximately 4 years old and has failed in numerous locations. Failures in the pavement were originally reported during construction of the road and ATO, prior to the opening of the bus depot. The early failures in 1992 would indicate a construction and/or moisture problem.
The existing pavement was considered marginal for the original design volume. The road (particularly between the roundabouts) is now experiencing twice the number of buses than it was originally designed for.
Despite now carrying twice the daily number of buses, the pavement has failed at less than half of the original predicted design life, which indicates a reason other than traffic loading.
No action appears to have been taken following earlier concerns regarding the qualify of the pavement construction and its long term adequacy.
Failures are due to a weak pavement and weakened subgrade combined with the effects of natural moisture ingress. The quality of the CBR 11 layer is variable and appears to be the major cause of the failures.
The existing pavement is inadequate for the traffic volume it is experiencing and requires subsoil drainage.
The current condition of the access road does not meet rehabilitation requirements, however the isolated areas of failure require repair. In order to serve the future design traffic the section between roundabouts requires a 60 mm (maximum AC structural overlay. From the ATO roundabout to Logan Road the payment strength is adequate and does not presently require a structural overlay. …
10.0RECOMMENDATIONS
1.Carry out Immediate Repairs as per Section 8. Locations of new side and mitre drains, and areas to be repaired are shown on plan SK1. Connect patches to gully pits; or new side and mitre drains.
2.Commission the Asset Manager (Maintenance Branch) to monitor the condition of the road.
3.Prior to any long term work being carried out, Geotechnical Services should be contacted to reassess the condition of the road and confirm the recommendations made in this report.”
The areas recommended for immediate repair included an area containing the pot hole. Messrs Schramm and Carton had been requested to investigate the condition of the access road in December 1995 in order to determine the cause of the failures in the road surface and to make recommendations concerning repair. Mr Schramm’s first inspection took place in December 1995 when he observed numerous failures, differing in nature and extent, in the surface along the length of the road. Markings on the road depicted on a photograph in evidence enabled Mr Schramm to determine that the photograph had been taken at a time after the road had been marked between mid December and early January for the purposes of the digging of bore holes. Test bore holes were dug on 12 January 1996.
Mr Schramm calculated the size of the hole, essentially by reference to the photograph, as approximately 2 metres in length, about a metre wide and at least 40 to 50 mm in depth. The estimate of depth did not take into account the hump at one extremity of the hole caused by the forcing out of it of cold mix asphalt used to effect temporary repairs. He said that patching in this way was a normal method for the temporary repair of small pot holes. The subject pot hole could hardly be regarded as small. He did not recall seeing a sharp drop at the side of the hole and described its configuration at its edges as “more of a crescent”.
The plaintiff was somewhat hazy about the size of the pot hole, contenting herself with the observation that “it’s a lot longer than a metre for sure”. She said that it had been filled in from time to time but that the wheels of heavy vehicles, particularly buses, soon pushed out the fill creating a small mound on one extremity of the depression.
Mr Ambrogio took a photograph of the pot hole after another bus driver had reported an incident involving it. He was unable to remember whether that was before or after the incident concerning the plaintiff, but the evidence of Mr Schramm strongly suggests that the plaintiff’s incident was the later of the two. He described the pot hole, which was not measured by him, as two and a half to three metres long, about one and a half to two metres wide and about 10 inches deep. He said that on 1 February 1996 the pot hole was certainly rather worse than depicted in the photograph.
Mr Ambrogio said that the pot hole had been the subject of discussion in works consultative committee meetings. That committee consists of representatives of Council employees, including drivers, the depot manager, and an inspector. He said that there had also been discussion of the pot hole at team coordinator’s meetings which were also attended by representatives of management, drivers and other employees. The minutes of meetings of these bodies contained no reference to the pot hole at any relevant times. Mr Ambrogio’s evidence, however, that the pot hole was fixed from time to time but soon deteriorated was not contradicted. It was also common ground that complaints were made by the union representative, and perhaps others, to management about the pot hole prior to attempts to remedy the problem. There was also no suggestion made to Mr Ambrogio that there was any inaccuracy in his evidence to the effect that some complaints were made by him to Mr Knight, a Council manager, about the hole.
Relevant principles of law
The Council was under a duty to take all reasonable precautions against injury to the plaintiff in the course of her employment.[1] As Kitto J noted in ACI Metal Stamping and Spinning Pty Ltd v Boczulik,[2] the concept of “course of employment” is not a narrow one and extends “beyond the period of work to every situation in which the master sustains the character of master towards the servant”. Such a situation may exist as the employee travels “to or from his place of work in a manner provided for by an express or implied term of the contract of employment”.[3]
[1]ACI Metal Stamping and Spinning Pty Ltd v Boczulik (1964) 110 CLR 372 at 378-9. See also Hamilton v NuRoof (WA) Pty Ltd (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J.
[2](1964) 110 CLR 372 at 378-9.
[3]ACI Metal Stamping and Spinning Pty Ltd v Boczulik (1964) 110 CLR 372 at 379. See also at 383 per Windeyer J.
In the performance of the duty to take such reasonable care, the Council was obliged to ensure “that all reasonable steps were taken to provide a reasonably safe system of working”.[4] In Raimondo v State of South Australia,[5] Mason J, with whose reasons Barwick CJ and Gibbs J agreed, said –
“In the first place, the employer will not be liable unless it appears that he has failed to take measures, or adopt means, which were reasonably open to him and which would have eliminated or significantly reduced the element of danger (Neill v NSW Fresh Food and Ice Pty Ltd [1963] ALR 258; 108 CLR 362 at 369; Vozza v Tooth & Co Ltd [1965] ALR 196; 112 CLR 316 at 319). And it has been held that (a) the degree of risk of an accident occurring; (b) the degree of injury likely to result from such an accident, and (c) the nature and extent of the remedial action suggested to be taken are all elements to be considered in deciding whether the employer is in breach of a duty to take reasonable care (Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 552 at 579: [1956] 1 All ER 385; Foufoulas v Strang Pty Ltd [1970] 123 CLR 168 at 172).”
[4]Raimondo v State of South Australia (1979) 23 ALR 513 at 517 per Mason J.
[5]At 513.
In order to establish liability for damages for the particular injury suffered by the plaintiff, it is sufficient that the class of injury as distinct from the particular injury ought to be foreseen as a possible consequence of the defendant’s conduct.[6]
[6]Mt Isa Mines v Pusey (1971) 125 CLR 383 at 390 and Chapman v Hearse (1961) 106 CLR 112 at 120-121.
What is a reasonable standard of care for an employee’s safety is “not a low one”.[7]
[7]Bankstown Foundry Pty Ltd v Braistina (1985-1986) 160 CLR 301 at 308.
Conclusions on liability
The surface of the service road had shown signs of obvious deterioration for many months prior to February 1996. The pot hole had come into existence some months prior to February 1996 and had been filled on at least two occasions in the manner described by Mr Schramm. That this method of repair was a temporary expedient only was apparent from the hole’s rapid re-appearance after repairs. I infer from these considerations and from Mr Schramm’s evidence that the Council was aware of that. I accept the evidence of Mr Ambrogio that, as a union representative, he had received complaints from bus drivers about the pot hole and had raised these from time to time with persons in relevant managerial positions with the Council. He was told on at least one such occasion that there were difficulties because of doubts as to the ownership of the roadway. Prior to the incident involving the plaintiff, another Council driver had an accident involving the pot hole. On that occasion Mr Ambrogio photographed it, presumably with a view to taking the matter up with Council officers.
Mr Ambrogio’s evidence was that at the time of the plaintiff’s incident, the pot hole was “a lot deeper” than depicted in the photograph. The pot hole would tend to increase in size and depth with the passage of time after its last repair. There is thus no reason to conclude that the photograph is an accurate depiction of the state of the pot hole at the time of the plaintiff’s incident. Although I doubt that Mr Ambrogio had a particularly accurate recollection of the dimensions of the hole, I accept his evidence that it was appreciably worse at the time of the plaintiff’s incident than depicted in the photograph. It is impossible though to say exactly how much worse.
The foregoing discussion shows that the Council had been aware for some months prior to February 1996 of the existence of the pot hole on the access road, and that the pot hole was causing concern to its bus drivers. In my view, the Council was also aware, or ought reasonably to have been aware that if the pot hole was not fixed properly there was a significant risk of injury to a bus driver, either through attempting to avoid it, or as a result of running into it inadvertently or because the presence of other vehicles made evasive action difficult or impossible.
The plaintiff was more susceptible to injury from jarring or wrenching than most bus drivers because of her degenerative spinal condition. It was reasonably foreseeable to the Council though that some bus drivers would have had varying degrees of spinal degeneration. There was evidence to the effect that bus driving is an occupation which is recognised for its potential to aggravate and accelerate the development of spinal degeneration. Apart from that, having regard to the size and depth of the pot hole, it was reasonably foreseeable that a driver enjoying robust good health might, on driving a bus into the pot hole or in attempting to avoid it, be thrown about and suffer an injury which was more than trivial.
The evidence does not suggest that there was any particular difficulty in fixing the pot hole permanently, once the cause of the road failure in that area was identified. The Council had had ample time within which to conduct those investigations prior to the time at which the Mr Schramm and Mr Carton were finally requested to undertake their research as a result of a “series of complaints” by bus drivers. Even then there appears to have been no particular focus on the pot hole, no co-ordination between messrs Schramm and Carton on the one hand and council officers responsible for temporary repairs or consideration of ways of obviating or managing risks to bus drivers resulting from the state of the road. Without going to much trouble or expense, the Council could have ensured either that effective temporary repairs were kept up or that the speed limit in the area of the pot hole was reduced to 10 or 15 kilometres per hours. Either of those measures would have been a reasonable response to the risk posed by the pot hole. To take no such action was unreasonable.
Most bus drivers, of course, would have been well aware of the existence of the pot hole as was the plaintiff, but that awareness, although reducing the risk of harm, could not obviate it entirely. A person who owes a duty of care to others must take account of the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety.[8] Also, an employer’s duty to take reasonable care to avoid injury to employees must take into account the possible risk of injury as a result of the “employee’s inadvertence, inattention or misjudgment in performing his allotted task.”[9] The manner in which the plaintiff’s accident occurred, which has been described earlier, was itself reasonably foreseeable. For the above reasons, I conclude that the Council was in breach of its duty of care to the plaintiff.
[8]Nagle v Rottnest Island Authority (1992) 177 CLR 423 at 431.
[9]McLean v Tedman (1984) 155 CLR 306 at 312.
The plaintiff placed reliance also on sections 28 and 30 of the Work Place Health and Safety Act 1995. Section 28(1) creates an obligation on employers to ensure the work place health and safety of “workers at work”. The definition of “work place” is sufficiently broad to include the subject the access road in the circumstances under consideration. Having regard to the above conclusions, it is unnecessary to make any findings about breach of the Act but there seems to be little doubt that the Act was breached in the circumstances outlined above.
The medical evidence
Dr Gillett, orthopaedic surgeon, in a report dated 3 October 1996, expressed the opinion that prior to the 1 February 1996 accident the plaintiff had pre-existing degeneration in the cervical spine which was accelerated and aggravated by the accident. He commented –
“Sitting occupations, particularly driving vibratory machine (sic) is prone to develop increasing symptoms related to the lumbar spine.
As to the degree of acceleration, his opinion was –
“I believe the events of 30.12.93 and 1.2.96 have aggravated her degenerative process to the point where, had she not had the events of 30.12.93 and 1.2.96, she is likely to have got to the point where she would have had to cease work regardless.
If the event of 30.12.93 had not occurred, I think within a period of some 4 to 6 years from that date she would have reached a point where she would have had to seek lighter employment. Gradual onset of symptoms would be more likely rather than a sudden onset of symptoms and she may have been able to modify her work practices to enable her to continue working. ... If she had not had the events of 1.2.96 then she would have reached this point, I believe, where she would have had to cease work within a period of a year or so of that date.”
In his oral evidence, after being referred to the plaintiff’s statement to WorkCover of 19 February 1996 and to a report of a general practitioner, Dr Novic, Dr Gillett expressed the view that the time by which the plaintiff, in the normal course of events, would have been obliged to cease work could well have been more towards the bottom of the estimate given by him in his 3 October 1996 report than the top.
He accepted also that his opinion was of the nature of an estimate and had no particular scientific basis. When asked about the occupations to which the plaintiff may be suited, he responded –
“… Ideally she would be suitable for a light sedentary occupation with ability to change posture on a frequent basis, not being involved in repetitive lifting or heavy lifting, probably at best being part-time or ability to work at her own pace.”
Dr Gillett accepted also that had the onset of the plaintiff’s symptoms continued to be more gradual, she could have taken some measures to adjust such as eliminating overtime work, avoiding physical activities and having more rest so as to prolong her working life.
Dr Boys, orthopaedic surgeon, in a report of 2 October 1998, expressed the opinion that the plaintiff suffered a “disability referable to advanced osteoarthritic degenerative changes of the spine”. He concluded that the incidents in December 1993 and February 1996 gave rise to some “mild permanent aggravation of this condition”, but that the plaintiff would probably have “experienced symptoms associated with the natural progression of her degenerative spinal condition” which would have terminated her ability to work as a bus driver within two to four years of 1996.
Dr Boys, after considering the plaintiff’s statements dated 20 December 1994 and 19 February 1996, concluded that the plaintiff’s symptoms prior to the 1996 incident were of more significance than he had believed them to be at the time of his report. On the basis of the further information, he concluded that without the 1996 incident, the plaintiff would probably have lost her capacity to work as a bus driver within two years of February 1996.
Dr Boys said that spondylosis is a descriptive term meaning degeneration or narrowing in a disc, is quite common in the community. He said that if a person is known to have spondylosis and an X-ray has been performed because of symptoms relating to it “that would imply a symptomatic degenerative condition of the back” and that an employer should have been aware that potential existed for back problems in the course of her employment. He also considered that the plaintiff would have required some assistance with housekeeping and looking after her yard “for a month to six weeks after the incident”. He categorised her injury on 1 February 1996 as a “minor permanent aggravation”. Like Dr Gillett, he accepted that the time at which a person in the position of the plaintiff would cease doing work which exacerbated the symptoms of her degenerative condition would depend on the person’s stoicism. It appears that the plaintiff’s stoicism was something that the doctor had taken into account, to some extent at least, in expressing his opinion. He thought that the work-related incidents in 1994 and 1996 may well have been the straw that broke the camel’s back.
The defendant called Dr Blenkin, another orthopaedic surgeon. He had first seen the plaintiff on 19 February 1996 at the request of Dr Novic when he prescribed an elasticised lumbar corset and noted –
“She expressed to me today her view that she really could not continue with her current job. This may well be the case.”
He saw the plaintiff again at the request of the Workers’ Compensation Board, to which he reported on 3 July 1996 stating –
“She describes some discomfort in the cervical spine but this is not bothering her very much.
With regard to your specific question regarding the cervical spondylosis, I would consider that the work aggravation component of this condition has disappeared and she is now left with a constitutional component only. … She moved quickly and smoothly from my consulting room and her level of discomfort did not seem that high. I believe she has reached a static and stationary phase … I do not believe she will ever return to work as a bus driver.”
In another report of 5 March 1996, he said that he had asked the plaintiff “how she attributed her employment to her condition?” and that the plaintiff responded “… that there had been no specific injury but she attributed her symptoms to constant twisting and bumping in the bus”.
Some reliance was sought to be placed on this passage by Mr O’Sullivan but I do regard this evidence as being of great moment, even if Dr Blenkin’s report is accurate. All it is likely to indicate is that the plaintiff, when speaking to him, had in mind the lengthy period of discomfort she had suffered through work and omitted to mention the incident on 1 February 1996. Unlike Dr Boys and Dr Gillett, Dr Blenkin was of the view that any injury the plaintiff may have sustained when her bus hit a pot hole in January 1996 would have caused only a minor transient aggravation of soft tissue. He expressed the opinion also that if the plaintiff had not developed back pain to the degree that she did in February 1996, she may have been able to continue driving until retirement age.
Dr Novic, a general practitioner who had treated the plaintiff for some years prior to 1996, observed in a report to the Workers’ Compensation Board of 23 February 1996 –
“She has been a BCC bus driver for 16 years with numerous unreported occasions of jarring and strain of her spine. … X-ray reveals marked spondylosis of both the cervical and lumbosacral spine, with osteophytes and disc space narrowing. Her prognosis is very poor. She should be considered for assessment for permanent disability.
Conclusions on quantum
I accept the evidence of Drs Gillett and Boys that had the 1996 incident not occurred the probabilities are that the plaintiff would have continued working as a bus driver for some time after February 1996, before being obliged by the symptoms of her spinal condition to give up her work. It is, of course, impossible to make any precise determination on a scientific basis of a matter such as this, involving, as it does, amongst other things, an assessment of the plaintiff’s character, fortitude and capacity to withstand pain and discomfort. The revised opinion of Dr Boys was that she would have ceased work, in any event, within two years of February 1996. Dr Gillett’s revised opinion was cessation at the lower end of the range of four to six years from 30 December 1993 (or one to three years from February 1996).
In my view, without a precipitating event such as the 1996 accident, the plaintiff would have continued work after February 1996 for a significant period. She enjoyed her work, lived alone and had no other substantial interests to occupy her time in the event of retirement. She does not appear to have considered a change of occupation. As her pain increased, I consider it likely, as Dr Gillett intimated, that she would have taken some compensatory measures rather than give up work entirely. In that regard, the probability is that she would have restricted her off work physical activities, taken more rest, resorted more to medication and eliminated overtime work. On that basis, I find that she probably would have continued working until 30 June 1998. In making this determination, I have had regard to the possibility that, within such period, she may have suffered some incidents, less dramatic than the February 1996 one, which increased her pain and conversely eroded her determination to continue working.
I have preferred the evidence of Dr Gillett and Dr Boys to that of Dr Blenkin. Although Dr Blenkin was initially the plaintiff’s treating specialist, his earlier opinions were not formed by reference to the February 1996 incident and its effects. I consider that this has caused him to take something of a different approach to that taken by the other two medical practitioners, whose evidence I found more persuasive.
I was provided with a schedule which sets out the plaintiff’s total gross income in 1994 and 1995, the gross income of another bus driver, Mr Naylor in those years and also for 1996, 1997 and 1998. The schedule also contained the gross income of another driver in 1998. The purpose of the schedule was to show the extent to which a bus driver’s income would tend to be inflated by overtime. My conclusion in relation to overtime is that the plaintiff would have started avoiding overtime by 30 June 1997.
I allow her claim for travelling expenses of $36.00.
The plaintiff claimed the cost of paying a person to mow her yard over a four year period between 1997 and 2001. I am not satisfied that the plaintiff incurred any such outlays except on a sporadic basis. I allow $300 which is the cost of 12 mowing services.
I also find the plaintiff’s Griffiths v Kerkemeyer claim overstated. She claimed, inter alia, $2,940 for domestic tasks performed by her brother and sister-in-law between February 1996 and November 1997, and $2,640 for such work by friends between November 1997 and April 2001. I accept that some assistance of the type claimed was rendered by relatives and friends but am not persuaded that it exceeded two hours per week for a 12 month period and one hour per week over the following period of 12 months.
I assess the plaintiff’s damages as follows –
Pain and suffering and loss of amenities $15,000.00
Interest on $12,000 of the sum of
$15,000 (at 2% pa x 5.5 years) $1,320.00
Past economic loss
· February 1996-June 1996 $13,000.00
· 1997 $35,000.00
· Ordinary hours 1998 (say) $30,000.00
Total $78,000.00
Less income received $44,945.34
$33,054.66
Interest on past econonic loss:
· economic loss $33,054.66
less weekly benefits $21,250.00
$11,804.66
· $11,804.66 x 5% pa x 5.5 years $3,246.28
Loss of past superannuation (14% of $33,054.66) $4,627.65
Interest on past superannuation
· $4,627.65 x 5% pa x 3 years $694.15
· $4,627.65 + $695
= $5,321.65 x 10% x 2.5 years $1,330.41
$2,024.56
Out-of-pocket expenses:
· WCB expenses $918.22
· medical $111.35
· lawn mowing $300.00
· travelling $36.00
· pharmaceutical (for say 2.5 yrs) $640.00
$2,005.57
Care:
· 2 hours per week for 52 weeks
(1996/1997) x $10.00 per hour $1,040.00
· 52 hours in 1997/1998 x $10.00 per hour $520.00
$1,560.00
Interest on care
· $1,560.00 x 5% pa x 3 years $234.00
· $1,560.00 + $234
= $1,794.00 x 10% x 2.5 years $448.50
$682.50
There will be judgment for the plaintiff in the sum of $63,521.22 together with costs to be assessed on the standard basis on the applicable District Court scale.
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