Ramm v Fletcher
[1995] QSC 212
•25 August 1995
IN THE SUPREME COURT
OF QUEENSLAND
No. 1185 of 1991
Brisbane
Before the Hon Justice G N Williams
[Ramm v. Fletcher & Ors]
BETWEEN:
SVANTJE RAMM
Plaintiff
AND:
MARK RAYMOND FLETCHER
First Defendant
AND:
GRAEME BOBCAT AND TRUCK HIRE (a firm)
Second Defendant
AND:
ALLAN MARK LOCHRAN
Third Defendant
AND:
SUNGOLD PLASTER BOARD SUPPLIES PTY LTD
and SUNGOLD PLASTER BOARD SUPPLIES (a firm)Fourth Defendants
AND:
FREDERICKSON TRANSPORT (a firm)
and FREDERICKSEN'S TRANSPORT (a firm)
Fifth Defendants
AND:
SUNCORP INSURANCE AND FINANCE
Defendant by Election
JUDGMENT - G N WILLIAMS J
Judgment delivered on 25/08/1995
CATCHWORDS: DAMAGES - personal injury - head injury - headaches - loss 30-35 right eye field of vision - minor cosmetic - orthopaedic injuries - single woman 23 when injured - university educated but not working when injured - total award $239,723.93
Counsel:W A Martin for plaintiff
Griffin QC for defendant by election
Solicitors:Walsh Halligan Douglas for plaintiff
Bradley & Co for the defendant by election
Hearing dates: 30, 31 May and 1 June 1995
IN THE SUPREME COURT
OF QUEENSLAND
No. 1185 of 1991
BETWEEN:
SVANTJE RAMM
Plaintiff
AND:
MARK RAYMOND FLETCHER
First Defendant
AND:
GRAEME BOBCAT AND TRUCK HIRE (a firm)
Second Defendant
AND:
ALLAN MARK LOCHRAN
Third Defendant
AND:
SUNGOLD PLASTER BOARD SUPPLIES PTY LTD
and SUNGOLD PLASTER BOARD SUPPLIES (a firm)Fourth Defendants
AND:
FREDERICKSON TRANSPORT (a firm)
and FREDERICKSEN'S TRANSPORT (a firm)
Fifth Defendants
AND:
SUNCORP INSURANCE AND FINANCE
Defendant by Election
JUDGMENT - G N WILLIAMS J
Judgment delivered on 25/08/1995
The plaintiff, who was born on 16 May 1967, received serious personal injuries in a motor vehicle accident which occurred on 5 March 1990. The defendant by election has now admitted liability and it is only necessary for me to assess quantum.
However, the circumstances of the accident have some relevance to the assessment of damages and it is necessary to say something briefly about what happened.
The plaintiff was driving a Suzuki Sierra soft top (depicted in ex. 23) south along the Bruce Highway near Burpengary. At about 9.00am a collision occurred on the north bound section of the highway (which was divided at that point) between a semi‑trailer and a truck; after that impact the truck travelled across the area dividing the north bound lanes from the south bound lanes and crashed into the plaintiff's vehicle causing the damages depicted in the photographs thereof. Other vehicles were also involved. The plaintiff was trapped in her vehicle for some time. In the overall incident two other people were killed.
She was conveyed by ambulance to the Redcliffe Hospital where she remained until 7 March 1990 when she was transferred to the Holy Spirit Hospital. The report from the Redcliffe Hospital states that on admission it was noted she had a closed head injury, a fracture of the middle cranial fossa involving the sphenoid and ethmoid sinuses with concomitant rhinorrhoea, fractures of the right superior and inferior pubic rami and of the right ilium, plus multiple abrasions and lacerations. It was also noted on admission she had a Glascow Coma Scale of 12 and a visual field defect.
At the Holy Spirit Hospital she came under the care of Dr Atkinson, a neurosurgeon. In his first report he listed the injuries the plaintiff suffered to be as follows:
Shock;
A moderately severe closed head injury;
Unpleasant lacerations and abrasions to her right forehead and scalp;
Embedded glass in her forehead and in her right hand;
Multiple fractures of the anterior cranial fossa of the skull;
A cerebrospinal fluid leak;
Diabetes insipidus;
viii)An injury to the right optic nerve with a right inferior temporal field defect;
Diplopia;
A fracture of the pelvis passing into the right acetabulum.
In Dr Atkinson's opinion she made a slow recovery until her discharge on 20 March 1990. He noted that her recovery was complicated by insomnia, nightmares, headaches, poor concentration and an impairment of short term memory. She was placed on a drug regime because of the "headaches and symptom complex that appeared to be consistent with migraine".
When seen by Dr Atkinson on 4 July 1990, the plaintiff was continuing to complain of a feeling of light headedness and weakness, her mood was still depressed, and her vision remained blurred. In his report of 8 August 1990, Dr Atkinson commented:
"There were some hypochondriacal features and an excessive amount of introspection. There was some blunting of her short term memory. There was probably some change in her personality."
In that report he went on to express the following opinions:
The plaintiff suffered physiological shock in the accident but he would not expect any further complications resulting therefrom.
She suffered multiple unpleasant abrasions to the right forehead and supra-orbital region which are quite disfiguring.
It is unlikely that she will have any further complications from the fractures of the skull.
She suffered cerebral oedema and probable contusions in the accident and her behaviour since had been a little inappropriate, introspective and her moods had been depressed. She was more dependent than he expected. In consequence he recommended that she should delay resuming university studies until 1991.
She is at an increased risk from epilepsy in the order of 3 percent.
She has developed headaches consistent with migraine.
She suffered a right optic nerve injury in the accident which will result in a permanent deficit.
It is unlikely she will have further complications from the cerebrospinal fluid leak. She had developed diabetes insipidus as a result of damage to the posterior pituitary and its connections to the hypothalamus.
A laceration to the right hand.
She suffered fractures of the pelvis but by that time was walking comfortably and independently.
The initial injuries caused considerable pain.
Her intellectual function will improve predominantly over the next six months.
She may require plastic and reconstructive surgery to the right forehead area.
The injuries would not shorten her life expectation.
Dr Atkinson saw her on a number of occasions between July 1990 and 27 May 1992. Generally his review of her during that period is summarised in the various reports which constitute ex. 45. He noted after her return from Turkey in October 1990 that she looked "immeasurably better" but was still "depressed and sad and confused about the meaning of life and she has had some suicidal thoughts. She feels understandably angry. I think she will need some counselling on this". He expected that reaction to "fade away". In a report in December 1990 he noted that "her sexual interest has changed significantly since the injury". After receiving a psychological report from Mr I T Smith, Dr Atkinson concluded in December 1990 that the plaintiff would return to study in the first half of 1991. Then he reported in January 1991 that as she was still having significant post-concussional symptoms she should avoid stress and not undertake university studies during 1991; he considered that her condition would gradually improve. In his last report of May 1992 he noted she continued to experience headaches with concentration, reading and with working hours. He concluded that there was nothing he could really do about the headaches.
Dr Atkinson gave oral evidence at the trial but as he had not seen her since 1992 he was unable to comment in detail on her present condition. He made it clear that he did not consider that her headaches would be permanent. In his view they were not the result of a brain injury; he thought it possible that some pain areas had been irritated around the base of the skull. He thought that as a result of Dr Edward's testing (to which I will refer later) there was a possibility that the pain was supra‑orbital neuralgia and it was possible that it could continue. But in his view if that was the cause of the headaches they would not be very severe and the plaintiff should be able to cope readily with them. He went on to say:"She had some hypochondria elements which can turn up in severe head injuries at times and don't necessary have an organic basis, but it's a reaction to the injuries in the patient. So she impressed me as not having a great resilience of a personal amount, not a lot of balance and she was a rather introspective girl and she didn't have much family support because her parents were living in Turkey. . . . Some of it I think was organically based, some was an environment isolation problem."
Dr Atkinson also expressed the view that she was competent to go back to university; her problem is motivation.
Before considering the other medical evidence I will deal with the evidence from the plaintiff herself. Her parents were German but her father, who was a civil engineer, worked in various parts of the world. She came to Australia with her parents and younger sister in 1976, but prior to the date of the accident her parents had moved to Turkey where her father was then working. She was being substantially maintained by her parents who provided a unit in Brisbane in which she resided. After completing secondary studies in Brisbane she obtained a Bachelor of Economics from the University of Queensland. Her Tertiary Entrance score obtained in 1985 was 910. Having completed her degree in Economics she had undertaken, in 1990, the year of the accident, courses for a Diploma of Education at the University of Queensland and a Commerce Degree at Griffith University. While studying at the University she had also completed a June Daly-Watkins modelling course, and did modelling for pocket money. She said she was not interested in modelling as a career. She also did part-time work of a waitressing nature.
Many of the injuries sustained in the accident have healed without any long term consequences. For example, the fractures to her pelvic area have healed, and by 1991 she was able to play tennis again. According to the plaintiff in the witness box, she does get some hip soreness after walking any distance or playing tennis, but the pain is by no means disabling.
She complains of the scarring to her forehead being a cosmetic disability but it was difficult to notice any significant blemish whilst she was in the witness box. I had the opportunity of looking at her forehead close up, albeit at a time she was wearing make-up, and I must say that I did not regard the residual scarring as a major disfigurement. Certainly her forehead looked bad during the months immediately after the accident and one gets the impression that the plaintiff is still dwelling heavily on that. I observed some very mild deformity to her right hand.
She still complains of regular severe headaches; she said in evidence that she has had a headache every day since the accident. She cannot remember a time when she did not have a headache. According to her evidence these are relieved by taking analgesics such as Paradex, Digesics and Panadeine Forte, but they do not result in her being free of a headache for any period of time. I will deal with the medical evidence relating thereto subsequently, but it should be recorded that the plaintiff said in evidence that she was not prepared to have her supra-orbital nerve cut unless there was a 100 percent guarantee that her headaches would go; she said she had come to that conclusion because the price to be paid was the loss of feeling in part of her face.
The plaintiff gave evidence that she still suffers from depression and says she has had suicidal thoughts. She also complains of short term memory problems, and an inability to concentrate as she could before the accident. She says that in particular she gets numbers jumbled around, and in consequence she claims her skill in mathematics is not the same as it was.
She does have a loss of vision in her right eye and I will deal with that subsequently. She complained that it affected her artistic drawing ability because it affected her perception of depth.
There is evidence that she still drives a motor vehicle though she claims to have had some loss of confidence in so doing.
She also claims that her periods are now painful and asserts that she has lost her libido; she claims to be not interested in sex. That is to be contrasted with what she herself said of her pre‑accident lifestyle:"I used to think life wasn't worth living if you didn't have sex."
Her evidence is that both before and after the accident she did not regard herself as a "marriage type"; she regarded marriage as out-dated. She said that both before and after the accident she did not want to have children, and if she did then she would hire a nanny so that her lifestyle would not be affected thereby. Prior to the accident she had a regular, close sexual relationship with the witness Hogg, and that has continued though both claim that their sexual activity is not to the same extent as before the accident. According to each of them, marriage was not a topic which was discussed either before or after the accident.
The plaintiff gave evidence that having obtained her Bachelor of Economics she wanted to obtain a degree in Commerce so that she could become admitted as a Chartered Accountant and then set up her own company which would carry on the business of advising other companies as to the most efficient way of running their business. Much evidence was led as to the availability of positions as a chartered accountant, but in the circumstances that evidence, in my view, is not all that critical. The fact of the matter is that the plaintiff had not settled into a permanent income earning occupation prior to the accident and there is no certainty that she would have, but for the accident, earned income for the rest of her potential working life as a chartered accountant. Like much of the plaintiff's evidence her account of her future intentions immediately before the accident was divorced from reality.
I am by no means satisfied on the whole of the evidence that she was such a whiz with mathematics as she sought to make out. Her secondary school and university results do not clearly establish that. The fact that she was doing a Diploma of Education in the year of the accident hardly fits with her stated ambition to be a self-employed chartered accountant.
It is a fact that because she was unable to study for a year or so after the accident she discontinued her commerce course at Griffith University. That was effectively a pre-requisite for her becoming a chartered accountant.
But what is, in my view, of much greater significance is that the plaintiff has undertaken a number of courses since the accident and has not failed any examination for which she sat. She has passed computer courses, and associated courses in Desktop Publishing. She undertook a course at Morningside in Visual Art and Design, and obtained the Certificate. She also undertook a course in computer graphics and has obtained certificates in both Desktop Publishing and Computer Graphics. She is most of the way through a Diploma in Commercial Art, which is a correspondence course; she has not failed any subject as yet. She has also partially completed a Diploma course in Practice Management. Again she has not failed any test for which she sat.
The fact that she has been able to pass such a variety of courses indicates that she has considerable earning capacity in a variety of fields. The problem seems to be that she has been unable to settle on any one particular area of interest as her chosen occupation. I am by no means satisfied that that is a consequence of the injuries she sustained in the accident. She has had a number of trips to Turkey to visit her parents and on at least one occasion worked there for a period. Her whole lifestyle, and disrupted family life, is impacting on her capacity to settle into remunerative employment. Whilst, for reasons which will appear later, there has probably been some diminution in her pre‑accident earning potential as a result of the injuries she sustained, that diminution is not, in my view, great.
Dr Ryan, an orthopaedic surgeon, examined the plaintiff while she was still in the Holy Spirit Hospital. He first reported on her orthopaedic injuries on 20 September 1990. By then he considered she had "minimal symptoms from her orthopaedic injuries". She had returned to playing tennis and he noted no symptoms in the hip despite that strenuous activity. There was a complaint of pain in the hip region after squash. There was full range of hip movement. Dr Ryan concluded she had increased risk of some premature degenerative change in the hip region and taking that into account he assessed disability at 15 percent loss of efficient use of the right lower limb. He considered there was no permanent disability in relation to her right hand.
He next examined the plaintiff on 27 October 1993 and on that occasion recorded symptoms of pain in the right hip after strenuous activity such as playing tennis. Examination established a full range of pain free movement. X-rays indicated some asymmetry of the pelvis but the doctor could not establish the origins thereof. Because of the possibility of some degenerative change in the hip joint, he again estimated disability at 15 percent.
Perhaps the most pertinent observations that can be made with respect to the orthopaedic injuries are that Dr Ryan has not seen the plaintiff since 1993, and she has not sought any medical treatment for any orthopaedic condition since her discharge from hospital.
Dr Keeping dealt with her pelvic injury from the obstetric point of view. He considered that the few bladder infections she has experienced since the accident would be attributable to it. He also was prepared to conclude that her dysmenorrhoea was attributable to the accident; he thought it was likely to continue on a long term basis. He expressed the opinion, which was not challenged, that the fracture of the pelvis did not create any physical problem so far as intercourse was concerned. He concluded that her alleged loss of interest in sex was not due to any physical injury.
He expressed the view that she may have a lot more discomfort that the average person during pregnancy because of the previous pelvic fracture. He considered there was no major distortion in the shape of the pelvis as would clearly prevent normal delivery; but he thought that it was somewhat more likely that she would have a caesarean section than was previously the case. That, of course, must be given effect to in the light of her strongly stated aversion to having children.
Dr Robinson, a plastic surgeon, examined her on 20 September 1990 with specific reference to her forehead. The doctor's examination revealed that almost the whole of the hairless part of the right forehead from the medial end of the eyebrow was covered with multiple small, red, irregular scars consistent with the appearance of multiple lacerations from glass injury. He also noted small pink scars on the right hand and forearm consistent with healed abrasions. There was an irregular, slightly pale area on the outer side of the right arm and a similar area on the side of the left knee, consistent again with healed abrasions. He expressed the opinion that the scars present "a moderate long term cosmetic disability which will improve over the next one to two years". He did not consider that revisional surgery was likely or recommended. It was his view that there would be some long term moderate cosmetic disability. Again it is not without significance to note that the plaintiff has not seen a plastic surgeon with respect to any cosmetic defect since September 1990.
One significant consequence of the head injury is that the plaintiff has a right third nerve palsy, and an injury to the right optic nerve causing decreased visual field. This was dealt with by Dr Harrison, an eye specialist. Attached to his report (ex. 6) is a diagram indicating the loss of visual field. The third nerve palsy caused double vision but over a period of time it recovered to such an extent that in his opinion she was "almost fully cured". He said that there was "a very slight residual ptosis (drooping of lid) which I do not believe is noticeable without careful inspection". The visual field loss will not recover any further with time. In the doctor's opinion the plaintiff has lost 30-35 percent efficiency of one eye. In the course of his oral evidence, he commented on the occasional double vision of which the plaintiff complains; in his view the cause of that is the muscles becoming tired or stressed and in consequence not properly focussing each eye.
The visual defect does not appear to have hampered the plaintiff in the various courses she has undertaken since the accident, nor to any significant extent in her art and design work.
Because she was diagnosed in the Holy Spirit Hospital as having diabetes insipidus, Dr Bartley, an endocrinologist, was called in to examine her. He gave a report dated 11 February 1991, and indicated in oral evidence that he had not seen the plaintiff for over four years. He concluded from various tests which were performed that she had a partial form of diabetes insipidus. He said in 1991 that it could be expected that such a condition would gradually improve or at worst be treatable with a tablet. He was still of the view that the plaintiff's condition may further remit. Again it must be recorded that the plaintiff has not sought any treatment over four years for this condition and in the circumstances it is not of major significance.
Dr James, a psychiatrist, examined her in May 1991 and March 1993. One of the complaints to which he directed his attention in the first report was that the plaintiff suffered panic anxiety attacks from time to time. He considered they could be due to the after effects of the head injury or could be related to psychological stress caused by the accident and the resultant disruption of her career and social adjustment. He recommended that she undertake a course to learn relaxation techniques. In his latter report he concluded that she had sustained a loss of self-confidence which may become a permanent feature of her personality. That was not an organic personality change, and he considered that she could well benefit from a course of psychotherapy to assist her to adapt to her residual on‑going disabilities.
Given the horrendous circumstances of the accident it is not surprising that the plaintiff suffered some psychological stress.
Since seeing Dr James the plaintiff has received therapy from Dr Rice who, amongst other things, specialises in psychiatry and pain management. In his first report of 22 November 1994, he stated that he had diagnosed the plaintiff as suffering post traumatic stress disorder and physiocogenic pain disorder. He had been treating her, in his view successfully, for those conditions for some time. Some details of the therapy are set out in his report. It is desirable that I set out portions of the report which are of significance for present purposes:"Progress:
This has been excellent with her becoming headache free (or at worst able to manage her headache), able to travel to visit her family in Turkey and able to retrain and regain employment, with her employer being prepared to take her back when she does return from her current trip.
Prognosis:
Pre‑settlement:
It is likely to lead to recurrence of her anxiety and headaches if she has to go over the history again for any medico/legal purpose.
Post Settlement:
This can be considered to be good in terms of her work prospects in her new career and in pain control. Some ongoing therapy may be required to help her improve how she copes in relationships. ...
Summary:
... she developed the post traumatic stress disorder and headaches of psychogenic aetiology. Both these syndromes have responded well to therapy, and it can be anticipated that she will continue to progress well, with a better prognosis once the stressor of unfinished litigation is removed and she is not exposed to repeated retelling of the history. Social condoning of her rehabilitation would be evidenced by settlement of her litigation and would reinforce her behaviour and improve her prognosis."
Dr Rice's next report, 21 April 1995, relates primarily to a consultation after the plaintiff had returned from her travels through Turkey, Canada and the United States. On that occasion she said that "her headaches were always present". The doctor noted that another factor that made her headaches worse was that she was worried because she had no current work. He again noted that ongoing use of the treatment strategies had helped her to cope with her pain. Again it is desirable to set out some passages from this report:-
"Opinion:
Her headaches are significantly influenced by life's uncertainties especially factors such as no work which she recognises that she worries about. A major factor in her inability to be certain where her life is going is the presence of unfinished litigation, and this needs to be removed from her list of uncertainties if she is to optimise her rehabilitation.
Previous Report:
During her time away Miss Ramm wrote to me from Turkey saying she had received copy of my report to you with concerns regarding my comments under 'progress'. She commented in her letter that she was having trouble with headaches ...
In her case we need you (scil. her solicitor) as part of her 'treatment team' to finalise her litigation so that this factor which gives rise to significant uncertainty and therefore worry can be removed such that she is able to focus on what she can do and get on with the rest of her life.
...
By way of clarification, this does not mean that she does not mean that she does not have headaches, but that there may be periods when she is headache free as was obtained when she was in regular therapy before her recent trip. She often has recurrence of headaches when she is in a situation that was stressful for her. As is proven to be the case she has been able to use the techniques that she has learnt to assist her managing the pain, although she has had to supplement this with pharmacological therapies as well."
In general I accept the evidence of and the opinions expressed by Dr Rice and his overall assessment of the plaintiff's condition, especially her headaches.
Further in relation to the headaches it is necessary to refer briefly to three neurologists, each of whom gave evidence on that topic. Dr Edwards concluded that she had suffered a severe head injury and he noted that she had total loss of smell in the right nostril and altered sensation in the right forehead. He carried out a procedure involving the injection of a drug into the right supra-orbital nerve on four occasions which resulted in temporary loss of the pain the plaintiff usually described as her headache. The pain recurred after a period of up to three days; thus the treatment was not successful in the long term. He did express the view that an operation to sever that nerve may result in substantially reducing the frequency and severity of headaches, but it would be at the price of numbing part of the plaintiff's face. There was no certainty that such treatment would be successful.
Dr Todman concluded that her headaches were tension-vascular in type with some elements of post traumatic migraine as well as muscle tension headaches. He concluded that they had been resistant to standard treatments and in consequence he said it was difficult to give a prognosis; he suspected that they would remain a long term problem and perhaps be a permanent feature. In his oral evidence he expressed the opinion that the whole headache syndrome could not be attributable to an injury to the supra-orbital nerve. In his view the fact that the injections administered by Dr Edwards had only very short lived benefit indicated that that nerve was only a minor part, and not the dominant factor in the syndrome.
Dr Cameron reported that the headaches "predominantly suggest muscular contraction discomfort related to anxiety following the event." He believed that the headaches could be improved with appropriate treatment and should settle with time. In his view if her anxiety and depressive symptoms were controlled she would be able to complete studies in accounting and progress to qualification as a chartered accountant. In his oral evidence, he accepted that post traumatic stress syndrome could be a factor leading to apparently inconsistent results in psychological testing. In all the circumstances I accept Dr Cameron's views expressed in his oral evidence on the relevance and significance of the testing with anaesthetic injections carried out by Dr Edwards. I also accept the opinion of Dr Cameron that there is an emotional or psychogenic basis to the plaintiff's headaches. In general I accept the comments of Dr Cameron on the significance of the psychological testing carried out by Weston and Wiltshire.
Finally with respect to the plaintiff's injuries it should be noted that she had a damaged upper left central incisor which had to be reconstructed with a crown costing $756. There may well be some future expenses incurred relating to that particular tooth.
The legal representatives of the parties were able to agree upon special damages totalling $27,775.88. It was further agreed that interest at the rate 6% from 5 March 1990 should be allowed on $21,389.91 of the total for special damages. It was also accepted that the plaintiff was entitled to recover the sum of $5,738.05 being a rehabilitation refund.
That left in issue two amounts claimed for special damages. The first was the amount of $2,459.94 being increased telephone expenses allegedly incurred by the plaintiff in consequence of the accident. Exhibit 48 were documents said to evidence that increased expenditure. In her evidence in support of the claim the plaintiff referred specifically to an alleged increased frequency of calls to Turkey immediately after and during the course of her recuperation. Particularly given her cross‑examination on this point I am not satisfied that ex. 48 establishes any recoverable claim. Certainly there are a number of calls to Turkey recorded, but the probability is that she would have in any event made a number of calls to Turkey to keep in contact with her parents. Many of the calls are to other places around the world and interstate. There is nothing to establish to my satisfaction that such calls were necessitated by her physical or mental condition after the accident. In the circumstances I reject the claim.
The other disputed claim is for physiotherapy services rendered by Hogg; ex. 47 is his bundle of accounts totalling $7,180.10. Hogg is a qualified physiotherapist who normally practises at Noosa. He was the plaintiff's regular boyfriend prior to the accident, and I have already adverted to his evidence that their pre‑accident relationship involved daily sexual intercourse when they were together. The relationship has continued to be a close one since the accident. Indeed for a period post accident (from 9 June to 11 December 1992) the plaintiff was employed as a receptionist in his practice.
The claim is for physiotherapy treatment given either at the plaintiff's home or at the Noosa centre on numerous occasions between 8 March 1990 and 28 April 1995; for lengthy periods the treatment was on a daily basis. During the period the plaintiff was employed as a receptionist treatment was given on a reasonably regular basis. A number of the doctors have referred to the physiotherapy treatment as relaxing the plaintiff's muscles which were causing, at least in part, her headaches. To that extent the physiotherapy treatment was reasonable and necessary. But on the balance of probability, and having regard to the whole of the evidence, I am satisfied that the treatment was far more regular and far more extensive than was necessary; if there had not been the close emotional relationship between the two, the plaintiff would not have had such treatment to the extent claimed. I am not satisfied that the totality of the treatment referred to in ex. 47 was necessary in the light of the plaintiff's condition.
Having arrived at that conclusion it is difficult to determine with any accuracy what should be allowed as constituting reasonable treatment in the circumstances. Doing the best I can on the evidence I allow approximately one half of the amount claimed. I allow $3,600.
That means that the total for special damages is the sum of $31,375.88. I assess interest in the amount $7,060.
Given the findings I have made, it follows that the plaintiff has made a reasonably good recovery from serious injuries. She has little or no physical disabilities as a result of the accident; the most serious is the visual field defect. Her headaches are largely the product of anxiety and stress, and with the resolution of this litigation her recovery and treatment will be expedited. I am not satisfied that, as her counsel submitted, her life has been wrecked and that she will continue to lead a "tragic life". The young woman I saw in the witness box is far removed from a person so described.
In all the circumstances I award $45,000 for pain and suffering and loss of amenities. I allow interest on part thereof for the period from the date of the accident to date of judgment and allow $2,750.
As I have already indicated special damages come to $31,375.88, with interest in the sum of $7,060.
I also allow the rehabilitation refund in the sum of $5,738.05.
Past economic loss is difficult to assess. As previously indicated the plaintiff was not in regular full time employment as at the date of the accident. The probability is that but for the accident she would have continued full time studies in 1990 completing her Diploma of Education and the first year of her Commerce course at Griffith University. On the balance of probability but for the accident she would have been a full time student throughout 1991 and 1992. She would have made some part‑time earnings during that period but that can be offset against her actual earnings in the period from the date of accident to date of judgement. It follows that her pre-trial economic loss would be limited to a period of 2 to 2½ years. Given all of the evidence as to her earning capacity in a number of occupations it is reasonable to conclude that in her first 2 to 2½ years in full time employment she would have received a net income of approximately $60,000. I will therefore assess past economic loss in the sum of $60,000, I allow $1,800 interest with respect to that component of the award.
Future economic loss is equally difficult to assess. In the light of the findings of fact already made it follows that the plaintiff's earning capacity has not been totally destroyed. It was submitted on her behalf that she would only ever be a "humble part time worker" but I am not satisfied on the evidence that such is the case. The major factor preventing the plaintiff from earning at the present time is lack of motivation, and that is not entirely due to the consequences of the accident. The plaintiff has a number of skills which can be put to income earning use. She has an Economics degree, qualifications in graphic art and significant computer skills. There are clearly a number of job opportunities available to her and with further therapy, particularly from Dr Rice, I have no doubt that she will in the near future find satisfying employment. Within a further short space of time the probability is that she will be earning relatively close to her pre‑accident earning capacity. As already stated, I am by no means satisfied on the evidence that she would have earned income as a chartered accountant practicing in her own right. Doing the best that I can on the evidence, I assess her future economic loss as being of the order of $100 per week over 20 years, after making all due allowances for the normal discounting factors. I allow $70,000 for future economic loss.
A claim was also made for the cost of future medical treatment. There will be for perhaps a couple of years ongoing therapy with Dr Rice, there may be the need to see a general practitioner from time to time particularly for analgesics, and it is not unreasonable to allow for some future physiotherapy to relieve muscle tension. It is not possible to calculate the cost of those items with any degree of precision. In the first 12 months the cost may well be a few thousand dollars but it will diminish over a period of a few years to virtually zero. In the circumstances I can assess the cost of future treatment, including pharmaceuticals, as being $10,000.
Finally I must deal with the claim for an award under the Griffiths v. Kerkemeyer principle to the date of trial. The claim, supported by ex. 37, is for 2,042 hours at $8 per hour. I have come to the conclusion that the claim as made is not supported by the evidence.
I have already referred to Hogg's claim for physiotherapy treatment, but it is significant in my view that in ex. 37 there is regular reference to Hogg being entitled under this heading to something for providing "massage". There has been no attempt to differentiate between the physiotherapy treatment formally claimed and partially allowed, and his physiotherapy type services referred to in ex. 37.
Further, if one takes, for example, the period May-June 1990 and adds up all the time allegedly spent by various people in ex. 37 in providing assistance to the plaintiff, one arrives at 9 hours per day. Such a total figure is clearly not justified on the evidence.
Further, the mere statement of items such as "memory" and "companionship" and "helping with depression" are not helpful in determining whether or not time so spent should be allowed in the application of this principle.
Further I cannot see that the father's attending the accident site and wreckers to inspect and take photos is something which is claimable under this principle.
I have mentioned but a few of the items in ex. 37 which cause me concern and which have the consequence of not enabling me to allow the full number of hours claimed.
Given the nature of the injuries sustained by the plaintiff in the accident it is clear that she did require, and did in fact receive, assistance from her family which would entitle her to an award in the application of the Griffiths v. Kerkemeyer principle. It is again impossible to make a strictly arithmetical calculation of the amount to which the plaintiff is entitled. Doing the best I can on the evidence, I allow 750 hours at $8 per hour, making a total of $6,000.
My assessment can therefore be summarised as follows:Pain and suffering and loss of amenities $45,000.00
Interest thereon $2,750.00
Past economic loss $60,000.00
Interest thereon $1,800.00
Future economic loss $70,000.00
Special damages $31,375.88
Interest thereon $7,060.00
Refund of rehabilitation expenses $5,738.05
Past Griffiths v. Kerkemeyer $6,000
Future treatment $10,000
TOTAL $239,723.93
There will therefore be judgment for the plaintiff against the defendant by election for $239,723.93.
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