Re Hansen v Welsh & FAI - [1999] QSC 111

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No. 1092 of 1996
Before the Hon. Mr Justice Mackenzie
[Re Hansen v Welsh & FAI]
BETWEEN:

JANICE HANSEN
Plaintiff

AND:

SHELLY JANE WELSH &
FAI GENERAL INSURANCE CO LTD

First Defendants

AND:

THE NOMINAL DEFENDANT
Second Defendant
JUDGMENT - MACKENZIE J.

Judgment delivered 26 May 1999
CATCHWORDS: DAMAGES - Quantum - motor vehicle accident - pain and suffering - past and future economic loss.

Counsel: Mr W.D. Campbell for the plaintiff
Mr S.C. Williams QC for the first and second defendants

Solicitors: Murphy Schmidt for the plaintiff
Gadens Lawyers for the first and second defendants

Date of hearing: 5 May 1999
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No. 1092 of 1996
Before the Hon. Mr Justice Mackenzie
[re: Hansen v Welsh & FAI]
BETWEEN:

JANICE HANSEN
Plaintiff

AND:

SHELLY JANE WELSH &
FAI GENERAL INSURANCE CO LTD

First Defendants

AND:

THE NOMINAL DEFENDANT
Second Defendant
JUDGMENT - MACKENZIE J.
Judgment delivered 26 May 1999

In this matter quantum only is in issue. The plaintiff is now 59 years of age. At the time of the accident on 30 November 1994 she was 54. She is single. She suffered very severe orthopaedic injuries in the collision caused by a vehicle crossing the median strip of the Pacific Highway near Nerang and colliding with her vehicle. The driver of the other vehicle was killed. The plaintiff's two passengers passed away, one on the way to hospital and the other some weeks later from the consequences of the collision.
The plaintiff's injuries involved severe fractures of all limbs. She spent almost 2 years in hospital undergoing treatment and rehabilitation. At the time of the collision she was an ordained member of the Salvation Army with the rank of Major, working in the Mt Gravatt Parish. She intended to work until 2 April 2002, but was retired on 1 October 1996 because of her injuries.
Given the severe nature of her injuries the extent of her recovery is remarkable. She has borne her very severe injuries with great fortitude. She has maintained an extremely positive attitude to her plight. She has demonstrated a determination to make herself as self-sufficient as her residual disability will allow. She will undergo, as advised, further surgical procedures which will improve her mobility and endurance, both of which are very limited at present. She expects to undergo surgery to her left foot and then her right foot to alleviate accident related deformities which cause her pain. Her right ankle will probably be fused to alleviate pain caused by arthritis which will probably develop, since there are already signs, within 2 years. There is a possibility which Dr Nielsen put at 50 per cent that she will need one knee replaced and a possibility of about the same extent that she will need a similar procedure in respect of the other knee, within 5 to 10 years. In September 1998 she had a hip replacement with the probability that when that reaches the end of its expected 15 year life a further replacement will be necessary.
It was common ground that her statistical life expectancy at present is 25 years. There is a 30 per cent possibility that she may need surgery to her left shoulder to repair damage to the rotator cuff muscles over the next 5 years. I am satisfied that she is a person who would undergo surgery in these respects if advised that it would improve her condition.
Many heads of damages were not substantially in dispute. What follows is principally concerned with those which are disputed.
Pain and Suffering
Mr Campbell submitted that a sum of $150,000 should be allowed for past and future pain and suffering and loss of amenities with 50 per cent being treated as past pain and suffering. Mr Williams submitted that a sum of $100,000 was appropriate with 35 per cent being treated as past. Prior to the accident the plaintiff was an active person devoted to her calling as a Salvation Army Officer. She had served in various capacities including as a Minister of a Parish and as an Officer in caring institutions administered by the Salvation Army. She has lost some years of the fulfilment that she would have otherwise gained from her vocation because of the accident, although fellow Salvation Army members have maintained contact with her throughout her convalescence and afterwards and given her comfort and support on a continuing basis. (She currently lives in a Salvation Army Retirement Village).
She has recently been asked to chair a weekly ladies committee meeting in the Redcliffe Parish from which she derives some fulfilment. She has retained a remarkably positive attitude to life notwithstanding her considerable difficulties.
The reality is that she spent almost 2 years in hospital recovering from her injuries and undergoing rehabilitation. She still suffers pain, lacks mobility and becomes exhausted easily by the effort of walking and standing. Although she has recently acquired a motor vehicle she has lost much of her independence because her ability to take advantage of its use depends on being able to park very close to where she is going. The operations which she will almost certainly undergo are expected to relieve pain and improve her functioning and strength. However, that is relative and I am satisfied that, while she may experience some relief from pain, they will not markedly improve her mobility and in any event such improvement is contingent upon the operations achieving all that is expected of them.
Mr Campbell accepted that it was difficult to find a like case for the purpose of determining the appropriate award for pain and suffering. He submitted that some assistance might be obtained from paraplegic cases where young paraplegic men were often awarded sums of the order contended for by him.
Mr Williams submitted that given the age of the plaintiff and the more severe consequences of paraplegia the comparison was inappropriate. Notwithstanding the severe nature of the injuries suffered, I am satisfied that the amount proposed by Mr Williams is appropriate. I propose to allow $100,000 for pain and suffering with half of that sum being for past pain and suffering. On that basis interest will be $4,500.
Special Damages
Special damages were agreed in the sum of $34,014.59 comprising medical and related expenses of $31,525.33, travelling expenses (paid by the plaintiff) $1,985.40 and pharmaceutical expenses (paid by the plaintiff) $503.86. The only area of contention on the schedules handed to me was interest. Mr Campbell claimed interest at 6 per cent on the items paid by the plaintiff for 4.5 years. Mr Williams contended for the same rate of interest over a period of 2.5 years. In principle there should be some reduction of interest to allow for the progressive payment of sums by the plaintiff. I propose to allow a rounded off figure of $400 for interest.
Past Economic Loss
The amount of past economic loss is in dispute only in respect of the amount which should be taken into account as actual earnings during the period. It is not clear to me how the figure of actual earnings of $13,733.46 used in Mr Campbell's schedule is derived from the documents in evidence before me. The plaintiff gave evidence that she had been paid by the Salvation Army from the date of the accident until the date of her retirement. The basis of Mr Williams' calculation in his schedule is that she was so paid. Mr Campbell's claim is for $29,708.94. This figure includes no discount for contingencies. In my view there should be a modest allowance for this. Mr Williams' schedule concedes $24,111 which represents the number of weeks multiplied by $188 per week reduced by 5 per cent for contingencies. The onus is on the plaintiff to establish the higher figure. In the absence of a clear basis for the higher figure I propose to allow the lower sum of $24,111. No interest on this amount is due since D.S.S. benefits of $24,791.95 were paid in the relevant period. Past additional rent resulting from her need to move into accommodation for which there was a charge rather than occupying free accommodation is agreed at $4,374.79 with interest of $656.22.
Future Economic Loss
Future economic loss is in dispute only to the extent of whether an allowance should be made for contingencies. In view of the relatively short future working life of the plaintiff at the time of the accident a deduction of 5 per cent is appropriate giving a rounded figure of $25,300. Loss of future accommodation benefits is not disputed at $4,839.84.
Past Care
So far as past care (and future care) are concerned this is a case where the claims are a large component of the claim and to an extent problematical because of the nature of some of the items claimed. The plaintiff's needs as a result of the accident are to be compensated for at commercial rates. The schedule of past care tendered on behalf of the plaintiff claims $59,328.73 which after discounting was claimed at $50,000. I have perused the schedule with some care. I have come to the conclusion that I should make allowance for occasions where I am not satisfied that the "service" provided is sufficiently established as being a need caused by the accident. I accept that some level of comforting may have been necessary but have discounted in some instances amounts claimed on the basis that some visits, appear to involve a social component as well as a needs based purpose, which is difficult to bring within the applicable principle. I accept that a person is entitled not to become housebound as a result of injuries. However, there are some occasions where people have invited the plaintiff to their home as a house guest, including the occasion of an overseas trip, the motivation for which was to thank the plaintiff for services rendered at a time before the accident in her capacity as a Salvation Army Officer. I have excluded the claim in those instances. I have allowed $25,000 for past care with interest of $2,250.
Future Care
With respect to future care, Mr Williams conceded that seven hours per week domestic help was reasonable. However, in my view this underestimates the effect of the evidence as to the plaintiff's needs. She currently employs a woman for three hours per week cleaning and ironing. She said that she needs extra assistance for the washing and for preparation of the evening meal, both of which she finds difficult to do with her disabilities. I have taken into account the evidence of Dr Nielsen as to the purpose and hoped for result of the operations the plaintiff is likely to have. I have also taken into account the evidence of the occupational therapist, Ms Stephenson, which is based on the prospect of continuing deterioration in the plaintiff's condition. I am satisfied that if the operations have their expected results they may alleviate to some extent the plaintiff's symptoms. However, she will still be at a very significant disadvantage in attending to day to day tasks and in particular she will not be able to cope adequately with the kinds of tasks claimed for.
There may be a relative improvement or a plateauing in her condition for a period but I am of the view that at present she is entitled to allowance for 11 hours of domestic tasks per week exclusive of shopping, with an allowance to be made for the prospect that she will need further hours in the future. Certainly, her need will be greater while recuperating from her operations. It is difficult to quantify how much and when this kind of further assistance will be necessary, given the state of the evidence. However, I propose to allow $120,000 for these aspects of future care based on $12.86 per hour on the 5 per cent tables over 25 years and discounting by 10 per cent for contingencies. I have not overlooked the fact she currently employs the worker at $10 per hour. The calculation must necessarily involve some give and take, and I am not convinced that the lower than commercial rate will persist for any length of time after the conclusion of the proceedings.
The plaintiff has found that there is a service available whereby a person will do the heavy shopping for her for a fee. I accept that this is a reasonable service since her residual injuries make it a difficult and exhausting job to shop for herself. $7.50 per week is the current rate. I will allow $5,100 for provision of this service on the basis of the 5 per cent tables over 25 years, discounted by 10 per cent for contingencies.
The most controversial area of future expenses is a component of about $30,000 for future cost of taxis. The plaintiff has purchased a motor vehicle and at the time of trial was attempting to develop her confidence to use it as a means of getting about. Mr Williams' case was essentially that this precluded her from claiming anything in respect of taxis. However, I am satisfied that there will be some occasions when, with her physical disabilities, it will be practically impossible for her to use the motor vehicle. I am satisfied that there will be occasions where, but for the accident, she would have travelled by motor vehicle but now cannot do so because the physical limitations on her mobility will prevent her from parking some distance from the venue and finishing the journey on foot.
With respect to the claims made in the schedule which is an exhibit the first difficulty is that the need for some of the journeys is not made out by the evidence. For example, the monthly visit to Toombul Shopping Town has apparently ceased. With respect to visits to Chermside Shopping Centre, the evidence is that she goes there by choice because she can visit MBF to recoup her medical expenses about once a month. The attraction of Toombul and Chermside was that at them, along with a closer shopping centre, Kippa-Ring, scooters enabling disabled people to get about with greater mobility were available for hire. It is also not clear the plaintiff pays the full cost of the journeys claimed since she is able to take advantage of Transport Department vouchers available to disabled persons to recoup at least part of the cost.
Further, I am also of the view that now that she is beginning to make use of her own motor vehicle she will not expend as much in taxi journeys to her friends' home preparatory to attending worship at the Brisbane City Temple with them. The probability is that she will generally use her motor vehicle to travel from Woody Point to their home at Robertson. The onus is on the plaintiff to establish the claim. I am satisfied that she is entitled to some compensation for the fact that she will sometimes have to use taxis to attend events which she would have attended if her mobility had not been severely impaired by the accident and medical appointments. Mr Williams conceded that there should be an allowance for future transport for medical and dental treatment. I propose to allow the sum of $20 per week for all claims for future transport by taxi which using the 5 per cent tables for 25 years and discounting by 10 per cent provides a rounded off figure of $13,600.
Future Health Expenses
With respect to the future there are a number of specific health related items including future medical and dental expenses, aids and equipment, pharmaceuticals, podiatry and hydrotherapy. Podiatry is agreed at $4,227.70. The only contentious items with respect to future operations are the timing of the surgery on the right foot and the ankle and the degree of likelihood of the replacement of the plaintiff's right knee. With respect to the right knee replacement the evidence of Dr Nielsen is that the likelihood of surgery for the right knee was "not dissimilar" to the 50 per cent likelihood for the left side. I therefore decline to accept Mr Williams' submission that a smaller degree of likelihood should be ascribed to it.
In respect of both the left knee and the right knee $6,940 will be allowed. With respect to the left foot, which will be operated on almost immediately, I allow $5,000. With respect to her right foot and ankle, Dr Nielsen said that pain "may lead to her having surgery in the near distant future". He appears to have accepted that that period may be of the order of 2 years, making a figure of $13,605 the appropriate award. With regard to the hip $12,025 is allowed, and with respect to the shoulder, $705. The total amount for future surgery is $45,215.
With respect to future visits to general practitioners and a physician, Mr Campbell made no allowance for discounting and Mr Williams proposed 20 per cent. In my view there should be some slight discount and I propose to allow 10 per cent in each case. The sum for future GP visits is $3,330 and for the physician $2,345. With respect to hydrotherapy the evidence establishes that the plaintiff hopes to use the public hydrotherapy facility at a local swimming pool at least three days a week at a cost of $5 per entry. There is evidence that in the warmer months she uses the pool of a neighbour on occasions. The amount claimed is based on use for the whole year, I propose to allow $8,500 under this heading to allow for a component of gratuitous use of the private pool during the warmer months of the year for at least part of the future.
Future dental work arising from the accident is allowed at $1,550. I am satisfied that she has ongoing dental problems associated with the effects of medication taken to relieve pain and do not accept that all necessary work has already been done.
So far as adaptive equipment is concerned I allow $28,802. With respect to future pharmaceutical expenses I propose to allow the amount claimed. As Mr Williams pointed out there is a claim for Normison which the plaintiff does not take any more. However, when she came out of hospital she substituted Tryptanol for it to assist her with sleeping since she found it difficult. Recently, on the advice of her orthodontist she has ceased using Tryptanol but because of her sleep problem intends to explore a substitute. I am satisfied she will probably have expenses of a similar order to the claim for Normison and will allow the amount claimed. The evidence is broadly consistent with use of the pain killing drugs claimed in the schedule. The amount allowed will therefore be $7,500, as claimed.
Motor Vehicle Expenses
There are claims in respect of the costs of purchasing a motor vehicle at an earlier time than the plaintiff would otherwise have done. Just before Christmas 1998, she purchased a Magna for $31,000. The choice of a Magna was governed by what was suitable for a person with her disabilities. As part of her vocation with the Salvation Army, she was provided with a vehicle. She had anticipated that she would be provided with a new vehicle about 2 years before her projected retirement date. The Salvation Army had a policy of leasing vehicles and disposing of them after they had been leased for 2 years or had travelled 40,000 kilometres. A practice that a retiring officer was allowed to purchase the vehicle he or she was then using was in existence at the time. The plaintiff intended to exercise that option. She would have acquired a Corolla sized vehicle about 2 years old by this process.
In principle her loss is the extra money expended in purchasing a more expensive vehicle and the cost of the accelerated purchase. The value of private use was also lost. That is allowed at $1,260. She would gain an asset which would have a trade-in value at the time another vehicle was purchased. This would be off-set against the additional cost of replacing a vehicle over and above what the plaintiff would, by that time, have had to spend personally to acquire a vehicle. Mr Campbell worked on the basis that the second vehicle would be purchased in 8.5 years time and Mr Williams in 10 years time. I allow $3,250 for the cost of accelerated purchase using similar methodology to Mr Williams. There is no evidence of the additional cost of purchasing a Magna compared with a Corolla sized vehicle. If the $20,000 proposed by Mr Campbell is intended to refer only to that, it is plainly excessive. In the circumstances, I can only estimate a likely difference in cost. I adopt $8,000. When the vehicle is replaced it is probable that the plaintiff will of necessity purchase a larger vehicle than she would otherwise have purchased. Mr Williams raised the issue of the plaintiff being able to convert the present vehicle into cash and submitted for that reason that compensation should be modest. In my estimation, having observed the witness, she would be unlikely to do so unless she feels that she cannot cope with driving. If that is so it will be as a consequence of the accident. If she were to dispose of the vehicle and thereby appeared to have been over-compensated in that respect it would be off-set by additional costs she would necessarily incur in using public forms of transport which except in one respect, have not been compensated for. Discounted to present value the difference in the purchase prices which, in the absence of the evidence I assume to be similar in 8.5 years time, will be a rounded off figure of $5,300.

In summary, damages are as follows:
Pain and Suffering  $100,000.00
Interest  4,500.00
Special damages  34,014.59
Interest  400.00
Past economic loss  24,111.00
Interest  Nil
Past loss of Free Accommodation  4,374.79
Interest  656.22
Future economic loss  25,300.00
Future loss of Free Accommodation  4,839.84
Past Care  25,000.00
Interest  2,250.00
Future Domestic Help  120,000.00
Future Shopping Help  5,100.00
Future Transport  13,600.00
Future Medical Expenses  5,675.00
Future Surgery  45,215.00
Future Podiatry  4,227.70
Future Hydrotherapy  8,500.00
Future Dental Expenses  1,550.00
Future Pharmaceuticals  7,500.00
Adaptive Equipment  28,802.00
Motor Vehicle Expenses  17,810.00
Total             $483,426.14
An advance of $200,000 has already been made to the plaintiff. The plaintiff's judgment will therefore be for $283,426.14 with costs including any reserved costs, to be taxed.