Reardon v Chandler
[1995] QSC 197
•18 August 1995
IN THE SUPREME COURT
OF QUEENSLAND
Writ No. 1 of 1993
Brisbane
[Reardon v. Chandler & Ors]
BETWEEN
VICKI MAREE REARDON
Plaintiff
AND
BABETTE CHANDLER
First Defendant
AND
THE MINISTER OF EDUCATION OF QUEENSLAND
Second Defendant
AND
THE ROYAL NATIONAL AGRICULTURAL INDUSTRIAL
ASSOCIATION OF QUEENSLAND
Third Defendant
JUDGMENT - MOYNIHAN SJA
Judgment Delivered: 18/08/95
Catchwords: TORT - personal injury - quantum only - female plaintiff: injuries sustained at 15 years of age - plaintiff had ambition of becoming a female jockey - quantification of needs consequent - quantification of future economic loss
Counsel: R.A.I. Myers for the Plaintiff
W.A. Martin for the Defendant
Solicitors: Crouch & Lyndon for the Plaintiff
Tutt & Quinlan for the Defendant
Hearing Date: 15/06/95
IN THE SUPREME COURT
OF QUEENSLAND
Writ No. 1 of 1993
[Reardon v. Chandler & Ors]
BETWEEN
VICKI MAREE REARDON
Plaintiff
AND
BABETTE CHANDLER
First Defendant
AND
THE MINISTER OF EDUCATION OF QUEENSLAND
Second Defendant
AND
THE ROYAL NATIONAL AGRICULTURAL INDUSTRIAL
ASSOCIATION OF QUEENSLAND
Third Defendant
JUDGMENT - MOYNIHAN SJA
The plaintiff was injured on 14 August 1986 when a horse which she was riding in the course of work experience reared, threw her and then fell on her. Liability is not an issue but I am required to assess the plaintiff's damages.
The plaintiff was born on 15 September 1971 and so was approaching 16 when she was injured. She was then in year 10 at the Harristown High School in Toowoomba. She was an average student. Her strengths were in English and Physical Education and practically related subjects and she had a keen interest in sports. She probably would have completed year 12.
The plaintiff came from a family with a long association with horses, horse riding and horse racing. She was at the time of her injury (and having regard her age) an experienced, competent and promising horseman, whose principal interest in life was horses and whose sole ambition was to be a jockey.
As a consequence of her being thrown, and putting it simply, the plaintiff suffered a crushed pelvis with various associated fractures and displacements including a dislocation of her right hip. The injury to the hip joint in particular was and continues to be particularly troublesome.
The plaintiff was initially in hospital for some six to eight weeks during which time she was treated by surgical intervention, manipulation and traction before being mobilised, weight-bearing but on crutches. After her discharge from the Royal Brisbane Hospital to which she had initially been admitted, the plaintiff returned home to Toowoomba. She was however plagued by constant pain, particularly in respect of the hip joint and on 7 April 1987 the joint was examined under general anaesthetic and steps were taken to deal with deformity in the joint with a view to relieving pain and improving function.
In X-rays taken on 13 May 1987 however it was apparent that there was a marked deterioration in the state of the plaintiff's right hip joint and shortly after it was determined that she required an arthrodesis of the right hip to overcome her constant pain and the loss of function. This operation was eventually performed on 22 November 1987 leaving the plaintiff with a right hip with "absolutely no movement". It seems that she has a permanent loss of function of her right lower limb of the order of 50%. The plaintiff's hip was immobilised in plaster for about three months after the arthrodesis and then mobilisation commenced.
It seems unnecessary to remark that the plaintiff has received extensive physiotherapy where endeavours were made to mobilise her after the initial injury and the subsequent surgical procedures she has undergone. She has also had, and will continue to have recourse to the use of pain killers in fluctuating degrees.
One of the consequences of a successful arthrodesis of the kind which the plaintiff has undergone is to throw stress on other joints, notably the opposite knee and those in the lower back. This in turn leads to deterioration in those joints and the consequent onset of pain. This has happened in the plaintiff's case to a marked degree particularly for one so young. She was admitted to the Toowoomba General Hospital in 1991 for investigation and three weeks' immobilisation of the hip joint and various other attempts have been made to relieve her pain but without success.
The plaintiff's condition has continued to deteriorate. She has suffered and continues to suffer constant pain, which has varied in degree from excruciating to at the very least strong discomfort. The pain, some of it muscular, some joint, some in the bone may be accepted as having various causes all of which are directly the consequence of the injuries she suffered on 14 August 1986. The plaintiff's pain is aggravated by many mundane activities such as prolonged sitting, driving and carrying out routine domestic activities, some of which she is no longer able to perform at least without assistance. The plaintiff has increasing pain and discomfort in her left and to a lesser degree in her right knee which flows from the arthrodesis as well as pain flowing from the original injury.
Giving the plaintiff an artificial hip joint offers some prospect of relieving her pain to a degree and of assisting her in being relatively better able to function in her everyday life. The operation is not without risk particularly given the need to deal with the previously arthrodised joint. In the present state of technology a successfully implanted joint will need to be replaced at ten to fifteen year intervals with a somewhat increased risk of complication attendant on each occasion. There is, of course, a prospect of improving technology in respect of subsequent replacements diminishing these concerns. The issues of risk and the need for replacement are reflected in the weight of medical advice which is for the plaintiff to postpone the hip joint replacement for as long as she is able to bear her pain and disability. Her condition is however deteriorating at a rate and to an extent that makes it likely that she will not be able to postpone the operation for as long as would otherwise be desirable and that increasing pain and disability will mean that she has it fairly soon.
I have endeavoured to reflect in the damages that future successful hip implants should lessen pain and improve function.
The plaintiff has had great difficulty in adjusting to her constant pain and in dealing with the effect of her disabilities. She will never be able to pursue her ambition to be a jockey and her capacity to work with horses has been substantially diminished. She earns some income in her engagement as a casual photographer at race meetings and has recently commenced business as a horse broker. Her ability to pursue these activities is however restricted by her constant pain and disability which relieved rather than removed by a successful hip joint replacement.
I am satisfied that the plaintiff will persist to the extent to which she is able in her position in those occupations and with some degree of success. She will, however never be restored to an earning capacity comparable to that which she would have had but for her injuries.
The plaintiff's success as a disabled rider says more about her application, grit and determination and the support of others than it does about her recovery from the consequences of her injuries. In 1988 she procured for herself a job as a Clerk of the Course at the Toowoomba Turf Club. When the Association's Chief Executive returned from leave he insisted, rightly, that her engagement would be terminated because her disabilities posed a threat not only to herself but to the safety of others. The plaintiff, I think, saw that job as a step in becoming a racing steward. This would also have required her to study. In my view, the job of steward is beyond her capabilities.
After her accident and while she was still at school the plaintiff had casual work as a shop assistant, a stable hand and at the race track, delivering teas and results etc. at the race track. She coped to a degree essentially because the employment was irregular and infrequent. She tried various comparable jobs after she left school but could not cope. The same was the case in employment she obtained as a disabled worker through the C.E.S. She worked for a time as a delivery driver and sales assistant at auto shops in Toowoomba. She was unable, as a result of her injuries, to sustain the work, it was not for want of application, persistence or determination on the plaintiff's part.
The plaintiff has attempted on a number of occasions to acquire qualifications by a course of study. She has failed in doing this and again I accept that this is a consequence of her accident. Her ability to concentrate is seriously diminished and her pain and discomfort make it difficult for her to stay still for any length of time even when sitting. This provided some degree of distraction for others.
The plaintiff's difficulties in adjusting to constant pain and disability, her frustration with attempts to improve her condition, to find and keep a job and to acquire qualifications, lead her to drug and alcohol abuse and to an unwanted pregnancy at a time when she was having great difficulty in coping. The plaintiff has dealt with her drug and alcohol abuse problems and is bringing up her son as a single parent. Her disabilities greatly exacerbate the task and she is unlikely to have another child. The relationship which lead to the pregnancy has broken up. The plaintiff will need an understanding partner in any new relationship she forms. Apart from other considerations which have been identified, her ability to engage in and enjoy sexual activity is much diminished.
I was impressed by the plaintiff who presents as being determined to make the best of her life and to overcome or adapt to her disabilities. Her situation has left her with a strong need to be in control of her life but she is vulnerable to stress and her capacity to cope with adversity is extremely fragile. She will need assistance and support throughout her life if she is to succeed as she aspires to.
The plaintiff's psychological distress is founded on pain and physical disability, increasing difficulties (in a practical sense) of parenthood, difficulties in establishing a basis for regular remuneration and a satisfying and rewarding lifestyle and frustration of her endeavours to achieve these things.
The plaintiff has been diagnosed (and I accept the diagnosis) as suffering from a dysthymic disorder and a major depressive disorder. Dysthymia is a threshold form of depression which can develop over a number of years. It is a separate entity because of itself it does not reach the dimension of depression. It is particularly characterised by an intermittent pattern of low self-esteem and difficulties with concentration. These have been manifest by the plaintiff. Because of her psychological condition the plaintiff will need therapeutic support, with occasional drug therapy, for the foreseeable future. Her demands on herself and her expectations are such that it is not easy for her to establish and maintain a relationship with a therapist. There is no evidence sustaining a conclusion that the plaintiff was, particularly susceptible (so as to be at risk) to developing these conditions prior to her suffering the injuries giving rise to these proceedings. The plaintiff's physical and psychological condition is a consequence of the defendant's negligence.
The plaintiff apparently suffered a subarachnoid haemorrhage on 10 August 1989. No neurological or other abnormality was found on subsequent examination. The plaintiff had not suffered any other comparable episode before or since. The cause of the incident is undetermined but is not related to the accident of 14 August 1986. I am satisfied that though the risk of a recurrent episode cannot be eliminated, the probability is there will be no recurrence. The significance of the issue is the effect of any recurrence on the plaintiff's life expectancy and earning capacity. As I have said, the risk cannot be eliminated but recurrence is not probable.
I turn now to an assessment of the plaintiff's damages in terms of the conventional headings.
Pain suffering and loss of amenities:
(a) The plaintiff is entitled to a substantial amount under this heading. This is to reflect not only the very substantial and constant pain, suffering and loss of amenities she has suffered and will suffer but that, insofar as she has and will earn income, her efforts have and will exacerbate her pain, suffering and stress. Hip replacements afford the prospect of relief but will themselves involve risk, pain, suffering and temporarily at least increased disability. I allow $100,000 under this head.
(b) I apportion $50,000 of the amount awarded to the period up to trial. In the circumstances of the case I am prepared to allow interest through the period of 9 years up to trial. I therefore allow $9,000.
Economic loss - Past and Future:
The plaintiff has lost the chance of persuing the occupation of a jockey upon which her heart was set. I think that the probability is that she would have been a successful jockey. She had the technical attributes and racing connections. The determination that she has exhibited since her accident indicates that she would have brought that essential characteristic to bear on the pursuit of her ambitions. There was evidence from a number of sources as to the amount of income that the plaintiff might have expected to earn as a successful jockey. This includes an affidavit by Bernadette Cooper who was accepted as being the most successful woman jockey in Queensland at the present time and other jockeys male and female. It is true that the occupation among other things carries with it the risk of being off work on account of injury but that risk is reflected in the evidence of earning and to include the evidence of periods on workers compensation.
It is unlikely that the plaintiff would have been a jockey throughout her working life. I think that the probability is that she would have worked in the racing industry, for example as an administrator or as a steward. Mr Holcroft, a man with knowledge of the industry gave evidence of earnings in such occupations. There is also evidence of the Australian Bureau of Statistics averaging weekly earnings.
Had she not worked in the racing industry there is every reason to think the plaintiff would have worked in some administrative capacity, in for example, the automotive field as her mother does and as she tried to. Perhaps she would have changed occupations from time to time.
On any view of it the plaintiff's earning capacity is drastically diminished as a consequence of the events of August 1986 which occurred while she was still a school girl.
(a)Past economic loss: the likelihood is that the plaintiff would have completed year 12 had she had not been injured. In other words her economic loss up to trial is over 6½ years. $350 per week net seems to me a justifiable figure. These figures give $118,300 from which must be deducted the $22,000 that the plaintiff has in fact earned leaving a figure of $96,300. I allow interest in the amount of $29,000 in respect of this figure.
(b)Future economic loss: The plaintiff has residual earning capacity but her exercise of it will be inhibited by her pain, restricted inability and treatment. She will have little opportunity of improving her earning capacity, for example, by studying to acquire further qualifications. Her life expectancy, is undiminished. Had she not been injured I think the plaintiff would have exercised her earning capacity substantially through her working life. The plaintiff's residual earning capacity will be interfered with by her need for treatment, such as counselling and hip replacements. She will, I suspect, find it difficult to sustain her present drive and enthusiasm as she gets older. It is difficult to predict how successful her horsebroking enterprise will be in the longer term. None of these factors are capable of any very precise expression. I allow $250,000 under this head.
Special Damages
In the end these were not contentions. I allow $40,124 including interest.
Satisfying needs consequent on the plaintiffs injury:
This breaks down above into a number of components.
(a)Past gratuitous care and travel expenses: The plaintiff was greatly dependent on her mother to do for her things she could not otherwise do herself as a consequence of her injuries. The degree of support varied over time of course. In the event the claim for $25,400 in respect of this and travelling expenses is sustained by the evidence and was not controversial and I allow it. I also allow $13,000 interest.
(b)Future care: The plaintiff will always need assistance with domestic tasks and that need will be greater while she is recuperating from, for example, hip replacements. On the evidence it seems appropriate to allow an average say 2 hours a day. I allow $135,000.
(c)The cost of future operations (usually hip replacements): I have dealt with this earlier. Evidence of costs was seen by various of the orthopaedic surgeons who gave evidence on whose reports were tendered. I allow $40,000
(d)Future therapy and treatment: This has a number of components.
(i)the plaintiff benefits from deep therapy massage and will have recourse to it from time to time. Its present cost is $40 per week. I think, however, that her recourse to the treatment will fluctuate. I allow $20,000 for it.
(ii)There will be recurrent expenses for psychological support, pain relieving and other drugs and medical attention all as a consequence of the plaintiff's injuries. I allow $15,000 in respect of these.
Home and car modification:
There is evidence which I accept that the plaintiff would benefit from modifications to make it easier for her to, for example, prepare food and bathe and to drive a motor vehicle and I allow $10,000 in respect of these considerations. There is also a claim for recurrent maintenance expenses which are associated with this but I am not persuaded that the evidence justifies an allowance for this.
Summary
(a) Pain suffering and loss of amenities $ 100,000
(b) Interest on damages for pain suffering and 9,000
loss of amenities(a) past economic loss (including interest) 125,300
(b) future economic loss 250,000
Special Damages 40,124
Satisfying needs consequent of the plaintiff's injury
(a)past gratuitous care and travel expenses 38,400
(b)future care 135,000
(c)future operations (notably hip replacements) 40,000
(d)future therapy and treatment 20,000
(i)recurrent expenses 15,000
Home and car modifications 10,000
TOTAL $ 782,824
There will therefore be judgment for the plaintiff in this amount. I will hear submissions on costs.
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