Richards v Motor Accidents Insurance Board
[1990] TASSC 128
•24 August 1990
Serial No B51/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Richards v Motor Accidents Insurance Board [1990] TASSC 128; B51/1990
PARTIES: RICHARDS, Carol
RICHARDS, Kellie
v
MOTOR ACCIDENTS INSURANCE BOARD
FILE NO/S: 671/1984
673/1984
DELIVERED ON: 24 August 1990
JUDGMENT OF: Wright J
Judgment Number: B51/1990
Number of paragraphs: 52
Serial No B51/1990
List "B"
File No 671/1984673/1984
CAROL RICHARDS AND KELLI RICHARDS
v THE MOTOR ACCIDENTS INSURANCE BOARD
REASONS FOR JUDGMENT WRIGHT J
24 August 1990
This is an action for damages for personal injuries arising out of a motor vehicle accident which occurred on the Northern Outlet highway on 21 August 1983. Mrs Carol Richards, who will turn 39 years of age tomorrow, was driving a motor vehicle in which her daughter Kelli, now aged 19 years, was a passenger. The other driver involved in the accident died of his injuries and as a consequence the Motor Accidents Insurance Board was joined as defendant in two separate actions which were instituted by Mrs Richards and her daughter. These actions have now been consolidated, liability has been admitted, and it remains for damages to be assessed. The defence called no evidence and did not challenge the credit of the plaintiffs or their witnesses. Accordingly, I accept the evidence given at the trial except where I specifically indicate to the contrary in these reasons.
Carol Richards
The plaintiff Carol Richards, was born on 25 August 1951. She is married with two children, her daughter, the co–plaintiff, and her son Adam, now aged 8 years. As a result of this collision Mrs Richards sustained the following injuries – fractured right ankle, fractured right clavicle, fractured left ribs, (8, 9 and 10), fractured right rib, (1), fractured right medial malleolus, fractured right talus, facial lacerations, traumatic deafness in the right ear, strain injuries to the neck and jaw, injuries to liver and spleen causing haematomas of both organs.
At the time of her marriage in 1969, Mrs Richards was employed at the Land Titles Office and resigned from that employment for the birth of her first child. When Kelli was nearly two years of age, Mrs Richards took up employment with Charles Davis Ltd as a shop assistant and after 12 months, she resumed employment with the Land Titles Office in a full time temporary position for approximately three years. She then applied for, and obtained, a permanent full time position in the Public Service with the Lands Department, Valuation Division, ceasing work only for accouchement leave for about 14 weeks when her son Adam was born on 22 May 1982. She found this an enjoyable job in a happy environment. She continued in this position until the motor vehicle accident. Her intention was to stay in that employment indefinitely.
Following the collision, she was admitted to the Royal Hobart Hospital where the lacerations on her forehead were sutured, there was open reduction of the fractured right ankle, bone grafting of the fractured talus and her internal injuries were attended to.
Mrs Richards has no specific recollection of events until about a week after her admission to hospital. Whether this period of unawareness is due to amnesia produced by head injury or results from strong analgesic medication for the injuries received, is not clear. She was plainly in considerable pain and discomfort in several of her injury sites for some time. A facial laceration involving damage to the supra orbital nerve has produced a permanent numbness or loss of sensation on the top of the head and on the left side of the forehead. This injury is also partly responsible for headaches that the plaintiff complains of and an abnormal tendency to perspire on the left side of the head. Mrs Richards also complains of a degree of numbness in both cheeks, more frequently noticeable on the left side. The lacerations to the forehead have left permanent residual scars extending into the right side of the left eyebrow causing a slight "frowning" appearance. There are three separate lacerations, the longest of which is closest to the centre line of the face. All three scars run more or less parallel to each other and are about a centimetre apart. The two larger scars are about 10 centimetres in length and the third is about 5 centimetres.
Due to the extensive nature of her injuries, the plaintiff was plainly heavily dependent upon the assistance of other people while she was in hospital, and, due to her prolonged enforced immobility, she developed bed sores which were uncomfortable and required treatment. She also had physiotherapy for her injured collarbone and underwent investigative procedures, apparently for diagnostic purposes, in connection with her head and internal injuries.
She was discharged on 4 October 1983 on crutches, although she was not fully weight bearing on her injured right foot. She had plaster of paris encasing her leg from the foot up to the knee. At this time, to use her own words, she felt "dreadful". She was also depressed and her foot was sore. Fortunately, her mother was able to move into the house temporarily and, in addition, alterations were made in the house and in the backyard to assist her with her daily tasks.
The assistance provided by Mrs Richards' mother was clearly indispensable to the normal operation of the household at this time, and I am satisfied that not only is her past assistance to the plaintiff properly compensible under the Griffith v. Kerkemeyer principle, but that her continuing assistance in household tasks should also be allowed for in the award of damages. I think that this assistance will continue into the future, and it is reasonable that it should do so. On the other hand, I am satisfied that Mrs Richards' mother spends more time and performs more services than it would be reasonable to expect a tortfeasor to fund at a commercial rate and, as a consequence, and in accordance with what I said in Cook v. Schuettpelz, I propose to allow the future component of the Griffith v. Kerkemeyer claim, at a conservative and moderate figure appropriate to all of the circumstances. I will refer to this again later.
At the time that Mrs Richards was discharged from hospital, her son Adam was aged about 18 months, and her husband was in full time employment. At this time, in addition to performing the majority of household tasks, Mrs Richards' mother assisted her daughter in her ablutions and personal care.
When the plaster was first removed from Mrs Richards' foot late in 1983, it was found to be misshapen to some extent. She commenced attending the Douglas Parker Centre for the purpose of receiving ultrasound treatment and general physiotherapy to the right foot. She also noticed that whilst in hospital, her sense of taste and smell disappeared but both these senses have gradually returned since. I am satisfied that the temporary loss of these senses is to be attributed to the accident.
As a consequence of the trauma sustained in the accident the plaintiff also sustained a substantial hearing loss in the right ear. Associated with this is tinnitus of two different kinds. The first has a static quality and the second is high pitched and shrill. Sometimes the high pitched shrill sound goes away, but the static noise is constant. Mrs Richards was examined by Mr Lindsay Wing, an ear, nose and throat surgeon in November 1983 and on 28 November 1983, having diagnosed mixed deafness consisting of both conductive and sensory loss, Mr Wing performed a surgical reconstruction of her right ossicular chain, using a homograft cartlege taken from the plaintiff's left hip. In January 1984, it was found that there had been some improvement in the plaintiff's hearing level, but subsequent examination in August 1985 disclosed that the homograft had failed and that further surgery was necessary. This was carried out at the St. Helens Hospital on 4 October 1985. Unfortunately, this produced no substantial improvement and as a consequence, the plaintiff was fitted with a hearing aid with an inbuilt noise inhibitor in an attempt to lessen the tinnitus problem. This has been achieved with increasing success by the use of progressively sophisticated hearing aids since that time. Although the plaintiff has a permanent hearing loss exceeding 68% in the right ear, with the use of a hearing aid she has 100% speech discrimination and the tinnitus problem has been substantially reduced.
The plaintiff said:
"The tinnitus has always been there and it's still there but the fact that I can hear has pushed the tinnitus into the background. It's not sort of a major thing like it was. I mean it's still there, but it's not roaring."
The plaintiff wears her hearing aid during waking hours but removes it to sleep at night. Her hearing condition is unlikely to change and may now be regarded as permanent. I am satisfied on the evidence of Mr G A Dickson, audiometrist, that it will be necessary to replace the current hearing aid every five years at an approximate cost of $1,850.
I return to the condition of the plaintiff's injured right foot at the time of her discharge from hospital. Before Christmas 1983 when the plaster was removed from her foot, she was provided with a non weight bearing calliper. As confirmed by Mr Turner, the purpose of this was to improve the blood flow to the section of bone which had been removed from the plaintiff's right hip and grafted into her ankle. Although she found the use of the calliper most distasteful, she persevered in its use for about six months.
During this period the plaintiff also became aware of other disabilities that had apparently resulted from the accident. She found that the left side of her jaw was aching and cracking. She demonstrated this in the witness box and there was a clearly audible noise produced when she moved her jaw up and down. She now wears an oral prosthesis to counteract this problem. The device is worn at night "so my jaw will sit straight". On the balance of probabilities I find that this condition has been caused by the accident and is permanent. Mrs Richards also found that two of her fingers were "sort of curling inward". This condition still exists and in addition, she found that her fingers had lost their nimbleness to some extent. She was also feeling depressed and sought the assistance of a general practitioner, Dr Kudelka who prescribed Tryptanol for depression.
In late 1984, because of an apparent spontaneous fusion that had occurred in the right ankle, the plaintiff sought further advice and was provided with a partial weight bearing calliper. At this time her foot was still swollen and crooked and she had a tendency to walk on the outside of it. The plaintiff also suffered from headaches and although she did not pinpoint the time at which these first occurred, she mentioned that she had a really severe attack in January 1985 when she was vomiting, her tongue was swollen and she became dizzy. As a result she was provided with a soft collar for her neck and a special pillow. She says that she now experiences severe headaches approximately every six weeks or so. The ache starts at the back of the neck, her tongue swells and she feels sick. She had not had headaches of this kind or frequency prior to the accident, although she had sought treatment for headaches from Dr Kudelka from time to time before this.
I have already mentioned in passing that she experiences excessive perspiration on the left side of her head. This predominates on the face and forehead and occurs if she becomes agitated or if she engages in heavy physical work. She also notices that her left eye waters and her left eyelid droops. However, this does not cause visual disturbances.
She underwent further surgery to the foot in 1985 when a triple arthrodesis of the right ankle was carried out by Mr Turner. Since that time, because she now wears flat shoes, the plaintiff has not worn a dress. This is a matter of some distress to the plaintiff as she was careful of her personal appearance and enjoyed wearing feminine clothes prior to the accident. The arthrodesis operation was performed in St. Helens Hospital on 29 January 1985 and the plaintiff was discharged on 14 February. During the course of the operation, a pin was inserted at the base of her foot. She was discharged wearing a plaster of paris to the knee and she found the foot very painful. She became ambulatory on crutches and these were subsequently discarded when she became accustomed to walking on her stabilised foot. She found that she was able to do more housework as a consequence of her increased mobility. I was asked to observe the way in which the plaintiff now walks and I noted that she has a slightly rolling or waddling gait, less exaggerated than, but not unlike that of a competitive track and field walker.
Whilst recovering from the arthrodesis of the ankle the plaintiff consulted Dr Yeo, a neurologist in connection with the headaches which she was experiencing. He prescribed a number of different tablets which initially caused the plaintiff to become ill. However, the medication was changed after she complained of this. To improve the condition of her foot she underwent physiotherapy and was fitted with orthopaedic shoes to accommodate the calliper which she was obliged to wear.
In 1985 the plaintiff was still substantially housebound. She was fond of gardening and tried to resume this activity but with only limited success. She also noticed that she had a tendency to stutter when she became stressed or agitated. This problem has persisted to the present time, although there was no trace of it whilst the plaintiff was giving evidence. Nonetheless I am satisfied that the condition exists intermittently and that it is a product of the accident.
After the arthrodesis operation the plaintiff's foot was still turning inwards and she decided to have yet further surgery which was undertaken by Mr Turner on 20 August 1985 at the St. Helens Hospital. She was discharged on 27 August, having had a tendon release operation performed on the foot. This caused it to sit flat initially, but gradually it started turning inwards again. The plaintiff's right leg is now approximately one inch shorter than the left and she is unable to wear high heeled shoes. She has multiple surgical scars on her right foot and ankle and she has a small scar on the left hip over the donor site of the bone graft.
In addition to the head and neck disabilities to which I have already referred, the plaintiff said that she experiences dizziness when she raises her arms to work overhead or she finds herself in a strange environment with numerous people. She is now on a regime of medication, including Tryptanol, Inderal and Feldene. Tryptanol is an antidepressant drug, Feldene is anti–inflammatory and Inderal is prescribed for blood pressure. The plaintiff has been taking this medication for several years and I am satisfied that the need for these drugs was created by the injuries which she sustained in the accident.
On 20 October 1986, against her husband's strong recommendation to the contrary, the plaintiff resumed work with the Lands Department performing much the same duties as she had been accustomed to before her injuries. At first she undertook this employment on a full time, five day a week basis, but the strain of doing so was too much for her. She became overtired, irritable and generally highly stressed. Plainly she had tried to do too much too soon.
She is however, a woman of considerable tenacity and she persevered in this way for approximately three years.
It was important to the plaintiff in terms of her own self esteem and also because the family needed two incomes, that she continue working full time for as long as possible, but in May 1989 she came to the conclusion that she should cut down her work to three days a week. Since that time she has worked only on Tuesdays, Wednesdays and Thursdays. She finds that she is now able to cope much better and although she is still tired, she is not nearly as tired as previously, nor is she as quick tempered and irritable as she was before.
The plaintiff complains of a number of diverse symptoms for which there is no direct medical explanation. She said that she gets numbness in the right arm, she loses power in the arm and it feels "just like a lump of lead". She also has lost the nimbleness in her fingers and she experiences pain in the shoulder and neck from time to time. She also experiences dizziness from time to time.
Dr Yeo, a consulting neurologist tended to suggest that problems of this kind may be associated with post–traumatic stress disorder but his evidence was not specific and his attention was not directed to the particular symptoms complained of by the plaintiff which I have just described. On the other hand, it is plain from the plaintiff's evidence that none of these symptoms was in evidence prior to the accident and having regard to the severe trauma that the plaintiff sustained to her head, it seems to me not unreasonable to conclude that these symptoms are attributable to the accident. As they are still in evidence some seven years after the occurrence, it is reasonable to infer that they are permanent, but the evidence is just insufficient for me to make a finding upon this question. I have therefore included only a small component in the plaintiff's general damage for this aspect of her claim.
Dr Yeo also expressed the opinion that in the course of the accident Mrs Richards' supra–orbital nerve had been severely traumatised or severed and that the dysaesthesia which she experienced in the region of the forehead, was as a consequence of the incomplete regeneration of this nerve. He also expressed the view that headaches and depression were a likely concomitant of an injury of this kind. He explained the excessive perspiration complained of by Mrs Richards as being due to a form of sympathetic dystrophy. He was however unable to explain the watering of the eye and the drooping eyelid of which Mrs Richards complained. Nonetheless on the whole of the evidence, particularly having regard to the major trauma which occurred to the plaintiff's forehead and the apparent absence of any such symptoms prior to the accident, it seems to me that it should be inferred that this condition results from the accident.
This conclusion is further supported by the opinions of Mr G P Duffy (deceased) a neurosurgeon who saw the plaintiff on 27 November 1986 and 2 May 1989 and reported on her condition to her solicitors. Mr Duffy's reports were tendered pursuant to s81G of the Evidence Act. Part of the report of 2 May 1989 was challenged by the defence and I admitted it de bene esse. Having now considered it further I have concluded that the whole report is admissible.
In his report of 27 November 1986, Mr Duffy said:
"When I saw Mrs Richards on 27th November, 1986 she told me that she continued to suffer from significant symptoms that she attributed to the motor vehicle accident but that she had now returned to her work as a clerical assistant and had been coping with this for the past six weeks. She told me that following her accident she found that with increasing activities she was developing severe headaches. She also found that she was developing dizzy spells particularly with movement in which her neck was extended. She found that if she reached up for anything she would feel giddy. When she went to hang her washing out she would develop giddiness. She said that she suffers from a sensation of recurrent pins and needles at the back of her head, when she carries things in the right arm. She said that when she becomes dizzy she has the sensation as if things were moving around in an 'airy fairy' sensation in the head. She said that these symptoms have improved particularly following physiotherapy for her neck. She said that she suffers from recurrent episodes of pain at the back of the head. She told me that she had had episodes of quite severe left sided headache associated with nausea and vomiting lasting for several hours, but she told me that she has not had these particular type of headaches for some time.
She complained of generalized tiredness. She said that she had been very irritable at an early stage and found it difficult to cope with her family but she felt that this although still present was now improved. She complained of impaired hearing in her right ear. She said she still found that she could not cope with too many things at one time. She said that she suffered from occasional ache in the neck on and off from time to time and she had found that using an orthopaedic pillow tended to help this. The ache in the neck frequently tended to radiate towards the right shoulder and was occasionally associated with pins and needles radiating into the right hand. She said that she had noticed that if her face perspired it tended to perspire much more on the left than the right side. She said that she still had a feeling of numbness on the left side of her head. She told me that her walking was difficult because of a limp and that her right leg was somewhat turned in. She told me that she was not getting any particular pain in the leg.
On examination, she gave a clear and unemotional history. She had a deformity of the right leg as described by Mr Turner. She had healed scars on her forehead described in other reports. Her speech was normal and her memory recall apart from the time of the accident appeared normal. Her sense of smell appeared normal. Eye movements were full and her visual fields were full. There was impaired hearing in her right ear. Facial sensation appeared normal. Power and tone in the arms were normal, and the reflexes were symmetrical. The right leg was somewhat shorter than the left and the calf muscles were somewhat wasted as compared with the left. The right knee jerk was diminished. She had an arthrodesis of her right ankle and had no right ankle jerk. Sensation throughout appeared normal. Apart from the problem with the right leg, co–ordination appeared normal. Blood pressure was 14090. Neck movements were full but she complained of some discomfort with neck movement. Movement did not appear to produce a feeling of dizziness or vertigo at the time of this examination.
Mrs Richards suffered from numerous symptoms which can be attributed to the motor vehicle accident. I believe that she has sustained an injury to her neck which is at least partly responsible for the symptoms of dizziness and vertigo she has experienced. It is also responsible for her ongoing neck discomfort and radiation of paraesthesia into the arms. It is possible that it may have something to do with increased frequency of migraine headaches that she has suffered but I do not believe that any neck injury can be specifically causative in those particular headaches.
Mrs Richards has found that these symptoms have been significantly helped with physiotherapy from time to time and at this stage I would not advise any further investigation or change of treatment apart from the use of physiotherapy at times when it is needed.
Not mentioned earlier in this report is the fact that there is reduction of sensation on the left side of the forehead up to the top of the head associated with damage to the supra–orbital nerve. This in itself can be associated with a degree of head discomfort, and I think it is also partly responsible for the headaches she complains of. The abnormal sweating on the left side of her face can also be attributed to this. I believe that she will be left with some ongoing disability with her neck. I think it is likely that there, however, will be continuing improvement at least to a degree in these symptoms."
In his report of 2 May 1989 he concluded:
"Mrs Richards still suffers from significant symptoms attributable to the motor vehicle accident. They have now been relatively static for some time and I do not believe that they will improve in the future. The area of numbness in the forehead will be permanent as will the deafness. She will continue to have an increase sweating on the left forehead at times. She is likely to continue to have ongoing discomfort in her neck and in her right arm.
I don't believe that any specific investigation or change of treatment is presently indicated. I accept that she would be limited in certain activities and that she would have difficulty in undertaking her housework in a normal manner. Her expectation of life is not reduced. I don't believe there is any likelihood of post–traumatic epilepsy."
Plainly on the basis of the medical opinions given on behalf of the plaintiff it should be found that all her post–accident symptomatology which I have described above, has been caused by the accident. I so find.
Mr R W L Turner, an orthopaedic surgeon gave evidence that he performed surgery on the plaintiff's fractured right ankle upon her admission to hospital on 3 September 1983. Following her discharge from hospital he noted on 21 November 1983 that there was evidence of a vascular necrosis of the talus. Although there was subsequently some evidence of the revascularisation of the talus, she was then found to have quite marked post–traumatic arthritis of the ankle. When he examined her on 21 May 1984, she was complaining of intermittent aching in the ankle and Mr Turner observed that the ankle was stiff and showed an inversion deformity. Both these conditions persisted despite physiotherapy treatment and in September 1984 she was fitted with a hinged calliper in an attempt to allow her some ankle movement. However it did not control the ankle very well. By January 1985 it was apparent to Mr Turner that a triple arthrodesis was necessary and he carried out this operation on 31 January 1985. The procedure involved the fusion of the ankle joint, that is the tibio–taloid and the sub–taloid joint. Following this it was noted that there was an inversion of her forefoot. In an attempt to correct this deformity she was fitted with an orthotic device but this was of only limited benefit.
On 21 August 1985 the tibiolus anterior and posterior tendons were divided allowing the forefoot to return to a neutral position. This operation has been largely successful in the long term. Mr Turner estimates that the plaintiff has a 30% loss of function of the leg as a whole. This degree of disability is permanent.
The plaintiff still has pain in the leg and ankle and she experiences emotional lability. She has a permanent hearing loss and tinnitus in one ear, a scarred face and ankle, a numb forehead and scalp, headaches, and dizziness and other sensory disturbances. Her relationship with other family members has suffered as a consequence of the accident although in Kelli's case the deterioration in their relationship may be contributed to by other factors. Her sexual relationship with her husband has deteriorated and it is now "not as good as it should be". Not surprisingly, the plaintiff is somewhat embittered by the extent to which her injuries have affected her family life and activities. She has sustained a major disruption to her life as a consequence of this accident and she has multiple disabilities which in combination, impinge very heavily upon her enjoyment of life's amenities.
It is fair to conclude that her current inability to work a full five day week is directly attributable to the accident. I find that had she not sustained these injuries she would probably have worked until retiring at 60 years of age. There has been a substantial diminution of her earning capacity which in my opinion, is likely to be permanent. Accordingly, the figures provided by Mr Stephen Godfrey, the Manager of Administration within the Department of Environment and Planning may be used as the basis for calculating the value of the plaintiff's past and future lost earning capacity.
Counsel for the defendant submitted that there was some real prospect of Mrs Richards' being retrenched from her work in the future and that this should be taken into account as one of the contingencies which may have adversely affected her future employment regardless of the accident. It is also true, as contended, that as she is not the sole income earner in the marriage partnership, she may be inclined to give up employment in future years. However, neither of these eventualities cause me to adopt a high discounting factor. Indeed, a countervailing consideration to the point first made by defence counsel, is that if she loses this job, Mrs Richards, with a capacity only for part time work, and suffering from the multiple disabilities that she has, may not be such an attractive employment prospect to a new employer.
Mrs Richards claims damages under the following headings:
1 Past Economic Loss
(a) Before 23 May 1989
The plaintiff received sick leave from her employer until 6 February 1984. Furthermore, between 1 July 1986 and her return to full time employment she sustained no actual loss of income as she utilized her long service leave and annual leave entitlements during this period. As a consequence she lost 22 days long service leave and used up all annual leave due to her. It is conceded that she cannot recover for past economic loss during these periods but it is plain that her loss of entitlement to the leave increments mentioned may be compensated on a moderate basis within the award of damages for pain, suffering and loss of amenities.
For the period 7 February 1984 to 30 June 1986 she would have received $28,632.80 (nett) had she remained at work, but she received a disability allowance from the Motor Accidents Insurance Board during this period of $21,957.31 (nett). She is thus entitled to $6,675.80 for lost earning capacity up to 20 October 1986. There is no claim for loss during the period 20 October 1986 to 23 May 1989 as she was working full time during that period.
(b) After 23 May 1989
After 23 May 1989 the plaintiff reduced her working hours from 5 to 3 days per week. As a consequence her income fell initially by a nett amount of $97.02 per week. Due to an increase in wages this difference increased to $114.10 per week as from 23 November 1989.
Her total loss of income since the accident may thus be formulated as follows:
(i) 7/2/84 – 30/6/86 (nett) $ 6,675.80
(ii) 23/5/89 – 22/11/89 $ 2,551.63
(iii) 23/11/89 – 31/7/90 $ 4,047.63
(iv) 1/8/90 – 24/89/0 $ __399.35
$13,674.41
2 Future Economic Loss
The plaintiff claims an ongoing loss of $114.10 per week. As already mentioned I propose to allow this as a continuing diminution of earning capacity until 60 years of age on 2582011 (ie 21 years) subject to an appropriate adjustment for both adverse and favourable contingencies. In my opinion an overall reduction of 20% is appropriate for this component.
$114.10 for 21 years @ 3% discount
as per Luntz Table 2 (p543 2nd edn) $93,105.60
Less 20% contingency factor $18,621.12
$74,484.48
I propose to round this figure up to $75,000.00.
3 Hospital Medical and Pharmaceutical Expenses
(a) Past Expenses
I propose to allow these as claimed in the Particulars at $1,420.29 and in addition to allow the cost of the new hearing aid provided by Mr Dickson $1,850.00.
I therefore allow this item at $3,270.29.
(b) Future Expenses
Counsel for the defence conceded that the plaintiff uses the quantities of tablets itemized in the Particulars as follows:
(i) Inderal 40 mg (100 tabs) $10.95 per 6 weeks.
(ii) Tryptanol 10 mg (50 tabs) $ 8.09 per 6 weeks.
(iii) Feldene 10 mg (50 tabs) $20.83 per 6 weeks.
The weekly cost of these items is $6.64.
When dealing with the appropriate discount for contingencies to be applied to this type of claim, in Blake v. Holland, B611987, I pointed out that considerations apply which are different from those which are relevant to a claim in respect of lost future earning capacity. The Life Tables tendered in evidence (P30) suggest to me that I should assume that Mrs Richards has a life expectancy of between 39 and 40 years. On this basis I allow $8,113.00 reduced by 10% for contingencies, ie $7,301.70. I will round this down to $7,300.00. The plaintiff also claims $1,850 every 5 years to replace her hearing aid. This sum is reasonable and despite the arguments of defence counsel to the contrary, it should be allowed as claimed. I make contingency allowances of the same kind as for the future pharmaceutical expenses and allow this aspect of the claim at $7,800.
4 Travelling Expenses
This has been claimed at $500 but the evidence is insufficient to support that or any sum. This item is disallowed.
5 Home alterations
A claim has been made for altering decking at the rear of the plaintiff's home to allow her to use the clothesline. The evidence is sparse, but sufficient, I think, to justify the claim. I allow $1,000.00.
6 Past and Future Needs for Household Assistance (So called Griffith v Kerkemeyer claim).
I have already made some comments about this. So far as the past component of the claim is concerned, I think it is reasonable as particularized. The defence has agreed the rates and paragraphs A and B of the claim have been abandoned. I therefore allow $17,820.00 to date. As for future services of this kind I propose to allow 4 hours per week @ $10.50 per hour discounted by 3% and further discounted substantially for contingencies. I think that as the children grow up and leave home, Mrs Richards' need for household assistance will probably diminish. I see no reason to expect this factor to be counter balanced by advancing age. I propose to allow $34,000.00 for the cost of future services.
7 Pain, Suffering and Loss of Amenities
I have already dealt with this aspect of the case in the discussion above. The plaintiff has sustained multiple injuries which interfere continuously or intermittently with major aspects of her industrial, social and family life. She is entitled to a substantial award. I propose to allow $55,000.00.
Summary
(1) Past economic loss $ 13,674.41
(2) Future economic loss $ 75,000.00
(3) Hospital, medical and
pharmaceutical expenses
(a) Past $ 3,270.29
(b) Future $ 15,100.00
(4) Home alterations $ 1,000.00
(5) Past and future needs for
household assistance
(a) Past $ 17,820.00
(b) Future $ 34,000.00
(6) Pain, suffering and loss of
amenities $ 55,000.00
$214,864.70
The above sums are in addition to the sum of $25,224.83 paid to or for Mrs Richards by the defendant as certified in exhibit P31. Consequently there will be judgment in her favour for $214,864.70.
Kelli Richards
Kelli Richards was born on 15 January 1971. In the accident she sustained a fracture of the left femur, fractured left clavicle and multiple cuts and abrasions, in particular a laceration approximately 12 centimetres in length on the right shin. She was admitted to hospital and placed in traction for six weeks and during this period of time she also had a sling on her left arm to aid in the reunification of her fractured clavicle. Initially she was in severe pain, both before and after surgery on her left leg. Although she and her mother were admitted to the same hospital, she only managed to visit her mother once during their mutual stay when she was wheeled up to her mother's ward to see her. She also remained in hospital after her mother returned home and was not discharged until 2 months after her admission.
Kelli received physiotherapy in hospital and also required treatment for a bad outbreak of bed sores. She was discharged from hospital on crutches on 26 October 1983 and attended the Douglas Parker Rehabilitation Centre five days a week thereafter. She ceased using crutches at about Christmas 1983 and thereafter used a walking stick but a significant "bowing" deformity of the left thigh caused her to limp. At this stage she was still a high school student. She missed the final school term in 1983, and the following year, in Grade 8, she found that it was necessary to have special arrangements made so that she could stand up and stretch her leg every ten minutes or so in class to prevent the injured leg causing her pain and discomfort. She was unable to take part in sport or physical education or out of school activities that year. Prior to the accident she had enjoyed swimming, canoeing, bushwalking and roller skating, but these activities ceased after the accident. She found that kneeling was difficult because of pain and restricted movement in the knee joint. Kelli had achieved some success in athletics prior to the accident and generally enjoyed sporting activities such as netball and softball.
For the first year following the accident she was taking Feldene arthritis tablets for pain in the back and leg. Her social activities were severely restricted and she was unable to participate in many of the recreational and sporting pastimes which she had previously enjoyed. She also found that she was apprehensive as a motor vehicle passenger, a condition which still occurs from time to time.
In October 1985 she had a second operation at St. Helens Hospital when Mr R W L Turner performed surgery to straighten the bowing of the left femur. The operations on the leg have left a scar about 25 centimetres in length along the outer aspect of the left femur and although this scar is not particularly noticeable at the present time, it has been in the past, and is likely to continue as a source of some embarrassment to Kelli in the years to come. Following the second operation, she continued to have physiotherapy and although she commenced to play netball competitively, she found that she was unable to continue doing so as she experienced pain and her leg became very stiff after exertion. She also tried to take up aerobics with a similar result. In December 1986 she was readmitted to hospital when the plate which had been inserted in her left femur during the course of the second operation, was removed.
After leaving school she obtained employment at a take–away food establishment in Harrington Street but as this involved prolonged standing and she was obliged to work whilst standing upon a cement floor, she found that by the end of the working day her ankles, knees and hips were very sore. However she persevered with this employment for some twelve months. She had intended taking up hairdressing but in view of her experience in the take–away food shop, she thought that this would be unsuitable for her. She is now employed as a florist's assistant and much of her daily work is involved in delivering flowers in a motor van. She complains that if she drives for long periods of time, her joints ache. She said these aches occur in her knees, hips and "now my shoulders". She notices pain in these areas particularly when it is about to rain. She also experiences soreness and discomfort when squatting or kneeling. Sometimes the left knee becomes discoloured for no apparent reason. This discolouring resembles a bruise. She says that her current level of discomfort is getting worse, mainly in her hips and shoulders. It is difficult to know what the future holds for her, particularly in the absence of any definitive medical prognosis or opinion linking all the current pain sites with the trauma sustained in the accident.
Kelli's evidence was corroborated in most major respects by the evidence of her mother and also to some extent by the evidence of her father.
Mr R W L Turner gave evidence and said that he treated Kelli's injuries following her admission to hospital. He found that she had the injuries which I have already described. He performed a reduction of the comminuted fracture of the left femur. When he saw Kelli on 9 January 1984, he found that she was walking quite well, but that her left leg was short as a result of the fracture. She had a good range of knee movements but some retro–patellar crepitus. Her x–rays showed that the fracture was uniting and that there some residual anterior bowing. She had made a full recovery from the clavicular fracture although she was still complaining of soreness in her left shoulder when seen by Mr Turner again in April 1984. She was also complaining of pain in her left knee which had a tendency to give way occasionally.
He continued to review her condition and when it became apparent that the bowing in the left leg was not correcting itself, and that the left leg was some 2.5 centimetres shorter than the right, Mr Turner decided that a further operation was necessary. Accordingly, in October 1985 the plaintiff underwent an osteotomy of the left femur. This operation corrected the leg length discrepancy and straightened the bone. In December 1986, plates and screws which had been used for the purpose of the osteotomy were removed in a subsequent surgical procedure. She made an uneventful recovery from that operation and, when seen by Mr Turner on 2 February 1987, she had no particular complaints. She had a full range of movement in her knee and her leg lengths were equal.
Mr Turner did not see the plaintiff again until 2 May 1989 when she complained that she had an aching in the left leg if she did anything for too long. She said that the ache in the leg was also aggravated by sitting for long periods of time. She said that her leg turned outwards and she complained of the bruising colour on her leg. On examination Mr Turner found that there was no tenderness in the thigh or knee and there was no swelling in the knee but he did find that there was a little restriction of knee flexion. He found a "hint" of retro–patellar crepitus on this occasion. Because of the minor loss of flexion in the knee, Mr Turner felt that there was a 7% disability in relation to the left leg as a whole. He believes this condition persists and is permanent.
Mr Turner was unable to offer a firm opinion as to the cause of the pain of which Kelli complained in her hips. However, he did say:
"Any sort of impact that produces a comminuted fracture of the femur in a child of relatively young years where the bones are perhaps a little more plastic than yours or mine might be, then it may well produce other damage that is not detectable and of course may not be looked for if the x–rays are normal and there are other matters to which one's attention is drawn."
Mr Thompson directed my attention to the hospital notes made upon Miss Richards' admission following the accident. In that document there is a query in respect of a fractured pelvis but no firm diagnosis is noted and there is no further comment upon this suspected condition. In the absence of evidence of any other probable cause for the painful hips, one is tempted to surmise that some disorganisation of the hip joints was caused in the accident. However the plaintiff's complaints as to this condition are fairly vague and have not been the subject of considered medical assessment. Consequently, I am unable to say that on the balance of probabilities the plaintiff's complaints in these respects are to be attributed to the accident. Similarly, I am unable to conclude that the plaintiff's complaint of pain in the right shoulder was caused by the trauma of the collision. However, she has complained of pain in the left shoulder from time to time and she sustained a demonstrable injury to the left clavicle. Consequently it is reasonable and appropriate to conclude as I do that the pain in that site is to be attributed to the accident and is compensible.
The bruised appearance of the knee has not been explained. Once again one is tempted to surmise that a circulatory problem may exist but in the absence of evidence it is not possible to positively infer that this is so nor to infer that the problem, whatever it is, is either serious or permanent.
Nonetheless Kelli suffered major trauma which caused severe pain and prolonged discomfort. She had a long and boring convalescence. She was precluded from taking part in physical activity which she had previously enjoyed and she suffered a certain amount of social isolation from her friends as a consequence during her final school years. She has undergone 3 operations necessitating hospitalization. There are scars on her right shin, left outer thigh and 2 indented scars below the left knee joint where the traction rod was inserted. Although she did not make much of them, these are unpleasant for a young woman to bear. She also suffers pain at the fracture site and in the left knee and shoulder. I find that these sources of pain were caused by the accident.
Kelli makes no claim for past economic loss or special damages but it is submitted by her counsel that her earning capacity has been affected to some degree by her injuries as evidenced by her difficulties in the take–away food shop and her decision to abandon her ambitions as a hairdresser. In short, her employment choices in the future are limited to some extent. I accept this submission. It is difficult to quantify such a loss however and rather than attempting to do so as a separate head of damage, I think it appropriate to include a modest amount for this component in the overall award.
I assess Kelli's damages at $23,000.00. This sum is of course by way of general damages over and above the $19,796.65 paid to or on Kelli's behalf by the Motor Accidents Insurance Board.
There will be judgment in her favour for $23,000.00.
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