Seima v Tennant and Anor
[2020] ACTMC 13
•4 June 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Seima v Tennant & Anor |
Citation: | [2020] ACTMC 13 |
Hearing Date(s): | 21 – 22 November 2019 |
DecisionDate: | 4 June 2020 |
Before: | Magistrate Stewart |
Decision: | See [92] |
Catchwords: | CIVIL JURISDITION – Award of damages – third party insurance - Motor vehicle accident – general damages |
Cases Cited: | Erceg-Hurn v Hurn (WA FC, 23 June 1989, unreported, BC8901031) Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 Loughnan v Kurzyp [1977] TasSR (NC) 4 Mason v Demasi [2009] NSWCA 227 Norris v Zimmer [2010] ACTSC 51 |
Parties: | Hilda SEIMA (Plaintiff) Ainsley TENNANT (First Defendant) Insurance Australia Limited Trading as NRMA Insurance (Second Defendant) |
Representation: | Counsel Mr W. SHARWOOD (Plaintiff) Mr K. REWELL SC (First and Second Defendants) |
| Solicitors Legal on London (Plaintiff) Sparke Helmore (First and Second Defendants) | |
File Number(s): | CS 232 of 2018 |
MAGISTRATE STEWART:
Plaintiff’s background
The plaintiff, Ms Hilda SEIMA, was born in Botswana, and moved to Australia in 1987 where she obtained educational qualifications including tertiary and masters degrees in Education and Community Health Promotion. [1]
[1] Transcript of Proceedings 21 November 2019 6.14.
The plaintiff is a social worker and has worked in her current position since 2009. [2] Driving a motor vehicle is part of her role in ACT Health, including attending appointments with clients and conducting home visits. [3]
Previous motor vehicle accidents
[2] Transcript of Proceedings 21 November 2019 5.37.
[3] Transcript of Proceedings 21 November 2019 6.5.
The plaintiff was involved in a motor vehicle accident in 1993:
(a)This was her first rear-end collision and she suffered neck and back injuries as a result. She received pain management for these injuries. [4]
(b)In relation to the neck injuries, the plaintiff received laser treatment for soft tissue injury. [5]
(c)The plaintiff settled a claim in relation to the 1993 injuries. [6]
[4] Transcript of Proceedings 21 November 2019 6.35.
[5] Transcript of Proceedings 21 November 2019 6.46.
[6] Transcript of Proceedings 21 November 2019 16.44.
The plaintiff was also involved in a motor vehicle accident in 2007:
(a)This was also a rear-end collision and the plaintiff suffered lower back injuries as a result. She received an injection to treat those injuries. [7]
(b)The plaintiff may have seen a physiotherapist in relation to these injuries. [8]
(c)In relation to the 2007 injuries, the plaintiff saw a neurologist, Dr Brooder in June 2009.
(d)In cross-examination, the plaintiff accepted that the symptoms in relation to the 2007 accident were significant. [9]
(e)The plaintiff settled a claim in relation to the 2007 injuries. [10]
Plaintiff’s health prior to the 2017 accident
[7] Transcript of Proceedings 21 November 2019 7.10.
[8] Transcript of Proceedings 21 November 2019 7.24.
[9] Transcript of Proceedings 21 November 2019 11.14.
[10] Transcript of Proceedings 21 November 2019 16.45, 21.4.
The plaintiff gave evidence that she was a ‘pretty physically fit person’, undertaking physical activities such as Zumba classes, hiking, attending the gym and jogging up Mount Taylor. [11]
[11] Transcript of Proceedings 21 November 2019 7.33.
The plaintiff saw a neurologist, Dr Ron Brooder on 3 June 2009.
In cross-examination, the plaintiff accepted that she had complained to Dr Brooder of:
‘right sided low back pain that went down [the plaintiff’s] right hip and [the plaintiff’s] right thigh and including tingling in [the plaintiff’s] right thigh.’ [[12]]
[12] Transcript of Proceedings 21 November 2019 22.43.
The plaintiff stated that she did not need to see a physiotherapist for any injuries prior to the 2017 accident. [13]
[13] Transcript of Proceedings 21 November 2019 7.39.
The plaintiff gave evidence that she attended a chiropractor for work-related neck stiffness and to improve her posture in May 2017. The plaintiff held that this was not an ongoing problem. [14]
13 September 2017 collision
Evidence of Hilda SEIMA
[14] Transcript of Proceedings 21 November 2019 8.6.
The Court received evidence from the plaintiff that on 13 September 2017 between the hours of 0730 and 0800, she and her niece, Ms Leungo SEIMA were stationary at a red light in a Holden Barina when another vehicle collided with hers from behind. [15]
[15] Transcript of Proceedings 21 November 2019 8.45.
The plaintiff states that at this time, she heard a ‘thud’ and felt her body being pushed forward. [16]
“I don’t know, I just remember being anxious and feeling overwhelmed … fearful and shocked.” [17]
[16] Transcript of Proceedings 21 November 2019 9.8.
[17] Transcript of Proceedings 21 November 2019 9.38.
Upon reviewing the cars, the plaintiff stated that the cars appeared
“locked…. On top of each other. Like, her [defendant’s] number plates were just imprinted on my [plaintiff’s] car.” [18]
[18] Transcript of Proceedings 21 November 2019 9.1.
In cross-examination, the plaintiff estimated the defendant’s vehicle was travelling at approximately 60km/hr at the time of collision [19] and rejected the contention that the collision was minor or at a speed of approximately 10km/hr. [20]
Evidence of Leungo SEIMA
[19] Transcript of Proceedings 21 November 2019 27.21.
[20] Transcript of Proceedings 21 November 2019 26.24.
The plaintiff’s niece, Leungo SEIMA stated that the plaintiff and herself were stationary at a traffic light to turn right. There were two cars in front of the plaintiff’s car when another car crashed into them from the rear.
Ms Leungo Seima described that the car was hit to the extent that her body nearly hit the dashboard, but her seatbelt pulled her back “harshly” and her head hit the back of the car seat. [21]
[21] Transcript of Proceedings 21 November 2019 45.31.
As a result of the accident, Leungo also suffered some injury to her neck.
Leungo also commenced a claim for these injuries, and in cross-examination stated that the plaintiff dealt with making that claim on Leungo’s behalf before Leungo withdrew that claim. [22]
Evidence of Ainslie TENNANT
[22] Transcript of Proceedings 21 November 2019 48.29; 52.28.
The first defendant, Ms TENNANT accepted that she breached her duty of care in the motor vehicle accident. [23]
[23] Transcript of Proceedings 21 November 2019 3.4.
Ms Tennant stated that she entered the right lane to turn and came to a stop behind two other vehicles whilst waiting for the lights to change. She stated she waited there stationary for a period of 30 seconds to a couple of minutes.
Ms Tennant states that she was positioned approximately 1 - 1.5 metres behind the plaintiff’s car when she came to a stop.
As the lights turned green, Ms Tennant stated that the first car began to take off and Ms Tennant accelerated. The plaintiff’s car did not take off, and Ms Tennant’s vehicle then impacted the plaintiff’s.
Ms Tennant stated that her body did not move in the seat of her car during the collision. She suffered no injury.
Ms Tennant stated the collision did not push the plaintiff’s car forward, and when she inspected the two immediately after the collision, there was space between the cars.
Ms Tennant did not see any damage to either of the cars. Ultimately, the parking sensor in Ms Tennant’s car needed replacing.
Physical injuries following 13 September 2017
Pleadings
In the statement of claim dated 04 October 2018 the plaintiff asserted the following injuries:
(a)New muscuololigamentous (sic) strain of (sic) the cervical spine;
(b)New musculoligamentous strain of the lumber spine;
(c)Aggravation of pre-existing cervical spine pain
(d)Aggravation of pre-existing lumber spine pain;
(e)Post-traumatic headaches; and
(f)Anxiety.
Evidence of Hilda SEIMA
The plaintiff gave evidence that on 13 September 2017, immediately following the accident she returned to work. At work, the plaintiff stated that she had a headache and felt quite unwell. [24] She made an appointment that day to see her general practitioner (“GP”). [25]
[24] Transcript of Proceedings 21 November 2019 10.34.
[25] Transcript of Proceedings 21 November 2019 11.3.
The plaintiff gave evidence of her symptoms following the 2017 collision:
(a)She lived with “excruciating pain” in her neck and experienced headaches around her temples and the back of her neck. [26]
(b)The plaintiff’s back injuries are located in the lower portion of her back. [27] Following the accident, she felt sharp pain in her lower back which prohibited her from walking. [28]
[26] Transcript of Proceedings 21 November 2019 16.28.
[27] Transcript of Proceedings 21 November 2019 11.7.
[28] Transcript of Proceedings 21 November 2019 13.39.
The plaintiff gave evidence of her treatment following the 2017 collision:
(a)The plaintiff first received physiotherapy treatment for her neck and her whole back. She continues to receive treatment from her physiotherapist monthly [29] and recent physiotherapy treatment has been concentrated on her neck. [30]
(b)The plaintiff received approximately six sessions of treatment from a chiropractor for her back injuries, before that course became too expensive to continue. The plaintiff stated that chiropractic treatment related to her whole spine and it was not particularly helpful in treating her injuries. [31]
[29] Transcript of Proceedings 21 November 2019 13.30.
[30] Transcript of Proceedings 21 November 2019 12.1.
[31] Transcript of Proceedings 21 November 2019 12.36.
The plaintiff told the Court that immediately following the accident, her back pain rendered her unable to: partake in Zumba and dance classes, attend the gym, walk long distances, play tennis and jog, including jogging up Mount Taylor as she had previously done. [32]
[32] Transcript of Proceedings 21 November 2019 17.24.
She stated that she was limited in home-duties and chores she could conduct from 13 September 2017 to November 2018. Her niece Leungo Seima assisted with tasks such as vacuuming and lawnmowing whilst she resided with the plaintiff. [33]
[33] Transcript of Proceedings 21 November 2019 18.7.
The plaintiff stated that her physical injuries are getting better and the ongoing physiotherapy treatment is helpful. [34]
Evidence of Leungo SEIMA
[34] Transcript of Proceedings 21 November 2019 15.47; 16.11.
Leungo Seima resided with the plaintiff from 30 July 2017 – 31 December 2018.
Leungo Seima, the plaintiff’s niece provided some evidence about the changes in the plaintiff’s life after the incident:
(a)The plaintiff would frequently complain of pain in her neck and back;
(b)She cut down walking and active activities;
(c)An increase in sleeping.
Leungo Seima stated that she took over various household chores as the plaintiff was unable to, due to injuries including cooking, cleaning, lawnmowing, and laundry. [35]
Evidence of Dr Andrew Brian PORTEOUS
[35] Transcript of Proceedings 21 November 2019 47.33.
Occupational therapist, Dr Porteous provided some evidence in the form of two reports, dated 18 January 2018 [36] and 26 June 2019. [37]
[36] Exhibit 6, page 16 – 54.
[37] Exhibit 6, page 94 – 98.
Following an appointment with the plaintiff 16.1.2018, Dr Porteous finalised the January report based on the records of conversations he kept. [38]
[38] Transcript of Proceedings 22 November 2019 93.
Dr Porteous relied upon his records of conversation, his clinical judgement and the plaintiff’s symptomatic report to inform his assessment. [39]
[39] Transcript of Proceedings 22 November 2019 95.45.
During the appointment with the plaintiff, Dr Porteous found that the plaintiff appeared reliable and genuine. [40]
[40] Transcript of Proceedings 22 November 2019 95.8 -9.
Dr Porteous summarised that the plaintiff’s CT scans indicated degenerative change in her lumbar discs prior to the 2017 accident.
In evidence, he noted that many people with similar radiology results to the plaintiff are asymptomatic. [41] In his experience, Dr Porteous has frequently observed radiology results indicating significant degenerative changes, with no clinical signs due to injury recovery. [42]
[41] Transcript of Proceedings 22 November 2019 94.29; 95.29.
[42] Transcript of Proceedings 22 November 2019 95.22.
Dr Porteous obtained email correspondence from Mr Gillies, regarding an incorrect medical history detailed in the January report:
'Ms Seima said that she had motor vehicle accidents in 1993 and 2007 which had resulted in chronic cervical and lumbar pain and she still had symptoms in these areas at the time of this subject accident.' [43]
[43] Report of Dr Andrew PORTEOUS, page 2:
Dr Porteous then spoke to the plaintiff, Ms Seima on the telephone around 23 or 24 June and provided an amended report on 26 June 2019. [44]
[44] Transcript of Proceedings 22 November 2019 93.9; Report of Dr Andrew PORTEOUS ‘Clarified History’
In cross-examination, Dr Porteous stated and maintained that the plaintiff providing a revised history did not cause him any concern.
Evidence of Dr Iain KELMEN
Consultant orthopaedic surgeon, Dr Kelmen provided evidence in the form of oral evidence and a written report, dated 2 April 2019. [45]
[45] Exhibit 7, page 39 – 48.
At the request of the defendant’s solicitors, Dr Kelmen conducted an appointment with the plaintiff 27 March 2019. [46]
[46] Transcript of Proceedings 22 November 2019 97.14.
Dr Kelmen relied upon his clinical notes taken at the time of the appointment with the plaintiff. These notes, and his report included a record of the collision events from the plaintiff:
‘Just moved forward; stopped suddenly, touched the car in front, and car behind impact from the rear.’ [47]
[47] Exhibit 7, page 41 (Kelmen report page 3).
Dr Kelmen concluded that the plaintiff’s disability as a result of the 2017 collision equalled 0% and did not consider previous motor vehicle accidents to have significantly contributed to her current disability. [48]
[48] Exhibit 7, page 47 (Kelmen report page 9).
In cross-examination, Dr Kelmen maintained that conclusion, and stated that the various reports, CT injection and degenerative changes indicate the plaintiff suffered from lower back issues dating back to 2008. [49]
Evidence of Dr Andrew McIntosh
[49] Transcript of Proceedings 22 November 2019 99.
Dr McIntosh provided evidence in the form of oral evidence and two written reports, dated 9 May 2018 and 10 May 2019. [50]
[50] Exhibit 7, page 1 – 38 and Page 49 - 86.
Based upon the photographs of the vehicles involved in the collision, Dr McIntosh stated that it was ‘bordering on the complete impossible’ that the defendant’s vehicle was travelling at 60kms/hr. [51] In his first report he assessed the speed of the defendant’s vehicle as being 10 km/hr at the time of the impact and that this caused a change in velocity of 5.5 km/hr as a result of the collision with the plaintiff.[52]
[51] Transcript of Proceedings 21 November 2019 82.6.
[52] Exhibit 7, page 1 – 38.
In his report, and affirmed in his oral evidence, the conclusion that Dr McIntosh reached was that injury of any kind to the plaintiff in this collision was unlikely, and the alleged injuries suffered by the plaintiff were not caused by the defendant.
In his supplementary report, Dr McIntosh addressed each of the criticisms posed by Dr Short. Dr McIntosh, throughout his initial report, supplementary report, and oral evidence, maintained that the collision and relevant variables of that collision would not have caused injuries as claimed by the plaintiff.
Dr Andrew Liam Short
Dr Short provided evidence in the form of oral evidence and a written report, dated 24 April 2019. [53] His report sets out that in impacts with a change of velocity between 2 and 5.5 km/hr whiplash events occur. He referred to data from figure 21 of Dr McIntosh’s report that did not include subjects with pre-existing injuries.
[53] Exhibit 6, page 55 – 93.
In cross-examination, Dr Short held that Dr McIntosh’s report lacked literature addressing the impact of pre-existing injuries on subsequent injuries following collisions. [54]
[54] Transcript of Proceedings 21 November 2019 66.46.
He accepted that there is limited literature available on the issue. [55]
[55] Transcript of Proceedings 21 November 2019 71.8
Based upon the photographs of the vehicles involved in the collision, Dr Short stated that it was ‘near-on impossible’ that the defendant’s vehicle was travelling at 60km/hr.[56]
Psychological injuries following 13 September 2017
[56] Transcript of Proceedings 21 November 2019 74.14.
The Court heard evidence from the plaintiff that she received treatment from a psychologist following the 2017 accident in relation to anxiety when driving. [57]
[57] Transcript of Proceedings 21 November 2019 13.19.
Ms Leungo Seima also gave evidence of the anxieties that the plaintiff experienced on the road, describing that the plaintiff would be afraid to drive and “panic” at times on the road. [58]
[58] Transcript of Proceedings 21 November 2019 47.5.
The plaintiff stated that she saw a psychologist, Mr Leigh NOMCHONG on six occasions for the driving matters and grief management in relation to her late father. [59]
[59] Transcript of Proceedings 21 November 2019 11.25; 12.15; 13.20.
The records of this psychological treatment could not be produced as the plaintiff provided evidence that Mr Nomchong’s practice has since closed. [60]
[60] Transcript of Proceedings 21 November 2019 14.
The plaintiff still experienced driving anxieties, but they are subsiding. [61]
The plaintiff’s employment and leave following 13 September 2017
[61] Transcript of Proceedings 21 November 2019 15.31.
The plaintiff stated that she ceased driving to work and instead used public transport for a period of time. [62]
[62] Transcript of Proceedings 21 November 2019 13.29.
The plaintiff gave evidence that she missed approximately one month of work across the year of 2017 as a result of the accident. [63]
[63] Transcript of Proceedings 21 November 2019 14.27 – 44; Exhibit 1: Letter – missed days of work Ms SEIMA.
The plaintiff’s workplace produced a letter outlining which days the plaintiff had taken off work as personal leave, [64] the plaintiff gave evidence that she had checked that letter and those dates and she confirmed that they were dates she had missed work as a result of the 2017 collision. [65]
[64] Exhibit 1.
[65] Transcript of Proceedings 21 November 2019 14.43; 37.17.
In relation to her leave taken, the plaintiff gave the following evidence:
(a)In re-examination, the plaintiff stated that sick leave is equivalent to personal leave. [66]
(b)The plaintiff stated that there was a limit, she estimated, of 7 days personal leave that she could have taken without medical certificate. [67] She stated that she would see physiotherapists and take personal leave on those occasions. [68]
(c)The plaintiff stated that time off work with a medical certificate decreased the hours available for her sick leave balance. [69]
[66] Transcript of Proceedings 21 November 2019 36; 43.
[67] Transcript of Proceedings 21 November 2019 43.25.
[68] Transcript of Proceedings 21 November 2019 37.19.
[69] Transcript of Proceedings 21 November 2019 43.41.
The plaintiff stated that she continued to take time off work for her ongoing physiotherapy appointments approximately once a month. [70]
Costs associated with the plaintiff’s injuries
[70] Transcript of Proceedings 21 November 2019 15.20.
Medical imaging
(a)X-ray of her neck;
(b)CT scan of her spine. October 2017 (Paid by NRMA).
Treatment
(a)Physio (paid by NRMA);
(b)Some GP sessions (paid by NRMA);
(c)Posture pillow.
Griffiths v Kerkemeyer damages
The plaintiff claims two types of damages under this head – although they were not particularised on the statement of claim or in a schedule of damages:
(a)Lawnmowing:[71] The plaintiff had mowed the lawns once herself in 2019 and otherwise her niece, her friend’s son on one occasion at the cost of $50 and $75 for Jim’s Mowing on two occasions.
(b)Vacuuming:[72] The plaintiff had only vacuumed once in 2019 and prior to that her niece had vacuumed for 40-60 minutes each fortnight or month up until the end of 2018.
CONSIDERATION
[71] Transcript of Proceedings 21 November 2019 16.45; 18.40; 19.8.
[72] Transcript of Proceedings 21 November 2019 18.19.
This matter gave rise to closer than usual scrutiny in assessing the reliability and truthfulness of the plaintiff. Given her assertion in cross-examination about the impact speed being 60 km/hr, the change in her report of the history of her pre-existing injury symptoms to Dr Porteous and the slightly different account of the collision that Dr Kelman noted, a great deal of care was taken in assessing her evidence and claim.
Ultimately, I am content with Dr Porteous’ view on the change in the plaintiff’s history to him.
Dr Kelman’s notes are an evidential oddity, but the experience of the Courts is that this is not unusual. [73] The version alleged in the notes did not assist the claim in any way, so the plaintiff could not be accused of trying to better her claim in this regard. The plaintiff denied the content of the notes in her evidence[74]. I am satisfied that there is a persuasive level of consistency between her evidence in court and the statement of claim and I am not sufficiently distracted by this issue to find against the plaintiff because of it. In short, I find that this issue is an evidential ‘red herring’.
[73] Mason v Demasi [2009] NSWCA 227.
[74] Transcript of Proceedings 21 November 2019 24.
Ultimately, after careful consideration, I do not think that this a matter where the whole of the evidence or the claim should be rejected out of hand. I make that decision based on my own assessment of the plaintiff as a witness of overall truthfulness. My own view was also supported by Dr Porteous’ assessment of the plaintiff’s truthfulness. [75] I am comforted by the decision in Norris v Zimmer[76] in this regard. I think that the plaintiff probably felt confronted and that her integrity was being questioned by the cross-examination process and as a result she responded by ‘over-egging the pudding’ in relation to the collision speed. In saying this, I did not regard Mr Rewell SC’s cross-examination as anything other than wise and well-placed.
[75] Transcript of Proceedings 22 November 2019 93; 95.36-40
[76] [2010] ACTSC 51, per Harper M.
In the figures cross-checked by Dr McIntosh, the mathematically calculated speed range of the defendant’s car at the time of impact with the plaintiff’s car was 5.7 – 9.0 km/hr, consistent with the experts view of no more than 10km/hr and what I understand to be broadly a change in velocity of 2.8 – 5.5 km/hr. These figures correspond almost exactly to the change in velocity range referred to by Dr Short in the graph that he extracted from Dr McIntosh’ report. It is clear that whiplash type injuries do occur within this change in velocity range and I reject Dr McIntosh’s opinion that the plaintiff was not injured in the collision.
I reject the evidence of Dr Kelman insofar as it is inconsistent with Dr Porteous – they both cannot be correct and I prefer the evidence of Dr Porteous and his more thorough assessment of the plaintiff - I note for example that Dr Kelman took no notes on the level of symptoms that the plaintiff experienced after her 1993 and 2007 collisions. That did not set a helpful platform from which to provide an opinion on present symptomology. His report does not answer why there has been a significant reduction in in the plaintiff’s ability to conduct physical activity since the 2017 collision.
I am persuaded on balance that the plaintiff did suffer the injuries she claims she has as a result of the collision. There has been a dramatic change in her activity levels post-accident because of her injuries and she has suffered the unsurprising psychological consequences of being hit from behind by a negligent driver for the third time. The absence of malingering and over-exaggeration of these injuries tended to support my view of her overall honesty.
DEFENDANT’S SUBMISSIONS
Mr Rewell SC’s key submission was for the Court to decline the whole claim. As I have decided in the preceding paragraphs, I do not agree with that course of action.
I reject the submission that the plaintiff and Ms Leungo Seima together attempted to mislead the Court as to the impact velocity. I do accept that they both exaggerated the speed of impact – but it is obvious that the level of injury did not reflect a 60 km/hr impact. The sum total of this evidence caused a closer scrutiny of the plaintiff’s evidence and claim – but, ultimately, I find that she has met the standard of proof.
I agree with the defendant’s submissions that this was a low speed impact and certainly 10 km/hr or less. On the defendant’s case this makes injury improbable – but not impossible. There is a distinct lack of research in relation to the effect of further rear-end collisions on previously injured people. I have turned to the evidence of the plaintiff and the medical evidence to consider this issue. Despite her departure from strict truth about the speed of the impact, I find that she was truthful about the nature of her injuries. I find that the plaintiff does fall within the small percentage of people who suffer ongoing whiplash type injury from low speed rear-end collisions.
I do not agree with the defendant’s submissions on personal leave. There is a line of authority that a loss of entitlement to sick leave may be sought as damages.[77] The authorities are of some antiquity and surprising brevity, but they remain. Exhibit 1 sets out that 4 days personal leave was taken by the plaintiff in the fortnight after the collision and that overall the Plaintiff claimed damages for about 17 days of personal leave taken between 13 September 2017 and 17 October 2019. That fact does not point to malingering or injuries out of step with the claim. I find that some small addition to general damages should be made for the effect of the loss of personal leave credit and so I have allowed half of the total value of that leave.
Findings of fact
[77] Loughnan v Kurzyp [1977] TasSR (NC) 4 and Erceg-Hurn v Hurn (WA FC, 23 June 1989, unreported, BC8901031)
I make the following findings of fact:
(a)The plaintiff was born in June 1962 and is now almost 58 years old.
(b)Prior to 13 September 2017 the plaintiff had pre-existing degenerative injuries to her cervical and lumbar spine but they were not the source of any material pain, restrictions or discomfort in her neck, back and legs. She was healthy and active and ran, walked, played tennis, attended the gym and attended Zumba dance classes. She did not require assistance with domestic chores.
(c)On 13 September 2017, the stationary car that the plaintiff was driving was struck from behind by the defendant’s car.
(d)The impact speed of the defendant’s vehicle was low speed, likely to be no more than 10 km/hr.
(e)The damage to both vehicles was $723.31 to the plaintiff’s vehicle and the cost of the replacement of a parking sensor to the defendant’s vehicle.
(f)As a result of the collision on 13 September 2017 the plaintiff suffered:
(i)A new musculoligamentous strain to of the cervical spine;
(ii)A new musculoligamentous strain of the lumber spine;
(iii)Aggravation of pre-existing cervical spine pain
(iv)Aggravation of pre-existing lumber spine pain;
(v)Post-traumatic headaches;
(vi)Anxiety.
Damages
The plaintiff submitted that general damages should be assessed at $40,000. She also sought a buffer of $20,000 to allow for future economic loss due to an extended delay between future jobs. Given her age and disability I find that the plaintiff will have great difficulty if she finds herself in the position of having to seek new employment. The defendant has submitted that no general damages should be awarded. I disagree and I find that a total amount of $50,000 is appropriate in the circumstances. It is supported by regard to comparative cases and I allow it with a 60% component attributable to the past. For clarity I have allowed a figure of $15,000 for a buffer less 15% for the vicissitudes of life ($12,750) and added that to the most part of general damages sought to arrive at the figure of $50,000.
In terms of interest, Schedule 2.2 of the Court Procedures Rules 2006 sets a rate of 4.0% plus the Reserve Bank of Australia (RBA) cash rate applying before the start of the period. The RBA website informs the Court that the cash rate was set at 1.5% as at 05 September 2017. Thus, interest of 5.5% will apply to 60% of the general damages award for the (almost) 3 years up to the date of this judgment.
I allow a small amount (half of the claim) for loss of entitlement for personal leave. That amounts to $2,797.18. I decline to order interest on that award.
The claim for loss of income was not pressed.
The claim for loss of future earnings was not pressed.
I allow the other out of pockets claimed at pages 3 and 4 in the Statement of Particulars before trial filed 10 May 2018. That amounts to $5,446.62. Interest at the above-calculated Schedule 2.2 5.5% rate amounts to $898.69
The future treatment costs claimed are extracted from the report of Dr Porteous. They are based on his findings which I accept. The sums were not specifically challenged by the defendant. They are conveniently set out and not egregious. I allow the claimed figure of $28,515.00 less 15% for the vicissitudes of life giving a sum of $24,237.75.
I allow the past Griffiths v Kerkemeyer[78] claim at $35.00 per hour x 0.15 hours (or 9 minutes) per week x 3 years = $819.00. I have based this on about 40 minutes per month. Interest on that award following paragraph 81 above at 5.5% amounts to $135.14.
[78] [1977] HCA 45.
I allow the future Griffiths v Kerkemeyer claim at $35.00 per hour x 0.15 hours per week x 31 years on the 3% tables. A 15% deduction for the vicissitudes of life will then be applied with a final figure of $4,725.78 being allowed.
A summary of damages that I have assessed appears on the table below:
| General damages | $ 50,000.00 |
| Interest on general damages (60% of the sum of $50,000, or, $30,000 at 5.50% for 3 years) | $ 4,950.00 |
| Loss of entitlement to personal leave | $ 2,797.18 |
| Past out of pocket expenses | $ 5,446.62 |
| Interest on past out of pockets at 5.50% over 3 years | $ 898.69 |
| Future out of pocket expenses | $ 24,237.75 |
| Past Griffiths v Kerkemeyer component ($35.00 per hour x 0.1 hours per week x 3 years) | $ 819.00 |
| Interest on past Griffiths v Kerkemeyer component ($819.00 x 3 years x 5.5%) | $135.14 |
| Future Griffiths v Kerkemeyer component (at 0.15 hours at $35 per week for 31 years on the 3% tables) 5.25 x 1059 = $5,559.75 less 15% = | $ 4,725.78 |
| TOTAL | $ 94,010.16 |
The orders of the Court are:
1. Judgment be entered for the plaintiff against the defendants in the sum of $94,010.16.
2. The second defendant pay the costs of the plaintiff’s costs of the proceedings as agreed or assessed.
3. The usual orders as to interest.
4. Order 2 does not take effect for a period of 14 days and if a party notifies my associate in writing in that period that it wishes to be further heard in relation to costs, does not take effect until further order of the Court.
| I certify that the preceding ninety-two [92] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Stewart Associate: Kefilina Faupula Date: 4 June 2020 |
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