Setton v Eves - [2003] WADC 176

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SETTON -v- EVES [2003] WADC 176

CORAM: COMMISSIONER GILES

HEARD: 13 NOVEMBER 2002

DELIVERED : 11 AUGUST 2003

FILE NO/S: CIV 148 of 2002

BETWEEN: GABRIELLA SETTON
Plaintiff
AND
SALLY ANN EVES
Defendant

Catchwords:

Motor vehicle accident - Assessment of damages

Legislation:

Motor Vehicle (Third Party) Insurance Act 1943

Result:

Damages awarded

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: Simon Walters
Defendant: Talbot & Olivier

Case(s) referred to in judgment(s):

Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
McDonald v Moore [2003] WASCA 21
Wylde v Aristondo'Arriaza (1997) 25 MVR 539

Case(s) also cited:

Nil

COMMISSIONER GILES: The plaintiff seeks damages for negligence by the defendant in respect of injuries suffered in a motor vehicle accident on 1 August 1999. Liability is admitted by the defendant. A trial was conducted to assess damages.

Plaintiff's pre-accident history

The plaintiff was born on 12 October 1968 in Sydney. She completed her secondary schooling in Sydney and matriculated with the school's first prize in Home Science. She worked part-time as a nanny in her last two years of high school. On graduating, she was accepted into a nursing diploma, but deferred this for a year, and spent some time overseas, travelling. After returning to Sydney in April 1987, she worked again as a nanny, managing a sandwich bar, and as a kitchen hand at a hotel in Hinchin Brook Island in Queensland.
The plaintiff never took up the nursing option. On 9 August 1989, she commenced a four‑year apprenticeship in cookery. During her apprenticeship, she worked in various restaurants in Sydney, ranging from cafés to "fine dining". She completed her apprenticeship in April 1993. She went on to work at a number of restaurants in and around Sydney as head chef or sous‑chef, her duties including training apprentices.
During and after her apprenticeship, the plaintiff remained in continuous employment, but tended to move frequently from one employer to another.
In May 1995, the plaintiff travelled overseas, and returned to Fremantle in WA working for a short time at a restaurant there, and then in a restaurant in Monkey Mia.
In November 1997, the plaintiff moved to Yallingup, seeking work She quickly obtained employment, first at a café and then at the restaurant at the Amberley Estate Winery. She was sous-chef, her responsibilities including catering for large functions, training staff and a full range of other duties as a chef. She earned $562 gross per week. She made many friends in this job, and obviously enjoyed it greatly, staying in this position for two years. This position at Amberley Winery was in fact the longest she had ever spent in the one position in her career as a chef.
While in Yallingup, the plaintiff met Bradley Phillips and formed a relationship with him. They lived together for a period. Around May 1999 the plaintiff left for Broome. Initially she said in her evidence this move was to "see Australia". However, it transpired later in her evidence that she had left after her relationship with her partner had broken up.
The plaintiff worked for a short period at a restaurant in Broome earning $500 gross per week, but her aim was to work as a cook on a pearl farm or pearl boat. Eventually she was offered and accepted a position at Kuri Pearl Farm, which is north of Broome. This is a very isolated spot with access only by aeroplane and sea. The job involved cooking three meals a day for the workers on pearl boats. It involved a fly‑in/fly‑out roster of two weeks on and one week off. She was due to commence work at Kuri Bay on 4 August, 1999.

The accident

Unfortunately, on 1 August 1999 a few days prior to taking up the position at Kuri Bay, the plaintiff was involved in a motor vehicle accident. On that day the plaintiff was returning to Broome as a passenger in a car, which was being driven by a friend. The plaintiff was asleep, and awoke to hear her friend shouting that they had "hit a cow".
She described the vehicle bumping off the road into the bush, and she and her friends being trapped in the car for about four hours. The plaintiff's friend was injured quite badly and suffered an amputated leg as a consequence of the accident. The plaintiff described feeling both of her legs being trapped, "with the dashboard on our lap", and the fear of not knowing whether her legs were crushed or how badly her legs were injured.
The plaintiff was taken to Broome Hospital where she spent nine days. For the first five days she could not walk, or bend or stretch her legs. She was badly bruised from the hips down. On discharge from the hospital, she walked with difficulty, on crutches and she had a limp for a significant period. General practitioner, Dr Jarrad, who attended at the accident, and continued her care during the subsequent two years, described her injuries as constituting:
(i)fracture to the left metatarsal and proximal phalanx;
(ii)extensive soft tissue injuries to both lower limbs;
(iii)large effusions on both knees;
(iv)soft tissue injuries to cervical and lumbar spine;
(v)laceration to posterior right leg.
She also suffered injuries to her back causing lower back and neck pain but this did not manifest itself for some days after she was discharged from hospital. Later investigations revealed a fracture of the distal phalanx of the great toe, which produced some stiffness. Later examination resulted in a diagnosis of chondromalacia patella in her knees as a result of the accident. This is a thinning or damage to the articular cartilage of the knee. Physiotherapy was recommended for this condition.
The accident led to the plaintiff reconciling with her former partner. He came straight to Broome on hearing of the accident and they have remained together ever since. She said the accident "shook both of us up … a lot". I take this to mean that it caused both of them to think seriously about their future as a couple and to make a commitment to each other.
The plaintiff was also treated twice at Fremantle Hospital during the immediate aftermath of her discharge from Broome Hospital. At Fremantle Hospital, her left leg was put in plaster and she was given a walking frame.
As the swelling of her left foot subsided later in September 1999, the plaintiff saw a lump on that foot. This was caused by a malunion of the fracture to her left metatarsal and proximal phalanx which eventually required surgery.
The plaintiff stayed in the north west with her partner after the accident, apart from short visits to Perth for surgery and to Sydney to visit her family. She consulted a physiotherapist and a chiropractor in Broome concerning her neck and back pain, which continued to bother her. She continued to experience pain and swelling in her left foot and pain in both of her knees, and continued to limp at least until at least February 2000.
The plaintiff obtained work for the first time after the accident, after her cast was removed, doing a three‑week stint at an Aboriginal child care centre in Broome as a relief cook, from 8 January to 1 February 2000. This suited her because she was able to work for two hours per day, for three or four days per week, which put less strain on her left foot, which she found became swollen and painful on standing for more than about four hours. She applied for this position when it was advertised for permanent appointment but was unsuccessful because the child care centre preferred an Aboriginal person for the job.
On 7 March 2000, the plaintiff underwent an arthrodesis in Perth by orthopaedic surgeon, Mr Gerard Hardisty. This was to fuse the first metatarsal joint in her left foot. He described the purpose of the procedure as being to eradicate the joint space, to remove any movement at all and "with loss of movement usually comes loss of pain." She was in a cast for about 10 weeks following the surgery.
On a date which is unclear to me but was probably in about mid‑2000, the plaintiff obtained work at the pool crèche in Broome, two hours a day for three or four days per week.
On 15 April 2001, the plaintiff had a child, Chloe. She returned to work at the pool crèche when Chloe was five weeks old. It was ideal because she could take the baby with her to work. She could cope with the duties although still suffered some leg and foot pain.
In August 2002, the plaintiff, her partner and the baby returned to Yallingup where they have stayed ever since. Her partner works on a charter vessel, but she has not worked since returning there.
The plaintiff would like to obtain work again at Amberley Winery, or a similar setting. She has access to child care for Chloe through family, friends and other informal arrangements. However, she said that she cannot work as a chef, because it involves standing for lengthy periods. While part-time work is available for a chef it is still necessary to perform eight‑hour shifts.
The plaintiff cannot stand for this period because after about four hours, her left foot swells and becomes painful and she has to put it up and rest. She also experiences some pain in her knees, lower back and neck but the main problem from the point of view of working is her left foot. She misses working as a cook, and particularly misses the social contact with friends at work.
She has also had to give up some recreational activities such as squash and walking.
Her limp resolved at some time in 2000, although there is no evidence as to precisely when this occurred. She recalls still limping when she visited her family in early December 1999 and reported limping to Mr Hardisty in February 2000.
She also has scars on the dorsum of her left foot, on her right calf and on her hip which was the donor site of her bone graft for the arthrodesis. These latter two scars are described by Mr Tim Cooper, plastic and reconstructive surgeon, as hypertrophic. When the plaintiff gave evidence she showed the court the scars. The scar on the left foot and right leg are not particularly prominent, but the scar on her hip is very noticeable.

The plaintiff's evidence

Ms Setton's evidence was clear and forthright. She appeared to be a witness of the truth. She made no attempt to exaggerate her symptoms and freely admitted several matters, which she knew would have the effect of reducing her damages award. She is an intelligent, insightful person, who has coped well with her injuries, and has many positive features in her life. She was certainly not allowing the accident to limit her general enjoyment of life although it had no doubt put some mild limitations on her general physical mobility.
The plaintiff had considerable regret about having to give up her chosen trade as a chef. She said she got a good deal out of being a chef, particularly because of the social contact it involved.
The plaintiff's career aspirations as a chef seem not to be the central part of her life, but her ability to earn a decent income, and the social contact she gained from work, were obviously important.
The plaintiff had always wanted to have children, but expected she would have still been able to work in the evenings as a chef, which work is readily available in Yallingup. She would have worked part‑time (that is, fewer than five or six shifts weekly) until her children were at school. She decided to have Chloe when she did because she was out of the full‑time workforce at the time, still recovering from her injuries and thought it was a good time to do it.
She did not strike me particularly as a "stay-at-home" mother. She had always worked, even while she was a high school student. Her work history revealed many jobs, but a pattern of continuous employment. She returned to work six weeks after Chloe was born. She has investigated the availability of childcare in Yallingup and was clearly quite keen to work again. She would like to have another child although she is not sure when.
The plaintiff acknowledged freely that she could use her trade skills in some other capacity than as a chef in a restaurant, such as a caterer, teaching cooking (she would need further qualifications to do so) and that she could work in a different field, such as childcare. She would like to find work similar to that in the childcare centre in Broome, where she could work short shifts as a cook. This work was not available in Yallingup although there was work available for chefs generally. She felt she could work up to four hours daily at present.

The issues in dispute

The two main issues in dispute relate to the plaintiff's entitlement to an award for future economic loss. These issues are:
(i)what is the extent of the plaintiff's retained work capacity; and
(ii)what impact does the reconciliation with her partner, and the birth of Chloe, have on her award?

Extent of retained working capacity

The plaintiff's own assessment of her retained capacity is set out above.
Associate Professor Harper is a medical practitioner, specialising in occupational medicine. He saw the plaintiff on 6 September 2001 and 17 September 2002. His view, as stated in his reports and supplemented by his oral evidence is that Ms Setton has had a good outcome from the surgical procedure on her foot. However, in his view it had resulted in a major change in the mechanics of Ms Setton's foot.
Dr Harper describes Ms Setton's disabilities as constituting "a mild residual disability of the left foot and lumbar spine. She also has a mild residual disability due to scarring on her right calf and left hip". He describes the initial injuries as being of moderate severity.
He was of the view that it would not be possible for her to work again as a chef.
Dr Alan Home, occupational physician, gave evidence on behalf of the defendant. He had reviewed in considerable detail the various reports written on the plaintiff, and examined the plaintiff on 29 October 2002. He concluded that there was no reason on clinical grounds why the plaintiff could not work in her chosen trade as a chef. However, he did recommend that in light of her subjective complaints of pain, that she should work in an area which did not require her to stand for lengthy periods of time. He did allow for the possibility of a mild functional disability to the left ankle, evidenced by tenderness over the joint and a slightly smaller circumference of the left calf compared with the right.
Dr Home distinguished between his clinical findings and the plaintiff's subjective accounts of her pain. However, he does not suggest that she is malingering, or exaggerating her pain and recommends she stay away from work involving lengthy periods of standing.
Dr Harper was of the view that the plaintiff's account of pain was entirely consistent with her history of a fracture, and subsequent fusion. I accept his evidence, to the extent that it conflicts with that of Dr Home.
Mr Hardisty gave evidence. He operated on the plaintiff to fuse her left tarso‑metatarsal joint. Mr Hardisty said the surgery was successful in that he had successfully fused the joint and removed the source of her pain.
Mr Hardisty said there was no reason why the plaintiff could not now work as a chef. However, he was asked no questions concerning his specific knowledge of the requirements of that job. I accept Dr Harper's evidence over that of Mr Hardisty. While Mr Hardisty is an orthopaedic surgeon specialising in the lower limb, Dr Harper is a specialist in occupational medicine.
Professor Charles Mulvey of an organisation called "Labour Net" gave evidence. Professor Mulvey's evidence consisted of an analysis of current labour market data from the Australian Bureau of Statistics and on the internet about the availability of various jobs in of the labour market, and average weekly earnings of those jobs. He had not been asked to comment in his report on these matters in the context of Yallingup. Hence his evidence as to availability of work for the plaintiff was of little assistance. However I rely to some extent on his evidence in making a calculation of a likely rate of pay to assess the plaintiff's residual earning capacity.
Ms Bosich, a registered psychologist administered some tests on the plaintiff. These illustrated the plaintiff had an interest in work with a "social" bent and that the plaintiff was sufficiently intelligent to undergo retraining at a tertiary level.
An occupational therapist, Ms Gollow, also of "Labour Net", gave evidence. Ms Gollow had not examined the plaintiff nor had she even met the plaintiff. She had based her opinion on the various medical reports on the plaintiff, which had been provided to her. Ms Gollow said herself that she would have preferred to do a physical work evaluation of the plaintiff. Because of these limitations, her evidence was of little assistance.
The evidence brought by the defendant generally about retained work capacity did not assist the court in determining what job opportunities, if any, were available to this particular plaintiff, given her current residence in Yallingup, her skills, her aptitude for other work, and her physical limitations.
The data presented to the court about the work presently available in Perth for someone of Ms Setton's skills and abilities was lacking in detail. Significantly, no evidence was put before the court to dispute Ms Setton's assertion that work as a chef, even as a part‑time chef, requires eight‑hour shifts to be worked. I accept her evidence on this point.
I am of the view that Ms Setton has retained capacity to work as a caterer, a clerk, child care worker, a nanny or a teachers' aide.

Impact of reconciliation with her partner and the birth of the child

The plaintiff said she would work part‑time until her children were at school, even without having suffered the accident. One approach to this would be to calculate her future economic loss from the time that Chloe reaches school age, rather than from the date of the trial. This is not without its difficulties. The plaintiff may well have not had a child when she did had not the accident occurred. However, it is her lost capacity as a consequence of the accident which is important. Absent the accident she certainly had the capacity to work as a chef.
The better approach is to simply assume, on the basis of what is now known about the plaintiff's choices, that after the date of the accident she would have taken some time away from work for child‑rearing, and would have been earning part‑time wages as a chef during this time. This is best dealt with in my view by a deduction for contingencies.
To summarise my findings thus far, I find that:
1.Ms Setton suffered a moderately severe injury on 1 August 1999.
2.She spent nine days in hospital unable to walk.
3.While she made a relatively rapid recovery, her left foot began to give her pain.
4.This was as a consequence of a malunion of a fracture to her left foot which had happened in the accident.
5.She also suffered some minor trauma to her left knee, her lower back and her neck as a consequence of the accident.
6.Had she not suffered the accident she would have gone to Kuri Bay and worked as chef at the pearl farm. On the balance of probabilities she would have remained in that job for a significant period of time. I have assessed the plaintiff's award on the basis of this being a two‑year period.
7.It is not possible to say with certainty whether she would have had a child in 2001 had she not had the accident However, I find that the plaintiff would probably have had one or two children before she turned 40.
8.The plaintiff is unable to work in her chosen trade as a chef, and will remain unable to do so permanently, on either a part‑time or full‑time basis. This is because her foot injury limits her ability to stand for lengthy periods, and the requirement to work eight‑hour shifts.
9.The plaintiff has many skills, aptitudes and abilities and is relatively young.
10.The plaintiff's history, her continuous participation in the workforce, her return to the workforce six weeks after the birth of her child, and her return to the workforce relatively soon after the accident, all indicate that she is keen to participate in paid employment, and will do so to the extent of her capabilities, including while her child is young.
11The plaintiff trained at a relatively high level and obviously obtained a great deal from her work as a chef of a non-economic nature. This included the social contact with her colleagues.
12.Because of the accident, the plaintiff has a retained work capacity to work on a full-time basis as a caterer, and a child care worker, and a teachers' aide.
13.There was no evidence concerning the availability of such opportunities in Yallingup, except that of the plaintiff who indicated that there may be some fairly limited openings for her, in child care or in running a small catering business.
14.She could probably work full‑time as a clerk but no evidence has been adduced about the availability of such work in Yallingup, or the plaintiff's aptitude for it.

Pain and suffering and loss of amenities

The plaintiff was involved in a motor vehicle accident which at the time must have been extremely shocking and distressing. While she did not dwell on it, it is clear from her evidence and that of Dr Jarrad that the accident itself was most traumatic, involving the plaintiff being trapped in a motor vehicle for four hours next to her seriously injured friend. During this time she had no idea what kind of damage had been done to her.
Fortunately, the plaintiff was not severely injured in the accident, and has made a good recovery from her injuries. She is young, has a positive outlook on life, has marketable trade skills and is intelligent and insightful. She has indeed a bright future.
The plaintiff's convalescence was relatively lengthy. She had to undergo subsequent surgery which resulted in her leg being in a slab plaster for 10 weeks. She continues to suffer pain in her left foot, her knee, her back and her neck which impedes to some extent her enjoyment of life. She is also denied the opportunity to work in her chosen trade as a chef from which she gained much satisfaction, social contact and enjoyment. All of these are matters which sound in damages.
The Motor Vehicle (Third Party) Act 1943 requires me to assess the plaintiff's non‑pecuniary loss as a "proportion, determined according to the severity of the non‑pecuniary loss of the maximum amount that may be awarded" (s 3C(2)). The maximum amount may only be awarded in "a most extreme case".
The plaintiff's case is a far cry from a most extreme case. I have referred above to her youth, physical and other abilities and the minor effect of her disabilities on her life. I am also influenced, on the other side of the calculation by the length of her recuperation, the circumstances of the accident and the permanency of her condition. I assess her case as 8 per cent of a most extreme case, and accordingly award her $19,200,000 for this head of damage, keeping in mind the statutory restriction in s 3C(2) of the Motor Vehicle (Third Party Insurance) Act 1943 as explained in Wylde v Aristondo'Arriaza (1997) 25 MVR 539 and McDonald v Moore [2003] WASCA 21 and the authorities discussed at 18 – 20 of that case.

Past economic loss

The plaintiff's pre‑accident rate of pay was $482.65 net per week working a 40‑hour week. The plaintiff's likely income had she taken up the Kuri Bay position would have been $746.67 net per week working 60 hours per week or more.
The plaintiff claimed past economic loss based on the assumption that she would have stayed at Kuri Bay from August 1999 until the date of the trial in November 2002, a period of 3 years and 3 months.
I think this is an overly ambitious claim. The longest period that she had ever worked at a job was two years at Amberley Winery. Kuri Bay is an extremely remote location. The hours of work expected were in excess of 60 hours per week. The plaintiff spoke of travelling again, once she left Yallingup. While she revised this evidence to talk about the break‑up with her partner, I gained the impression that the plaintiff had intended to set out on another adventure, and that she would have probably not stayed at Kuri Bay for more than two years.
After this, I expect she would have continued working, but probably not at the high rate of pay enjoyed at Kuri Bay. I gather that the higher rates commanded by the Kuri Bay position are largely attributable to the extensive overtime required.
I calculate the plaintiff's past economic loss with these findings in mind, as follows:
$746 net per week x 52 weeks x 2 years = $77,584.
$482 net per week x 64 weeks = $30,848.
This period of slightly more than three years covers the period between the accident and the trial.
Total lost earnings from the date of accident to the date of trial are $108,432.
In January 2000 the plaintiff demonstrated a residual earning capacity by obtaining short‑term employment as a cook with the Aboriginal child care centre. She worked 20 hours per week earning $228 net and $265 gross per week. Allowing 16 weeks off for the surgery and recuperation, I assess the plaintiff's residual earning capacity during this period as follows:
$228 net x 4 = $912 per month x 31 months = $28,272.
This figure deducted from the total figure estimated for lost past earnings brings past economic loss to $80,160.
One complicating factor is that the plaintiff had her child, Chloe on 15 April 2001, while working at the child care centre, during which time she took six weeks away from work.
It is suggested for the plaintiff that the plaintiff may well have not had a child at that point in her life had she not had the accident. It is most unlikely in my view that she would have reconciled with her former partner had the accident not occurred. It is impossible to predict the vagaries of the human heart. The plaintiff was by then in her early thirties, which is when many women become more conscious of the ticking biological clock. Whether she would have formed a new relationship in Kuri Bay or elsewhere, and whether that would have led to parenthood is simply impossible to say. However, in my view it is not likely that the plaintiff would have had a child when she did, had the accident not occurred. This is because it was the accident which precipitated the reconciliation with her former partner. It is also because of the plaintiff's evidence that she had Chloe when she did, because she was not working and it seemed like a good time to do it.
Because of this I make no allowance in the past economic loss award to take account of the plaintiff having a period out of the workforce having a child. I note that in any event it was a very short period of only six weeks.
Interest on the plaintiff's award is calculated at $80,160 x 3 per cent x 3.25 years = $7,815.
The plaintiff's total award for past economic loss is $87,975.

Past lost superannuation benefits

The plaintiff was entitled to receive 7.5 per cent of $32,824 being her likely gross wages from 1 August 1999 to 31 June 2000, being $2,461.
The plaintiff was entitled to receive 8 per cent of $35,808 being her likely gross wages from 1 July 2000 to 31 June 2001, being $2,864.
The plaintiff was entitled to receive 8 per cent of $33,072 from 1 July 2001 to 30 June 2002, being $2,645.
The plaintiff was entitled to receive 9 per cent of $5,805 being her likely gross pay between 1 July 2002 and the date of the trial, being $522.
Hence the plaintiff would have had entitlement to $8,492 in superannuation benefits between the accident and the trial.
The plaintiff did actually receive some superannuation entitlements during the period from her two stints of part‑time employment, at the Aboriginal Child Care Centre and at the Aquatic Centre. These amounts would be small. I reduce the figure to $7,500 to take account of this. In accordance with Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192, I deduct 30 per cent for tax and administration charges and 15 per cent for contingencies resulting in $4,462.

Future economic loss

The plaintiff claims future economic loss based on the rate payable at Kuri Bay for a cook at the date of the accident. I think this is too high. The hours were quite long. As indicated above I do not think the plaintiff would have continued to work in such a location for more than about two years. Thereafter I think it is likely that she would have reverted to a lower rate of pay.
I also think it likely that the plaintiff would have started a family by that stage of her life, regardless of the accident. Whether this would have taken her to Yallingup or elsewhere is speculative. But with the responsibilities of young children, her earning capacity would be diminished to some extent, as would her ability to perform overtime, at least in the short term.
No evidence was adduced showing the current rates being earned by chefs.
In August 1999, the weekly rate being received by the plaintiff was $636.30 gross and $482.65 net per week.
I note a letter in evidence from Amberley Winery dated 1 May 2000 advising its preparedness to employ the plaintiff, should a position become available. There is no doubt that the plaintiff would have been employable as a chef in Yallingup absent the accident.
The plaintiff is not totally incapacitated for work. She clearly has residual capacity for work that does not involve lengthy standing.
According to Professor Mulvey the average gross weekly earnings at May 2002 of a child care worker were $465 (or $386 net).
I am of the view that the occupation of child care worker is the most likely occupation to be realistically within the plaintiff's grasp, given her disabilities. She has worked intermittently in child care since she was 15 years old, and loves working with children. To become trained, she would need to do a six months TAFE course. This would presumably result in an increased income, but I have no evidence as to the applicable rate, on the availability of training courses in the south‑west of Western Australia.
Absent the accident, the plaintiff could have earned $482 net per week as a chef. Her retained capacity as a child care worker is $386 net. Her loss is therefore $96 net per week.
The relevant calculation is $96 x 779 (35 year multiplier) = $76,704.
I accept that without the accident, the plaintiff would have had the capacity to work longer than standard hours particularly before having children and after her children are grown up. This would increase her future economic loss. This must be considered against the probability of the plaintiff taking time off for children and therefore working part‑time. I think a deduction of 25 per cent for contingencies is reasonable. This brings the figure down to $57,528.

Future medical treatment

The plaintiff has claimed the following future expenses:
(i)Scar revision surgery at a cost of $575. I do not allow this because the plaintiff is reluctant to have the surgery required.
(ii)The costs of orthosis are claimed. I am not persuaded on a balance of probabilities that the plaintiff would use an orthotic device and I make no allowance for this item.
(iii)Removal of screw in the plaintiff's left foot is claimed. I allow $500 for this item, as claimed.
(iv)Chiropractic treatment at a cost of $2,000 over a five year period is claimed. The plaintiff had last had chiropractic treatment about seven months prior to the trial. This was for neck and back pain. I allow this amount.
(v)The cost of an annual review by her general practitioner is claimed but not particularised. I think it likely the plaintiff will need to see her general practitioner in any event for other reasons, and do not allow it.
(vi)Use of anti‑inflammatory and analgesic medication is claimed for but not particularised. The plaintiff denies using such medication. I do not allow the claim.
The court awards $2,500 for future medical expenses.

Loss of future superannuation

Using the Jongen (supra) approach the calculation is:
Gross weekly loss of income  $171.00
Annual gross loss ($185 x 52)  $8,892.00
9 per cent of annual gross loss
(ie annual employer's contribution)  $800.00
Weekly value of annual employer's contribution             $15.00
$16 x 799 (35 year multiplier)  $12,296.00
Less 30 per cent tax   $8,610.00
Less 25 per cent for overall contingencies                $6,457.00

Special damages

The plaintiff is awarded special damages for chiropractic treatment received between 22 December 2001 and 10 October 2002 in the sum of $839.
For the period from approximately December 1999/January 2000 to August 2000, a period of approximately 8 months (32 weeks), the plaintiff attended hydrotherapy at Broome Aquatic Centre at $3 per session, two times per week. I award $192 for this expense.

Summary

Pain and suffering  $19,200.00
Past economic lost and interest
on past economic loss  $87,975.00
Future loss of earning capacity  $57,528.00
Future medical treatment  $2,500.00
Past loss superannuation  $4,462.00
Loss of future superannuation  $6,457.00
Special damages  $1,031.00
Total$179,153.00
I round this up to $180,000.

During the final addresses of both counsel I was informed that the defendant's insurer had advanced the plaintiff a sum of money against her likely award for past economic loss. Mr Olivier stated that the sum involved was $11,500 but Mr Lampropoulos disputed the figure. Whatever the figure is, will need to be deducted from the award for past economic loss. I await counsel's advice concerning the precise amount.