Smith v Zhong

Case [2014] WADC 50

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   SMITH -v- ZHONG [2014] WADC 50

CORAM:   SLEIGHT DCJ

HEARD:   18­22, 25, 27­29 NOVEMBER 2013

DELIVERED          :   17 APRIL 2014

FILE NO/S:   CIV 1575 of 2011

BETWEEN:   JACQUELINE ROSEMARY SMITH

Plaintiff

AND

QIAN HUA ZHONG
Respondent

Catchwords:

Damages - Personal injuries - Assessment of damages - Loss of earning capacity - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages awarded in the sum of $361,902.20

Representation:

Counsel:

Plaintiff:     Ms B A Mangan

Respondent:     Mr P E Jarman

Solicitors:

Plaintiff:     Kakulas Legal

Respondent:     Jarman McKenna

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

A v D (1994) 11 WAR 481

Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1

De Blank v Stemberger [2000] WASCA 358.

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161)

Hendrie v Rusli [2000] WASCA 249

Hewett v Medical Board of Western Australia [2004] WASCA 170

Husher v Husher [1999] HCA 47; (1999) 197 CLR 138

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990)169 CLR 638

Mastaglia v Burns [2006 ] WASCA 190

Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1

Paff v Speed (1961) 105 CLR 549

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Robinson v Riley [1971] 1 NSWLR 403

Todorovic v Waller (1981) 150 CLR 402

Trigwell v Trigwell (1997) 18 WAR 83

Watts v Rake [1953] HCA 18; (1953) 89 CLR 200

Watts v Turpin (1999) 21 WAR 402

Wilson v McLeay [1961] HCA 56; (1961) 106 CLR 523

Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485; (1995) 70 ALJR 147

Zachopoulos v The State Government Insurance Commission (1986) Aust Tort Reports 80-023

Index

1.     Background

(a)      General

(b)      Mrs Smith's activities prior to the accident

2.     The accident
3.     Summary of Injuries
4.     Treatment
5.     The evidence in relation to injuries and disabilities

(a)      Right femur

(b)      Right ankle injury

(c)      Knee injury

(d)      Extensive deep vein thrombosis in the right leg

(a)      Evidence of a pre-existing deep vein thrombosis

(b)      Disabilities arising from the deep vein thrombosis

(e)      Spinal injury

(i)      Prior back complaints
(ii)      Accident spinal injuries

(f)      Mental health injuries

(g)      Cosmetic disability (forehead)

6.     Mrs Smith's evidence as to how her accident injuries have affected her daily life
7.     Credibility
8.     Jones v Dunkel issue
9.     Findings relating to Mrs Smith's injuries

(a)      Right femur

(b)      Right ankle injury

(c)      Knee injury

(d)      Extensive deep vein thrombosis

(e)      Spinal injuries

(f)      Mental injuries

(g)      Cosmetic disabilities

10.      Assessment of damages

(a)      Wilson v McLeay damages

(b)      Loss of earning capacity

(i)      Legal principles
(ii)      Background
(iii)    Expert medical evidence as to loss of earning capacity
(iv)     Plaintiff's claim
(v)      Conclusion

(c)      Past and future gratuitous services

(i)      Legal principles
(ii)      Past…

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Smith v Zhong [2014] WADC 50
Case
[2014] WADC 50
Decision Date

CaseChat Overview and Summary

In the case of Smith v Zhong, Mrs Smith, who was involved in a motor vehicle accident, sought damages for personal injuries sustained. The court was tasked with determining the extent of her loss of earning capacity and the appropriate compensation. The Smiths ran a family business comprising three distinct components: the supply of tags and tickets, anodes, and safety tags. Additionally, the court had to consider Mrs Smith's involvement in her religious community, the Plymouth Brethren Christian Church, and how it influenced her role within the family and her potential future earning capacity. The primary legal issue was the quantification of Mrs Smith's damages, specifically her loss of earning capacity, considering her domestic responsibilities, her active role in church activities, and the impact of her injuries.

The court examined the medical evidence and testimony to assess the nature and extent of Mrs Smith's injuries. While there was agreement that she had suffered significant injuries, the opinions differed on the long-term effects and the necessity of future medical interventions. The experts' opinions varied, with some suggesting potential complications such as arthritis, while others disagreed. The court also considered Mrs Smith's extensive pre-accident responsibilities, including her role in managing the family business and caring for her children and husband, and how these might have limited her earning capacity outside the home. Moreover, the religious context provided insight into the potential constraints on her future employment due to her church's practices and beliefs.

After weighing the evidence, the court concluded that Mrs Smith's injuries and their impact on her daily life warranted compensation for her loss of earning capacity. The court recognised the significant contribution Mrs Smith made to her family and the business, despite the traditional gender roles within her religious community. The court determined that Mrs Smith's injuries, while not entirely disabling her, did reduce her capacity to earn income commensurate with her pre-accident role. The final orders reflected this assessment, providing Mrs Smith with appropriate compensation for her loss of earning capacity, taking into account her unique circumstances and the impact of her injuries.

Orders

Orders of the court

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Background

Background to the litigation

Background Mrs Smith was born on 9 October 1968. At the time of the accident she was 39 years of age and is presently aged 45. She is married to Mr David Smith. They have five children: Mr and Mrs Smith conduct a family business which consists of three separate components:1.The supply of tags and tickets (this aspect of the business trades under the name 'Tags and Tickets' and involves supplying to wholesalers industrial tags and tickets).2.The supply of anodes (this aspect of the business trades under the name 'Anodes Australia' and involves supplying anodes used in hot water systems and other wet environments to reduce corrosion).3.The supply of safety tags (this aspect of the business trades under the name 'Safety Distributors' and involves supplying safety tags to retailers). A fuller description of the business conducted by Mr and Mrs Smith will be given later in this decision when addressing the issue of loss of earning capacity. Of some importance in this case is that Mr and Mrs Smith are members of the Plymouth Brethren Christian Church (the Brethren). The importance lies, firstly, in detailing the extent Mrs Smith was involved in church activities before and after the accident; and secondly, the extent Mrs Smith's religious beliefs may have impacted on her earning capacity in the future in any event. The evidence of Mrs Smith was that it was common that once a Brethren woman marries she normally discontinues working and her responsibilities are home duties and caring for her husband. However, there were occasions when younger married women will go and seek employment if the family is experiencing severe financial difficulties. It is not contested that prior to the accident Mrs Smith lived a very busy life. Her evidence was that her day commenced at about 6.00 am and she would not get to bed before midnight. Mrs Smith was caring for five young children and providing nearly all of the domestic services in the household. Mr Smith made a negligible contribution to domestic matters. Added to Mrs Smith's domestic burden is that her son Walter is Down Syndrome and at the time of the accident Mrs Smith was breastfeeding the youngest child Brielle. In addition to domestic responsibilities, Mr and Mrs Smith were very active in their church. Each day commenced with a family prayer and scripture reading. On about four weeknights per week Mr and Mrs Smith and the children attended a church gathering in the evening. This was usually for about three­quarters of an hour. The meetings were held at various church halls in the metropolitan area, but on Thursday the meetings were at more distant locations such as Mundaring and Northam. On Saturday mornings Mrs Smith attended scripture readings. On Sundays Mr and Mrs Smith and the children attended a church service at 5.45 am. They returned home from the service at about 10.30 am when they conducted scripture readings. They then attended a lunch with other members of the church. These lunches were held at the homes of members of the church in rotation. About once a month Mr and Mrs Smith hosted such a lunch. There would usually be up to 20 people attending.

Evidence

Evidence Before The Court

The evidence in relation to injuries and disabilities I propose in this section of the decision to summarise the evidence in relation to the various injuries and disabilities complained of by Mrs Smith. Mrs Smith has made a good recovery from the right femur fracture. A report by the Fremantle Hospital dated 5 May 2009 stated x-rays showed that the fracture had united well. Mrs Smith's evidence was that she still experienced pain in the area of the fracture. She said the pain is constant, some days worse than others. Mrs Smith said she has undertaken her own therapy by doing leg exercises. She said the exercises were taught to her by the physiotherapist and she includes these exercises in her everyday movements. Mrs Smith said that the pain levels have plateaued off in the last 12 months. Mr Kimberley in his evidence opined that Mrs Smith's right knee hit against a part of the vehicle, sending a significant force up the leg that caused the femur bone to break midway up the shaft. He described that this was not an uncommon pattern of injury. Mr Kimberley stated the application of force through the knee was confirmed by a breaking of skin on the knee which left some scarring and a lot of bruising around the knee. Mr Kimberley expressed the opinion that the force travelling up the femur would have travelled into the hip and lumbar spine area causing soft tissue injuries. In a report dated 24 August 2010 Mr Kimberley expressed the opinion that due to the force that had travelled up through the femur it was possible that Mrs Smith will suffer arthritis in the hip joint. Mr Kimberley's evidence is that one option to consider to reduce the pain being experienced by Mrs Smith is to have the metalwork removed. Dr Ker in a report dated 1 November 2013 noted that Mrs Smith was experiencing pain in the right upper limb and right hip. On examination he found that Mrs Smith had a satisfactory range of movement in the hip. Dr Ker expressed the opinion in cross-examination that it was unlikely that Mrs Smith would ever require a hip replacement. Mr Hardcastle in his evidence was less definitive of whether the force of the impact travelled through the knee into the femur. He accepted that there was an impact through the knee and that a trauma had been applied to the leg. Mr Hardcastle agreed that it was not inappropriate to have the metalwork removed if the patient continued to experience discomfort. Mr Hardcastle's evidence was that he did not see any reason why Mrs Smith's hip would be any more susceptible to degeneration than the average person (ts 533). Mr Anastas in his evidence disagreed with the conclusion of Mr Kimberley that the force had travelled up through the knee causing the fracture of the femur and expressed the view that the femur was fractured by a direct force either in the form of an angular force or a rotatory force. In a report dated 30 April 2013 Mr Anastas said that Mrs Smith had advised him that for the previous six months she had right hip pain which was present most of the time. Because of the time delay Mr Anastas concluded that the onset of symptoms was not related to the motor vehicle accident. Further, Mr Anastas' evidence was that the injuries to the right femur and the right knee did not predispose Mrs Smith to the need for right hip replacement.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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