Soliman and Soliman v Abbey and Nominal Defendant
[2001] QSC 247
•18 July 2001
SUPREME COURT OF QUEENSLAND
CITATION: Soliman & Soliman v Abbey & Nominal Defendant [2001] QSC 247 PARTIES: ABLA SOLIMAN
(first plaintiff)
MOHAMED SOLIMAN
(second plaintiff)
v
KAREN MAREE ABBEY
(first defendant)
NOMINAL DEFENDANT
(second defendant)FILE NO/S: S 3333/1999 DIVISION: Trial Division DELIVERED ON: 18 July 2001 DELIVERED AT: Brisbane HEARING DATE: 6 June 2001 JUDGE: Philippides J ORDER: Judgment for the first plaintiff against the defendants in the amount of $476,594 CATCHWORDS: DAMAGES – personal injury – motor vehicle accident –quantum – post traumatic stress disorder - loss of earnings – pain and suffering
Cook v Wright [1967] NZLR 1034
Curator of Estates of Deceased Persons v Fernandez (1977) 16 HLR 445
Delaney v Shephard (2000) QCA 107
Helshaw v Rye (2000) QSC 277
Hunter v Scott [1963] Qd R 77
Hyne v Tomlinson (CA(Qld), App 8283 of 1997, 22.2.98
Richardson v Schultz (1980) 25 SASR 1COUNSEL: J Webb for first plaintiff
R A Myers for defendantsSOLICITORS: Gall Standfield & Smith for first plaintiff
Clayton Utz for defendants
PHILIPPIDES J: The first plaintiff (it is convenient to refer to her as “the plaintiff”) claims damages for personal injuries sustained when she was struck by a motor vehicle which mounted the pavement at a bus stop on the Gold Coast Highway. The incident occurred on 7 September 1996. The plaintiff saw the van approaching, but realised too late that it was going to hit her. She was thrown into the air and although she did not lose consciousness, thought that she was going to die. Liability is admitted so that the only issue remaining is one of quantum.
The plaintiff, who was born on 2 October 1953, sustained the following physical injuries as a result of the accident:
(a) fracture of the left 7th and 8th ribs;
(b) undisplaced fracture of the 5th metacarpal of the right hand;
(c) soft tissue injury to her neck and lower back, i.e to the cervical and lumbosacral spines from disc protrusion to C4/5;
(d) trauma to both knees, including a laceration to the right knee, torn ligament and damage to the kneecap of the left knee;
(e) swelling and laceration to the mouth requiring sutures;
(f) damage to her teeth;
(g) general lacerations, abrasions and bruising including to the face, resulting in some scarring to the nose.
The plaintiff was admitted to the Gold Coast Hospital where she was treated with analgesia, physiotherapy and mobilisation until her discharge from hospital on 25 September 1996.
Dr Mahomed in his report of 15 July 1997 states that he first saw the plaintiff for consultation on 9 October 1996. He notes in his report that she complained of the following:
1.Posterior neck ache noted two weeks after hospitalisation and radiating into both shoulder areas with pins and needles sensation in her left index finger.
2.Painful knee with some swelling and bruising on the anterior patella area and a reduced range of flexion.
3. Left temporal headaches.
4. Left rib pain.
5. A painful inner aspect of the right index finger.
6.Continual persistence symptoms of pain in the soft tissues of the neck, the right forearm and arm and the right thigh and knee.
Dr Mahomed also noted that since the accident the plaintiff had also complained of a number of psychological symptoms including insomnia, inability to talk about the accident, fear of traffic and an inability to go out. On examination he noted that the plaintiff walked very slowly with the aid of a four-pronged walking stick.
Orthopaedic evidence
On 22 October 1996, the plaintiff saw Dr Watson, an orthopaedic surgeon, in respect of persistent symptoms in her left shoulder. Indeed, she was continuing to experience multiple symptoms in the left shoulder, right knee, right hand and thoracic spine. However, there was no clinical evidence to suggest she had boney trauma to these areas, or any evidence of rotator cuff pathology to the left shoulder. Dr Watson noted that her rehabilitation had been extremely slow. In a further report, dated 21 July 1997, he stated that he could find no evidence of ongoing pathology which could be directly attributed to the multiple symptoms she was experiencing, and which directly related to the accident. He was of the opinion that the plaintiff had returned to her pre-accident state.
Dr Downes, an orthopaedic surgeon, saw the plaintiff on 28 April 1997. Dr Downes agreed with Dr Watson’s assessment that the bone scan confirmed the fractures of the ribs and of the right fifth metacarpal, but otherwise was non- spectacular and did not show any serious injury. Dr Downes noted that the plaintiff had significant pain in her right hand, in her rib cage, in both knees, and in the neck, lumbar spine and left shoulder. However, he was of the opinion that these symptoms were not related to organic illness, but were related to post traumatic stress of a significant degree. He was of the view that the plaintiff had no physical injuries arising from the accident. Dr Downes states:
“It is certainly obvious that the lady has extreme psychiatric problems of an emotional type that are mostly contributing to any problems she might have physically. The presentation today was one of entirely a functional presentation. ... Most significantly, I went into some detail today about her psychiatric state and there is no doubt she is sleeping poorly, she is having nightmares eight months after the event, she still is totally reliant on her husband and unable to walk outside without great distress, ... The presentation today was of a lady who is suffering significant functional distress but there is nothing to indicate an organic injury. The present symptoms bear no relationship between her condition and the injury. ... I do not believe she has any physical injuries arising from the accident and I do not believe she has any permanent impairment arising from the accident related to a physical cause.”
When examined by Dr Downes on 2 February 1998, the plaintiff indicated that she had pain in her right hand and that she could not close her hand properly. Dr Downes disagreed with the view that any of these symptoms were caused by foreshortening of the right fifth finger. The plaintiff also complained of pain in the area of the broken ribs, pain to her knees, left shoulder and neck. Dr Downes was of the opinion that there were no neurological signs for any of the pain. Dr Downes also viewed a CT scan of the neck taken on 22 July 1997 which showed central osteophyte formation in relationship to C3/4 and C4/5 in the neck. He was of the opinion that those osteophytes represented bulging discs that had calcified and therefore were old and long-standing. He also noted that the plaintiff had ceased using a walking stick. Dr Downes confirmed his earlier opinion that there was no ongoing physical sequel having an organic cause. However, he indicated that the ongoing symptoms were representational of a significant post traumatic stress reaction.
The plaintiff was examined by Dr Toft on 5 May 2000. He was of the opinion that the injury to the plaintiff’s knee had resulted in a permanent impairment of 2% of the lower extremity or 1% of the whole body. With respect to the complaint of pain in the left knee, he was unable to find abnormality on the X-ray which would account for any ongoing symptoms or any permanent impairment. He noted that there had been a fracture of the fifth metacarpal of the right hand which had produced slight shortening of the metacarpal, but physical examination revealed full function in the hand, and he was of the view that no permanent impairment to the right hand had been suffered. He was also unable to find evidence of any rib fractures. With regard to the cervical and lumbar spines, he was of the view that no significant abnormality had been shown by physical examination or by the X-rays other than consistent with degenerative changes due to age. He was of the opinion that there was no evidence of any neurological deficit in the upper limbs and that there had been no permanent impairment to the spine as a result of the accident.
Dr Langley, an orthopaedic surgeon, examined the plaintiff on 18 July 1997. In his report of 21 July 1997, Dr Langley stated that the plaintiff had ongoing problems with her neck and back, and had a 10% impairment of her spine from those injuries. He stated that she could not form a fist completely with her right hand and this had handicapped her from the point of view of using scissors as a tailor. He assessed a 5% impairment of her right upper limb as a result of the injury. Her ongoing problems appeared to be in her spine and right hand and, to some extent, in her knee joint where she had scarring on the right side and some tenderness behind the patella. Dr Langley saw the plaintiff again on 2 November 2000. In his report of 16 November 2000, he states:
“She still complains of pain in the neck, in her right arm, in the mid back, in the lower back and in her knee joints ... Her pain is less severe than it was ... she gets some relief from her pain when she takes Panadol or Celebrex. She describes the intensity of the pain as being moderate to severe at times ...
There has been some improvement since I last saw her but, as it is some years since the accident occurred, I believe her condition is static and stationary now.
I believe that the overall problem with her spine amounts to a 10% impairment to her body as a whole. The impairment to her right upper limb is still 5% as stated in my previous report.
Her knee joints ache on both sides, but clinically there did not appear to be any definite impairment. I believe that no operative treatment will be required for any of her lesions in the future.
In my opinion, her ongoing symptoms and impairment is due to the accident that happened to her on 7 September 1996. She has been left with overall impairment to her body as a result of this. She will require conservative treatment in the future, which will cost in the vicinity of $3,000. It is unlikely that she will return to doing the work of a tailor because of the ongoing pain she has in her neck and lower back and also the problems she is having with her right arm.”
The orthopaedic evidence as to the cause of ongoing physical symptoms is divided, with Drs. Watson, Downes and Toft considering that there was no organic cause for them, and Dr. Langley having a different view. On balance, I accept the view that the plaintiff does experience physical symptoms of a significant nature, but that they have a psychiatric rather than organic cause.
Psychiatric evidence
The plaintiff attended on Dr Stephen Murphy, a psychiatrist, on 30 October 1996. Dr Murphy recorded the following clinical findings in his report of 27 November 1996:
“Mrs Soliman was suffering from an acute stress disorder as described by the DSM IV. She had a depressed mood, she was re-experiencing the event with nightmares and flashbacks. She had a number of avoidance phenomena including avoiding cars, traffic, being out on busy streets and also programs on the television, for example programs about accidents and people being hurt. She also describes anxiety symptoms of insomnia, irritability and a marked startled response with hypo vigilance.”
Mrs Soliman had received medication from her local doctor but found this made her sleepy and stopped taking it. She did not wish to continue with medication and Dr Murphy referred her to Nerida Saunders at Tweed Heads for hypnosis and EMDR treatment to help in the acute phase of her acute stress disorder.
Dr Murphy continued to see the plaintiff on 15 and 24 January, 7 February, and 7 and 21 March 1997. He had initially commenced the plaintiff on Zonoft which she took for some months. However, it was stopped because it was proving to be ineffective. The plaintiff was then commenced on Prothiaden, however that was also stopped because of side effects. In his report of 7 April 1997, Dr Murphy stated that the plaintiff continued to suffer from PTSD to a moderate to severe level, noting:
“She remains symptomatic with difficulties in sleeping, tiredness, emotional lability, sweating, feeling scared, shaking when walking near traffic, feeling her heart racing and is described as hypo alert. In addition she is socially withdrawn, unable to talk to people, she feels her life has been changed by the accident. She continues to suffer from severe sleep disturbance with nightmares and daily recollections of the accident. These symptoms are in keeping with the symptoms originally described in my November report and continue to satisfy the DSM IV diagnostic criteria for chronic PTSD ... medication has not been helpful ...”.
Dr Murphy regarded it as too early in the course of the plaintiff’s recovery to make any predictions concerning permanent impairment. He reviewed the plaintiff on 15 August 1997 and in his report of 18 August 1997 noted:
“She informed me that over the last two to three months since I have seen her she had made no improvement. She remained depressed with marked insomnia, recurrent nightmares, anxiety, nervousness, feelings of anger and resentment that the accident had changed her life physically and continues to stop her from working. She stated that she spends most days in her unit attending to some domestic duties, that is as much as she can at any one time. She socialises infrequently and informed me that she needs her husband to accompany her when she goes shopping or leaves the apartment. In summary she continues to suffer physical problems, disability and PTSD. Her psychological condition is relatively stable and I recently commenced a new medication, Luvox, which may help her sleep and lesson her anxiety and hypo arousal state. If WorkCover is in agreement I’ll continue to see her on a monthly basis to monitor the medication and begin to look at some pain management techniques.”
There was a break of nearly three years before the plaintiff saw Dr Murphy again. She saw him again on 6 November, 27 November and 11 December 2000; and 22 January, 12 February and 1 March 2001. Dr Murphy in his report of 23 March 2001 states:
“Mrs Soliman’s mental state has not varied, her feelings have been constant with little variation over the last six months of my management. ...
Mrs Soliman continues to suffer from chronic Post Traumatic Stress Disorder as outlined by the DSM IV system. In addition she describes ongoing problems with pain and would satisfy the criteria for pain disorder under the DSM IV system. ...
During the six month course of treatment we have commenced and trialed a number of medications for Ms Soliman ... [She] has suffered from side effects to most of these medications, even at the low doses that they were commenced at. These medications have had no significant impact on her psychological nor physical symptomatology. She is currently taking Cipramil 20 mgs per day and Alprazolam 0.5 mgs twice a day and again reports no significant, positive effect from this medication. When I last reviewed her on 11 March of this year she reported that she was feeling worse, feeling hopeless and more tired and ‘not myself. The anxiety is still the same, I have been in bed for over one week I didn’t want to talk, didn’t want to get out of bed, I feel tired in the head, like my skull is smashed, like I have collapsed and am losing balance.’ It was unclear if some of these symptoms were due to possible side effects of Cipramil and I have since ceased the Cipramil and Ms Soliman continues on Xanax 0.5 mgs two times a day.”
Dr Murphy also states that he considered that further trials of medication would be unhelpful. He was at a loss to suggest any further treatment in that psychotherapy, MOR and all pharmacotherapy had been tried and had not yielded results. However he considered that the plaintiff might benefit from a course of inpatient treatment, for example a three week cognitive behavioural inpatient treatment program at the Palm Beach Hospital, such treatment costing in the order of $10,000 to $12,000 roughly. Dr Murphy, in evidence at the trial, indicated that this figure was conservative and that the appropriate range was between $12,000 to $25,000 depending on how extensive the treatment was. In his evidence at trial, Dr Murphy indicated that the inpatient treatment may result in a “mild but possibly marginally significant improvement”. He also indicated that it should be followed by ongoing outpatient treatment for some years, that is, a minimum of two years extending possibly to five years. His evidence suggested that there possibly a 5% improvement in her daily level of functioning and her family functioning may be achieved.
Dr Murphy concluded in his report of 23 March 2001:
“There is no doubt that Ms Soliman is currently unable to work due to psychological and physical problems. She has been unable to work since the accident in 1996 and it is more likely that she will be unable to work for some years to come. I do not think she is able to complete any sort of work, any part time basis at this time but hopefully given time she may be able to resume some part time work in the future.”
Dr Murphy in his evidence at the trial clarified this by saying that, whilst it was possible that the plaintiff would be able to resume some part time work in the future, it was not likely. He also dismissed the proposition that the plaintiff’s prior history rendered her a vulnerable person or that there was a past history of decomposition. The plaintiff consulted Dr Murphy about 25 times from 30 October 1996 to August 1997. Dr Murphy was asked in cross examination about the plaintiff’s failure to continue with treatment from August 1997 until late 2000 when she resumed treatment. Dr Murphy indicated that the plaintiff’s ceasing treatment should be viewed in the context of her being disillusioned about the lack of success of the treatment she had received, the side effects she had experienced to the medication which had been prescribed and her being unable to afford further treatment.
The plaintiff saw Dr Chalk prior to his providing a report dated 11 May 2000. In his report Dr Chalk concludes:
“... my reading of the orthopaedic opinion suggests that this lady’s physical symptomatology is disproportionate to the level of the organicity noted. She certainly describes chronic pain and I think fulfils diagnostic criteria for pain disorder under DSM IV. There would appear to be a prominent psychological element here influenced largely by her degree of anger about the injury which has not resolved with time. Complicating this she describes initial symptoms of an acute stress disorder complicated by post traumatic stress disorder down the track. There seems on the basis of her symptomatology and presentation, little doubt that she has chronic post traumatic stress disorder resulting from this accident. Treatment unfortunately has ceased and she is certainly in my view not on any effective treatment at the current time. There is certainly good evidence in the literature that SSRI antidepressants can be effective in the management but undoubtedly not the cure at this point in time for post traumatic symptomatology. There is also a significant complicating depressive element at the current time ... she is in my view not employable and would benefit from further psychiatric treatment.”
Dr Chalk in his report dated 17 October 2000 noted:
“Mrs Soliman would most likely benefit from at least twelve months of regular treatment and the prescription of antidepressants. These have been shown to benefit in the treatment of chronic pain especially when it is associated with a depressive condition. This course of treatment would hopefully improve her mood state to the extent of returning to gainful employment, particularly if the treatment was supportive in nature and focussed on rehabilitation and reintegration into employment. Her employment would then be limited by her physical state.”
Dr Chalk indicated that such treatment would be on a fortnightly basis and would require prescription of antidepressants in the order of $20 to $30 a month which could be funded through Medicare. However, in his report of 18 May 2001 provided to the defendant’s solicitors Dr Chalk reviewed his prognosis. He states:
“Ms Soliman also continues to fulfil the diagnostic criteria for pain disorder as previously noted and her presentation today has significant elements of abnormal illness behaviour. She remains angry and frustrated about the accident and its sequel and this is her predominant effect. Whilst she complains about some depression she is not clinically depressed when reviewed. Her prognosis for an early return to work in the light of this constellation of symptoms is poor. Further medication is unlikely to be helpful and settlement of litigation whilst not curing her problems should significantly assist her to stabilise. It is likely to be several years before she can contemplate any type of work and this is likely to be part time.”
The plaintiff attended upon Robyn Murray, a consultant psychologist, on 5 May 2000. At that time the plaintiff complained of pain in her lower back area, constant pain in both knees, pain extending down her right arm to the little two fingers on her right hand which was made worse by doing housework and pushing herself. She also complained of restricted movement and loss of strength in her right arm and pain in the left side of her chest near the fracture site. She also complained of frontal headaches which lasted up to 24 hours and occurred three or four times a week. She reported loss of energy. Ms Murray’s report states:
“4.3Mrs Soliman is reporting a number of persistent sequelae as a result of this accident. These include physical problems (pain in multiple areas, loss of strength, headaches, altered sensation, and lack of energy), as well as psychological problems (nightmares, depression, anxiety, hypervigilance, exaggerated startled response, lack of independence, loss of libido).
4.4Results of formal assessment of personality and emotional functioning (i.e. the structured clinical interview and her responses on self-report measures) suggested that Mrs Soliman is suffering from Post-Traumatic Stress Disorder. Her reported symptoms fulfil the diagnostic criteria for this condition. She has also developed significant anxiety when she ventures out of the house unaccompanied.
4.5The accident has had a significant impact on Mrs Soliman in a number of areas of functioning. In relation to her employment, because of reported physical pain and severe anxiety, she has been unable to return to work. As a result, she feels a loss of independence and is concerned that her physical symptomatology will prevent her from returning to work.
4.6In relation to her social and recreational activities, the ongoing pain has severely limited the activities she can engage in. Because of her anxiety she no longer ventures outside the house unaccompanied. This has resulted in a severe restriction of daily exercise as well as social meetings with her friends.
4.7She continues to experience heightened anxiety when a passenger in a car and also when walking, accompanied with her husband, near a road.”
4.8The aetiology and prognosis of her physical complaints would be the subject of comment by relevant medical specialists.
4.9It is likely that Mrs Soliman’s high levels of perceived pain are contributing to her psychological distress, which in turn may well be exacerbating her pain. While she received psychological counselling and psychiatric treatment in 1997, she reported that she did not continue with this treatment. In addition, she has been reluctant to take prescribed psychotropic medication.
4.10In view of her ongoing Post Traumatic Stress Disorder as well as her chronic pain, I would recommend that Mrs Soliman be referred for urgent psychiatric intervention. The cost of such treatment would be best determined by her treating doctor. However, it is my opinion that given the duration of her psychiatric symptomatology and the persistence of multiple areas of pain, her prognosis would have to be guarded.
4.11In relation to her returning to work in the future, the physical impact of her injuries would need to be determined via a functional assessment. However, in relation to her psychological symptomatology, again her return to work would be predicated upon resolution of her current psychological distress.”
The plaintiff also was examined by Dr Julian Boulnois, a specialist psychiatrist, who provided a report dated 21 November 2000. Dr Boulnois was of the view that the plaintiff had suffered a 50% impairment psychiatrically speaking and that she was currently entirely unemployable and likely to remain so indefinitely. In his report Dr Boulnois states:
“It would appear that Mrs Soliman suffers from a significant degree of post traumatic stress disorder ... sadly her condition appears to be failing to show any sign of improvement though clearly treatment should be continued at this time ... and it is probable that Mrs Soliman will be in need of psychiatric treatment for at least another two years.”
There is no real conflict in the expert psychiatric evidence that the plaintiff has suffered a considerable post traumatic stress disorder which has prevented her return to the workforce. Furthermore, the defendant did not call evidence to contradict Dr Murphy’s evidence, and indeed Mr Myers conceded that Dr Chalk’s evidence did not contradict Dr Murphy’s evidence. I also accept that it is unlikely that the plaintiff will ever return to the workforce.
Pain and Suffering and Loss of Amenities
Mr Webb submitted that a range of between $65,000 to $75,000 was appropriate. Mr Myers contended for $35,000 to $45,000 as the correct range. I consider an award for pain suffering and loss of amenities of $55,000 is appropriate. I also award interest for past pain and suffering and loss of amenities in the amount of $2,000 (being the sum conceded by Mr Myers).
Past Economic Loss
The plaintiff underwent her education in Algeria until the age of 17. She then studied professional design and tailoring and at the age of 19 became a qualified tailor. She worked full time for some three or six years and at the age of 22 obtained employment as a tailor working in Algeria for an airline. She worked in that capacity for twelve years until she came to Australia at the age of 35 in 1989. In the same year she married but the marriage did not last. For the period immediately after her separation, immigration laws prevented her from obtaining employment. However, upon being entitled to seek work she worked as, amongst other things, a shop assistant and then, from 1994 until the accident, as a tailor.
At the time of the accident she had intended to commence her own business as a tailor. She and her husband, who was an experienced businessman, had made arrangements to lease premises and obtain the necessary equipment. If the business did not return the income she received working as an employed tailor, she intended to return to working as an employee. Given that the plaintiff had no prior psychiatric history, I do not accept the submission that she would have developed any psychiatric condition preventing her from re-entering the workforce had her business failed.
The plaintiff gave evidence that although she wished to have children, if she had children, she did not intend to take time off work.
Since the accident, the plaintiff has neither proceeded with her own business nor returned to work. I accept that the plaintiff has been unable to do so because of a combination of the pain she continues to experience, (which appears to be the result of the plaintiff’s post traumatic stress disorder) and the other effects of the plaintiff’s post traumatic stress disorder.
It is not disputed that immediately prior to the accident the plaintiff was receiving $382 net per week. Mr Webb’s submission is that past economic loss should be calculated using the sum of $382 per week for a period of 247 weeks making $94,358. Mr Myers does not dispute that calculation, but contends that that amount should be discounted by about one third to some $60,000. Mr Webb argues that given that the figure of $382 per week is what the plaintiff was earning in 1996, any calculation using that amount contains no adjustment for increases in wages since 1996 and, therefore, contains an inbuilt discount. (Indeed the Wageline letter of 6.11.00 (see ex 1) shows that gross weekly wages for the relevant classification rose from $392.60 at the end of 1997 to $449.60 in 2000).
I reject Mr Myers’ submissions that a discount of one third is justified by the plaintiff’s failure to continue with psychiatric treatment and to take into account exigencies of entering into self-employment.
Nevertheless, whilst I accept that a calculation using $382 per week contains an element of discount, I do consider that some further discount of about 15% should be made in respect of the amount of $94,358 to reflect the risk of going into small business, the fact that while the business was being set up there may have been periods of self employment at a lower income level when the plaintiff was unable to replicate the income levels she was able to achieve as an employee and the contingencies of life. This yields $80,204.30. I consider the rounded-off sum of $80,204 is appropriate for past economic loss.
Interest on Past Economic Loss
In addition, interest on past economic loss should be awarded on the amount of $58,083.77 (being past economic loss of $80,204 less the sum of $22,120.23 received by the plaintiff from WorkCover and from Centrelink) at 5% for the period of 4.75 years, making $13,794.89, which I round off to $13,795.
Loss of Superannuation Contributions
As to past superannuation, both counsel agreed that the appropriate approach was to calculate past superannuation lost on the basis of 6% of net past economic loss. Indeed, it has been common practice to allow 6% of net earnings; (see Hyne v Tomlinson (CA(Qld), App 8283 of 1997, 22.2.98 at p 9; Delaney v Shephard (2000) QCA 107 at [2] and [12]. This approach yields $4,812.24, being 6% of $80,204, which I round off to $4,812. I should note here that, although the plaintiff’s case was that she would have pursued her own business, the evidence is that had this not returned the income (including superannuation benefits) she had received as an employee; she would have reverted to being an employee. Accordingly, I consider that an award under this head is appropriate.
I award interest on $4,812 at 5% making $240 (rounded off).
Past Care and Assistance
As regards past care, it is clear that the plaintiff’s husband rendered considerable assistance to the plaintiff for a period immediately after the accident. Mr Webb submits that an award of $36,119.60 is appropriate. The manner by which this amount is calculated is set out in the schedule to Mr Soliman’s affidavit. I should note that there was no dispute as to the appropriate rates to be applied (see Domicare letter ex 1, which was tendered by consent). The plaintiff is clearly fortunate to have a devoted husband who provided a great amount of care and support to his wife. However, it is only appropriate to award as damages such compensation for care rendered by the plaintiff’s husband as is reasonable for the defendant to bear.
For the period from the accident to October 1997 a claim of $13,345 is made, being 1,334.5 hours at $10 per hour. However, I consider that the 1,334.5 hours outlined involves a provision of care beyond that for which the defendant should be required to make compensation.
For the period from 7 September to 25 September 1996, during which the plaintiff was hospitalised, there is a claim for 21 hours care for the first day and 14 hours thereafter, making a claim for 273 hours at $10 per hour. Whilst compensation is not provided where a relative attends on a loved one at hospital because of a desire to be close to the loved one, an allowance is permitted to reflect the therapeutic value of the presence of a family member: see Hunter v Scott [1963] Qd R 77; Cook v Wright [1967] NZLR 1034; Curator of Estates of Deceased Persons v Fernandez (1977) 16 HLR 445; Richardson v Schultz (1980) 25 SASR 1. I accept that the presence of the plaintiff’s husband at the hospital was of therapeutic value (medical evidence was given to this effect by Dr Murphy) and that the assistance rendered was reasonable. I therefore allow the sum of $2,730 claimed for this period.
For the period after discharge on 25 September 1996 to end of October 1997, there is a claim for 1,061.5 hours at $10 per hour, being $10,615. In his report of 21 July 1997, Dr Langley states that the plaintiff could only lift light weights, could not go out shopping on her own, had difficulty doing the cooking, but that she seemed to be reaching the stage where she could look after herself personally. Having regard to the evidence of the plaintiff and her husband and the manner by which the amount of 1,061.5 hours is calculated, I consider it appropriate to allow the claim for $10,615.
In relation to the period from November 1997 to July 1998, a claim of $3,850 is made, being care for 10 hours per week for 35 weeks making 350 hours. However, it is apparent that the plaintiff’s husband was not himself providing such care as claimed, since in November 1997, the plaintiff’s husband returned to Algeria to see his elderly mother who was ill. He left his wife to the care of his two sons and a neighbour for four months and she later joined him in Algeria in March 1998. Whilst there is evidence that the sons were in daily contact for the period of 4 months during which she was separated from her husband, the evidence points to the plaintiff being able to get by without much assistance by this stage. For this period, I allow 5 hours per week at $11 per hour for 35 weeks, making $1,925.
For the period from August 1998 until trial, a claim is made for 870 hours at varying rates, based on ten hours care per week. The plaintiff’s husband in his affidavit (at pp 7 and 8) outlines how the claim of ten hours per week is calculated. The plaintiff’s husband’s evidence of assistance is not entirely in accord with the medical evidence and my observations of the plaintiff. Taking into account the medical evidence, I consider that for this period, the plaintiff was able to care for herself and that she needed assistance only with some household chores and the presence of her husband as an escort for outings. I consider an allowance for care at 5 hours per week sufficient for this period. I allow the claim for care in the sum of $9,595 (rounded off) as follows:
August 1998 to May 1999
44 weeks x 5 hours per week x $12.86 per hour $2,829.20
June 1999 to August 1999
13 weeks x 5 hours per week x $13.04 per hour $ 847.60
September 1999 to June 2001
89 weeks x 5 hours per week x $13.30 per hour $5,918.50
Total $9,595.30
I therefore allow damages at $24,865 for past care and assistance as follows:
7 September 1996 to 25 September 1996 $ 2,730
25 September 1996 to October 1997 $10,615
November 1997 to July 1998 $ 1,925
August 1998 to trial $ 9,595
Interest on Past Care and Assistance
The plaintiff claims interest on the award for past care and assistance at 5%. I award interest on past care and assistance of $24,865 at the rate of 5% which yields $1,243 (rounded off).
Special Damages
Mr Webb submits that the following should be awarded as special damages:
1. Medical expenses (WorkCover) $ 8,063.31
2. Other expenses (WorkCover) $ 2,557.67
3. Rehabilitation expenses (WorkCover) $ 197.00
4. Fox v Wood Tax contributions (WorkCover) $ 4,678.65
5. HIC $ 738.65
6, Further HIC $ 1,348.10
7. Medical Expenses $ 2,630.90
8. Gap Payment $ 464.15
9. Equipment Hire $ 80.00
10. Pharmaceutical expenses $ 3,683.20
11. Travelling expenses $ 2,373.50
Total $26,815.13
Of these, Mr Myers only challenged the figures of $3,683.20 for pharmaceutical expenses and $2,372.50 for travelling expenses. Both these amounts are dealt with in Schedule B to the plaintiff’s statement. I accept that the amount of $2,372.50 is properly claimed. As regards pharmaceutical expenses, I disallow (in the absence of medical evidence), the claim for Glucasamine, noni juice and omega 3, and allow $1,392.30. I round up the total for the claim for special damages and award $24,525. No claim for interest on special damages was made in the plaintiff’s schedule of damages and I initially made no allowance. After further written submissions, Mr Webb submitted that interest should be awarded on special damages of $4,309.95 at 5% for 4.8 years, which totals $1,034 (rounded up). Subject to the exercise of my discretion, Mr Myers agrees to judgment in such sum for interest. I accordingly award $1,034 for interest.
Future Economic Loss
As I mentioned, Mr Myers conceded that there was no evidence to contradict Dr Murphy’s opinion that the plaintiff is not likely to ever return to work. I accept Dr Murphy’s evidence and find that damages should be assessed on the basis that the plaintiff is unable to return to work.
I do not accept Mr Myer’s submissions that any real discount should be imposed because of the plaintiff’s failure to pursue psychiatric treatment between 1997 and 2000. The failure has been explained and, furthermore, there is no evidence to support the proposition that had the plaintiff pursued such treatment, her condition would have been so markedly different that she would have been likely to have become employable.
Mr Webb submits that future economic loss should be calculated as $207,159 or $216,747 respectively, using a weekly income figure of $382 to age 62 or 63, discounted on the 5% tables. He submits that this approach entails, in addition to the 5% tables, an inbuilt discount because of the base weekly wage used and because of the age used. Mr Myers contends that those figures should be further discounted by 2/3 to a figure in the vicinity of $70,000.
In my opinion, there is no basis for a further substantial discounting to the extent urged by Mr Myers. The plaintiff had a relatively good employment history. Nor would it have been likely that her employment would have been substantially interrupted by childbearing. Her skills were at the top end of her trade as a tailor. On the other hand, there was a degree of risk involved in her plans to start a small business and even if she ultimately intended to return to work as an employee if the venture had failed, some period of reduced earnings may have eventuated before that occurred. I consider that a further discounting of 15% on the sum of $216,747 is required to reflect the risks of small business, the fact that there may have been periods of self employment at an income level lower than that which the plaintiff would be able to achieve as an employee and the contingencies of life. I consider that the sum of $184,234.95, which I round off to $184,235, adequately reflects the plaintiff’s future economic loss.
Loss of Future Superannuation Contributions
As regards the award for loss of future superannuation contributions, Mr Webb urged a rate of 8% (rather than 6%) to reflect the current rate of contributions, relying on Helshaw v Rye (2000) QSC 277 at [39]. In that case Dutney J awarded lost superannuation at a rate of 9%, rejecting the argument that 6% was appropriate in order to reflect the fact that the award for lost future contributions is received now. As I mentioned earlier, I consider it is appropriate to make an allowance for loss of future superannuation (even though the plaintiff intended to enter into self employment), on the basis that she would not have continued in self employment if it placed her in a less financially lucrative position than her previous employment. Mr Webb submits that future superannuation should be calculated at 8% on $190,000, being the discounted value of lost future earnings. This yields $15,200.
I consider it appropriate that there be some discounting to reflect contingencies and the fact that there may have been periods of self employment at a lower income level when the plaintiff was unable to replicate the income levels she was able to achieve as an employee. I consider an award of $12,000 is appropriate.
Future Care and Assistance
As to future care, the plaintiff claims 10 hours per week at a rate of $13.30. Based on a life expectancy of 38 years, the multiplier (using the 3% discount tables) is 1191.2, which amounts to a claim of $158,429.60.
I am of the opinion that the award for future care and assistance should take into account Dr Langley’s report of 14/11/00 (see p3), which I accept, that the plaintiff is able to attend to her own personal care, and to lift weights under 10 kg. Furthermore, although the plaintiff may not be able to prepare complicated meals, I am of the opinion that with the use of kitchen appliances to help in chopping vegetables and opening tins, tasks with which she has difficulty, she should be able to adequately prepare meals. In addition, allowance should be made for the beneficial effect of the ongoing future treatment for which a claim is made and in respect of which I have made provision (see below). Dr Murphy’s evidence was that there was a likelihood of beneficial effects in the area of personal and family activities. Furthermore, I do not accept that there is an organic cause for the plaintiff’s pain and physical disability. Therefore an improvement in the plaintiff’s psychiatric condition as a result of the ongoing treatment, should impact on the amount of future care and assistance she will require.
It is submitted on behalf of the plaintiff that an allowance should be made to cover the 38 years life expectancy of the plaintiff. However, the defendant submits that this is not a case requiring an award encompassing such a period. The period of 38 years is clearly the upper limit. However, something more than the $5,000 contended for on behalf of the defendant should be allowed. Given the likely effects of the future psychiatric treatment which I have allowed for on the plaintiff’s condition, I am of the opinion that provision should be made on a varying weekly degree of care for period of 15 years which I consider to an appropriate period between the ranges contended for by the parties.
Accordingly, I allow future care at the rate of 5 hours per week for the next five years, at a rate of $13.30, which using a multiplier of 242.5 (based on the 3% discount tables) amounts to $16,126.25. Thereafter, I allow 2 hours per week for 10 years using a multiplier of 451.7, which amounts to $12,015.22. Accordingly, the claim under this head amounts to $28,141.47, which I round off to $28,141.
Future Medical Expenses
Mr Webb submits that the plaintiff is entitled to be compensated as follows:
(a)
Massage/Physiotherapy
(as per Dr Langley’s report of 16.11.00$ 3,000
(b) Inpatient Treatment (as per Dr Murphy’s evidence) $12,000 to $25,000 (c) Further Long Term Psychiatric Treatment (2-5 years @ $115 per week) $11,431 to $26,622 (d) Pharmaceutical expenses $32,666
I consider that the provision of $3,000 for massage/physiotherapy is appropriate. It is also appropriate that provision be made for inpatient treatment and further psychiatric treatment. In this regard, I consider that there should be an allowance of in patient treatment in the range of $18,500 and $19,000 for long term psychiatric treatment (being about an average of the two amounts claimed).
The basis of the calculation for pharmaceutical expenses of $32,666 is set out in Schedule A to the plaintiff’s statement. It is based on a claim of $36.92 per week for 36 years, using a multiplier of 884.80 on the 5% tables. As regards this claim, in the absence of medical evidence, I disallow the ongoing claim for glucosamine, noni juice and omega 3. I allow the claim as follows:
Celebrex per annum $ 70.00
Panadol per annum $ 91.20
Valerian per annum $ 212.33Total per annum $ 373.53
Total per week $ 7.18
For 36 years using multiplier of 884.80 on 5% table $6,352.86
I discount the amount of $6,352.86 to take into account the benefits flowing from the future psychiatric treatment and allow $4,500.
I therefore award future medical expenses of $44,500 as follows:
a) massage /physiotherapy $ 3,000
b) in patient treatment $18,000
c) psychiatric treatment $19,000
d) pharmaceutical expenses $ 4,500
Conclusion
I assess damages as follows:
1. Pain, suffering and loss of amenities $ 55,000
2. Interest on past pain and suffering $ 2,000
3. Past economic loss $ 80,204
4. Interest on $58,083.77 $ 13,795
5. Past loss of superannuation $ 4,812
6. Interest on lost superannuation $ 240
7. Past care and assistance $ 24,865
8. Interest on past care and assistance $ 1,243
9. Special damages $ 24,525
10. Interest on special damages $ 1,034
11. Future economic loss $184,235
12. Future superannuation $ 12,000
13. Future care and assistance $ 28,141
14. Future medical expenses $ 44,500
TOTAL $476,594
I give judgment for the first plaintiff against the defendants in the amount of $476,594. I will hear submissions as to costs.
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