Stevanovic v McIndoe

[2010] NSWDC 280

CITATION:	Stevanovic v McIndoe [2010] NSWDC 280
HEARING DATE(S):	9, 10 and 11 November 2010
JUDGMENT DATE:	19 November 2010
JURISDICTION:	Civil jurisdiction
JUDGMENT OF:	Johnstone DCJ
DECISION:	1. Judgment for the plaintiff for $338,034.75 2. The defendant is to pay the plaintiff’s costs, on the ordinary basis. 3. Leave to apply within 14 days for some other costs order.
CATCHWORDS:	MOTOR ACCIDENT - claim in negligence by a pedestrian against the driver of a motor vehicle - - whether the driver was negligent and if so, whether there was contributory negligenceDAMAGES - extent of incapacity - degree of need for domestic assistance
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
CASES CITED:	Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
PARTIES:	Velinka Stevanovic (Plaintiff) William McIndoe (Defendant)
FILE NUMBER(S):	10/10028
COUNSEL:	Mr N Ghabar (Plaintiff) Mr A Black SC (Defendant)
SOLICITORS:	Anthony Macri (Plaintiff) Holmann Webb (Defendant)

REASONS FOR JUDGMENT

The proceedings and the issues

1. The plaintiff, Velinka Stevanovic, was injured on 21 May 2007 when a van driven by the defendant collided with her causing injuries. She alleges negligence and seeks compensatory damages.

2. The defendant denies any negligence. Alternatively, he alleges contributory negligence.

3. The plaintiff contended that the defendant is estopped from denying liability by reason of a Notice served under s 81 of the Motor Accidents Compensation Act 1999 (“the MAC Act”) in which liability was admitted. This allegation was not ultimately addressed.

4. The principal issues for determination in relation to liability are:

· Was the defendant negligent?
· Was the plaintiff guilty of contributory negligence?
· If so, by what proportion should any damages be reduced?

The plaintiff’s case

5. The accident occurred at about 2.00 pm on the afternoon of Monday 21 May 2007 at the international terminal of Sydney Airport where the plaintiff worked for Broadlex Air Services Pty limited as an aircraft cleaner. As she was leaving work she was walking across an open concrete area when she stopped about 2 metres away from the rear of the defendant’s parked van, with her back to the van. She then proceeded to take off her yellow work jacket to put on a jumper, when the van was reversed into her, knocking her over onto her hands and knees.

6. She said that just prior to the accident she had put her handbag between her knees while she removed the jacket, but did not bend at all, or crouch down. The bag, which had been between her knees when she was struck, fell to the ground and its contents spilled out onto the concrete.

7. The plaintiff conceded that she went behind the van to change her jacket to obtain a degree of privacy. She did not look to see if there was anyone in the driver’s seat of the van, and did not know if the engine was running or not. She gave no thought to whether or not the van might move and made a spontaneous decision to go behind it to change her jacket. The accident occurred within a matter of seconds after she stopped, long enough only for her to put her handbag between her legs, and pull her jacket over her head. Because she had her back to the van, she did not see the reversing lights come on, or how quickly the van moved. Nor did she hear the engine start up.

8. Following the accident, fellow workers who were in the vicinity came to her aid. The defendant also came around to the rear of his van to see what had happened.

9. No witness that saw the actual collision was called, but Ms Mitrovic, a fellow employee, gave evidence. She was also leaving work, and had been walking with a group of other women some 10 metres or so behind the plaintiff. She observed the plaintiff walking straight ahead, that is, along the right hand side of the van, on the passenger side, adjacent to a fence. Ms Mitrovic and her group walked in front of the van and proceeded down the left, that is, along the driver’s side. When she reached the rear of the van she saw the plaintiff on the ground and went to her aid. The driver came to the rear of the van and she heard him say, “Oh my God, I thought I hit a pole. I didn’t see her.” Ms Mitrovic asked the plaintiff what happened and she said, “I just stopped and took off my jacket and something hit me in the back.”

10. The defendant’s van was not fitted with rear view cameras or reversing sensors, or a warning beeper for reversing.

The defendant’s case

11. The defendant gave evidence that he drove his van to the airport to deliver a parcel. He parked the van and went inside. When he came back he saw pedestrians walking down the passenger side of the van, but did not see anyone at the rear. He unlocked the van, got in, put on his seat belt, and turned on the ignition. He looked in each of the left and right wing mirrors, and glanced in the rear vision mirror, but saw nothing. He revved the engine, put the gear into reverse, partially engaged the clutch and allowed the van to move backwards, slowly. Shortly afterwards he felt a bump, and he stopped. His estimate of how far he had reversed before feeling the bump varied. He first said he had moved about a meter. Then later he said it was half a meter to a meter. In cross-examination he conceded it may have been two meters.

12. The defendant said he was reversing with a view to doing a U turn, another vehicle having been parked in front of his van. His reversing lights were in working order and he had a clear view through the rear window of the van, even though it was tinted. There were no side windows in the rear of the van and he was reliant on the wing mirrors to see to each side of the van. He said that if anybody had been standing at the rear, he would have seen them through the rear window, but when he glanced in the rear view mirror, he saw no one. He said he did not see any pedestrians walk in front of his van and proceed down the passenger side.

13. After feeling the bump, the defendant got out of his van and went to the rear. He agreed that he said, “I didn’t see her”, but denied saying, “I thought I hit a pole.”

Negligence

14. It was common ground that the plaintiff went to the rear of the van for reasons of privacy to change out of her yellow work jacket, which was dirty, to put on a jumper. Counsel for the defendant submitted that the Court would find that in the course of removing her work jacket the plaintiff crouched down, in the centre of the rear of the van, such that she was not visible to the defendant in either the wing mirrors or the rear vision mirror.

15. The defendant’s case is that there was no negligence on his part because the plaintiff was not visible in the crouched position she assumed to take off her jacket.

16. It was submitted that the court should infer that the plaintiff was crouching, because the defendant looked and did not see her, her desire for privacy, and having regard to a concession said to have been made to Ms Mitrovic by the plaintiff, to the effect that she had put her handbag between her feet to put her jumper on. The submission relied upon a sentence in an earlier written statement made by Ms Mitrovic to an insurance investigator (Exhibit 8 at paragraph 6).

17. The plaintiff, however, denied bending or crouching. There was no direct evidence to the contrary and I see no reason to disbelieve her account. There were some unsatisfactory elements in her evidence from which I have concluded that she has exaggerated the effects of the accident, but her evidence of the accident itself was in my view essentially reliable. The statement by Ms Mitrovic, assuming it was accurate, is at best equivocal. Ms Mitrovic denied having said the plaintiff told her she had placed her handbag on the ground. In any event, there is nothing in the statement about crouching down. I am not satisfied the plaintiff said what was attributed to her, but even if I was I would not regard that as evidence upon which to base an adverse inference against her.

18. I find, therefore, that the plaintiff was not crouching, and to the extent that she may have bent over, it was a slight momentary movement in order to place her handbag between her knees. In the course of removing her jacket over her head, she was standing upright, such that she would have been visible to the defendant if keeping a proper lookout.

19. The reality was that the defendant’s attempts to ensure that the area behind his van was clear were cursory and inadequate. I am satisfied that his conduct in this regard was in breach of his duty of care, as a result of which the plaintiff was injured.

20. There will, therefore, be a verdict for the plaintiff.

Contributory negligence

21. I turn now to the defence of contributory negligence.

22. This issue falls to be considered in the context of s 138 of the MAC Act, which provides that in the event of a finding of contributory negligence, the damages recoverable are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. The defendant carries the onus of proving contributory negligence.

23. The defendant submitted that the plaintiff was guilty of a substantial degree of contributory negligence, in the order of 40%. First, she stopped near a parked vehicle and failed to keep a proper lookout in relation to that vehicle. Second, she had her back to it while she removed her jacket, such that she was unable to observe it move or see the reversing lights activated, in noisy circumstances where her ability to hear the engine was adversely affected.

24. For the plaintiff it was submitted that she was entitled to assume that the driver of the van would have kept a proper lookout. There was nothing to alert her that the van was about to reverse. She was unable to see into the van due to the tinted rear window, and she stopped for a mere matter of seconds. At worst, any reduction of damages should be limited to 5 – 10%.

25. I am satisfied that the plaintiff failed to take reasonable care for her own safety. On her own evidence she paid no attention to the van and whether there was anyone in it. More importantly, she positioned herself in the middle of the rear of the van, and put her back to it, ensuring she could not see the van if it did move, in an area that was noisy such that she would be unlikely to hear the engine if it was switched on.

26. I find, therefore, that the plaintiff was guilty of contributory negligence.

27. Apportionment is an evaluative judgment that involves a comparison both of culpability, that is the degree of departure from the standard of care of the reasonable man, and of the relative importance of the acts of the respective parties in causing the damage: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493 – 494. Clearly, the conduct of the defendant was the major contributory factor in the accident. The plaintiff’s departure from the appropriate standard of care was less culpable. I think that in the circumstances of this case it is just and equitable that the damages recoverable by the plaintiff be reduced by 25%.

Assessment of damages

28. The damages to be awarded to the plaintiff fall to be determined and assessed under Chapter 5 of the MAC Act. She makes claims for past out-of-pocket expenses, future medical costs, lost income to date, reduced earning capacity into the future, past gratuitous domestic assistance, and the need for future domestic assistance. She is also entitled to general damages for non-economic loss, the requisite threshold for an award of such damages having been satisfied: s 131 of the MAC Act.

29. The plaintiff was born in Bosnia on 22 May 1961 and is now 49 years old. At the time of the accident she was 45. She grew up and went to school in Bosnia and entered the workforce in 1980. She married in 1988 and had a baby, Doris, in 1989. Doris is now 21. In 1994 the family was forced to leave Bosnia by reason of the war, and they went to Serbia. The plaintiff did not work in Serbia. In November 2000 the family migrated to Australia. The plaintiff did not obtain employment in Australia until 2006 when she commenced with Broadlex Air Services, where she worked as an aircraft cleaner for some 7 months until her accident on 21 May 2007. She has not worked since in any form of work.

30. It is alleged that as a result of being struck and knocked over by the defendant’s van, the plaintiff suffered injuries to various parts of her body, in particular her cervical spine, her lumbar spine, her right shoulder, and her left knee. In addition to her physical injuries, she alleges a resulting psychological of some significance. She claims an ongoing inability to work or perform any physical activity other than light and undemanding tasks.

The orthopaedic evidence

31. The plaintiff’s treating general practitioner was Dr Z Oreb, who the plaintiff went to see on the day of her accident, 21 May 2007, complaining of pain in her neck, lower back, the sternoclavicular area, the knees and the elbows. His initial treatment was conservative and he prescribed analgesics and physiotherapy. But pain and stiffness persisted. In particular her left knee remained swollen and she experienced frequent clicking and catching, and there were episodes of the knee buckling. Anti-inflammatory treatment did not improve her knee, and she was referred for radiological examination.

32. X-rays of her left knee undertaken on 1 June 2007 revealed no evidence of bony injury, but degenerative change was evident. The X-rays of the cervical and lumbosacral spine revealed no evidence of bony injury. There was some evidence suggestive of muscular spasm and signs of spondylosis and scoliosis.

33. But MRI examinations on 25 July 2007 showed a more serious picture. The image of her left knee demonstrated a complex tear involving the mid portion of the medial meniscus. As regards her back, there was no thoracic abnormality, but evidence of cervical and lumbar spondylosis was disclosed. Specifically, the imaging revealed some cervical disc desiccation and mild posterior annular bulging at C3/4, C4/5, C5/6 and C6/7 with some minimal indentation of the thecal sac but no focal disc herniation, neural compression or stenosis. In the lumbar region, there was normal vertebral alignment and no evidence of disc protrusion, neural compression or stenosis. But there was disclosed a posterior annular tear at L4/5 with a small posterior annular bulge.

34. On 29 August 2007 she had an ultrasound examination of the right elbow, but no abnormality was indicated and there was no joint effusion.

35. The plaintiff was referred to an orthopaedic surgeon, Dr Guirgis, who first examined her on 8 August 2007. In respect of the back he diagnosed post-traumatic mechanical cervical and lumbar derangement. This was caused by musculo-ligamentous strain with intervertebral disc involvement, triggering and aggravating the effects of underlying spondylitic changes. He noted the MRI evidence of central cervical disc bulging and the posterior annular tear at L4/5. In respect of the sternoclavicular joint he diagnosed contusion of the articular surface and spraining of the supporting capsular and ligamentous structures. In respect of the left knee he also diagnosed post-traumatic mechanical derangement, with medial meniscal involvement and secondly, contusion of the articular surface of the patella and the onset of retro-patellar chondromalacia. As to the right elbow, he found there was contusion causing swelling along the anteromedial border. Apart from the knee, Dr Guirgis recommended ongoing conservative treatment. So far as the left knee was concerned, the plaintiff was referred to an orthopaedic surgeon specialising in knees, Dr Waddell.

36. The plaintiff was first seen by Dr Waddell on 18 October 2007 and he recommended an arthroscopy in respect of her left knee. This was eventually performed on 16 June 2008, when the knee was debrided. Post-operatively, the plaintiff’s knee settled well, and she was referred for physiotherapy.

37. But knee problems persisted and she returned to see Dr Waddell on 31 October 2008. He noted swelling and tenderness, and diagnosed irritation of the cutaneous nerve at the site of the medial incision. He prescribed treatment with ice packs and the application of Voltaren Emugel. His prognosis was for the recovery of full function in the knee, with the possible development of degenerate changes in the medial aspect of the knee. He thought she should be able to return to work as a cleaner. She did not return to see Dr Waddell, and thereafter her knee problems were managed by Dr Guirgis along with her other problems.

38. In his report dated 12 December 2008, Dr Guirgis considered the plaintiff unfit for activities requiring the application of stress to her neck, back and left knee, and heavy or strenuous activities, including repetitive bending and twisting, rotation, jolting or jarring, heavy manual handling, kneeling, squatting, climbing, and prolonged walking. She would need help at home with the heavier type of activities, which he estimated at 3 hours a day for 3 days a week, or 9 hours in total.

39. In a report dated 25 May 2009, Dr Guirgis stated that he considered the plaintiff remained unfit for her pre-injury work as an aircraft cleaner, and recommended occupational assessment and retraining, including English classes and courses involving the development of transferable skills.

40. In his reports dated 14 January 2010, Dr Guirgis’ opinion remained largely unchanged, and he continued to recommend conservative treatment, except for the possibility of steroid injections to alleviate ongoing difficulties in the right sternoclavicular joint. He reported that the plaintiff was apprehensive about invasive lines of management without guarantees as to the ultimate outcome, and she opted against any further active treatment.

41. In his most recent report dated 5 October 2010, Dr Guirgis says there has been no improvement in the plaintiff’s condition, and she remains unfit to return to her pre-accident work as an aircraft cleaner.

42. There are reports from Dr Mastrioanni, a consultant occupational physician, from October and November 2009, but these add little to the clinical picture.

43. Dr Matthew Giblin, an orthopaedic specialist, was qualified by the plaintiff to express an independent medico-legal opinion. He provided a report dated 15 February 2010. He noted that she was still complaining of pain and difficulties with her neck, low back, right shoulder and left knee. She told the doctor she no longer does any housework, and had difficulty with her personal care, but can cope provided she is slow and careful. She gets about four hours sleep with tablets and her sex life is restricted by pain. She specifically denied any past history of problems with her neck and back. Dr Giblin confirmed a diagnosis of aggravation of underlying degenerative changes to her cervical and lumbar spine, with a rotator cuff injury to her right shoulder. She was, in his opinion, unfit for work involving repetitive bending, heavy lifting or prolonged sitting or standing. However, domestic assistance was not required under her current circumstances. No future treatment was indicated apart from a steroid injection into her right shoulder, which she had declined. Ongoing physiotherapy needs would be dependant upon her symptoms, but she may require 4 to 6 treatments twice a year.

44. I turn now to the orthopaedic reports relied on by the defendant.

45. The defendant qualified Dr Ian Barrett, an orthopaedic surgeon, and he provided two reports dated 27 January 2009 and 31 March 2009. He recorded a history that included an absence of prior complaints in respect of the neck and back. In his opinion the plaintiff sustained soft tissue injuries to her cervical and lumbar spine where there is spondylosis present. She also sustained a medial meniscal tear and subluxation of the right sternoclavicular joint. The meniscal tear in her left knee had been repaired by Dr Waddell, but there was a small possibility of degenerative change in the medial aspect. The prognosis for her spine was described as reasonable, but she was likely to be left with some continuing back and neck pain. She does not require any further treatment or physiotherapy. Dr Barrett regarded the plaintiff as unable to perform the heavier aspects of the housework, which he estimated at 2 hours a week. She is permanently unfit for her pre-injury duties as a cleaner, but is fit to return to alternate duties. Her need for future medical consultations is limited and her need for analgesic tablets would amount to $50.00 per year.

46. Dr Richard Honner, an orthopaedic surgeon, was also qualified on behalf of the defendant. He also accepted that the plaintiff’s accident caused soft tissue injury to the cervical and lumbar spine. He described her right sternoclavicular joint as asymptomatic. He accepts, however, that she could have suffered a soft tissue injury to her right shoulder at the time of her fall that was minor and should have resolved within weeks. The loss of shoulder movement now experienced is more likely due to the progression of degenerative changes. His prognosis was guarded due to her complaints being greater than the physical examination would support. The possibility of the development of post-traumatic arthritis in her left knee has been increased. She was unfit for her pre-injury work until her arthroscopy in 2008, but could then have worked in duties that allowed her to avoid prolonged walking or standing, bending and stooping. Similarly she would have required domestic assistance up until the time of her surgery at 10 hours a week, but within 4 weeks of the arthroscopy she would only require about 4 hours help with the heavier housework.

47. The orthopaedic evidence is, therefore, largely aligned, in terms of the diagnosis of the conditions caused by her accident. However, the seriousness and depth of the symptomatology and its effects upon her, as described in the witness box, are wholly disproportionate to the medical opinion. Nor were any of these doctors given the true history of the plaintiff’s prior back problems, as recorded by another treating general practitioner, Dr Petrovska. These included episodes of complaints of severe back problems requiring treatment, including a CT scan in 2005 and the periodic prescription of Voltaren 50 tablets. Her attempts to minimise this evidence were unconvincing. The relevance of her prior back problems goes not so much to causation, but to issues such as credit, exaggeration, and the plaintiff’s likely career path but for her accident. It is clear that the plaintiff did in fact experience neck and back problems from time to time prior to this accident, no doubt as a result of aggravating her underlying degenerative changes, but these were temporary episodes of resolving symptomatology. The accident the subject of these proceedings has clearly been the precipitating episode for permanent and ongoing problems in the affected areas.

48. I am satisfied that as a result of the accident on 21 May 2007 the plaintiff suffered soft tissue injuries to her cervical and lumbar spines that aggravated underlying degenerative changes, precipitating ongoing and permanent symptomatology. She also sustained an injury to her left knee, consisting principally of a tear to the medial meniscus that was repaired at operation in 2008. I am satisfied, however, that the accident aggravated underlying degenerative changes in that knee that precipitated mild ongoing symptomatology in the knee. The possibility of the development of post-traumatic arthritis in the knee has been increased. In so far as the right shoulder and right sternoclavicular joint are concerned, the medical support for any accident related symptomatology is less convincing. I am not satisfied that there was any permanent injury to the shoulder caused by the accident and that any ongoing problems are causally unrelated. I accept, however, that on the balance of probabilities the plaintiff suffered an injury to her right sternoclavicular joint. But equally, I find that any ongoing symptomatology would probably be alleviated by steroid injections. I am satisfied that the plaintiff’s refusal to undergo that treatment is unreasonable.

49. The damages are to be assessed, therefore against a background of a variety of ongoing problems including pain in various regions, the extent of which, however, is less serious than the plaintiff propounds. There has been considerable exaggeration and overstatement in terms of her symptoms and its effect on her capacity for physical activity.

50. From a physical perspective, it may be accepted that the plaintiff has been and remains permanently incapacitated for her pre-injury occupation as an aircraft cleaner. On the other hand, the preponderance of the orthopaedic evidence is to the effect that she has been fit for alternative work involving the avoidance of prolonged walking or standing, and strenuous activity including bending and stooping. Her need for domestic assistance was at its highest during the period prior to and immediately following her meniscectomy. I accept the evidence of Dr Honner that the need was for about 10 hours a week at that time, but thereafter her need was limited to the more heavy activities, and was less than 5 hours a week.

The psychological and psychiatric evidence

51. I turn now to the psychological and psychiatric evidence tendered on behalf of the plaintiff. This evidence was unchallenged by any evidence from defendant.

52. Following her accident the plaintiff suffered from depression and anxiety and she was referred for psychological and psychiatric assessment and treatment. She was referred to a psychiatrist, Dr D Kecmanovic, whom she first consulted on 17 January 2008. He obtained a history that she was depressed and concerned for the future. He diagnosed an adjustment disorder of a chronic type. He changed her medication and although he indicated he was to see her again, there were no further consultations.

53. The plaintiff did not seek any further psychological treatment until after her arthroscopy on 16 June 2008. She then consulted Mr Zoran Protulipac, a consultant and forensic psychologist, on 31 July 2008.

54. Mr Protulipac treated the plaintiff for stress, anxiety and depression, conducting some 20 sessions of therapy designed to alleviate her symptoms of a major depressive disorder. In his opinion, her psychological condition was reactive to her physical pain and he found it difficult to estimate the extent to which improvement could be achieved, but she was in danger of developing chronic depression. Nevertheless, when he reported in January 2010 he was pleased to report considerable progress in terms of the psychological symptoms she had initially reported. The levels of anxiety and depression had reduced, with only residual symptoms of post-traumatic stress remaining. Her psychological condition remained dependent on the fluctuations of her pain. In his opinion she had reached a plateau and he had decided to terminate therapy, having educated her in terms of relapse prevention.

55. I conclude from this that the plaintiff no longer required treatment for her psychological condition, which had improved considerably, as a reflection of improvement in her physical condition. This position was contraindicated by her presentation, from which I took as further evidence of her tendency for exaggeration and to overstate the effects of the accident.

The functional, vocational and occupational reports

56. The plaintiff relies on a functional assessment by a physiotherapist, Ms Gill Myburgh, set out in a report dated 11 August 2010, a vocational assessment by a clinical psychologist, Ms Elizabeth Carter, in a report dated 11 August 2010, and a report from an occupational therapist, Ms Carolyn Grinter dated 13 August 2010.

57. The opinions in each of these reports are dependent upon an acceptance of the totality of the plaintiff’s complaints. Having regard to her propensity to exaggerate and to overstate her symptoms, the reports are of limited value, and provide me only with some general guidance on questions of the plaintiff’s capacity for work and any need for domestic assistance. In any event, I found the reports tendered on behalf of the defendant to be more objective and thorough on these areas, and I prefer that evidence. These were the reports of Mr Peter Williamson, a consultant occupational therapist, dated 27 October 2010, and Dr Robin Mitchell, a specialist in occupational medicine, and Helen Wallace, a vocational psychologist, dated 28 October 2010.

58. Against the background of the medical, functional, vocational and occupational evidence that I have accepted and the findings and conclusions I have drawn from it, I proceed now to assess the plaintiff’s entitlement to damages under the various heads claimed.

Medical and related out-of-pocket expenses

59. The plaintiff claims past medical and out-of-pocket expenses totalling $33,513. This is made up of treatment expenses paid by the workers’ compensation insurer and some other uncontested items. The claim was not disputed.

60. I allow past medical and related out-of-pocket expenses in that amount.

61. Turning to the future, the plaintiff claims an amount of $81,961. This is calculated as follows:

· Medication - $53.15 per week for life, based on the plaintiff’s current consumption of various medications: $48,361.
· General practitioner - 6 weekly attendances at $60 a consultation ($10 per week), based on Dr Giblin’s opinion: $9,100.
· Specialist treatment - 2 attendances per year at $200 each ($7.69 per week), less than Dr Guirgis recommended: ($7,000).
· Physical therapies - $1,000 per year based on Dr Guirgis ($19.23 per week): $17,500.

62. The defendant submitted that these claims were all excessive and that the plaintiff’s need for medication at the present level claimed was unlikely to persist for the whole of her life. A cushion of about $5,000 was appropriate.

63. The findings I have made indicate that the plaintiff’s claim is excessive.

64. In my view the plaintiff’s need for medication is not nearly as extensive as she would argue. I accept, however, that she will need a level of analgesics for the remainder of her life. Her need for anti-depressant medication over her remaining life will, however, be short-lived. I allow a total of $20 per week for future medication.

65. Likewise, her stated need for future medical treatment is overstated. An allowance should, however, be made for steroid injections as recommended by Dr Guirgis. I do not accept the need for 6 weekly attendances on her general practitioner. Quarterly is sufficient, together with one specialist attendance per annum. No claim was made for any psychological treatment. Taking all these matters into account I allow $10 per week plus a lump sum for steroid injections of $3,000 to $4,000.

66. The evidence about the need for physiotherapy varied between doctors. I accept the evidence of Dr Giblin that she may require 4 to 6 treatments twice a year. I allow $10 per week.

67. For future medical and out-of-pocket expenses, I allow an amount of $40,000 (made up of $40 per week by a 5% multiplier of 909.9 = $36,396 plus a lump sum for the steroid injections).

Domestic assistance

68. The next head of damages for which the plaintiff claims relates to domestic assistance. She makes substantial claims both for the past and for the future. In my view her claims largely lacked merit, nor are they consistent with the objective specialist medical opinion. Her estimates of the hours required to clean her two-bedroom unit were exaggerated and inflated. And, sadly, I reject the estimates made by her daughter as partisan and lacking objectivity. That it would take an hour and a half to clean a bathroom in a unit was to my mind unacceptable.

69. I accept that the medical evidence supports a finding of a substantial need for domestic care up until shortly after the arthroscopy on 16 June 2008. I accept the evidence of Dr Honner that she would have required domestic assistance up until the time of her surgery at 10 hours a week, but within 4 weeks of the arthroscopy she would only require about 4 hours help with the heavier housework.

70. On this basis the plaintiff is entitled to 60 weeks at $22 per hour x 10 hours = $13,200 for past gratuitous assistance, due to the threshold requirement not being satisfied for the subsequent period: s 128 of the MAC Act.

71. Turning to the future, the plaintiff is precluded from recovering any damages for gratuitous domestic care, due to the threshold requirement not being satisfied: defendant submitted that it is unlikely the plaintiff would engage commercial assistance on any regular or extensive basis, and that an allowance of $50,000 is sufficient.

72. In my view, the plaintiff is likely to utilise commercial assistance of two to three hours per week for heavier tasks, including one-off window cleaning and spring cleaning, once her daughter leaves home, in 3 to 4 years time. A deferred allowance at $36.30 an hour produces an amount that I have rounded off to $65,000.

Economic loss

73. The next head of damages for which the plaintiff claims is economic loss, past and future. She claims $104,097 for past loss of earnings on the basis of a total incapacity to obtain suitable work commensurate with her physical restrictions. Similarly, she claims future economic loss of $295, 545 on the basis that she is unemployable. Having regard to the findings I have made, these claims are unsustainable.

74. The defendant submitted that an allowance of $60,000 should be made for the past, and an allowance of $50,000 should be made in respect of lost future earning capacity.

75. It is common ground that the plaintiff has been and will remain unable to perform her pre-accident work as an aircraft cleaner.

76. Nor is it disputed that the type and range of work opportunities available to the plaintiff have been and will be limited by reason of the physical restrictions operating as a result of her ongoing neck, lumbar back and left knee problems. For the reasons given, I take no account of any effect on her work capacity by reason of her shoulder or right sternoclavicular joint. I am not satisfied, however, that the plaintiff has been or will be totally unemployable. Nor am I satisfied that she has made adequate or sufficient attempts to find suitable alternative employment. As I have already found, she has overstated the effects of the accident on her ongoing capacity for physical activity and exaggerated her disabilities. I find, for the reasons given, that the plaintiff has been since her arthroscopy, and will remain fit for appropriate alternative employment.

77. Further, I am not satisfied that the plaintiff could and would have remained in full-time employment equivalent to her pre-accident job as an aircraft cleaner till the age of 65. First, her susceptible back, as evidenced by previous episodes of aggravation of the underlying degenerative changes would most likely have precluded ongoing uninterrupted employment. Secondly, her work ethic as demonstrated by her pre-accident work history and her inadequate attempts, post accident, to obtain any form of employment also demonstrate the improbability.

78. I am satisfied, therefore, that the following assumptions about the plaintiff’s future earning capacity accord with her most likely future circumstances but for her injuries: she would not have worked till the age of 65 or 67 in the same or similar employment, at a similar level of base wage. I am, however, satisfied that she would have continued to work in such an occupation for a further 5 years, but thereafter that she would have worked in a casual, part-time non-strenuous occupation on a sporadic basis until the age of 65: s 126(1) of the of the MAC Act.

79. It is not disputed that the plaintiff’s nett average weekly earnings at the time of the accident were $544.86. It is also agreed, arithmetically, that her comparable earnings in her pre-accident job would have been as follows;

21.5.07 – 30.6.07 (5 weeks) = $544.86 nett per week (Period 1)
1.07.07 – 30.6.08 (52 weeks) = $559.24 nett per week (Period 2)
1.07.08 – 30.6.09 (52 weeks) = $590.49 nett per week (Period 3)
1.07.09 – 30.6.10 (52 weeks) = $593.37 nett per week (Period 4)
1.07.10 – 9.11.10 (18 weeks) = $596.24 nett per week (Period 5)

80. I am satisfied that until the plaintiff underwent her arthroscopy on 16 June 2008, and for a short period thereafter, she was totally incapacitated. I therefore allow past loss of earnings for that period as follows:

21.5.07 – 30.6.07 (5 weeks) @ $544.86 nett per week = $ 2,724.30
1.07.07 – 30.6.08 (52 weeks) @ $559.24 nett per week = $29,080.48
1.07.08 – 14.7.08 (2 weeks) @ $590.49 nett per week = $ 1,180.98
$32,985.76

81. Since her arthroscopy, or shortly thereafter, the plaintiff has been capable of working in some suitable alternative capacity, within her medical restrictions. I accept that there would have been a lead-time in obtaining such employment, but I do not accept that she has either been incapable of obtaining some form of suitable employment, or that such work is unobtainable having regard to her limitations, her training and her language difficulties.

82. The difficulty in this case is determining the type of work and the rate of pay. As I have said, the vocational and occupational reports are unhelpful, the plaintiff’s because they contend she is unemployable, the defendant’s because they propound what I regard as unrealistic alternative forms of employment such as a packer or assembler. To my mind there are many other alternative options for work with limited hours not requiring sustained physical effort, and probably the best option was that the plaintiff in fact made some desultory attempts to obtain, such as making sandwiches or working in a food outlet.

83. It is to be recognised that the plaintiff has lost part of her earning capacity. She has nevertheless retained a significant residual earning capacity.

84. For the period following her arthroscopy, from 15 July 2008 to the present, a period of 121 weeks, she would have earned, in her pre-accident job:

15.7.08 – 30.06.09 (50 weeks) @ $590.49 nett per week = $29,524.50
1.07.09 – 30.06.10 (52 weeks) @ $593.37 nett per week = $30,855.34
1.07.19 – 19.11.10 (19 weeks) @ $596.24 nett per week= $11,328.56
$71,708.40

85. I consider that in some suitable form of alternative employment, allowing some lead-time, she could have earned $40,000.00. I therefore allow past loss of earnings for that period for the difference: $31,708.40.

86. I have allowed a total for past loss of earnings of $64,694.16. To this I must add lost superannuation at 11% of $7,887.92. An allowance is also to be made for tax on workers’ compensation payments (Fox v Wood) agreed at $6,445.00. Accordingly, the total past economic loss is $79,000 in round figures.

87. I turn now to the future. The amount of the award of damages for future economic loss that would have been sustained by the plaintiff would in the ordinary course be adjusted by reference to a possibility that the events concerned might have occurred but for her injury. There should, therefore, be a 15% reduction for vicissitudes.

88. Having regard to the assumptions about the plaintiff’s most likely future circumstances but for her injuries, and the variables to which I have referred in respect of alternative options for work available to the plaintiff with limited hours not requiring sustained physical effort, in my view, the preferable method for compensating her for her diminished future earning capacity is by way of lump sum buffer. In making the assessment, I have deducted 15% for vicissitudes, but I have added back in an 11% allowance for superannuation. The sum I award is $120,000.00.

Non-economic loss

89. The final head of damages to be considered and assessed is non-economic loss. The threshold requirement for an award of such damages was met: s 131 of the MAC Act. The plaintiff claimed $180,000. Counsel for the defendant submitted that the appropriate range is $80,000.00 to $100,000.00.

90. The significant factors to be taken into account in my view are as follows. She has experienced some three plus years of pain and discomfort, including anxiety and depression, significant sleeplessness and social withdrawal, both within her own family, and socially. She is now nearly 50. She has, however, a life expectancy of a further 39 years that will be attended by restricted movement and discomfort. The evidence is that her knee has prospects of deterioration. She should undergo further medical treatment for her shoulder in the form of steroid injections.

91. The plaintiff’s general enjoyment of life has been adversely affected, and this will continue into the future. One of the difficult features to assess in this case is the plaintiff’s withdrawal, and her likely future in that regard. However, having regard to the evidence of her psychologist, the future looks brighter. It is also clear that one of the main sources of concern has been her inability to contribute financially and a feeling of worthlessness. This award of damages will operate positively to alleviate those stressors.

92. In my view an award of $100,000 is within the appropriate range, having regard to all her circumstances. I find, therefore, that her non-economic loss should be assessed at $100,000.00.

Total damages and nett damages

93. The assessment of total damages is, therefore, as set out in the Table below together with the reduction required for the contributory negligence:

Head of damage	Amount
Past out of pocket expenses	$ 33,513
Future out of pocket expenses	$ 40,000
Past care and assistance	$ 13,200
Future care and assistance	$ 65,000
Past economic loss (including superannuation)	$ 79,000
Future economic loss (including superannuation)	$120,000
Non-economic loss (general damages)	$100,000
Total damages	$450,713
Less 25% for contributory negligence	$112,678.25
Nett damages	$338,034.75

Costs

94. Costs follow the event and are payable on the ordinary basis, unless some other order is appropriate. There is nothing before me, at this point, to indicate that some other order is appropriate but I will reserve leave to either party to apply in that regard.

Disposition

95. There will, therefore, be a verdict for the plaintiff for $338,034.75.

96. I direct the entry of judgment for the plaintiff for the amount of the verdict.

97. I order the defendant to pay the plaintiff’s costs, on the ordinary basis.

98. I give leave to the parties to apply for some other costs order provided any such application is notified to the other party and the court within 14 days, in writing, specifying the order sought.