Ton v HAZELGRAVE
[1999] WADC 8
•26 JULY 1999
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CIVIL
LOCATION: PERTH
CITATION: TON -v- HAZELGRAVE [1997] WADC 8
CORAM: O'BRIEN DCJ
HEARD: 14 & 15 JUNE 1999
DELIVERED : 26 JULY 1999
FILE NO/S: CIV 2677 of 1997
BETWEEN: QUAN DUNG TON
Plaintiff
AND
PHILLIP WILLIAM HAZELGRAVE
Defendant
Catchwords:
Damages - Motor vehicle accident - Soft tissue injury superimposed on pre-existing condition (scoliosis) - Plaintiff unfit for pre-accident occupation but fit for light duties - Future loss of earnings only for the time plaintiff unable to resume any employment - Turns on own facts.
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 as amended
Law Reform (Miscellaneous Provisions) Act 1941 as amended
Result:
Damages Awarded
Representation:
Counsel:
Plaintiff: Mr T Heard
Defendant: Mr K N Allan
Solicitors:
Plaintiff: Bradford & Co
Defendant: K N Allan
Case(s) referred to in judgment(s):
Andjelic v Marsland (1996) 70 ALJR 435
Coleman v McDougall, unreported; DCt of WA; Library No 4413; 3 May 1995
Fabo v Craig, unreported; DCt of WA; Library No 5023; 2 August 1996
Grubor v Adornetto, unreported; DCt of WA; Library No 5030; 19 August 1996
Southgate v Waterford (1990) NSWLR 427
Van Gervan v Fenton (1991-1992) 175 ALR
Case(s) also cited:
Allan v Loadsman (1975) 2 NSWLR 7892
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 2CLR 649
ASCIC v Westel Co-Operative Ltd A Tort Rep 81-159
Baird v Roberts (1977) 2 NSWLR 389
Bernard v State Government Insurance Commission, unreported; DCt of WA; Library No 4457; 7 June 1995
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) ATR 81-043
Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334A
Glendenhuys v Ah Lek Soo, unreported; FCt SCt of WA; Library No 990147A; 23 March 1999
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hendrie v Rusli, unreported; DCt of WA; Library No D990147; 28 May 1999.
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Linsell v Robson (1976) 1 NSWLR 249
Main v Titmus, unreported; DCt of WA; Library No 4576; 23 August 1995
Malaxos v van der Berg, unreported; DCt of WA; Library No 4681; 3 November 1995
Newman v Nugent (1992) 12 WAR 119
Purkess v Crittenden (1965) 114 CLR 164
Sharman v Evans (1977) 138 CLR 563
State Government Insurance Commission v Toomath per Rowland and Ipp JJ
Thomas v O'Shea (1989) A Tort Rep 80-251
Van Velzen v Wagener 10 SASR 549
Watts v Rake (1960) 108 CLR 158
Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1994
O'BRIEN DCJ: On 4 April 1997, the plaintiff was driving a motor vehicle along Main Street Balcatta when a car driven by the defendant crossed the lane and struck her vehicle head on. The defendant admitted liability and the plaintiff proceeded to trial on the issue of quantum of damages.
The plaintiff was born in Saigon, Vietnam, on 13 December 1950. She left school when she was 15 years of age and worked in the family business preparing and selling food. In 1980, the plaintiff left Vietnam with her younger brother. After spending some time in Indonesia, she arrived in Western Australia in December 1980. She became an Australian citizen in 1984.
In January or February 1982, the plaintiff commenced work as a packer. This work involved lifting containers weighing 10 to 15 kilograms. The plaintiff remained in that employment until resigning in 1985 as she was then pregnant. The plaintiff gave birth to twin daughters on 14 October 1985. The relationship with the father of her children broke down in 1987 and from then on the plaintiff cared for her daughters as a single mother.
On 2 December 1992 the plaintiff commenced work as a process worker/packer with Kailis & France Pty Ltd ("Kailis"). The plaintiff continued with Kailis until her accident in 4 April 1997.
The work at Kailis involved standing at a conveyor belt and placing frozen fish into boxes and then carrying the boxes to pallets. The weight of the boxes ranged from 10 to 15 kilograms.
Since the accident, the plaintiff has not returned to her employment at Kailis, nor has she had any other paid employment. She testified that this was because of the pain caused by the accident. Since the accident the plaintiff has been in receipt of social security benefits.
The plaintiff testified that she had three months of English classes when she arrived in Australia. She gave her evidence through an interpreter and I am satisfied that she has a limited understanding of spoken English and difficulty in communicating in the English language.
THE PLAINTIFF'S INJURIES
Accident caused injuries
The plaintiff was hospitalised at Sir Charles Gairdner Hospital for four days after the accident, being discharged on 7 April 1997. According to the report of her general practitioner, Dr C F Leong, when in hospital, the plaintiff underwent blood tests, x-rays, CAT scan and an ECG.
On her release from hospital, the plaintiff was treated by Dr Leong who eventually referred her to Dr K C Ng, a rheumatologist. The plaintiff also underwent physiotherapy from 1 May 1997 until 5 August 1997 three times per week.
The plaintiff has also been reviewed by Mr David Wright, an orthopaedic surgeon who examined her on 7 April 1998 and 9 December 1998, and Associate Professor Peter Hollingworth, an occupational physician, engaged by the defendant, who reviewed the plaintiff on 4 August 1998 and 7 May 1999.
Dr Leong’s report dated 9 October 1997 conveniently outlines the plaintiff’s injuries as at his examination on 14 April 1997 as follows:
“On examination, there was pain at the neck and upper trapezius areas, upper sternum, left lower rib cage, right knee, upper thoracic spine, right upper arm, and left side of the abdomen. There was a long line of bruising with haematoma across the lower abdomen, and bruising at the right knee. [The plaintiff] sustained whiplash and multiple soft tissue injuries”.
The plaintiff testified that she gets most pain in the neck, back and shoulder. The pain in her neck occurs when she turns her neck to the right. The pain on the left side of her neck is not as bad as the right side. The pain in her back, which she described and demonstrated as being about eight inches below her neck and in the middle of her shoulder blades, is always present.
The plaintiff testified that medication she now takes includes Panadeine, Panadeine Forte, and "patches" and a hot water bottle to relieve the pain. Dr Ng recommended a TENS machine which it appears the plaintiff has used up until May 1999 when Professor Hollingworth saw her last. However, there was no evidence as to the benefit or otherwise of this.
Under cross-examination, the plaintiff said that she cannot lift her left arm or turn her arms to her back. At night, she feels sore from the elbow to the hand. The middle of her back feels like something heavy is pressing on her spine all the time. Under cross-examination, the plaintiff also testified that she had pain in the middle of the waist area of her back and further down. There was no pain in that area before the accident.
She said that for about six weeks after the accident she used crutches and about a week after that she felt the pain in her lower back. Under cross examination, when referred to the statement of claim amended on 7 May 1999, pleading aggravation of pre-existing thora-columbar scoliosis, she said this was done because after she finished using the crutches, she felt pain in the lower back.
She said that she told Dr Leong about the pain in her lower back but was unable to remember when she did that. She had no difficulty in communicating with Dr Leong as both of them spoke in Chinese and were able to speak Chinese fluently. She was unable to recall when she first told Dr Leong about the pain in her lower back. The plaintiff has seen Dr Leong almost on a monthly basis since the accident.
Dr Leong testified that when he last saw the plaintiff on 21 April 1999 she complained of “a bit of pain in the lower back”. That is the totality of Dr Leong’s evidence about lumbar pain.
When Dr Ng saw the plaintiff in October 1997, he reported that the “lumbar spine” was uninvolved. He testified that he specifically asked the plaintiff about pain in her cervical, thoracic and lumbar regions. Dr Ng also was able to communicate without difficulty with the plaintiff in her own language. Dr Ng testified that the plaintiff complained of symptoms but he could find no signs to confirm them. The signs he was talking about included limitation in movement and muscle spasm.
Dr Wright first saw the plaintiff on 7 April 1998, a year after the accident, after she was referred for examination by her solicitor. He reported that the plaintiff complained of pain in the mid thoracic spine and also in the lower lumbar spine with the thoracic pain being worse. Dr Wright agreed with the proposition that if no mention of lumbar pain was made to Dr Ng 6 months after the accident and the plaintiff’s own account is that it did not occur for some months after the accident, then the lumbar pain cannot be related to the accident.
Dr Hollingworth did not report of any pain in the lumbar region when he examined the plaintiff in August 1998. However, when he saw her in May 1999, the plaintiff did report “some pain” in the lumbar region with slight radiation into the lateral thigh on the left.
The medical evidence is that the soft tissue injuries suffered in the accident, apart from the pain in the thoracic spine, have mostly settled.
I accept the plaintiff’s evidence that she still suffers pain in the thoracic spine and the right side of her neck. There is no evidence that the lumbar pain was caused by the accident - indeed it is to the contrary. There is no evidence that the lumbar pain could be a symptom of her scoliosis (referred to below). It is left unexplained.
Pre-existing condition
All the doctors agreed that the plaintiff has along standing thoraco-lumbar scoliosis with some early degeneration. The degree of scoliosis was variously described as “gross”, “moderate to severe”, “very extensive”, scoliosis “of 40 degrees”. All medical practitioners accepted the plaintiff’s account that her back was asymptomatic prior to the accident. This was also her sworn testimony. There was agreement that the pain in the thoracic spine was a result of the soft tissue injury received in the accident.
Dr Wright was of the view that the scoliosis was rendered symptomatic by the accident. There was no direct evidence about the type of symptoms which might be associated with scoliosis. However, given that Dr Wright specifically and the other doctors implicitly stated that the scoliosis became symptomatic as a result of the accident, I infer that the symptoms of scoliosis include symptoms of pain and restriction of movement as described by the plaintiff. All the medical witnesses attributed the symptoms described by the plaintiff (apart from the lumbar pain) directly to the soft tissue injuries suffered in the accident superimposed on the scoliosis. Professor Hollingworth testified that the scoliosis was not made worse by the accident. However, Dr Wright testified that as it is almost two years since the accident and as the plaintiff does not seem to have improved and whilst he is hopeful of improvement, it is quite common that when someone has a “long term problem aggravated by an injury, that it never completely settles down” and after two years, the prospect of her getting totally better is less likely. Professor Hollingworth also testified that the scoliosis makes recovery from the soft tissue injuries slower.
EFFECTS OF THE INJURY
Pain and movement
The plaintiff testified that she cannot lift her left arm high and cannot turn her arms to the back. Under cross examination she said that even carrying her hand bag on her shoulder with three coins in it hurts her. It was put to the plaintiff and in submissions that by this evidence she was exaggerating her pain. However, I took the plaintiff to mean that even her carrying such a light weight as her hand bag caused her pain. The mention of the three coins was, in my view, just an illustration of how carrying such little weight caused her pain.
Dr Wright reported that the plaintiff found sitting or standing for half an hour significantly aggravated her back symptoms and that the pain is also aggravated when she stands up from a sitting position. Professor Hollingworth reported that the plaintiff said that she experienced pain when vacuuming one room. He did not assess her standing tolerance.
I find that Dr Ng’s evidence about the absence of signs of injury are only referable to the time he saw her. He was not the plaintiff’s treating doctor. Dr Leong’s evidence as to the plaintiff’s pain is uncontradicted. In my view, he is in the best position to assess the plaintiff’s account because he has seen her monthly since the accident.
Need for gratuitous services
The plaintiff testified that she did “everything the woman has to do around the house”. This includes washing, cooking, gardening, changing the sheets, vacuuming, cleaning the toilet and bathroom. Clearly these are domestic tasks which need to be done.
There was some inconsistency about how much time she spent on housework after the accident. Initially, the plaintiff testified that she spent 15 hours before the accident on housework and seven and a half hours after the accident. The amended statement of claim pleaded that the plaintiff needs four hours assistance in the house per week. Under cross examination she said she was claiming assistance for 7 1/2 hours of housework a week and then said that “people” help her four hours a week. When I sought to clarify the issue, the plaintiff said that before the accident she did 15 hours housework a week. After the accident she does about 7 hours. Her children help her about 2 hours a week.
Dr Wright doubted that the plaintiff would need assistance with her housework for the rest of her life. His opinion is that “she may need assistance for the next two or three years”.
Award for gratuitous services
I turn now to make findings in relation to an award for gratuitous services. All statutory references in this judgment are to the Motor Vehicle (Third Party Insurance)Act 1943 (“the Act’).
The damages that may be awarded for gratuitous services of a domestic nature that have been or are to be provided by the members of the family of the plaintiff are limited by the provisions of s3D.
No damages are to be awarded for the value of the services if the services would have been provided to the plaintiff even if the plaintiff had not suffered the bodily injury (s3D(2)). There is no evidence that this is the case.
If the services are provided or are to be provided for less than 40 hours per week the amount of damages is to be assessed in accordance with s3D(5).
If the amount of damages that may be awarded according to s3D(5) is less than $5,000, no damages are to be awarded for those services (s3D(6) and (7)).
In order to recover damages for gratuitous services the plaintiff requires to show a need for such services (Van Gervan v Fenton (1991-1992) 175 ALR 327).
Dr Leong gave no evidence of the plaintiff's need for domestic assistance.
Dr Wright was unable to provide evidence of the plaintiff's need for services and in particular he was unable to say whether she required housework assistance for two, three or four hours per week or for how long she would require such services.
Dr Ng and Professor Hollingworth gave no evidence in this regard.
The evidence is not particularly satisfactory as to how many hours gratuitous services have been provided since the accident and how many will be required in the future. This is not the fault of the plaintiff. Unfortunately, the questions posed were not precise enough to elicit any unequivocal evidence on the issue. However, at the end of the day, the plaintiff’s claim is for three hours per week for past gratuitous services for 113 weeks (ie from 7 April 1997 to 15 June 1999). For future gratuitous services, the plaintiff claims three hours a week for 104 weeks.
I am prepared to uphold the claim for three hours a week past gratuitous services. In my view, the evidence overall establishes that this approximates to the average assistance per week over the period of 113 weeks.
As to future gratuitous services, at the present time, according to the plaintiff, her daughters assist her for 2 hours per week. Given the medical evidence that the plaintiff’s soft tissue injury will resolve in time, it is unlikely that she will need assistance for two hours per week indefinitely. It is reasonable to infer that with the healing of the soft tissue injury that the present need for two hours assistance per week will decrease.
I find that the plaintiff will be able to return to “light work” within 12 months. My reasons appear below. Given that it is likely that the symptoms will improve within that time sufficiently to enable the plaintiff’s return to light duties work, it is more likely than not that she will not need two hours assistance per week. I therefore am prepared to make an award for future gratuitous services of two hours per week for six months.
Calculation of award for loss of gratuitous services
The following schedule was prepared on the basis of the Australian Bureau of Statistics average weekly earnings dated 4 March 1999.
| Past Gratuitous Services | $ |
| 07.04.97 – 31.08.97 = 149 days/21 weeks | |
| 3 hours per week at $14.10 per hour (1/40th of $563.80) 21 x $42.30 | $888.30 |
| 01.09.97 - 30.11.97 = 91 days/13 weeks | |
| 3 hours per week at $14.10 per hour (1/40th of $564.20) 13 x $42.30 | $549.90 |
| Past Gratuitous Services | $ |
| 01.12.97 - 26.02.98 = 88 days/12 weeks 3 hours per week at $14.10 per hour (1/40th of $568.40) 12 x $42.30 | $507.60 |
| 01.03.98 - 31.05.98 = 92 days/13 weeks 3 hours per week at $14.30 per hour (1/40th of $572.30 13 x $42.90 | $557.70 |
| 01.06.98 - 30.08.98 = 91 days/13 weeks 13 x $14.30 (1/40th of $573.40) x 3 hours per week | $557.70 |
| 01.09.98 - 30.11.98 = 91 days/13 weeks 13 x $14.30 (1/40th of $572.50) x 3 hours per week | $557.70 |
| 01.12.98 - 26.07.99 = say 34 weeks 34 x $14.30 (1/40th of $572.50) x 3 hours per week | $1,458.60 |
| $5,077.50 | |
| Future Gratuitous Services | |
| 26 (weeks) x $14.30 (1/40th of $572.50) x 2 hours per week | $743.60 |
| Total | $5,821.10 |
Loss of earnings
The plaintiff testified that for the last 7 or 8 months she has been looking for light work. She said that she is interested in serving food, selling cakes - in other words, working as a shop assistant. She said that she cannot do full time work at present. So far she has been unsuccessful in obtaining work although she said that she was prepared work in a number of suburbs. There is no evidence as to the reasons for her lack of success in finding work.
I am satisfied on the balance of probabilities that since the accident and as a direct result of the injuries suffered in the accident, the plaintiff has been- unfit to return to her pre accident occupation. So much is clear from the plaintiff’s uncontradicted and unchallenged evidence on this point and from the medical evidence.
Dr Wright reported that as time goes on, it will become less likely that the plaintiff will return to her pre accident work. His view was that she will have to avoid lifting weights over 5 to 10 kilograms in the future. In response to a written question posed by the plaintiff’s solicitors as to whether the plaintiff is permanently incapable of her pre accident employment, Dr Wright’s opinion is as follows:
“Whilst I do not discount the possibility of a significant improvement I am of the opinion that it is most unlikely that [the plaintiff] will return to her pre-accident employment in a processing factory”.
Dr Wright assessed the plaintiff’s permanent disability to the thoracic and lumbar spine at 10%.
Professor Hollingworth and Dr Ng were of the view that given the plaintiff’s scoliosis, that even without the accident, she would be unfit for the type of work she was doing at Kailis. There is evidence that with the degree of scoliosis, it was unwise for the plaintiff to be working in heavy manual work at any time and that she would not have been able to continue working in her pre accident work until the age of 65 years.
Professor Hollingworth’s expertise includes the assessment of individuals for various types of work. He was of the view after he saw the plaintiff in August 1998 that she is not currently capable of her pre accident work “which is of a fairly physical nature and requires to be done at some speed”. He was of the view that this disability is only partial, not permanent and that with the passing of time, she will be able to “get back to doing the type of work which she was doing”.
However, he reported after his last examination of the plaintiff on 7 May 1999 that “... knowing that she has this very marked scoliosis, I would be advising very strongly against any very physical job”. Professor Hollingworth was also of the view that “there has been nothing to suggest that this lady would be left with any permanent impairment or disability as a result of her [accident], and the underlying very marked scoliosis ... is completely unrelated to the [accident], but would be likely to slow down her recovery”.
Overall, Professor Hollingworth considered that there was nothing to suggest that the plaintiff will have any limitation on returning to work as a result of the accident. However, in view of her marked scoliosis, he would advise very strongly against any very physical job. His view was that the plaintiff could do work of a “process nature” such as packing bacon or chicken and the type of work the plaintiff has recently unsuccessfully sought. However, he thought that it might take a year or so before she was capable of this, although he could not be definite about the time period - it might be less, it might be longer.
The prognosis of when the plaintiff will be fit to return to work is not at all definite. The plaintiff herself has been looking for light work which, given her testimony about her pain and limitations of movement, I infer would not involve lifting or bending. It does not necessarily follow that, if successful in finding such work now or in the near future, that she would be capable of doing it. In my view, she clearly continues to suffer pain and has limitations in her physical movements.
Given Professor Hollingworth's area of expertise, I find his testimony most relevant and helpful in attempting to predict when the plaintiff might be in a position to return to light work such as in the position of a shop assistant. Even he (not unnaturally give the circumstances) could not be precise in his estimation of the time it might take.
Professor Hollingworth did say that he would be surprised if the plaintiff was still working in her pre accident employment by the age of 55 years, given her scoliosis. He described that time limit as a “ball park” figure. In effect, he was guessing. That is the only evidence on this issue.
However, the uncontradicted and unchallenged evidence of the plaintiff is that she worked at Kailis for five years without any difficulty and with no pain. She might theoretically have been unfit for that type of work but it is a moot point as to how long she would have continued in that work were it not for the accident. Save to say, at some time in the future, it is more likely than not that her scoliosis would prevent her from continuing in that line of work.
I am prepared to find that the plaintiff has established on the balance of probabilities that as a direct result of the motor vehicle accident -
·she has been unfit for her pre‑accident work from 4 April 1997 until now;
·she will not be capable of performing appropriate "light work" for another 12 months.
I also find that it is more likely than not that the plaintiff's scoliosis will prevent her from working in her pre‑accident occupation by the time she turns 55 years of age.
That is the best I can do given the state of the evidence.
The plaintiff's income
The payroll officer from Kailis testified that the plaintiff's position at Kailis was “senior processor”. She testified that Kailis had a bit of a “lull” and four shifts were reduced to two. She was not asked when the “lull” occurred. The witness was of the view that given that the plaintiff was a permanent employee and her length of service at Kailis that she would not have been put off. Facsimile evidence from Ms Bev Baxter, the human resources manager at Kailis, tendered by consent indicated that the “likelihood of [the plaintiff] being still employed as Senior Processor would be very remote due to the company streamlining employees roles which took effect on [29 June 1998]. It is more likely that the employee would be classified as a “Processor”. The current rate for Processor is $11.18 (flat rate)... effective from[29 June 1998].” However, Ms Baxter was unable to say that the plaintiff would have been made redundant.
I am not satisfied on the state of this evidence that the plaintiff would have been made redundant. However, given that the evidence of Ms Baxter was tendered by consent and is uncontradicted, I am satisfied that as from 29 June 1998, the plaintiff would have been down graded from a senior processor to a processor and paid at the rate of $11.18 per hour.
In summary, the plaintiff’s loss of earnings, past and present will be calculated on the basis of the following findings:
1.As a direct result of the accident
(i)From 7 April 1997 until now, the plaintiff has been unable to work in her pre‑accident employment;
(ii)Work as a processor would have been available to the plaintiff at Kailis during that time;
(iii)The plaintiff will be unable to return to work of any kind for another 12 months (52 weeks);
(iv) After 12 months, the plaintiff will be able to resume light duties. I do not accept Professor Hollingworth’s opinion stated in his report dated 5 August 1998 that the plaintiff will be able to resume her pre accident occupation with the effluxion of time. This opinion is inconsistent with his and other evidence that the plaintiff was not medically fit to carry out the employment in any event because of her scoliosis.
2.More likely than not, even if she had not been involved in the accident, the plaintiff will not be able to continue in her pre accident occupation after the age of 55 years because of her scoliosis.
The parties have agreed past loss of earnings on the basis that the Court finds that the plaintiff has been incapacitated from working by the accident and work was available to her. I have made those findings above. The agreed award of past loss of earning including superannuation and interest is $42,000.00 less an advance of $12,800.00 already made to the plaintiff.
The loss of future earnings is calculated on the basis that the plaintiff could obtain work as a processor were it not for the injuries suffered in the accident.
The loss of future earnings is as follows:
Earnings as a processor from 26 July 1999 to
25 July 2000, $11.18 per hour x 38 hours per week $424.84 (Gross)
Less tax of $77.10 $347.74 (Net)
$347.74 x 51 (multiplier) $17,734.74
As to loss of future earnings from 25 July 2000 until the plaintiff reaches the age of 55 years, the plaintiff will be unfit to return to her work as a processor. However, she will be fit for light duties such as a shop assistant. Earnings as a shop assistant are $433 per week (gross) (Shop & Warehouse (Wholesale & Retail Establishments) Award). This is more than the plaintiff would earn as a processor. Of course, there is no guarantee that the plaintiff will be able to find work as a shop assistant given her limited work experience, limited use of the English language and so far unsuccessful attempts to find work. Had there been evidence that until the plaintiff reaches 55 years of age, her income as a shop assistant would have been less than her income as a processor, I would have awarded the difference for that period of time subject to a discount for contingencies.
Taking into account all the factors mentioned above, I make an award of $5,000 to compensate the plaintiff for loss of earnings from 26 July 2000 until she reaches the age of 55 years. I do this in the absence of any evidence relating to earnings in a "light duties" occupation (other than those for a shop assistant). This is the best I can do given the state of the evidence.
Medication
The plaintiff testified that she takes three Panadeine Forte tablets a day. When she first saw Professor Hollingworth in August 1998 she told him that she took Panadeine two or three times a week and when he saw her in May 1999 she reported that she “would need to take Panadeine Forte about twice a week”. Dr Leong testified that the plaintiff told him that she [presently] takes about 8 or 9 pain killers a week. I cannot predict how often or for how long the plaintiff will need to take medication to relieve pain. However, in the absence of any or any strong opposition from the defendant I am prepared to award a modest amount for the loss of medication costs in the sum of $750.
Non Pecuniary Loss
Section 3C(2) of the Act provides that “the amount of the damages to be awarded for non-pecuniary loss is to be a proportion determined according to the security of the non-pecuniary loss, of the maximum amount that may be awarded”. The maximum amount is currently $219,000 (s3C(3) see Government Gazette 22 June 1999).
The parties agree that to arrive at an award for non-pecuniary loss, it is necessary in the first instance to determine what proportion (ie percentage) the plaintiff’s claim is of $219,000 rather than making an assessment of a pecuniary amount and treating that as a proportion of the $219,000 (Southgate v Waterford (1990) NSWLR 427 at 440E-441F approved in Andjelic v Marsland (1996) 70 ALJR 435 and as applied, for example, in Coleman v McDougall, unreported; DCt of WA; Library No 4413; 3 May 1995; Fabo v Craig, unreported; DCt of WA; Library No 5023; 2 August 1996 and Grubor v Adornetto, unreported; DCt of WA; Library No 5030; 19 August 1996).
I summarise the factors which I take into account in assessing the award for non-pecuniary loss as follows:
1.The plaintiff was free of pain prior to the accident. The plaintiff has suffered the injuries as outlined by Dr Leong;
2.Immediately after the accident and up until her last medical assessment on 7 May 1999 and her testimony in this case, the plaintiff has suffered from constant pain particularly at the cervico-thoracic junction. This pain is aggravated by certain domestic tasks and carrying even light weights such as her handbag;
3.Despite her scoliosis, the plaintiff was able to work as a senior processor at Kailis for five years without any associated problems. She has lost her pre-accident employment;
4.The plaintiff’s chances of finding employment which she is capable of doing, given her age, experience, medical condition and limited grasp of the English language are limited;
5.The plaintiff must rely on assistance with her household tasks, which will decrease as time passes.
I assess the percentage of the maximum amount payable under the Act for the most extreme case at 15%. The net amount I award for non-pecuniary loss if therefore $32,850.00. As this amount is more than $10,500.00 (AMOUNT B) but less than $33,000.00 (AMOUNT C), the plaintiff is entitled to the excess of the amount so assessed over $10,500.00 (AMOUNT B) (S3C(5)).
Accordingly, the net amount of damages for non-pecuniary loss is $22,350.00.
SUMMARY OF DAMAGES AWARD | $ | $ |
| General damages | $22,350.00 | |
| Past loss of earnings Less advance | $42,000.00 $12,800.00 | $29,200.00 |
| Pharmaceuticals, medical expenses | ||
| Past [agreed] | $435.35 | |
| Future | $750.00 | |
| Gratuitous services | ||
| Past | $5,077.50 | |
| Interest on past gratuitous services | $406.20 | |
| Future | $743.60 | |
| Future loss of earnings to 25 July 2000 Less 6 per cent discount (Section 5 Law Reform (Miscellaneous Provisions) Act 1941 as amended) | $17,734.74 $ 1,064.68 | $16,670.66 |
| Future loss of earnings from 26 July 2000 | $5,000.00 | |
| Future superannuation say | $1,200.00 | |
| Total | $81,833.31 |
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