Vourlas v Home Care Service of New South Wales

[2006] NSWSC 27

CITATION:	Vourlas v Home Care Service of New South Wales [2006] NSWSC 27
HEARING DATE(S):	04/07/2005 - 07/07/2005, 11/07/2005, 22/07/2005, 29/07/2005
JUDGMENT DATE :	8 February 2006
JUDGMENT OF:	Hislop J
DECISION:	1. Judgment for the plaintiff against the defendant in the sum of $340,332.77; 2. The defendant to pay the plaintiff’s costs.
CATCHWORDS:	Negligence - Employer's liability to employee - Quantum of damages - No questions of principle.
LEGISLATION CITED:	Workers Compensation Act 1987 - Pt 5
CASES CITED:	K’Mart Australia Limited v McCann [2004] NSWCA 283 Malec v JC Hutton Pty Limited (1990) 169 CLR 638
PARTIES:	Plaintiff - Sesiel Vourlas Defendant - Home Care Service of New South Wales
FILE NUMBER(S):	SC 20319/04
COUNSEL:	Plaintiff - Mr M Cranitch SC with Mr J Jobson Defendant - Mr I Judd
SOLICITORS:	Plaintiff - Milicevic Solicitors Defendant - Hunt & Hunt Lawyers

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

8 February 2006

20319/04 Sesiel Vourlas v Home Care Service of New South Wales

JUDGMENT

Introduction

1 This is a claim by the plaintiff to recover damages from her employer for personal injuries allegedly sustained in the course of her employment on 6 January 2001. The issues for determination by the Court are liability, contributory negligence and damages, the latter being subject to the limitations imposed by Part 5 of the Workers Compensation Act 1987 (the Act) as it was at the time of injury.

LIABILITY

The plaintiff’s case

2 The plaintiff was employed by the defendant as a Grade 3 Care Worker. This involved attending at disabled persons’ homes to assist them with their personal care and housework. It was physically demanding work involving a considerable amount of lifting, pushing, bending, kneeling and the like.

3 The plaintiff, as part of her duties, was required on the evening of 6 January 2001 to attend upon a disabled person in his home. The patient was a very heavy man who was suffering from multiple sclerosis. He was subject to involuntary spasming which was known to the defendant.

4 In June 1998 the defendant had commissioned a work procedures report from an occupational therapist in respect of the patient. The occupational therapist reported, among other things, that the transferring of the patient to and from his wheelchair was difficult for a single person and required strength, speed and timing. The report recommended:

In view of the heavy nature of the job, and in the interests of safety for all concerned, the job be classified as a two person job.

There was no evidence the patient’s condition improved between June 1998 and January 2001. Indeed difficulty with spasming and some or all aspects of the patient’s transfers continued to be reported.

5 There may be a doubt as to whether the occupational therapist’s recommendation specifically applied to both morning and evening visits. If it did not in terms apply to evening visits then the defendant should have so applied it as the problems of transferring the patient which were discussed in the report were common to both morning and evening visits.

6 The plaintiff had attended the patient once on a morning visit some two weeks before 6 January 2001. On that occasion she had a male assistant.

7 On the evening of Saturday 6 January 2001 no assistance was provided. The plaintiff had not previously visited the patient in the evening. The defendant’s office was not open on a Saturday evening and there was no one the plaintiff could ring for advice or assistance.

8 It was necessary for the plaintiff to transfer the patient from his wheelchair to the bed using a lifting device. In performing this task the plaintiff put her left arm under the patient’s arm so as to lean him forward to enable a sling of the lifting device to be placed under his buttocks. As she did this the patient suffered a spasm causing him to clamp the plaintiff’s arm tightly and painfully under his. In removing her arm the plaintiff suffered immediate pain to her neck and left shoulder. If two people had been doing the job the plaintiff would not have been obliged to put her arm into a position where there was a risk it would be clamped if the patient spasmed.

9 The plaintiff completed her duties for the patient. In so doing she had to manoeuvre and position him on the bed. She alleges she suffered injury to her right shoulder when so doing.

10 The plaintiff, after attending the patient, attended another multiple sclerosis sufferer. This was a lady of small build. An assistant was provided. However as the lady was ill it was unnecessary to move her from the bed.

11 On 11 January 2001 the plaintiff attended Dr Malik. In his report dated 28 October 2001 Dr Malik reported:

“On 11/01/01 she came complaining of stiff neck, left shoulder and left scapula pain.
She told me that on 6/01/01 while she was at work at about 5:30pm she was trying to lean forward one of the patients in the commode chair to put a sling around him to be lifted to bed, her left arm was between the patient’s chest and left arm. At that time the patient developed a fit, she tried to release her left arm but it took some time for the spasm to go.
A few hours later she felt pain in the left side of neck, left shoulder and left scapula.”

The Doctor recorded the following examination findings:

“Neck movements were limited by 5%, left shoulder movements were painful and the left scapula region was tender. No neurological abnormality was detected …. Opinion: soft tissue injuries to the left side of neck, left scapula region and left shoulder.”

12 On 15 January 2001 the plaintiff signed an Employee’s Compensation Claim Form which contained the following information:

In response to the question “What happened?” there was written “while I tried to put sling behind the patient’s back, I put my left arm under his left arm while he was sitting on the wheelchair to pull him sit forward, so he got spasm and press hardly on my left arm.” … in answer to the question: “What injuries did you suffer?” there was written: “Soft tissue injury to Lt neck, shoulder plus Lt scapula” and the answer in response to the question: “What parts of body were affected?” was: “Neck, shoulder, scapula (Lt)”.

13 The plaintiff has been paid Workers Compensation in respect of the injury. Such payments are continuing.

The defendant’s case

14 The defendant called no liability evidence. Its counsel in his address said:

“through the course of the running of this case I have not cross-examined on the initial injury or the sequelae of that initial injury; that is, the injury to the neck and the left arm.
In addition to that, I have called no evidence in respect to the injury. Whilst I am not in a position to concede or make any concessions, I think it is fairly clear that my position on the question of liability as to any injury to the neck and left arm is pretty thin …

15 The defendant did not accept the plaintiff suffered any injury to the right shoulder and submitted that if, contrary to its submission, the plaintiff had sustained injury to the right shoulder in manoeuvring the patient on the bed such injury was not the result of negligence on the part of the defendant, or if it was, the plaintiff was guilty of significant contributory negligence.

Conclusion

16 I find the plaintiff sustained injury to the neck and left shoulder on 6 January 2001 as a result of her left arm being caught when the patient suffered a spasm. I find that such injury was caused by the negligence of the defendant in failing to provide a person to assist the plaintiff on the evening visit and in particular failing to provide assistance in transferring the patient from his wheelchair to his bed.

17 I am not satisfied, for reasons which will appear later in this judgment, that the plaintiff suffered any injury to her right shoulder whilst attending the patient on the evening of 6 January 2001. Accordingly it is unnecessary to determine whether there was negligence or contributory negligence in relation to that part of the plaintiff’s claim.

Contributory negligence

18 The defendant pleaded contributory negligence. Defendant’s counsel in his address stated “I do not think there is much contributory negligence” (in respect of the “initial injury”). No submissions were made in support of any contributory negligence in respect of that part of the claim.

19 The onus of establishing contributory negligence is upon the defendant. In my opinion the defendant has failed to establish contributory negligence.

DAMAGES

Background facts

20 The plaintiff was born on the 5 March 1953 in Egypt. She completed High School aged 18 years and then did three years of a five year nursing degree, ceasing that course upon her marriage in July 1976. She obtained a diploma in secretarial studies on completion of a two year full time course. She obtained employment as a secretary. She also obtained qualifications as a hairdresser.

21 In November 1987 the plaintiff, her husband and children came to Australia.

22 In 1988 the plaintiff enrolled in the Nursing Institute but remained there for only a few months. She then worked as a Process Worker and later did clerical work. Between 1992 and 1994 she worked looking after children in her home. In 1994 the plaintiff commenced employment with the defendant as a Carer / Field Staff. She ceased work on the 14 April 1996 and thereafter remained at home for a time on a sole parent’s benefit before recommencing employment with the defendant.

23 The plaintiff has two sons Sherif born 24 December 1977 and Amir born 13 May 1983. She separated from her first husband and ultimately divorced in 1995. She married her present husband on 19 August 2000.

24 The plaintiff was not required to work on 7 January. She worked on the 8 and 9 January performing tasks which fortuitously involved no lifting. She informed her supervisor of the injury on Wednesday 10 January 2001 and that day apparently attended a General Practitioner, Dr Kritikos, though no evidence was given by Dr Kritikos nor were his notes or reports (if any) tendered.

25 On the following day she attended Dr Malik who gave her a certificate to be off work until the 17 January 2001. On that date she was given a certificate to start work on 22 January 2001. She then returned to work and worked for a further two or three days performing clerical work for the defendant and then ceased. She has not worked or sought work since that time. She contends she is permanently unfit for all forms of work due to physical and psychological disabilities consequent upon injury on 6 January 2001. She also alleges her capacity to care for herself and perform domestic duties is significantly impaired.

Overview

26 The plaintiff suffers from a number of health problems. It is appropriate to review these matters before proceeding to the assessment of damages.

Neck and left shoulder

27 The plaintiff complained of continuing pain and restriction of movement of the neck and left shoulder. She denied she had suffered symptoms in the neck or left shoulder prior to the incident on 6 January 2001. I accept the plaintiff’s evidence in this regard.

28 The plaintiff’s treating orthopaedic specialist, Dr Guirgis, concluded there were degenerative changes, including an osteophyte, in the cervical spine. These changes predated the injury on 6 January 2001. There was a disc lesion at C5/6 which was caused by, or the size of which increased by, the injury on 6 January 2001. There was also a musculo-ligamentous injury causing some radiation of pain to the shoulders and shoulder blades. This was caused by the incident on 6 January 2001.

29 An MRI scan of 15 May 2001 showed there had been a significant retraction of the disc lesion and there did not appear to be ongoing nerve root compression or spinal cord compression.

30 Dr Guirgis opined there was pre-existing degeneration in the acromio-clavicular joint of the left shoulder. There was a spur present. In addition there was a full thickness tear of the supraspinatus tendon. Dr Guirgis was of the opinion that the tear in the left shoulder was the result of the incident on 6 January 2001.

31 Dr Guirgis considered the nature of the shoulder tear was that it would heal by virtue of the formation of scar tissue which would restore movement to a reasonable extent though some weakness and restriction of movement would remain. There would also be intermittent pain if the scar tissue was stretched beyond its capacity and re-tore.

32 Dr Guirgis concluded that the injuries to the neck and left shoulder had prevented and will continue to prevent the plaintiff resuming her pre injury work or performing work as a word processor but that, objectively, these problems would not prevent her performing other lighter duties if such were available.

33 The defendant tendered reports of Drs Ehrlich and Oakeshott, specialists qualified by it.

34 Dr Ehrlich accepted the plaintiff sustained soft tissue strain on 6 January 2001. He also accepted she may have a cervical disc lesion and left rotator cuff problem but did not attribute either to injury on 6 January 2001. He noted inconsistency in the plaintiff’s presentation on examination and commented that her abilities were best assessed outside the clinical situation. Unless her present gross illness behaviour was under voluntary control she must be regarded as unfit for employment.

35 Dr Oakeshott concluded the plaintiff was permanently and partially incapacitated for work because of supraspinatus tears to both shoulders which were constitutional in origin. The events of 6 January 2001 were not a substantial contributing factor to any of her alleged symptoms and the back and neck symptoms will continue indefinitely but did not arise from the events of 6 January 2001. The doctor noted inconsistencies and exaggerations on clinical examination.

36 I prefer Dr Guirgis’ evidence as to the cause of the neck and left shoulder conditions and their consequences. Dr Guirgis has had the advantage of treating the plaintiff over a considerable period of time. His opinion as to causation is supported by Dr Bodel whose reports were tendered on behalf of the plaintiff and the defendant, notwithstanding the opinions of Drs Ehrlich and Oakeshott, has continued to pay Workers Compensation to the plaintiff since 6 January 2001 in respect of injury to the neck and left shoulder.

Lower back

37 The plaintiff has complained post 6 January 2001 of pain in the lower back with referral of the pain into both legs. On 2 February 2002 the plaintiff was taken to Royal Prince Alfred Hospital complaining of severe pain in the lower back radiating into the legs.

38 The plaintiff had had sudden back spasm in 1991 which had resulted in her being taken by ambulance to Westmead Hospital. She gave evidence the back pain had not continued after that incident and no cause had been identified for it. She had consulted Dr Guirgis at the time. Dr Guirgis was unable to locate his notes of this consultation.

39 The plaintiff gave evidence that in mid-2000 she began to develop lower back pain; the pain stayed on and off; she got it every time she did heavy jobs; though it did not stop her working. She consulted Dr Malik who reported:

… one year before seeing me, which would be in the year 2000, she started suffering from gradual onset of attacks of aching pain and stiffness in the lower back, triggered by the bending, and bending lifting, activities during the execution of her duties. These complaints in the lower back slowly worsened and in December 2000 she had some X-rays for the lumbar spine. Since that incident that happened on 6 January 2001, she suffered from repeated acute back episodes, particularly felt during the acute neck episodes.

40 Dr Guirgis concluded there were pre-existing degenerative changes at the L4/5 level evidenced by desiccation of the disc and circumferential bulging. There was a retrolisthesis (backward movement of one vertebral body on top of the other) at L3/4. This is a progressive condition once the disc has been traumatised. Its presence was not apparent on an MRI scan dated 14 February 2001 though it was revealed on an MRI scan in February 2002. Dr Guirgis was unable, on the balance of probability, to relate the retrolisthesis to the events of 6 January 2001. He concluded, in his oral evidence, that the back pain and referred pain in the legs of which the plaintiff complained was caused by the degenerative spine.

41 The plaintiff had facet joint blocks on 7 March 2005. She gave evidence, and also told Dr Guirgis, that this reduced the pain in the back and improved her mobility. However her husband, sons and daughter in law, all of whom gave evidence, noticed no such improvement in the plaintiff’s presentation and indeed they reported her condition was either the same or deteriorated.

42 Dr Guirgis anticipated the lower back was likely to stabilise but the plaintiff would continue to get attacks of pain whenever she stressed that area. The lower back would remain vulnerable and the plaintiff should be careful how she does things and should avoid heavy lifting and unguarded bending.

43 Dr Guirgis was of the opinion that the lower back problems placed a severe limitation upon the plaintiff’s employment prospects though he did not consider they would be enough to put her off work permanently. He considered the back problem was similar to that in the neck and left arm and a similar assessment, as far as work capacity was concerned, should be made in respect of her back to that of the neck and left shoulder.

44 The plaintiff gave evidence she had noticed pain in her back at the time of the incident on 6 January 2001 which pain did not go away on the following day. It was submitted she had injured the lower back on 6 January 2001.

45 I am unable to accept the submission that the plaintiff sustained injury to the lower back on 6 January 2001 for the following reasons:

a) No such complaint was made at the medical examinations by Dr Malik on 10 or 17 January 2001. On 23 January 2001 a complaint was made by the plaintiff to the doctor of low back pain and knee pain on both sides. However the doctor’s report does not refer to any history given on that occasion seeking to relate the back and/or knee complaints to the events of 6 January 2001.
b) The compensation claim form signed by the plaintiff and dated 15 January 2001 made no reference to any injury to the lower back.
c) The plaintiff did not refer to any injury to her lower back on 6 January 2001 in giving a history to Dr Guirgis.
d) Dr Guirgis, as I understand his oral evidence, does not relate the back pathology or complaints to the events of 6 January 2001.
e) Dr Bodel related the back condition to factors other than the events of 6 January 2001.

46 I accept Dr Guirgis’ oral evidence as to the cause of the back complaints and the prognosis each of which is consistent with the plaintiff’s pre 6 January 2001 history and the back pathology. I note Dr Guirgis’ opinion is consistent with the conclusions of Dr Bodel as to causation.

The right shoulder

47 The plaintiff is right hand dominant. She complains of pain and restriction in her right shoulder which she asserts she injured on 6 January 2001 whilst manoeuvring the patient on the bed. The plaintiff gave evidence she was very painful in the right shoulder on completing the work though that night the pain became concentrated on the left side.

48 Dr Guirgis first examined the plaintiff on 7 February 2001. The history he received was of injury to the neck and left shoulder. He received no history of injury to the right shoulder. This was consistent with the history recorded by Dr Malik and the injuries described by the plaintiff in the Workers Compensation claim form signed by her.

49 On examination in February 2001 Dr Guirgis concluded the right shoulder was normal and had sustained no injury. He considered the pain in the right shoulder then complained of was due to referral from the neck.

50 An ultrasound taken in mid 2002 demonstrated pathology in the rotator cuff of the right shoulder. However Dr Guirgis did not relate that pathology to any injury on 6 January 2001. He accepted that it could be the result of a constitutional condition which opinion coincided with that of Dr Oakeshott.

51 Dr Guirgis agreed that if the plaintiff began to complain of restriction of movement in the right shoulder and pain on movement of the right shoulder that would be indicative of the pathology shown on the ultrasound becoming active and that would also place a restriction on her ability to earn. The plaintiff does complain of restriction of movement in the right shoulder and pain on movement.

52 I am unable to accept the plaintiff’s submission that she sustained injury to her right shoulder on 6 January 2001 for the following reasons:

a) There was no complaint in respect of the right shoulder to Dr Malik at his examination of the plaintiff on 10 January 2001.
b) The compensation claim form signed by the plaintiff dated 15 January 2001 made no reference to any injury to the right shoulder.
c) The opinion of Dr Guirgis that the right shoulder was not injured on 6 January 2001.
d) The opinion of Dr Oakeshott that the pathology in the right shoulder was constitutional in origin.

53 In my opinion the plaintiff has a restriction of movement in the right shoulder due to the pathology therein and some resultant pain. This pathology is unrelated to 6 January 2001. It has an effect on her capacity to work particularly as she is right handed.

Hands and wrists

54 In 1999 the plaintiff developed tingling in her hands and right arm. She consulted a general practitioner who referred her to a specialist. She said she was treated with Cartia, the problem ceased after about a month and nothing was found by the doctors to explain the problem.

55 On 7 April 2000 the plaintiff complained to Dr Tadros of a three week history of pain in both hands and wrists. She continues to complain of such pain when using her hands. Its cause and effect is obscure.

Knees

56 Prior to the incident the plaintiff had pain in her knees which affected her when she was going up and down stairs, kneeling or bending down. These activities were often required in her work. Nevertheless she had continued in her work and had not sought treatment for this condition. The problem continues and is unrelated to the events of 6 January 2001. X-rays confirm the existence of degenerative changes in the knees. It is to be expected the condition will worsen with the passage of time and may impact upon her work capacity at some stage.

Feet

57 In 2000 the plaintiff complained of problems with her feet. On 7 December 2000 an X-ray report revealed bilateral hallux valgus deformities of both feet worse on the left with a prominent left calcaneal spur. These conditions were not affected by the events of 6 January 2001. The spur will require removal in due course.

Other conditions

58 The plaintiff suffers episodic chest pain for which she was examined by a cardiac specialist, anaemia, gout and headaches.

59 In 2001 she was diagnosed as diabetic and tablets were prescribed. On 12 April 2002 it was necessary for her to commence insulin injections for the condition. She also suffers from hypertension. These conditions normally are controlled by medication and would be unlikely to impact upon the assessment of damages. However the plaintiff gave evidence that she did not always take her medications and that Dr Tadros, who was treating her, told her that he would not be responsible if she suffered a stroke because both her blood pressure and sugar levels were very high. Obviously the plaintiff is also at risk of a heart attack and other disabilities which may result from inadequately controlled diabetes.

60 The plaintiff’s husband had married the plaintiff against his family’s wishes. It was expected that the plaintiff would bear him children but despite recourse to an IVF program shortly after marriage this did not occur.

Psychiatric condition

61 The plaintiff consulted a psychologist, Dr Mattar, on 5 September 2001. He diagnosed anxiety, depressive disorder and adjustment disorder for which treatment was required.

62 The plaintiff then consulted the psychiatrist, Dr Younan, on 22 January 2002 and a number of consultations followed. Dr Younan diagnosed the plaintiff as suffering a mixed anxiety depressive disorder, which impaired her functioning. She concluded the plaintiff would not have developed the present psychiatric picture had the accident not happened. The plaintiff’s incapacity for work was caused by her physical pains but such were compounded by her emotional condition. The long term psychiatric prognosis was essentially linked to the prognosis of her physical condition. The more physical pain persisted the more the psychiatric condition was likely to persist or even to worsen. Treatment hopefully would alleviate the level of depression and anxiety but was unlikely to restore the plaintiff to her pre injury level of functioning. Dr Younan believed the plaintiff was genuine in her complaints though she tended to be histrionic in describing her pains.

63 The plaintiff was referred by her solicitor to a psychiatrist, Dr Phillips. He examined the plaintiff on one occasion (10 February 2003) and concluded the plaintiff had an adjustment disorder with depressed mood and that the disorder was secondary to her physical symptoms and appeared relatively chronic in type. He also noted the plaintiff had engaged in pathological gambling for a time though she indicated such behaviour had ceased. These problems were not in their entirety linked to the events of 6 January 2001 as other factors such as marital difficulty and occupational frustration were also relevant. As the plaintiff suffered from significant degenerative orthopaedic problems which were likely to continue as she moved forward in life it was unlikely she would make significant progress. Treatment for her psychiatric condition would be difficult. On balance the plaintiff’s somewhat histrionic presentation did not reflect any conscious decision to feign illness, but more likely took the form of abnormal illness behaviour with her presentation attempting to maximise impact on others. The doctor did not see the plaintiff ever returning to the open workforce.

64 The psychiatrist, Dr Shand, was qualified on behalf of the defendant. He accepted that the plaintiff could have suffered a musculo-ligamentous injury to the left arm and perhaps the left shoulder and neck from the work incident on 6 January 2001. However he considered the plaintiff’s behaviour during physical examination was extremely histrionic and obviously exaggerated. He concluded the plaintiff was grossly exaggerating whatever physical disorder she may have, whether or not it may be connected with the work incident on 6 January 2001. He found no evidence that psychiatric factors played any primary part in her continuing complaints.

65 In my opinion there is adequate objective pathology to justify many of the complaints of pain and impairment made by the plaintiff. As the plaintiff unfortunately suffers from a multitude of medical and other problems it is unsurprising that she has become sad, moody and depressed by her situation. I accept that this has occurred and that the injuries sustained on 6 January 2001 have materially contributed to her condition. On the other hand, the plaintiff wishes to get the best possible result from her case and in my opinion this has led to some conscious colouring of her claim to some doctors and to the Court.

Assessment

Non-economic loss

66 The statutory maximum amount for non economic loss at the date of injury was $246,900 which was payable only in “a most extreme case”. The plaintiff is to be awarded that sum which represents a proportion of the maximum amount determined according to the severity of her non economic loss. The plaintiff has submitted the appropriate proportion is 55% of a most extreme case. The plaintiff’s assessment however includes injuries to the right shoulder and lower back which injuries I have not accepted occurred on 6 January 2001 (though I do accept there may be some referral of pain to the right shoulder from the neck). The defendant has assessed the appropriate proportion of a most extreme case at 30% but that assessment makes no allowance for the psychiatric condition which I have found the plaintiff to have suffered.

67 In my opinion the appropriate proportion to a most extreme case is 40%. Accordingly the plaintiff is entitled to $98,760 pursuant to this head of damage.

Past economic loss

68 The plaintiff claims that since January 2001 she has been unfit for any work. She claims loss of the earnings she would have received from the defendant from 6 January 2001 to date (less days worked).

69 It was accepted by the parties that the plaintiff, had she continued uninjured in the defendant’s employ, would have earned an average $554.44 net per week. Thus her claim for loss at $554.44 per week from 6 January 2001 to date (less days worked) amounts to $146,371.

70 In addition the plaintiff claimed loss of earnings at $625 per week from July 2001 to date from a word processing and typing business which she said she had proposed to set up. The plaintiff had obtained a secretarial qualification in Egypt and had worked in that country as a secretary before coming to Australia. She gave evidence she had intended to set up a typing and word processing service from home working seven or eight hours every day and charging $28 per hour. She said she proposed to obtain her clientele from small businesses in the area. She proposed to carry out the work at night after her days work for the defendant. She said she intended to set up her business straight away after marriage.

71 I do not accept this evidence for the following reasons:

a) The accident occurred almost five months after her marriage. The plaintiff had taken no steps to set up her business during that time. Indeed she gave evidence that after she married she didn’t have a computer.
b) The plaintiff had contracted to work 30 hours per week for the defendant. She gave evidence that she worked approximately 40 hours per week and overtime as well. She had agreed to be on call and the work required her to work evening as well as morning shifts. The work was often laborious and, according to the evidence of her husband, she was tired when she arrived home at night.
c) The plaintiff required time to attend to her domestic duties, which involved virtually all of the work inside a large home.
d) There was no economic necessity for the plaintiff to work as her husband owned his own home and had a number of investments. The plaintiff did not start any typing or word processing business in the period when she was at home receiving a carer’s pension. This was during the period when she was not married and her sons were aged in their teens and attending educational institutions and when funds may have been limited.
e) The plaintiff gave evidence without an interpreter at the hearing. It was apparent English was not her first language and that there were inadequacies which could affect her capacity to provide an adequate typing and word processing service. Additionally, with the increasing spread of computers and word processors, it is likely that many small businesses would perform these functions themselves, as would most students.
f) No evidence was lead from the plaintiff’s family members that she had ever expressed to them any intention to set up such a business.

72 Accordingly I disallow the claim for loss of earnings from a word processing/ typing business.

73 The defendant submitted the damages for past economic loss should be calculated at $61,000 comprising 12 months loss of wages with the defendant at $500 net per week and a buffer of $35,000 thereafter on the basis that the plaintiff had a retained earning capacity and there should be no allowance for the alleged loss of earnings in a word processing and typing business.

74 In my opinion the injury to the neck and left shoulder incapacitated the plaintiff from performing her pre-injury duties with the defendant and any other duties that subjected the neck and left shoulder to strain. This coupled with her psychological condition, as a practical matter, rendered her totally unfit for work during the period 6 January 2001 to date (save for the few days worked for the defendant).

75 However the damages which I would otherwise have awarded under this head must be reduced to take account of the unrelated condition of the lower back which, in the opinion of Dr Guirgis, which I have accepted, placed a significant limitation upon her employment capacity. Regard must also be had to the possibility the plaintiff’s employment capacity may have been impaired by reason of the plaintiff’s other health problems which were unrelated to the events of 6 January 2001 and the possibility the unrelated conditions could have caused a psychiatrically based disability.

76 It is a matter of difficulty to determine the appropriate reduction. The plaintiff’s lower back condition was progressive in nature and the plaintiff’s complaints had been worsening in the year 2000. However notwithstanding this and her other problems with the lower limbs she had continued to work her ordinary duties for the defendant.

77 If the plaintiff had not sustained injury on 6 January 2001 she may have continued to work for the defendant in her usual duties for another year or two before having to stop due to her lower back condition, probably losing time from work intermittently prior to that. Then again she may have had to cease her usual duties before that date due to her lower back or she may have soldiered on for a longer period.

78 If the plaintiff had had to cease her normal work due to the back condition she may have been capable of doing other forms of work, possibly office work and probably on a part time basis assuming she could find employment. On the other hand she may have become depressed rendering her unfit for any work or she may have been unable to find any suitable work.

79 As observed by Brennan and Dawson JJ in Malec v JC Hutton Pty Limited (1990) 169 CLR 638 damages founded on hypothetical evaluations defy precise calculation and require speculation to some extent. Having regard to all of the circumstances it appears to me that a fair assessment for past economic loss is $90,000. I would allow that sum together with $8,820 for past loss of superannuation.

Future economic loss

80 The plaintiff claims $236,720 future economic loss to age 65 calculated on the basis of a total loss of earnings with the defendant less 15% for vicissitudes together with $266,846 for a total loss of earnings from the proposed typing and word processing business less 15% for vicissitudes.

81 The defendant submits the appropriate allowance for the claim is a buffer of $70,000 by reason of the effects of the unrelated medical conditions.

82 I reject the claim for loss of earnings in the word processing and typing business for reasons previously given. Were it not for the plaintiff’s unrelated medical conditions I would have been disposed to award her a significant sum under this head which sum would have included however some relatively small allowance for the possibility her psychiatric condition may have improved sufficiently to enable her to engage in some intermittent part time employment.

83 However this head of damage must be reduced to take account of the impact on earning capacity of the lower back condition and the other medical conditions which beset the plaintiff including the possible progression of the underlying degeneration in the plaintiff’s cervical spine and left shoulder, the likely worsening of the already symptomatic degenerative condition of the legs, the possibility of serious sequelae if the diabetes and hypertension remain inadequately controlled and the possibility of the onset of depression.

84 It is appropriate in the circumstances to assess damages under this head by way of a buffer – K’Mart Australia Limited v McCann [2004] NSWCA 283. Some allowance for vicissitudes has already been made in the plaintiff’s calculation by the reduction of 15%. Having regard to all the circumstances it appears to me that a fair assessment of damages for impairment of future earning capacity is $100,000 which sum includes loss of future superannuation. I award that sum.

Fox v Woods

85 This is agreed at $8,405.

Past out-of-pocket expenses

86 This is agreed at $39,996.66. An additional sum of $1,300 being the cost of an MRI scan of the lower back, is claimed but is disputed by the defendant. As I have concluded the lower back was not injured on 6 January 2001 the claim for the cost of the scan is rejected. I allow past out of pocket expenses at $39,996.66.

Future out-of-pocket expenses

87 The plaintiff claims the cost for the remainder of her life of antidepressant medication, analgesia and other medications, pain management, orthopaedic attendances, psychiatric attendances, GP attendances, hydrotherapy and physiotherapy totalling $130,466.

88 The defendant rejects the plaintiff’s claim for antidepressant medication and attendances by Dr Giurgis and allows the additional items at lesser amounts than claimed by the plaintiff. The total which the defendant would allow is $14,876.

89 The parties acknowledge that the assessments have been reached in an arbitrary fashion and that they would have no objection to the Court assessing in a similar fashion.

90 Whilst some adjustment of this head of damage would be required irrespective of the plaintiff’s unrelated health problems the major factor in the assessment of this head of damages is that a large reduction must be made for what is, in my opinion, the high probability that as time passes the plaintiff will incur much of this expenditure by reason of the unrelated medical conditions. Having regard to all of the circumstances and in a somewhat arbitrary manner I assess this head of damage at $35,000.

Past care

91 At the time of injury the plaintiff was living with her husband in his large home. The plaintiff’s evidence, confirmed by her husband, was that she was generally responsible for the work inside the home whilst her husband attended to the outside chores and also did some cooking.

92 The plaintiff gave evidence that since her injury she could do some housework such as washing dishes, putting washing on a folded clothes line, a little bit of shopping and some washing but that vacuuming, mopping, sweeping in particular caused pain in her shoulders which prevented her from doing these tasks and that she had difficulty with cooking and as a result prepared more simple meals now. She also had difficulty with other domestic duties.

93 Following her injury the plaintiff continued to live with her husband in his home. He assisted her with the domestic duties she would otherwise have done and provided some minor personal care. In 2002 the plaintiff lived apart from her husband for a short time before returning to him. She again lived apart from her husband for a period the dates of which are uncertain but which were probably from October 2002 to December 2003. In December 2004 the plaintiff again left her husband’s home. Initially she lived with her eldest son and his wife for about three months before moving into her own flat where she continues to reside. The plaintiff’s husband visits the plaintiff nearly every day. He does cleaning at the flat for about two hours twice per week, takes the plaintiff’s washing to his home to do it, sometimes takes a meal to the plaintiff or takes her out to dinner. He also, on occasions, provides some minor personal care for her.

94 There was evidence the plaintiff had received assistance from time to time not only from her husband but also from her sons and daughter in law.

95 The plaintiff claimed 10 hours per week assistance from her husband from the date of injury to the present (save for 4 weeks in 2002 when the plaintiff lived in a flat and from November 2002 to May 2003 when the plaintiff lived apart from her husband). As to the latter period a claim of 20 hours per week for assistance provided by her son was made. A claim for assistance by the eldest son’s wife was made for 3 months at 8 hours per week and 3 hours pool transportation for 12 weeks and for 11 hours per week from 24 December 2004 to March 2005 when the plaintiff was living with her eldest son and his wife. These claims were based upon evidence given by the plaintiff, her husband, sons and daughter in law.

96 The defendant tendered a report of an occupational therapist dated 18 September 2003 which assessed the plaintiff’s needs for domestic assistance consequent upon her injury at 2.5 hours per week.

97 The plaintiff is entitled (subject to the impact of the unrelated medical conditions) to be compensated for her needs for care and assistance caused by the negligently inflicted injury. It is notoriously difficult for persons to estimate the amount of assistance and care provided by them to an injured person unless a diary is kept. No diaries were kept in this case.

98 In my opinion the plaintiff’s needs for care and assistance due to the injury should be assessed (subject to the impact of the unrelated medical conditions) at approximately 10 hours per week whilst the plaintiff was living in her husband’s home and approximately 6 hours per week whilst living away from his home less 4 weeks in 2002 for which no claim is made. The hourly rate was agreed between the parties at $17. This would result in a calculation of approximately $37,000.

99 However a reduction in that sum must, in my opinion be made to allow for the possibility that the plaintiff would, in any event, have required assistance and care by reason of her unrelated medical conditions. I regard the likelihood that the plaintiff during that period would have required significant assistance and some care irrespective of the injury to her neck and shoulder as high and such as to justify a reduction of damages under this head by 50%. Accordingly the allowance for past care is $18,500.

Future care

100 The plaintiff claims 9 hours per week of paid domestic assistance for the remainder of her life at the commercial rate of $25 per hour. The hours claimed coincide with an opinion expressed by Dr Guirgis in his report dated 27 August 2004 that the plaintiff was in need of home help with the heavier type of home chores on a 3 hour/day, 3 day/week basis. The plaintiff at that time was living in her husband’s home.

101 The defendant accepts that the rate of $25 per hour plus GST of $2.50 is appropriate but contends the claim should be allowed at 2 hours per week only. The plaintiff gave evidence she did not intend to return to her husband. She had lived in a flat prior to her marriage and it is reasonable to assume she will continue to do so in the future. There is the possibility she may at some time in the future return to her husband or move to a larger flat.

102 I have reduced the claim for past care by 50% because of the possibility that the plaintiff’s unrelated medical conditions would have created a need for care and assistance irrespective of the injury occasioned on 6 January 2001. The possibility of such need being created by the unrelated conditions will increase as the plaintiff grows older and the degenerative changes progress. Also an allowance must be made for the possibility she may at some time in the future return to her husband or move to a larger flat.

103 Having regard to all of these factors it appears to me the appropriate assessment under this head is the sum of $70,000.

Conclusion

104 I assess damages as follows.

Non economic loss	$98,760.00
Past economic loss (including past superannuation loss)	$98,820.00
Future lost earning capacity (including future superannuation loss)	$100,000.00
Fox v Wood	$8,405.00
Past out of pocket expenses	$39,996.66
Future out of pocket expenses	$35,000.00
Past gratuitous care	$18,500.00
Future care	$70,000.00
Gross total (verdict)	$469,481.66
Less Workers Compensation (Agreed)	$129,148.89
Net total	$340,332.77

Orders

105 The orders of the Court are:

1. Judgment for the plaintiff against the defendant in the sum of $340,332.77.

2. The defendant to pay the plaintiff’s costs.

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