Ward v Allianz Australia Insurance v Anor
[2005] QDC 214
•16 June 2005
DISTRICT COURT OF QUEENSLAND
CITATION:
Ward v Allianz Australia Insurance v Anor [2005] QDC 214
PARTIES:
SHARON LEE WARD (plaintiff)
-v-
ROBERT JOHN COOMBER (first defendant)
ALLIANZ AUSTRALIA INSURANCE LIMITED. (second defendant)
FILE NO/S:
237/04
DIVISION:
Maroochydore District Court
PROCEEDING:
Trial
DELIVERED ON:
16 June 2005
DELIVERED AT:
Maroochydore
HEARING DATE:
26 May 2005, 27 May 2005
JUDGE:
K.S. Dodds DCJ
ORDER:
Judgment for the plaintiff against defendant for $36,718.65 inclusive of interest
CATCHWORDS:
Damages, personal injury
COUNSEL:
Mr Grant-Taylor S.C for plaintiff
Mr W Campbell for defendants
SOLICITORS:
Schultz Toomey O’Brien for the plaintiff
Sciacca’s Lawyers for the defendants
This is a proceeding for damages for personal injury arising out of a motor vehicle collision which occurred on the 27 October 2001 (the 2001 accident). The plaintiff was the driver of a motor vehicle involved in a front end collision. After the impact, the vehicle was still driveable. She drove it home.
Liability is not in issue. The defendants accept responsibility for the collision.
The plaintiff was born on the 12 December 1960. In her pleadings, she claimed damages for neck injury, back injury, shock and right arm injury. In a recent amended pleading, an additional claim was made for a psychiatric illness, namely a panic disorder with agoraphobia, aggravation of pre-existing condition of specific phobia - car travel, major depressive disorder, chronic pain disorder associated with psychological and medical factors, aggravation of pre-existing condition of benzodiazepine dependency.
Assessing damages in this proceeding is complicated by an array of past events including previous motor vehicle accidents and an addiction to prescription opiates which appears to have begun to seriously take hold about March 1999 and to have continued thereafter. In an attempt to deal with this addiction, the plaintiff was due to commence a methadone program on 29 March 2001, which was the Monday following the collision, with which this proceedings is concerned. This she did, remaining on the program until early in 2005, when after a stay in hospital to deal with psychological issues she took herself off the program. She says she now has the addiction under control.
The plaintiff had been involved in two prior motor vehicle accidents. They occurred on 12 August 1994 and 18 February 1999. In both she was a passenger, suffered injury, sued and received damages when the matters settled.
The claim in this matter was filed on the 9 July 2004. The plaintiff had seen her solicitor regarding the collision on 16 November 2001, nineteen days after the collision. The Notice of Accident Claim form which is dated 16 November 2001 contains a medical certificate prepared by a General Practitioner, Doctor Fiona Stewart of the Brisbane Road Family Medical Practice (The Brisbane Road Practice). (See exhibit 11.) It is also dated 16 November 2001.
The 1994 Accident
Document number three of exhibit three is a medical report by an Orthopaedic Specialist, Doctor Bartlett, after a consultation on the 6 March 1996, about seventeen months after the 1994 accident. It was prepared for the plaintiff’s then solicitors. It discloses that the injuries apparently suffered in that accident were a closed head injury and a flexion extension injury to the plaintiff’s cervical spine. Complaints were of symptoms brought on by running or aerobics. She was restricted to low impact aerobics. Headaches were occurring two to three times a week. Examination, including plain radio-graphs was unremarkable with no restriction evident. A permanent loss of 5% of neck function was opined, apparently as a result of the history of ongoing symptoms which affected her aerobics activities.
Exhibit six is the plaintiff’s statement of loss and damage with respect to the claim. It is dated 15 November 1996, in excess of 2 years post accident. It refers to ongoing headaches requiring panadol 3 or 4 days each week, the headaches and other pain resulting in giving up jogging at the end of 1995 and having to give up aerobics, the latter resulting in curtailment of a plan to become an aerobics instructor.
The 1999 Accident
Document 6, 8 and 9 of exhibit three are medical reports by a medical practitioner, Doctor Beale of the Brisbane Road Practice with respect to the 1999 accident. Document 7 is a report by physiotherapist, Mr Griffiths. Document 10 is a report by an orthopaedic specialist, Doctor Gillett.
Document 6 is dated 25 March 1999, a little over a month after the accident and is addressed to the plaintiff solicitors. It related to a consultation on 19 February 1999. It reported that examination revealed tenderness in the fourth and fifth costo-chondral joints, the right shoulder joint was limited to seventy percent of normal range because of pain, the range of neck movement was restricted to sixty percent of the normal range, there was tenderness over L5 S1 interspace, tenderness over both sacro –illiac joints, limited internal rotation of the right hip and pain on lateral bending of her spine to the left. There was also complaint of headache and jaw pain.
Document 8 is dated 15 April 1999 about two months post accident and is addressed to outpatients Nambour General Hospital requesting an appointment at Orthopaedic Outpatients. It referred to a complaint of severe neck pain radiating to the right shoulder and pain in the tempero mandibular joint. It noted an admission to the hospital on the 8 March 1999 for surgery for an ectopic pregnancy, since which the neck problems have worsened.
Document 9 dated 26 April 1999 was addressed to the licenced insurer. It advised that the injuries from the accident were swelling over the right anterior shoulder (seatbelt), bilateral shoulder pain, dorsal back ache, pain and soreness in the right knee, painful hip joints, neck stiffness with frontal headaches. It advised these conditions had produced depression which had become aggravated by the ectopic pregnancy, treated with Aurorix and Murelax. The soreness in the plaintiff’s jaw had developed into temporo mandibular joint syndrome.
Document 7 dated 26 March 1999 is addressed to Doctor Beale. It advised that cervical range of movement had improved with physiotherapy and headaches had reduced to intermittent brought about by activity.
Document 10 is a report dated 4 June 1999. It was addressed to the plaintiff’s solicitors. It resulted from a consultation of the same date, almost three and a half months post accident. Doctor Gillett does not appear to know about the previous motor vehicle accident in 1994. The report states that the plaintiff denied any previous problems relating to her injured areas. Current symptoms were stiffness in the neck and headaches. There was complaint of pain at the base of the neck and the right supra scapular area towards the shoulder. Turning to the right was a problem. There was a clicking in her neck. Holding her head and neck in one position for any length of time caused trouble. Reading a magazine being in one position caused discomfort. Sleep was disturbed.
Exhibit 8 is the plaintiff's statement of loss and damage. It is dated 3 May 2000 about fourteen and a half months post accident. It referred to persistent headaches, aggravated by housework and development of a phobia of driving which resulted in her avoiding driving for a period. She was gradually regaining her confidence with driving. She was still cautious and on edge when in a motor vehicle.
Page 66 of exhibit 3 contains clinical notes from the Brisbane Road Practice. In the note for 27 April 1999, there is a note “fearful in car, better as driver”, which appears to suggest the fear was related to travelling as a passenger.
The 2001 Accident
After the collision the subject of this claim, the plaintiff saw a general practitioner at the Maroochydore Seven Day Medical Centre (the Maroochydore practice) on the 28 October 2001. The clinical notes record she had been involved in a motor vehicle accident where her vehicle was hit from behind. This is apparently not correct and may have been a misunderstanding. The clinical notes continue “whiplash neck tender and swollen over lower cervical vertebrae, restricted movement in neck and right shoulder.” The notes record a script for Brufen was provided. No other treatment is noted.
There is no evidence of any medical record of any other attendance on a medical practitioner until the 12 November 2001 when she saw Doctor Stewart at the Brisbane Road Practice. The plaintiff told various of the doctors she was sent to for the purposes of this proceeding, that she saw a general practitioner between 28 October and 12 November 2001. Medical records in evidence, however, do not support that. She also told some of them that when she saw a doctor at the Maroochydore practice on 28 October 2001 she was given an injection of valium into her neck. However the clinical notes before me do not refer to that.
Returning to the Plaintiff’s consultation with Doctor Stewart on the 12 November 2001, the clinical notes read “On methadone program, involved in RTA (road traffic accident) on 27 October 2001 %pain C6 + paresthesia right fingers 1-4 and aching in lower arm in AM. PMH (previous medical history) - carpal tunnel, O/E reflex R>L”
A medical certificate completed by Doctor Stewart dated 16 November 2001 records “complaining of pain over C6 + parasthesia R fingers 1-4. Aching in lower arm in the mornings.” Clinical findings record “CX spine x-ray of 13/11/01 normal. Minimal muscle spasm both trapezius.”
An aspect of the plaintiff’s claim for damages in the present proceedings was for injury to her right arm resulting in carpal tunnel syndrome. There is a previous medical history of carpal tunnel syndrome dating back to 1997. In her evidence, the plaintiff said she could not remember any prior occasion of suffering these sorts of symptoms. She did not disclose to any of the doctors she was sent to for medico- legal purposes in the present claim any history of symptoms of this nature.
The previous medical history of carpal tunnel may be seen in clinical notes of the Brisbane Road Practice of 4 Dec 1997, 9 Dec 1997, 12 February 1998 and 11 October 1998. (see volume 1 exhibit 3). The note of 12 February 1998 records “carpal tunnel right hand numb and unable to work properly. Refer to Nambour General Hospital. Hospital records of 13 February 1998 refer to carpal tunnel syndrome for several months getting progressively worse and finding it almost impossible to continue working as a cleaner because of pain and paraesthesia in her right hand. The clinical notes of 11 October 1998 record the carpal tunnel having reoccurred and the plaintiff doing a pharmacy assistant course the following week.
In addition to the matters I have already touched on, a letter from Doctor Stewart to the special health services unit at Nambour General Hospital, dated 16 March 2001 document 13 of exhibit 3, refers to matters including the plaintiffs addiction which bear on assessment of damages. There is reference to financial and relationship difficulties the plaintiff has suffered over the years, the addiction to prescription drugs and her depression.
There is no doubt the plaintiff became seriously addicted, frequently going to different doctors for scripts as well as having home visits. Her complaint, almost invariably was of severe neck pain and headache, although knee and back injury were also mentioned. On 8 August 2001, she was actually admitted to Nambour Hospital complaining of severe neck pain. In her evidence, the plaintiff said she was lying to the various Doctors about symptoms to obtain the drugs that she craved. The difficulty lies knowing what is the truth about her condition, both before and after the 2001 collision.
Regarding low back pain, there is a clinical note on 7 October 2001 of a complaint of lumbar soreness if sitting for long periods in the records of the Brisbane Road Practice. In a clinical note of the Maroochydore Practice of 8 October 2001, there is note - “back injury, fall down stairs yesterday - Low back pain radiating down her right leg.”
Low back pain, resulting from the 2001 collision, is not the subject of any contemporary clinical note. There is no reference to it in the Maroochydore practice note of the 29 October 2001, nor in Dr Stewart’s notes of 12 November 2001. There is no reference to it in the medical certificate completed by Dr Stewart dated 16 November 2001. In the clinical notes of the Nambour General Hospital special health services unit commencing on the 29 October 2001 when she started on the methadone program, there is reference to a painful neck and shoulder due to a car accident in a note of 19 November 2001 and in a note of 21 November 2001 there is reference to neck, arm and hand pain. There is no reference to lower back pain, although I recognise that the purpose of attendance at the clinic was for the addiction, not for treatment of injury or symptoms from a motor vehicle collision.
Medico – legal Evidence
There was evidence from a number of medical experts from both sides. The plaintiff produced evidence from Doctor Radovic, Psychiatrist, Dr Cantor, Psychiatrist, Dr Day, Orthopaedic specialist, Dr Todman, Neurologist, Dr Tomlinson, Neurosurgeon. The defendant produced evidence from Doctor Chalk, Psychiatrist, Doctor Landy Neurologist, Doctor Pincus, Orthopaedic Specialist.
Doctor Day saw the plaintiff on 1 November 2002 for the purpose of a medico-legal report. She told him she had low back pain after the impact. She denied any previous problems with her low back. She told him of neck pain radiating into her right hand with pins and needles and numbness and pain in her hand. Radiographs of her lumbar spine 17 October 2002 showed some disc space narrowing at the lumbar sacral level and slightly at the L4 and L5 levels. Doctor Day does not seem to have been aware there had been a 1994 accident although he was aware there had been a 1998 accident. He concluded the signs and symptoms demonstrated were consistent with exacerbation of problems in her cervical spine and with an injury to her lumbar spine. He thought it difficult to relate the carpal tunnel syndrome to the collision. He wrote in a letter dated 25 July 2003 to the plaintiff solicitors that the plaintiff was reviewed by Doctor Coyne and underwent an MRI of the cervical spine on the 18 March 2002 which indicated no abnomalities
Doctor Tomlinson saw the plaintiff on the 7 January 2003. She told him that, following the collision she experienced frequent headaches which had improved to the frequency of 2 to 3 times a month. She complained of continuing neck pain and stiffness, more so on the right side, with pain radiating behind her right ear and over her shoulder. She complained of tightness across the top of her shoulders and between the shoulder blades, more on the right than the left. She told him that since the collision she had also developed a painful right hand. She had less severe symptoms in her left hand. She told him that after the collision she had been experiencing lumbar symptoms but they had improved. She told him about the 1994 and 1999 accidents. In the 1994 accident she suffered scalp lacerations and neck pain. In the 1998 accident,, she sustained an injury to her neck. She said symptoms from these accidents had settled. Upon examination he found tenderness to the right suboccipital region, bilateral para spinal tightness, more on the right than the left, tightness in the trapezi, more on the right than the left, tightness in the inter scapula region, decreased sensation over the tips of the thumb, left and middle fingers on the right hand and decreased sensation over the tip of the middle finger over the left hand. Both hands were positive for phalens sign. He concluded she had sustained a whiplash injury to her cervical spine which had not resolved. She had made a satisfactory recovery from her lumbar spine injury. She had sustained contusion to both her left and right wrists, resulting in the development of carpal tunnel syndrome.
Dr Pincus saw the plaintiff on the 3 March 2003 for the second defendant. She told him that after the collision she had a sore neck and low back and about one week later other pains developed. She went to a general practitioner the morning after the collision and was given an injection of valium. She went and saw her own local doctor the following day when she was sent for x-rays. She complained of continuing neck problems and continuing headaches. She told him that the previous motor vehicle accidents in 1994 and 1999 resulted in neck pain which had completely resolved prior to the most recent collision. She told him she had major problems in her right hand to do with pain and numbness. She told him the symptoms developed a number of weeks after the collision. She denied any prior symptoms. She told him of low back pain which lasted about 3 months after the collision and settled. He concluded that in the collision she suffered some soft tissue injury to her neck and lumber spine and some weeks later developed some fairly classical symptoms of right carpal tunnel syndrome. He was unable to relate the carpel tunnel syndrome to an injury gripping the steering wheel in the collision.
Doctor Todman saw the plaintiff on the 2 July 2003 for the plaintiff’s solicitors. She told him that shortly after the collision she noted pain throughout her spine and headaches. She told him she had received a valium injection in her neck for muscle spasm and pain the day after the collision and on the following Monday she went to her own general practitioner. She told him at the time he saw her that her neck pain was present on a daily basis, bilateral in the cervical spine worse on the right side and extending from the sub occipital region to both shoulder girdles. It was present at rest but was aggravated by neck movements or postures. There had been recurring headaches extending to the right occipital region to behind the right eye which had been up to three times a month, but were occurring once every three weeks and could last for several days. Prior to the collision she was not a headache or migraine sufferer and had not had any persistent spinal problems. She told him about the two previous motor vehicle accidents and that there were temporary cervical symptoms after these accidents which had settled. She told him she had persistent low back pain, aggravated by prolonged sitting or lifting. She told him of persistent pain and sensory symptoms in her right hand. His examination revealed restricted cervical spine movement with tenderness and muscle spasm in the para vertebral muscles in the cervical spine bilaterally more pronounced on the right and over both trapezius muscles. Forward flexion of the cervical and lumbar spine was reduced with tenderness in the para vertebral muscles. She had carpal tunnel syndrome in the right wrist. He concluded that the plaintiff had suffered a whiplash injury in the collision involving both cervical and lumbar regions. He considered the headaches were descriptively of a migraine type occurring about once every three weeks. He considered carpal tunnel syndrome in the right wrist had resulted from direct trauma to the wrist, presumably from a jarring injury from the steering wheel.
Doctor Landy saw the plaintiff on the 16 September 2003, on behalf of the second defendant. She told him of the 1994 and 1999 motor vehicle accidents. He recorded that she told him she suffered no neck injury in the 1994 accident and received a little bit of whiplash which recovered after six or so months in the 1999 accident. She told him that in the most recent accident she felt sharp pain in her neck and back after the collision. The pain in her back was in the lower sacral region. She told him she went to a medical centre and was given a valium injection in her neck and saw her local doctor the next day. She told him that about one to two weeks after the collision she was getting pain and numbness in the right hand. She told him the neck was painful in the right side. There had been no improvement since the collision. She told him of headaches occurring two or three times a month that could last two or three days. She told him her lower back felt ‘all right’ but when she goes for a walk it gets a bit stiff or sore. Examination revealed about 10 – 15 degrees impairment of movement of the neck to right and left flection, although when she was distracted she had quick full movements of her neck with no apparent impairment. There was a full range of back movement. He considered she had suffered an extension flexion injury to her neck, a soft tissue injury. He considered that the headaches as described were migraine, but considered that they were not caused by the collision. He considered she had a carpel tunnel syndrome in her right hand but it was not due to the collision.
Doctor Radovic treated the plaintiff between the 12 December 2004 and 14 February 2005. She was referred to him by her general practitioner. She complained to him of being depressed, anxious, fearful, tired, fatigued and with poor sleep. She felt lonely and worthless. She told him the symptoms started after a motor vehicle accident in 2001 and had been worsening over time particularly over the previous three months. She had experienced some suicidal ideas without any specific plan. She described her marriage break-up, depressive and anxiety symptoms on and off since then, the three motor vehicle accidents where she suffered physical injuries. She told him of her depressive symptoms being aggravated after her last accident along with her whiplash injury. There were a number of issues with her ex-husband and children, especially her youngest child. He treated her for depression and anxiety.
Doctor Cantor saw the plaintiff on the 25 January 2005 on behalf of the plaintiff solicitors. She told him about the accidents in 1994 and 1999 and the most recent collision. He was aware of her addiction problem. She told him that following the most recent collision she saw a general practitioner the next morning and he gave her an injection in her neck. After that, she saw her regular doctor. Carpal tunnel syndrome was said to have developed from the motor vehicle collision, worse in the right hand. Pain management had been complicated because she had been on the methadone program. He diagnosed her in DSM 4 terms as suffering from a panic disorder with agoraphobia, specific phobia-car travel, major depressive disorder, chronic pain disorder associated with psychological and medical factors, opiate dependency and probable benzo diazepam dependency. He considered the specific phobia had its origins in the 1999 accident after which she suffered minor anxiety travelling as a passenger. The 2001 collision involved a major aggravation of this anxiety and was associated with development of panic disorder with agoraphobia. She required psychiatric treatment. He considered that most of her anti-depressant needs post dated the recent collision and most of her benzo diazepam needs were pre-existing. He thought it reasonable as a pragmatic approach to allocate the anti-depressant costs to the 2001 collision and her benzo diazepam and analgesic costs to the pre-existing factors
Doctor Chalk saw the plaintiff on the 1 February 2005, and the 17 May 2005 on both occasions on behalf of the second defendant, as a result of which she produced two reports. On the first of these occasions, she told him of the previous motor vehicle accidents. The most recent collision, she said had resulted in constant headaches which had only slowly improved with treatment. Headaches were occurring every 2 to 3 weeks, worse with exercise with pain extending into her right arm. She told him she experienced pain in her lower back which had got better over time and now was causing no problems. She told him that two to three weeks after the collision she developed pain in both her wrists which was diagnosed as carpal tunnel. She told him she had never had this before. She told him that she had suffered whiplash injury to her neck. She saw a Doctor the next day and had a valium injection into her neck. Her current symptoms were headaches with pain extending into her right arm and a sore neck, aggravated by walking or any aerobic activity. He considered that prior to the most recent collision she had long standing difficulties, constituting a recognisable psychiatric syndrome of at least substance abuse and in all likelihood an associated depressive illness with significant personality difficulties in the dependant and perhaps borderline spectrum. The most recent accident was one of a long series of events which had contributed to her difficulties. He considered that she may well have developed some anxiety symptoms following the collision and undoubtedly depressive symptoms as time passed. He did not consider that the collision resulted in any additional psychological impairment. Her ongoing distress related to long standing personality, psycho social and family issues. The collision had not resulted in any significant increase in her level of psychiatric impairment.
When he saw her again on 17 May 2005, her psychological condition had improved. She had spent a period in hospital and had began to deal with some of her problems and taken herself off the methadone program. She was feeling more positive. He thought her depressive symptoms had improved substantially since ceasing the methadone usage. He did not agree with Dr Cantor that she had a separate diagnosis of panic disorder with agoraphobia. He considered that in addition to the traffic difficulties, she had developed an adjustment disorder with depressed and anxious mood as a result of the most recent collision. He considered she had experienced considerable depression following this collision but that there were a number of contributing factors. He considered that some treatment involving cognitive behavioural therapy would assist in recovery.
Injury to the plaintiff’s right arm
I find the plaintiff had previously suffered from carpal tunnel syndrome. I find that a week or two after the collision, the plaintiff began to experience some of the symptoms. On the state of the evidence, I am not able to find that the collision caused compression of the median nerve within the carpal tunnel resulting in carpal tunnel syndrome. On the state of the evidence, I am not able to find, a causal connection between the symptoms and the collision.
Panic disorder with agoraphobia
On the state of the evidence, I am not able to find that the collision contributed to a panic disorder with agoraphobia.
Aggravation of pre-existing condition of specific phobia – car travel
I find that after the 1999 collision the plaintiff experienced anxiety travelling in a motor vehicle as a passenger. I find that anxiety regarding car travel deepened after the collision the subject of this claim. It did not actually prevent her from driving. The evidence was that after the collision, she continued to drive a motor vehicle. There was only one car between she and her then partner, a man named Dalton. She lived at Alexandra Headland. She had to go to Nambour Hospital for her methadone. Her partner had to get to and from work at Nambour High School. So she drove. I find that when doing so, she experienced an increased level of anxiety. This shall be compensated as part of an award of general damages.
Depressive Disorder, Chronic pain disorder associated with psychological and medical factors, aggravation of pre-existing benzo diazepam dependency
I find that the collision and its aftermath caused the onset of significant depression in the plaintiff, in the psychological state she then was. In turn, the depression played a part in the perpetuation of pain and benzo diazepam dependency. She had suffered intermittent depression in the past. She was vulnerable. The collision and its aftermath was yet another calamity to befall her. She remained on the methadone program until she got herself off it in early 2005. Her depression has only recently begun to lighten. Dr Chalk , after seeing her in May 2005, thought she is now more positive. Further treatment with Mr Kerr, Psychologist would probably contribute to further improvement. The contribution of the collision and its aftermath to her depression will be compensated in the award for general damages and for psychological treatment.
Back Injury
On the statement of evidence, I am unable to find that the plaintiff suffered any compensable low back injury from the collision.
Neck Injury
I find that the collision caused soft tissue injury to the plaintiff’s cervical area which contributed to some ongoing pain and stiffness. I find that the plaintiff’s constant complaints of neck pain and headaches to doctors prior to the collision, the subject of this proceeding, to a considerable extent, had their source in her significant addiction to prescription opiates, rather than organic injury. I find that as her depression lightens, the likelihood is that symptoms attributable to this most recent soft tissue trauma to her neck will alleviate.
Damages
Loss of economic capacity (pre trial)
There is evidence the plaintiff earned some income from cleaning in 2001 prior to the collision despite her drug dependency. Exhibit 14. Other than that, the evidence is that her only employment was, for a brief period as a pharmacy assistant at the end of 1998 and early 1999, after doing a refresher course and some cleaning work until symptoms of carpel tunnel syndrome caused her to cease work earlier in 1998.
I find that prior to the collision the plaintiff had some capacity to earn income, although it was constrained by her drug dependency and her almost constant need to seek these substances. Casual work similar to the cleaning she did in 2004 with Miss Robins–Jones was probably all that was realistically possible. Cleaning work was the sort of work that may have caused symptoms of carpel tunnel syndrome to flare up again.
Anything approaching precision in calculating the value of the loss of income earning capacity is not feasible. Adopting $42 nett per week as an average of her earnings from cleaning with Ms Robins-Jones as a starting point, I assess damages for loss of income earning capacity in the sum of $4000. I allow interest of 2.81% percent rounded off at $410.00.
I am not satisfied any amount should be assessed for loss of superannuation entitlements.
Future
For future impairment of earning capacity attributable to the collision, I shall assess damages using $75.00 net per week over a period of 12 months. Applying about a 20% discount for contingencies, I assess damages in the sum of $3000.00.
Need for care and assistance
Pre trial
I accept that, after the collision the plaintiff needed some assistance in the household. Some assistance was provided by her then partner, Mr Dalton and to an extent by her children. The agreed hourly rate was $15 per hour. Using three hours per week and applying about a 20% discount for contingencies. I assess damages in the sum of $7000. I assess interest at 5% rounded off in the sum of $1275.00.
Post Trial
The agreed hourly rate was $18. I assess damages to satisfy this need for a twelve month period on the basis that her state will improve. I assess damages in the sum of $2000.00.
Future Psychological Intervention
I find that there is a need for this to occur. The need was contributed to by this collision and its aftermath on top of a number of other existing factors. I find that with psychological intervention, the likelihood is that her depression, anxiety and discomfort will alleviate. I find that a the period of 12 months is reasonable. The evidence is that the cost of a consultation with a psychiatrist is $245. I assess damages in the sum of $7350.00.
I will not assess any other amount for any other future medical or any other allied treatment.
Special Damages
Exhibit 5 was said to consist of notes and receipts for expenditure resulting from injury caused in the collision. It also consisted of documents from the Health Insurance Commission for compensation related medical services for the plaintiff. I assess the following amounts for special damages;
Health insurance commission compensation related past medical expenses $954.15; that is made up of the consultation with Dr Wills on 28 October 2001, the consultation with Dr Stewart on 12 November 2001, the cervical imaging on 13 November 2001, the CT scan of the spine on 22 November 2001, the consultation with Dr Yaksich on 30 November 2001, the consultations with Dr Craven from 19 November 2001 to 26 September 2002 inclusive and the consultation with Dr Simpson about the spine on 3 September 2002. Travelling and parking expenses totalled $164.50.00. Pharmaceutical expenses $1901.12. I shall discount that amount by 20%. I assess damages in the sum of $1520.00. I assess interest at 81% on damages for travelling and pharmaceutical expenses, rounded off in the sum of $170.00.
General Damages
I have already mentioned matters which will be compensated for in general damages. They include increased anxiety in motor vehicle travel, the onset of deepening depression, pain, benzo diazepam dependency. As I have already indicated I will proceed on the basis that psychological intervention will positively address these matters. I assess general damages in the sum of $15,000 I assess interest on $12000.00 of that amount of 2%, which I round off in the sum of $875.00.
Judgment
I give judgment for the plaintiff against the defendant for $36,718.65, inclusive of interest.
0
0
0