Wendy Ann Norris v Brett Zimmer - [2010] ACTSC 51

WENDY ANN NORRIS v BRETT ZIMMER
[2010] ACTSC 51 (8 June 2010)

EX TEMPORE JUDGMENT

DAMAGES – personal injury – whiplash injury to neck and back – impairment of earning capacity – reduced likelihood of promotion – no issue of principle

No. SC 241 of 2009

Judge: Master Harper
Supreme Court of the ACT

Date: 8 June 2010

IN THE SUPREME COURT OF THE     )
  )          No. SC 241 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:WENDY ANN NORRIS
Plaintiff

AND:BRETT ZIMMER
Defendant

ORDER

Judge:  Master Harper
Date:  8 June 2010
Place:  Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $154,964.60

The defendant pay the plaintiff’s costs up to and including 25 May 2009 as between party and party and after that date as between solicitor and client.

This is an action for damages for personal injury arising out of a motor vehicle collision at McKellar on 7 November 2007. The plaintiff was driving her car home from work and was struck from behind at traffic lights while stationary. Liability is admitted and the action comes before the Court for the assessment of damages. There is an issue between the parties as to some matters of significance, but as to much of the plaintiff’s case there is no real issue.
She was born in January 1958 and is now 52 years of age. She appears to have sustained a conventional whiplash injury, with her description of the mechanism of what happened to her body being typical of injuries of this kind. Undoubtedly she injured her neck and I am satisfied that there was an injury to both of her shoulders, more so the right shoulder, and an injury to her chest.
There is an issue between the parties as to whether there was any real injury to her low back. In that regard I am satisfied that when she saw Dr Berenson, a general practitioner, the day after the accident, she displayed symptoms reflective of injury to the low back. I am also satisfied that the plaintiff had not previously had any low back symptoms.
It is apparent from medical records that she had had some neck pain symptoms previously and also some shoulder symptoms, although her evidence was that she did not recall those pre‑accident problems.
I generally accept the plaintiff as an honest witness. It is common experience in cases of this kind that when plaintiffs are giving their evidence they not unsurprisingly put their best foot forward. But I do not see this plaintiff as having given consciously exaggerated evidence about the impact of the accident upon her or about the severity of the pain that she has experienced.
There are some aspects of her evidence that, I think, were perhaps a little over-dramatic, but that is a common experience. It is not unexpected and it is not something about which I am inclined to criticise a plaintiff who has for months, often years, been part of the preparation of a case like this for hearing and who eventually has the opportunity to make the best of her day in court. I generally accept the plaintiff’s evidence.
As to the low back, it was submitted by counsel for the defendant that any injury was minor and recovered very quickly. I accept the evidence of the plaintiff and of medical experts called in her case that she continues to suffer from low back pain from time to time. In the absence of any evidence of any subsequent trauma, I accept that the plaintiff’s low back symptoms are a result of her injury in the accident.
There is evidence of two later incidents where she sat in a chair which was probably not designed ergonomically and suffered acute low back symptoms. But it seems to me that having regard to the fact that she had no low back problems before the accident and that she did have low back symptoms immediately afterwards, I should accept that the motor accident was a cause of the symptoms she suffered in both of those incidents.
The other major issue in the case related to the plaintiff’s employment. The plaintiff spent 24 years with initially the Australian Capital Territory Police and later the Australian Federal Police. In 2006, the year before the car accident, she became a Commonwealth Public Servant with the Department of Defence as an Executive Level 1 officer, a senior position for entry into the public service, which she achieved largely because of her extensive experience in investigation. She joined the public service at the EL1 level. She was at that level at the time of the car accident and she continues to work at that level.
She has had some time off work and she has been able to cope since with the demands of her work, although I accept that at night and at weekends she is not able to do much at home, and spends that time recovering and getting ready for the next working day.
Her case has been put forward on the basis that if not for the car accident probably by now - perhaps some time last year - she would have been promoted to Executive Level 2, with an increase in salary, and that she would have worked at EL2 for the rest of her career to a probable retirement age of 67.
The evidence about that is a little thin and is based to some extent on her expectations, which were perhaps more optimistic than were likely to have been borne out by the facts. I accept the evidence of her present supervisor, Mr Grace, who is at EL2 level with the Department of Defence and shares with the plaintiff a policing background earlier in his career.
I have come to the view that, if the accident had not happened, the plaintiff would probably not yet have achieved EL2 rank.
As to the future, it is possible that in the absence of the car accident she might have gone on to retirement age without a promotion to EL2, but equally she may very well have received such a promotion, either in the Department of Defence or in some other area of the Commonwealth Public Service. I think the best I can do about that is to say that I think that there was something like a 50-50 chance that she might have achieved promotion to EL2, probably within something like five to eight years from now.
I am satisfied that although the plaintiff might be capable of doing the work required of her at EL2 level, she properly and reasonably takes the view that she would find herself unable to cope with the demands of work at that level because of the additional pressures, the additional hours that would be required of her and the additional travel which would be likely to be required of someone in a position at that level. I am satisfied that the chance that she will be promoted to EL2 during the balance of her career in the public service is now negligible.
I am satisfied that the picture generally presented by the plaintiff in the witness box as to her pain, the things she can do and cannot do, the effect on her of the physical symptoms in psychological terms, is generally accurate. I accept her evidence and that of her husband, that the symptoms get her down to the extent that she is, at times, quite short-tempered and, to use her husband’s word, “cranky”, and that these personality effects of the physical injuries have created significant problems within the marital relationship and the family home.
On the basis of those findings I assess general damages at $70,000.00. I apportion 50% of that figure to the past and allow interest over the period since the accident, on the basis that the past component is a little more weighted to the period immediately after the accident, of $2,000.00. Past treatment expenses are agreed at $4,414.60. A little over $2,000.00 of that has been paid by the plaintiff at different times over the period since the accident. I allow interest on the paid treatment expenses at the commercial rate prescribed by the Rules of 9% per annum in an amount of $250.00.
For future treatment expenses I make an allowance to cover analgesics and other medication, the possibility that the plaintiff will choose to take out a gym membership and will get some benefit from that, and that she may choose to undergo some therapeutic massage treatment and possibly other treatments. For future treatment expenses I allow $5,000.00.
Past loss of earning capacity is agreed at $24,300.00, including superannuation and interest. That does not include damages for economic loss flowing from the loss of the chance that the plaintiff might by now have been promoted to EL2 level. I think she probably would not have been, but there was a slim chance that she might have been and for that past loss of a chance of promotion I allow $1,000.00.
For future loss of earning capacity, assuming no promotion to EL2, that is to say, for the loss likely to be suffered by the plaintiff by way of loss of earnings for days she needs to take off for painful episodes and other absences related to her injuries I allow $5,000.00.
For the loss of the chance of promotion to EL2 in the future, I take note of the figures which accompanied the submissions of counsel for the plaintiff. It seems to me that there was something like a 50-50 likelihood, of promotion to EL2 in the future, probably in the next five to eight years, if it had not been for the accident. This is not something that lends itself to a mathematical approach, but for the loss of that chance of future promotion and the additional net income which that would have provided to the plaintiff, I allow $30,000.00.
Evidence was given by the plaintiff and by her husband of the household tasks which she used to undertake before the accident which she is now incapable of undertaking. Again, I am not satisfied that the evidence allows me to make a mathematical calculation of the component of damages which reflects the plaintiff’s need for assistance in the home. I allow $5,000.00 for the past Griffiths v Kerkemeyer component, including interest, and I allow a further $5,000.00 for the future Griffiths v Kerkemeyer component.
I have allowed a total of $35,000.00 for loss of earning capacity for the future and I should, in addition, make an allowance for the loss of superannuation benefits the plaintiff could have expected to enjoy, had she earned the income which those components of the award reflect. The conventional approach is to allow 9% of the amount awarded for future economic loss. I allow $3,000.00 for loss of superannuation benefits for the future.
The total of the individual components is $154,964.60. There will be judgment for the plaintiff for that amount.
I take account of the fact that the plaintiff on 11 May 2009 offered to settle the case for $145,000.00 plus costs, which is a little less than she has been awarded, and that the difference is not made up purely by additional interest on expenditure since then. Some effect should be given to that offer and the defendant’s decision not to accept it. There is no evidence before me as to what the defendant’s response was to the offer, but I take the view that where an offer of that kind can be identified and isolated, future negotiations as to settlement should not influence the court to disregard it. There is no suggestion that the defendant was not in possession of all relevant particulars and information by May 2009 to enable a decision to be made as to whether it was a proper figure or not.
It seems to me that the defendant’s decision not to settle at that figure was probably based on its assessment of the plaintiff’s claim as being, as the hearing was conducted, a less serious injury with less serious ramifications. Notwithstanding the subsequent course of negotiations I am satisfied that I should make an order for costs which reflects the making of the Calderbank offer and the decision of the defendant not to accept it. The special order about costs should run from 25 May, being fourteen days after the offer closed. The defendant is to pay the plaintiff’s costs up to and including 25 May 2009 as between party and party, and after that date as between solicitor and client.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 16 June 2010

Counsel for the plaintiff:  WL Sharwood
Solicitors for the plaintiff:  Baker Deane & Nutt
Counsel for the defendant:  SM Whybrow
Solicitors for the defendant:  Moray & Agnew
Date of hearing:  7 & 8 June 2010
Date of judgment:  8 June 2010