WILLIAMS v Kearns and Nott

[2007] NSWDC 261

CITATION:	WILLIAMS v KEARNS & NOTT [2007] NSWDC 261
HEARING DATE(S):	8,9,12,13 November 2007
EX TEMPORE JUDGMENT DATE:	15 November 2007
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Judgment for the plaintiff in the sum of $703,404.30, after taking into account a credit of $414.20 due to the defendants pursuant to s 83 of Motor Accidents Compensation Act 1999; 2. The Defendants to pay the plaintiff’s legal costs as agreed or assessed on a party party basis; 3. The judgment to be stayed, conditional upon the defendants paying the plaintiff the sum of $500,000.00 on account of the judgment (less any amounts required to be paid from the judgment) and prosecuting any appeal within the court rules; 4. The stay does not apply to the costs order; 5. Exhibits to be retained for 28 days or until further order.
CATCHWORDS:	Attendant care - Care needs for four children - Credit - Multiple injuries
LEGISLATION CITED:	Civil Liability Act 2002 Motor Accidents Compensation Act 1999
PARTIES:	Tammy-Lee Katherine WILLIAMS Robert Joseph KEARNS Betty NOTT
FILE NUMBER(S):	Wagga Wagga 30/06
COUNSEL:	Plaintiff - I D Roberts SC - A J Black Defendants - M B Inglis
SOLICITORS:	Plaintiff - Walsh & Blair Defendant - CKB Partners

JUDGMENT

1 Tammy-Lee Katherine Williams suffered injuries of such severity that they were life threatening when she was struck by a motor vehicle while crossing Fernleigh Road in Ashmont, a suburb of Wagga Wagga, on 5 May 2005.

2 The parties have reached agreement on the issues of liability and contributory negligence with the result that my assessment of the plaintiff’s damages will be reduced by fifty per cent. It is not disputed that the plaintiff’s injuries were serious and that her condition as a result exceeds ten per cent whole person impairment.

3 The issues remaining involved the extent of the plaintiff’s ongoing disabilities resulting from her injuries for the purposes of assessing her non-economic loss, her need for out of pocket expenses, the extent to which her income earning capacity has been affected, and the past and future needs of her own and those of her family for attendant care, both paid and gratuitous.

4 The injuries involved multiple fractures including a fracture of the C2 vertebra, there is a question as to whether a second fracture of this vertebra was also involved, fractures of the left superior pubic ramus; of the left sacroiliac joint; a fracture of the sacrum, a possible fracture of the right sacroiliac joint; a displaced segmental comminuted fracture of the distal third of the right femoral shaft; a comminuted fracture of the left proximal tibia; a fracture of the left proximal fibula; fractures of the left knee joint articular surfaces including a fracture of the tibial plateau. In addition, the plaintiff suffered a head injury which resulted in post-traumatic amnesia for eighteen days. She suffered a right pneumothorax, injury to her left kidney, a ruptured spleen, a pulmonary embolism, injury to the left psaros muscle, injury to the right knee, and a ten centimetre laceration to her left thigh.

5 At the time of the accident the plaintiff was aged twenty six, she is now twenty eight years old. She is the mother of four sons whose ages at the time of the accident ranged from three to eight years. One child, Caleb, is developmentally delayed. At the time of the accident she was separated from her partner, Andrew Brydon, who is the father of the children.

6 After the accident the plaintiff was admitted to Wagga Wagga Base Hospital where urgent surgery was undertaken to deal with the fractures to the legs and to suture the laceration to her left thigh. She was then transferred to the St George Hospital at Kogarah where further surgery was undertaken to treat her fractures. Her condition resulting from the rupture of the spleen deteriorated and an urgent splenectomy was undertaken. Both of her lungs collapsed and she suffered two episodes of hypoxia. An infection in the pelvic region developed.

7 On 23 May 2005 the plaintiff was returned to Wagga Wagga Base Hospital where further attention was paid to her injuries. A splint was provided to the plaintiff in respect of the injury to the left ankle, which had left her with a palsy and an inability to dorsi flex the ankle. On 7 July 2005 the plaintiff was discharged in a wheelchair. In October 2005 she commenced mobilising on crutches, which she used for a period of six weeks.

8 The plaintiff’s injuries have left her with scarring, photographs of which are in evidence. Those scars significantly disfigure both of her legs and her abdomen.

9 After discharge the plaintiff attended the orthopaedic clinic at the Wagga Wagga Base Hospital for a period of time. Since then she has had little review or treatment. She was seen in May 2006 by Dr Mamo in respect of complaints concerning her right knee. There is evidence that she consulted Dr Jude, a neurologist, in respect of complaints of migraine headaches. No report is in evidence from Dr Jude. The plaintiff said she received some physiotherapy until the costs of the therapy were no longer funded by the insurance company. She has been unable to secure physiotherapy through the public hospital system.

Non - Economic loss

10 I have taken into account the immediate pain and suffering to which I have already made reference and the following ongoing problems.

11 Thankfully, there is no evidence of brain damage resulting from the head injury, although it appears that the plaintiff for a period of time suffered memory deficits. She said that her first memory after the accident was of being told at St George Hospital that she was to return to Wagga Wagga. On discharge from hospital she said she suffered from pain in her neck, her low back, her pelvis, her knees, and her left ankle. When she was able to walk she remained with a limp because of the problems of her left ankle and she continues to limp to the present date.

12 In mid 2006 migraine headaches developed, at that time associated with neck pain. She said they occurred two or three times a week and it was for this problem that she consulted Dr Jude. Medication was prescribed which the plaintiff said does not help. The only way that she can relieve the headaches is to lie in a darkened room. At times, she said, this takes a whole day. The plaintiff complained of pain on both sides of her pelvis, which is constant and is in the form of a dull ache, which is worse when she walks. She complains of a constant dull ache in her right thigh which is worse when she is walking, sitting, or standing. She complains that her right knee locks. This was first noticed after she started walking. When it is locked she is unable to bend the knee to walk.

13 The right knee started to give way last year and it has occurred on three occasions when she has been walking. In December 2006 she suffered a bad fall at her home as a result of the knee giving way.

14 The plaintiff said the left leg gives her pain most of the time extending to the whole of the leg including the ankle. The pain in her left leg has increased over the past twelve months. This leg caused her to fall about two months ago. The left ankle pain, the plaintiff said, is worse when she is standing. She is unable to place her foot flat to the floor and she walks on the toes of her left foot. She cannot squat.

15 She suffers from low back pain and has problems lying on her back if she tries to move. She said the back pain disturbs her sleep. She has a sharp pain in her back after sitting for periods of longer than twenty minutes and when moving around. She has numbness in the waist and groin areas, and pins and needles and numbness in both legs.

16 The plaintiff suffers from fatigue, causing her to be moody and short-tempered. This has affected her relationship with her children and consequently this also upsets her.

17 The plaintiff agreed that her concentration is no longer affected and she stated that she no longer suffers from restrictions in the movement of her neck.

18 The plaintiff stated that she hated her scars and she covers them with clothing.

19 She said she has been down and depressed at times about her situation. She described her current situation as unfair. Psychiatric evidence indicated that the plaintiff’s emotional condition does not amount to a diagnosable psychiatric disorder.

20 The plaintiff takes occasional Panadeine Forte and Panadol for pain and a medication, Pramin, as prescribed by Dr Jude for headaches.

21 The plaintiff was challenged in cross-examination because there had been no apparent resort to treating doctors, notwithstanding complaints of her deteriorating condition. I have already noted that she stated that she did consult with Dr Jude in respect of her headaches. I have also noted that she consulted Dr Mamo in May 2006 concerning the condition of her right knee. The plaintiff stated that she would have undertaken more physiotherapy had she received funding to do so.

22 The plaintiff’s symptoms and disabilities are generally supported by the medical experts, a number of whom have described the medical care provided to her since her discharge from hospital as sub optimal. The medical experts also indicate that there are prospects that she will need further surgery to deal with her knee pain and the condition of her left ankle and there is an indication that she is likely to develop osteoarthritis as a result of her fractures.

23 The plaintiff was criticized because there was no report from Dr Jude and no evidence from the general practitioners that she has consulted to support the claims of regular headaches. In particular, it was stated that there was no reference to headaches in the reports of Dr Mamo, the only treating doctor to report since the plaintiff’s discharge from hospital. I was also pointed to the absence of reference in the reports of

24 Dr Bowers and Mr Rawlings to the complaints of headaches.

25 On this basis the defendant contended that I should not accept the plaintiff as a witness of credit in respect of the headaches and generally. I reject this contention for the following reasons:

1.It was apparent from Dr Mamo’s report that, consistent with the specialities noted on his letterhead, he examined the plaintiff only with reference to her complaints of leg pain.

2. Mr Rawlings did not set out any of the plaintiff’s symptoms or disabilities.

3.In all other medical reports where symptoms and disabilities are recorded reference is, in fact, made to the complaint of headaches.

4.The plaintiff was examined by Dr Cummine for the defendant. No report is in evidence and I draw the appropriate inference.

5.A number of medical experts make reference to the plaintiff’s cooperation on examination to the absence of evidence of exaggeration and to the consistency of her complaints with the injuries that she suffered.

6. There was no evidence of exaggeration by the plaintiff in the evidence that she gave to the court. To the contrary she made a number of concessions which were against her interests.

26 I therefore accept that the plaintiff suffers from headaches and that they are the result of the motor vehicle accident. I accept the plaintiff as a witness of credit and I find that her complaint in respect of headaches was genuine.

27 My assessment of her non-economic loss has taken account of the matters that I have related including the complaints of headaches and I have assessed her non-economic loss at $320,000.

Out of pocket expenses

28 The parties are agreed on the expenses incurred in the past with the exception of the amount claimed for the consultation with Dr Jude. Having accepted the plaintiff as a witness of credit I accept that that expense was incurred in respect of injuries suffered in the motor vehicle accident and I allow the claim for past out of pocket expenses in the sum of $11,997.

29 The claim for recurring future out of pocket expenses was challenged in respect of the claim of $10 a week for analgesic and anti-inflammatory medication. This was based on the evidence that the plaintiff currently uses minimal amounts of such medication. There is, however, medical evidence that the plaintiff can expect to suffer from increasing levels of pain in the future and that episodes of surgery will be required. In the circumstances I regard that part of the claim as reasonable and it is allowed.

30 I have not allowed that part of the claim for recurrent future out of pocket expenses that relates to hospitalisation on the basis that it is covered by the claim for future operations. In respect of recurring future out of pocket expenses, therefore, the amount allowed is $23,858.

31 In respect of the claim for future operations there is no dispute that the plaintiff probably will require surgery to address problems that have developed in both of her knees. The amount claimed is based upon the estimate provided by Dr Buckley which is conceded by the plaintiff to be at the top of the range. The defendant suggested that the amount claimed should be reduced by one half. I consider this to be too great a level of correction. Aside from the requirement for knee surgery, references were made in the medical evidence for potential surgery to revise the unsightly scarring on the plaintiff’s body and for the need for attention to be given to remedial surgery to improve the functionality of her left ankle.

32 I have reduced the amount claimed by twenty-five per cent and rounded it up to $27,700.

Economic loss

33 No claim is made for past economic loss. This is on the basis that the plaintiff stated that it was her intention to seek full time work when all of the four children were established in school. It was evident that Bailey and Caleb were not established at school until the current 2007 year and thus the claim for future income loss is based upon the future from the current date.

34 The plaintiff’s contention was that as a result of her condition she has no prospects of securing any type of paid employment.

35 The defendant disagreed that she should be compensated on the basis of a total loss of income earning capacity for two reasons:

1.It was argued in respect of s 126 of the Motor Accidents Compensation Act 1999 that her most like likely future circumstances but for her injury were that she would not secure full time employment but that she was more likely to work part time only.

2.It was stated that she retains a measure of residual income earning capacity which the defendant assessed at forty per cent.

36 The evidence was that the plaintiff has never been in paid employment. She left school towards the end of year 11 with an ambition to train as a legal secretary. To this end she had undertaken a business skills course for about two or three months at TAFE. In December 2006, shortly after leaving school, she formed a relationship with Mr Brydon and moved with him to Blayney where he obtained work at an abattoir. The plaintiff did not find work, stating that she did not look for work. Mr Brydon said that she did but that she was unsuccessful.

37 The plaintiff became pregnant in early 1997 and returned to Wagga Wagga in June 1997. Her first child, Brett, was born in October 1997. Subsequent children were born as follows: Andrew in February 2000, Caleb in March 2001, and Bailey in February 2002. As far as settling the children at school is concerned, Caleb has presented a particular problem by reason of his developmental disability. The evidence was that it was not until the 2007 year that Caleb was settled into the special unit at the local primary school.

38 In respect of the argument concerning s 126 of the Act the defendant submitted that with her commitments to her four children it was unlikely that the plaintiff would have worked full time. I reject the proposition that a woman with a young family can never work full time. The plaintiff gave evidence that after school care would have been available to the children through their grandmothers, both of whom live close by. Further, I do not accept that the short period between December 2006 and the commencement of the plaintiff’s initial pregnancy in early 2007 established that it was unlikely that the plaintiff would ever secure full time employment.

39 As to the plaintiff’s most likely circumstances the plaintiff stated that she would have considered alternatives to a position as a legal secretary. The assessment of her intellectual capacity indicated that it most likely that she would have worked in unskilled employment such as employment as a sales assistant, process factory work and the like.

40 In determining the plaintiff’s most likely circumstances but for the injury I find as follows:

1.It is feasible and probable that she would have secured fulltime employment, and

2.It was most likely that she would have been employed in unskilled occupations such as those identified in the vocational assessment report of Mr Hawkins.

41 As far as her residual capacity is concerned I acknowledge that the majority of the medical reports indicated that the plaintiff has capacity for part-time sedentary work. However, the realistic prospects of her securing employment must be measured in circumstances where she is unskilled and intellectually limited. She does not drive. She has difficulty because of her disabilities in using public transport. She suffers from constant pain in a number of parts of her body and she needs to move around at regular intervals. Further, she suffers from regular headaches of a severity that require her to lie in a darkened room and she suffers from significant fatigue.

42 As a result I find that there is little prospect that she will in fact secure any employment.

43 In respect of her claim, therefore, I accept that her likely income earning capacity was $500 per week but I have increased the factor for vicissitudes to twenty per cent to take account of the outside possibility that she will secure some form of part-time work.

44 On this head I have allowed the sum of $328,350. Loss of superannuation is allowed at eleven per cent of the net figure in the sum of $26,118.

Attendant care

45 Attendant care has been claimed on three heads.

1.Past services for the plaintiff provided on a gratuitous basis.

2.Future services for the plaintiff to be provided partially on a gratuitous basis and partly on a paid basis.

3.Past and future care for the plaintiff’s children as provided for in s 15B of the Civil Liability Act 2002.

46 In respect of the claims generally the evidence was that prior to the accident the plaintiff was solely responsible for the household comprising of herself and her four children. Mr Brydon said that even before their separation he had left all housework and child care to the plaintiff whilst he attended to the family’s needs external to the house and worked long hours.

47 Since the accident the significant majority of the gratuitous services have been provided by Mr Brydon who has moved back into the household. He has been assisted by both the paternal and maternal grandmothers in his support of the plaintiff and the children. Mr Brydon took leave of absence from employment from the date of the accident until 1 December 2005. He returned to work until the beginning of May 2006. During that period the plaintiff attempted to manage the household with the assistance of the two grandmothers. The plaintiff said she was unable to cope during this period. Mr Brydon said she was upset and cranky when he came home and that by May 2006 the plaintiff was depressed, crying and tired. He said the children were not coping well because they could not play with her.

48 Further, he was concerned that she was unable to supervise Caleb effectively. Caleb, apparently, has little capacity for apprehension of fear and has a propensity to run off. According to Mr Brydon he has found him at the shops, some 200 to 300 metres away. He said that if he became lost he would not be able to state his name, address, or telephone number. It is therefore necessary to watch him very closely.

49 Mr Brydon, therefore, ceased working in May 2006 and to date he has been performing the roles of full time carer for the plaintiff and for the children. Both the plaintiff and Mr Brydon gave evidence of the tasks performed in the household with estimates of times taken to perform them. This evidence was somewhat artificial because the management of a household with children involves balancing time, frequent interruption, and the moving from one task to another.

50 The difficulty presented to the plaintiff is that the claims made for current and future assistance exceed the estimates provided by Ms Eng, the occupational therapist, and Dr Buckley, the rehabilitation specialist. I was pointed to shortcomings in both reports to explain the discrepancies and asked to prefer the evidence of the plaintiff and Mr Brydon.

51 In assessing the claims made and in dealing with the past care provided to the plaintiff I am satisfied, and it is agreed, that the amount claimed for the period between 8 July 2005 and 30 November 2005 is appropriate and it is allowed in the sum of $13,154.

52 I am also satisfied that the amounts claimed for the period 1 December 2005 to 4 May 2006 is reasonable, that is, twenty-four and a half hours per week. During this period although independent in personal care, the plaintiff was only just beginning to mobilise and she was still recovering from her multiple injuries and adjusting to them.

53 From 5 May 2006 to date the claim is twenty hours per week, which I regard as reasonable to cover the graduation from substantial dependency to her current situation and it is allowed in the sum of $35,550.

54 As far as the future is concerned the evidence was that the plaintiff remains independent in personal care and that she is capable of performing some light housework such as placing washing in a washing machine and some light food preparation. However, the plaintiff is significantly damaged and she is limited by her pain and fatigue and by the headaches which affect her on an average twice a week. She is unable to shop alone. She is very limited in her capacity to use public transport and, therefore, it is necessary to provide transport for her. The result is that I am dealing with a case that involves more than a need for assistance with the heavier aspects of housework. I do not accept that her needs would be met with the four hours of assistance per week proposed by the defendant.

55 Further, I find that those needs would not be met with assistance at the levels proposed by Dr Buckley or Ms Eng.

56 For the future and until 2017 I have assessed the plaintiff’s needs at sixteen and a half hours per week comprising six hours of paid assistance, which is allowed in the sum of $72,984, and ten and a half hours per week, or one and a half hours per day, for gratuitous services for which an allowance of $98,010 is made.

57 From 2017 for a period of fifteen years I regard the amounts claimed of four hours of paid care and eight hours of gratuitous care to be reasonable, and I allow the amounts claimed of $70,371 and $108,160 respectively.

58 In respect of the claim concerning the care for the children it is not disputed that this is a situation to which s 15B of Civil Liability Act applies.

59 It was argued for the defendant that the claims were excessive because they were inconsistent with the assessments made by Ms Eng. I am satisfied from the evidence of the plaintiff and Mr Brydon that Ms Eng significantly underestimated the time involved in caring for four young children.

60 The second challenge by the defendant related to s 15(2) of the Civil Liability Act on the basis of which it was argued that Mr Brydon would, in any event, have spent some time caring for his children. I accept that this most likely would have been the case, although on his evidence his care of the children was limited to mostly recreational activity. Secondly, it was argued that the plaintiff gave evidence that the grandmothers living close by would have provided after school care from the time she commenced employment, that is, when the children were all settled into school. There is no evidence, however, that this would have been undertaken on a gratuitous basis. The plaintiff was not questioned about this and nor was her mother, Mrs Patricia Williams, who was called to give evidence. I am not prepared to presume that the grandmothers would have agreed to provide this service for four young boys on a gratuitous basis.

61 Further, it became apparent on examination that the claims made are modest, and, in my view, they are far from overstated. The claims are made on the basis of evidence that the plaintiff provided virtually all care for the children prior to the accident. At that stage their ages were three, four, five and eight respectively. They are now aged five, six, seven and ten respectively. I have already referred to Caleb’s special needs and his requirement for close supervision. At the time of the accident he still required nappies, they are no longer required.

62 In the immediate post-accident period the two younger children were placed with Mr Brydon’s mother and the older children with Mr Brydon’s father at Moruya. Thereafter they have been cared for by Mr Brydon with assistance from the grandmothers and some limited assistance from the plaintiff in more recent times. I accept that the claim for in excess of forty hours for the first year is reasonable. The legislation limits the claim to forty hours per week or about six hours a day, and it is allowed in the sum of $44,980. I accept that twenty-one hours a week or three hours a day to date is modest and it is allowed in the sum of $36,498. Similarly, I consider eighteen hours a week or two and a half hours a day to care for the four children until the youngest is fifteen years old to be a reasonable and modest claim, and it is allowed in the sum of $168,265.

63 The total of the sums allowed is $1,407,637. Applying the fifty per cent allowance for contributory negligence the verdict in favour of the plaintiff will be $703,818.50.

ADDENDUM
Chamber consent orders entered on 27.11.07:

1.Judgment for the plaintiff in the sum of $703,404.30, after taking into account a credit of $414.20 due to the defendants pursuant to s 83 of Motor Accidents Compensation Act 1999

2.The Defendants to pay the plaintiff’s legal costs as agreed or assessed on a party party basis.

3.The judgment to be stayed, conditional upon the defendants paying the plaintiff the sum of $500,000.00 on account of the judgment (less any amounts required to be paid from the judgment) and prosecuting any appeal within the court rules.

4.The stay does not apply to the costs order.

5.Exhibits to be retained for 28 days or until further order.

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