Zayas v Curtis
[2004] WADC 12
•5 FEBRUARY 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ZAYAS -v- CURTIS [2004] WADC 12
CORAM: NISBET DCJ
HEARD: 8-10 DECEMBER 2003
DELIVERED : 5 FEBRUARY 2004
FILE NO/S: CIV 1647 of 2002
BETWEEN: PURISIMA ZAYAS
Plaintiff
AND
JASON SCOTT CURTIS
Defendant
Catchwords:
Damages - Assessment - Liability agreed 50/50 - Seriously injured plaintiff - Significantly impaired vision to right eye - Whether caused by accident - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Award of $340,620
Representation:
Counsel:
Plaintiff: Mr I L K Marshall
Defendant: Mr T R D Mason
Solicitors:
Plaintiff: S C Nigam & Co
Defendant: Jackson McDonald
Case(s) referred to in judgment(s):
Bresatz v Przibilla (1962) 108 CLR 541
Griffiths v Kerkemeyer (1977) 139 CLR 161
Jongen v CSR Ltd (1992) A Tort Rep 81-192
Wilson v McLeay (1961) 106 CLR 523
Case(s) also cited:
Nil
NISBET DCJ: The plaintiff was born in the Philippines on 9 September 1956. She completed all of her schooling there, going to a Catholic private school until Year 10 and thereafter completing what is described as "a four year degree in agriculture from the Central Mindanao University in Bukidnon". There was no evidence from which I could determine whether that institution is in any way equivalent to universities in Australia. Perhaps it is a hybrid of what in Australia we would think of as senior high school and TAFE, but I have no evidence of this.
In any event after she graduated the plaintiff was employed as a farm manager for about five years leaving that occupation to become the owner and operator of an antique shop also for about five years. She then joined her father as a farm manager on his papaya (paw paw) farm in the Philippines for about two and a half years during which period she met her de facto husband (Mr Kim Mann) who was on holidays in the Philippines. They commenced living together in 1989 and in 1990 they operated a papaya farm in the Philippines for about 18 months or so when Mr Mann left to return to Australia.
The plaintiff joined her de facto husband in Australia on 2 May 1992. She was initially on a tourist visa and unable to work until she became an Australian citizen which was around the time that she and Mr Mann commenced employment with the Autism Association of Western Australia Inc as respite carers. This employment commenced on 10 February 1998 and involved the joint employment of the plaintiff and Mr Mann to provide respite care for autistic children from 5.00 pm Friday through to 5.00 pm on Sunday or, if it was a long weekend, until 5.00 pm on the Monday. I shall describe the nature and extent of this employment later in these reasons.
The accident
On 22 February 2001 the plaintiff sustained very serious injuries when she was struck down by a motor vehicle driven by the defendant when, as a pedestrian, she was attempting to cross Whitfords Avenue in Woodvale in a northerly direction at the intersection of the Mitchell Freeway (south) entrance. As I understood the description of the scene, the intersection is governed by traffic control lights, the sequence of which provides in part for a stop sign to be facing two lanes of traffic proceeding through the intersection and a third or filter lane for traffic making a right‑hand turn onto the freeway entrance, which will show green thereby permitting traffic to make a right‑hand turn through the filter lane whilst traffic wishing to proceed through the intersection is stopped. Additionally, it should be noted that the second of the two lanes provided for traffic to travel through the intersection also permits vehicles to use it to effect a right‑hand turn into the freeway entrance so that there could be two lanes of traffic making a right‑hand turn whilst one lane of traffic is stationary. Photographs which were tendered to me during the opening of the plaintiff's case by her counsel illustrate the scene. They have not been received into evidence as an exhibit, however in the event that it becomes necessary for someone else to look at them, I have taken it upon myself to have them marked as MFI 12. As the plaintiff crossed this intersection she was struck from her right by a vehicle legitimately making a right‑hand turn onto the freeway entrance. [At the end of the trial I was left wondering as to whether the fact that the plaintiff was struck from her right should be weighed in the balance in the determination of the controversy in the evidence as to whether the plaintiff's right eye was injured as a consequence of her accident or whether she had a long‑standing defect of her right eye, which controversy I will return to later in these reasons.]
No further evidence was adduced in respect of the accident save that the plaintiff could not remember any of it. No eye witness was called and the mechanism by which she sustained her injuries was not explained to the court, perhaps because there were no eye witnesses and perhaps the parties agreed apportionment of liability 50/50 before the trial commenced.
Plaintiff's treatment
Following the accident the plaintiff was taken to Joondalup Hospital and from there to Sir Charles Gairdner Hospital where it was noted that her injuries involved:
1.A compound fracture of the left tibia.
2.Fractured proximal right humerus.
3.Laceration of the left elbow.
4.Right orbital fracture.
5.Compound fracture frontal skull.
6.Fractured nasal bridge.
7.Spinal subdural haematoma at the cranio‑cervical junction.
At Sir Charles Gairdner Hospital the plaintiff was placed in intensive care, intubated and ventilated. The next day she was taken to theatre where she had an intramedullary nail inserted in the left tibia and another intramedullary nail inserted in her right humerus. Her various lacerations were debrided and closed (whether by sutures or other means is not clear to me). She was transferred from the intensive care unit to the ward on 25 February 2001 and was discharged from hospital on 12 March 2001 in a wheelchair. It must be noted that whilst in hospital no observation was made that the plaintiff sustained any injury to her vision and there appears to have been no complaint made by her to the hospital staff in this regard, at least none that appears in any of the hospital records.
Following her discharge from hospital the plaintiff regularly attended the hospital's orthopaedic outpatient clinic and was given physiotherapy, at least for a time, until it appears that she was told that any further physiotherapy would have to be at her own expense, an unfortunate symptom of an ailing public hospital system.
On 18 May 2001 the plaintiff was re‑admitted to Sir Charles Gairdner Hospital for the removal of the distal interlocking screws from the left tibial nail and, following her discharge from that procedure she continued to attend the orthopaedic outpatient clinic at the hospital. Since that time however, the plaintiff has not received any further treatment save for her own attempts at rehabilitation and the drug regime upon which she has been placed by various of her medical practitioners and which I will detail later in these reasons.
Current symptoms – residual disabilities
Undoubtedly the plaintiff has been left with a serious and ongoing deficit in her health and is no longer the woman she was before the accident. Before the motor vehicle accident she was described as being bright, bubbly and energetic. She was socially active and loved her job with the Autism Association. The evidence gave me a picture of woman who, before the accident was warm and caring with a pleasant disposition and appearance and a bright happy, positive outlook on life. When I saw her she was distraught and distracted, depressed and agitated, of diminished intellectual capacity, but with sufficient remaining insight to know of her intellectual deficit, all of which combined to make her desperately unhappy.
From the general I move to the specific. She described her current symptoms as follows:
1.She complained about her scarring and how she is embarrassed by it. The photographs in exhibit 7 show that she has extensive scarring to her left lower leg, upper right shoulder and arm particularly at the elbow. She has some smaller scars around her mouth and the bridge of her nose and her forehead. They have been measured and itemised by Dr Fiona Wood in her report forming part of exhibit 10. Dr Wood describes the plaintiff's scars as "severe hypertrophic scarring".
2.Next the plaintiff complained of continuing headaches which she said troubled her almost every day. She described her headaches as being sometimes dull and sometimes piercing with a sensation she likened to that obtained when eating something exceptionally cold. She said she only takes Panadol for the headaches.
3.Next the plaintiff described a pulling sensation all down the right side of her face to her neck, her right shoulder and her scapula region. Asked further about the pulling sensation on the right side of her face and head the plaintiff went on to explain that this in fact extends all the way down her back and into her lumbar spine and then through the right thigh down to the right lower leg and into her toes.
4.The plaintiff then complained about loss of vision in her right eye and I will return to this in more detail later. It is sufficient to say at this stage that the evidence demonstrates that the plaintiff does have markedly reduced vision in her right eye, the question for me to determine being whether this is causally related to the motor vehicle accident or not.
5.As a separate complaint, the plaintiff said that her upper right eyelid dropped when she was tired. This dropping was not associated with pain just a heaviness and a pulling feeling on the eye.
6.Similarly the plaintiff complained of a loss of hearing in her right ear after the accident and a loss of smell, complaining not to have been able to smell gas and yet she could smell food (T47).
7.Next the plaintiff complained about a pins and needles sensation in the back of her head and sometimes in the forehead.
8.She then went on to describe the choking sensation that she experienced. The plaintiff has had this symptom investigated by a number of specialists but none has been able to explain it. The plaintiff said that she experienced this sensation intermittently upon rising.
9.The plaintiff then testified that she experienced pain in her right shoulder on a daily basis. She described the pain as being sharp and associated with "needles" and "numbness". An effect of this is that she cannot lift her right arm above shoulder height and she explained that she is right‑handed dominant.
10.The plaintiff said she has similar problems in her left foot particularly about the ankle and this is associated with her walking with a limp where she favours and limps on her left side. She complains of a swelling in her left ankle and the photographs, exhibit 7, certainly seem to indicate if not a deformity of the left leg, then a changed or altered appearance of it when one compares it with her right leg, especially at the region of the ankle and lower left shin.
11.The plaintiff described difficulty with sleep, nightmares and fright occasioning her to run to her de facto's husband's bed for comfort (they having begun to sleep apart since her accident by reason of the fact that she was a light sleeper and any movement against her caused her pain).
12.Finally, the plaintiff described emotional difficulties which caused her to seek psychiatric assistance.
These injuries described by the plaintiff, most of which are supported by, and well documented in the medical reports (with a couple of exceptions that I will return to later) have had a severe impact on the plaintiff's life. She described her life now as being that "everything is falling apart with me". She did not think she would be able to live independently. She had difficulty walking. She could not do the shopping or the cleaning of the house. She could wash some of the clothes but not hang them up. She could iron a little, explaining that lately she broke one of her irons. She can do some gardening but she cannot squat. She can walk but not far and has to wear high heels of the thick solid type. She has difficulty walking up and down stairs, climbing ladders, lifting and the sexual side of her relationship with her de facto husband is non‑existent. She is fearful as a passenger in a motor vehicle. No longer does she have any recreational activities and does not socialise. She has lost confidence and believes that she has an impaired intellectual function. She now forgets things. She needs help with the activities of day‑to-day living.
Medical opinions and prognosis
Scarring
In her report previously referred to Dr Fiona Wood wrote:
"This lady is always going to have significant scarring. However, I believe this could be improved. Therefore she has progressed to the degree where assessment of her disability can take place. In percentage term, (sic) with respect to scarring only, she has scars over 4% of her body surface area on the non‑face of which is severe, in addition to the areas on her lip and nose, which is approximately 10% of the facial area. (sic)
I believe that should the patient wish to pursue improvement of these scars, then she will require hospitalisation as a day case for scar revision and injection of steroid. She will require follow‑up reviews with the scar management strategies.
Although I believe that the scars can be improved, she will always have severe scarring. In such a situation I think the psychological impact should also be considered."
There was no evidence led before me by the plaintiff as to whether she intended to have the scar revision treatment recommended by Dr Wood and no evidence led as to the likely cost. Apart from this, a number of the other medical practitioners who have seen the plaintiff have noted the severity of her scarring, for example Dr John Bell, Dr Desmond Williams and Dr Andrew Harper.
Headaches
The plaintiff's treating general practitioner, Dr Sam, noted the plaintiff's frequent complaints of headaches in the frontal and occipital regions. The plaintiff also complained to Dr Bell about headaches on the right side of her head and face. She does not appear to have complained of headaches specifically to Dr Harper although he does of course relate a history taken of a complaint of continuous pain. She does not appear to have complained of headaches to either of the psychiatrists who have assessed her and, as far as I can tell, she appears not to have made any complaints of headaches to the neurologists who have seen her. Nevertheless, having regard to the nature of the plaintiff's injuries and her presentation to her general practitioner I have little doubt but that she does suffer regular headaches as described by her to Dr Sam. As with many other of her symptoms, there is no suggestion that these are going to abate with time and accordingly, it would seem that the prognosis for this symptom is that it is more probable than not that the headaches will continue indefinitely.
Right‑sided symptomatology
Many of the medical practitioners have noted the plaintiff's complaints relating to her right‑sided symptomatology. Dr Goodheart observed in his report of 4 February 2003 that the plaintiff complained of a "pulling feeling" in the right eye and pharyngeal region which he thought would persist for the foreseeable future. He linked them too to the predominant soft tissue symptoms in the plaintiff's right shoulder and he thought that the plaintiff was suffering from a permanent disability in association with her cranial nerve function which included an alteration of vision and an alteration of sensation in the right side of the face. The plaintiff also complained to Dr Bell about a pulling sensation in her right side. Dr Harper noted that the plaintiff complained of right‑sided neck, shoulder and arm pain and that she experienced a sharp pain in the right periscapular area which spread to both her neck and right side of her face and also into the right arm which she experienced on a daily basis. She told Dr Harper that the pain dominated her thoughts. This pain was aggravated by elevation of her right arm, internally rotating her right shoulder, sitting and movements of the arm such as when eating. She said that she had constant right hand numbness but no weakness and stiffness in her right shoulder. Similarly, he noted her complaints of right ear and face symptoms and noted that she experienced a warm pulling feeling in the right side of her face which was with her constantly but there was no facial weakness or loss of sensation. Dr Harper thought that the plaintiff's right‑sided disabilities were permanent. Dr Sam further noted the plaintiff's complaints in this regard and it seems that at this stage of the plaintiff's history, no‑one can offer any further surgical intervention for the plaintiff and the only treatment available for her would appear to be analgesia which is prescribed. Dr Williams, however, thought that these symptoms along with other of the plaintiff's symptoms demonstrated a need for further ongoing physical rehabilitation programmes with swimming, yoga, stretching, gymnasium programmes and Pilates. Further he thought some intermittent ongoing physiotherapy was required. It appears to me that the plaintiff's right‑sided symptoms are likely to continue indefinitely and the rehabilitative type of programmes suggested by Dr Williams will ameliorate some of the plaintiff's discomfort and may assist her with greater mobility and pain management and are in that sense necessary but are unlikely to effect any significant reduction in her symptomatology.
Right eye
Whether or not the plaintiff lost vision in her right eye as a consequence of the motor vehicle accident is the single biggest controversy in this case. The plaintiff testified that before the accident she wore spectacles only when "… I do some work very close and reading but I have a brilliant vision in too far." (sic) After the accident she testified:
"My eyesight as well is deteriorated as well since my accident. When I was in hospital I told doctor that I can't see properly and then my partner said that – doctor and nurse said, 'You have a problem with your eye?' It seems I feel blind." (sic)
She went on to describe a loss of vision in both her left eye and her right eye following the accident with the loss of vision in her right eye being associated with the pulling feeling I have previously described. During her cross‑examination the plaintiff agreed that the first time she went to see an eye specialist was about 14 months after the accident. This was Dr Tandon. She was asked how long before she went to see Dr Tandon that she first noticed that she had problems with her vision and she answered:
"Before I saw Dr Tandon I went to Perth for the one who sell ‑ optometrist. Perth optometrist. I told the optometrist that I might need glasses because I could no longer read. Now I have a problem with my – maybe my glasses is no good already. So the optometrist checked me and this time she wants me to go to another optometrist for doing some – there's some apparatus there that she had not in her office, and then I think I went there two times and I got my glasses. So when I get my glasses after a few – it cost me nearly $400 with this one.
I told my optometrist that, 'Why is that the glasses is not doing very well in my right eye?' and the optometrist said, 'I want you to go this Dr Tandon.' I said, 'Why should I go to Dr Tandon and you already give me my glasses?' 'I just want you to go to Dr Tandon." So I went to Dr Tandon." (sic)
The plaintiff then confirmed that she was referred to Dr Tandon by an optometrist whom she saw not very long after the referral. Further cross‑examined about when she first complained of loss of vision to anybody the plaintiff said that she had complained of loss of vision while she was in hospital and said that she mentioned it to Dr Annear (in Sir Charles Gairdner Hospital).
The difficulty with this testimony is that nowhere in the hospital record is there any complaint of loss of vision. Further, Dr Carroll testified that he had examined the records at Joondalup where the plaintiff was first admitted and noted that she was then conscious and did not complain of any loss of vision, something that he thought would have been immediately apparent if there was traumatic injury to the optic nerve of the right eye.
Dr Goodheart was clearly troubled in his diagnosis of the plaintiff's complaints of visual disturbance. In his report of 20 July 2002 he wrote:
"I have been unable to fully explain her symptoms of visual disturbance. I have not found definite clinical nor radiological evidence of damage to the optic pathways. The sensory disturbance in the left face and limbs suggest the possibility of damage to the right thalamus or pathways. Again I cannot see definite evidence of damage in this structure on the MR scan. This cannot be excluded, however."
In December 2003 Dr Goodheart noted that the plaintiff's visual acuity had deteriorated in the right eye when compared to his previous examination of January of that year but she had not gone on to develop additional symptoms of ptosis or ophthalmoplegia to suggest a significant neuromuscular disorder. He arranged for the plaintiff to undergo a further cranial MR scan looking particularly at the right optic nerve. By the time he testified on 9 December that scan had been done on 5 December 2003 and Dr Goodheart had had the opportunity to examine it. He said that:
"Basically, I've not found any change in the optic pathways when compared to previous studies. There is a zone of damage adjacent to the right orbit around the frontal lobe, so if we have brain sitting close to the orbit, there is an area of damage which would be consistent with previous head injury, but that does not appear to have changed.
Right, and that being the finding on the MRI is that consistent or otherwise with reduced visual acuity in the right eye?‑‑‑I think that the change that I just described, I wouldn't have thought would be directly related to reduced visual acuity.
So what do you put the visual acuity reduction in the right eye down to? Some orbital problem, something with the orbit, did you say?‑‑‑Yes, with the lens or the retina.
Yes‑‑‑I know that the ophthalmologist is suggesting that it might be a progressive problem with the optic nerve, which is more in my territory. I have yet to establish that, but there's no doubt I would need to continue to monitor this symptom."
At the end of Dr Goodheart's testimony I was left with the distinct impression that absent any other explanation for the plaintiff's reduced vision he could only conclude that it was caused by the accident.
The evidence of the ophthalmologist Dr Tandon was taken de bene esse and her report of 11 July 2003 came into evidence as exhibit 1. The report of her locum, Dr Paul, of 5 March 2003 came into evidence as exhibit 2. Dr Paul's report is interesting for its choice of language:
"In summary the findings are one of impaired right optic nerve function demonstrable both clinically and on visual field assessment. The left optic nerve also has a pale appearance to it, however the visual fields in this eye have now improved. Such changes could be consistent with intracranial injury, in which the visual pathways have been damaged or evoked potentials, which would ascertain the degree of impaired conduction along the visual pathways. We will review her again in two months time whereupon we will reassess her and decide whether it is appropriate to perform visual evoked potentials on her."
Dr Tandon's report previously referred to went a little further:
[The plaintiff] underwent formal electrodiagnostic testing on the 30th May 2003. This showed normal pattern ERG tracings, indicative of normal retinal function. She did however have abnormal visual evoked potentials in both eyes, much more markedly in the right eye, which is consistent with impaired conduction and a reduction in the number of optic nerve fibres subserving central and paracentral vision.
These changes are also indicative of damage to both optic nerves, more markedly in the right than the left. The client has therefore suffered a visual impairment as a result of her injuries sustained in the accident, and her percentage disability in the right eye is 80% and the left eye 30%."
Dr W M Carroll is a neurologist who also holds the Degree of Doctor of Medicine. A particular field of interest for Dr Carroll is the optic nerve. He was an impressive witness. In his opinion the plaintiff's visual impairment is of long standing and he explained why. As his report of 22 August 2003 so succinctly puts it:
"I believe [the plaintiff's] visual impairment is of long standing and relates to amblyopia consequent upon the mild heterophoria that she exhibits. There is no appropriate neuroophthalmological abnormality to clinical examination to corroborate a traumatic optic neuropathy reducing the visual acuity to 6/30. As I have already indicated below, the electrophysiological changes described by Dr Tandon, having been performed at Sir Charles Gairdner Hospital, were found bilaterally and are therefore strongly suspicious of defocusing or reduced illumination consequent upon poor fixation during the test procedure."
In his evidence Dr Carroll accepted the propositions put to him in cross‑examination that in ordinary everyday life an amblyopia of long standing duration would become manifest in either a formal or informal testing situation. Obviously in a formal testing situation where the patient submitted to examination by an optometrist the problem would become manifest and I interpolate, it would seem that that is precisely what happened with the plaintiff. The other informal means of discovery are more difficult to explain in the circumstances of the plaintiff's case in that as the plaintiff's counsel put it to Dr Carroll during his cross‑examination, if the plaintiff was right‑sided dominant and would therefore sight up the barrel of a gun with her right eye, her defect in vision with her left eye closed would have become apparent. So too it would have become apparent if she looked through a keyhole with her right eye, and a number of such scenarios were put to Dr Carroll all of which he agreed would result in an informal manifestation of the amblyopia. The difficulty is that the plaintiff never gave any evidence that she had ever self‑tested. She gave evidence of needing glasses for close up work but said that her long distance vision was very good but we simply don't know if this was a long distance vision through one eye or through two, and whilst it is difficult to imagine an amblyopia not being detected in a child coming through the Australian education system let alone obtaining a motor driver's licence, there was no evidence of the plaintiff having undertaken an examination to obtain a motor driver's licence in Western Australia (if she did she never got one – evidence of Mr Mann at T153) and in the end I was left in the choice between the experts with having formed the distinct impression that Dr Goodheart's attribution of cause of the loss of visual acuity to the motor vehicle accident was given somewhat diffidently and largely influenced by his acceptance of a history which suggested no previous visual difficulty, and of having given insufficient weight to the lack of any complaint of loss of visual acuity in any of the clinical notes of any of the treating doctors of the plaintiff whilst she was in hospital, or indeed until she was referred to an ophthalmologist by an optometrist. Similarly, I thought Dr Tandon too ready to attribute cause to the accident based on the same history and I felt that her evidence lacked scientific precision in explanation of the mechanism by which the optic nerve was damaged having regard to the fact that none of the electrodiagnostic testing of the optic nerve suggested any particular change in its structure.
Dr Carroll's opinion on the other hand was persuasive, and I accept it in preference to any contrary view. To the extent that this involves rejecting the plaintiff's testimony that she did complain of reduced visual acuity whilst still in hospital then I do reject it because I formed the distinct impression that it was an after the fact rationalisation of her condition with a judgment and recollection clouded and overtaken by what were at the time much more significant problems for her. There is some support for this analysis from the evidence of the plaintiff's de facto husband Mr Mann who was specifically asked when he first became aware of any problems with the plaintiff's eyesight after the accident and he answered:
"Yes. I'm just trying to find out specifically when it happened. It was – particularly in those early 3 months, a lot of it was priority, you know, it was priority to get her moving, to help look after her own wellbeing and she was complaining of various ailments, including her vision and then I believe she mentioned it to one or two doctors and they mentioned in return that, 'Let's see how we go.' Because of the haematoma ‑ ‑ ‑
… It would have been probably towards the 6‑month mark that I started to notice it and that came with documents and just general watching TV and those sorts of things and she was very insistent then about you know, she couldn't see this and she couldn't see that or this was blurry or this was moving." (T196)
Right eyelid dropping
To some extent this has been dealt with above. However, Dr Goodheart noted it as a separate complaint and thought the condition permanent. The plaintiff's complaints in this regard were noted too by Dr Bell and Dr Harper. I accept this is what the plaintiff feels but none of the experts observed any ptosis (Dr Goodheart, Dr Carroll). I accept that the sensation is more probably than not a permanent symptom caused by the accident.
Loss of hearing and sense of smell
Dr Samson Dean is an otolaryngologist. He conducted audiometric testing of the plaintiff and found that the plaintiff had normal hearing in both ears. As far as the plaintiff's complaint of the loss of the sense of smell was concerned he noted that there was evidence of nasal injury resulting in some scarring and thickening of the nasal septum but that her throat and larynx were within normal limits. Later when reviewed and comprehensively reported upon by a number of other doctors the plaintiff appears to have made no further complaint about an alteration to her sense of smell and, as she could smell and taste food it would seem that this is more of a perception than a reality and in this regard neither of the psychiatrists have commented upon it. Accordingly, the evidence suggests that the plaintiff has not sustained a loss of hearing in her right ear as she claimed nor any diminution to her sense of smell.
Pins and needles
As a separate head of complaint, the plaintiff does not appear to have dwelt upon this with any of the doctors she has seen. Generally speaking her complaint about an altered sensation in her head relates to a feeling of numbness which she says runs up the right side of her face and neck and this has been well documented by a number of the medical practitioners who have seen her so it may be that the pins and needles sensation is a precursor or part of the feeling of numbness that she experiences at various parts of her head but this was not clear on the evidence of the medical experts.
Choking sensation
The plaintiff has described this choking sensation to most of the doctors she has seen. It clearly troubles her. For example, as she reported to Dr Bell who noted:
"Her worst ongoing aches are the aches going from the right arm and right shoulder up into the right side of her neck, giving her a choking sensation, as if she is being strangled around the neck. It bothers her swallowing and she did have investigations with a barium swallow, which was normal."
The barium swallow was supervised by Dr Dean who reported:
"She also had barium swallow x‑rays which showed normal anatomy but there was some mild gastro oesophageal reflux and this can cause the choking sensation that she described. For this she was prescribed Somac 40mg daily to be taken for at least several months. Somac is an acid reducing drug which reduces the irritation from the gastric juices during reflux."
Dr Harper noted that the plaintiff reported the choking feeling in her throat to him, also noting that it was described as a "choking and a strangling feeling in her throat with associated neck stiffness". She told Dr Harper that this was constant and only obtained relief from this feeling when she was able to sleep. In court however the plaintiff said that she experienced this sensation intermittently upon rising.
None of the specialists have been able to explain this sensation that the plaintiff describes but I have no doubt that she experiences this difficulty or that it is likely to continue.
Right shoulder pain
This symptom is well reported by most of the medical specialists who have seen the plaintiff. The plaintiff reported to Dr Harper that she had:
"Right‑sided neck, shoulder and arm pain. She experiences a sharp pain in the right periscapular area which spreads to both her neck and the right side of her face and also into the right arm. She experiences pain on a daily basis. She says the pain dominates her thoughts. Pain is aggravated by elevation of the arm, internally rotating her shoulder, sitting and movements of the arm such as when eating. She gets relief from medication and sleeping. She has constant right hand numbness but no weakness. She has shoulder stiffness."
Dr Bell noted the same difficulties as did Dr Williams. The prognosis for these complaints is poor and the condition is thought to be permanent. The symptoms are capable of relief by medication and rehabilitative programmes such as physiotherapy, exercising and the like previously commented upon.
Left leg and ankle
Again, the plaintiff's left leg and ankle complaints have been well documented by the medical specialists. Dr Williams reported on 25 March 2003:
"In the left leg she has some varus alignment of the left tibia and ankle stiffness and functional limitations and the disability is 20%, expressed as a percentage disability of the leg below the knee, reflecting the alignment of the tibia and the ankle restriction."
Dr Bell likewise thought the plaintiff's disability was 20 per cent expressed as a loss of the left leg below the knee although on examination he thought the plaintiff had a full range of movement of her ankles on both sides but that her left knee lacked 15 degrees of full flexion and that she was tender diffusely around the left patella tendon. Dr Bell noted the plaintiff was mildly tender over the left shin but that there was no heat or swelling around the left leg although he did observe some muscle wasting in the left lower limb and, of course, the extensive scarring.
Dr Harper noted the plaintiff's complaints of left knee stiffness brought on by sitting but improved by movement. He also noted her complaints of numbness in her left shin and left ankle pain which occurred when the plaintiff climbed stairs. Dr Harper thought that the x‑rays showed that there was a mild varus deformity of the tibia which he confirmed upon examination but he thought both ankle movements were within normal limits notwithstanding that he had also observed that the plaintiff had difficulty squatting which he saw being done asymmetrically "due to discomfort in her left knee and ankle". Dr Thrum's opinion was somewhat different. He assessed the plaintiff's disability of the left lower limb at 5 per cent and he disagreed with any observation that there was a varus deformity. And, his prognosis for the plaintiff's left lower limb was very good. In the end result however I thought Dr Thrum's opinions gave inadequate weight to the history of the plaintiff's complaints and the nature and extent of her injuries and I accept the evidence of Drs Harper, Williams and Bell in respect of their assessment of the plaintiff's left leg and ankle condition.
Sleep disturbance etc.
The plaintiff's complaints about sleep disturbances and the like are likewise well documented in the medical record with one relatively small exception. In her testimony the plaintiff described frightening nightmares which caused her to run to the bed of her de facto husband for comfort and solace, and yet to her psychiatrist, Dr Ng, she denied nightmares (his report of 3 November 2003 refers). She did however report sleep disturbance to Dr Ng and to her general practitioner Dr Sam and to Dr Harper. Mr Mann when asked about the plaintiff's sleep disturbances testified:
"I would think probably once every week, maybe sometimes once every two weeks, she comes to, you know, where I sleep and, you know, she's obviously having nightmares and she doesn't sleep well when we tried to sleep together, you know, earlier on through back pain and through nightmares and things like that."
I have no difficulty accepting the plaintiff's complaints in this regard and whilst none of the medical practitioners has specifically addressed the question of the plaintiff's prognosis for sleep disturbance and the like, it is of long standing duration now and unlikely to improve and accordingly I am of the opinion that she has a permanent disability in this regard.
Depression, anxiety, etc.
Dr Sam noted that the plaintiff had major clinical depression, stress, anxiety and chronic adjustment disorder, diagnoses provisionally confirmed by Dr Harper who thought the plaintiff required ongoing psychiatric care best provided by her treating psychiatrist Dr Ng. Dr Loke diagnosed the plaintiff as suffering from an adjustment disorder with anxiety and depression of mild to moderate severity. Dr Loke was of the opinion that the plaintiff had sustained a permanent psychiatric impairment which would require ongoing management by the plaintiff's treating psychiatrist Dr Ng. Finally, Dr Ng, the plaintiff's treating psychiatrist, had been treating the plaintiff for psychiatric complications of her accident she having been referred to him by Dr Sam and seen initially on 22 July 2002. His report of 3 November 2003 documents an ongoing increasing descent into depression and anxiety punctuated by continual sleep disturbance and insomnia which caused Dr Ng to try different regimes of medication until he found that which best suited the plaintiff.
Dr Ng regarded the plaintiff as having sustained a major depressive disorder of moderate severity which would require ongoing psychiatric treatment with both antidepressant medication and psychotherapy for at least the next one or two years. Whether the plaintiff will require treatment beyond that time he thought would depend on her progress during that time. In his report previously referred to he wrote:
"I would suspect that if she should continue to have ongoing physical symptoms for the foreseeable future, there will be stress from that which will drive her psychiatric problems. That being the case, I would anticipate that even though she will improve with psychiatric treatment, she will be left with residual psychiatric symptoms which will not go away for as long as her physical symptoms are there.
…
[And after treatment] She will be left with permanent mild and regular psychiatric symptoms which will cause her subjective distress, and on occasion she will be able to distract herself from this distress. From a psychiatric point of view there will be interference with functioning in day to day situations and exacerbation of symptoms will cause her more grief.
The prognosis for improvement is good, however the prognosis for total abolition of her psychiatric symptoms is poor in that I believe she will be left with permanent residual psychiatric symptoms as alluded to above because of ongoing stress from her physical problems."
Having regard to the plaintiff's presentation as a witness in court and all of the testimony of the medical experts I have no difficulty at all in concluding that the plaintiff has suffered and continues to suffer and will continue to suffer for the foreseeable future from considerable emotional disturbance which will require ongoing treatment from a psychiatrist.
This then deals with the plaintiff's complaints in respect of which she testified during the course of the trial. There was a considerable body of evidence put before me however which describes further difficulties which, whilst alluded to by the plaintiff were not specifically addressed by her in her testimony and I will now deal with these in turn.
Dental injuries
In the accident the plaintiff sustained bilateral fractures of her maxilla (upper jaw). After the accident the plaintiff found that her upper partial denture did not fit properly and Mr Michael Down, an oral and maxillofacial surgeon reported that this moved the alignment of her natural teeth such that the denture did not fit necessitating a new denture. Mr Down was also of the opinion that the fractures of the upper jaw explained the numb feeling complained of by the plaintiff in her upper front teeth. Mr Down further noted that the plaintiff had suffered two broken teeth in the accident which required extraction but which could be attended to by a general dental practitioner without the intervention of an oral and maxillofacial surgeon. Mr Down's prognosis was that "There may always be altered sensation in her upper front teeth."
Intellectual deficit
During the course of her evidence the plaintiff complained generally of a diminution in memory and organisation of thought. Mr Mann testified of his observations to similar effect. Following advice from psychiatrists the plaintiff's solicitors commissioned an examination and report from a neuropsychologist, Ms Leonie Coxon. Ms Coxon has worked with head injured people for some 20 years and has considerable experience in the neuropsychological assessment of head injured people. Following a comprehensive testing and examination it was Ms Coxon's opinion that the plaintiff had suffered a significant number of neuropsychological deficits as a result of her motor vehicle accident. Whilst noting that the plaintiff's emotional state was poor which she thought could lower her performance in neuropsychological testing to a degree, this did not fully explain her pattern of cognitive deficits. Ms Coxon estimated that the plaintiff's level of intellectual functioning was at least 20 to 30 points below that which she would have expected having regard to the history she had been given of the plaintiff's secondary and tertiary education and her stable work history.
For my part having observed the plaintiff and again having heard all of the medical evidence about her, I have little difficulty in concluding that the plaintiff has sustained a significant impairment to her intellectual functioning which is highly distressing to her and which in part explains the psychiatric difficulties so clearly observed by others, as commented upon above.
Assessment of damages
Non‑pecuniary loss
By reason of all of the difficulties occasioned to the plaintiff on account of the injuries she sustained in her accident, the plaintiff has suffered, continues to suffer and will for the foreseeable future be suffering from severe and marked deficits in her physical and emotional health. The accident has condemned her to a life of dependency and despair. She is desperately unhappy. She will never again function at anywhere like the level she did before her accident. In my opinion her injuries represent 70 per cent of a most extreme case – a quantification I am directed to make pursuant to the provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943. The maximum amount payable is $249,000 and hence the award for non‑pecuniary loss will be the sum of $174,300. Having regard to this award no deduction applies.
Past and future economic loss
Elizabeth Kerrigan is the manager of Corporate and Financial Development of the Autism Association of Western Australia Incorporated. She confirmed evidence generally given by the plaintiff and her de facto husband, Mr Mann, that they were employed as a respite house couple from 10 February 1998 to the date of their resignations on 26 July 2002, they having entered into contracts of employment on 4 February 1998. She further confirmed that following her accident the plaintiff was given leave without pay for six months from 23 February to 31 August 2001. The plaintiff's circumstances covering the period from 31 August 2001 to the date of her resignation on 26 July 2002 are adequately canvassed in the evidence of each of the plaintiff and Mr Mann and the plaintiff's niece, Ms Janet Duapa Greer. They are not controversial and need only a brief summary. Following the plaintiff's accident the Autism Association was very supportive of the plaintiff and her de facto husband, readily granting the plaintiff six months leave without pay and providing alternative assistance for Mr Mann to enable him to carry on with the arrangement that they had entered into. As the end of the six months leave without pay loomed, the plaintiff and Mr Mann approached their general practitioner to see if he would certify the plaintiff fit to resume duties so that they would not lose their position. They obtained a certificate and basically the plaintiff and Mr Mann were able to get by with the help of friends and in particular with the assistance of Mrs Greer. However, finding they could no longer manage and with Mrs Greer having a young family of her own, the resignation of the plaintiff and Mr Mann from their joint employment was inevitable.
Ms Kerrigan explained the make‑up of the respite house couples' salary package. The allowance for each couple was $60,000 per annum divided equally between the couple. The way in which this was broken up was $30,000 for each person which in turn was broken up into a cash component of $15,000 per annum and a benefits component of $15,000 per annum upon which the Association paid fringe benefits tax. The benefits part of the package was the free use of a four bedroom, two bathroom house and a fully funded motor vehicle. The motor vehicle was available for full private use within 100 kilometres of the Central Post Office at Perth although there was provision for the vehicle to be used for journeys outside that area with the approval of the Association provided that the users paid for the additional petrol. There was also provision for superannuation in the non‑cash component part of the salary package of $15,000 per annum.
Presently, Ms Kerrigan advised, the cash component for couples is now $36,000 per annum (as from 1 July 2003) the FBT component remaining the same.
Clearly, the plaintiff enjoyed this work and, equally clearly, she is no longer fit to do it. Indeed, in my opinion, on the basis of the medical evidence presented, she is not fit for any type of gainful employment and is unlikely ever to return to any form of gainful employment, such is the nature and extent of her injuries. In this regard I accept the evidence of Dr Harper.
No argument was addressed to me that it would be inappropriate for me to calculate the plaintiff's economic loss from a base which included the cash component of her salary and the benefits which accrued to her in addition to her salary such as free accommodation, provision of a motor vehicle and the like. Nor was I provided with any evidence as to whether there should be any and if so what deduction from the cash component of the salary to take account of the food and other expenses as would have been provided for the autistic children in respite care with the plaintiff each week. For the past therefore there are two periods requiring separate calculations they being from 23 February 2001 until 31 August 2001, a period of 27 weeks and one day during which the plaintiff's loss was the cash component of her share of the salary package for herself and Mr Mann namely $15,000 per annum or $288.46 per week. The copies of the plaintiff's financial records produced into evidence as exhibit H show a slightly different amount of taxable income for the plaintiff of $15,404 for the year ended 30 June 2000. The slight difference between these figures was not explained by Ms Kerrigan nor anyone else during the course of the hearing and it seems to me that the notice of assessment of taxable income by the Australian Taxation Office is the preferable source for calculation of the plaintiff's past economic loss. $15,404 per annum is $296.23 per week. Tax on $15,404 is $1,598.68 or $30.74 per week leaving $265.44 from which a further deduction of 1.5 per cent of the plaintiff's taxable income has to be made to take account of the Medicare levy. In this case this is $231.06 per annum or $4.44 per week and hence the plaintiff's net weekly loss during this period was $261.
The plaintiff's claim in the submissions of her counsel was at the rate of $237 net per week, however I prefer my calculations, supported as they are by the notice of assessment for the year ended 30 June 2000, the last full year of ordinary income earned by the plaintiff before her accident in February the following year and in respect of which the evidence disclosed there was no change in the plaintiff's entitlements under her contract. $261 per week for 27 weeks one day equals $7,084.20.
The next period for calculation is from 27 July 2002 (the date of the plaintiff's retirement) until judgment and this period requires two calculations, the first to 30 June 2003 being calculated out at a salary of $30,000 gross per annum and the second, from 1 July 2003 to the date of judgment to be calculated out at a gross salary of $33,000 per annum to take account of the evidence of Ms Kerrigan of the increase in the cash component of the salary as noted above.
The calculations for the first of these two periods are that for an economic loss equating to $30,000 per annum the weekly sum is $576.92 per week or $82.42 per day. The period in question is 339 days and hence the loss, gross, is $27,940. Tax on $576.92 per week is $103.46 per week plus one and a half per cent of $30,000, namely $450 or $8.65 per week making a total deduction for tax and Medicare levy of $112.11 per week which leaves $464.81 per week net of tax and Medicare levy which, for the period in question, gives a total net loss of $22,510.08.
The next period from 1 July 2003 to the date of judgment is 220 days which at $33,000 per annum gross is a gross daily amount of $90.41 from which has to be deducted tax at $17.21 per day and the Medicare levy at $1.36 per day, a total deduction of $18.57 per day leaving a net daily income of $71.84 which for 220 days is $15,804.80.
Interest on past economic loss
Interest on past economic loss claimed by the plaintiff is to be calculated at half the Supreme Court rate averaged over the whole period, that is to say, from 23 February 2001 until the date of judgment. The total amount of economic loss is the sum of:
$7,084.29
$22,510.08
$15,894.80
Total$45,399.17
which at 3 per cent for 2.95 years is $4,017.83.
Past loss of superannuation
Again, no argument was addressed to me on this point but the parties appeared to have accepted between themselves that superannuation was only payable on the cash component of the plaintiff's salary at 8 per cent per annum until 30 June 2003 when it became 9 per cent per annum, and hence three separate periods of calculation are required. These are set out below. Again no argument was addressed to me on the point but it appears to be accepted by the parties that the calculated amount of what would have been an employer's contribution to a superannuation fund on behalf of the plaintiff is to be compensated in the hands of the plaintiff at that sum less 30 per cent to take account of the fact that it is a future benefit being received today, a calculation said to be in accordance with Jongen v CSR Ltd (1992) A Tort Rep 81-192.
The first period is from 23 February 2001 to 31 August 2001, a period of 27.14 weeks and the plaintiff's gross weekly cash salary was $296.23. 8 per cent of this amount is $643.18.
For the period from 27 July 2002 to 30 June 2003, a period of 48.43 weeks, the plaintiff's gross weekly cash salary was $296.23, 9 per cent of which is $1,291.18.
For the period from 1 July 2003 until judgment is a period of 31.43 weeks for which the plaintiff's gross weekly cash salary was $316.47 per week 9 per cent of which is $895.20.
The total amount of superannuation which the plaintiff would have received had she been able to continue in employment therefore was the sum of $2,829.56. By "received" I mean paid into an approved superannuation fund for the future benefit of the plaintiff. 30 per cent of this amount is $848.87 which leaves a net loss of past superannuation benefits of $1,980.69.
Insofar as this calculation is concerned I will leave to another day for argument and evidence a consideration of whether or not a particular superannuation fund (viz an insured fund) makes provision for the payment out of that fund upon a total and permanent incapacity, of the full amount of the contributions which would have been made to the fund on behalf of an injured plaintiff. Certainly I am aware of some fund deeds which do make such a provision but these would have to be dealt with on a case by case basis.
Future economic loss
Assuming in the absence of any evidence to the contrary that the plaintiff would have continued in employment until the age of 65 years in accordance with evidence given both by the plaintiff and Mr Mann, had she not had her accident she would have a little over 17½ years future employment. In my opinion, again in the absence of any evidence to the contrary, the plaintiff and her de facto husband, Mr Mann would have continued as respite carers for the Autism Association of Western Australia Inc for the foreseeable future, warranting a finding that it is more probable than not that she would have continued to earn the same income through until retirement. I have already found that she is completely unfit for any form of employment whether permanent or part time with the probabilities being that she is unlikely ever to return to any form of gainful employment.
At $33,000 per annum being the present day value of the plaintiff's lost earning capacity there is a gross weekly loss of $632.87 per week from which needs to be deducted for tax and Medicare the sum of $129.99 leaving a net weekly loss of $502.88. To this I apply a multiplier on the 6 per cent discount table of 572.35 and arrive then at the sum of $287,823.37 as the sum representative of the present day value of the plaintiff's future economic loss. From an award under this head the plaintiff's counsel foreshadowed a deduction for contingencies of 10 per cent but again, no argument was addressed to me on this point by either side. As I have remarked often enough elsewhere, I have never understood why there should be any deduction for contingencies for the so‑called "vicissitudes of life". Surely all the misery that could befall the plaintiff has already befallen Mrs Zayas. And what is the justification inherent in a deduction for contingencies of such a pessimistic outlook on life? Why should not the law regard the future as probably containing a bit of a mixture of the good and the bad which generally speaking balances itself out. Ordinarily, a person who suffers more than their share of bad luck is considered extremely unfortunate – not the norm. Before her accident the plaintiff was obviously a person who loved her job and who was good at it. Why should it not be assumed, for example, that she would not have been offered some form of promotion into running a hostel?
In my opinion there is no justification in logic for any deduction for so‑called contingencies (and see the discussion by Professor Luntz (infra) par 6.4.5).
Lost future superannuation
Again, without there being any argument addressed on the point, the parties appear to have accepted that the only superannuation to which the plaintiff was entitled was a sum calculated on the cash component of her salary namely $317.31 per week, 9 per cent of which is $28.55 per week. Applying the same multiplier as previously the amount in question is $16,340.59, less 30 per cent of $4,902.18 leaves a present day value of the lost future superannuation benefits to which the plaintiff would have been entitled had it not been for her accident in the sum of $11,438.41. Again I accept the submission, as with past lost superannuation benefits, in the absence of any arguments to the contrary and an apparent acceptance by the defendant of his liability in this regard.
Past gratuitous services
The plaintiff seeks an award for the gratuitous services rendered to her by her de facto husband Mr Mann and her sister and niece for three periods being for three months from the date of the accident until 22 May 2001 firstly, from 22 May 2001 until 21 May 2002, secondly, and finally, from 22 May 2002 until judgment. The claim is in respect of gratuitous services rendered for the maximum allowable 40 hours per week in the first period, 28 hours per week in the second period and 7 hours per week in the third period. The rate claimed is $15 per hour. Interest is sought on the total sum.
The defendant did not dispute that the gratuitous services were rendered over the time and in the manner deposed to by the plaintiff's witnesses nor did he dispute the rate claimed. The only issue raised by the defendant in respect of this claim was in respect to the commencement of the period in which gratuitous services fell to be compensated at the instance of the defendant. The defendant submitted that there should be no award in respect of gratuitous services rendered whilst the plaintiff was in hospital until her discharge on 12 March 2001. However, the claim in this regard was not of the Wilson v McLeay (1961) 106 CLR 523 type where there was a claim for the cost of visits to an injured plaintiff by close relatives and in respect of which there ordinarily needs to be some evidence that the visits by the relatives should be of some importance in the alleviation of the plaintiff's condition (at 528). This claim was made because of the evidence of Mr Mann (T148):
"Now during the time that Ms Zayas was in hospital you attended there, you have told us, every day?‑‑‑Yes.
Presumably the hospital staff were providing for all her needs?‑‑‑Yes and no. Yes, they were there for dressings, but we found very early in the piece that the staffing levels on that particular ward were very low, so we – [the plaintiff's sister] and I took over most of the personal care, toileting, etc, except for medication and dressings, but, other than that, between [the plaintiff's sister] and myself we took over all of the duties."
This evidence was not challenged in cross‑examination.
I have no difficulty at all in believing that in a run down public health system the plaintiff was unlucky enough to find herself in a ward where staffing levels were low and where over-pressed and anxious nursing staff would permit relatives and friends to perform services in their stead so that they might concentrate upon tasks requiring a higher level of skill and training. [And, in any event, Stephen J in Griffiths v Kerkemeyer (1977) 139 CLR 161 suggested that hospital visits are in no different category from any other form of gratuitous services.]
For the period following the plaintiff's discharge from hospital I have no doubt about the truth and accuracy of the evidence of Mr Mann given as follows:
"… to what extent did you assist your wife when she got home?‑‑‑I think it was just everything. When she came home she virtually couldn't feed herself, couldn't move, so I did everything from preparing the meals to wiping certain parts of her anatomy after she had finished toileting, and everything in between.
Was she confined to bed, or was she ambulating on her arrival home?‑‑‑As far as independent movements, she was confined to bed, and that's where both myself and [her sister] used to assist her, to put her onto a wheelchair and then, you know, move her either in for showering or move her around, just for the sake of getting her out of the four walls of the bedroom.
… For how long was she in this condition at the home and being moved around in the way you have talked? Perhaps we can just take it in stages: firstly, up until the end of April when her sister left, what condition was she in?‑‑‑She was still in – still being moved in a wheelchair by then, although there was some capacity to be able to stand assisted, you know, so that she could actually sort of like stand and then be sort of turned and then seated again, so we've pretty much got to that stage.
Well, when was it that she was able to walk with the assistance of any walking devices or assisted by you?‑‑‑I think that would have been probably 4 months, 3 and a half to 4 months."
And then in his evidence Mr Mann went on to detail the nature and extent of the assistance rendered to the plaintiff by him and other family members but mostly by him. Again, I have no doubt that the services were rendered in the manner and to the extent given in evidence by Mr Mann. If anything, I thought his evidence understated. Accordingly, the calculations are as follows:
1.From the date of the accident until 21 May 2001, 13 weeks x 40 hours per week by $15 per hour =$7,800.
2.From 22 May 2001 until 21 May 2002, 365 days x 4 hours per day x $15 per hour = $21,900.
3.From 22 May 2002 until judgment, a period of 594 days at 1 hour per day at $15 per hour = $8,910.
The plaintiff's submissions suggest that the sum for this period calculates at $16,950, however I prefer my arithmetic as set out above.
Hence the total allowance for past gratuitous services is the sum of $38,610.
Interest on past gratuitous services
The plaintiff claims interest on past gratuitous services at the rate of 4 per cent per annum. However, the correct rate is 3 per cent per annum being half the rate calculated on the whole amount for the whole period and the calculation is then $38,610 x 3 per cent per annum x 2.63 years = $3,046.33.
Future gratuitous services
The plaintiff claims an award for the gratuitous services which she will require in the future for the rest of her life based on her current need of an hour per day. On the evidence I think this is a conservative estimate which I have no difficulty in accepting. The plaintiff is almost 47½ years old and according to the Tables of Expectation of Life for Australian Females (1997 –1999) she has a future life expectancy of 35.87 years and the multiplier allowing compound interest at 6 per cent per annum is 756.6 (see Table 4C at p 697 of Luntz: Assessment of Damages for Personal Injury and Death, 4th ed) and the calculation is 7 hours per week at $15 per hour = $105 x 756.6 = $79,443.
The position in relation to contingencies in respect of future gratuitous services is in my opinion no different from that in respect of the calculation of future economic loss, indeed the authorities say that calculations of the cost of future treatment etc, are not subject to a deduction for contingencies: Bresatz v Przibilla (1962) 108 CLR 541.
Future medical expenses
The plaintiff claims the following future medical expenses:
1.Attendance upon her general practitioner once per month.
2.Attendance upon medical specialists four times per annum.
3.Attendance upon a physiotherapist or alternatively a therapeutic masseur once per month.
4.Health club membership.
5.Medication.
6.Hospitalisation for the removal of rods.
7.Travelling expenses to and from medical practitioners and the like.
8.Cognitive therapy rehabilitation.
Dealing with each of these in turn:
1.In my opinion the evidence does disclose that the plaintiff will, more probably than not, continue to consult her general practitioner on an average of once a month. The parties appear to accept that the average consultation fee for a general practitioner is $34 and hence the claim is in the sum of $7.85 per week, which I will allow. Using the same life expectancy multiplier of 756.6 the amount is $5,939.31.
2.In my opinion the evidence does not disclose that the plaintiff will require attendance upon medical specialists on an average of four times a year for the rest of her life. In my opinion, the evidence suggests a lesser rate of attendance upon medical specialists bearing in mind that the orthopaedic surgeons, the neurologists and the like can do nothing further for the plaintiff, and the only evidence of a continuing need for medical specialist attention is from the psychiatrists. I suggest that averaged over the period of the rest of her life an attendance upon a psychiatrist twice a year is established by the evidence. The parties appear to accept that the average consultation fee for a medical specialist is $85 and hence the weekly allowance is $3.27 per week. Using the same multiplier as before the amount is $2,474.08.
3.In my opinion the evidence certainly discloses that the plaintiff requires physiotherapy treatment and the sooner that this is undertaken the more likely there is to be an improvement in her physical and emotional well being. Again the parties appear to accept that the average consultation fee for a physiotherapist (or therapeutic masseur) is $40 but in my opinion the evidence does not disclose that the plaintiff is likely to require this treatment for the rest of her life. Rather I think it will be needed only for the next few years and I am prepared to make an allowance of $9.23 per week under this head for the next five years. The 6 per cent multiplier for five years is 226 and the sum if $2,085.98.
4.Likewise I think it unlikely that the plaintiff will need a health club membership for the rest of her life. She certainly needs it for a period from the immediate future to the medium or long-term future and I think if I make an allowance for the next 20 years that is adequate for the exigencies of the case as established by the evidence. Evidence was called that the average annual fee for health club membership at a health club relatively close to the plaintiff's residence is $565 or $10.86 per week. The 6 per cent multiplier for 20 years is 616 and the sum if $6,689.76.
5.The plaintiff claimed for the cost of medication until she attained the age of 65 (and hence became eligible for the pension and reduced pharmaceutical expenses) at the rate of $43.20 per week in respect of the drugs that the evidence disclosed she was taking namely, Panamax, Oruvail SR, Tolvon and Voltaren. However the Pharmaceutical Benefits Scheme makes provision for a safety net of $708.40 per calendar year and accordingly this should be recognised in the judgment. After the safety net level is reached all further prescriptions cost $3.50 each.
Accordingly, I propose to make an allowance of $708.40 per annum and then do my best to estimate how frequently thereafter prescriptions will be required for each of the prescripted drugs of Oruvail, Tolvon and Voltaren (Panamax being available across the counter as far as I understood the evidence) which I estimate all up would require 20 prescriptions per year or $70 per annum, the total therefore being $778.40 per annum or $14.97 per week. The multiplier through to age 65, as used previously in this judgment is 572.35 and hence the sum is $8,568.08.
6.I accept that the plaintiff will probably have the rods inserted in her right humerus and left tibia removed the cost for which estimated by Mr Bell at $5,000 was not challenged by the defendant and which I accept.
7.I accept that the plaintiff will need to travel to and from her medical practitioners and the pharmacist for the rest of her life and that her travelling expenses should be estimated and allowed for. A claim of $2,000 is made by the plaintiff in this head but it appears to be calculated erroneously in my opinion on the basis of the distance between the plaintiff's residence and the general Post Office in Perth when the calculation is really in respect of the travel from her home to her general practitioner relatively close by, a pharmacist relatively close by and a couple of trips to a medical specialist each year. In all I think an adequate allowance for this is $500.
8.Finally, Ms Leonie Coxon testified that the plaintiff would benefit from cognitive rehabilitation therapy in order to assist her to understand her limitations and adopt behavioural changes which will assist her to adapt to her situation, for example, her reduced memory skills and the like. Ms Coxon testified that her services for cognitive therapy rehabilitation are $136 per visit and in the general run of cases 20 visits is usually what is recommended. I accept that the evidence establishes a need for these services to be rendered to the plaintiff and accordingly, there will be an allowance of $2,720 under this head.
Summary
Accordingly, there will be an award for the plaintiff under this head of claim in the sum of:
General practitioner consultations $5,939.31
Specialist consultations $2,474.08
Physiotherapy $2,085.98
Health Club membership $6,689.76
Medication $8,568.08
Operations $5,000.00
Travel$500.00
Cognitive rehabilitation $2,720.00
Total$33,977.21
Past medical expenses
The parties have agreed past medical expenses in the sum of $1,202.80 and there will be an allowance in this sum.
Conclusion
Accordingly, the plaintiff has established a claim for an award made up as follows:
Non‑pecuniary loss $174,300.00
Past economic loss $45,399.17
Interest on past loss $4,017.83
Past loss superannuation $1,980.69
Future economic loss $287,823.37
Lost future superannuation $11,438.41
Past gratuitous services $38,610.00
Interest on past gratuitous services $3,046.33
Future gratuitous services $79,443.00
Future medical expenses $33,977.21
Past medical services $1,202.80
Total$681,238.81
The parties having agreed that liability should be apportioned equally between them there should be final judgment for the plaintiff in the sum of $340,620.00 (rounded from $340,619.41).
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