Ali v Auguste & Anor [2014] QDC 272

DISTRICT COURT OF QUEENSLAND CITATION: Ali v Auguste & Anor [2014] QDC 272 PARTIES: FRQAN AL ALI (BY HER LITIGATION GUARDIAN ALI AL ALI) (Plaintiff) v EMILY ELIZABETH AUGUSTE (First Defendant) and AAI INSURANCE LIMITED (ABN 48 005 297 807) (Second Defendant) FILE NO/S: DIS 4193/13 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 3 December 2014 DELIVERED AT: Brisbane HEARING DATE: 9th – 10th October 2014 inclusive JUDGE: Ryrie DCJ ORDER: 1. Judgment for the Plaintiff in the sum of $151,641. 2. The Second Defendant pay the costs of and incidental to the action to be assessed on the indemnity basis. CATCHWORDS: DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – assessment of damages pursuant to the Civil Liability Act 2003 (Qld) Motor Accident Insurance Act 1994 (Qld) s 52 Civil Liability Act 2003 (Qld) ss 55, 61, 62 Civil Liability Regulation 2014 (Qld) s 3(b), sch 7 Allianz Australia Insurance Ltd v McCarthy [2012] QCA 312 - applied -- 1 of 15 -- 2 Ballesteros v Chidlow & Anor [2006] QCA 323 - applied Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 - applied Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 - applied Medlin v State of Queensland (1995) 182 CLR 1 - applied Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211 - applied COUNSEL: P. Rashleigh (For the Plaintiff) J. McClymont (For the 2nd Defendant) SOLICITORS: McInnes Wilson Lawyers (For the Plaintiff) Jensen McConaghy Solicitors (For the 2nd Defendant) Introduction [1] Ms Al Ali, the plaintiff in this matter, claims damages for personal injuries and consequential loss suffered by her as a result of a motor vehicle accident which occurred on 11 September 2011. Ms Al Ali had been walking on a footpath with her cousin, now deceased, when the vehicle driven by the 1st defendant mounted onto the footpath and struck the deceased causing her to propel some distance forward before finally hitting the ground. As a result of being struck, the deceased suffered multiple injuries and was bleeding heavily from her head. Ms Al Ali, who was walking with the deceased at the time, having witnessed the events so described, stayed with the deceased at the scene of the accident. She also viewed the deceased’s body as she remained on life support. That life support was subsequently turned off. As a consequence of the matters set out, Ms Al Ali, who was 12 years at the time, not surprisingly, suffered severe nervous shock and upset. [2] Liability being admitted, quantum with respect to damages, was the only issue at trial. [3] It was accepted by the 2nd Defendant, on the basis of the uncontroverted opinion of Dr Jan Ewing, Clinical Neuropsychologist, that Ms Al Ali has suffered a Post Traumatic Stress Disorder as a result of the traumatic event she witnessed on the 11th of September 2011. The 2nd Defendant accepts that Ms Al Ali has suffered some loss and damage as a consequence of the 1st defendant’s negligence. However, the 2nd Defendant does not accept that any such loss and damage should include an assessment of any amount for future economic loss and impairment of earning capacity, calculated on a global basis. The Applicable Law [4] The 2nd Defendant, being the relevant CTP insurer of the motor vehicle driven by the 1st defendant at the material time, is also responsible pursuant to Section 52 of the Motor Accident Insurance Act 1994 (Qld). [5] The assessment of damages is governed by the provisions of the Civil Liability Act 2003 (Qld) (‘CLA’) and the Civil Liability Regulation 2014 (Qld) (‘the Regulation’). -- 2 of 15 -- 3 The Relevant Injuries [6] On the 2nd October 2013, the plaintiff was assessed by Dr Ewing (Ex 1, Tab 1) as suffering from Post Traumatic Stress Disorder with dissociative symptoms, chronic severe. Dr Ewing also diagnosed her as suffering from a possible Persistent Complex Bereavement Disorder (not yet however recognised by the DSM-5). Dr Ewing assessed Ms Al Ali’s PIRS as 7% impairment of the whole person. The Consequence of the Injuries Upon Ms Al Ali [7] It would be trite to say that Ms Al Ali’s life has clearly been affected by the events which gave rise to her developing the psychiatric disorder (PTSD). The plaintiff, who is 15 years old now, gave evidence before me. She was born on the 27th January 1999 in Iraq. Her father had come earlier to Australia but eventually the family were able to follow him and she began living in Australia on the 24th of October 2007. The family moved to Kuraby where other family members were living at that time. One of those was the deceased who was close in age to the plaintiff and they quickly developed a very close relationship which she described (T1-31). She described the events of the 11th of September 2011 and the initial impact it had upon her having just witnessed the collision between the vehicle and her cousin (T1-32). Those descriptions (not challenged) were consistent with what she also described to Dr Ewing. [8] After describing how she initially felt immediately after the accident, Ms Al Ali told the court how she had continued to feel thereafter. She described having intrusive dreams, not being able to sleep alone and waking at 3 or 4am in the morning thinking about everything including her own future and why it had happened and how long she could go through it. She said after the accident she was suffering from nightmares but that she doesn’t ‘really’ suffer them anymore (T1-34). She says if she does have a nightmare now, that they are not as bad, ‘just normal’ (T1-39). Her thoughts had continued to be occupied by her (deceased) cousin and she felt sad and upset. [9] She then went on to describe how she was still having those types of difficulties including others. For example, she described how her schooling had been affected since the accident, that she wasn’t happy with the marks she was getting and felt after the accident, she ‘couldn’t think of anything or like – like my study and then – because I stopped’ (T1-39). She also felt her memory and concentration had been affected, that she has trouble remembering and her mind ‘is not with me’ while she is watching television or reading. She described having just read something and then having difficulty remembering what she had just read (T1-39). She also described how her concentration, especially on her study, was not really that good anymore because her mind goes somewhere else and that this is reflected in her marks. She described feeling that her aspirations to be a dentist were no longer within her reach as she had to lower that now to suit the marks she is getting. She described wanting to still go on to Grade 12, but said she failed 3 subjects this year - maths, business and another she couldn’t remember. During cross examination, she described wanting to now be a ‘pathologist’ (it was not contested between the parties that the plaintiff meant a phlebotomist rather than a pathologist per se) rather than a dentist, as a result of lowering her expectations (T1-45) and how she can get into that occupation through TAFE. -- 3 of 15 -- 4 [10] She also described during cross examination how she didn’t see herself following in the path of her two elder sisters by getting engaged and marrying young or simply having children and staying home. Indeed, she stated that she felt ‘she could work and look after her kids at the same time’ (T1-46). [11] She described to the court how all the psychologists and doctors had ‘helped her come, like how I used to. Like, I’m much better now, but my life has still changed, like, upside down’ (T1-34). She described being optimistic for her future with lots of plans. She also described what effect the accident has had upon her social wellbeing. She gave an example of not really wanting to go to parties but going sometimes and feeling it didn’t really matter if she went or not. (T1-36) She described continuing to blame herself for what had happened and what she could have done to have prevented her cousin from being killed (T1-36). In 2012, she described having cut herself on several occasions because she wanted to die but has stopped that now because she has realised that isn’t going to bring her cousin back (T1-36). [12] She recalls some counselling which she had with Ms Engels and others during 2011 and thereafter. She felt comfortable and connected to Ms Engels as she described her as understanding her and knowing what she had gone through. Unfortunately that counselling ceased as Ms Engels was no longer available and Ms Al Ali described not feeling the same type of affinity with the other counsellors she went to see, not like that which she had with Ms Engels. In particular, she said that when she tried counselling again this year with another counsellor (Ms Adulla) she didn’t feel comfortable with her because she was again asking questions about what happened, the accident and like, and what she went through. She described having already done that with Ms Engels and how she had already opened her heart to her (T1-38). During cross examination, she confirmed that Ms Engels had helped her feel better and that she had told her general practitioner in early 2012 that she was more settled and smiling (T1-43). She also said in cross-examination that she would be happy to take up counselling again if Ms Engels ever returned to counselling. During cross examination, Ms Al Ali also confirmed that she felt her nightmares were getting a bit better now and that having moved house away from where the accident had happened had also helped her mood and wellbeing overall (T1-46). [13] She was also questioned about her school marks since she had started her schooling in Australia. She agreed that schooling had been hard for her when she had arrived from Iraq at 8 years old. She could not speak English virtually at all and had had limited schooling in Iraq before she came. She agreed that she took a long time to catch up with the other kids in the class. She also agreed that her marks throughout her primary school years and early high school years showed that she was being consistently marked well for effort but not so for academic achievement even prior to the accident happening. Ms Al Ali also accepted the general proposition put to her that her school work (curriculum) had probably gotten harder as she had gone through her high schooling (T1-56). [14] My overall assessment of the plaintiff as a witness was one worthy of absolute belief. At no time did she try to embellish her evidence in order to promote herself in a more favourable light. Indeed, she struck me as a forthright young girl who has tried and is continuing to try her best to put the tragic events which have led to her suffering the injury behind her. That is evident in her evidence where she is optimistic for her future. This is despite that she has continued to suffer, as Dr -- 4 of 15 -- 5 Ewing noted, persistent posttraumatic stress disorder symptoms with fluctuating severity since the accident which are now unlikely to ever fully resolve. Assessment of General Damages [15] Section 61 of the CLA requires the court to assess an Injury Scale Value (‘ISV’) for the injury suffered. The Regulation prescribes rules for the court to assess the ISV for a particular injury, according to a table set out in Schedule 4.1 [16] The parties agree that Item 12 (ISV range 2 to 10) is the appropriate item number in Schedule 4 however they disagree on the appropriate ISV. The plaintiff contends for 10 and the 2nd defendant submits 7. Counsel has provided helpful submissions on this issue in their outlines, marked Exhibit 2 and 3 respectively. I have taken those factors into account when making my determination. [17] I assess an ISV of 10. Ms Al Ali has a condition which is now chronic in nature. The medical notes contained in Exhibit 1 (especially Tab 6) the subject of a consultation with Ms Adulla (5th March 2014) confirms that the constellation of symptoms described to Dr Ewing in October 2013 have continued. Those include nightmares, getting angry quickly, irritability, being easily startled and feeling jumpy and the like. Importantly, those notes reveal that she is still suffering from lack of concentration, is absent minded, can’t focus on anything and was not enjoying her schooling (Grade 8) at all. She told the counsellor that prior to the accident she had enjoyed school and her teachers a lot. [18] Those notes were also not inconsistent with the plaintiff’s own description of the difficulties she is still having at this point. The circumstances of the accident witnessed by her were horrific and not surprisingly Dr Ewing (who was cross examined at hearing) confirmed her view that this plaintiff will more likely than not continue to have persistent symptoms associated with the posttraumatic stress disorder she has suffered for the rest of her life. This is so even though it was accepted by the doctor that appropriate treatment may help to improve her condition, but will never fully resolve it (T1-72). [19] Dr Ewing also explained in her evidence the impact which this plaintiff may experience having suffered such a disorder which she opined had now become chronic in nature. She explained that while it was always difficult to predict with any certainty, her opinion still was that the plaintiff was certainly at risk of having a relapse or even developing depression as having chronic post traumatic stress disorder can also be a risk factor in that regard (T1-74). She also described in her evidence that certain triggers may also place her at risk of a relapse, including any increase or decrease in her stress levels. [20] Importantly, even though the doctor initially agreed with the general proposition put to her during cross examination that there may be variables in the plaintiff’s case which make it impossible to predict with any degree of probability whether her condition will have an effect on her ability to earn income in the future, Dr Ewing clarified that answer further in re-examination. At line 15 (T1-74) Dr Ewing confirmed the initial opinion she gave in her report. While she accepted that the plaintiff was already a disadvantaged young woman who also appeared (though it 1 Civil Liability Regulation 2014 (Qld) sch 4. -- 5 of 15 -- 6 was not ever confirmed) to have had some learning difficulties as well as the inherent difficulties associated with translocation to a country where she did not speak the language, posttraumatic stress disorder is nevertheless commonly associated with difficulties in memory and concentration. Dr Ewing noted (correctly) that those difficulties have continued and never fully resolved and she observed that those difficulties in themselves can further exacerbate and maintain any problems that she was already having in learning. Dr Ewing went on to explain that while it was always difficult to predict whether or not she’ll be able to have a stable time through her life. She accepted that she will more likely gain employment, nevertheless opined that people with post traumatic stress disorder often find it difficult to sustain employment, depending on the level of severity of their symptoms, which is dependant on other stressors in their life at the time. [21] Dr Ewing also confirmed in re-examination that the same analysis applied to the plaintiff obtaining promotions during her working life. She gave the example that if the plaintiff had to take time off or was to simply have a bad day rather than a good day due to ongoing symptoms and the like, that can often be reflected in the workers’ work record and can be a factor which goes against promotion (T1-74). [22] While a percentage assessment in terms of whole person impairment is never decisive insofar as any ISV awarded, it is still of relevance regarding which Item under the Schedule is the more appropriate one. That is evident from the wording contained in the Items themselves which make such a reference by way of example. It does not follow however that it means that where Item 12 is identified by way of example as the appropriate Item under the Schedule, that a selection in the middle must therefore follow or is more appropriate simply because 7% impairment of the whole person has been nominated by Dr Ewing. [23] Taking into the account the plaintiff’s age, her degree of ongoing impairment (to which Dr Ewing gave evidence), the plaintiff’s future prognosis (which at best was guarded, as emphasised again by Dr Ewing in her evidence and indeed in the file note at Tab 2), the continuing persistent nature of her symptoms (which are now likely never to fully resolve), the fact that the plaintiff has suffered a serious psychiatric disorder as a young child (which she will more than likely now have to endure ongoing symptoms for the rest of her life) and the impact which it has had upon her already notwithstanding her attempts at counselling and the two episodes of self harm in 2012, I consider that an assessment of an ISV of 10 is more than appropriate in this case. [24] I assess general damages at $13,350 pursuant to section 62 of the CLA and section 3(b) of Sch 7 of the Regulation. Future Economic Loss [25] There is no claim for past economic loss as the plaintiff has not commenced her working life as yet. [26] The 2nd defendant contends that no amount of damages under this heading should be allowed or at best, a very modest amount ($10,000) assessed under Section 55 of the CLA. The 2nd defendant submits the ‘imponderables’ in this case are just too great. The plaintiff on the other hand seeks $200,000 for future economic loss. Given that the plaintiff is still at school, taken with her age, no precise calculation can be made. -- 6 of 15 -- 7 [27] Section 55 of the CLA therefore is relevant in these circumstances. It provides: “(1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss. (2) The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. (3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award. …” [28] It is trite law to say that any future economic loss assessment if made must be determined by reference to the facts of the particular case at hand and not through simple regard to other decisions in which courts have made awards of damages in broadly similar circumstances. Accordingly, it follows that an examination of the facts of the case at hand is necessary when determining any assessment or otherwise.2 It is also trite to say that even if it is found to be that a plaintiff has suffered a diminution of his or her earning capacity as a result of the injury, it nevertheless must still be shown, on the balance of probabilities, that it will or may be productive of financial loss before any award can be made.3 [29] I am also cognizant of the relevant authorities and assisted by the Court of Appeal in Allianz Australia Insurance Limited v McCarthy,4 which helpfully sets out that where a claim for future economic loss is being made, then this court must set out the assumptions made and the methodology applied as best as it can, in order to properly articulate as to how any assessment for future economic loss has been made. [30] Ms Al Ali told me in evidence that she would have liked to have been a dentist once she had finished her schooling. She remarked however that she no longer held that aspiration as she has now realised her marks are not good enough (T1-39). She said she has now lowered her aspirations and is hoping to work as a ‘pathologist’ (phlebotomist). She has checked the entry requirements and can do that through TAFE. She stated under cross-examination that she believed she would be able to do that job in the future given the opportunity (T1-45). [31] During her evidence, she described how her studies have been hampered by her ongoing symptoms. That included not being able to concentrate or remember things she had just read (T1-35; T1-39). She also described these difficulties relating to her school work and studies to various people including Ms Engels (Ex 1 Tab 5 page 72) where she describes having to ‘pinch herself’ to concentrate; how her mind would wander and the like. She also described to Ms Engels (9th June 2012) that during exams it was hard to concentrate and ‘hard to pull info back out’. This 2 Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 [53]. 3 Medlin v State of Queensland (1995) 182 CLR 1. 4 [2012] QCA 312. -- 7 of 15 -- 8 continued lack of concentration is also evident in the notes of Ms Adulla (Ex 1 Tab 6) taken on the 5th of March 2014. As correctly observed by Dr Ewing on this issue in her report (Ex 1 Tab 1) at page 6, those concentration difficulties were reported as developing only after the accident had occurred. Indeed, at page 9 of her report Dr Ewing noted correctly that the school records (Ex 1 Tab 8) pre-accident, make no specific comment regarding any specific concentration difficulties at all from Grades 4 to 7. [32] A close examination of those records at the Kuraby State (primary) school suggests that any difficulty she was having during that time related more to her inability to join in with class participation as a whole due primarily to her language difficulties. Dr Ewing also correctly noted that there was however a clear indication in her school records post the accident of observations made by the teachers from Grade 8 onwards which were directed to the plaintiff’s concentration that was in need of improvement at times in selected classes (Exhibit 1, Tab 7). [33] Indeed, a close examination of the school records show that prior to the accident occurring on the 11th of September 2011, the plaintiff was managing class with some modification to assist with her learning in some classes (by being able to work alone on her work rather than as part of the whole class) but no specific note or observation was made to suggest that her concentration in class needed any improvement prior to the accident occurring. It is also evident from those records, that she received ESL (English Secondary Language) support in Semester 1, 2010 (Grade 6) for English, where it was noted that during that semester her English had improved. The records thereafter show that she clearly was getting more skilled in English (Semester 2, 2010), and her Maths was also showing improvement, to enough degree that it was noted that pleasing gains were being made in both literacy and maths. In Semester 1, 2011 (Grade 7) both her speaking and listening skills had improved sufficiently to be noted favourably, and it was described that she had developed a zest for learning. Again in Semester 2, 2011, improvement was noted for English although by this time she was receiving AVT (assisting visiting teacher) support for maths. It was during this semester when the accident had happened and at a point when she had suffered her injury. In Semester 1, 2012 (Grade 8), also after the accident but at a time she was seeing Ms Engels, her marks were better. She received a C for maths and a D in English (ESL). In Semester 2 of 2012 however, her English mark dropped to a D and she received a D for maths even though she was receiving maths support (at a time when she was no longer seeing Ms Engels). Then in Semester 1, 2013 (Grade 9), but under an alternate maths program, she received an A and a C for English. In the 2nd semester of that year, she then received a B and C respectively. The only evidence available regarding her current year came from the plaintiff herself, stating that she had failed 3 subjects - maths, business and another she couldn’t remember. [34] It is submitted on behalf of the plaintiff that the plaintiff has suffered a diminution in her earning capacity and that it may be productive of financial loss in the future as a result of the injury which she has suffered. It was submitted that the medical evidence of Dr Ewing supports such a conclusion being made. This was that the plaintiff continues to suffer from a psychiatric illness which will never fully resolve even with treatment, that there is a real chance that she may relapse during the course of her long working life ahead of her, and that because of her ongoing symptoms she may therefore have difficulty in even obtaining or sustaining -- 8 of 15 -- 9 employment and/or compete for any promotions she may seek if she is in fact employed. [35] The 2nd defendant on the other hand says that the evidence does not support such a conclusion being made. The 2nd defendant says (amongst other things) that the likelihood of improvement in the plaintiff’s vocational capacity as to her condition will improve with time and with treatment her condition overall will more likely than not follow that course. That submission in my mind overlooks the evidence that Dr Ewing gave at hearing. This was, in particular, that the future prognosis for this plaintiff is ‘guarded’, particularly in light of the three ‘failed’ attempts at counselling (T1-71) and the observations which she made regarding persons who suffer from chronic post traumatic stress disorder and the particular difficulties they are likely to suffer in the workplace (T1-74). The same can be said of the 2nd defendant’s submission that the plaintiff may well do better if she found someone like Ms Engels again to recommence counselling, which included a counsellor such as Ms Adulla. While it is accepted that it may be that the plaintiff may respond positively if she were to re-engage with Ms Engels if that could happen (there was no evidence of this being even a possibility at hearing however) or could find someone like her again, the submissions made by the 2nd defendant overlook in my mind the evidence which Dr Ewing gave on this point. As Dr Ewing pointed out, even if the plaintiff could find another trauma counsellor with more specialised skills in the area of post traumatic stress disorders, there had been a progressive loss of trust in the therapists which the plaintiff had seen since Ms Engels (including Ms Adulla) which meant in the doctor’s opinion that it may now be very difficult at this point to get the plaintiff to re-engage again with another counsellor successfully (T1-72; T1-75). The defendants’ hypothesis is possible but I would assess its probability as low. [36] The 2nd defendant also says that the plaintiff is motivated, determined, goal oriented and ambitious, which it says are positive prognostic signs for her. Dr Ewing accepted that the plaintiff has all those traits and that they demonstrated positive signs for her future, however Dr Ewing nevertheless stated that she was still repeatedly guarded as to the future prognosis for the plaintiff’s overall recovery. This is self evident in her opinion which she gave; namely that the plaintiff is likely to suffer from her injury indefinitely in that not all of her symptoms will ever fully resolve and that her condition will continue to impact upon her life into the future. [37] The 2nd defendant also says that the plaintiff’s school records as a whole demonstrate that the plaintiff has always been hardworking and motivated to do well. This submission in my mind runs somewhat contra to the submission also made by the 2nd defendant that there is nevertheless a real chance that the plaintiff will indeed simply follow the path of her two elder sisters. Those sisters were engaged at 17 and 18 respectively. The 2nd defendant submits that the plaintiff therefore will also marry early and assume full time domestic duties. That submission overlooks in my mind the opportunities which this young plaintiff has been afforded in Australia, the progress which she has personally made since her arrival in Australia and her own particular views of what the future entails for her. Additionally, it also overlooks the fact that her elder sisters were much older than she was upon their arrival in Australia (11 and 13 years of age respectively; T1-42). I accept the plaintiff’s evidence that when she said she had always wanted to be a dentist she had always had the desire to be one, that she believes she can work and raise children at the same time and that there is no pressure being put upon her from -- 9 of 15 -- 10 her family for her to follow the same path as her two elder sisters as was suggested to her during cross-examination. It is also evident that she has had better opportunities afforded to her since she arrived in Australia. She was 8 years old when she came to Australia and could not speak English. She now articulates English very well and did so giving evidence before me without any difficulty at all. She has always demonstrated a diligence and tenacity to learn (as evidenced by her school records) and has achieved very well considering the disadvantages that befell her on arrival in Australia. [38] Indeed, as is evident from her school records to which I have already referred, she was in fact starting to really show improvement in both English and Maths as early as Semester 2, 2010 (grade 6). This was well prior to the accident occurring and against the clear disadvantages that she had started with when she commenced schooling in Australia at grade 4. The 2nd respondent submits that one of her particular disadvantages included a pre-existing learning difficulty. While it is accepted that there was certainly a reference to a learning difficulty noted in grade 7, little reliance can be placed on the notation in the records to that effect other than to say that if indeed she had such a difficulty (which was never investigated as noted by Dr Ewing), the evidence was that her injury had nevertheless still impacted upon her ability to perform her school work due to the concentration, memory difficulties and the like that have persisted, which has and will likely continue to compromise both her academic and occupational future (Ex 1, Tab 1, page 15 report and evidence of Dr Ewing already referred to on this point). As Dr Ewing explained in evidence, those difficulties would have further exacerbated any pre-existing learning difficulties she may have been experiencing. [39] The 2nd defendant also submits that any recent decline in the plaintiff’s academic performance (presumably 2014) is unlikely to be related to the accident. It is submitted that it is likely to be due to the increasing difficulty of the curriculum at high school and for a young girl such as the plaintiff, who had pre-existing challenges to start with, including an extended absence overseas during 2013. Those submissions overlook in my mind the following points. While it is accepted by this court that the school work in high school will presumably always be more difficult than in primary school, this plaintiff’s difficulties regarding concentration and the like only became apparent by the relevant school authority after the accident had happened in September 2011. As already stated, there was no such notation or observation made in respect of the plaintiff in her school records prior to that time. Dr Ewing noted as such in her report. There is also the evidence that she had commenced high school at a new school altogether, with new teachers. Thus, any lack of progress in achievement post accident academically speaking is readily explicable in that context. There is also the uncontroverted evidence at Exhibit 1, Tab 5 (p 72, 7th June 2012 and at Ex 1 Tab 6, 5th March 2014) noting nearly exactly the same type of difficulties being expressed by the plaintiff regarding her concentration, memory and the like regarding her school work. As such, I find that it cannot be said, as submitted on behalf of the 2nd defendant, that the only attributable cause or explanation for her academic decline in her recent school work this year has been solely a result of more difficult school work being set during high school and/or the result of any pre-existing disadvantages that a young girl, like the plaintiff, may have had to begin with. [40] The 2nd defendant also submits that the plaintiff’s aspirations to be a dentist in the future were ‘fanciful’ (my words) as it was unlikely, even if the accident had not -- 10 of 15 -- 11 occurred, that she would have ever been able to be a dentist because of her lack of demonstrated academic prowess, especially in maths, prior to the accident. I agree with the 2nd defendants’ submission that the study of dentistry was always fanciful for the plaintiff. Notwithstanding it was accepted at hearing that the plaintiff may have never been able to academically qualify sufficiently to study dentistry (or pharmacy) due to the high entry requirements. This is particularly so having regard to her school records prior to the accident which suggest she was still struggling to even obtain academic achievements during primary school. However, there was simply no tangible evidence before me to suggest that she had in fact any ‘pre- existing’ specific mathematic learning difficulties’ as has been submitted on behalf of the 2nd defendant. Dr Ewing merely observed in her report (and in her evidence) that it had been noted in the year 7 school records (prior to the accident) that she may have had some ‘learning difficulties’ that needed exploring. It is accepted that those school records do show that some assistance was clearly being given to her regarding improving her English skills, but the plaintiff’s school records to which I have already referred also show that there had been notable improvement even in her maths in grade 6 (semester 2) even well before she starting receiving further support for her Maths in semester 2, 2011. It must be remembered of course that that is in fact the latter semester to which I have just referred, and is the same semester that the subject accident occurred and the plaintiff suffered her acute injury. [41] As such, I am not able to accept the submission made by the 2nd defendant that the evidence clearly shows that the plaintiff did in fact have pre-existing mathematic learning difficulties per se. There is no real tangible evidence available to support such a conclusion being made, thus why Dr Ewing was also guarded in her response on this point during evidence (T1-67). [42] Having regard to the matters already canvassed by me and bearing those matters in mind, I now turn to the question of whether or not any assessment of damages for future economic loss ought to be made in this case with reference to the principles observed in Malec.5 As observed, by the President of the Court of Appeal in Allianz Australia Insurance Ltd v McCarthy,6 I am required to set out my assumptions and any methodology adopted which I shall now attempt to do.7 [43] It is apparent from the evidence, to which I have already referred, that the injury which the plaintiff suffers is likely to have a long term impact upon her future. This is evident from the evidence of Dr Ewing who confirmed that her posttraumatic stress conditions will never fully resolve. Dr Ewing has referred to the likelihood of her continuing to suffer from some degree of psychiatric impairment to varying degree into the future, which in turn will impact upon both her academic and occupational future. Having regard to that evidence, I am satisfied on the balance of probabilities, that the plaintiff has suffered a diminution of her earning capacity as a result of the injury suffered. However, that is not the end of the matter. As Counsel for the 2nd defendant properly submitted, I am also required to be satisfied, on the 5 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. 6 [2012] QCA 312. 7 Ballesteros v Chidlow & Anor [2006] QCA 323, [41]; Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211, [37]. -- 11 of 15 -- 12 balance of probabilities, that such diminution of any earning capacity will or may be productive of financial loss before any assessment as to future loss may be made.8 [44] The uncontroverted evidence of Dr Ewing was that Ms Al Ali’s academic and occupational future has now been compromised because of the ongoing nature of her disorder which, even with further treatment, will never fully resolve because it is now chronic in nature (T1-72). She also gave evidence that she is at real risk of relapse and may as a consequence of her condition now being chronic in nature, be at risk of developing other mental conditions such as depression during her lifetime (T1-74). [45] Accordingly, I find that there is a very real rather than a remote chance that the plaintiff will relapse into the future, depending of course upon the various stressors or triggers occurring in her life at the various times. There is a real chance in my mind that in those circumstances that any such relapses will or may be productive of financial loss, in that any fluctuating mental condition may cause her to lose an opportunity to obtain employment if it occurs at a time when she is seeking employment, or may prevent her from sustaining her employment if the relapse is serious enough. If she happens to be already employed, then I find that there is a real chance rather than a remote one that it could also impact upon her ability to attain promotions. Dr Ewing’s evidence on this point supports such assumptions being made. At the very least, there is a real rather than a remote chance that she will either simply not be able to work at all at times during the course of her working life or may require to have time off work without pay. [46] I assume that the plaintiff will be able to obtain work in the future and that it may be, due to Ms Al Ali’s own stoicism and determination, her chosen future employment choice (as a phlebotomist) that may well be achieved if she is offered any such opportunity. [47] However, I also consider that there was a very real chance and not so remote as to be speculative, that had she not suffered the serious injury when she did, she would have performed much better than she has so far at her schooling, had she not suffered the injury at all. The demonstrated efforts of the plaintiff academically even prior to the accident, together with the evidence of Dr Ewing already referred to, supports such an assumption being made. In those circumstances, there was a real chance, to a point of relative certainty, that I consider that had she not had such a injury at such a tender age with continuing ongoing consequences, that she would have, more likely than not, achieved better academically, which in turn would mean that there would have been more employment opportunities made available to her in the occupational future and not just that of the type she is now prepared to settle for. I find that in those circumstances there has been a real probability that she has now been disadvantaged in her general competitiveness on the open labour market by not being able to be better academically qualified than others who have not suffered such a similar injury, and as a consequence, she has therefore suffered a diminution of her earning capacity which will probably be productive of financial loss in her future. While it is accepted that at the point she suffered her injury (at age 12) she had not been progressing academically to any recognisable academic achievement, there was still notwithstanding, a real rather than a mere remote chance, that had she not suffered such a serious injury with ongoing symptoms at that particular stage of 8 Medlin v State of Queensland (1995) 182 CLR 1. -- 12 of 15 -- 13 her life, during her formidable learning years, that this plaintiff would have been better able to apply herself to her studies and therefore have obtained better marks overall academically. While it cannot be determined with any certainty at all that she would ever have obtained sufficiently enough the academic grades to become a dentist (generally OP 1-6 for University entry) based on the academic evidence which I have available prior to the accident, it cannot be said that there was simply no chance at all so as to be considered negligible, that she would not have done any better academically overall had she not had the injury at all. In those circumstances, the lost chance to perform better means that any better remunerative work opportunities than those of a phlebotomist may well have also been available for her in the working future. Even if dentistry was always beyond her, she would probably have done better but for the injury, and therefore probably had more remunerative employment. [48] As already noted, it is said on the 2nd defendant’s behalf that she may get some improvement with further treatment if successful. That is so. That she may never have achieved academically enough to become a dentist. That is also true. That she may only have been likely to perform better in a vocationally oriented program than one oriented to professional qualifications as noted by Dr Ewing. That is also true. That she might simply follow the path of her sisters, take up full time domestic duties and continue to improve overall in her recovery as she develops her own independent adult life, I think the probability of this is low. However, as explained by me, those prospects must be weighed on balance with what I see as a very real chance of a much worse future for this plaintiff than even my allowance assumes based on the assumptions that I have made. [49] I would rate the chances of this plaintiff suffering significant financial loss of earnings over the course of her working life, due to the continuing effects and risks associated with her chronic condition caused by the subject accident, as virtually certain and any chance of her getting by throughout the course of her life without any significant loss or problems as very low. [50] Ms Al Ali has potentially 50 years of working life in light of the ever-changing retirement age. She did not discount having children completely so some adjustment has to be made to include any time that may be taken out of the workforce for that purpose, notwithstanding that she admirably believes that she can work and look after her children too. Obviously, I must assess any prospective loss on very imprecise materials. Not intended as a criticism of Counsel at all, I have not been given, for example, even what a phlebotomist might earn per week. Nevertheless doing the best I can, it is appropriate to make a global assessment of $110,000 (one hundred and ten thousand dollars). I have not calculated future loss of superannuation as a separate award of damages because of the imprecise material available to me. In order that my methodology may be understood insofar as how I have made my global assessment, I shall now set that out. [51] I have arrived at the figure of $110,000 by assuming that Ms Al Ali will have to have many periods off over the course of her potential working life because of the nature of her injury and her consequent susceptibility to relapse. That period I have assumed will likely be in the order of 18 months, particularly having regard to the potentially long working life ahead of her. I have taken into account the nature of the work involved in being a phlebotomist and perhaps sometimes stressful environment which the plaintiff may encounter during the course of carrying out -- 13 of 15 -- 14 that work. I have also used the average weekly wage for all employees,9 which is $58,936 per year gross ($1123 per week) as a guide only, making the adjustment for tax, applying that figure over 18 months by reference to the 5% tables, then adjusting again for contingencies at 15% (assessed at 15% to further reflect any time off to have children and also recognising that Ms Al Ali is likely to be less competitive on the open labour market, in any event, than an average worker, regardless of any injury suffered, because of the unique difficulties in coming to Australia when she did, the impact it has had upon her schooling and to account for any possible learning difficulties). I have assessed that amount to be $59,000.10 [52] In addition to this amount, I have also assumed that Ms Al Ali will have in any event, lost over the course of working life the opportunity to have obtained more remunerative employment as a direct consequence of the injury which she has suffered, from which she will never fully recover. In order to compensate for such additional loss I have therefore assumed a net loss per week of $60 on its present day value and, again by using the 5% tables only as a guide, have taken into account her potential working life (50 years), adjusting again for the abovementioned contingencies which I have already explained, assessed at $50,00011 Future Treatment [53] The plaintiff seeks an award of $20,000. The 2nd defendant says that even though there may be a need for treatment in the future, it cannot be quantified with any certainty. The 2nd defendant says that in those circumstances, that if the initial course of treatment proposed by Dr Ewing is allowed at the mid point of her estimate regarding future treatment ($4,000) then a further global allowance is appropriate. Any award should be around $6000. [54] The plaintiff referred to the treatment regime proposed by Dr Ewing in her report ($3000 to $5000). As Dr Ewing explained, this is not the cost that will be incurred over the plaintiff’s lifetime. The psychiatric intervention to date has so far been relatively unsuccessful. Further treatment will now always be dependent upon any successful re-engagement with a counsellor or counsellors or otherwise in the future (T1-75). However, there is a real chance that this plaintiff may not successfully re- engage with another counsellor on her first attempt, because of the reasons explained by Dr Ewing in her evidence (commencing at line 10, T1-75). There is also the additional real risk with this plaintiff that she may develop other mental disorders as a consequence of her having suffered posttraumatic stress disorder which will never fully resolve; depression being one example. There is also a real risk of relapses in the future relating solely to her posttraumatic stress disorder. [55] As such, I consider that the initial proposed treatment cost of $5000 by Dr Ewing should be part of any award, together with some greater allowance for the chance of future treatment (perhaps a good deal of treatment) being required over the course of the plaintiff’s lifetime. [56] I assess $20,000 under this head of damages. 9 Australian Bureau of Statistics, (http://www.tradingeconomics.com/australia/wages). 10 $920pw net x 75 = $69,000 – 15% ($10.350) = $59,000 rounded up, imprecise but indicative. 11 $60 nett x 976 = $58,560 – 15% ($8784) = $50,000 rounded up, imprecise but indicative. -- 14 of 15 -- 15 Special Damages [57] I understand special damages have been agreed at $2,260. Summary [58] In summary I assess the damages as follows: Pain, suffering and loss of amenities of life $13,350 Special damages $2,260 Future treatment $20,000 Future economic loss (including future superannuation) $110,000 Sub Total $145,610 Plus trustee administration management and investment fees $6,031 Total $151,641 Judgment [59] There will be judgment for the plaintiff in the sum of $151,641. [60] The Second Defendant pay the costs of and incidental to the action to be assessed on the indemnity basis. -- 15 of 15 --