Brooks v Zammit & Anor [2011] QSC 181

SUPREME COURT OF QUEENSLAND CITATION: Brooks v Zammit & Anor [2011] QSC 181 PARTIES: PATRICIA BROOKS (plaintiff) v MICHELLE ZAMMIT (first defendant) And SUNCORP METWAY INSURANCE LTD ABN 83 075 695 966 (second defendant) FILE NO/S: S122 of 2010 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court Mackay DELIVERED ON: 22 June 2011 DELIVERED AT: Rockhampton HEARING DATE: 2-3, 6 June 2011 JUDGE: McMeekin J ORDER: Judgment for the plaintiff in the sum of $689,379.52 CATCHWORDS: DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – – where liability admitted Civil Liability Act 2003 (Qld) Civil Liability Regulation 2003 (Qld) Allwood v Wilson & Anor [2011] QSC 180 Goode v Thompson & Anor [2002] QCA 138 Grice v State of Queensland [2005] QCA 272 Kriz v King [2006] QCA 351 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Mallett v McMonagle [1970] AC 166 McDonald v FAI General Insurance Company Limited [1995] QCA 436 -- 1 of 15 -- 2 Sharman v Evans (1977) 138 CLR 563 Thomas v. Brighton Health Authority [1999] 1 AC 345 Van Gervan v Fenton (1992) 175 CLR 327 Walker v Allen [2011] QSC 131 COUNSEL: GF Crow SC for the plaintiff R Green for the second defendant SOLICITORS: Macrossan & Amiet for the plaintiff Grant & Simpson for the second defendant [1] McMEEKIN J: The plaintiff, Patricia Brooks, claims damages for personal injuries suffered on the 27th May 2008 in a high speed motor vehicle accident. Liability is admitted. I am required to assess damages. [2] Ms Brooks was born on the 6th January 1966. She was 42 years old when injured and is now aged 45 years. The Civil Liability Act [3] The assessment is governed by the provisions of the Civil Liability Act 2003 (CLA) and the Civil Liability Regulation 2003 (―the Regulations‖). The Injuries [4] Ms Brooks suffered multiple and severe injuries as follows: (a) Compression fracture of the L1 vertebra with 50% loss of vertebral height; (b) Severe abdominal trauma with duodenal lacerations; (c) Fractures of the left 5th and 6th ribs; (d) Fracture of the left fifth metacarpal; (e) Bilateral navicular fractures of the feet. The Aftermath [5] Following the accident the plaintiff was hospitalised, underwent laparotic surgery on two occasions, and was eventually discharged wearing a brace for her spinal injury. [6] Ms Brooks endured severe pain initially and has had continuing persistent pain in the low back. She complains of intermittent pins and needles in her left leg with alteration of sensation in the left thigh. She complains too of ongoing difficulties with bowel movements consequent upon her abdominal injuries. Ms Brooks has continued to have pain in her feet and left hand but at a lesser level than her low back. She has altered sensation in her left arm and head. She is limited in her ability to sit or stand in any comfort. [7] Ms Brooks has taken pain killers regularly and in substantial quantities and has tried pain relieving patches. Since November 2010 she has used Durogesic patches with some alleviation of her pain. -- 2 of 15 -- 3 [8] In October 2009 Ms Brooks underwent surgery to remove excessive abdominal skin which she says was consequent upon her injury. [9] As a result of the accident Ms Brooks developed an adjustment disorder, the principal symptom being a phobia for travelling in motor vehicles. She is mildly depressed. Dr Chalk assesses an impairment at 4%. [10] Ms Brooks was quite active prior to her injury enjoying fishing, trail bike riding and riding with the her husband on his road bike. She had been active in raising her children, and was attempting to re-enter the work force after a long absence in which she had cared for her family. She enjoyed dress designing and sewing, the latter at commercial level. She can no longer enjoy these activities. Assessment of General Damages [11] I have recently set out my understanding of the methodology required under the CLA to assess damages where multiple injuries have been suffered in Allwood v Wilson & Anor [2011] QSC 180. I will not repeat myself. [12] The parties are agreed that the dominant injury is the lower back injury. They disagree as to the appropriate item number in Schedule 4 of the Regulation. The competing contentions are Items 90 (―extreme … lumbar spine injury‖ – ISV range from 36 to 60) and 91 (―serious … lumbar spine injury‖ – ISV range 16 to 35). [13] There is some debate about the level of whole person impairment (―WPI‖) as a result of the low back injury. Three surgeons agreed that Ms Brooks has a very significant degree of impairment between 20% and 23% (Dr Campbell – 20%; Dr Shaw – 20-22%; and Dr Curtis – 20-23%). Dr Guazzo thought that the proper assessment was 13%. They are all agreed that Ms Brooks has suffered a 50% loss of L1 vertebral height. They disagreed as to whether the injury should fall within DRE Lumbar category III or DRE Lumbar category IV in Table 15-3 of the AMA guide1 which the legislation indicates is to be preferred.2 [14] The difference between the surgeons is explained by their differing approaches to the AMA guide. Dr Guazzo was influenced by the degree of compression of the vertebral body pointing out that Table 15-3 of the guide provides for a maximum WPI of 13% where there is a degree of compression of up to 50%, which is the case here. His approach however seems to me to overlook two things. First, the injury is not a simple compression fracture – it was described as a burst or chance fracture by the surgeons, such a fracture involving significant disruption of the facets and dislocation of the soft tissue through the vertebral body as well as bony injury. The fracture is not stable. Dr Campbell thought it probable that the degree of compression would worsen over the next 12 months, that itself justifying an assessment in the more serious category. Dr Campbell and Shaw each pointed out that in some ways the injury is worse than one falling within DRE IV. [15] The second point is that the DRE III categorisation requires that the fracture should ―heal without alteration of structural integrity‖. As Dr Shaw pointed out there is significant motion segment disorder in this case.3 1 AMA Guide to the Evaluation of Permanent Impairment (5th edition) 2 Sch 3 s 12 3 T1-74/54 – 75/15 -- 3 of 15 -- 4 [16] I am satisfied that the injury should be best categorised as DRE IV in Table 15-3 of the guide with the WPI assessed at 20% – 23%. [17] I turn then to Schedule 4 of the Regulations. In my view the injury does not sit comfortably in either category contended for. [18] The comment in Item 90 is: ―These are extremely severe injuries causing gross limitation of movement and serious interference with performance of daily activities. There may be some motor or sensory loss, and some impairment of bladder, ano-rectal or sexual function.‖ Ms Brooks has some sensory alteration and quite significant interference with her daily activities. Generally however she is not in as serious a condition as the comment suggests is necessary. [19] The example provided in Item 90 is: ―A fracture involving compression of a thoracic or lumbar vertebral body of more than 50%, with neurological impairment‖. Ms Brooks is very likely to have that degree of compression in the near future. The comment about appropriate level of ISV is: ―An ISV at or near the bottom of the range will be appropriate if there is whole person impairment for the injury of 25%.‖ Ms Brooks is very close to that level of impairment but a little below it. Worsening compression of the lumbar vertebral body will not alter the impairment rating. [20] These comments may be contrasted with Item 91 where it is said that ―an ISV in the middle of the range will be appropriate if there is a fracture involving 50% compression of a vertebral body, with ongoing pain.‖ Ms Brooks has that condition and, as Dr Shaw and Campbell explained, more significant problems. Item 91 refers to an injury that ―will cause serious permanent impairment in the thoracic or lumbar spine‖. That is an accurate statement of the condition here. It is said that ―the injury may involve … a change in motion segment integrity‖. That too is relevant here. [21] It seems to me that Ms Brooks sits just below Item 90 and at the very top of Item 91. I assess the dominant injury as falling within Item 91 and assess an ISV at the top of the applicable range – 35. [22] The remaining injuries can be shortly assessed as follows: internal abdominal injury as moderate – Item 57 with an ISV of 10; fractures of the ribs – moderate chest injury per Item 38 with an ISV of 11; fractures to the left hand as moderate injury to the hand per Item 116.3 and an ISV of 6; fractures to the feet again as moderate with an ISV of 5 per Item 149; the psychiatric disorders as moderate mental disorders with an ISV of 4 per Item 12. The plaintiff contended for a separate assessment of the injury to the facet joints but I had understood that to be included in the surgeons’ assessment of the burst fracture. It makes little difference. [23] There are multiple injuries to various areas of the body with significant pain and a very substantial impact on Ms Brooks’ capacity to enjoy life or engage in her daily activities. She has a lifetime of constant and debilitating pain ahead of her. She is most unlikely to be able to ever find commercial employment. While it is not expected that her condition will change markedly in the future it is not impossible that it could worsen and require spinal surgery. [24] Plainly Ms Brooks is entitled to an uplift in the ISV. The rival contentions were for an ISV of 48 or 60. The Defendant essentially conceded that if I accepted that the dominant injury should be assessed as falling in Item 91, as I have, then an uplift above -- 4 of 15 -- 5 25% was justified. The concession was rightly made. It is interesting to observe that the ISVs for the non dominant injuries, in total, roughly equal the ISV for the dominant injury. There is of course a degree of overlapping in these values. I propose to increase the dominant injury ISV by 50% and assess the overall ISV as 52. [25] I assess general damages at $99,320 pursuant to s 62 of the CLA and s 1(j) of Schedule 6A of the Regulations. Past Economic Loss [26] It is not in issue that Ms Brooks is essentially unemployable because of the accident caused injuries.4 She has a small capacity for light duties but tires easily. Her experience, to the extent that she has experience, is in labour oriented work. She cannot drive. She is in constant pain. [27] The issue debated was the extent to which she was likely to have exercised her earning capacity if uninjured. The defendant contended for a nil assessment and the plaintiff $49,920 based on a loss of $400 per week discounted by 20%. [28] Ms Brooks had not been in employment outside the home for many years prior to her injury save for one year in 2003 where she worked on an aquaculture farm with a Ms Pollard who spoke very well of her efforts. That she did so says a great deal about Ms Brooks because she is a slightly built woman and she was performing arduous work, for example moving 40kg bags of feed – bags that were about her own weight. [29] Before starting a family Ms Brooks worked in a variety of occupations including barmaid, car detailer and shop assistant. She had her first child in 1983 and took some four years out of the paid workforce. She then returned to work, again in a variety of occupations, adding kitchen hand and meat packer to her résumé over the next three years. She had her youngest son in 1990 and after that Ms Brooks cared for her family. She did a little selling of Avon and Tupperware products and used her sewing skills to create bridal gowns. She returned to full time employment in 2003 with Mrs Pollard and then in 2004 her husband’s children needed care and she again retired from the workforce to look after them. By 2008 she relates that they were becoming independent and she was again interested in obtaining outside work. [30] To that end Ms Brooks registered with Centrelink and sought work. She had got so far as the occasional interview. She had not in fact secured a position by the time of the accident. She related that some months after the accident she received a phone call from a manager of a McDonald’s franchise asking her to return for a second interview. No evidence was called from that business to identify Ms Brooks’ realistic prospects or the nature of the position that may have been available, the hours available or the wages on offer. [31] A further complicating feature of the case is that Ms Brooks and her husband took on the care of her grandchildren aged 6, 4 and 2 at the request of ―South Australian Welfare‖ in January 2010. The children were removed from their custody after some months because they were not able to properly care for the children given their injuries 4 I note the assessment of Ms Brooks having a capacity for work of 8 to 14 hours per week for administrative, clerical and computer work performed by the Department of Social Security (Ex 1.32 at p 4/7 on 22/1/09). She was not shown to have any aptitude for such work and I doubt that she could function effectively even if she had the necessary skills. -- 5 of 15 -- 6 – Ms Brooks’ husband was also injured in the subject accident. The children were then placed in foster care as their mother is apparently unable to care for them. This plainly caused Ms Brooks considerable distress. [32] The relevant point is that it seems unlikely that Ms Brooks would have pursued employment, or not to the same level, if she had the care of such young children. Mr Crow, senior counsel for the plaintiff, argued that I should not draw that inference as the point was not squarely raised with Ms Brooks by the defendant. But that is the logical inference – throughout her life Ms Brooks had put the needs of those children dependent on her ahead of any desire to be employed outside the home. As well her husband seemed to have a superior earning capacity and had enjoyed employment up to the time of the accident. It seems unlikely that he would have given up his employment to enable her to work. There was no evidence that he so intended. [33] Section 55 of the CLA is relevant in these circumstances. It provides: “When earnings can not be precisely calculated (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.‖ [34] Whether that section alters the common law was not debated. Arguably the restriction that damages should only be awarded ―if [the court] is satisfied that the person has suffered or will suffer loss‖ means that the loss must be established on the balance of probabilities as more likely than not. Thus a loss of a chance that falls below 50% is not to be compensated. However no authority was cited where any court has taken that view and the matter, as I say, was not the subject of argument. Such a contention would run into the same difficulties as were raised in cases involving the interpretation of other provisions of the CLA such as Kriz v King [2006] QCA 351 and Grice v State of Queensland [2005] QCA 272. It was there pointed out that if it was Parliament’s intention to take away well established common law rights then it had to do so ―clearly and unambiguously‖.5 It has not done that here. I assume then that the common law applies. [35] In assessing damages in respect of a past hypothetical event I am required to ―make an estimate as to what are the chances that a particular thing … would have happened and reflect those chances, whether they are more or less than even, in the amount which [I] award‖: per Lord Diplock in Mallett v McMonagle6 cited by Brennan CJ and Dawson J in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 640. The reasoning of the majority in Malec would require an assessment of damages for past loss at common law where the chance of obtaining employment post accident was more than negligible and significantly less than 50%. 5 Kriz per McMurdo P at [18] 6 [1970] AC 166 at 176 -- 6 of 15 -- 7 [36] Ms Brooks’ case depends on drawing the inference that but for the accident she was likely to have obtained employment because she was actively seeking work, had impressed her most recent employer, Mrs Pollard, and had the encouragement of the second interview offer from an unidentified employee of a McDonald’s outlet. Against that Ms Brooks had limited skills and experience, in the recent past at least, in the workforce; she had a grade 8 or 9 level of education; she had been out of the work force for most of the previous 23 years; she had difficulties with her confidence as identified in the Centrelink records pre-accident; and she had been actively but unsuccessfully seeking employment for some time prior to the accident. While I do not doubt her interest in obtaining work before the accident and her determination to take on whatever she was offered7, there is considerable doubt attending on her obtaining work if uninjured, and of her maintaining it once she had the care of her grandchildren. [37] A further relevant point is that Ms Brooks lives 30 kilometres from any significant population centre where she was likely to obtain employment. There was the prospect of significant travel costs in getting to and from work. Those expenses need to be brought into account in assessing her damages: Sharman v Evans (1977) 138 CLR 563 at 577. [38] I accept that there was a chance that was more than negligible that Ms Brooks would have obtained employment but for the accident. She probably would have adjusted any such employment when taking on the care of her grandchildren. She may have had to give it up entirely. She was determined and while she had no formal qualifications she impressed me as reasonably articulate and intelligent. The assessment can only be a matter of impression. I assess her chances of obtaining and maintaining employment at about 20%. I award her $10,000 on this basis – about 1/5th of the amount contended for by her counsel. Future Economic Loss [39] The considerations relevant to the future claim are much the same as for the past. With the passage of time, and assuming that Ms Brooks and her husband continued to care for their grandchildren, the children would have become more independent and freed up Ms Brooks’ time. As well there was more time for a successful outcome to her search for employment. [40] The competing considerations, with little more than assertion rather than evidence to support them, are, from the plaintiff’s side $346,320, and from the defendant’s side $100,000. I mean no criticism of counsel. There is simply no evidence available to do anything other than make an informed guess. This is the situation referred to by Thomas JA in McDonald v FAI General Insurance Company Limited [1995] QCA 436 where he said: ―This may be contrasted with the familiar exercise of assessing damages upon issues which of their very nature are incapable of precise proof, such as future economic loss, and, quite frequently, past economic loss, where the Courts do the best they can on necessarily imprecise matter. (Malec (above); Chaplin v Hicks [1911] 2 KB 786, 795; Wheeler v Riverside Coal Transport [1964] Qd.R. 113, 124; Biggen and Co v Permanite Ltd [1951] 1 KB 422, 438; 7 Although I note the caveat in the Department of Social Security records that she was not interested in cleaning, barmaid or baby sitting work – Ex 1.32 at p 3/4 - 31/10/06 assessment -- 7 of 15 -- 8 Dessent v The Commonwealth (1977) 13 ALR 437, 447). Even in cases of that kind a plaintiff is expected to place before the Court the essential facts upon which the necessary inferences and projections are to be made.‖8 [41] Mrs Pollard’s evidence suggests that work would be readily available for Ms Brooks at $20 per hour for at least 30 hours per week at her service station at Finch Hatton. There remains the difficulty of travelling a considerable distance to get to and from work - nearly 60 kilometres each way to Finch Hatton. Not surprisingly this had been an insurmountable barrier when the work hours on offer had required Ms Brooks to go to and from her home twice a day in the aquaculture business.9 [42] Doing the best I can I assess the loss at $165,000. I have arrived at the figure by assuming Ms Brooks best prospects of getting employment were in a business of the type that Mrs Pollard ran, accordingly adopt an earnings rate of $600 gross per week, adjust for tax, deduct 10% for the probable expenses of pursuing employment, apply that figure over 20 years, and then adjust for the usual contingencies but recognising that Ms Brooks was much more vulnerable to finding herself unemployed than the average worker with a long history of pre-accident employment.10 Damages for Past Gratuitous Services [43] It is not in dispute that Ms Brooks has required personal and domestic assistance and will do so in the future. The need for such services is a compensable loss and that loss is measured by, in general, the market cost of providing the services: Van Gervan v Fenton.11 There is no dispute that she satisfies the criteria laid down in s59 of the CLA. In their submissions the defendant contended for an award of $34,556 and the plaintiff $100,881. [44] There was some dispute about the number of hours that would be the appropriate measure of her need and considerable debate about the appropriate hourly rate to adopt. [45] Before turning to those arguments I note that in her final submission the plaintiff seeks an award for the assistance she says was needed during her period of hospitalisation at three hours per day. Section 59(4)(b) of the CLA provides: (4) In assessing damages for gratuitous services, a court must take into account— …. (b) periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution." [46] I can see no evidence to support the claim or to show why the statutory injunction does not require rejection of the claim. Ms Brooks seemed to accept that the attendance of her family was for comfort only.12 8 At p 6-7 9 T2-4/55- 5/5 10 $546 x 90% x 666 x 50% 11 (1992) 176 CLR 327. 12 T1-36/55 -- 8 of 15 -- 9 [47] First, as to the hourly rate. The defendant contended for an hourly rate of $24 and the plaintiff a rate of between $35 and $44.44. The difference between the parties’ contentions is two fold – whether there should be an agency fee included and what standard of worker ought to be assumed. The plaintiff’s figure uses the rate charged by an agency, CQ Community and In Home Care, that the plaintiff has in fact engaged albeit only just prior to the trial. Their rate includes both an agency fee (that is the fee that an agency charges for having organised the worker over and above the amount the worker will be paid) and assumes that the care provider holds certain qualifications – a Certificate 3 in Community Care. [48] It is perfectly plain that the type of care that Ms Brooks needs, on an ongoing basis, is basic assistance with domestic chores – that is, she needs to engage a cleaner. There is no need for that person to hold qualifications of the type enjoyed by the workers that CQ Community and In Home Care need to employ because of the nature of the business that they conduct. [49] Further it is plain that the plaintiff is competent and able to arrange a cleaner to come to her home. She does not need an agency to organise that for her. She could advertise and employ someone herself. [50] The plaintiff’s argument for the adoption of the CQ Community and In Home Care rates is that the evidence shows that organisation to be one operating in the Mackay area that supplies cleaners on request and that could meet the plaintiff’s needs. It was submitted that there was no evidence that the plaintiff could obtain a cleaner any more cheaply than at the rates charged by the agency. It was said that such evidence established the market cost and that the general rule is that the court should adopt the market cost of the value of the services citing Goode v Thompson & Anor [2002] QCA 138 at [23]. [51] In my view the plaintiff’s case overlooks a basic point. Calling an agency to say that this is our rate does not establish that that rate is the reasonable market cost. There is no rule or principle that an injured plaintiff must obtain cleaning staff through an agency, or that one agencies’ charge establishes the reasonable cost. Many people employ cleaners hired through word of mouth referral or by advertising. [52] Prima facie the rates are unreasonable because they have the two features that I have mentioned – they include an agency fee where the plaintiff is competent to look after herself and assume a need for qualifications that are not necessary. Indeed the fact that the agency will only employ people with at least a Certificate 3 qualification indicates that their target market is not the home needing assistance with basic domestic chores. Compelling evidence would be needed to persuade me that despite those unreasonable features I ought to adopt those rates. For example, evidence of significant but failed attempts to obtain cleaners without the assistance of an agency might persuade me that an agency fee was necessary, and evidence of a range of agency fees might show that this agency’s rates were a reasonable reflection of market cost. But there was no such evidence. [53] Nor is there evidence here that rates for domestic cleaners in this area are particularly high as seems to have been the reason for the adoption of the rate of $39.50 in Walker v Allen [2011] QSC 131. -- 9 of 15 -- 10 [54] That being so I turn to the other evidence in the case. Ms de Campo has provided evidence of the casual rates payable under the Disability Workers’ Award – State and the Social Community Home Care & Disability Services Industry Award. [55] That being the award rate it seems to me that it was incumbent on the plaintiff to show why I ought not to adopt that rate as the reasonable market cost. The plaintiff has not discharged that onus. [56] I turn then to the question of the number of hours that ought to be allowed as reflecting the plaintiff’s reasonable accident caused needs. There are two parts to the assessment – the period when there was a significant need for personal care and thereafter when the need was for assistance with domestic chores and driving. [57] For some two months after the accident Ms Brooks needed assistance with her personal care such as bathing, dressing, showering, toileting and having meals prepared. Thereafter she needed assistance with dressing. She was restricted by the spinal brace that she wore until October 2008. She claims a need for 4 hours assistance per day in her statement.13 In her final submission the plaintiff seeks an award based on 24.5 hours care per week for 5 months and then 12.25 hours per week for 3 months. This was based on the analysis of an occupational therapist, Ms Purse, based principally, I think, on an interview with the plaintiff. [58] Ms Addie Jones, an occupational therapist, has attempted to assess the need objectively and has suggested a need for 20 hours care per week for the first 8 months and 10 hours care per week for the next two months.14 The defendant adopts this analysis. [59] The evidence of the family members did not clarify the issues greatly. In truth there would have been a gradual improvement over time with a lessening need for assistance. [60] For this early period I will allow $6000 for the personal care needed. I have adopted 3 hours per day care for the initial 8 week period, reduced that to 2 hours per day for the next month and then reduced to 10 hours per week for the next month. I have adopted the rates applicable as the gross wage for the carer from Ms de Campo’s letter and brought into account week end rates. [61] Ms Purse and Ms Addie are agreed that for eight months post discharge Ms Brooks would have required about 14 hours support per week with domestic tasks and this gradually reduced to the current need of six hours assistance.15 [62] For these periods, the rate I shall adopt is the average of the rates provided by Ms de Campo over the period since the accident - the amount payable to the carer is approximately $24 per hour. [63] I assess the need for domestic assistance at $31,500.16 I have rounded the figures upwards to allow for the gradual nature of the improvement. [64] In addition to this assistance Ms Brooks had difficulties with transport. For at least six months she could not physically drive a motor vehicle and thereafter she continued to 13 Ex 2 - para 42 14 Ex 1.30 at p10 15 Ex 1.31 at p 2 16 (8mths x 4.3 wks/mth x 14hrs x $24) + (126wks x 6hrs x $24) -- 10 of 15 -- 11 have physical restrictions, in that driving causes her increased pain, but as well she has psychological difficulties in the form of high levels of anxiety. The plaintiff assesses her need at about 2 hours per week assuming two trips per week to their nearest centre17 which Ms Jones has adopted. Ms Purse suggested the need would be between 2 and 4 hours per week. [65] The defendant assumes that this has not placed any burden on the family or friends in assisting her as they can adjust their outings to cope with her needs. While it is true that some adjustments no doubt were made, as a general proposition I cannot accept that no amount ought to be allowed. Ms Brooks lives in an isolated place and plainly needs the assistance. At times it has been provided by friends as well as family. Two trips away from her home per week is a very modest assessment – it effectively has her house bound for much of her time. As well the two hour assessment allows very little, if anything, for the time those assisting her must wait for her while she attends to whatever has taken her to town – a doctor’s appointment or shopping or the like. The modesty of the assessment more than compensates for whatever deductions need to be made for fitting the outings into the schedules of those providing assistance. [66] For this travel assistance I will allow two hours per week at $24 per hour for the period since the accident – an amount of $7,300. [67] The total assessment under this head of loss is $44,800. Future Gratuitous Assistance [68] There are three additional issues to consider over and above those already mentioned. [69] First, Ms Purse contended that it was inevitable that the aging process would mean that Ms Brooks would need more care as time passes. The defendant submitted that there was no medical evidence to support this contention. [70] The medical evidence indicates that there is a level of instability in the injured segment of the spine and there is the prospect of a worsening of the degree of compression. While the probability is that the condition will remain stable there is the chance that it might worsen with increasing symptoms and no doubt increasing restriction. There is the remote possibility of surgery, if symptoms worsen sufficiently, with good prospects of successfully reducing the symptoms to a degree. Dr Shaw did express the view that Ms Brooks’ back pain would ―steadily and slowly worsen as she ages.‖18 [71] Thus there is medical evidence, which I accept, to support Ms Purse’s opinion. However while Ms Purse thought that the medical evidence was that there would be a steady worsening, her point, from the viewpoint of her expertise, was a little different. She expressed the view that because Ms Brooks ―can't …even maintain her flexibility, fitness, strength and endurance because she can't exercise because of how she is now, then as she ages and … with the normal aging process, a person's functional capacity does slowly reduce. To me, she's … more at risk of that and, therefore, more likely to be less able to do her household tasks.‖19 17 Ex 2 para 50 18 Ex 1.24 para 2 p2 and see T1-73/39 – 74/3 19 T1-80/20 -- 11 of 15 -- 12 [72] I accept this argument. Some allowance needs to be made for the possibility, which I think is more of a probability, that Ms Brooks will worsen in her functioning as she ages. Ms Purse thought that her needs would double over the next 10 to 15 years. [73] Secondly, it cannot be assumed that family members will continue to provide assistance. Until now much of the assistance has been provided by an adult son, Brendan. As Mr Brooks said, he and his wife would have been in real difficulties without Brendan’s help. He is now leaving. That throws onto Mr Brooks additional burdens and he too is disabled. The significance of that is that Ms Brooks will in all probability have to employ outside help. That is important in that it seems highly likely that she will need to compensate anyone she does employ for their travel costs given that she lives in a small community and far from the major centres where it is likely that any cleaners will come from. It seems to me that at least an extra hour must be added to the assessed needs to allow for outside help being required. [74] Thirdly, allied to that last point, there must be some allowance for the prospect that Mr Brooks might not survive, or that the marriage might not. While there is no evidence that the marriage is not secure there must be some allowance for the chance that it will not continue. There are some obvious potential impacts from alterations to the make up of the family. For example moderation of the award for driving assistance is not necessarily justified for the future. Ms Brooks would be in real difficulties if she did not have her husband or son to drive her about. [75] As well, there has been no allowance made for Ms Brooks’ inability to carry out yard work or gardening that she used to enjoy. She said that she spent four to five hours each week on outside domestic activities. It is not in issue that she can no longer perform these tasks. The evidence was far from clear whether she was talking of hobbies that she enjoyed or tasks that had to be performed. Ms Jones assumed that the essential tasks had been carried out by family members before the accident and hence made no allowance. While that may be valid for the past it is not for the future. There is the possibility that Ms Brooks will need to take on the responsibility for such tasks. [76] I bear in mind the possibility that Ms Brooks may not continue to live in a remote area and that would reduce the likelihood of having to pay a carer’s travel costs. I bear in mind too that she may come to surgery and need an increased level of assistance, at least for a period. [77] There is a degree of speculation about each of these matters. But they are not matters where the chances of their coming about are so small as to be negligible. [78] For the next 12 years I will allow 6 hours of domestic assistance and two hours for assistance with driving. I will allow one hour for the carer’s travelling. The award rate is $26.20. The assessment is $111,770.20 For the next 13 years I will assume an increased need for assistance at 10 hours per week. I will allow $95,370.21 The defendant’s approach assumes a possible need for agency assistance after the plaintiff reaches age 70. This is done in the defendant’s calculations by taking the mid point of the agency rate and the award rate - $32 per hour. I agree with that approach. For the last 18 years of the plaintiff’s life expectancy I will assume a need for 12 hours assistance per week and allow $88,320.22 20 ($26.20 x 9) = $235.80 x 474 21 ($26.20 x 13hrs) = $340.60 x 280 22 ($32 x 15 hrs) = $480 x 184 -- 12 of 15 -- 13 [79] The defendant’s submission assumes a 10% discount for contingencies. The contingencies that the defendant had in mind were not identified. It is usual to allow for a discount for contingencies in respect of a claim for loss of earning capacity in the future. That is so because there are risks attendant on the plaintiff not being able to work in the future – death, sickness, accident, unemployment and industrial action are the usual adverse contingencies identified.23 Here unemployment and industrial action are irrelevant and sickness and accident are more likely to increase Ms Brooks’ need for assistance, not reduce it. Death too I assume to be irrelevant as I have adopted a statistical life expectancy which is the best guide available24 – Ms Brooks may of course live longer than the years allowed for. As well the factors that I have mentioned that tend to increase the need for assistance outweigh any need to discount for any contingency. [80] I assess the future component of gratuitous assistance at $300,000. I have rounded the figures up to allow for contingencies that I have discussed that might prove more adverse to Ms Brooks than the specific assumptions that I have made. Miscellaneous Future Expenses [81] The defendant concedes an award of $20,021 for the following: (a) equipment including a grab rail, shower chair, front loading washing machine, long handled sponge, and shower hose ($2,651); (b) medication ($5,000); (c) general practitioner visits ($4,870); (d) travel costs ($7,500). [82] The plaintiff claims $71,991.70 for physiotherapy visits, attendance at a pain management clinic as well as for each of the items mentioned by the defendant, albeit with a greater cost per item. [83] The cost of attending a pain management clinic would no doubt be a reasonable one if it brought about some significant alleviation of the plaintiff’s condition. I accept that such a programme probably would enable Ms Brooks to better manage her pain.25 However, if it had that effect it would bring about a reduction in the amounts that I would allow under other heads of loss. On balance I assume these would cancel out. [84] The plaintiff’s submission assumes an ongoing need for physiotherapy at six sessions per year. There is no evidence to support that claim. To date the plaintiff has not availed herself of physiotherapy save for two visits in the space of a week over two years ago. Dr Shaw accepted the possibility of ―occasional maintenance physiotherapy for flare ups‖ but accepted that if there had been no such need until now then there may not be a need for such treatment in the future.26 I do not propose to allow anything for this item. [85] The plaintiff uses Durogesic patches for her pain. Five patches cost her $5.60 on the concessional rate but $85.19 at the full rate. She will not be eligible for that concession 23 See Assessment of Damages for Personal Injury and Death (4th edition) by Luntz at p 380 para 6.4.6. Professor Luntz assesses the contingencies in the Australian context in his text at 0.4% ―at most‖ for sickness, injury and unpaid holidays (see p 386 para 6.4.14) 24 Cf. Wells v. Wells ; Thomas v. Brighton Health Authority [1999] 1 AC 345 25 See report of Ms Jones Ex 1.30 at p 13 26 T1-65/20-30 -- 13 of 15 -- 14 once she receives this award. Five patches last her 15 days. Under the Pharmaceutical Benefits Scheme there is a safety net which entitles Ms Brooks to the concessional rate after expending $1,317.20. Assuming that this remains the treatment of choice Ms Brooks will incur an average weekly cost of about $26.27 for the patches alone. As well she takes panadol – sometimes four per day, sometimes more.27 There is the distinct prospect that her pain levels will worsen over time with a consequent increase in her need for medication. I will adopt a weekly cost of medication of $30 and apply that over her life expectancy. I will allow $30,000. [86] The plaintiff needs to attend on her general practitioner to obtain scripts – every month or two she says.28 The claim is advanced on the basis of a need to attend once every two months and is plainly reasonable. I will allow $6,490 for that aspect of her future needs. [87] A claim is made for travel expenses, presumably to obtain treatment from the general practitioner. The defendant concedes $7,500 and I think that is reasonable. There is the potential for more visits than once every two months – there may be flare ups and the like. On the other hand the plaintiff may not spend the rest of her days 30 kilometres from the nearest medical practitioner. [88] Ms Jones has identified various items of equipment that the plaintiff will need. They will need to be replaced over the years, as she has advised. The approximate costs of these items over Ms Brooks’ lifetime are about $4,000, when discounted on the 5% tables. [89] The total allowed for future expenses is $47,990. Special Damages [90] The only component of the special damages claimed that was in dispute related to the amounts paid to CQ Community and In Home Care. As detailed above, the defendant argues that it should not be liable for the entire costs of cleaners provided by that firm. I agree. There is a further point in addition to the arguments canvassed above. Due to an apparent oversight, that firm was engaged to attend at the plaintiff’s home on public holidays to perform cleaning tasks at a greatly increased cost. That plainly was not reasonable and the defendant should not bear that cost. [91] I will allow the out of pocket expenses claimed at $5,462.52.29 Summary [92] In summary I assess the damages as follows: Pain, suffering and loss of amenities of life $99,320.00 Past economic loss $10,000.00 Interest on past economic loss30 $780.00 27 T1-15/50 28 Ex 2 at para 59 at p 13 29 See Ex 2 at para 59. I have allowed $730 for the CQ Community and In Home Care item (30.5 hrs x $24) -- 14 of 15 -- 15 Loss of Superannuation Benefits (past) $900.00 Future loss of earning capacity $165,000.00 Loss of Superannuation Benefits (future) $14,850.00 Past gratuitous services31 $44,800.00 Future gratuitous assistance $300,000.00 Miscellaneous future expenses $47,990.00 Special damages $5,462.52 Interest on special damages32 $277.00 Total Damages $689,379.52 Orders [93] There will be judgment for the plaintiff in the sum of $689,379.52. [94] I will hear from counsel as to costs. 30 $10,000 x 2.54% x 160 wks. 31 The plaintiff sought interest on the award for past gratuitous assistance but the statute does not permit any amount to be awarded: s 60(1)(b) CLA 32 I have allowed interest on $3,546.72 at 2.54% over 160 wks. -- 15 of 15 --