Britten v CPT Manager Limited [2009] QSC 306

SUPREME COURT OF QUEENSLAND CITATION: Nicole Cherie Britten v CPT Manager Limited [2009] QSC 306 PARTIES: NICOLE CHERIE BRITTEN Plaintiff v CPT MANAGER LIMITED (ACN 054 494 307) Defendant FILE NO/S: S448 of 2008 DIVISION: Trial Division PROCEEDING: Hearing ORIGINATING COURT: Supreme Court Rockhampton DELIVERED ON: 23 September 2009 DELIVERED AT: Rockhampton HEARING DATE: 21, 22 September 2009 JUDGE: McMeekin J ORDER: Judgment for the plaintiff in the sum of $532,685.82 . CATCHWORDS: DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES – PERSONAL INJURIES – where the plaintiff suffered injury to ankle when she slipped at a shopping centre – where liability is admitted – where damages are assessed under the Civil Liability Act 2003 (Qld) - whether past or future economic loss – where the plaintiff’s capacity to perform work is adversely affected. Civil Liability Act 2003, s 59, s 62 Civil Liability Regulation 2003, schedule 4 Van Gervan v Fenton (1992) 176 CLR 327 Bugge v REB Engineering Pty Ltd [1999] 2 Qd R 227 Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501 Fishlock v Plummer [1950] SASR 176 COUNSEL: R Morton for the plaintiff G C O’Driscoll for the defendant -- 1 of 10 -- 2 SOLICITORS: Morton & Morton Solicitors for the plaintiff Bray Lawyers for the defendant [1] The plaintiff, Nicole Cherie Britten, claims damages for personal injuries suffered when she slipped at a shopping centre on 16 May 2006 and suffered a severe complex fracture of the right ankle. Liability is admitted. It is necessary to assess the quantum of damages. [2] Ms Britten was born on 25 July 1972 and so is presently aged 37 years. She was aged 33 years, nearly 34, when injured. [3] The assessment of damages is governed by the provisions of the Civil Liability Act 2003 (“CLA”) and the Civil Liability Regulation 2003 (“the Regulation”). General damages [4] Ms Britten’s injury is variously described in the orthopaedic reports. I doubt that the fine detail matters. Dr English proffered the diagnosis of a “trimalleolar fracture right ankle with diastasis treated surgically complicated by infection”. [5] I am required by the CLA to determine the Injury Scale Value (ISV) applicable to the injury from the Items set out in Schedule 4 of the Regulation. Section 62 of the CLA provides for the calculation of general damages1 according to the assessment of the ISV and the formulae set out in s 62. [6] The debate between the parties was between an assessment at the upper end of Item 142 of Schedule 4 (“serious ankle injury” with an ISV range of 11 to 20) or at the lower end of Item 141(“extreme ankle injury” with an ISV range of 21 to 35). [7] Reports from the three orthopaedic surgeons who had examined Ms Britten were tendered. They agreed that a 4% whole person impairment was appropriate. [8] The assessment was based on the “Guides to the Assessment of Permanent Impairment” published by the American Medical Association, 5 th edition (“the AMA 5 Guide”) which is the preferred method under the Regulation. 2 [9] The court is required to have regard to the guidance provided by the provisions in Schedule 4 concerning its use in so far as they are relevant to the particular case but is not necessarily limited to those factors.3 Whilst the regulations indicate that the purpose of the scheme set out there is to promote consistency in awards, 4 the 1 Defined in s 51 of the CLA as damages for (a) pain and suffering; (b) loss of amenities of life; or (c) loss of expectation of life; or (d) disfigurement. 2 See ss 11 and 12 of Schedule 3 of the Regulation. 3 Sch 3 s. 8. 4 Sch 3 s 1(a) -- 2 of 10 -- 3 overriding purpose of the ISVs prescribed is to reflect the level of adverse impact of the injury on the injured person.5 [10] I am satisfied that Ms Britten has significant pain aggravated not only by activities, such as walking, but as well by something as sedentary as being stationary on a chair for any length of time. She has lost the capacity to engage in her preferred employment which was child caring. She takes Nurofen frequently for her pain. She now wears an ankle brace more or less permanently. Her gait is disturbed. She is not normally dependent on walking aids. She has difficulty placing her foot for even weight distribution particularly when the condition of the ankle is aggravated. [11] I had the opportunity of seeing Ms Britten’s ankle. Mr Morton read into the record an accurate description of its condition on the day of trial. It would seem that condition reflected a bad day rather than a normal day when she has much greater opportunity to rest the leg. There was significant scarring evident as well as swelling. [12] The defendant contended for an ISV of 20 and I think that is right. Whilst the description of injury in Item 141 is accurate the consequences here do not seem to me to be anywhere near as serious as in the examples given. The reference to a whole person impairment of 20% in that Item can be contrasted with the assessment here, albeit that is but one factor. The examples given in Item 142 seem to be apposite here, as is the reference to an 8% permanent impairment. [13] Applying s 62(d) of the CLA I calculate general damages at $26,000. Past economic loss [14] The plaintiff’s case is that she has worked as a child carer for many years, essentially since leaving school 6 , and that but for the accident she would have continued in such employment. She has attempted to maintain employment subsequent to the subject accident but has found the demands of the child carer’s role too great. She tried work as a console operator as well but the physical demands of that employment were greater than she had anticipated. [15] The plaintiff has earned $12,561.12 from eight different employers since her injury. She eventually went on to an unemployment benefit and then a disability pension. [16] The plaintiff seeks $81,092.85 under this head of loss. The calculation assumes a continuation of Ms Britten’s pre-accident employment as a child carer on her then wage but adjusted for quarterly increases in female adult earnings in published statistics over time. This approach results in a weekly income of $531.87 at the present time which is less than the wage paid to Ms Britten in one of her more recent attempts at employment as a child carer at the Mater Hospital ($620 net per 5 Sch 3 s 2(2) and see the references to “the level of adverse impact” in ss 1(b), 3(2), 4(1), and 4(2). 6 See her résumé at p 3.22 of Ex 1 -- 3 of 10 -- 4 week or thereabouts). Thus it may be that this approach understates the true wage for child carers. [17] Underpinning the plaintiff’s claim is the proposition that in her injured state she cannot work as a child carer. In my view this is plainly made out. She has lost the capacity to lift and carry any significant weight, be steady on her feet when carrying an infant, and run to assist a child in danger or distress, all these being every day demands of a child carer’s role. [18] To a large extent these conclusions depend on my assessment of Ms Britten. She appeared to be an open and honest witness, not given to overstating her problems. The limitations that she reports are those that one would expect her to have given the medical evidence. [19] Whilst the defendant attacked her credibility based principally on video evidence of her walking fairly sedately around shopping centres, that evidence was hardly compelling. Where, as here, the plaintiff’s condition is variable and dependant entirely on her level of activity then no significant conclusion can be drawn from a few minutes of video film. In my view there was nothing which suggested that Ms Britten had attempted to mislead anyone as to her condition. [20] Indeed my impression is that Ms Britten was remarkably stoical. Her attempts to maintain employment especially at the Mater, which involved up to an hour and a half travel each way and 13 hour days, when she also had the care of two young children, speaks volumes for her determination. To then take on employment as she did as a console operator requiring her to work at a service station from 7 pm to 4 am demonstrates a powerful wish to keep herself employed. Her duties required her to stack crates of milk and soft drinks as well as clean the premises and serve customers. It was far from a sedentary job. I am satisfied that she experienced significant pain and discomfort in attempting to carry out her duties in these roles. [21] Ms Britten accepted that she left the employment at the Mater because of problems she was having with her daughter. But for those problems she would have endeavoured to keep going despite her pain and discomfort. Ironically the problems with her daughter were the product of Ms Britten leaving Hervey Bay, where the family was settled, to enable Ms Britten to commence employment at the Mater Hospital. She left Hervey Bay because of her problems in gaining employment in that area following her injury. [22] I am satisfied that Ms Britten would have been forced to give up her work at the Mater eventually because of pain intrusion in her life caused by her duties and her need to continue to care for her children. [23] Mr O’Driscoll who appeared for the defendant submitted that while it was reasonable for Ms Britten to give up her employment at the Mater because of her difficulties with her daughter, it was unreasonable for her not to take up employment with the Mater once those problems ceased to be relevant. Mr -- 4 of 10 -- 5 O’Driscoll dated that time from the end of her last employment as a console operator in August 2008. Effectively he submitted that from that time forward there was an unreasonable failure to mitigate loss and the damages should be reduced accordingly. [24] I reject the submission. Mr O’Driscoll pointed to the evidence from Ms Britten where she agreed that she had great support from her superior, a Ms Power, at the Mater and had received glowing references when she left. It seems clear that had she wished she would have been re-employed at the Mater once a position came open. But the submission overlooks the problems she faced – a very long and demanding commute across Brisbane, tasks that clearly taxed her, even if she could cope with them for the period she was there, and the added stress of raising two young children, while away from home for 13 hours a day. Far from being unreasonable that she did not return to the Mater the defendant can be grateful that Ms Britten did her best to maintain her employment with an effort well beyond reasonable in my view. [25] As Mr Morton, who appeared for the plaintiff, submits, the legal axiom that a defendant must take the plaintiff as it finds her means taking her in her “social and earning capacity setting” and not as a “naked human being divorced from [her] environment”: per McHugh J in Nader v Urban Transit Authority of NSW.7 Here that means that Ms Britten’s obligations to her family are not to be ignored in weighing up the reasonableness of her decision. [26] Nor is the defendant’s argument improved by the suggestion that the plaintiff should have found work closer to her home. Where a defendant takes away a plaintiff’s capacity to work – and Mr O’Driscoll accepted that at best for his case the plaintiff could not carry out the range of duties expected of a child carer but only those duties more commensurate with an administrative position – then there is an evidential onus on the defendant to demonstrate the availability of work and what income that employment might have brought: see the discussion in Bugge v REB Engineering Pty Ltd. 8 No such evidence is advanced here. [27] Mr O’ Driscoll also submitted that there ought to be an adjustment for an injury to the plaintiff’s left knee – she dislocated her patella on 4 September 2008. The defendant contends for a reduction of the damages to allow for a six month period to recover from the injury. The plaintiff contends that the dislocation occurred because of the disability consequent upon the fractured ankle. If her account is accurate and the cause attributable to the accident caused injury then there should be no reduction in damages but an increase: Fishlock v Plummer.9 [28] There is only the plaintiff’s account of the injury. Ms Britten says that she slipped whilst walking in her garage. She would normally have recovered but her inability to place full weight on her injured ankle meant that she twisted awkwardly and 7 (1985) 2 NSWLR 501 at 537 8 [1999] 2 Qd R 227 9 [1950] SASR 176. See also the discussion in Harold Luntz, Assessment of Damages for Personal Injury & Death (4 th edn) at pp 186-187 -- 5 of 10 -- 6 hence dislocated her knee. There is no medical evidence to suggest that her account is inherently improbable. The history that appears in the hospital records has water present on the floor and the cause of the slipping. Whether accurate or not – and there is no evidence from any person that the record is accurate and Ms Britten denies it – the account that she could not recover her balance because of the injured ankle is unchallenged. I accept her account. There is no reason to reduce her damages because of the injury to the knee. Even if there was some reason to do so, I accept Ms Britten’s’ account that she recovered in a couple of months, not the six that the defendant contends for. [29] Given Ms Britten’s earnings history, which is excellent, and her obvious determination to maintain employment despite her injury, which suggests that there was every prospect of her doing so if uninjured, I am satisfied that the plaintiff’s approach is a valid one. [30] I allow $80,000 under this head of loss. Future economic loss [31] The argument here is as to the presence of any residual earning capacity. [32] The defendant relied principally on the opinions of a Dr Nicholas Burke, an occupational physician. Dr Burke concluded in his report that Ms Britten was capable of working on a full time basis as a console operator and at a call centre. He thought that she could work on a part time basis as a child care assistant and administrative assistant. 10 [33] There were a number of concerns with Dr Burke’s analysis. One was that he plainly had not questioned Ms Britten very closely as to her duties in the places that she worked. That led to overly optimistic assumptions as to her capacities. Another was that he seemed to assume that it was appropriate to ignore her complaints of pain and discomfort in making his assessment. A third was that the qualifications that had to be placed on his opinions do not appear in his report and were extracted in cross examination. I am not satisfied that his was a balanced assessment. In the end he conceded that the probability that she would end up in employment was not high. [34] The overall effect of the evidence it seemed to me was that in her present state Ms Britten could perform some of the duties expected of the occupations mentioned by Dr Burke but her capacity to perform all usual duties would depend very much on her pain levels on any given day and be quite variable. As well she is untrained as an administrative assistant and would need to upgrade her skills considerably to be an attractive employee. She left school half way through year 11 and has no secretarial skills. 10 Ex 7 at p 8 -- 6 of 10 -- 7 [35] Mr Hoey, an occupational therapist who specialises in placing people in employment, pointed out that Ms Britten’s experience and aptitudes to date had been as a carer, not as a marketer. Hence her skills as a call centre operator engaged in marketing were unproven and diametrically opposed to her demonstrated capacities to date. [36] In addition to her incapacity from her injury, her age, the need to start out in a new field of work, the history of injury, the receipt of a disability pension and her need to re-train were all significant barriers to regaining employment. [37] Despite those significant barriers Ms Britten is plainly motivated to work, she has a very pleasing personality, which seems to have helped her get employment in the past and which plainly impressed her superior at the Mater, and has a determination which is rarely seen. I am confident that in time, and perhaps with the easing of the demands of child rearing she will retrain and exercise some earning capacity. Her best chance probably lies in the administrative field perhaps associated with her interest in a child care centre. Opportunities will not be extensive. Her continued employment will always be subject to the vagaries of her day to day condition. She will need an empathic employer. There is the possibility, perhaps small, that she may worsen with time. [38] Doing the best I can I assess damages on the basis that but for the injury Ms Britten would have a present earning capacity of not less than $530 net per week. 11 That should be applied over 28 years to take Ms Britten to age 65. A discount of 30% should be applied to allow for contingencies of life and residual earning capacity. I assess the damages under this head of loss at $295,000.12 Past domestic assistance [39] Because of her injury the plaintiff required and received assistance from her former husband and her daughter. The services that they rendered to her were generally of a domestic kind such as assistance with shopping, the preparation of meals, the doing of washing, driving and mowing. As well there were some personal services such as assisting her with her bathing. The need for such services is a compensable loss and that that loss is measured by, in general, the market cost of providing the services: Van Gervan v Fenton.13 The parties were agreed that the market cost of provision of services was $22 per hour for the past claim and $25 per hour for the future claim. [40] The assessment of damages under this head is governed by the provisions of s 59 of the CLA which provides as follows: "59 Damages for gratuitous services (1) Damages for gratuitous services are not to be awarded 11 The evidence of the wage at the Mater Hospital suggests that there is a significant discount already built in to this starting point. 12 $530 x 796.6 x 0.7 13 (1992) 176 CLR 327. -- 7 of 10 -- 8 unless— (a) the services are necessary; and (b) the need for the services arises solely out of the injury in relation to which damages are awarded; and (c) the services are provided, or are to be provided— (i) for at least 6 hours per week; and (ii) for at least 6 months. (2) Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened. (3) Damages are not to be awarded for gratuitous services replacing services provided by an injured person, or that would have been provided by the injured person if the injury had not been suffered, for others outside the injured person’s household. (4) In assessing damages for gratuitous services, a court must take into account— (a) any offsetting benefit the service provider obtains through providing the services; and (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." [41] The defendant concedes that gratuitous services were necessary as a result of the subject injury and that the threshold requirements of s 59(1)(c) of the CLA have been met. There was no submission made that any other provision in the section affected the assessment. [42] Mr Morton tendered a schedule of past care rendered. 14 The hours claimed totalled 1280.19. Mr O’Driscoll’s cross examination demonstrated that the claim is overstated – Ms Britten’s need for any significant assistance with showering and cooking lessened from approximately the time she became fully weight bearing on about 16 February 2007. Her need for assistance with showering lessened to about once per month and in any case occupied no more than about 10 to 15 minutes, as indeed one might expect. I doubt that she had any significant need for help with the cooking from that time. [43] There was an attack on Ms Britten’s claim on the basis that the video evidence should cause me to doubt her bona fides. As I have explained I do not accept that submission. The video evidence demonstrates a capacity to perform light shopping which I am satisfied requires some moderation of the claims made for assistance in that regard. [44] In broad terms I adopt Mr Morton’s schedule as reflecting the appropriate claim but adjust it downwards to about 1000 hours of assistance to allow for some moderation in the components for shopping, food preparation and showering. 14 Ex 8 -- 8 of 10 -- 9 [45] I assess the damages under this head at $22,000. Future Gratuitous Assistance [46] The plaintiff seeks that damages be assessed on the basis of 3.5 hours assistance a week and the defendant contends for 2 hours per week. [47] Plainly Ms Britten can do light shopping and does so. She has only an occasional need for assistance with showering and no significant need for assistance with cooking. She will continue to have a need for heavier shopping, and mowing. While I accept that the heavier aspects of clothes’ washing may be difficult at times I cannot accept that there is a need for 15 minutes each day for such assistance to cater for the needs of one person. I suspect the claim reflects the demands of child care which cannot be allowed. 15 Ms Britten accepted that she performs her usual chores but it takes her longer to do so. I adopt the defendant’s analysis of 2 hours care per week. [48] While there needs to be some consideration of advancing age on Ms Britten’s capacities to perform her chores even if uninjured, there will be occasions where she is likely to be significantly disabled and require more care than I have allowed, especially if she endeavours to pursue employment as I assume. These considerations should balance out. [49] I assess damages at $48,000.16 Future Treatment Costs [50] The plaintiff claims $3,059.00 for future pharmaceuticals and $5,000 for future expenses. The latter sum included an allowance of $2,000 for future surgery for which there is little support in the evidence and which Mr Morton conceded he had difficulty pressing. [51] There is an ongoing need for pharmaceuticals – typically Nurofen - at a cost of $3.20 per packet. Ms Britten says that she consumes about a packet a week. I will allow $3,000 for that probable future expense. 17 There is the prospect of occasional need for treatment as indeed occurred in December 2008. [52] I will allow $5,000 under this head to include pharmaceuticals. Special Damages 15 CSR v Eddy (2006) 226 CLR 1 16 2 hrs x $25 x 956.1 (46 yrs) 17 $3.20 x 956.1 discounted -- 9 of 10 -- 10 [53] There is a small dispute about the amount of special damages that should be allowed. Apart from an amount of travel expenses claimed I am not entirely clear where the dispute lies. Ms Britten claims for the amount paid on her behalf by Workcover, an amount paid by HIC, and past pharmaceuticals. I allow these claims in the amount of $10,582.74. [54] Ms Britten has had to travel to seek treatment. A claim is made for $2,000 for travel expenses incurred. There is no precise way of calculating the appropriate sum. Her need was substantial in the early stage of her treatment. I will allow $1,000. Summary [55] The remaining heads of loss were uncontroversial. In summary I assess the damages as follows: Pain Suffering and loss of amenities of life $26,000.00 Past economic Loss $80,000.00 Interest on past economic loss 18 $3,537.49 Past loss of Superannuation Benefits 19 $7,200.00 Future Loss of Earning Capacity $295,000.00 Future Loss of Superannuation benefits $26,550.00 Past Gratuitous Services $22,000.00 Interest on Past Gratuitous Services 20 $2,034.00 Future Domestic Assistance $48,000.00 Future Cost of Attendance on GP and pharmaceuticals $5,000.00 Special damages $11,582.74 Interest on special damages 21 $266.59 Fox v Wood $5,515.00 Total Damages $532,685.82 Orders [56] There will be judgment for the plaintiff in the sum of $532,685.82. [57] I will hear from counsel as to costs. 18 ($80,000 – ($15,895 + $26,943.38)) x 2.75% x 174.857 wks 19 Past and future calculated at 9% - s 56 CLA 20 $22,000 x 2.75% x 174.857 wks – no submissions were made that interest was not available– see s 60 CLA - although I note that no amount was allowed in the defendant’s summary schedule. 21 On $2,885.17 at 2.75% over 3.36 years -- 10 of 10 --