Coop v Johnston & Suncorp Metway Insurance Ltd [2005] QDC 79

1 DISTRICT COURT OF QUEENSLAND [2005] QDC 079 REGISTRY: ROCKHAMPTON NUMBER: D82/2004 Plaintiff: ROSEMARY LEE COOP and First Defendant : BENJAMIN JOSEPH JOHNSTON and Second Defendant: SUNCORP METWAY INSURANCE LTD REASONS FOR JUDGMENT BEFORE HIS HONOUR JUDGE G.T. BRITTON S.C. (DELIVERED THE 24 DAY OF MARCH 2005) 1. The plaintiff who was born on the 22nd of March 1973 claims damages for personal injury sustained in an accident ('the accident") which occurred on 10 December 2002. 2. At the time of trial on the 25th of January 2005, the plaintiff was aged 31 and she was 29 as at the date of the accident. 3. Liability has been admitted. 4. The circumstances surrounding the accident were somewhat unusual. 5. The plaintiff had been travelling as a passenger in a car being driven by her sister in a northerly direction on the Bruce Highway. 6. At approximately 7 p.m. at a place about 7 kilometres south of Gympie, the plaintiff and her sister noticed some stationary vehicles on the highway with their hazard lights operating and that there was a tree across the roadway. 7. As a result, the plaintiff's sister stopped her car and the plaintiff got out to render assistance. She was standing in front of a vehicle which was facing south when a station sedan driven by the first defendant collided with the three and thereafter with the vehicle in front of which the plaintiff was standing and it then struck the plaintiff, throwing her onto its windscreen and, as a result, she suffered injury. -- 1 of 29 -- 2 8. The plaintiff was taken by ambulance to the Gympie Hospital where she was examined. 9. There is a report before me from the Gympie Hospital. It forms part of Exhibit 19 which also contains a copy of the records of that hospital. 10. According to the records of the Gympie Hospital, the plaintiff complained of pain to the right side of her face and nose and her left hip. A slight nosebleed was noted. Bruising was noted over the lateral aspect of the mid shaft of the left humerus but no fracture was seen. Facial bruising was noted on the left face and a small scratch was seen on the left side of the nose. However there were no breathing difficulties noted. On examination of the left elbow, no abnormality was detected. X-rays were performed which revealed no fracture of the hip or femur. The plaintiff was prescribed analgesia and discharged. 11. On the following day, the plaintiff travelled with her parents and sister to Gladstone and on the 12th of December 2002, the plaintiff consulted her General Practitioner, Dr R Mawer, but there is no report before me from Dr Mawer. 12. In her quantum statement (Exhibit 1), the plaintiff claims to have suffered a facial injury including a fractured nose. 13. The records of the Gympie Hospital do not make any mention of a fractured nose. However, Dr Evan Matthews, an ear nose and threat specialist, in a report dated 18 January 2005 (Exhibit 6) said that he had viewed X-rays of the plaintiff's nose taken on the 12th of December 2002 and that those X- rays revealed a displaced fracture of the nose. 14. Mr Campbell, who appeared for the defendants, initially objected to the tendering of Exhibit 6 as well as Exhibit 7 but later informed me that he did not persist with his objections. (T131) 15. Under cross-examination, Dr Matthews agreed that the X-rays showed a small fracture of the nasal bone with minimal displacement. 16. I find then that in the accident the plaintiff suffered a small fracture of the nasal bone with minimal displacement. 17. The plaintiff says that her fractured nose still causes her pain and she continues to have nosebleeds, that her sense of smell has decreased and that her nose is almost always blocked. She says that her nose is no longer straight and that that causes her some embarrassment. She says that prior to the accident she had no problems with her nose. 18. When seen by Dr Matthews on 30 October 2003, the plaintiff complained of nasal obstruction and a decreased sense of smell. She described as well an excessive post-nasal drip, sneezing on occasion and facial pain -- 2 of 29 -- 3 associated with an upper respiratory tract infection. She told Dr Matthews that she felt her appearance had changed minimally. He said she did have some palpable roughness which she had noticed and had some scarring of her skin which she stated was the site of some lacerations which occurred in the accident. 19. Dr Matthews said that the plaintiff had a mild deviation of her nasal septum but her nasal mucosa and both inferior turbinates were significantly congested. 20. Dr Matthews opined that the nasal septal deviation was likely to be a direct result of the accident as the plaintiff had no prior history of nasal trauma. However, he further opined that the enlarged inferior turbinates and congested nasal mucosa along with some of her symptoms were highly suggestive of allergic rhinitis which was unrelated to the accident. 21. In his report of 18 January 2005 (Exhibit 6), Dr Matthews said it was possible to correct the nasal septal deviation by performing rhinoplastic surgery which might improve the plaintiff's situation but this was unlikely to improve her sense of smell. 22. There is no evidence from Dr Matthews that any loss of sense of smell experienced by the plaintiff is consequent upon only the nasal fracture and the consequent septal deviation. I understand it to be Dr Matthew's opinion (as expressed in the final paragraph of Exhibit 6) that the nasal symptoms complained of by the plaintiff are due to a combination of allergic rhinitis and a slight narrowing of the plaintiff's nasal cavities secondary to the nasal trauma suffered in the accident. 23. In his third report (Exhibit 7) Dr Matthews supplied details of the fees which would be payable for both reconstructive septoplasty surgery ($1,040) and rhinoplasty surgery ($2,120). 24. In evidence, Dr Matthews said (T242) that he would probably offer the plaintiff reconstructive septoplasty to rectify her septal deviation but that he might also recommend rhinoplastic surgery in addition. 25. Under cross-examination, Dr Matthews was told of an entry in the records relating to the plaintiff of the Gladstone Hospital (Exhibit 18) dated 13th of June 1994, in which the plaintiff gave a history of having been punched in the left side of the face and suffering a nosebleed. 26. Dr Matthews conceded that there was a possibility that the septal deviation was caused by that incident. 27. Dr Matthews said that whilst, in theory, there could be a fracture of the nasal bone which did not cause septal deviation, it was probable that a force sufficient to fracture the bone would also be sufficient to cause a septal deviation. -- 3 of 29 -- 4 28. A perusal of the notes of the Gladstone Hospital relating to the examination of the plaintiff on the 13th of June 1994 reveals the following entry: "Nose - NAD". 29. Dr Matthews was questioned by me in relation to this entry (T48). He agreed that "NAD" was accepted as meaning "no abnormality detected" and he said that the assumption he would make from the notes is that when examining the nose no obvious or any abnormality was detected. 30. In her quantum statement, the plaintiff said that she would undertake surgery to try to relieve her nasal symptoms (Exhibit 1 paragraph 21). 31. In oral evidence, the plaintiff swore that as a result of the 1994 incident her nose was not bent out of shape. 32. I am satisfied on the balance of probabilities that the plaintiff does have a nasal septal deviation and that this was caused by the accident. I accept the evidence of Dr Matthews that the enlarged inferior turbinates and congested nasal mucosa are probably due to allergic rhinitis which is unrelated to the accident. However I accept the opinion expressed by Dr Matthews that many of the symptoms complained of by the plaintiff are due to a combination of allergic rhinitis and a slight narrowing of her nasal cavities secondary to the nasal trauma suffered in the accident. 33. I accept the evidence of Dr Matthews that the cost of carrying out reconstructive septoplasty surgery to correct the nasal septal deviation would be $1,040. 34. Dr Matthews did not seem to recommend that the plaintiff undergo this surgery in isolation from addressing her problems with allergic rhinitis. In fact, he seemed to me to favour treating the allergic rhinitis and, depending on the result of that, addressing the deviation of the nasal septum. 35. I have already referred to the fact that when she was examined by Dr Matthews, the plaintiff said she felt that her appearance had changed minimally. I take it that the palpable roughness referred to by Dr Matthews and which he said the plaintiff had noticed herself is due to the septal deviation. 36. I accept that the plaintiff does suffer some embarrassment due to the nasal septal deviation and that reconstructive septoplasty surgery would probably rectify this problem and that the plaintiff will probably have that surgery and that it is reasonable that she do so and she is therefore entitled to be compensated for the cost of that procedure. 37. The other injuries the plaintiff claims to have suffered are mainly orthopaedic ones. -- 4 of 29 -- 5 38. I accept that the plaintiff suffered a soft tissue injury to the area of her left hip as well as bruising to the left side of her face and a small scratch on the left side of her nose and bruising over the lateral aspect of the mid shaft of the left humerus. I find that all of those injuries resolved quickly and that with the exception of some scarring noted by Dr Matthews, the plaintiff suffers no residual disability from those injuries. 39. The plaintiff, in her quantum statement (Exhibit 1 paragraph 14), says she suffered a soft tissue injury to her ribs. There is no medical evidence to support this and specifically there is nothing in the record of the Gympie Hospital to indicate that the plaintiff complained of any symptoms relating to her rib area. However, I accept that she probably suffered from some minor soft tissue injury in the area of her ribs which disappeared fairly quickly and has not left any residual disability. 40. The plaintiff claims to have suffered an injury to her left wrist. 41. In her quantum statement (Exhibit 1) at paragraph 22, she says that since the accident she has suffered from pain in her left wrist and that the painful area has a large lump which she did not have before the accident. She says that if she does not use her left wrist it is not painful but when she uses it it becomes painful. Since she has started work at Coles, she says the pain has become much worse. 42. The plaintiff has a piece of glass from a previous accident still present in her left wrist. In March 2001, according to the records of the Gladstone Hospital, she suffered a laceration to her left wrist when she fell onto a beer glass which broke when impacted. In fact, on my reading of the hospital notes, X-ray examination on 29 March 2001 revealed the presence of two pieces of glass described as "very small fragments". She was advised at the time against having the glass removed, according to those records. 43. In evidence she said that the area where the glass was as indicated by the presence of a scar was on the flexor aspect or underside of the wrist, whereas the lump which she attributed to the accident was on the dorsal or upper aspect. 44. The plaintiff said that the lump had appeared about one month after the accident and that before the lump appeared she had discovered a couple of weeks after the accident that she had pain in her wrist in the area where the lump later appeared. She expressly denied having any problem with this part of her wrist before the accident. 45. The plaintiff was assessed by Dr Iain Macfarlane, orthopaedic surgeon, on 28 August 2003. 46. According to the history given to Dr Macfarlane by the plaintiff, her left wrist was sore since the accident but over the last month or so before she was seen by Dr Macfarlane, the lump had appeared over the dorsal aspect of -- 5 of 29 -- 6 the wrist. I note that the timing of the appearance of the lump is different from the plaintiff's evidence but it does not seem to me that this discrepancy is of any significance. 47. On examination, Dr Macfarlane noted a lump over the dorsal aspect of the left wrist which was slightly tender. He said it was about two centimetres in diameter and he noted some slight loss of flexion and extension of the left wrist, though radial and ulnar deviation of the wrist were normal. 48. Dr Macfarlane described the lump as a ganglion. He said that such a condition might arise spontaneously but he expressed the opinion that it was due to the accident. He said it might possibly diminish in size but that it would be reasonable to remove it surgically, the cost including hospital charges, doctors' fees and ancillary services being in the order of $2,300 and this would mean her being off work for three to four weeks. At the time of trial Dr Macfarlane said that the cost of removal of the ganglion would be $2,600. 49. Dr Macfarlane assessed permanent impairment (after referring to the American Medical Association Guides, 5th Edition) as 10 per cent of the left wrist, converting to 6 per cent of the left arm and 4 per cent of the whole person. However, he said that with treatment she should be left with very little, if any, impairment. 50. The plaintiff was examined also by Dr Nutting, orthopaedic surgeon, on 4 November 2003. However, Dr Nutting made no note of the plaintiff's ganglion and he said that the plaintiff made no complaint to him in relation to her wrist and that he became aware of it only after reading Dr Macfarlane's report (T54 and T56). On examination of her upper limbs, he found no obvious impairment. 51. Under cross-examination, Dr Macfarlane said that when he examined the plaintiff he found a hard lump (T62). When it was suggested to Dr Macfarlane that when the plaintiff displayed her wrist in the course of her evidence it appeared more like an area of mild swelling, Dr Macfarlane ventured the suggestion that it might have become more diffuse since he saw the plaintiff and he agreed that ganglions do come and go and that they can break down and go out into the tissues and sometimes they might disappear spontaneously. 52. There was, of course, no evidence that, despite the appearance of the plaintiff's wrist when she displayed it during her evidence, that the discrete lump as noted by Dr Macfarlane was no longer there, although Dr Macfarlane said there was a two centimetre lump which was raised and visible to the eye when he examined the plaintiff (T67). 53. I accept Dr Macfarlane's evidence that when he examined the plaintiff's wrist in August 2003, there was a ganglion present. It seems likely, however, that it has become more diffuse and spread into surrounding tissue (T67/25) but there is no medical evidence that this is what has happened and it -- 6 of 29 -- 7 would not be right to rely on my own observations as a layman of the plaintiff's wrist when she gave evidence. In Dr Macfarlane's view, if the ganglion has become more diffuse and spread into surrounding tissue it might be more difficult to excise it completely. In view of the fact that Dr Macfarlane had not seen the plaintiff since August 2003 it is difficult to give much weight to his evidence on this aspect of the matter. There is no evidence that the ganglion has disappeared entirely and I am prepared to accept that it is still present in some form. I accept also that ganglions can reappear following surgery (Exhibits 3 and 4). 54. According to the plaintiff, the symptoms which have caused her most difficulty are neck pain and headaches. She says she suffers from headaches nearly every day and these are aggravated by various activities including driving. 55. Similarly, she says she has suffered from neck pain most days since the accident and this is made worse by certain types of activity. For instance, she says that if she tries to do too much around the house her neck pain is particularly bad. 56. In her employment with Coles, which commenced on 10 December 2004, she has experienced an increase in neck pain as well as pain in her wrist. 57. The plaintiff consulted a General Practitioner, Dr Olulope, for the first time on 13 August 2003. She complained of constant, dull and nagging headaches. Dr Olulope found mild tenderness along the cervical spine with restricted lateral rotation of the neck and he ordered X-rays which were carried out on 18 August 2003. The radiologist reported loss of normal cervical curve which it was said was usually seen in association with muscle spasm (Exhibit 10). Dr Olulope then prescribed physiotherapy. 58. Dr Macfarlane's examination of the plaintiff was carried out very shortly after her first consultation with Dr Olulope and the taking of the cervical spine X- ray. 59. Dr Macfarlane found that the range of movement of the plaintiff's cervical spine was "slightly restricted to about 90 per cent of normal". He conceded (T66) that the loss of movement was not asymmetrical but equal. 60. Dr Macfarlane's diagnosis was a whiplash injury. He said that the neck problems might improve a little, up to a year or so post-injury, but that by and large where a patient has problems three months post-injury these do not get much better and he opined that the plaintiff's neck condition might be considered stationery and stable. 61. Dr Macfarlane assessed permanent impairment in relation to the plaintiff's neck as 5 per cent of the whole person. He said that was assessed under Diagnosis Related Estimated Cervical Category II table 15-5, page 392 of the American Medical Association Guides, 5th Edition. -- 7 of 29 -- 8 62. So far as treatment was concerned, Dr Macfarlane said that analgesics and anti-inflammatories might be required from time-to-time. He seemed to be of the view that treatment in the form of physiotherapy might not be efficacious more than one year post-injury. 63. Dr Macfarlane said the plaintiff was fit for normal work but that she should avoid repetitive movements with her left wrist and/or getting into confined spaces due to the injury to her neck and he said she should be able to work to normal retirement age. 64. In relation to her work as a filler/packer, Dr Macfarlane said he would expect the repetitive lifting, twisting and work at or above shoulder height would aggravate the plaintiff's neck injury and he advised her to look for lighter work (Exhibit 4). 65. In oral evidence, Dr Macfarlane said that in her job, if she were stretching and lifting too many heavy weights and doing it too repetitively and twisting she might well have problems (T66/35-45). 66. Dr Nutting examined the plaintiff on 4 November 2003. 67. On examination, Dr Nutting found that lateral flexion and rotation of the plaintiff's neck were accomplished symmetrically, with discomfort being reported at the base of the neck towards the left. Extremes of lateral rotation with extension did not provoke any radicular signs. 68. In oral evidence, Dr Nutting explained (T51) what was meant by radicular signs. He said also that the discomfort which the plaintiff reported at the base of the neck was most likely muscular or ligamentous rather than neurological. 69. Dr Nutting conceded that the plaintiff might well experience discomfort upon examination, and indeed that the persisting discomfort which she reported experiencing was probably caused by a soft tissue injury to the cervical spine (T54). 70. Dr Nutting detected no sign of exaggeration on the part of the plaintiff during the examination (T55/45). 71. When examining the plaintiff for any loss of movement of her neck, Dr Nutting did not use any device, nor did he place his hands on the plaintiff. He merely instructed her to move her head in a particular direction and then visually observed her movements. 72. Dr Macfarlane, on the other hand, used a device known as a goniometer to measure range of movement (Exhibit 4). He said that the use of the goniometer reduced the element of subjectivity in testing for range of motion. I accept Dr Macfarlane's evidence as to his clinical findings of loss of movement and I accept his evidence generally. -- 8 of 29 -- 9 73. In his report, Dr Nutting expressed the opinion that the accident described by the plaintiff had resulted in a number of soft tissue injuries, the most significant of which was persisting discomfort in the cervical region. However, he said that as there were no neurological deficits nor any radicular symptoms, her cervical condition was assessed as a DRE cervical category I, with a 0 per cent permanent impairment. (Dr Nutting was referring to the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition). 74. Dr Nutting explained that his assessment did not mean that the plaintiff did not have persisting discomfort, but that she was assessed on the basis that she had no significant clinical findings, no muscular guarding, no documented neurological impairment, no significant loss of motion segment integrity and no other indication of impairment related to injury or illness and no fractures. 75. It was Dr Nutting's opinion that the plaintiff did not have decreased employment prospects as a result of the accident. 76. So far as the plaintiff's evidence was concerned, I accept that she has continued to experience almost daily neck pain and headaches. I accept that she suffers from exacerbation of neck pain as a consequence of some activities, for example packing and carrying when she moved house in December 2004. 77. I accept the plaintiff's evidence that she has experienced some exacerbation of neck pain associated with her work activities at Coles involving repetitive lifting and working above shoulder height. 78. I accept that the plaintiff has experienced pain in her left wrist, particularly associated with her work at Coles and that this is caused by the presence of the ganglion. 79. I accept that the plaintiff has experienced and continues to experience some difficulty with carrying out her housework due to both the neck pain and the wrist pain, and that she is now not able to enjoy playing touch football as much as she did prior to the accident because of exacerbation of neck pain. 80. Whilst I accept that the plaintiff has the nasal problems of which she complains in paragraph 21 of her quantum statement (Exhibit 1), I do not accept that they are all attributable solely to the accident. I accept the opinions of Dr Matthews. I am satisfied that the nasal septal deviation was caused by the accident, and whilst I am prepared to accept that the plaintiff has some pain due to this and also that there is a cosmetic defect which causes her some embarrassment, I do not accept that her partial loss of the sense of smell, her nasal blockages and nosebleed are solely due to the accident, notwithstanding that she says she had no problems with her nose pre-accident. -- 9 of 29 -- 10 81. The Civil Liability Act 2003 ("CLA") applies to any civil claim for damages for harm and it is agreed that it applies to this plaintiff's claim. 82. Section 61 of CLA (as amended by the Professional Standards Act 2004) provides: "61. Assessment by Court of injury scale (1) If general damages are to be awarded by a Court in relation to an injury arising after 1 December 2002, the Court must assess an injury scale value as follows- (a) the injured person's total general damages must be assigned a numerical value ("injury scale value") on a scale running from zero to 100; (b) the scale reflects 100 equal gradations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind; (c) in assessing the injury scale value, the Court must- (i) assess the injury scale value under any rules provided under a regulation; and (ii) have regard to the injury scale values given to similar injuries in previous proceedings. (2) If a Court assesses an injury scale value for a particular injury to be more or less than any injury scale value prescribed for or attributed to similar particular injuries under subsection (1)(c), the Court must state the factors on which the assessment is based that justify the assessed injury scale value." 83. Section 62 of CLA provides for the calculation of general damages according to the assessment of the scale value of the injury and the formulae set out in section 62. 84. By section 51 of CLA, the term "general damages" is defined thus: " 'General damages' means damages for - (a) pain and suffering; or (b) loss of amenities of life; or (c) loss of expectation of life; or (d) disfigurement." 85. The Civil Liability Regulation 2003 ("the Regulation") by section 6 provides for rules for the assessment of injury scale values for particular injuries for section 61(1)(c)(i) of CLA. -- 10 of 29 -- 11 86. Section 6 of the Regulation provides (relevantly): "6 (1) This section and schedules 3 to 6 provide the rules under which a Court must assess the injury scale value for an injury.) (2) Schedule 4 provides the ranges of injury scale values for particular injuries that the Court is to consider in assessing the injury scale value for those injuries. (3) For an injury not mentioned in schedule 4, a Court, in assessing an injury scale value for the injury may have regard to the ranges prescribed in schedule 4 for other injuries. (4) Schedule 3 provides matters to which a Court is to have regard in the application of schedule 4. (5) … (6) …" 87. I find that the injuries suffered by the plaintiff are as follows- (i) Soft tissue injury to left hip/thigh; (ii) Soft tissue injury consisting of bruising to lateral aspect of mid- shift of left humerus; (iii) Soft tissue injury consisting of bruising to left side of face; (iv) Soft tissue injury consisting of a small scratch to the left side of the face; (v) Cervical spine injury; (vi) Ganglion to left wrist; (vii) Displaced fracture of nose. 88. Section 2 of Schedule 3 of the Regulation provides: "(1) In assessing the injury scale value (ISV) for an injury mentioned in the injury column of Schedule 4, a Court must consider the range of injury scale values stated in Schedule 4 for the injury. (2) The range of ISVs for the injury reflects the level of adverse impact of the injury on the injured person." 89. Section 3 of Schedule 3 of the Regulation provides- "(1) Subject to section 4, in assessing the ISV for multiple injuries, a Court must consider the range of ISVs for the dominant injury of the multiple injuries. (2) To reflect the level of adverse impact of multiple injuries on an injured person, the Court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the Court would assess for the dominant injury only." -- 11 of 29 -- 12 90. The term "dominant injury" is defined in the dictionary (Schedule 7 of the Regulation) in the following way- " 'Dominant injury' of multiple injuries means- (a) if the highest range for two or more of the injuries of the multiple injuries is the same - the injury of those injuries selected as the dominant injury by a Court assessing an ISV; OR (b) otherwise - the injury of the multiple injuries having the highest range." 91. Section 8 of Schedule 3 of the Regulation provides - "(1) In addition to providing ranges of ISVs for particular injuries, Schedule 4 sets out provisions relevant to using Schedule 4 to assess an ISV for particular injuries. Examples of relevant provisions - ƒ examples of the injury ƒ examples of factors affecting ISV assessment ƒ comments about appropriate level of ISV (2) In assessing an ISV, a Court must have regard to those provisions to the extent they are relevant in a particular case. (3) The fact that Schedule 4 provides examples of factors affecting an ISV assessment is not intended to discourage a Court from having regard to other factors it considers are relevant in a particular case." 92. Section 9 of Schedule 3 of the Regulation gives examples of other matters to which a Court may have regard when assessing an ISV. It does not purport to be an exhaustive list. The examples given are: " ƒ The injured person's age, degree of insight, life expectancy, pain, suffering and loss of amenities of life ƒ The effects of a pre-existing condition of the injured person ƒ Difficulties in life likely to have emerged for the injured person whether or not the injury happened ƒ In assessing an ISV for multiple injuries, the range for, and other provisions of Schedule 4 in relation to an injury other than the dominant injury of the multiple injuries." 93. Having regard to the provisions which I have set out, I turn then to a consideration of each of the injuries which I have found the plaintiff has suffered. I will deal with each injury in the order set out in paragraph 87 of these reasons. The first task in relation to each injury is to make a determination as to which injury in the injury column of Schedule 4 most closely describes the injury suffered by the plaintiff, but until a determination -- 12 of 29 -- 13 is made as to which injury is the dominant injury it is unnecessary to assess an actual ISV in relation to any particular injury. Injury (i) - Soft Tissue Injury to Left Hip/Thigh 94. Part 6 division 9 of Schedule 4 deals with pelvis or hip injuries. On any view of the matter, the injury suffered by the plaintiff was a very minor one. None of the injuries set out in part 6 division 9 seems to be particularly apposite to the type of injury suffered by the plaintiff but there seems to be no other part of Schedule 4 which deals with this type of injury. I infer from section 61(1)(b) of CLA that it may be the case that a person is found to have suffered an injury but that the injury is not severe enough to justify any award of general damages. However, I refer again to section 6(1)(iii) of the regulation which contemplates that the mere fact that an injury is not mentioned in Schedule 4 does not mean that an ISV should not be assessed. 95. Item 128 is "minor pelvis or hip injury". The example given for this injury is "an uncomplicated fracture" which the plaintiff here certainly did not have. However, the comment about the appropriate level of ISV then says that an ISV at or near the bottom of the range will be appropriate if there is "a soft tissue injury from which the injured person fully recovers." A fracture, even though uncomplicated, does not seem to me to be a soft tissue injury. It seems to me therefore that the soft tissue injury suffered by the plaintiff may be assessed as an item 128 injury for which the range of ISVs is zero to 10. I am satisfied that the injury suffered by the plaintiff was not so minor as to not justify any award of general damages. Injury (ii) - Soft Tissue Injury to Left Humerus 96. This injury consists of bruising to the lateral aspect of the mid-shaft of the left humerus. Part 6 division 8 of Schedule 4 seems to be appropriate. 97. Item 124 is for a minor upper limb injury. Again the example given relates to a fracture which the plaintiff certainly did not have, but again the matters set out under the heading of "comment" seem to be apposite to the type of injury suffered. I therefore assess this injury as an item 124 injury for which the range of ISVs is zero to 5. Injury (iii) - Soft Tissue Injury to Face 98. Part 3 division 2 contains item 17 which is for a minor facial injury. Again the examples given are for fractures or other much more serious injuries than the bruising suffered by the plaintiff, and in any event this division relates to "skeletal injuries to the facial area". Item 17 is therefore not appropriate. 99. Part 3 division 3 relates to "scarring to the face". However the injuries in this division (items 19-22) do not seem to me to contemplate an injury consisting only of scarring. -- 13 of 29 -- 14 100. It therefore seems to me that there is no injury in Schedule 4 which provides an ISV where there is merely bruising to the face. I am of the view that this injury is not severe enough by itself to justify any award of general damages but it seems to me that the fact that the plaintiff has suffered this injury is a matter which may be taken into account pursuant to section 9 of Schedule 3 of the Regulation. Injury (iv) - Scratch to Face 101. As previously noted, part 3 division 3 relates to "scarring to the face". Item 22 is for minor facial scarring. It seems to me that the evidence in relation to this injury is rather skimpy. A small scratch on the left side of the nose was noted at the Gympie Hospital (Exhibit 19). Dr Macfarlane, on examination found minor scarring over the front of the nose (Exhibit 2). Dr Matthews noted some scarring of the skin (Exhibit 5). He does not describe its precise location but he does say in his report that he was "going to limit any assessment to her nose only". It therefore seems to me that the injury falls within item 22 for which the range of ISVs is zero to 5. Injury (vehicle) - Cervical Spine Injury 102. Part 6 division 1 of Schedule 4 relates to cervical spine injuries. If it were not for the applicability of CLA to the assessment of the plaintiff's damages, this injury would clearly be the most significant of the plaintiff's injuries and it would present little difficulty for the Court. 103. The defendants argue that I would accept Dr Nutting's opinion and that this would lead to the injury being assessed as one within Item 89 - minor cervical spine injury - for which the range of ISVs is zero to 4. 104. The plaintiff's argument is that I would accept Dr Macfarlane's opinion and that this would lead to the injury being assessed as one within Item 87 - moderate cervical spine injury - soft tissue injury - for which the range of ISVs is 5 to 10. 105. I have taken into account the "general comment for items 85 to 89" which appears at the start of part 6 division 1. 106. Clearly, on any view of the evidence the plaintiff's injury does not fall within items 85 or 86. 107. I am also of the view that item 87 is clearly not appropriate because there is no evidence of a fracture, disc prolapse or nerve root compression or damage. Dr Macfarlane said that the X-ray of the cervical spine showed there was loss of the normal curve which he said was seen in association with muscle spasm and damage, musculo ligamentous in nature (he however did not himself observe any muscle spasm). Dr Macfarlane's opinion of the X-ray is consistent with the radiology report (Exhibit 10) which also reported the disc spaces as being intact and no other lesions seen. -- 14 of 29 -- 15 108. In assessing the orthopaedic evidence, it is necessary to have regard to sections 10, 11 and 12 of Schedule 3 of the Regulation. Those sections provide as follows- "10. Whole person impairment. The extent of whole person impairment is an important consideration, but not the only consideration affecting the assessment of an ISV. 11. Medical report stating whole person impairment percentage. If a medical report states a whole person impairment percentage, it must state how the percentage is calculated, including - (a) the clinical findings; and (b) how the impairment is calculated; and (c) if the percentage is based on criteria provided under AMA 5 - (i) the provisions of AMA 5 setting out the criteria; and (ii) if a range of percentages is available under AMA 5 for an injury the type being assessed - the reason for assessing the injury at the selected point in the range. Note - it is the function of a Court, and not a medical report, to assess an ISV for an injury. 12. Greater weight to assessments based on AMA 5 (1) This section does not apply to a medical assessment of scarring or of a mental disorder. (2) In assessing an ISV, a Court must give greater weight to a medical assessment of a whole person impairment percentage based on the criteria for the assessment of whole person impairment provided under AMA 5 than to a medical assessment of a whole personal impairment percentage not based on the criteria." 109. In this case, both Dr Macfarlane and Dr Nutting stated a whole person impairment percentage and both purported to base the assessment on criteria under AMA 5. 110. "AMA 5" is defined as: "Means the 5th edition of the Guides to the Evaluation of Permanent Impairment published by the American Medical Association." 111. Both Dr Macfarlane and Dr Nutting referred to table 15-5 - criteria for rating impairment due to cervical disorder (a copy of which was provided to me but not tendered as evidence). -- 15 of 29 -- 16 112. Dr Nutting concluded that the plaintiff's injury was a "DRE Cervical Category (i)" which resulted in a zero per cent impairment of the whole person. 113. Dr Macfarlane concluded that the plaintiff's injury was a "DRE Cervical Category ii" which resulted in a 5 per cent to 8 per cent impairment of the whole person. 114. On page 4 of the AMA 5 the following appears: "Impairment percentages or ratings developed by medical specialists are consensus-derived estimates that reflect the severity of the medical condition and the degree to which the impairment decreases an individual's ability to perform common activities of daily living (ADL), excluding work. Impairment ratings were designed to reflect functional limitations and not disability. The whole person impairment percentages listed in the Guides estimate the impact of the impairment on the individual's overall ability to perform activities of daily living, excluding work as listed in Table 1-2." Table 1-2 then sets out a number of activities of daily living and examples thereof. 115. It is important to bear in mind that by virtue of section 10 of Schedule 3, which I have set out above, whilst the extent of whole person impairment is an important consideration, it is not the only consideration affecting the assessment of an ISV. 116. It seems to me that, as both Dr Nutting and Dr Macfarlane have based their assessment on whole person impairment percentage on the criteria for assessment provided under AMA 5, section 12 of Schedule 3 does not apply. 117. Dr Nutting concluded on the basis of his examination of the plaintiff that the plaintiff met all of the criteria for DRE Cervical Category (i) (Exhibit 17 page 3 last paragraph). In addition he excluded the specific criteria referred to in table 15-5 for DRE Cervical Category ii, for example radicular signs and asymmetric loss of range of motion (T51-52). 118. On the other hand, Dr Nutting conceded that a number of activities engaged in by the plaintiff which were put to him, were activities of daily living and that if the plaintiff's ability to engage in those activities had been impaired by exacerbation of neck pain, then her activities of daily living had been affected by the injury to her neck (T55-T56) but he did not concede that that suggested a degree of permanent impairment existed (T60). 119. It is the case, however, that with the exception of driving, none of the activities which were put to Dr Nutting and conceded by him as being activities of daily living is given as an example of an activity of daily living in -- 16 of 29 -- 17 Table 1-2 which is the table which the AMA 5 guides use to estimate the impact of an individual's impairment. 120. Dr Nutting made no significant clinical findings (Exhibit 17 page 3). 121. It is clearly Dr Nutting's position that there was "no other indication of impairment related to injury or illness". I reject those findings of Dr Nutting. 122. I have already indicated (paragraph 72) that I accept Dr Macfarlane's evidence as to his clinical findings of loss of movement and his evidence generally. 123. I am conscious that in table 15-5 of AMA 5 one of the criteria for a DRE Cervical Category ii rating is "asymmetric loss of range of motion" and that Dr Macfarlane's finding was in fact not of asymmetric loss. However, the principle criterion for the category ii rating is "clinical history and examination findings are compatible with a specific injury" and the "findings" set out after that criterion are not essential because the words used as "findings may including…" 124. Regardless of whether I accept Dr Macfarlane's assessment of whole person impairment or that of Dr Nutting it seems to me upon the basis of my acceptance of Dr Macfarlane's evidence of his clinical findings, and of the radiological findings and of the plaintiff's evidence of ongoing pain and disability, that her injury falls within item 88 rather than item 89. 125. The comment in relation to item 89 includes the following: "Injuries within this item include a whiplash injury with no ongoing symptoms, other than symptoms that are merely a nuisance, remaining more than 18 months after the injury is caused." The example given of an item 89 injury is similarly worded. 126. I am satisfied that the plaintiff has ongoing symptoms (at the time of trial it was more than two years after the injury was caused) and that they are of much greater significance than "merely a nuisance". 127. The injury is one which is causing and will continue to cause moderate permanent impairment of the cervical spine and it is one for which there is objective evidence in the form of X-rays and the clinical findings of Dr Macfarlane of loss of range of movement as measured by goniometer. 128. I therefore find the cervical spine injury to be an item 88 injury for which the range of ISVs is 5 to 10. Injury (vi) - Ganglion to Left Wrist 129. Part 6 division 6 of Schedule 4 deals with wrist injuries. Item 108 - minor wrist injury - seems to be the appropriate item under which to assess the -- 17 of 29 -- 18 ganglion. One of the examples given of an item 108 injury is "a soft tissue injury for example severe bruising". There is no evidence that the plaintiff suffered severe bruising of her left wrist but that is merely an example of a soft tissue injury within item 108. I therefore find that the ganglion is an item 108 injury for which the range of ISVs is zero to 5. Injury (vii) - Displaced Fracture of Nose 130. This injury falls within part 3 division 2 of schedule 4 - skeletal injuries of the facial area. It seems to me to be an item 16 - moderate facial injury. One of the examples given of such an injury is "a displaced fracture of the nasal complex from which the injured person will almost fully recover after surgery". 131. Clearly, the plaintiff suffered a displaced nasal fracture and the deviation which was caused by the fracture can be cured by surgery (Exhibit 6). Even without surgery, it seems that the plaintiff feels that her appearance has changed only minimally (Exhibit 6). It seems that Dr Matthews does not necessarily recommend surgery and that the bulk of the plaintiff's nasal problems are not causally related solely to the accident. 132. Item 17 - minor facial injury - does not seem to me to be the appropriate item because it refers to an example of such an injury being either "a displaced fracture of the nasal complex requiring only manipulation" or "a simple undisplaced fracture of the nasal complex…". There is no evidence that the plaintiff's injury requires only manipulation. 133. I therefore find that the nasal fracture is an item 16 injury for which the range of ISVs is 6 to 13. 134. The dominant injury is therefore the item 16 injury (the nasal fracture). 135. Pursuant to section 3 of Schedule 3 then, the ISV for the plaintiff's multiple injuries is within the range of 6 to 13. 136. This is a surprising result because on any view of the evidence the most significant of the plaintiff's injuries is the cervical injury. 137. Subject to section 4 of Schedule 3 the maximum ISV which may be assessed for the plaintiff's multiple injuries is therefore 13. 138. Pursuant to section 3(2) of Schedule 3, the Court may assess the ISV for multiple injuries as being higher in the range of ISVs for the dominant injury than the ISV the Court would assess for the dominant injury alone. 139. If I were assessing the nasal injury alone I would assess an ISV towards the middle of the range, having regard to the fact that the plaintiff told Dr Matthews that she felt her appearance had changed minimally and that it appears that she did not raise with him the question of surgical correction, and also having regard to the fact that he does not appear to necessarily -- 18 of 29 -- 19 recommend surgery (T40/50). I think that an ISV of 10 for the nasal injury alone would be adequate. 140. However, because the cervical spine injury seems to me to be of some significance it would be appropriate to assess a higher ISV for the multiple injuries than for the dominant injury alone. 141. If the cervical spine injury were the only one the range of ISVs for that injury would be 5 to 10. 142. If I were limited to the range of ISVs of 6 to 13 (being the range for the dominant injury) then the maximum ISV I could assess for the multiple injuries would be 13. 143. Section 4 of Schedule 3 provides - "Multiple injuries and maximum dominant ISV inadequate (1) This section applies if a Court considers the level of adverse impact of multiple injuries on an injured person is so severe that the maximum dominant ISV is inadequate to reflect the level of impact. (2) To reflect the level of impact, the Court may make an assessment of the ISV for the multiple injuries that is higher than the maximum dominant ISV. (3) However, the ISV for the multiple injuries- (a) must not be more than 100; and Note- Under the Act, section 61(1)(a), an ISV is assessed on a scale running from zero to 100. (b) should rarely be more than 25 per cent higher than the maximum dominant ISV. (4) If the increase is more than 25 per cent of the maximum dominant ISV, the Court must give detailed written reasons for the increase. (5) In this section- "Maximum dominant ISV", in relation to multiple injuries, means the maximum ISV in the range for the dominant injury of the multiple injuries." 144. I consider that the level of adverse impact of the plaintiff's multiple injuries is so severe that an ISV of 13 (the maximum dominant ISV) is inadequate to reflect the level of impact. I have taken into account the pain and suffering of the plaintiff and her loss of amenities of life as well as the fact that she is still a relatively young woman with a normal life expectancy. 145. In those circumstances, I assess the ISV for the multiple injuries at 16. 146. The defendants' submission was that the dominant injury was either the wrist injury or the facial injury. (Their submission was that the facial injury should be found to be an item 17 injury which had a range of ISVs of zero to -- 19 of 29 -- 20 5 - the same as an item 108 injury in respect to the wrist). They argued also that the plaintiff had not shown that the level of adverse impact of the multiple injuries was so severe that an ISV of 5 was inadequate. 147. On the other hand, the plaintiff argued that the dominant injury was the cervical spine injury and that it fell within item 87 with an ISV range of 10 to 15. I have already explained why I think this injury is an item 88 injury. 148. The plaintiff then submitted that I should assess the ISV at the top of the range - 15 and then increase it by 100 per cent to give an ISV of 30. The basis for this argument was that the plaintiff has multiple injuries, she is young and vulnerable, there is a need for surgery and she suffers from daily pain and/or discomfort. 149. Section 4 of Schedule 3 of the Regulation which permits the Court to make an assessment of the ISV for multiple injuries that is higher than the maximum dominant ISV provides by subsection (3) that the ISV for multiple injuries should rarely be more than 25 per cent higher than the maximum dominant ISV. 150. I do not accept that the ISV in this case should be more than 25 per cent higher than the maximum dominant ISV. 151. Pursuant to section 62 of CLA an ISV of 16 results in general damages of $19,600. 152. Although section 60 of CLA provides that a Court cannot order the payment of interest on awards for general damages, that section does not apply to this claim. Section 4(3) of CLA provides that section 60 applies in relation to a breach of duty happening on or after the day the CLA receives assent. That date was the 9th of April 2003. 153. I allow interest on general damages of 2 per cent per annum on 50 per cent of $19,600 ($9,800) for 2.3 years - $450. 154. Special damages were agreed in the sum of $1,050 which includes $339.50 refundable to the Health Insurance Commission. 155. The agreed rate for interest on special damages is 2.735 per cent. Interest on special damages is therefore $710.50 at 2.735 per cent for 2.3 years - $44.69 (rounded up to $45). 156. At the date of the accident, the plaintiff was not in paid employment. 157. The plaintiff has a very limited work history which is set out in Exhibit 1. 158. She has limited education, having left school in grade 12 in 1991 and no vocational training since. -- 20 of 29 -- 21 159. The plaintiff had worked for six to seven months from December 1988 to July 1989 as a meat packer/wrapper in a supermarket and as a waitress/kitchen hand in a coffee shop. She returned to the work force in 1996 and was employed in a Coles Supermarket for about eight months as a permanent casual delicatessen assistant. 160. From September 1996 until the date of the accident, the plaintiff was not in paid employment. She had a child born in January 1992 and until late in 2002 was content to look after her child. However in late 2002 the plaintiff registered with an employment agency and started looking for part-time work with a view to then doing fulltime work from January 2005 when her daughter was due to commence secondary school. She was issued with a Job Network card dated 4 October 2002 (Exhibit 1). She says she was then actively seeking work and in fact had an appointment for a job interview during the week following the accident but, due to her injuries, was unable to keep the appointment. 161. Following the accident, the plaintiff found employment in August 2003 as a kitchen hand/cleaner at The Grand Hotel, Gladstone, but lasted only four hours because she said the work she was doing dramatically increased her neck pain as well as her wrist pain (T18). She did not attempt to return to this job. It seems to have involved scrubbing and sweeping (T17). 162. Since February 2004, the plaintiff has done some occasional work selling lingerie on a party plan basis. However, although she has derived some commission she has made no profit after her expenses are deducted. 163. On 10 December 2004 (approximately six weeks before the date of trial) the plaintiff commenced employment as a filler/packer at a Coles Supermarket in Gladstone. She says she found out about the job because her sister is also employed by Coles. The plaintiff says the work is heavy and involves a great deal of repetitive work, lifting and moving stock. She generally works eight to 10 hours per week (Exhibit 1 paragraph 11). 164. The plaintiff says that she usually works a four-hour shift but just before Christmas 2004, she was asked to do an eight-hour shift. She completed the shift but she says she found the pain unbearable and, at the end of the shift, she told her supervisor she could not work eight-hour shifts. Since then she has not been rostered to do an eight-hour shift and her work hours have decreased to two four-hour shifts twice a week (T38). 165. The plaintiff says she has tried to find other lighter employment, so far unsuccessfully. Her intention is to continue to work for Coles until she is able to find lighter employment. 166. In oral evidence, the plaintiff described in more detail the tasks she is required to perform in her employment with Coles. It involves pushing a trolley laden with cartons and unpacking the cartons and stacking goods on -- 21 of 29 -- 22 shelves, some of which are above shoulder height. Sometimes she has to load the cartons onto the trolley from the pallet. 167. The plaintiff makes a claim for past economic loss on the basis of $200 per week for the whole of the period from the date of the accident less her actual earnings. In the alternative she claims a global award. 168. Evidence was called from Mitchell Burke, a director of Minniecon and Burke Pty Ltd, an employment agency operating in Gladstone. Mr Burke's evidence was to the effect that from June 2003 to the date of trial it would have been an easy matter to find cleaning work for a person in the Gladstone area, but he then qualified that opinion by saying, "As long as the person had previous work experience, a stable employment history and motivation to work." (Exhibit 12 paragraph 5). 169. Mr Burke said that it would have been more difficult to find work in the Gladstone area in the retail sector because of competition for work from youthful job applicants. He also said that for a person who, like the plaintiff, has been a long-term recipient of a Parenting Payment, incentives might be available to employers to employ them and that made such persons attractive to prospective employers. 170. The plaintiff has minimal work experience as a cleaner. Mr Burke expressly said that his evidence was not that the plaintiff would probably have been able to find work as a cleaner (T82/35). I accept, however, that due to her being a long-term recipient of a Parenting Benefit, incentives might have been available to prospective employers to give her a job. 171. I am satisfied that prior to the accident the plaintiff was actively seeking employment on a part-time basis. However, she had no skills and minimal work experience and, at almost 30 years of age, she was competing against more youthful job applicants. It appears also that she was not looking for work as a cleaner (T88/1-10) and she was not interested in getting an indoor job, preferring to work outdoors (T87/32). 172. In all the circumstances, I am not satisfied that had she not been injured, the plaintiff would have found employment for the whole of the period since the accident as a cleaner or in any other capacity. I accept her evidence that she was looking for part-time work until January 2005. It is therefore not possible to award damages for past economic loss by reference to a defined weekly loss. I am, however, prepared to award her a global amount to compensate her for her loss of a chance of obtaining part-time work due to her increased vulnerability on the open labour market because of her injuries and consequent disability caused by exacerbation of pain and especially neck pain when doing work, and particularly work involving lifting above shoulder height, exacerbation of wrist pain when doing repetitive work involving the left wrist. -- 22 of 29 -- 23 173. Section 55 of CLA applies to this claim. It provides- 55. When earnings cannot 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. (4) The limitation mentioned in section 54(2) applies to an award of damages under this section." 174. I am satisfied that the plaintiff has suffered (and will suffer in the future) loss having regard to her age, work history, actual loss of earnings, and her permanent impairment. 175. It is not clear what the expression "assumptions on which the award is based" used in section 55(3) means. I propose to set out the matters upon which I have relied in reaching a conclusion as to the appropriate amount to award to the plaintiff for past loss of earning capacity. This list of matters is essentially a list of my findings on the evidence relevant to this issue including inferences which I have drawn from the facts. The list of matters is as follows- (i) Prior to the accident the plaintiff was registered for employment with Neato and she was actively seeking employment; (ii) She would have sought part-time employment until January 2005 when her daughter was due to commence secondary school; (iii) She has no vocational qualifications, limited formal education and limited work history; (iv) She is more vulnerable on the labour market because of some impairment of work capacity due to her injuries sustained in the accident; (v) There may have been some financial incentives available to prospective employers to employ her; (iv) The rate of pay as a cleaner is some indication of the level of remuneration which may have been available to the plaintiff if she had found employment; (vii) The rate of pay the plaintiff is presently receiving is also some indication of the level of remuneration which may have been available to her throughout the period since the accident; (viii) It is unlikely the plaintiff would have had part-time work in any capacity available to her for the whole of the period since the accident; -- 23 of 29 -- 24 (ix) The plaintiff had a 30 per cent chance of earning approximately $330 per week net for the period since the accident to the date of trial (110 weeks). (x) The plaintiff should receive an amount calculated on the basis of 30 per cent of $330 per week for 110 weeks - $10,890 - less her actual earnings of $1,167. 176. I assess damages for past loss of earning capacity in the sum of $9,723. 177. Having regard to the amount received by the plaintiff by way of Centrelink benefits there will be no award of interest on the damages for past economic loss. 178. It was agreed between the parties that damages for past loss of superannuation should be assessed at 9 per cent of damages for past economic loss. I thus assess damages for past loss of superannuation at $875. 179. Section 55 of CLA is again relevant to the assessment of damages for future loss of earning capacity. 180. So far as future loss of earning capacity is concerned, I am satisfied that for the future the plaintiff will continue to suffer some impairment of her capacity to work. The range of work activities she can perform and the length of time over which she can work is limited by exacerbation of pain in both her neck and wrist. So far as the latter is concerned, this is likely to be relieved if surgery for excision of the ganglion is performed. Dr Macfarlane has advised her to find lighter work (Exhibit 4). 181. Pursuant to section 55(3) of CLA, the "assumptions" upon which the award is based as- (i) The plaintiff would have been available and actively looking for fulltime employment from January 2005; (ii) She would have continued to be available for fulltime employment until approximately 60 years of age; (iii) She might not have secured fulltime employment or might have had only some periods of fulltime employment, she might have had periods of part-time employment and periods of no employment at all; (iv) She has no other disabilities which adversely affect her ability to work; (v) She would have worked in an unskilled occupation such as a shop assistant or as a cleaner; (vi) She would have been capable of earning approximately $500 per week net in fulltime employment and is currently earning approximately $132 per week net (Exhibit 11) and has been advised to look for lighter work; (vii) Her prospects of finding work are limited by reason of her lack of work experience and work history as well as lack of skills and formal education. Her physical disabilities mean that she is more vulnerable in the open labour market than she previously was; -- 24 of 29 -- 25 (viii) Once her daughter was no longer dependent upon her, her Centrelink benefits would have been reduced and she would probably have been more motivated to find work and remain in employment; (ix) Incentives may be available to prospective employers to offer her work and to keep her in employment; (x) By reason of her disabilities due to the accident her chances of finding full-time employment have been diminished. 182. I assess damages for future economic loss on a global basis in the sum of $30,000. 183. Damages for future loss of superannuation should be assessed at 9 per cent of the award for future economic loss. I assess damages under this head at $2,700. 184. The plaintiff makes a claim on the Griffiths v. Kerkemeyer principle for domestic assistance, both past and future. There is a schedule marked "RLC 2" attached to the plaintiff's quantum statement (Exhibit 1) which sets out the voluntary assistance she claims to have received to the date of trial. 185. Section 59 of CLA does not apply to this claim (section 4(3) of CLA). 186. However, section 55D of the Motor Accidents Insurance Act 1994 ("MAIA") applies and is in virtually identical terms to section 59 of CLA. 187. Section 55D of MAIA provides (relevantly)- "55D(1) Damages for gratuitous services are not to be awarded 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. (1A) Damages are not be awarded for gratuitous services if the services are provided, or are to be provided- (a) for less than six hours per week; and (b) for less than six 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) … (4) …" 188. The bulk of the claim for gratuitous services relates to services provided by the plaintiff's daughter, Jessica Lee Coop, who was born on 25 January 1992. She was thus 10 years of age as at the date of the accident and -- 25 of 29 -- 26 turned 13 on the first day of the trial. It is claimed that Jessica provided assistance with heavy or repetitive household chores, including sweeping, mopping, vacuuming, cleaning the dishes, hanging out the washing, washing and taking in washing, cleaning the bathroom and toilet, cooking, massaging the plaintiff's neck and running errands such as paying rent. 189. The claim made in respect of the assistance provided by Jessica is broken up into different periods and a different number of hours per week is claimed in respect of each of those periods. 190. The first period in respect of which a claim is made is 20 weeks from the date of the accident and the claim is for nine hours per week. 191. It seems to me that, properly construed, section 55D(1A) of MAIA means that unless the services (for which damages are to be awarded) are provided both for at least six hours per week and over a period of at least six months, no damages may be awarded. 192. If only the services provided by Jessica were being considered it seems to me to be clear that the threshold requirements of section 55D(1A) of MAIA would not have been met. However, it is claimed that in addition to the assistance provided by Jessica, assistance of a different kind was also provided by a friend of the plaintiff, Cindy Davies, for two hours per week for 28 weeks from the date of the accident. 193. If the assistance provided by Jessica and Cindy Davies is aggregated then it appear that for 20 weeks from 10 December 2002, the plaintiff received 11 hours per week of assistance and for the next eight weeks she received six hours per week. This would mean that during the period of over six months (in fact 28 weeks) the plaintiff received gratuitous services of at least six hours per week from both Jessica and Cindy Davies which would then meet the threshold requirements laid out in section 55D(1A) of MAIA. In addition, the plaintiff claims that over the period of 10 months following the accident, she received assistance from her father, Robert Winston Coop, with lawn mowing and heavy lifting. The assistance claimed in respect of lawn mowing is one hour per month and only a total claim of 10 hours is made in respect of heavy lifting without specifying when this was. 194. It seems to me that after the assistance provided by Cindy Davies ceased (that is after 28 weeks) the maximum amount of assistance which the plaintiff received was less than six hours per week and therefore no damages may be awarded for any assistance provided after that time. 195. Cindy Davies did not give evidence herself. The plaintiff said that Cindy Davies used to board in the plaintiff's home until July 2003. She said that Ms Davies used to drive her to doctor's appointments (T98/38) because her hip was aching and it was hard to use an accelerator or a clutch or a brake (T98/45). There was no medical evidence to support any suggestion that the plaintiff was inhibited in her driving capacity due to her injuries. -- 26 of 29 -- 27 196. I find it impossible to accept on the basis of this evidence that Cindy Davies provided any significant assistance to the plaintiff or, if she did, that the need for the services provided arose solely out of the plaintiff's injury. 197. As to the assistance claimed to have been provided by Jessica, I accept that Jessica probably did help the plaintiff to some extent following the accident. However, she was only 10 years of age (almost 11) at the time and it seems to me to be most unlikely that she provided assistance of the kind alleged amounting to nine hours per week. In addition, although in her statement (Exhibit 14 paragraph 7) Jessica said that the tasks set out therein were not carried out by her regularly before the accident, in oral evidence she said that she did many things to assist her mother before the accident. She said she used to cook meals as well as doing vacuuming and mopping and paying the rent. She also did washing as well as hanging out the washing and cleaning the bathroom and toilet. In fact she said that she was three when she started doing the latter. She said she did all those cleaning chores on a regular basis before the accident. Under re-examination, Jessica confirmed that she was doing all of those chores before the accident. 198. On the basis of Jessica's evidence, I am satisfied that gratuitous services of the same kind as those for which the claim is made were being provided by Jessica before the accident. In those circumstances there can be no award for gratuitous services provided in the past. 199. A claim is also made for damages for future gratuitous services. On the evidence to which I have already referred I am not satisfied that the services are to be provided for at least six hours per week. Further, any gratuitous services which are being provided are of the same kind as those which were provided for the plaintiff before the accident. Further, I am not satisfied that there is a need for services of the kind provided, and even if there were, I am not satisfied that the need arises solely out of the plaintiff's injury. 200. The plaintiff makes a claim for the cost of future surgery. Firstly, she claims the cost of surgery to correct her nasal septal deviation. She says that she will undertake surgery to try to relieve the symptoms she refers to in paragraph 21 of her quantum statement. 201. The symptoms which seem to cause the plaintiff most concern (the loss of sense of smell and nasal blockage), however, are not due to the deviation alone but also to allergic rhinitis which is not causally related to the accident. The sense of smell is unlikely to be improved with surgery, according to Dr Matthews. 202. The plaintiff complains of embarrassment due to her nose no longer being straight, but Dr Matthews said that she felt her appearance had changed minimally and she did not raise with him the question of surgery. However, it does not seem to me that one would necessarily expect a person in the -- 27 of 29 -- 28 position of the plaintiff to raise the question of surgery with a specialist to whom she was referred for a medico legal report. 203. It seems to me that it would be reasonable for the plaintiff to undergo surgery to correct her septal deviation. The cost of that surgery which is the procedure referred to as reconstructive septoplasty is $1,040 (Exhibit 7). The anaesthetists fee would be $444 (Exhibit 12) and the theatre fee would be $875 (Exhibit 12). The total cost of this procedure would therefore be $2,359. I award the plaintiff this amount. 204. Secondly, the plaintiff makes a claim for surgery to remove her ganglion. This appears to be recommended by Dr Macfarlane and the current all-up cost of the procedure is $2,600 (Exhibit 3). 205. The plaintiff says she wishes to have her ganglion removed. Dr Macfarlane says that if removed she will be left with very little, if any, impairment. 206. The defendants argue that I should not accept that the plaintiff will undergo this surgery, arguing that she has had more problems with her wrist in the past (due to embedded glass from an earlier incident) but has not undergone surgery. 207. The plaintiff denies having any ongoing problems due to the glass in her wrist (T28/55) and says she decided against surgery on medical advice (T29/1 to 18). She says that the ganglion does affect her ability to work and this is supported by Dr MacFarlane (Exhibit 2 page 8). 208. I am of the view that it would be reasonable for the plaintiff to undergo surgery for the removal of the ganglion and I am satisfied that she is entitled to an award for the cost of the surgery, namely $2,600. 209. The remaining claim is for future physiotherapy, medical and/or pharmaceutical expenses. 210. Dr Olulope in his report (Exhibit 8) said he had referred the plaintiff for physiotherapy and at the time of writing his report (14 November 2003), he said she was seeing a physiotherapist. He did not recommend future physiotherapy. The plaintiff said that the physiotherapy helped but only for a couple of days (T21/40). 211. Dr MacFarlane did not appear to recommend future physiotherapy. There is nothing to indicate the plaintiff is likely to have physiotherapy in future or, if she does, that it will be of much benefit to her. I do not award any damages for future physiotherapy. 212. There is no evidence to support any claim for future attendance upon a general practitioner. -- 28 of 29 -- 29 213. Dr MacFarlane says the plaintiff may require analgesics and anti- inflammatories from time-to-time. The plaintiff says she takes Panadol at least every second day. In schedule "RLC 1" attached to Exhibit 1, the plaintiff claimed that since December 2004 she had taken two to four Panadol tablets per day or one packet per fortnight at a cost of $3.25 per packet. She also claimed for the same period one packet of Panadeine Forte at a cost of $5.85 and two tubes of anti-inflammatory cream at $16.95 per tube. In my view, it would be reasonable to allow damages for future pharmaceuticals on the basis of $5 per week for 30 years. On the 5 per cent tables this would amount to $4,110. 214. In summary, the plaintiff's damages are assessed as follows- General damages $19,600 Interest on $9,800 at 2 per cent for 2.3 years $450 Past loss of earning capacity $9,723 Loss of superannuation (past) $875 Future loss of earning capacity $30,000 Loss of superannuation (future) $2,700 Special damages $1,050 Interest on $710.50 at 2.735 per cent for 2.3 years $45 Future surgery - Nasal surgery $2,359 - Ganglion surgery $2,600 - Future pharmaceuticals $4,110 TOTAL $73,512 215. I give judgment for the plaintiff against the defendants for $73,512. G.T. BRITTON S.C. DCJ -- 29 of 29 --