Ball v Monaghan & RACQ-GIO Insurance Ltd [2002] QDC 124

DISTRICT COURT OF QUEENSLAND CITATION: Ball v Monaghan and anor [2002] QDC 124 PARTIES: THERESA BALL Plaintiff And TERRY MONAGHAN First Defendant And RACQ-GIO INSURANCE LTD (ACN 009 704 152) Second Defendant FILE NO/S: D3663 of 2000 DIVISION: PROCEEDING: Trial ORIGINATING COURT: District Court Brisbane DELIVERED ON: 14 May 2002 DELIVERED AT: Brisbane HEARING DATE: 11, 12 September 2001 JUDGE: McGill DCJ ORDER: Judgment that the second defendant pay the plaintiff $113,218.20. CATCHWORDS: DAMAGES – Personal injuries – neck – 5% - psychological injury – driving phobia – assessment COUNSEL: RJ Lynch for the plaintiff RB Dickson for the defendants SOLICITORS: McInnes Wilson for the plaintiff Hunt and Hunt for the defendants REASONS FOR JUDGMENT [1] The plaintiff was involved in a motor vehicle accident on 24 September 1999 when the vehicle in which she was travelling came into collision at an intersection with the vehicle driven by the first defendant. Her vehicle was struck on the left side adjacent to the area of the rear door: p 20. It was struck with considerable force, and as a result of the accident lifted and turned. The rear passenger door was particularly damaged, and a child’s seat just inside was dislodged by the impact, a matter which was particularly distressing to the plaintiff because at the time of the collision she was on her way to pick up her granddaughter, who was then two and -- 1 of 14 -- 2 would have been using that seat: p20. The plaintiff alleges that as a result of the accident she suffered physical injury, particularly to the neck, and psychological injury. Liability was not in issue (p2) but there remained a substantial dispute in relation to quantum. [2] After the accident the plaintiff initially felt shaken (p20) and she returned to her home which was quite close to the scene of the accident. There she started to feel burning in and swelling of the neck. Later bruises came out along the line of the seat belt, and on the tops of her legs: p31. Her husband took her to a general practitioner who suggested panadene to ease the pain, and she returned the next day: p22. Two days later she saw another general practitioner, Dr Ratman, who provided a report on 13 October 1999: Ex 11. [3] Dr Ratman reported that when he saw the plaintiff on 26 September she was complaining of sore neck, sore right arm and elbow, soreness in the chest wall and in the right and left shoulders, pain in the arms, sore upper abdomen, sore ankles and feet, sore lower back and sore right hip. There was some restriction in movement of the neck, and in movement of both shoulders. There was some restriction of straight leg raising particularly on the right-hand side, and Dr Ratman thought her reflexes were exaggerated due to her depressed state. She was treated with medication and microwave therapy, and given time off work. She was ultimately off work for two weeks, which was taken as a holiday1 rather than sick leave: p22. [4] After the accident the plaintiff was referred to a psychiatrist, Dr Freed (p24), whom she had also seen prior to the accident: p49. He put her on medication, Zoloft, which she is still taking and which she finds helpful in calming it down: p24. Dr Freed provided a one sentence report dated 6 October 1999, stating that he was using certain techniques to relieve the plaintiff’s acute stress disorder and traffic and car phobia: Ex 21 and see p57. X-rays of the plaintiff’s spine on 14 February 2000 showed minor degenerative change at disc spaces C5/6/7, and early degenerative change in the lumbosacral spine, a little more marked at the L3/4 disc space: Ex 1. The plaintiff continued to attend the GP for similar treatment 2 , and also received acupuncture at times. [5] On 15 April 2000 the plaintiff attended the Sumner Physiotherapy Centre for treatment of neck pain, and she was given treatment on that and subsequent 12 occasions: Ex 8. She presented with complaint of pain on both sides of the neck, more so to the right and radiating in the right shoulder made worse by lifting, sleeping on the right side, driving and working. There was also occasional pain in the lower back and headaches. There was some restriction of movement in the neck and right shoulder, but none in the lumbar spine. The physiotherapist thought she had responded well to treatment although her work had aggravated her condition and delayed her progress. On discharge on 22 May 2000 she had full, pain-free neck, back and shoulder movement, and she was given advice on home stretch and mobility exercises. The physiotherapist thought it likely the condition would flare up again from time to time. The plaintiff said she had to stop physiotherapy eventually because of the cost: p23. She found the physiotherapy helpful. 1 See Ex 14. 2 See Ex 19. -- 2 of 14 -- 3 [6] A psychologist, Ms Hannigan, treated the plaintiff for driving phobia from November 2000 until 18 January 2001: pp 106-7. The plaintiff found this helpful and she does now drive to some extent although she avoids driving as much as possible: p25. One of the matters raised by Ms Hannigan was the effect on the plaintiff of her imagining what would have happened to her grandchild had she been in the car at the time: p187. The plaintiff cooperated well with the treatment, which suggests that she was trying to cope properly with a real problem: p188. By 18 January, 2001 Ms Hannigan thought that her work was complete, with the plaintiff able to resume driving and coping even with busy traffic although there was some persistence with ghosting on the brake: p190. She did concede however that the plaintiff had not yet reached the point where she was able to drive past the intersection where the accident had happened: p192. She also said that the stress of attending at the trial and going back over the circumstances of the accident would be likely to undo months of good work: p193. I accept this: the plaintiff did at times become emotional while giving evidence. Medical History of the Plaintiff [7] The plaintiff had in 1997 been diagnosed with bilateral aneurysms following a presentation with relatively minor symptoms of hyperventilation and blurred vision and numbness of hands: Ex 27. These were treated surgically, one being dealt with in December 1997 and the other in February 1998. She said that this left her with some long term difficulties including loss of sense of taste and smell, and some difficulty in following conversations particularly at some speed (p18) and, at least for some time after the operations, difficulty bending, twisting from side to side and lifting: p51. Dr Weidmann thought it was most unlikely that any interference with taste or smell would be attributable to the surgery for the aneurysms, which he said had been straightforward and from which she had made a good recovery: p147. The dizziness on leaning forward was also a pre-existing problem, and indeed one of the symptoms which prompted the investigation which discovered the problem with the aneurysms: p148. He also did not expect that psychiatric or psychological problems would be likely to develop as a result of the surgery: p148. It may be that there were psychological problems because of the stressful nature of the condition and the two major operations, but not because of brain damage or neurological problems. He did not notice any abnormal behaviour while questioning her: p149. Anyone would find this diagnosis and the prospect of major surgery to correct it very daunting: p151. [8] On review at the Princess Alexandra Hospital on 19 May 1998, while the plaintiff was recovering from the operations, there were complaints of some neck pain and episodic headache: Ex 27, p138. The plaintiff said that these problems with the neck did not continue up to the date of the accident: p139. In September 1998 at a further review she complained of palpitations and dizziness (Ex 27, p141). Indeed these were some of the symptoms which led her to being referred to a psychiatrist, Dr Freed. She apparently first saw Dr Freed on 3 June 1998: Ex 21. Dr Freed treated her for a time with Zoloft: p18. In December 1998 she was complaining to a general practitioner that she had difficulty with sleeping (p160), and had stopped swimming: p172. [9] In September 1998 the plaintiff had some time off work with a sore shoulder and neck: p142. This followed a change in work routine, where biscuits were being packed into larger boxes, and the plaintiff said that she was one of a number of -- 3 of 14 -- 4 workers there who had some time off because they did not know how to do the work properly: p143. As a result the plaintiff had one week off work and two weeks on light duties. At the conclusion of that her neck was fine and she did not have any further problems with the left shoulder or on the left side of the neck: p178. [10] In the s37 notice, signed on 27 September 1999, she stated that she had taken Zoloft and Premin in the 12 hours before the accident, although at the trial she could not recall having taken that medication at that time: p141. She had last seen Dr Freed prior to the accident on 6 September 1999, when further medication was prescribed: Ex 21. She said that since the accident she suffered dizziness if she moved her head fast or bent down fast (p142) but that was an old symptom: P147. Medical expert evidence [11] The plaintiff was seen for the purposes of a report on 16 March 2000 by Dr Gillett, Orthopaedic Surgeon: Ex 3. Dr Gillett identified the injuries sustained in the accident as musculo-ligamentous injury to the cervical spine, right shoulder girdle and lower back, together with a seatbelt injury and bruising to the legs. There was ongoing pain to the plaintiff’s neck, a lump on the lower right side of the neck, and some restriction of movement in the neck and right shoulder. The pain in the lower back was intermittent and not as severe as in the neck. On examination there was some restriction of movement to these parts of the body. Dr Gillett thought that the injuries were consistent with an accident as described by the plaintiff, and would have been a direct consequence of such an accident. [12] There had been some degenerative changes in the neck and back, which had been asymptomatic, and these were made worse, accelerating and aggravating the degeneration. He did expect some further improvement with time, and recommended physiotherapy, although he expected that there would be some long term symptoms which would leave her with overall about 6% impairment of bodily function as a result of the accident. In oral evidence Dr Gillett explained that this made up 4% for her neck problems and 2% for her back: p71. Under cross- examination he conceded that the impairment might be in the region of 3% loss of bodily function overall, although that was in part because he did not think that there was much difference between 3% and 6%: p76. Dr Gillett expected that the plaintiff would have some difficulties with daily living, and he expected that she would be able to continue her work as a process worker in the long term, although with some discomfort, noting that she had a very sympathetic employer. Although the plaintiff could still do various things around the house notwithstanding her symptoms, if she was maintaining her work as a process worker 38 hours per week, coping with that with the assistance of medication, it was reasonable for her to obtain some assistance around the house: p78. [13] Dr Gillett was unable to explain the cause of the swelling close to the neck: pp73–4. He was of the view that there was no true swelling at the site. An ultrasound examination of the right side of the neck on 26 May 2000 showed no localised abnormality: Ex 2. He was not aware of any previous problems with the neck or shoulder, and if there had been some problem involving neck symptoms about 12 months before the accident that would lead to some reduction, which he did not specify, in the percentage of disability: p74. On the other hand, if the earlier incident involved the left shoulder and associated pain in the neck, and had cleared -- 4 of 14 -- 5 up completely and there had not been any recurrence of problems to the left shoulder, even after the accident, he would regard this condition as of no consequence to his assessment of the result of the accident: p77. [14] The plaintiff was seen on 24 August 2000 by a psychologist, Mr Morgan, for the purposes of a report: Ex 4. The plaintiff reported to him that she had had flashbacks to the accident, there had been interference with sleep, general anxiety and, when she was able to get to sleep, nightmares. The anxiety had been associated with nausea, and there had been a variety of other unpleasant responses to the incident. Her reaction interfered with her normal life to the extent that she was not able to remain alone in the house. If neither her husband nor her daughter was able to be there with her, she would lock up the house and wait at the garden until someone else came. There had been a significant increase in anxiety as the driver of or passenger in a motor vehicle, and she avoided driving as much as possible, and was very fearful when she had to drive. At the time of the examination the traffic phobia was interfering with the plaintiff’s role as a grandmother, which itself was causing her some distress: p158. During the interview she showed signs of physical discomfort and anxiety, but no obvious signs of depression. Testing indicated severe anxiety, moderate depression and moderate to severe post-traumatic stress disorder. [15] Mr Morgan was of the opinion that the plaintiff required long term treatment, although in the short term 12 sessions (costing about $3,000) could address the more immediate problems. He felt that her psychological state was such that it would be extremely difficult for her to obtain alternative employment, and that her psychiatric condition would be assisted by her being able to continue to work. He was involved in arranging for some treatment to be provided to the plaintiff by another psychologist, p154. He had not seen the plaintiff since, and it would have been possible for her condition to have subsided by January 2001 as a result of treatment: p156. [16] The plaintiff was seen by Dr White, an Orthopaedic Surgeon, on 7 November 2000 for the purpose of a report: Ex 7. She said that by then physiotherapy had assisted in easing symptoms in the lower back and shoulder, but the neck remained sore and was aggravated by vacuuming, hanging out washing or driving. Sleep was disturbed and she could not lie on the right side. She would experience headaches perhaps once a week. Dr White identified a soft tissue prominence on the right side of the base of the neck, with slight reduction in neck movement and no muscle spasm. Dr White thought that the plaintiff had suffered whiplash injury to the neck and soft tissue injury to the lower back, with the injury to the neck likely to provide permanent problems in the order of 5%-10% of the whole person, although there was still some possibility of improvement of symptoms. Dr White thought the plaintiff could do light semi-sedentary duties involving some degree of freedom to sit, stand or move around from time to time, but thought that she was not really fit for her current work. [17] Dr White said that it would be possible for troubles associated with soft tissue injury to the neck to develop over time rather than resolve over time: p58. Dr White had not been told of the Workers Compensation claim associated with problems with the neck and shoulder in September 1998: p60. The fact that the shoulder was the opposite one from the one where there were problems after the accident made the earlier problems less significant: p67. Dr White was not sure about the cause of the -- 5 of 14 -- 6 bulge, but thought it might be accumulation of subcutaneous fat due to disturbance of connections in the tissue: p62. It was not of any orthopaedic significance. It might have been caused by the force of the seat belt in that area. Had the accident not happened Dr White thought that the plaintiff was likely not to have had symptoms in the neck at any other time: p66. [18] The plaintiff was seen on 15 January 2001 by Dr Andrew Byth a psychiatrist for the purposes of a report: Ex 9. Dr Byth noted that the plaintiff appeared objectively to be in moderate discomfort in her neck during the interview. He considered the plaintiff had developed a specific traffic phobia following this incident. She had refused to travel in a motor vehicle for three weeks after the accident, and still avoided driving wherever possible. She had found the experience initially very nerve-wracking, and she had panic attacks and tended to press as if on a brake pedal when she was travelling as a passenger. At times she was too anxious to enter the vehicle and had to walk instead. She had managed to drive a short distance to work but felt too anxious to drive on any other routes. Her traffic phobia had improved following psychological treatment, but she remained stressed and anxious when travelling in motor vehicles. In the absence of treatment significant phobias tend to be self-perpetuating: p92. Dr Byth thought that she required further psychiatric treatment for her traffic phobia. He thought there was 50% chance of improvement with that treatment. [19] He also thought she had mild reactive depression for a few weeks following the motor vehicle accident, and that she should try anti-depressant medication and a program of progressive desensitisation. She had some months after the accident experienced nightmares about the accident, and had flashbacks while she was awake, although they had now settled. The involvement of the impact in the area of the vehicle where her grandchild would otherwise shortly have been would have enhanced the psychological impact of the event on her: p93. He did not think the plaintiff was suffering from post-traumatic stress disorder, although he thought there were some features of that condition which had been present for a time. He did not think that the traffic phobia was associated with the surgery for the aneurysms. He recommended a course of psychiatric treatment which would take about two years and cost $9,750. He also thought the plaintiff would have difficulty if she sought work on the open market. This was partly because of physical limitations, and also partly because of her difficulty in driving any great distance; her current place of employment is quite close to where she lives. Overall he assessed permanent psychiatric disability of 10-20% of the whole person. [20] Under cross-examination Dr Byth conceded that when he wrote his report he was not aware that the plaintiff was still taking Zoloft up to the time of the accident, but did not regard that additional information as producing any difference in his final conclusion: p87. Because of her prior anxiety and depression she would have been somewhat more likely to develop specific traffic phobia than if she had not had those conditions, although it was possible they could have developed anyway as a result of the accident: p89. This is of no consequence in terms of liability for any worsening of her psychiatric condition as a result of the accident. If after a course of treatment from the psychologist the plaintiff had regained capacity to drive anywhere without difficulty and was in effect in a pre-accident state, that indicated improvement, but some follow up and further treatment would be likely to be necessary, extending over perhaps six months: p91-2. Dr Byth said that the -- 6 of 14 -- 7 plaintiff’s response to treatment had been better than he had anticipated, that is better than 50%: p97. [21] In view of the evidence of the plaintiff, and some concessions by Ms Hannigan, I do not think there is any relevance in Dr Byth’s concession that, if the plaintiff really had essentially recovered from her traffic phobia, his expectation for future medical costs would be significantly reduced: p97. The Plaintiff was not, at the time of trial, in her pre-accident psychiatric state. She was still significantly affected by her driving phobia, and had some continuing anxiety. She did not strike Dr Byth as a brain damaged person, but rather someone who was mildly anxious and not very sophisticated, consistent with her background and personality: p100. [22] The plaintiff was seen by Dr Cameron, a Psychiatrist, in April 2001 at the request of the defendant’s solicitors for the purposes of a report: Ex 22. At that stage the plaintiff reported to Dr Cameron being fearful and anxious in a car, and wary of driving, avoiding it if possible. She appeared to be co-operative, able to give a good account of herself with no indication of formal thought disorder or gross memory disorder. Testing showed a moderately anxious woman. Dr Cameron thought the plaintiff was suffering an adjustment disorder with depressed and anxious mood of a mild degree, treated by Zoloft, and a specific driving phobia, of mild to moderate severity, which had improved since the accident but had not disappeared notwithstanding psychological treatment. She recommended the plaintiff be treated with medication and be reviewed by a psychiatrist to reduce her phobic anxiety. In answer to some specific questions from the solicitors, Dr Cameron recommended treatment by admission to a clinic followed by outpatient follow-up, at a total cost of $8,200: Ex 23. Dr Cameron was not called to give oral evidence. [23] The plaintiff was seen by Dr Weidmann a Neurosurgeon in May 2001 at the request of the defendant’s solicitors for the purposes of a report: Ex 12. Her main complaints were said by Dr Weidmann to be particularly problems with the neck, which was a major problem and bothered her a great deal. There is also the painful swelling on the right side of the neck which was very tender to touch. There had also been headaches and low back pain but both of these were of less significance than they had been, and of less significance than the neck. She had difficulty in sleeping and she was unable to swim or pick up the grandchildren, and there was still problems in driving the car if she had to go any distance. Dr Weidmann thought there had been soft tissue injuries to the cervical and lumbar spine, which left the plaintiff with a permanent partial impairment of 4% of the whole person, although some of that was due to pre-existing factors, and he would attribute 2% to 3% to the accident. He thought that she was fit for her normal employment and that her working life had not been shortened by the accident. Dr Weidmann thought it was significant that there had been some prior neck problem, and it did not matter very much that it had been on the left side whereas the current problems were on the right side: p146. [24] The plaintiff was seen by Dr Nave an Orthopaedic Surgeon on 17 May 2001 at the request of the defendant’s solicitors for the purposes of a report: Ex 13. The complaints to Dr Nave were very similar to the matters raised by the plaintiff in the course of her evidence. An examination showed some tenderness in the neck particularly on the right side and some restriction of movement; there was good movement along the spine. Dr Nave thought there had been soft tissue injury to the neck, back and right shoulder which was consistent with the mechanism of the -- 7 of 14 -- 8 accident described by the plaintiff. There had been some pre-existing degeneration which was not producing symptoms at the time of the accident. Dr Nave thought the prognosis was good, and he did not expect any long term effect on employability as a result of the incident. He thought there had been an orthopaedic component of permanent and partial impairment of the order of 3% loss of bodily functions as a result of the accident. However, he would not disagree with a 5% whole person assessment: p37. He thought the plaintiff would have required some assistance at home particularly in the early stages after the accident but that by May 2001 she should have been able to cope with most domestic tasks except for those involving heavy lifting or repetitive work above shoulder level. She might have problems with vacuuming, and with pegging out washing: p34. The plaintiff had been taking between two and six panadene per day for pain control: p36. [25] On 21 September 2000 the plaintiff was assessed by an occupational therapist, Ms Anthony, for the purposes of a report: Ex 5. There was a follow-up assessment on 21 August 2001: Ex 6. Ms Anthony thought that the plaintiff’s work was aggravating her symptoms, and that she required additional physiotherapy and other rehabilitation. If she were unable to continue with her present employment it was unlikely that she would secure alternative employment within the field, because she is at the moment receiving support of her employer and co-workers. On assessment of performance of household tasks the plaintiff displayed ineffective or markedly deficient performance in many motor skill areas, on the basis of which she concluded that the plaintiff required assistance of about one hour per day on average, because she continued to need assistance with vacuuming, sweeping, mopping, bed making, grocery shopping, pegging washing, cleaning the bathroom, and more substantial cleaning tasks, and baby sitting. Ms Anthony did not consider that it would assist the plaintiff if she used an upright vacuum cleaner rather than a barrel type: p124. Analysis [26] With regard to the assessment of the witnesses, I accept the plaintiff as an honest witness, and is generally reliable although there were occasions when it seemed to me that she had genuinely forgotten matters, or had mixed them up, or perhaps misunderstood the questioning. The plaintiff seemed somewhat nervous in the witness box at times, and also at times was visibly upset when talking about aspects of the collision or some of the consequences to her or her injuries. I prefer her evidence to the evidence of either Ms Wyatt or her husband where there is a conflict. In general however, those two witnesses supported and confirmed the account given by the plaintiff which I accept. I accept the evidence of Dr Byth, which is essentially supported by Dr Cameron, in preference to that of Mr Morgan. I prefer the evidence of Dr Gillett and Dr White to that of Dr Nave and Dr Weidmann, although in a more generally way I have taken into account the opinions of all the doctors. [27] The plaintiff was born on 12 October 1951 (Ex 17) and is now 50. She remains adversely affected by the injuries suffered in the accident, particularly in terms of pain in the neck radiating with the right shoulder which is to some extent restricting the things that she can or does do with her right arm. This restricts what she can do around the house, or by way of recreation, interferes with her relations with her husband (p43) and makes it more difficult for her to cope at work. This is permanent, and (so far as such figures are relevant) I find she has suffered overall as -- 8 of 14 -- 9 a result of the accident impairment of the spine amounting to 5% of the whole body. The other physical injuries suffered in the accident have largely abated except for the swelling near the neck, which remains a problem. I accept however that the plaintiff still has significant psychological problems associated with driving which were caused by this accident, and that these continue to make any driving unpleasant for her, so that she avoids it as much as possible and does not do any driving which is likely to be stressful. She never drives into the city: p176. It appears that some further treatment would probably be of assistance here, and I think it likely that the plaintiff will get further treatment if it is available to her. Further treatment will not necessarily be of assistance, and this could be a continuing problem for the plaintiff. [28] The plaintiff also suffered other unpleasant psychological symptoms as a result of the accident, and has experienced some stirring up of anxiety and depression, for which the plaintiff is still receiving treatment. That probably also needs further psychiatric treatment. It is not clear to what extent this amounts to a worsening of what had been the plaintiff’s psychiatric difficulties prior to the accident, but obviously she did not have any specific driving phobia at that time, and I do not doubt that her psychiatric condition otherwise became a good deal worse for a time after the accident 3 . I do not accept that the plaintiff suffered post-traumatic stress disorder following the accident, although she did suffer psychological consequences which for a time involved some of the symptoms of that condition. The real difficulty is knowing whether the plaintiff is worse off now in terms of general anxiety and depression than she would have been if the accident had not happened, and on the whole I think that the plaintiff has lost some substantial chance that her condition would have been better by now in those circumstances, for which some allowance should be made. [29] The effect of the plaintiff’s continued employment is essentially to make worse her physical condition but to improve her psychological condition. She obviously finds work supportive and benefits from the social interaction associated with it, and there is a real risk that if she does not continue with her current employment her psychiatric condition would become worse. On the other hand, it seems to me that the repetitive and somewhat physically demanding work is aggravating the condition of her neck, even though she is avoiding the more strenuous tasks with the co-operation of her employer and co-workers. If it were not for her work she would have less pain, but greater psychological distress. On the whole I think it probable that the plaintiff will continue to work for some time if she can. [30] She has been working for her current employer for over 10 years (page 17) and it seems unlikely that she will be put off unless her physical capacity deteriorated, or there is some substantial change in the operation of the employer. In the light of the evidence there is no particular reason to think that in the light of the evidence either of these is more than a possibility, but, particularly in circumstances where working is aggravating the pain from her neck, there must be some real prospect that the plaintiff will not continue with her work in the future to a time when she would have retired anyway. If she loses her current job she will have difficulty obtaining alternative employment. The plaintiff’s current rate of earning is of the order of $25,000 per annum: Ex 15. On the whole I think it likely the plaintiff will remain at work for some years, and it is appropriate to assess damages for pain and suffering, 3 On the other hand, she had prior to the accident some real psychiatric problems: Ex 11 p12. -- 9 of 14 -- 10 and for economic loss, on that basis. It was not suggested that there was any medical treatment which is likely to alleviate the pain, and the plaintiff essentially has to put up with it, with such assistance as analgesics and some strengthening exercises can provide. [31] In all the circumstances I assess damages for pain and suffering and loss of amenities of life at $25,000 of which I apportion $10,000 to the past component. That will carry interest at 2% per annum for 2.6 years, $520. Economic Loss [32] It is common ground that the plaintiff is entitled to compensation for past economic loss for the two weeks that she was off work after the accident. During the 1999- 2000 financial year the plaintiff’s average net wages, based on the figure in Ex 15, was $428 per week, so I will allow $856. Since the plaintiff received holiday pay for this period (p22) there has been no out-of-pocket loss so no interest is claimed. There is also no basis for allowing an additional amount for loss of past superannuation benefits. [33] In terms of the future, it is very difficult to know what will happen, or indeed what would have happened had the accident not intervened. The plaintiff has (and had) no particular retirement plans (p43) and loves her job, and it has the advantage that she could reduce her hours if necessary, which would make it easier to cope with the work and easier for her to hang on there: p44. At the moment the plaintiff seems to be working as she does largely because she enjoys the work so much, but it is clear that her employer and co-workers are quite supportive. With that support, the plaintiff is coping with the job: p168. The situation for the co-workers is not likely to change, but the employer may adopt a different attitude in time. There are various possibilities; the employer may become less tolerant, or may close down the production line on which the plaintiff works. The plaintiff has been there now so long that it is unlikely that she would be put off by any other drop in production: p45. [34] The plaintiff may decide that it is not worth putting up with the extra pain, and so may give up work, or (more probably) may reduce her hours so that she can continue to do some work but will still lose some income. In addition the plaintiff’s condition might deteriorate and that would force her to give up work. The plaintiff called evidence from a co-worker who had been at the same factory for nine years and who had been working regularly with the plaintiff until two months before the trial: p180. She said that after the aneurysm operations the plaintiff ultimately got back to doing what she was doing before: p181. Her evidence suggests that the plaintiff was not as fast with her work after the road accident, and she and other employers would help out: p181. By the end of the shift she was pretty well worn out, which was something which had not happened previously: p182. She does support the plaintiff’s evidence that her work has suffered as a result of her injury in the motor vehicle accident. The plaintiff however maintained that at the present time she was coping with what work she was doing: p168. She was able to avoid particularly heavy parts of the work, and had a good deal of control over what sort of work she undertook. [35] The plaintiff’s average net earnings in the 2000-2001 financial year were about $470 per week, and at that rate of earning over an assumed working life of 10 years -- 10 of 14 -- 11 the plaintiff’s economic potential has a value of approximately $193,000, less an allowance for contingencies which would I think easily justify a reduction to $160,000. The plaintiff sought a global assessment of future economic loss essentially on the basis that the plaintiff had lost a quarter of this earning capacity; however my impression is that the plaintiff is unlikely to suffer that much loss as a result of this injury. I think it is of some significance that, notwithstanding the significant physical and psychological injuries which she suffered, the plaintiff returned to work quite quickly after the accident, and has persevered with her work. The plaintiff has overcome the difficulties associated with the driving phobia to be able to resume driving to work, and her ability to cope with the work must be better than it was during the period fairly soon after the two weeks off work, but she persevered then. Overall therefore I am not persuaded that the plaintiff had lost as much as a quarter of her future earning capacity as a result of this accident. Nevertheless I think there is a real prospect that she will be significantly worse off in terms of how much she earns as a result of the various adverse consequences of this accident, and doing the best I can to make a global assessment I adopt a figure of $30,000. [36] The plaintiff also sought compensation for loss of future superannuation at the rate of 9% of future economic loss. In Helsham v Rye & ors [2000] QSC 277 Dutney J allowed 9% of future economic loss in respect of loss of superannuation benefits, but that was on the basis that the statutory rate had increased to 8% and would shortly increase to 9%. He acknowledged that it had been common practice to allow 6% of loss of earnings as compensation for loss of superannuation, and referred to some decisions of the Court of Appeal reflecting that approach. However, the increase in rates was stipulated under legislation in 1992, and ought to have been always taken into account in any systematic determination of the loss of superannuation benefits in respect of future earnings, a process which if analysed thoroughly can be quite complicated: see (1996) 17 Qld Lawyer 5. It is not just a matter of allowing the equivalent of the current percentage contribution rate. [37] I was not told of any case where the Court of Appeal has yet approved a contribution rate as high as 9%. It is open to a plaintiff to lead evidence to establish what the practical effect would be of some loss of superannuation contributions, although that was not done in the present case, and it would be difficult in circumstances where it is not known what the future economic loss will be for any particular calculation to be put forward. Nevertheless, in the absence of such evidence I do not think it appropriate to go beyond the figure of 6% which has been endorsed by the Court of Appeal 4 , until that Court endorses a higher figure. Accordingly I will allow $1,800 for loss of future superannuation benefits. Gratuitous Care [38] There was a substantial difference between the parties as to gratuitous care both past and future. In evidence the plaintiff said that she sometimes needed assistance in dressing to get something over her neck, and some assistance in preparing food involving lifting saucepans or baking dishes: p165. She needed help with mopping the floor and pushing a trolley at the supermarket, but can sweep the floor and make and change beds (most of the time), and can cope with ironing: p176. She still 4 A recent example of the use of 6% (without comment) by the Court of Appeal is Goode v Thompson [2002] QCA 138. -- 11 of 14 -- 12 does not pick up any of the grandchildren: p177. The plaintiff gave an estimate of one hour a day for the care she had received since the accident, apart from the period of two weeks immediately after the accident: p40. For the first two weeks the assistance was five or six hours a day: p31. However, there were some things that she was not doing anyway even before the accident, which she attributed to the earlier operations but which may well not be associated with them, in particular gardening, vacuuming, and climbing ladders: p40. Her husband had been doing any heavy lifting around the house before the motor vehicle accident: p163. Prior to the accident she did not do tasks which involved bending (p28) like work in the garden, and she would only rarely hang out the washing and clean the bath: p52 [39] On 21 August 2001 the plaintiff was assessed by a Personal Care Consultant Ms De Campo for the purposes of a report: Ex 10. The plaintiff reported that she had driven infrequently since the accident. There was an assessment of 1-1.5 hours per day for the assistance that the plaintiff requires in terms of personal care. Ms De Campo also provided details of the cost of meeting care requirements commercially. In practice if care were provided commercially it would be provided two or three times a week rather than for a short daily period: p115. [40] The plaintiff would have needed a good deal of care during the period immediately after the accident, although the rate of 25 hours per week seems high. Thereafter the plaintiff sought 1.25 hours of care per day, apparently on the basis of Ex 10, although this was greater than the rate estimated by the plaintiff, of one hour per day: p40. I note however that the plaintiff was not doing some of the heavier duties around the home anyway prior to the accident, apparently because of other medical problems: p163. To the extent that the plaintiff was unable to do things around the home anyway, whether because of the previous surgery for the aneurysms or because of some other pre-existing condition, she would have needed some assistance from her husband anyway even if the accident had not occurred, so she is only entitled to claim for the extra assistance, the need for which arose because of the accident. This is not something which was taken into account either by Ms De Campo or by Ms Anthony. 5 It is also not clear that the estimate given by the plaintiff relates only to the additional assistance provided by her husband since the accident. [41] The plaintiff’s husband 6 , Mr Ball, conceded that prior to the accident he would carry washing for her if it was too heavy, and he did nearly everything in the yard: p199. Immediately after the accident he was doing nearly everything that she otherwise would have been doing and he said that that continued for a few months and then dwindled off, and that now he would normally put the washing out and bring it in for her, and give her a hand with cooking, vacuuming and some dusting and sweeping and mopping the kitchen floor: p199-200. Mr Ball estimated that he spent an hour or two in the afternoon helping the plaintiff, but he said that he had to vacuum the house every second day, and mop the kitchen floor every second or third day. I accept that the whole house would need to be vacuumed even though there are only two people living in it, but vacuuming the house every second day seems to me to be excessive. The plaintiff and her husband may like to have the house vacuumed that often, but it does not follow that they need to have the house 5 See in particular Ex 6 which gives an account of the plaintiff’s pre-accident sate not consistent with the plaintiff’s evidence. 6 It was a long-standing de facto relationship: p17. -- 12 of 14 -- 13 vacuumed that often, and the defendant is liable only in respect of the reasonable need of the plaintiff for assistance which has been generated by the injury. [42] Taking these factors into account, in my opinion a reasonable estimate for the amount of additional assistance needed by the plaintiff as a result of her injuries is four hours per week. I accept that there would have been a period of greater than two weeks before the need for assistance dropped to that level, so there should be some loading in respect of past care. There was a change in rates in December 2000 (Ex 10) and it is convenient to deal separately with the period up until then, and I will allow extra during this period because of there would have been extra assistance provided during the first few months, tapering off over time. For this period I will allow five hours @ $13.60 per hour for 62 weeks, a total of $4,216. In respect of the period since 16 December 2000, I will allow 4 hours per week @ $14.68 per hour for a total amount of 72 weeks, which comes to $4,228. I will allow the $758 sought by the plaintiff for the first two weeks, so the total for past care is $9,202. I will allow interest on that sum at 5% for 2.6 years, $1,196. [43] In relation to future care, the matter here is complicated by the possibility that the pre-existing degeneration in the plaintiff’s spine might have become symptomatic at some stage in the future and given rise to some need for care. There is evidence from Dr White that this was not something that was likely to have happened during the rest of the plaintiff’s life, but it is certainly something that was possible at some stage of her life. This is really the sort of consideration which involves making some deduction for the vicissitudes of life when doing a calculation of this kind. There is also the prospect of requiring less assistance if she gives up work, or reduces the number of working hours, under which circumstances she would have a better capacity to do things around the home herself, because she would be less tired after work and the aggravating effect of her work on her physical condition would be removed. Presumably at some point she will definitely give up work even if her retirement age has not been brought forward as a result of the accident, and from that time there ought to be a greater capacity to cope. [44] Overall therefore I think it appropriate to allow 4 hours per week for 10 years, discounted for a possibility of her leaving or reducing work during that period and other vicissitudes of life, then two hours thereafter, but substantially discounted for vicissitudes of life. Four hours per week for 10 years discounted at 3% comes to $37,787 which I will discount to $25,000. The figure for the following period of 24 years is $27,880 before discounting, and I will allow a further sum of $10,000 in respect of that period. This produces a total for future care of $35,000. Other Matters [45] The plaintiff claimed reimbursement for the treatment by the psychologist (Ex 20, and see p193), the treatment from the general practitioners (Ex 19), and the physiotherapy costs, and the amount refundable from the Health Insurance Commission (Ex 18, 24) and out-of-pocket expenses for travelling and medication: Ex 16, 17. Ultimately the figure of $4,633.20 was agreed in respect of all of these claims. The plaintiff is entitled to interest on out-of-pocket expenses of $584.15, which comes to $76. [46] In relation to future medical care, all the experts are of the opinion that the plaintiff requires some further psychiatric treatment, and I think that should be provided by a -- 13 of 14 -- 14 psychiatrist. Various estimates were given, and ultimately Dr Byth revised his estimate for the need for future treatment downwards, although that was I think on an overly sanguine assessment of the plaintiff as at January 2001. Hopefully to some extent the passage of time will have eased the plaintiff’s problems, and given her more confidence in driving, and that should reduce the need for psychiatric treatment. As well I think it likely the plaintiff would have required some psychiatric treatment anyway, given that there had been a pattern of psychiatric treatment up to the time of the accident. On the whole I allow $4,000 for future psychiatric care. The expense in the form of physiotherapy and driving aids of $435 was not controversial, and there would be some cost for future pain killers and other medication, for which the amount claimed of $500 seems reasonable. Accordingly the total for future costs comes to $4,935. Summary [47] I therefore assess damages as follows: (a) General damages $25,000.00 (b) Interest on $10,000 @ 2% for 2.6 years $520.00 (c) Past economic loss $856.00 (d) Future economic loss $30,000.00 (e) Loss of future superannuation contributions $1,800.00 (f) Past gratuitous care $9,202.00 (g) Interest @ 5% for 2.6 years $1,196.00 (h) Future care $35,000.00 (i) Future medical, etc costs $4,935.00 (j) Past specific expenses (as agreed) $4,633.20 (k) Interest on out-of-pocket expenses ($584.15) $76.00 TOTAL $113,218.20 There will therefore be judgment that the defendants pay the plaintiff $113,218.20 which includes $2,106 by way of interest. [48] I will circulate these reasons and invite submissions as to the appropriate order for costs, but unless some other order is appropriate there will be an order that the defendants pay the plaintiff’s costs of the action to be assessed. -- 14 of 14 --