Collins v White & Anor [2001] QDC 229

DISTRICT COURT OF QUEENSLAND CITATION: Collins v White & Anor [2001] QDC 229 PARTIES: VALERIE MAY COLLINS (plaintiff) v MARILYN WHITE (first defendant) SUNCORP METWAY LTD (second defendant) FILE NO/S: 444 of 1999 DIVISION: District Court PROCEEDING: Civil ORIGINATING COURT: District Court at Maroochydore DELIVERED ON: 28 September 2001 DELIVERED AT: Maroochydore HEARING DATE: 6 September 2001, 7 September 2001 JUDGE: K. S. Dodds DCJ ORDER: I give judgment for the plaintiff against the second defendant for $70,446.31. CATCHWORDS: TORT - NEGLIGENCE – DAMAGES – QUANTUM - where plaintiff had a degenerative condition in the spine – where ability to work not completely destroyed. COUNSEL: G. D. Garrick for the plaintiff R. D. Green for the first and second defendants SOLICITORS: Boyce Garrick for the plaintiff Bradley & Co for the first and second defendants [1] This was an action for damages for personal injuries arising out of a motor vehicle collision which occurred on 8 January 1999. Liability has been settled. The plaintiff is to bear 5% of the responsibility for the collision. [2] The plaintiff is a 48 year old woman. She was born on 6 March 1953. She was thus 45 years of age at the time of the collision. -- 1 of 7 -- 2 [3] The collision was reasonably severe. The plaintiff suffered soft tissue injury to her spinal column area, her sternum area and her right lateral chest wall, the latter two injuries probably produced by her seatbelt. She was taken to hospital, x-rayed and examined, and discharged on the same day. [4] There was expert evidence from doctors Pentis and Boys, both orthopaedic surgeons, from her general practitioner Dr Chester, a chiropractor (Mr Schlink) who had occasionally treated the plaintiff before the collision and treated her after the collision, together with letters and records from the Nambour base hospital (the hospital to which the plaintiff was taken after the collision). No major disagreement emerged in any of this evidence. An apparent disagreement in percentages between doctors Pentis and Boys appears to be due to their different approaches. [5] I record that with some reservations, I accept the plaintiff’s evidence. Generally I thought she was honest in relating what she experienced at the time of the collision and what she has experienced since the collision. My impression was that she has attempted to get on with her life. Having said that I have also taken into account that when legal proceedings for personal injury are pending there may be conscious or subconscious exacerbation of symptoms. l also record that the hospital records disclose a depressive incident a few months after the collision which resulted in her hospitalisation. That there was such an incident is not particularly surprising given a number of major stressors in the plaintiff’s life pre that incident. There was a submission from the defence that I should take account of episodes of depression in the plaintiffs past in assessing damages. There was no evidence before me that she continues to suffer from any significant depression or that such a condition continued for any significant period beyond the period of hospitalisation I have referred to or affected the symptoms she has continued to experience. [6] Details of the plaintiff’s working history were at times difficult to get into clear focus. However, I find as follows: after arriving in Queensland from Victoria in September 1994 the plaintiff worked for a while for a supplier or manufacturer of blinds in a secretarial role, looked after her mother, who had dementia, until she died on 8 May 1997 and did some work providing massage and assisting with -- 2 of 7 -- 3 colonic irrigation at Mooloolaba Natural Therapies. She has qualifications in therapeutic massage obtained in Victoria in 1992 or 1993. [7] After her mother died the plaintiff took on some work as a cleaner also. She engaged in providing services as a masseuse and a cleaner as a business. During the financial year ended 30 June 1997, she provided massage services at the Mooloolaba Natural Therapy Centre where she paid rent, which included the use of the premises and the provision of equipment and consumables, and assisted another woman at the centre who provided colonic irrigation. That ceased late in 1997. Her tax return for this financial year shows her business running at a loss. For the year ended 30 June 1998, her tax return also shows her business running at a loss. She ceased working at Mooloolaba Natural Therapies in November of 1997 and thereafter sought to operate the massage aspect of her business as a person providing mobile massage services. [8] By the time the collision occurred the plaintiff was working as a cleaner one full day a week for a Mrs Stewart (Jovelow Pty Ltd). She had commenced that job in August 1997. The plaintiff said in evidence that she was about to start an additional cleaning job with a firm Sunshine Home Accessories at the time the collision occurred. The arrangement was for two to three hours a day three days a week at a rate of $12.60 per hour. Because of the collision she delayed starting this job and thus lost about a weeks income. She said she had other (unnamed) cleaning clients at the time. She said she was also providing massage services for a Mr and Mrs Beard once a week for which she received $75. After the collision she tried to continue with this massage work, however, I accept that she could not at that time because the techniques required caused exacerbation of the symptoms she was experiencing from the collision. She attempted to persevere with her cleaning work. She said she found, after some time, that the house cleaning work she had been doing for Mrs Stewart which involved a very large house for a full day was causing exacerbation of her symptoms to a level where she felt that she could no longer continue. In August 1999 she ceased this work. [9] In January 2000 the plaintiff obtained work with Bromilow Home Support Services, a business which provides in home care and support. Since then she has worked for -- 3 of 7 -- 4 that organisation approximately 10 hours a week for which she is paid variously $10.50 or $12.20 per hour depending on the client. In January 2000 when she commenced that work, those hours were about all that was available. However, I accept the evidence of Mr Hawting, the principal of the business, that more work has been available since about the beginning of 2001 and were the plaintiff prepared or able to do it, he could provide in the order of 30 to 35 hours of work per week. He is also able to offer work of a lighter nature but his evidence was not specific about it. According to the plaintiff, the amount of this work she is presently doing is all she can do without exacerbating symptoms to an unacceptable level. [10] There is no dispute that the plaintiff had marked degeneration in part of her cervical spine and osteoporosis in her thoracic spine pre-collision. Radiographs taken on 4 December 2000 also show some narrowing of the L3/4, L4/5, disc spaces. The evidence discloses that, pre-collision, the plaintiff experienced occasional symptoms probably due to the degeneration. I find that the collision has aggravated the degenerative changes I have referred to, particularly in her neck. It has triggered stiffness and discomfort in her neck and left shoulder. The soft tissue injury in her sternum area and lateral chest wall also continues to give her some discomfort from time to time. [11] There was no evidence directed specifically to when symptoms similar to those she has been experiencing since the collision may have come to light if the collision had not occurred. Dr Pentis expressed the view the degeneration would not progress long term to any great degree. There is no doubt she was more vulnerable to similar symptoms emerging. Because of the level of pre existing degeneration, the evidence about the resort she had before the collision to massage or chiropractic treatment, and her age, I intend to proceed upon the basis that within a period of about 9 years post-collision, she would probably have reduced her work level to about what it is at present. Absent some other traumatic event this would have occurred over time rather than intruding upon her abruptly. [12] I do not regard her income earning capacity as destroyed. Rather I consider that it has been impaired due to the collision. She is capable of doing secretarial work. And she has some past experience in that sort of work. She has undertaken some -- 4 of 7 -- 5 training to do with gaming machines and acquired a qualification in that area as yet unrealised in any income earning activity. She is capable of doing some work as a cleaner, although that capacity has been reduced. I think she is also capable of doing some light massage work once she regains her confidence in her ability in that area. Of course physical work she does do will have a tendency to aggravate discomfort. [13] I assess damages as follows: Economic Loss [14] Damages are to compensate for loss of economic capacity productive of economic loss. [15] The plaintiff’s capacity has been reduced. I have had regard to the plaintiff’s pre- collision income earning history and what the evidence discloses about available opportunities to earn post collision. Pre-collision according to information she provided in her taxation returns for years ending 30 June 1997 and 1998, whilst her efforts generated income, it was exceeded by the cost of earning it. In the latter half of 1998 and in 1999 until August, she continued to generate some income. In January 2000 she obtained work with Bromilow Home Services. Since, she has earned about a $100 per week net for 10 hours work per week. By January 2001 Bromilow had work available to offer her 30-35 hours per week which would produce in the order of net $300 per week. Moreover, had she not been injured, she may have been successful in enlarging her massage clientele. Past Economic Loss [16] The plaintiff said that she ceased providing massage services to Mr and Mrs Beard in January 1999 because she could not continue. Mr Beard who gave evidence in the plaintiff’s case did not support that evidence. He thought it was last year that she ceased providing massage services, that is 2000. He had no record with him and he may have been mistaken. On balance I accept the plaintiff’s evidence about this. I also accept she lost about a weeks work with Sunshine Home Accessories, a couple of weeks work with Mrs Stewart and some other cleaning work when she -- 5 of 7 -- 6 had to take time off post collision. She finished working for Mrs Stewart in August 1999. [17] I will assess a global sum under this head. I will take into account the work she lost in the period following the collision and the availability of extra work with Bromilow Home Services since the beginning of this year which she has not taken up. I also take account of the potential to earn income from provision of therapeutic massage. I have noted to the date of collision the net return from her massage and cleaning business appears to have been largely negative. [18] From the date of collision to the present is a period of 140 weeks. Ten hours per week at say $10 per hour net over the whole period amounts to $100 per week, which over 142 weeks amounts to $14,200. I assess damages in the sum of $14,200. I assess interest at 5% rounded off in the sum of $1,940. Future economic Loss [19] The present value of a net loss of $100 per week discounted at 5% for a further 6 ½ years amounts to about $29,000. I have reduced this amount for contingencies and a gradual slowing down over the period by 25%. I assess damages in the sum of $21,750. Need for care and assistance [20] There was evidence about this from the plaintiff and her partner. There was some inconsistency between their testimony. I accept that for couple of weeks following the collision the plaintiff needed a deal of care and assistance diminishing as time passed. Thereafter I find the reasonable value of the need may be met on an average of 2 hours a week. The parties have agreed on a rate of $14 an hour. I assess damages for the need for care and assistance to trial in an amount of $4000. I assess interest on this sum at 5% rounded off in an amount of $530. So far as the future is concerned, similarly, I will base an assessment on an average need for care and assistance for 2 hours a week. I assess the present value of satisfying the need for a period of 6 ½ years reduced by 25% for contingencies and the gradual slowing of the plaintiff’s income earning efforts rounded off in the sum of $6,100. I assess damages for this in the sum of $6,100. -- 6 of 7 -- 7 Special damages [21] Special damages were agreed in the sum of $1,794. I assess interest on that amount, less the amount of the Health Insurance Commission refund, at 5% rounded off in the sum of $218. Future expenses [22] I have assessed damages on the basis that the plaintiff’s income earning capacity has been impaired so as to be productive of financial loss, but to a lesser extent than claimed in the plaintiff’s case. Income earning activity to the level I have used will exacerbate discomfort to some extent. It is reasonable that the plaintiff be able to obtain some relief by way of chiropractic or massage. [23] If there were a need for 12 visits a year for chiropractic at a charge of $40 per visit, the present value of such treatment for 6 ½ years applying a discount rate of 5% is about $2,630. I think there should also be some amount for medication for relief of discomfort. Allowing for contingencies I assess damages in the sum of $3,200. General damages [24] I accept that the plaintiff was very sore after the collision. The discomfort lessened over time. She continued to try to work in cleaning jobs which no doubt added to her discomfort. Presently the level of discomfort she experiences is affected by the level and type of activity she engages in. As I noted above I have assessed damages for economic loss on the basis that she has had her earning capacity impaired. Exercise of her retained capacity will often exacerbate discomfort. I have found that the collision has brought forward the symptoms she experiences by about 9 years. I assess damages in the sum of $20,000. I assess interest at 2% on $8,000 of that amount rounded off in the sum of $430. [25] Damages total $71,044. Reduced by 5% they amount to $67,491.81. Interest similarly reduced amounts to $2,954.50. [26] I give judgment for the plaintiff against the second defendant for $70,446.31. -- 7 of 7 --