Brown v Hale [1994] QSC 183

) ) -.~-34\~ se.. 94/t8 3 • State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J No 171 of 1992 GLENDA MAREE BROWN and SPENCER MORAY HALE TOWNSVILLE .. DATE 15/07/94 ORDER _ .. -r,..._~---.. _..,,"' ...._.. . 1 ·.·:::··.n;;r:.i~) .·...... :...... . ~ :· >.:-.,.,CJ , Date 111 7 I q 'f Plaintiff Defendant 1 1 .. A·• -• _ -- 1 of 31 -- - --------- --- --------------- ---------- .150794 HIS HONOUR: By consent, I order that moneys paid into Court by the defendant in the action be paid with accretions, if any, to the solicitors for the defendant. HIS HONOUR: I am not persuaded on the material that, except 10 in so far as there had been a failure to file a further affidavit ot documents and to file a further statement under Order 39 rule 29C of the Rules of the Supreme Court, the plaintiff was in default. Although the plaintiff undertook on ) the hearing to provide these, the primary purpose of the 20 summons was to obtain access to the whole of the plaintiff's ) Medicare records, notwithstanding the plaintiff's contention that those which had been deleted were not relevant to the proceedings. Information was provided from which that could be established. I was not satisfied that there was any 30 de£ault on the part of the plaintiff in relation to this on the material placed before me. ) In the result, I am not persuaded that an order for costs should be made in favour of the defendant, nor do I think in 40 ) / the ·circumstances it is appropriate to make an order in favour of the plaintiff in view of the fact that the defendant did obtain undertakings in respect of the further affidavit of documents and Order 39 rule 29C statement. In the circumstances, as has been explained to me, I do not think so that the subsequent provision by the plaintiff of the Medicare records without the deletions affects the matter. These were provided in order to prevent any delays in the proceedings in the event that the defendant sought to adjourn the matter and 60 ORDER 2 -- 2 of 31 -- 150794 notwithstanding that the plaintiff continued to maintain her position that the information was not discoverable. In the circumstances, there will be no order as to costs in respect of that summons. ORDER 3 10 20 ( ( 30 ( 40 c 50 -- 3 of 31 -- IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE w. No. 171 of 1992 BETWEEN: GLENDA MAREE BROWN ~: SPENCER MORAY HALE REASONS FOR JUDGMENT - CULLINANB J. DELIVERED THE EIGHTH DAY OF JULY, 1994. In this matter liability has been resolved upon the basis that the Defendant was negligent and that the Plaintiff's damages are to be reduced by 1St for contributory negligence. The hearing of the action occupied some 6 days and involved a substantial dispute as to the genuineness of the complaints which the Plaintiff makes relating to various parts of the body and if genuine the relationship between those complain·ts and the accident. The Plaintiff was born on 6th August, 1955 and injured on 12th July, 1982. The collision between the vehicle driven by her and the Defendant's vehicle occurred at an intersection with the Defendant's vehicle coming into collision with the driver's side of the Plaintiff's vehicle. The Plaintiff was treated at the Princess Alexandra Hospital (a report of the Hospital is exhibit 26) and the following day attended a general practitioner, Dr. Bui. His notes are exhibit 27. She complained to him of pain in the cervical spine and the left leg. So far as the latter is concerned it -- 4 of 31 -- 2 would seem clear from the orthopaedic evidence and especially that of Dr. Laister that she sustained an injury of some severity to this joint which involved a tear of the medial meniscus and a tear of the lateral meniscus. She saw Dr. Bui on five occasions complaining about her leg and neck. On 29th July, 1982, she is recorded as being much better and had returned to work. On 9th August, 1982, she complained that her knee was giving way and she also complained of headaches. It appears that Dr. Bui was treating the Defendant also and told the Plaintiff this and the Plaintiff then consulted Dr. Oates who was not called before me. She continued from time to time to see Dr. Bui about other matters. She says that she complained to Dr. Oates about her leg and neck. A l.i ttle later Dr. Oates referred her to a Dr. Birchley who practices as a psychiatrist. The consultations with Dr. Birchley were the subject of a good deal of evidence and submission as to their significance. I will return to this a little later in these reasons. The Plaintiff describes her condition at this time in Exhibit 11. She says she had headaches, cervical problems and leg problems. She also says that from the time of the accident she suffered some lower back pain but as I understand her evidence says that initially this was of much less significance than the other problems. According to the Plaintiff she found she could not cope with her work as an employee of the Australian Taxation Office when she returned -- 5 of 31 -- -------------- 3 after two weeks off following the accident. She had been an employe~ of the Australian Taxation Office for approximately 10 years prior to the accident and had been promoted from Clerical Assistant Grade 1 to Clerical Assistant Grade 3 in that time. She had been a member of the Army Reserve since 1978 but resigned following the accident because she says she could not perform the tasks required of her. Her complaints during this period are set out in exhibit 11 and also in a number of the medical reports which were tendered. The primary difficulty was that her cervical problems and headaches were exacerbated by her tasks at work. The Plaintiff says that because of her inability to perform her work she considered other career options which she thought she might be able to undertake. She applied to a Teacher's College in Brisbane but was unsuccessful. She commenced matriculation studies but ceased after she was accepted by the Lismore Teacher's College as an entrant. According to the Plaintiff during the later part of 1982 and in 1983 she was receiving physiotherapy treatment. Whilst at Lismore she says she continued to suffer the pain and difficulties with her leg, neck and headaches which she had suffered since the accident. She found she was pregnant whilst at Lismore and married in July, 1983. The Plaintiff has since her marriage given birth to 4 children whose dates of birth are the Twenty-fifth of November, 1983, the Seventeenth of October, 1985, the Tenth of February, 1987 and the Twenty-fifth of January, 1990, respectively. -- 6 of 31 -- 4 Whilst at Lismore she consulted Dr. Wagner concerning her pregnancy. There is a statement from this doctor which is exhibit SO. According to the Plaintiff she believes she may have consulted another doctor concerning some of her accident related problems but there is no report from such a doctor. The Plaintiff's husband who is a Police Officer was transferred to TOwnsville in July-August 1983. When the Plaintiff came to Townsville she saw Dr. Bailey a general practitioner who gave evidence. She saw him on two occasions the first concerning her pregnancy and the second on the 11th August, 1983 about her left knee problems. Prom the time of the accident the Plaintiff says that her left knee was giving away regularly on her. She was referred to Dr. Laister an orthopaedic surgeon. She did not complain to Dr. Bailey about any of the other problems she says she was experiencing about this time. In answer to a question by me Dr. Bailey said the Plaintiff saw him for the purposes of referrals to specialists, a gynaecologist on the first visit and Dr. Laister on the second. Dr. Laister saw her on 18th August, 1983. An arthroscopy was recommended but postponed until after the birth of the child. He saw her again on 7th February, 1984 when she told him that in addition to her leg problems she had suffered headaches and neck problems since the time of the accident. On 29th March, 1984 an arthroscopy was performed. There was a tear of the medial meniscus displaced in the intercondylar notch and there was a ruptured anterior crucial ligament which was -- 7 of 31 -- 5 irreparable. Whilst in June 1984 Dr. Laister records that the Plaintiff's knee joint appeared normal she returned again in November, 1984 complaining that the knee kept "popping" out. Dr. Laister formed the view that there was probably a torn lateral meniscus and that a further arthroscopy should be performed. This bas not yet been done because it would appear of her various pregnancies and her husband's subsequent transfer to Brisbane. Dr. Laister in evidence before me said that the Plaintiff has a torn medial meniscus which is the result of the accident and the history of the symptoms was consistent with this. Following arthroscopy to remedy the problem of which she presently complains she will have according to Dr. Laister a somewhat unstable joint and will develop arthritis. He says that she should be treated as having a disability of 25t to JOt of the leg. He says that as time goes on she will have increased difficulty with certain activities. I should mention that Dr. Douglas an orthopaedic surgeon who was called by the Defendant thought that the Plaintiff might proceed to a total knee replacement in which case she would have a disability of about 40t of the leg. He also thought the Plaintiff would have increasing difficulties over the next 10 years or so. The Plaintiff saw Dr. Douglas for a medico legal report on the Thirteenth day of December, 1983. He records that she -- 8 of 31 -- 6 complained of cervical pain and headaches as well as of difficulties with her leg and that she had suffered from these since the time of the accident. A general practitioner Dr. Raasch who was called by the Defendant saw the Plaintiff twice in 1984 and four times in 1985. The various reasons she saw her are set out in the transcript of her evidence. They relate to her pregnancy, a sore eye, ear complaints and a feeling of being generally run down. They do not include any reference to injuries sustained in the motor vehicle accident. She was of course during this time and apparently uriknown to Dr. Raasch seeing Dr. Laister on occasions concerning her leg problems and an arthroscopy had been performed in March 1984, shortly after she saw Dr. Raasch for the first time. On 14th May, 1985 the Plaintiff saw Dr. Fraser a general practitioner who was called to give evidence. She complained to him of neck, headaches and leg problems and also of some lower back problems which she said she had suffered from since the time of the motor vehicle accident. She also complained of occasional dizziness. He saw her on occasions extending over some years for these complaints. He referred her in May 1985 to Dr. Watson who then treated her on a number of occasions also extending over some years by manipulations. He also prescribed medication. She has seen both of these doctors on occasions following her husband's return to Brisbane on transfer in the latter part of 1990. This has occurred when she has visited Townsville. She has seen Dr. Lok, a general practitioner in Brisbane since the family moved -- 9 of 31 -- ' ) ------------------- ---------------- 7 south. The Plaintiff returned to work at the Australian Tax Office in mid August, 1984 in Townsville. She says that she enjoyed the work which was apparently different to what she had been doing in Brisbane but that she had a good deal of pain and discomfort especially with her neck and headaches caused by bending and leaning over. She also describes problems with her back at work. She had a fall in December, 1984 and was off work for a few weeks. On her return she experienced the same problems as before and saw Dr. Fraser who issued a certificate that she was unfit for work for some 3 months. At the end of this time she returned to work for 1 week and then commenced maternity leave. She has not returned to work since that time and was retired on 27th March, 1987. The first reference in any medical records to back complaints is in exhibit SA which is a report of Dr. Fraser of 11th December, 1986, and it appears that these complaints were made on the 14th May, 1985. Dr. Douglas says that when he saw the Plaintiff in June 1988 she told him that she had first experienced the onset of lower back pain some 2 years prior to that time. The Defendant says that a consideration of the evidence and particularly certain aspects of it to which I will refer shortly should lead to the conclusion that the Plaintiff is malingering a point of view which is supported to some extent by the evidence of Drs. James and Nothling both psychiatrists and to some extent Dr. Green who was asked to make assumptions -- 10 of 31 -- 8 about some matters, some of which coincide with the aspect• of the evidence to which I will refer. My consideration of the evidence generally including ay assessment of the Plaintiff who gave evidence before me for in excess of a day and the various matters relied upon by the Defendant in support of the contention that the Plaintiff is not genuine when she saya that she suffer• from such problems is that she genuinely doea experience the pain and difficulties which she complataa of. The Defendant accepts that she has a disability of the leg and that she sustained the injuries which have resulted in this disability in the accident. I am satisfied that the complaints which she makes in relation to this are genuine. As I have said the Defendant advanced a number of reasons why the Plaintiff's evidence should not be accepted. I do not propose to canvas all of these matters but I will deal with those which can I think be properly described as the .est significant. The Plaintiff in February 1983 was referred by her general practitioner to a Dr. Birchley who practices as a psychiatrist in Brisbane. A report prepared at a later date in relation to her treatment of the Plaintiff was tendered (Exhibit 15). In the consultations which she had with the Plaintiff the Plaintiff described to her various difficulties she was having in her life. A significant feature of the consultations is that the Plaintiff made no reference to the motor vehicle accident which occurred in July 1982. She refers to some problems having arisen six months earlier which is about the time of the motor vehicle accident and these are detailed in -- 11 of 31 -- 9 the report. Dr. Birchley thought the Plaintiff was suffering from depression and says that the Plaintiff told her that she had suffered from depression for about two years a matter which the Defendant also relied upon as significant in terms of the Plaintiff's claims that the accident brought about a major disruption to her life causing her problems which continue to disable her. The Plaintiff says that at the time she saw Dr. Birchley she was experiencing a specific problem which arose out of her relationship with a man with whom she had been associated over a long period and his treatment of her. This man (one Plynn) was called to give evidence before me. The Plaintiff said that she had experienced a similar problem with him about two years earlier and sought treatment for the difficulties which the relationship caused her. She said that this earlier treatment was from Dr. Bui although Dr. Bui who was called was not able to identify any such treatment. The Plaintiff says that she regarded the particular problem as separate and distinct from although perhaps superimposed upon the various problems which she had suffered from the time of the accident including the difficulties she had with work and her activities generally but that she did not relate the cause of her attendance at Dr. Birchley in any way to the accident. A psychiatrist, Dr. Richards, says that one of the features of the Plaintiff's condition is that she does not regard herself as suffering from any psychiatric problems but rather froa serious physical problems as a consequence of the accident. -- 12 of 31 -- 10 I am inclined to accept what the Plaintiff says about this. Flynn who impressed me as having a grievance towards the Plaintiff and not at all well disposed towards assisting her in these proceedings acknowledged that he had given her a difficult time at about this period which was when the Plaintiff was developing her relationship with her present husband and bringing her relationship with Plynn (with who. she owned and shared a house) to an end. The evidence as to the Plaintiff's treatment by Dr. Birchley does not lead me to the conclusion that the Plaintiff did not sustain injuries in the accident or that she was not at that time experiencing symptoms as a re.sult thereof. Rather I am satisfied that she saw herself as suffering from a specific difficulty which was not associated with the injury she sustained in the accident and which led her to see Dr. Birchley. Similarly I accept her when she says that she did not intend to convey that she had been suffering from such problems for two years but rather that she had on a previous occasion about two years earlier suffered from similar difficulties which led her to receive some treatment although it would appear she is mistaken in identifying Dr. Bui as the doctor concerned. The Defendant also suggested that a conclusion adverse to the Plaintiff should be drawn from the circumstances surrounding the coming into existence and the coming to light of Dr. Birchley's report. It appears Dr. Watson obtained this report and there is before me material which concerns contact between Dr. Watson and Dr. Birchley and Dr. Watson and the Plaintiff -- 13 of 31 -- ---~--~-~---~~·· --~·-------- 11 about this. It is sufficient to say that whether the criticisms made of Dr. Watson by the Defendant in relation to this matter are justified there is nothing which would lead ae to conclude that the Plaintiff had been a party to any attempt to withhold this document which apparently was obtained pursuant to a Writ of Non-Party Discovery served on Dr. Watson. The Defendant canvassed the medical treatment which the Plaintiff has had following her treatment by Dr. Bui and in particular relied upon the absence of any evidence of complaints to medical practitioners concerning her upper or lower back or the leg for some substantial period. The evidence shows that the Plaintiff did obtain a reference in early 1984 to Dr. Laister in Townsville but the evidence does not show any complaints to medical practitioners concerning the spine or headaches between the time of the treatment by Dr. Bui and her being seen by Dr. Fraser a general practitioner in early 1985 with the exceptions of her complaints to Dr. Laister in early 1984 and to Dr. Douglas an orthopaedic surgeon at Townsville who saw her for medica legal purposes in December 1983. I have already outlined the Plaintiff's history of attendances upon doctors following the accident and her general history during this time. Perhaps it is a little surprising that when she saw Dr. Wagner at Lismore she made no complaints about the problems which she says are the result of the accident and a similar comment may be made in relation to her attendances upon Dr. Raasch. However there is no doubt that during this time she must have been suffering from symptoms in her left knee - and accepting her complaints -- 14 of 31 -- ------------ ------------· 12 these were significant - but these were not raised with either of those doctors. She did however consult Dr. Bailey upon her arrival in Townsville about her leg and as I have said it is apparent she made complaints to both Drs. Douglas and Laister in late 1983 and early 1984 respectively of cervical spinal problema and headaches which she ascribed to the accident. She saw or. Fraser in early 1985 complaining of neck and back problems which she ascribed to the accident and these complaints led him to issue a certificate that she was unfit for work for three months and to refer her to Dr. Watson. It seems to me that her attendances upon Dr. Wagner at Lismore and Dr. Raasch in TOwnsville were for quite specific purposes and in the former case related entirely to her pregnancy. The history of her attendances at doctors does not persuade me that the Plaintiff is not telling the truth when she says that she has had pain and discomfort in the neck and shoulders and headaches since the time of the accident. I will deal separately with the question of the lower back a little later. Various videos were tendered and these it is was said demonstrated that the Plaintiff did not have the restrictions which she claims. Dr. Richards and Or. Nothling both observed these videos and expressed somewhat different views about what they revealed. Raving looked at these it is my impression that some of the videos do not show anything which is of significance either way, some show the Plaintiff walking with her neck held still and walking with some care and one shows her reversing the vehicle whilst turning her neck only to a limited extent and without any attempt to look behind her. -- 15 of 31 -- 13 One of the videos shows the Plaintiff coming from a supermarket and placing her head on the bonnet of the car and then shortly afterwards sitting with her head in her hands in the car. It was suggested by the Defendant that the Plaintiff was aware that she was under surveillance and acted accordingly. Were there evidence from which this conclusion could be drawn it would reflect seriously upon her credit. However she says that, having seen the video, she recalls the specific occasion and that she had a migraine and remembers vomiting in the vehicle on the way home. She says she was not aware she was under surveillance at that time although she had at some time some understanding or belief that someone was either watching her or making enquiries about her at different times. Dr. Nothling has expressed some scepticism about the Plaintiff's behaviour on this occasion and in particular between her appearance when walking into the supermarket and what he observes subsequently. However the material on the video does not convince me that the Plaintiff has not been telling the truth about her complaints and the restrictions she has and I think if anything there is some evidence confirmatory of what she says. The Defendant relied upon evidence of Mr. Flynn who had been in a relationship with the Plaintiff for many years. This relationship came to an end on a date which does not appear from the material but which preceded the accident. Flynn and the Plaintiff had purchased a house together and at the time of the accident although they were no longer in the close personal relationship which had previously existed between them were occupying different parts of this house. It appears -- 16 of 31 -- ~~--~~ --·--~~~~- 14 that matters had come to a head between them when the Plaintiff asked Flynn whether they were to marry and he said that he did not think they were suited to each other and she asked him whether he would object to her keeping company with somebody else. This is Flynn's version as set out in Exhibit 66. It was shortly after this that the Plaintiff's present husband began coming to the home. According to the Plaintiff she had been keeping company with her present husband for some months prior to the accident. She and Flynn worked for the Australian Taxation Office and also continued to have some dealings with each other. Flynn says that the only complaint he can recall the Plaintiff making is of her knee although he says that he has a vague recall of her saying something about a whiplash injury. It was apparent from Flynn's evidence and the manner in which he gave it that he nurtures a sense of grievance towards the Plaintiff and is resentful of the fact that she formed the association with her present husband and married him within what he considered an inappropriately short time after the termination of their relationship. He continued it would seem to be emotionally attached to the Plaintiff. He acknowledges that he was somewhat aggressive towards her following the separation and I am satisfied that it was a consequence of this and the difficulties it caused the Plaintiff that she sought assistance which resulted in her being referred to Dr. Birchley. -- 17 of 31 -- 15 Whilst I do not accept Flynn's evidence which would suggest that the Plaintiff did not appear to have any difficulties following the accident his evidence as to her personality prior to the accident provides no support for the contention of the Defendant that the Plaintiff suffered from depression prior to her accident or was in any way limited in her work or other activities because of this or anxiety. Indeed the picture which Flynn paints is quite at odds with this and suggests that she was an outgoing person who was an attractive personality. This accords with evidence of other witnesses such as Mr. Grewar, her superior in the Army Reserve and a Miss Stratford as well as her husband. Whilst a good deal of this evidence can justifiably be criticised as vague, I accept generally the description of the Plaintiff prior to the accident and am satisfied there was a noticeable change in her after the accident. Some criticism was made of the Plaintiff in that answers to interrogatories failed to refer to treatment for conditions and injuries which she had had including treatment from Dr. Bui prior to the accident which is referred to in his evidence. I accept that the Plaintiff was deficient in failing to provide this information but neither this nor the various inconsistencies relied upon by the Defendant leads me to reject her evidence as to the crucial matters which concern me. My assessment of her is that she was being truthful when she -- 18 of 31 -- --~-~~-~ ~----~----·-~~~~----~-~-----~~~-~- ~~~- ·-~~~~~~- ----- --- 16 described her complaints and their history since the accident. It is clear from the evidence of Dr. Laister and other evidence that there is an organic basi~ for the Plaintiff's leg complaints. I am satisfied from the evidence of Dr. Douglas and Dr. Lewis that there is an organic basis for the Plaintiff's cervical and back complaints. Dr. Watson, in Exhibit 7D, suggests different organic bases for the upper and lower spinal complaints but I prefer the evidence of Drs. Douglas and Lewis that there is soft tissue damage in these areas. The headaches which the Plaintiff suffers from are associated with the Plaintiff's cervical problems. She also suffers from migraine headaches, somewhat more regularly than she did before the accident and I accept Dr. Reimers' opinion that these have been aggravated by the cervical injury. Although there is an organic basis for these complaints, they are greater than can be accounted for on any organic basis and there are some complaints which do not have an organic basis. If the Plaintiff's complaints are to be accepted, as I do, as genuine, there is a substantial degree of agreement between the psychiatrists. Dr. Richards, Dr. James and Dr. Nothling each expressed the view that the Plaintiff suffered from a hysteroid conversion disorder and a somatoform pain disorder. Dr. Green expressed a somewhat different opinion as to her condition, postulating that she might suffer from conversion disorder from time to time but is most probably suffering from a generalised anxiety disorder. Dr. James and Dr. Nothling differed from Dr. Richards as to the cause of these -- 19 of 31 -- 17 conditions, their severity and their prognosis. It seems to me that as to the first matter this to a large degree turns upon what I find as to whether the Plaintiff has in fact suffered from the complaints she makes since the accident and whether that is the cause of such complaints. Dr. Richards' opinion is that as the acute phase of the injuries subsided the symptoms were perpetuated as a result of the development of the condition I have referred to, this condition being triggered by the injuries sustained in the accident. The condition has,. to use his words, "flowered and developed" since that time and she now suffers from symptoms, some of which have some organic basis and some of which do not. Dr. Nothling agreed that the Plaintiff's leg symptoms must be regarded as playing a role in her present psychiatric . condition and that if she had suffered cervical symptoms since the accident her present psychiatric condition must be regarded, to that extent, as being related to the accident. I accept that the Plaintiff has suffered from cervical pain and associated headaches since the accident with the onset of dizzy spells and other symptoms a little later. I am satisfied she has also suffered from pain and instability in the knee since that time. so far as the Plaintiff's lower back complaints are concerned, I am satisfied she suffered some back pain following the accident but that this was relatively insignificant compared to her other problems and I think she has suffered from occasional back pain since that time with the present level of symptoms in this area appearing some years following the -- 20 of 31 -- ---· ------------ -----------·----- ------------ 18 accident. However having regard to the evidence of Dr. Douglas and Dr. Lewis and their opinions on this subject I am not satisfied that the Plaintiff has established that her lower back complaints should be ascribed to the accident. Dr. Richards relates this part of her condition to the accident upon the basis that she has an organic basis for her complaints in this area arising from the accident. I accept the evidence of Dr. Richards. There were some respects in which his understanding of matters was incorrect but he has said that these do not effect his opinion. In one instance in which he erroneously referred to the Plaintiff being about to leave home he was simply indicating an alternative possible cause of the onset of the Plaintiff's problems (one which he did not accept) and the fact he is incorrect about its existence can hardly effect his opinion. The Plaintiff presently suffers from the conditions which I have referred to and these are I accept a consequence of the accident and are permanent. Whilst the limitations she has in consequence are serious, she is able to engage in many activities and attends to a number of the tasks which one would expect of a mother and housewife. I am also satisfied she is able to do more at some times than at others. There has to be taken into account in assessing damages the fact that the Plaintiff was vulnerable to the development of these conditions by stressors which may have occurred in her life and I do so. I also take into account that there have been other factors which have affected the level and extent of -- 21 of 31 -- 19 the symptoms which are the manifestation of these conditions. I am satisfied from Dr. Richards' evidence that the Plaintiff's psychiatric condition would preclude her from employment of a kind in which she had previously engaged. In reaching this conclusion I am satisfied that it is primarily the symptoms associated with the upper spine and the headaches which caused her to cease her work at the Australian Taxation Office and which would prevent her engaging in clerical or similar work which is, I am satisfied, what she would have engaged in. I do not think the evidence would support the conclusion that the lower back symptoms would be sufficient to exclude her from the workforce. No attempt was made in the evidence of the various medical witnesses to identify the effects of the back symptoms upon her considered in isolation. However I think a consideration of the evidence as a whole supports the above conclusion. Mrs. Coles, Occupational Therapist, made her assessment, which I accept, of the Plaintiff's capacities including her capacity to work without any significant reference to her back problems which, in evidence before me, she said did not feature much in her interview or assessment. See Exhibit 9A p. 239 11. 15-40. Nonetheless I am satisfied that the back complaints impose limitations upon the Plaintiff and in assessing damages allowance is made for the fact that, had the Plaintiff not been injured, the onset of the back symptoms would have caused her some difficulties in her tasks at work and may have resulted in her having time away from work and would have placed her at a disadvantage in the workforce. -- 22 of 31 -- 20 In addition the Plaintiff has a significant disability of the left leg. I assess damages upon the basis that she ought to have had an arthroscopy after Dr. Laister's advice to her in this regard and no later than 1990 when her last child was born. She will after the arthroscopy have increasing difficulty and restriction of activity as her knee degenerates and she may have to have the knee joint replaced. I assess the Plaintiff's general damages in the sum of $55,000-00. I allow interest at the rate of 2t on $20,000-00 of this as representing the pre-trial component for 10 years. This produces a figure of $4,000-00. The Plaintiff has given birth to four children since the accident. She says that she intended to continue working but would have had children but she says that she does not know how many children she would have had. She expressed some reservations as to whether she would have had four children. It was her evidence that she would have continued working. Her employment provided her with generous maternity leave entitlements with some weeks of paid maternity leave both before and after the birth of the child and unpaid maternity 1eave for a year. She says that she does not know how much maternity leave she would have taken but was adamant that she would have continued working. On my assessment of her I am satisfied that but for the accident the Plaintiff would have continued working but I am -- 23 of 31 -- ---------------------------------- 21 also satisfied that she would have been out of the work force for significant periods whilst on maternity leave. Some allowance also has to be made for the vulnerability that I have already referred to. The Plaintiff's employment was terminated on the 27th March, 1987. There is not any claim for loss of income during the period that she was off work immediately following the accident and it seems she was in receipt of income from the Australian Tax Office by virtue of other entitlements during the period prior to her return to work when she and her husband moved to Townsville. She makes a claim for the loss of these entitlements. There is evidence before me of a Mr. Seabrook who is an officer employed by the Australian Tax Office and who was for some years engaged in the personnel and training areas of the department. He provided a document which is exhibit 54 setting out a career path which he suggested provided guidance as to the manner in which the Plaintiff might have progressed in the Department over the years since her employment was terminated. This assumed that the Plaintiff would have remained at Tow.nsville during the whole period when in fact she had returned to Brisbane in August 1990 when her husband was transferred. I accept that it is nonetheless of value in attempting to make an assessment of the Plaintiff's pre-trial loss. A person who followed the career path set out in that exhibit would have earned during the period since the Plaintiff ceased -- 24 of 31 -- 22 employment a total nett income of a little over $190,000-00. I have in Exhibit 48A the amounts which the Plaintiff's employer would have been required to contribute by way of superannuation entitlements during this time. The Plaintiff earned income as a member of the Army Reserve and there is also before me calculations of what income she might have earned had she remained a member of the reserve and remained at the same rank that she had been when she left. This claim is made for the period ending 31st December, 1985. During this time the Plaintiff's husband had been transferred to Townsville and the Plaintiff had given birth to one child. I make some allowance for loss of income from this source but do not think it realistic to allow loss of earnings for the whole of the period. I do not overlook the possibility that the Plaintiff might have obtained some promotion. Taking the various matters into account including loss of superannuation entitlements and loss of entitlements by way of sick leave and long service leave which are claimed I allow the Plaintiff damages for loss of income together with superannuation entitlements and loss of benefits until the present of $125,000-00. The Plaintiff has received about $103,000-00 which can be regarded as being by way of income substitution. I allow interest for 9 years at 4% on $22,000-00. The amount of interest is $7,920-00. So far as future economic loss is concerned the Plaintiff had she progressed in accordance with I -- 25 of 31 -- --------------------------- ----------------- 23 the career path Mr. Seabrook has suggested would presently be receiving a net weekly income of $565-55. The present value of this sum over 17 years when the Plaintiff would be aged 55 (which is what she claims- Exhibit 11) is about $360,000-00. There has to be taken into account the usual contingencies and vicissitudes and in the Plaintiff's case her particular vulnerability to the development of the psychiatric conditions which she presently has. In addition I think it possible that had events not taken the course they have the Plaintiff may have had time away from work by way of maternity leave from this point. She may not have achieved the promotions which are implicit in Mr. Seabrook's scenario. I have already referred to the development of the Plaintiff's back problems. I allow $225,000-00 for future economic loss including loss of superannuation entitlements. I turn now to the claims under the Griffiths -v- Kirkemeyer principle both past and future. I am satisfied for a short time following the accident the Plaintiff required a good deal of care and personal assistance. Since that time I do not think the evidence would warrant the conclusion that she has been anything other than independent in terms of her personal care although she had some difficulties in managing whilst she was at Lismore. She has -- 26 of 31 -- -~-------- ------~ ------- ~-- --- ---- 24 required assistance in the performance of domestic tasks with the extent of these tasks becoming greater and thus the extent of her need for assistance greater following her marriage and the birth of her children. Since that time domestic tasks have been performed partly by the Plaintiff and partly by her husband and for some years with the assistance of paid help. The Commonwealth Rehabilitation Service provided assistance and counselling to her to enable her to minimise pain in the performance of domestic tasks and improve her efficiency within the limits of her disabilities. A number of aids were supplied. Some contribution by the Plaintiff's husband to the performance of domestic tasks would have been expected in any case. Mrs. Coles an occupational therapist has in 2 reports (exhibits 9A and 9B) attempted to isolate the various difficulties which the Plaintiff's limitations impose upon her in the performance of domestic tasks and to identify the extent of her need for assistance. I accept in general her evidence about this. The Plaintiff's primary problems arise from her cervical complaints and her headaches together with some difficulties caused by the giving way of her leg. On Mrs. Coles' assessment few of the Plaintiff's difficulties flow from her back complaints. I have already found that the back problems are not on the evidence ascribable to the accident. So far as the leg is concerned the Plaintiff ought to have had the arthroscopy -- 27 of 31 -- 25 prior to this time. Had that occurred she would not have had any further occasions of the leg giving way but would have had some loss of strength and stability in the leg and some restriction of movement which as time passed would have prevented her from some activities such as squatting and which would have led to degenerative changes. zt is impossible to isolate the effects of these upon her need for assistance. Mrs. Coles thought that her knee problems may account for about two hours per week of her need for care and assistance but, as against this, the Plaintiff as the years go by, will have increasing difficulties with her knee which will limit her capacity to perform household tasks. z apply a discount which I think is appropriate but bearing in mind that z think the evidence establishes that the neck and headaches and associated problems cause her the predominant difficulties with domestic tasks. The relevant rates are set out in exhibit 13A, 13B and 64. The total claim in respect of past care and assistance is a little in excess of $88,000-00. As I have indicated the Plaintiff's present requirements are according to Mrs. Coles for 8 hours assistance per week. If the Plaintiff did not have the assistance of her husband her requirements for assistance with domestic and household tasks would be substantially greater but in that event there would be a reduction in the extent of household and domestic tasks to be performed. The picture which emerges from the evidence -- 28 of 31 -- • 1 . --------------- ---------------------- 26 of Mrs. Coles and the Plaintiff's husband is of the Plaintiff allowing the domestic tasks to remain undone and a somewhat chaotic household in consequence. The husband it would seem carries out at least his share of the domestic tasks. The sum of $88,000-00 is however calculated upon the basis of a requirement of 21 hours per week, something which I do not think is supportable on the evidence. As I have said I think that it can have been expected that the Plaintiff's husband would have made a contribution to such tasks in any event and Mrs. Coles has endeavoured to isolate the requirement for such assistance over and above the contribution which is made by the Plaintiff's husband. It is the total household requirements including the needs of the children for domestic care and assistance that are under consideration. Applying the relevant rates for 8 hours a week reduces the amount to $33,400-00. I allow the sum of $25,000-00. I take into account also in respect of this head of damages the Plaintiff's vulnerability to the development of the psychiatric conditions she has. I allow interest at 4% per annum for 10 years on this amount producing a figure of $10,000-00. Mrs. Coles in evidence gave some estimate of the reducing level of need for household assistance as the children grow older and I assess damages upon this basis. The figures which Mrs. Coles gave as the reduced number of hours required in the future took into account the husband's -- 29 of 31 -- • 27 contribution and also some contribution from a brother-in-law whose contribution I am satisfied is limited to occasional assistance with transport of the children. There is a claim for future care and assistance in excess of $300,000-00. This however is also based upon an assumed need of 21 hours per week. This is not borne out by the evidence as I have said and, in addition, does not make allowance for the reductions in the level of assistance which will be required in the future. As against this something has to be allowed for the risk that for one reason or another, the Plaintiff's husband might not be in the household and the burden might fall wholly upon the Plaintiff. Taking everything into account including of course the fact that the Plaintiff may have had such a need for assistance as a result of the manifestation of her psychiatric condition for some other reason or reasons I allow for future assistance·in respect of domestic tasks the sum of $50,000-00. The Plaintiff ultimately limited her claim for special damages to the amounts which were paid on her behalf by Comcare and Commonwealth Rehabilitation Service and to a Fox -v- Wood component in respect of tax deducted from the amounts she has received as compensation since her employment was terminated. I allow as special damages the sum claimed of $9,700-00 together with the Commonwealth Rehabilitation Service payment~ of $1,500-00. -- 30 of 31 -- 28 Some $29,500-00 is allowed under the Fox -v- Wood principle. There is a claim in respect of future medical and pharmaceutical expenses. The Plaintiff takes medication which has been prescribed for her. In addition she will continue to require regular consultations with her general practitioner according to Dr. l'raser. I have evidence as to the costs of the various pharmaceuticals and the consultations. Whilst the figures which the Plaintiff contends for in the written submissions are reasonable I think some discount has to be applied for the risk that she may have in any case required some of these expenditures. I allow the sum of $17,500-00 for future medical and pharmaceutical expenses. The Plaintiff should be allowed the cost of the arthroscopy which according to Dr. Lewis is $1,450-00. The total is $561,570-00. This has to be reduced by 15%. I give judgment for the Plaintiff against the Defendant in the sum of $477,334-50 with costs to be taxed. -- 31 of 31 --