Aurisch v Nominal Defendant (Queensland) [1990] QSC 139

(--. I\ . 10 20 30 40 50 60 '. IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION No. 5193 of 1983 BEFORE MR. JUSTICE DOWSETT BRISBANE, 5 APRIL 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: LEONIE CHERYL AURISCH -and- THE NOMINAL DEPENDANT (QUEENSLAND) JUDGMENT Plaintiff Defendant HIS HONOUR: The plaintiff was born on 7 June 1956 and injured in a motor vehicle collision on 12 December 1981. Liability is not in issue. At the time of the accident the plaintiff was aged 25 years and she was on a holiday at the north coast. She suffered very serious injury to her left leg and some other minor injuries~ The extent of the injury is best described in the hospital report, Exhibit 1, as follows: "Her injuries included a compound fracture of her left medial and lateral tibial plateaus which was a heavily contaminated wound. The medial plateau was depressed and the lateral plateau was split off ..This showed a fracture of .the neck of the fibula, the lateral popliteal ·nerve being intact. There was a small laceration over the proximal phalanx of the left little finger and an abrasion over th~ rightthigh and left sole. Under a general anaesthetic the compound wounds were cleaned and .debrided. It was noted at operation thather collateral ligaments were intact, her cruciateligaments were intact and there was a chondral crush fracture on the articular surface of her patella. The fractures consisted of five plus pieces, the left tibial condyle had total disruption of the architecture .I · •wt. Printer, Qld. 1 10 20 30 C 40 50 60 -- 1 of 6 -- ,r·· 10 20 30 40 50 with significant loss of both cancellous and cortical bone. The patellar tendon was attached to avulsed tibial tuberosity. The fractures were reduced and held with spongiosis screws and a medial butress plate. The patellar tendon was re-attached to the tibia. 11 As appears from the medical reports, she has undergone considerable further treatment since that time and is now left with a very significant incapacity which is estimated by some reports at 50 per cent of the left leg and by others at 60 to 65 per cent. Obviously these percentages have little meaning other than to give to judges and other people reading:this judgment an opportunity to compare her incapacity with incapacity found in other cases. She has very substantial scarring to the leg, which is shown in some of the exhibits, and I have no doubt that she has been deprived of a very considerable part of her capacity to enjoy life both at_work and in the home. She was the sort of person prior to the accident who very much enjoyed her work and, as was said in addresses, there is no doubt that much of her loss of amenity can be attributed to loss of her opportunity to participate in employment which she enjoyed. In addition to the injuries and consequences to which I have referred, she has, as I find, been left with a very significant post-traumatic stress disorder which has become chronic. This is characterised by recurrent and intrusive recollections of the accident along with recurrent dreams. She has a fear of the unknown which is quite, significant., She had difficulty in coping with giving evidence before me .. She and her husband have moved from Sydney to Taree;in search of a less pressured .life for her. I am quite satisfied that she would have very considerable difficulty in coping with employ- 10 20 30 40 50 ----=-60=------1----=-m=e=n=-=t--=-·-----------------------------------' .60 -Govt, Printer, Old. 2 -- 2 of 6 -- 10 20 30 40 so 60 Following the accident,,she tried to go back to work in January 1983 but was unable to cope. She subsequently went back to work in September of 1983 and save for a period when she was on leave during her first pregnancy,continued in employment until 1987. I am satisfied, though, that her capacity to work at that time was really artifically created by a very understanding employer who went to the extent of arranging for .a departmental car_ to pick up and deliver her to work and return home. This is obviously something which could not be continued indefinitely for an employee at a relatively low level, and this is what I mean when I say that I think her employment opportunity was really artifically created. It: was reasonable for her to go to Taree to avoid - I the pressures of living in Sydney,~iven her psychiatric condition, but obviously the opportunities of finding employmen, there would be somewhat less than in Sydney, although I think she could have obtained some sort of work there had she not been subject to her various incapacities. 10 20 30 The plaintiff impressed me as an intelligent and articula e 40 woman, and the evidence of Mr. Creighton, who previously supervised her in her work for a considerable period of time, also shows that she was a very capable worker and one who was likely to attain promotion. I am satisifed to accept her evidence that had she' not been injured /~he would have absence durin~ h~r;'\dmfinements and for some!years whilst her children were you~g. I think in those years she .would have \ undertaken part-time employment which is apparently readily available in the New South Wales Public Service where she was -Govt. Printer, Qld. 3 50 60 -- 3 of 6 -- 10 employed. I fix the award by way of pain, suffering and loss of amenity in the sum of $75,000. I include in that some allowance for the possibility of a future operation, as is suggested in the medical reports, and also a small amount to take account of a claim for interest on $500,being part of the agreed special damages. I should say with respect to the operation that she is very much opposed to having it and frightened of it, and I think with good cause. It may be that if the pain becomes serious enough she will subject herself to it at some time in 10 20 20 30 the future, but I think that is a long way away, and it is at present not likely that she will undergo the operation at all, but there is the possibility. I assess the part of the award attributable to past loss at $35,000 and I allow interest on that sum at 6 per cent per annum tor six and one third years showing $13,joo. Special damages are agreed at $42,000 and~ as I have said I have made some small allowance for interest on $500 of that sum. As to past economic loss, she has since the accident, 30 40 40 50 60 I ·am told~ earned $52,678.73. An employee, described by Mr. Creighton as equivalent to her, has in that time derived a nett income of $158,466.74. I accept and find that he is equivalent in a relevant way to the plaintiff as an employee. That shows a dif~e~ence of something in excesi of $100,0b0 as a measur{\)f the lost income to date. However, as was pointed out by it is necessary to reduce this to take account of the fact that she would in all probabiliti have had unpaid leave at the time of the birth of each child in any event- - . I consider that ·~is probably so. ~ovt. Printer, Qld. 4 50 60 -- 4 of 6 -- 10 20 30 40 50 The plaintiff had 318 days' leave without pay at the time of the birth of her first child, but it seems to me that·· was probably extended by her injury, and I think that had she not been injured she probably would have had leave for about a year, although that is only a rough approximation on my part. She was apparently entitled to about three months' leave with pay, so I would be inclined to assess the period of nine months as being the period during which she would have been without pay following the birth of her child in each case. That is a total of 18 months. I accept also that after the birth of her second child she would probably have only undertaken part-time work. The child was born late in 1988, so probably from late in 1989 until the present she would have been working part-time. Making appropriate reductions, I will fix the award for past economic loss in the amount of $75,000~ and I will allow interest on that at 6 per cent per annum for six and one third years showing $28,500. As to future economic loss, for the reasons which I have given I think it unlikely that she will return to work, althoug I think that she does have some residual capacity,and it may be that with some counselling she might be able in the future to realise some part of it. Mr. Genner·presently is averaging a little less than $500 a week nett including overtime. I think that from the time at which the second chi_ld goes to school;it is probable the ~laintiff would have returned to wdrk full time, that is, in ' ', ' ' ' about fot;tr years.· As. I say, I think she ha~lrsome continuing capacity, although it is unlikely that she ~ill iealise it~ I think that the sum of $400 per week gives a good indication of her present loss. She says that she would have.worked until 10 20 30 40 50 60 60 · ,~. •. Printer, Old. 5 -- 5 of 6 -- 10 20 aged 55, but she would, of course, have retained the opportunit to continue working after that date had her familial circumstances compelled her to do so. I think, therefore, that no further discounting is called for. I will calculate her future economic loss by allowing her $400 per week for 21 years that is until age 55, with a deferrment of four years to represent the period during which she would have worked part time-$400 per week on the 5 per cent tables for 21 years shows $271,263. That sum for four years shows $75,626, the difference being $195,637. In addition to this, she would have been working part time over the next four years, and assuming she would have worked for roughly half of the time, I would allow her $200 for four years to represent this loss, that is $37,813. Adding the two sums together shows a total future economic loss of $233,450, and I will fix her loss in that sum. 10 20 30 30 40 50 60 The total award will therefore be as follows: Pain, suffering and loss of amenity Interest at 6 per cent per annum for six and one third years on $35,000 Agreed special damages Past .economic ·loss Interest at 6 per cent per annum for six and one third years Future economic loss The total is -$467,250. There will be judgment for the plaintiff Nominal Defendant in the sum of $467,250. $ 75,000 $ 13,300 $ 42,000 $ 75,000 $ 28,500 $233,450. I order that the Nominal Defendant pay the plan tiff's costs of the action. ,vt. Printer, Old. 6 40 50 60 -- 6 of 6 --