Corlett v Mifsud [2004] QSC 35

SUPREME COURT OF QUEENSLAND CITATION: Corlett v Mifsud [2004] QSC 035 PARTIES: REBEKAH LEE CORLETT (Plaintiff) v MARGARET MIFSUD (Defendant) FILE NO: S120/02(Mackay) DIVISION: Trial Division DELIVERED ON: 2 March 2004 DELIVERED AT: Mackay HEARING DATES: 2 March 2004 in Mackay JUDGE: Dutney J ORDERS: Judgement for the plaintiff against the defendant in the sum of ONE HUNDRED AND THIRTY FOUR THOUSAND FIVE HUNDRED AND TWENTY EIGHT DOLLARS AND FIFTY FOUR CENTS ($134,528.54) CATCHWORDS: MOTOR VEHICLE ACCIDENT – PERSONAL INJURIES – QUANTUM ONLY – where plaintiff suffered whiplash – where plaintiff suffers ongoing neck and back pain and headaches Wrongs Act 1936 (SA), s. 35A Varnas v Peake [2001] SASC 330 (23 October 2001), discussed Hardy & Hardy v Barberien [2003] SADC 51 (8 April 2003), discussed COUNSEL: Mr GF Crow for the plaintiff Mr RN Alldridge for the defendant SOLICITORS: Macrossan and Amiet for the plaintiff McInnes Wilson defendant [1] The plaintiff was injured in a motor vehicle accident in Adelaide on 18 July 2000. Liability for the injury is admitted by the defendant and the only issue before me is quantum. -- 1 of 7 -- 2 [2] Because the accident occurred in Adelaide the assessment of quantum is governed by the provisions of the Wrongs Act 1936 (SA) and in particular by section 35A of that Act. [3] Insofar as it is relevant to these proceedings s. 35A of the Wrongs Act provides: “(1) Notwithstanding any other law, where damages are assessed for or in respect of an injury arising from a motor accident the following provisions apply: (a) no damages shall be awarded for non-economic loss unless – (i) the injured person’s ability to lead a normal life was significantly impaired by the injury for a period of at least 7 days; or (ii) the injured person has reasonably incurred medical expenses of at least the prescribed minimum in connection with the injured person’s injury; and (b) if damages are to be awarded for non-economic loss, they shall be assessed as follows: (i) the injured person’s total non-economic loss shall be assigned a numerical value on a scale running from 0 to 60 (the greater the severity of the non-economic loss, the higher the number); and (ii) the damages to be awarded for non-economic loss shall then be calculated by multiplying the prescribed amount by the number assigned under subparagraph (i); and … (c) if the injured person was incapacitated for work, no damages shall be awarded for loss of earning capacity in respect of the first week of the incapacity; and ... (g) no damages shall be awarded – (i) to allow for recompense of gratuitous services except services of a parent, spouse or child of the injured person; or (ii) to allow for the reimbursement of expenses, other than reasonable out of pocket expenses, voluntarily incurred, or to be voluntarily incurred, by a person rendering gratuitous services to the injured person; and (h) damages awarded to allow for the recompense of gratuitous services of a parent, spouse or child shall not exceed four times State average weekly earnings; and ... (k) no interest shall be awarded on damages compensating a non- economic or prospective loss (2) Notwithstanding the limits fixed by sub-section (1)(h), if the court is satisfied that by rendering gratuitous services a parent, spouse or -- 2 of 7 -- 3 child has saved or will save the injured person the cost of engaging another person to provide those services (those services being reasonably required by the injured person), the court may make an award of damages in excess of that limit but the damages awarded in that event must not reflect a rate of remuneration for the person providing the services in excess of State average weekly earnings.” [4] It is agreed between the parties that the prescribed amount for the purposes of s. 35A(1) (b)(ii) is $1,580.00. [5] The plaintiff has suffered a “whiplash” style injury to her neck. She says she suffers constant neck pain and headaches as well as periodic pain in her mid or lower thoracic spine. Her symptoms of chronic headaches and “pinching” pain from the back of her neck and across her head to her forehead are typical of whiplash injuries. [6] The plaintiff says she has suffered the symptoms since the date of the accident. I accept the evidence of Dr Cook that if the symptoms are still present now, more than three years after the accident, they are likely to be permanent. [7] I note that Dr Fraser in his report, exhibit 8, did not identify muscle spasm or restricted range of movement when he examined her in September last year. I note however that Dr Fraser did not doubt that the plaintiff had suffered the injury of which she complained. Having observed the plaintiff’s posture both in the witness box and in the courtroom after her evidence was completed, I accept Dr Cook’s evidence to the effect that the clinically observable features of the plaintiff’s condition are not constant and that she suffers the ongoing symptoms of which she complains. [8] Under s. 35A of the Wrongs Act, I am required to attribute a number between 0 and 60 to the plaintiff’s non-economic loss. The plaintiff is a young woman now only 23 years of age, having been born on 18 July 1980. She became a mother for the first time on 3 July 2003. She has had chronic pain since she was 20 years old and has in part at least been deprived of the full enjoyment of her baby. Normal motherly chores such as bathing and feeding the infant cause her such discomfort that she has largely handed these tasks over to her partner. The pain has not prevented her from holding employment. In attributing a value to the non-economic loss I have been assisted by the decision of the Full Court of South Australia in Varnas v Peake1. In that case the plaintiff’s injuries were generally similar to those suffered here. The plaintiff in the South Australian case was, however, 45 years old and had a pre-existing degenerative condition which was made symptomatic by the injury. The plaintiff here is much younger and has no degenerative condition. She would thus have had a much longer expectancy of pain free living. In the South Australian case the Full 1 [2001] SASC 330 (23 October 2001). -- 3 of 7 -- 4 Court substituted a figure of 12 for the primary judge’s figure of 30. Having regard to the factors I have just mentioned, I consider an appropriate figure here to be 15. This is consistent with a figure of 18 assessed in a District Court case of Hardy & Hardy v Barberien2where the effects of the “whiplash” were exacerbated by a psychological overlay. [9] Given the above finding the plaintiff’s damages for non-economic loss are assessed at $23,700.00. [10] The plaintiff was unemployed at the time of the accident. She had experience as a receptionist, shop assistant and bar attendant. She says she could no longer work as a bar attendant after the accident. Dr Cook agrees. [11] After the accident the plaintiff unsuccessfully sought work as a receptionist in Adelaide. There is no evidence her lack of success was attributable to her disability. [12] In October 2001 the plaintiff moved to Mackay to live with her parents. [13] In early 2002 the plaintiff commenced a STEPS course through Central Queensland University, with a view to ultimately becoming a social worker. She had ceased her formal education at grade 10 with modest results. She found the pain in her neck and her headaches inhibited her study and she discontinued the course. This also coincided with her moving in with her current partner and fiancé, Mr Birkett. Whether this contributed to the discontinuing of study was not explored. [14] On 19 August 2002 the plaintiff was employed full time as a receptionist by W.D.T. Engineers in Mackay. She remained with that company until she took maternity leave from 28 May 2003. Prior to going on maternity leave the plaintiff arranged for the company to employ a replacement receptionist in her absence and to job share with that replacement when she returned. The replacement is leaving the company shortly and the plaintiff then proposes to resume full time work. [15] The plaintiff intends marrying her current partner in early June and then relocating to Brisbane where his prospects are better and where she believes work is plentiful. [16] Because of the costs associated with the wedding and a young family, the plaintiff says she would have supplemented her income with casual bar work if she had not been injured. I find that she has lost that opportunity. But for the accident the plaintiff would have worked as a bar attendant both part time for periods when she was otherwise 2 [2003] SADC 51 (8 April 2003). -- 4 of 7 -- 5 employed and perhaps for longer hours when she had no other work. On average it is reasonable to find that she would have averaged 2 shifts of 5 hours each per week. She would have been likely to continue to do so until June 2004, when she plans to relocate to Brisbane. After the plaintiff moves to Brisbane her opportunity for after hours and week-end work will be limited because the work her then husband expects to obtain will involve 12 hour shifts and week- end work. There is no family network in Brisbane. I am not satisfied that such work would be viable given the need for someone to look after the infant. [17] Part time bar work of 10 hours per week in the past has resulted in average net earnings of about $100.00. Her loss is thus about $100.00 per week on the assumption I have made above. For the past that amounts to 171 weeks at $100.00 per week totalling $17,100.00. [18] I am not persuaded that the plaintiff has suffered any other loss of earnings in the past. [19] For the future, the loss of bar work calculated on the basis of working an average 1 shift per week while holding another job would total 17 weeks at $50.00 per week or $850.00. The plaintiff also is generally disadvantaged by her condition and may suffer some loss as a consequence in the future. For the risk of such loss I allow a global sum of $30,000.00. This represents a loss of about 7.5% of the plaintiff’s probable working life as a result of the chronic pain and her generally reduced job opportunities. The calculation is based on a 40 year working life at $450.00 net per week at a discount rate of 5% and using a multiplier of 918. [20] Damages are sought for past and future gratuitous care. The plaintiff’s partner presently performs most of the housework. The plaintiff says she cannot mop, sweep, vacuum, hang out washing, feed or bathe the baby or clean the bathroom. I suspect that this is an exaggeration and that the plaintiff can perform most of these tasks but at the price of increased discomfort. Nonetheless the plaintiff was not challenged on her assertion and consequently I accept a need for her partner to perform all or most of these tasks. Mr Birkett gave evidence that the extra time he spends on house work over and above what he would have expected to do in any event is about one and a half hours per day. He would have expected about a half hour per day doing his own washing and ironing and cleaning up after himself. He now does about two hours per day. [21] For the past I do not think that in the absence of Mr Birkett, the plaintiff could have afforded to employ a housekeeper. She says as much in her Quantum Statement. Thus the requirements of s. 35A of the Wrongs Act are not met. After the couple moves to Brisbane I consider it likely that the plaintiff, with her husband’s increased income, will be able to afford to engage help and I find that in view of -- 5 of 7 -- 6 her husband’s decreased availability she will probably do so to the extent of 3 hours per week. Thus the cost will be a paid expense and not gratuitous care so that s. 35A still has no operation. [22] In addition to the assistance given by her partner, the plaintiff has also received massages from her mother. Each massage is about 20 minutes in duration. When she first relocated to Mackay the massage was almost daily. The frequency reduced after about a month to 2 or 3 times a week. After the plaintiff moved out to live with her partner, the frequency of the massages decreased to once per week. This will, of course, cease when the plaintiff moves to Brisbane. I accept Dr Cook’s evidence that massage is an important factor in pain relief if done in bursts at spaced intervals. Without her mother’s assistance the plaintiff will require periodic additional massage or chiropractic visits. No evidence was led as to the cost of professional massage. But a calculation can be made of chiropractic visits. The value of the mother’s massage at $12.00 per hour is not dissimilar to the cost of additional chiropractic visits at about $36.00 per visit. It represents only one extra visit every 6 weeks. The cost of this service for the future should be built into the claim for future medical expenses. For the past an average of about half an hour a week of massage from October 2001 has saved the cost of additional medical expenses. This amounts to approximately 124 weeks and totals 62 hours. [23] In assessing the value of gratuitous services I can only award a lump sum of about $2,500.00 or award, within limits, the amount saved. On my calculations, 62 hours for the past at an agreed rate of $12.00 per hour totals $744.00. The future paid domestic care at 3 hours per week discounted to 50 years for contingencies, using a multiplier of 976 totals $35,136.00. For gratuitous care I allow $2,500.00 for both the mother and partner over more than three years since the accident. Although the value of past care in total exceeds this figure I do not find that there has in fact been a saving of more than the cost of the mother’s massages. [24] Special damages are agreed at a figure of $2,459.60. [25] The plaintiff takes Nurofen at present at a cost of $3.43 per week and Mersyndol at $0.69. Over 60 years, using a multiplier of 1012, this amounts to $4,169.44. [26] The plaintiff says that she has been advised to undergo a course of chiropractic treatment 3 times a week for 3 months and gradually reducing thereafter. This is contrary to Dr Cook’s advice in the witness box and consistent with the period in 2001 when the plaintiff reported to Dr Cook that the treatments were adversely affecting her condition. I will allow for the future an average of one treatment per month. This allows for a period of more intensive treatment followed by a break for several months, as recommended by Dr Cook. This represents about $9.00 per week or a total over 50 years of $8,784.00. -- 6 of 7 -- 7 To replace the lost massage previously provided by the plaintiff’s mother I propose to allow an additional visit to either a chiropractor or massage therapist every 6 weeks at an extra cost of $6.00 per week. This is an additional $5,856.00 over 50 years. I have used 50 years to allow for the contingencies of aging. [27] In the result I assess damages as follows: Non-economic loss 23,700.00 Past economic loss 17,100.00 Past superannuation @ 7% 1,197.00 Future economic loss 30,850.00 Future superannuation @ 9% 2,776.50 Past and future gratuitous care 2,500.00 Future paid domestic assistance 35,136.00 Special damages 2,459.60 Future medical 18,809.44 TOTAL 134,528.54 [28] I give judgement for the plaintiff against the defendant in the sum of ONE HUNDRED AND THIRTY FOUR THOUSAND FIVE HUNDRED AND TWENTY EIGHT DOLLARS AND FIFTY FOUR CENTS ($134,528.54). -- 7 of 7 --