Camm v Salter & Anor [1991] QSC 84 [1992] 2 Qd R 390

10 C) 30 C) 40 50 60 5'-- C// V8<f IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE AMBROSE BRISBANE, 8 APRIL 1991 ------~----. IREVISE!:) CCPI.ES -ISSUED -: ·-:: '' '· '~ _ Court P0•pJrt:nJ Bureau Dcite, L~ 7' /9/ No. 2033 of 1982 (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: JANICE ANNE CAMM -and- PETER ROBERT SALTER -and- FIRE AND ALL RISKS INSURANCE COMPANY LIMITED JUDGMENT Plaintiff Defendant Defendant by e.lection HIS HONOUR: In this action I give judgment for the first plaintiff against the defendant by election in the sum of $535,511.31 and I publish my reasons. I order that the defendant pay to the first plaintiff her costs of and incidental of the action to be taxed on a solicitor and client basis with the exception of the costs incurred in her obtaining and presenting to the Court the evidence of Mr. Calabro which I fix in the sum of $100 and such costs are to include reserved costs. 5 10 20 30 40 50 60 -- 1 of 33 -- IN THE SUPREME COURT OF QUEENSLAND No. 2033 of 1982 Before Mr. Justice Ambrose BETWEEN: Counsel: JANICE ANNE CAMM Plaintiff PETER ROBERT SALTER Defendant FIRE AND ALL RISKS INSURANCE COMPANY LIMITED Defendant by Election REASONS FOR JUDGMENT - B.W. AMBROSE J. Delivered the 8th day of April, 1991 Mr. Griffin Q.C. with Mr. P. Darwin for Plaintiff Mr. Newton for Defendant Solicitors: Darvall & Sing for Plaintiff Bradley & Co. for Defendant Hearing Dates: 4th - 7th March, 1991 -- 2 of 33 -- C) IN THE SUPREME COURT OF QUEENSLAND BETWEEN: No. 2033 of 1982 JANICE ANNE CAMM Plaintiff PETER ROBERT SALTER Defendant FIRE AND ALL RISKS INSURANCE COMPANY LIMITED Defendant by Election REASONS FOR JUDGMENT - B.W. AMBROSE J. Delivered the 8th day of April, 1991 The plaintiff was injured on 14th June, 1980 when struck on the right side by a motor vehicle as she walked across a street. The force of the impact propelled her through the air and she landed on the pavement on or near her tail bone; she was taken to hospital and examined and allowed to go home. At that time she was badly shaken and was concerned principally with a painful right knee. She also had bruising etc. on her right thigh caused by the force of the impact. It was some time later that she first made complaints about pain in the back although apparently not in the vicinity of her tail bone. The plaintiff has had a good deal of medical treatment since the time of her accident for disability flowing principally from a back condition which medical evidence shows probably resulted -- 3 of 33 -- 2 from force applied to her body as a result of the impact of the motor vehicle upon it on 14th June, 1980. Before dealing with that medical evidence which is not entirely consistent with respect to diagnosis of the cause of the plaintiff's pain although consistent with respect to the effect of her injury upon her physical capacities it is convenient to state briefly the plaintiff's background at time of injury. The plaintiff left school at 14 years of age and obtained work in a textile factory. She worked there for five years and then left and obtained a job as a nurses' aid in a nursing home for about one and a half years. At age 21 she married her first husband to whom she bore two children. Her first husband died about six years after the marriage and the plaintiff then commenced to associate with her present husband. She married her second husband at age 29, the two children of her first marriage then being aged five years and three years. At the time of her injury on 14th June, 1980 she was about 33½ years of age. Her elder child was then 10 years of age and her younger child about eight years of age. She had then been married to her second husband for nearly five years. The plaintiff and her husband had decided to sell the house which they owned in Victoria and move to Queensland in 1979. The plaintiff's parents lived on the Gold Coast and I have little doubt that this was a factor which persuaded them to shift their place of residence to the Gold Coast. Towards the end of 1979 they arrived at the Gold Coast and bought a small shop. The plaintiff and her husband deliberately purchased a run down shop above which was located a dwelling unit 0 0 0 () -- 4 of 33 -- 3 which they were able to rent as part of the shop premises. They held the shop subject to a three year lease with a series of options to renew and they planned to work very hard to build up the turnover of the shop and sell it for a profit and try to buy another run down shop with good potential, improve its turnover and sell it for a capital gain etc. The plaintiff had the hope of eventually buying a shop which dealt in baby clothing. She said that she had always wished to conduct such a business. () The plaintiff's husband had been employed as a bus driver (J for many years before coming to Queensland. He was nearly 20 years older than the plaintiff and at the time of her injury was about 53½ years of age. He had worked as a shop assistant for some years in a co-operative store in Victoria before meeting the plaintiff. This was the only experience either the plaintiff or her husband had in conducting a shop. The plaintiff and her husband both gave evidence to the effect that they were pleased with the way the turnover of the shop improved under their management in the first six months. This was in spite of the fact that they made a very small profit. The practice they followed in conducting the shop was for the plaintiff's husband to commence work at 6.00 a.m. serving in the shop and presumably doing other things connected with conducting it. The plaintiff got her children ready for school, cooked breakfast and cleaned the living quarters upstairs and apparently used to come down into the shop at about 9.00 a.m. Thereafter the plaintiff and her husband apparently did what was necessary both within and outside the shop to have it run effectively, often only one of them being in the shop during certain periods. -- 5 of 33 -- 4 The plaintiff conducted her housework, did the laundry, etc. when time permitted and presumably took steps to get the children something to eat when they returned home from school in mid afternoon. She prepared the evening meal and lent assistance generally in the shop when it was needed and when the weight of domestic duties and the need to care for her children permitted. The shop operated seven days per week and closed at about 7.00 p.m. It is the case for the plaintiff that as a result of her injuries she was unable to work sufficiently in the shop to permit it to be conducted profitably and that the cost of employing casual help to perform the tasks that she was unable to perform because of her back and knee injury made it impossible for the plaintiff and her husband either to build up the business in their corner store in the way that they had planned or indeed to embark together upon any other such business venture. Strangely enough the shop made its biggest profit in the financial year which followed the plaintiff's injury on 14th June, 1980. This was at a time when the business records indicate that in fact casual labour was employed from time to time. After the plaintiff's injury in the 1980/81 tax year her husband with the assistance of his father-in-law made alterations to improve the appearance and functioning of the shop and it is the plaintiff's case that this money was expended to enable her more readily to work in the shop keeping in mind the disabilities from which she then suffered in her leg and back. 0 CJ 0 0 ------·-·-· --- ~--- -- 6 of 33 -- 5 The shop was sold in about August 1981 for the sum of about $4,000.00 more than the plaintiff and her husband had paid for it in October 1979. The plaintiff called a great deal of evidence in an effort to prove very significant financial loss both past and future resulting from:- (a) the impairment/destruction of her capacity to earn income by conducting and/or working in a shop until she reached at 7 least the age of 60 and perhaps longer; 0 (b) the cost of medical treatment for her back condition necessary to permit her to obtain relief from pain which that condition generated and would generate even if she did no work; (c) damages upon the principle of Griffiths v. Kerkemeyer with respect to services of a domestic kind performed by the plaintiff's husband and her younger daughter between date of injury and date of trial and for similar services which would be performed by them or perhaps by somebody employed for the purpose from date of trial indefinitely in the future - for as long as the plaintiff lives. The plaintiff's claim for past economic loss is $120,000.00 and for future economic loss $150,000.00. For the value of past services under the Griffiths v. Kerkemeyer principle there is a claim for $70,000.00 and for future services under that principle there is a claim for nearly $210,000.00. -- 7 of 33 -- 6 For past medical costs and special damages generally there is a claim for more than $56,000.00 and for future medical and hospital care there is a claim for approximately $144,000.00. There is also a claim for approximately $1,250.00 spent renovating the corner store on the Gold Coast subsequent to the plaintiff's injury which the plaintiff and her husband contend was effected to facilitate her mobility while serving customers in the shop with her injured back. There can be little doubt that significant expenses for medical and hospital treatment for the plaintiff have been incurred over the last 10 years. The claims made for past and future economic loss together with interest on past economic loss claimed for a period of 10 years amount to nearly $344,000.00. The quantum of these claims of course must be assessed keeping in mind the capacity and skill not merely of the plaintiff but also of her husband upon whom to no small extent the business venture depended. The plaintiff relied upon the report of a chartered accountant to support the 0 (J 0 figures advanced on her behalf and it will be necessary to examine the relevance and reliability of the basic assumptions () of fact upon which he expressed his opinion. It was common ground that in assessing the plaintiff's damages I ought disregard the entitlement to pensions under the Social Security Act which she and her husband enjoy and assume that she will be liable in the future as she has been in the past to pay for medical and hospital treatment and for drugs etc. prescribed for her. -- 8 of 33 -- 7 Before turning to consider the various heads of claim for damages to which I have referred it is convenient to consider what is an appropriate award for the pain, suffering and loss of amenities of life sustained by the plaintiff as the result of her injury. Pain, suffering and loss of amenities of life I accept upon the evidence that at the time of her injury the plaintiff had developed a condition of degenerative arthritis CJ in the spinal processes. I accept the evidence of the plaintiff that such changes had not produced any disabling symptoms prior to her injury. Dr. Keng who specialises in orthopaedic surgery at Albury has treated or been associated with the treatment of the plaintiff for her back condition for many years. He has performed two op~rations upon her back and given her various other treatments for the relief of pain, etc. According to that doctor the plaintiff presently suffers a loss of function of her C) back which results in her inability to do 45 per cent of the things which she might normally be expected to do. He takes the view that the plaintiff will never return to work. He also takes (- '\ ~-~ the view that the significant cause of her pain is a condition of osteoarthritis which has developed as a result of injury she sustained in 1980 when struck by the motor vehicle and that this pain may be relieved if she has a successful spinal fusion. Dr. Keng takes the view that there is a 60/40 chance of a successful spinal fusion operation which will greatly relieve her of pain in the back. He also expressed the view that if the operation is successful it will reduce her disability from 45 per cent to 30 per cent. He takes the view that there is a 30/70 chance of -- 9 of 33 -- 8 the operation being unsuccessful. If it is unsuccessful then the pain after the operation will be worse than it is at the moment. According to Dr. Keng there is a 1 0 per cent chance of the spinal fusion operation making no difference at all to the level of pain suffered by the plaintiff. There is significant difference of opinion as to the origin of the plaintiff's symptoms of pain between Dr. Keng and Dr. Yaksich who specialises in neurosurgery at the Gold Coast. His sub-speciality is spinal surgery. He first saw the plaintiff about seven months after her injury and after examining x-ray films of her lumbo-sacral spine concluded that she was suffering from nerve root irritation resulting in backache and a right sided sciatic type of pain. He performed an operation upon her when he explored the lumbo-sacral area of her spine on 18th February, 1981 and found some scarring upon the side of the right S1 nerve root tethering it to the annulus of the disc. He found no disc protrusion at the time of the operation. He freed the scar tissue and expected that this would decompress the nerve root affected by it and so relieve pain. CJ 0 0 Dr. Yaksich next examined the plaintiff three years later 0 and gave a report for the purposes of litigation. He next examined the plaintiff in July 1988 some four years after the second examination. He learnt from the plaintiff that she had had back operations in 1985 and 1986 and she told him that her back pains had improved for a while but had then recurred. Dr. Yaksich expressed the view that the plaintiff's pain was not caused by arthritic deterioration of her spine at all but in fact resulted from nerve root irritation caused by.scarring to the -- 10 of 33 -- 0 9 nerve root in the vicinity of the LS-S1 disc. This was the disc which Dr. Keng said he discovered upon the first operation performed by him had been subject to "a huge prolapse". It was this condition that led Dr. Keng to remove half the prolapsed disc. He did not notice any scarring on the nerve root in the vicinity of the prolapsed disc at that time. He said that the disc which he removed was pressing on the right nerve root and that in effect he effected a decompression by his operative treatment. Subsequently Dr. Keng performed a second operation in 1986 and dealt with scar tissue that had resulted from his first operation. He expressed the opinion that the cause of the plaintiff's back pain was not any subsequent scarring of the nerve root which may have occurred but in fact spinal instability and degenerative changes in the spinal processes in the area from which he had removed the lumbar disc. Both medical experts have concluded that the plaintiff's back condition which has led to three operations results f~om injury which she sustained when struck by the defendant's motor vehicle in June 1980. Each of the doctors concludes that the pain is caused by pressure on the nerve root in the vicinity of the site where each of those doctors has performed surgical procedures. One doctor has concluded that the cause of the pain is nerve root compression from scarring of the nerve root which for all practical purposes·is incurable. The other doctor has concluded that the pressure on the nerve root does not result from any scarring which might still exist but from pressure applied by the spinal processes to the nerve root. He has -- 11 of 33 -- 10 concluded that there is a 60/40 chance of improving this medical condition by a spinal fusion operation. He concedes that there is a 30/70 chance of such procedure failing altogether and leaving the plaintiff in worse pain than she is at the moment. Both doctors conclude that the plaintiff will continue to have a severely disabled back in the future and that this will prevent her from obtaining employment in fields for which she is suited or indeed from doing the ordinary household tasks which one might expect ladies of her age and in her situation to perform. I do not think that the assessment of damages for pain, suffering and loss of amenities of life depends to any significant extent upon which of the two medical opinions is preferred. Dr. Yaksich is of the view that the plaintiff ought not have any further surgical procedures to her back because they are not going to do any good and will probably only lead to further scarring of the nerve root if efforts are made to free it and that this in turn will simply cause a renewal of pain within a short time. Dr. ~eng' s opinion of the plaintiff's prospects for the future are only marginally more optimistic than those of Dr. Yaksich. It is many years since Dr. Yaksich actually had the opportunity of examining the plaintiff's spinal processes and in fact if one accepts the evidence of Dr. Keng - which is uncontradicted - there was a significant prolapse of one of the plaintiff's discs which led to its partial excision. Dr. Keng found that in fact that prolapsed disc was causing pressure on C) (~) 0 CJ -- 12 of 33 -- 11 the plaintiff's nerve root. In observed that there was significant scarring and'he took steps to correct it. The steps that he took gave the plaintiff relief for some time. In essence the difference in view expressed by Dr. Keng and Dr. Yaksich is as to the cause of the plaintiff's back pain. I expect it will not be possible to determine precisely whether there is pressure from the remaining part of the disc or from the spinal processes on the nerve root until a (-'\ further operation is performed. ) If Dr. Keng does perform a (_) spinal fusion no doubt before that process is effected he will have the opportunity of observing whether the nerve root is grossly scarred as it was last time he gave operative treatment for the relief of pain or whether there is pressure on the nerve root from some other part of the spinal process. Dr. Yaksich of course has had a great deal of experience in matters of this kind and he has clearly formed the opinion which he expressed in court based upon that experience rather than upon having had the opportunity of treating the plaintiff as has been the case with Dr. Keng over the last five or six years. It may be that the removal of part of the prolapsed disc which Dr. Keng effected in November 1985 did relieve the pressure of that disc on the plaintiff's nerve root which may have been one of the sources of pressure - in addition perhaps to the scarring to which Dr. Yaksich referred as having inevitably developed after the operation which he performed to remove scarring caused by a stretching or tearing of the nerve root as a result of the plaintiff's injury. -- 13 of 33 -- 12 I find it very difficult to come to any conclusion as to which of the two expert opinions ought be preferred. At the end of the day I conclude that I should prefer the evidence of Dr. Keng because he has in fact treated and operated upon the plaintiff since 1985 on a number of occasions and has had the opportunity of observing the condition of the plaintiff's spinal processes and the nerve root involved on two occasions where as Dr. Yaksich has not had that opportunity for many years and I rather gather that his opinion is based upon his general experience of the effect of scarring on nerve tissue rather than upon his experience with this particular plaintiff. The acceptance of the opinion of Dr. Keng for the purpose of this assessment in preference to that of Dr. Yaksich does not it seems to me have any significant effect on the plaintiff's award of damages. If she has a spinal fusion operation her chance of having her disability reduced by only one third will be twice that of having that disability significantly increased. This is not a happy choice for the plaintiff and indeed it is far from clear to my mind that she has determined to take the advice of Dr. Keng. Her final decision may very well be influenced by the opinion expressed by Dr. Yaksich that a spinal fusion operation will not relieve her of the pain from which she suffers in any event. As far as an award of general damages is concerned it seems to me that the additional sum involved in compensating the plaintiff for undergoing a spinal fusion operation in the future with the limited prospects of success to which Dr. Keng referred would not involve reduction of the plaintiff's damages beneath -------------------- 0 0 0 CJ -- 14 of 33 -- 13 the level to which they would be assessed if Dr. Yaksich's view were preferred. However in the circumstances for the reasons I have expressed, I prefer the opinion of Dr. Keng to that of Dr. Yaksich on this point. I assess damages for pain, suffering and loss of amenities of life in the sum of $85,000.00. $45,000.00 pre trial. Past and Future Economic Loss Of that sum I apportion ) Upon trial the plaintiff placed great reliance upon opinions C) expressed by a chartered accountant as to what she would have earned had she worked in partnership with her husband conducting the corner store until date of trial and again what she would have earned between date of trial and ages 55 or 60 had she not been injured and had she continued to work in that shop in partnership with her husband. In the alternative opinions were expressed as to what she would have earned had she simply received the award wage for a shop assistant during those periods. Observations were made as to what she had lost by reason of becoming ineligible for superannuation benefits and losing the capacity to make a capital gain on various business ventures that she may have undertaken but for her injury. Without descending to a detailed examination of the bases upon which these opinions were expressed it suffices to say that they were to the effect that the plaintiff had suffered very significant economic loss exceeding well in excess of $300,000.00. -- 15 of 33 -- 14 In considering the evidence I propose to apply what was said in Graham v. Baker (1961) 1 C.L.R. 340 at p. 347 to the effect that:- "An injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may beproductive of financial loss." Mr. Calabro, the chartered accountant who gave evidence to support the plaintiff's claim, gave very significant weight to information from the Australian Bureau of Statistics record of retail sales statistics in Queensland. As he conceded in () evidence these statistics relate to the sale of groceries throughout Queensland and comprise statistical evidence of such () sales whether they be effected in small corner stores of the sort which the plaintiff and her husband were running at the time of injury or vast supermarket complexes. Moreover the statistics relate to stores established throughout the whole of Queensland whether they be established in large population centres or in sparsely populated areas. To my mind the application of such a statistical approach in the determination of what income the little corner store, leased by the plaintiff and her husband a few months before the plaintiff's injury,.would have produced by way of profit for its operators not merely before trial but for 10 or 15 years after trial has a value which is so dubious as to lead me to reject completely this approach, essential to which is the extraction of what is described as a "growth factor" from the retail sales statistics which apply throughout Queensland and its application to this particular corner store. The result of this exercise is used to support the opinion expressed that upon the expiration 0 0 -- 16 of 33 -- 15 of a period of nine years after the last records were kept by the plaintiff and her husband demonstrating a profit of $4,193.00 that shop would have produced a net profit of $36,483.00. Not merely do I reject the assumption that the shop itself would have produced that profit, I am also quite unpersuaded that whatever profit was produced by the shop would have resulted from an equal contribution of the plaintiff and her husband albeit that she and her husband shared equally the partnership profits. :~ It does not follow from that equal sharing that the quantum of ' / C) 0 profits lost reflects the loss which any diminution of her earning capacity may have produced. Indeed as an alternative approach it was argued on behalf of the plaintiff that damages for her lost earning capacity could be assessed having regard to the award wage applying to shop assistants at the time and subsequently. This approach produces a figure almost the same as that produced by the calculations based upon the validity of the approach to which I have already referred. One problem with this approach of course is that it as well as the approach with which I have dealt ignores completely what the plaintiff and her husband said they planned for the future. Neither the plaintiff nor her husband ever planned to stay indefinitely in the corner store to which the chartered accountant refers. Neither did the plaintiff ever have any intention it seems to me on the evidence of working as a full time shop assistant. She had never been employed in this capacity. The intention of the plaintiff and her husband was to buy a series of run down shops and attempt to improve their -- 17 of 33 -- 16 turnover and cash flow by very hard, demanding work and then attempt to sell them for capital gain. Moreover the plaintiff and her husband in fact invested about $30,000.00 in the purchase of the shop which they held for a couple of years. I do not understand how that can be ignored when determining what profit was achieved by the labours and attention of the plaintiff and her husband. Some allowance must be made for the investment of the purchase price of the business. Some of the net profit taken out of the business must be attributable surely to a return on that capital investment. The plaintiff's husband apparently brought a motor vehicle into the business and it seems that it was used for the purposes of that business; some allowance must be made in respect of that in assessing the net profit of the business which might result from the plaintiff's physical activity. In assessing damages for past and future economic loss I do so rejecting the basic assumption made by Mr. Calabro that the plaintiff would either have received the award rate for a shop assistant or have continued to work indefinitely in the shop earning the sort of incomes indicated in the schedule. I think it is quite improbable that the plaintiff would have continued to work after her husband who is 20 years older than she was attained the age of 75 years. Neither the plaintiff nor her husband were experienced in conducting the sort of business which they commenced to carry on at the Gold Coast when her husband was approximately 44 years of age and she was 33 years of age. At the present time the plaintiff's husband suffers from a disabling condition to one of 0 0 0 0 -- 18 of 33 -- C) 0 17 his legs which is such that in my view it is quite unlikely that he would be able to work in a shop at the present time if called upon to do so. He does some part time bus driving where he lives in Victoria. Both the plaintiff and her husband live on social welfare payments. The plaintiff receives an invalid pension and her husband receives a carer's pension. The entitlement to both pensions depends upon the plaintiff receiving a full invalid pension and requiring the constant care and attention of her He is able to do a little part time work as a bus driver and the income he receives from this is taken into account when fixing the pension entitlement. It is clear from the evidence of the plaintiff and her husband that it was not their plan to work permanently in their shop for an indefinite time. It was their intention to work seven days a week and build up the shop's profitability and then sell it and go for a holiday for a couple of months~ They intended then to try to buy another run down shop, build up its profitability and follow the same sort of lifestyle. In my view it is impossible to predict what the outcome of the plans of the plaintiff and her husband would have been in financial terms. They may have done very well financially or ~hey may have done very poorly. Whatever they did they would have been required to work very long hours. I feel that it is impossible to predict with any precision what the financial future held for the plaintiff at the time of her injury. Indeed in the year in which the shop was sold it was being conducted at a loss. I am not prepared to infer that it was then being conducted at a loss because of the plaintiff's incapacity. In fact for the full year -- 19 of 33 -- 18 1980/81 when a good deal of casual assistance had been employed because of the plaintiff's incapacity the shop had made a profit. The loss which it made over the next few months causes me to reject the basic assumption made by the accountant called for the plaintiff that the shop would have increased in profitability annually presumably for an indefinite period of time. It is difficult in a case of this kind to assess past economic loss because the evidence does not persuade me that it is at all likely that the plaintiff and her husband would in fact have succeeded in their hopes to make a large income and accumulate large savings by following the plan about which they gave evidence. I am persuaded however that the plaintiff was willing to work hard and to strive to improve the financial position of the family. Whether she would have persevered with her husband in the lifestyle that required each of them apparently to work or be available to work the best part of 12 hours per day, seven (~) C) 0 days per week for an indefinite time into the future seems problematical. However I am persuaded that she and her husband would have spent much more time attempting to make an income by Q buying ~nd selling run down shops and perhaps eventually the plaintiff would have found a business involving the sale of babies' clothes etc. which she may have purchased and continued to run both for an interest and for an income. The evidence is silent as to what income such a business might have produced or what if any knowledge or experience the plaintiff had of matters essential to the successful running of such a business. -- 20 of 33 -- 19 The plaintiff at the present time is approximately 44 years of age and her husband is approximately 64 years of age. It is clear on the evidence that each agreed with the other that should one become physically disabled and unable to work the other would stop work and look after the disabled one. In fact it was the plaintiff who first became disabled as a result of her injury and her husband after 12 months or so did in fact retire from the workforce to take care of her. •~ Keeping in mind the age of the plaintiff's husband and the .·J fact that at the present time he would find working regularly on his feet difficult to say the least I propose to assess the plaintiff's economic loss flowing from the destruction for all practical purposes of her earning capacity on the following assumptions:- 1. that having regard to the age and state of health of her husband the plaintiff while he lived would not have worked regularly conducting a shop or for that matter worked as a shop assistant beyond the time when he attained the age of 70 years. She would then be about 50 years of age. 2. To take into account contingencies that may have led to the plaintiff working to an older age - such as the death of her husband or finding some thing to do that would return some income I will assume that between ages 50 and 55 she would also have had some prospect of earning an income in doing at least part time work. In calculating her pre trial loss by reason of her destroyed or very substantially impaired earning capacity I have regard to Schedule 3 to Mr. Calabro's report which sets forth the earnings -- 21 of 33 -- 20 the plaintiff would have made from June 1980 to March 1991 on the assumption that she had been during that period fully employed as a shop assistant receiving the general award wage to which she would have been entitled. The figures referred to are those which she would have received after paying tax. The figures amount to approximately $120,000.00 although strangely enough they demonstrate that in the year 1980-81 she had "actual earnings" of something in excess of $2,000.00. It would not be correct I think to treat this accounting exercise as accurately portraying the earning capacity which the plaintiff had in that tax year. It seems to be the figure to which she was entitled under the partnership agreement she had with her husband. It is impossible in the circumstances of this case to precisely quantify what the plaintiff lost as a partner in the shop business during that tax year by reason of her injury. I think the circumstances of this case justify the use of a broad brush and I take the view that had it not been for her accident and had the plaintiff between the time of accident and time of trial been 0 C) 0 working full time as a shop assistant she would have earned about $122,000.00. I take the vie~ that by reason of the partnership () agreement she probably did receive some income with respec~ to this period (although in the following financial year the partnership apparently suffered a loss). For the purpose of calculating her economic loss to trial I propose to use the figure of $120,000.00 as her potential income had she not been injured and to award her one third of that sum which amounts to $40,000.00. 1 l! --·-··-·---- --- ------- -- 22 of 33 -- 21 I assess interest on that sum at the rate of six per cent per annum for a period of 10 years which is $24,000.00. With respect to future economic loss I keep in mind that in about 10 years time the plaintiff's husband will be 74 years of age and until that time it seems as events have turned out that he will have a significant disability in his foot which I presume will not improve. The maximum period which in my view can properly be used in estimating the plaintiff's future loss is a n period of 10 years. At the end of that period her husband will be 74 and she will be 54 years of age and I think it improbable in the circumstances that after that age she would have worked (j "-- or indeed probably even been able to obtain employment as a shop 0 assistant. It may be of course that if she were able to work in corner stores and other such businesses with her husband for 10 years she would have been able to gain the skills and knowledge to enable a lady of her age to obtain employment as a shop assistant in a shop selling baby wear etc. This however seems to be very speculative and I am not persuaded that she would have continued to earn income beyond an age in the mid fifties. U Using the "net notional earnings" in Schedule 3 to Mr. Calabro's report it seems that in the per~od 1st July, 1990 to 1st March, 1991 - a period of 35 weeks - a shop assistant would earn a net wage of approximately $340.00. I propose to use this figure as a guide to the sort of income the plaintiff may have been able to earn over the next 10 years if she were able to obtain a position as a shop assistant. There is no evidence whatever as to the availability of such positions - particularly for ladies between 45 years of age and 55 years of age. However -- 23 of 33 -- 22 ·there is really no other evidence which to my mind gives any indication of the sort of earnings that she may have received. My view with respect to future earnings is somewhat similar to that with respect to past earnings. I think it most unlikely that the plaintiff would ever have worked on a full time basis having regard to her age and the age of husband. In all probability the plaintiff and her husband would have tried to make money buying and selling run down grocery shops. They had very little capital between them - $30,000.00 odd which they had Q realised on the sale of their home in Victoria. The likelihood is I think that they would have struggled on to buy and sell shops and work hard hoping that eventually they would make a good capital gain. Perhaps they would have eventually. On the other hand it seems inappropriate to make this assumption for the purpose of calculating damages. I think the likelihood is that they would have continued with only modest success to make an income conducting corner stores for a few years until the long hours involved would have made them less keen to continue to C) 0 pursue this lifestyle. From time to time the plaintiff may have obtained casual work in a shop of some sort. Indeed it appears () that ot~er people living in accommodation units above shops in the same building complex as the plaintiff's shop used to do some casual work for the plaintiff and her husband from time to time. No doubt they were paid the award rate for it. Doing the best I can in the circumstances of this difficult case I propose to proceed on the basis that the plaintiff has lost over the next 10 years the capacity to do the work of a shop assistant which she might have done from time to time. I would -- 24 of 33 -- 23 assess that loss as peing the equivalent of approximately one third of the net weekly award wage which is about $110.00. I calculate the present value of the loss of $110.00 per week for a period of 10 years using the five per cent tables to be the sum of $45,100.00. I assess damages for the plaintiff's loss of earning capacity in the future in the sum of $45,100.00. Medical Expenses n It is clear that prior to her injury the plaintiff had received psychiatric treatment for a condition the genesis of which was an unfortunate domestic situation. It seems that since that time she has received psychiatric treatment from time to time. As I have already indicated I have formed the view that the degenerative condition in the plaintiff's spine had not produced any symptoms prior to her injury. I am also persuaded that the injury received has given her considerable pain. On the evidence generally I am not persuaded that she has exaggerated deliberately the extent of the pain or the effect that it has on her capacities. On the other hand I think that because of her CJ psychiatric condition she has perhaps overreacted to some extent to the physical condition from which she suffers and there is support for this view in some of the medical reports. I had the opportunity to observe the demeanour of the plaintiff as she gave evidence and I must say that I gained the impression that she was anxious to produce a sympathetic reaction in persons to whom she recounted her disabilities and the pain resulting from them. However it has not been shown to my satisfaction that she has adopted this approach consciously. I formed the clear impression -- 25 of 33 -- 24 that her husband and daughter who gave evidence both accept that the plaintiff is regularly in significant pain and they devote themselves to a much greater extent than would normally be the case in assisting her to live with her condition. It has been suggested that the plaintiff has become somewhat manipulative and I think there is something in this. However I think to the extent that she has become manipulative it is probably simply a reaction of a person whose personality leads her to seek to derive sympathy and personal advantage from others for the condition from which she suffers which is undoubtedly a real one. A defendant must take a plaintiff as he finds him or her and in this particular case the defendant has injured somebody whose psychological makeup makes it difficult for her to accommodate her disabilities and resulting incapacities. I think therefore that although a great deal was said about the extent of her medical treatment and hospital treatment and so on the plaintiff has incurred those costs and whether the need for them arises simply from her physical disability or the physical disability considered with a psychological-psychiatric overlay does not lead 0 () 0 to any discounting of the sums claimed. The sums claimed are in 0 ex. 36. In this respect I feel that the plaintiff h~s not d.iscarded any conceivable claim that she might have but they have not been challenged except for the claim in respect of moneys spent on trips to get medical attention at the Cobram District Hospital. It seems to me that the claim here is too high taking into account the distance travelled to and from the hospital. In fact taxi charges do not seem to have been incurred on the -- 26 of 33 -- 25 evidence and taking all things into account I would reduce the amount claimed of $1,856.40 to allow a sum of $1,000.00. As far as the other claims for special damages are concerned it seems that there is no contest as to the quantum of the claims or as to the nature of the items claimed. The only question is whether the plaintiff has demonstrated that they were reasonably claimed. There is no reason to reject this aspect of her evidence. I assess therefore damages under this head in the sum C) of ss4,733.31. Damages under Griffiths v. Kerkemeyer The plaintiff has a very significant claim for damages under this head. For past care a claim of $70,000.00 is made and for future care there is a claim for $209,689.53. To the present time the plaintiff has received domestic care from her husband and her daughter. As I have indicated her husband has given up full time work and lives on a carer' s pension with his wife. He works part time as a bus driver and the amount of income he earns is taken into account in the quantum of pension that he receives. It is clear that the plaintiff is still able to do some light domestic duties around the house. It is equally clear however that her capacity to do the normal duties required of a housewife is significantly limited. Her daughter is presently working doing shift work in a factory. She is able to perform much of the housewifely duties that the plaintiff I am sure would perform if it were not for her physical disabilities. The plaintiff's husband also assists her in putting her clothes on and off, bathing etc. Sometimes the plaintiff obtains the -- 27 of 33 -- 26 assistance of both her husband and her daughter to dress and undress. I must say I have some reservations about the extent of the incapacity to which the plaintiff and her husband and daughter swear. However I am persuaded that she does reasonably require personal and domestic assistance over and above what she might reasonably expect from her husband and daughter as members of an ordinary domestic family. The plaintiff claims that she has needed assistance for about 20 hours per week from the time of her injury in 1980 until the time of trial. Taking account of the time that she has actually spent in hospital over that period and therefore not requiring domestic assistance she claims the following sums:- .1. between 1980 and 1984 - 208 weeks 2. 3. $6.00 per hour for 20 hours per week between 1985 and 1988 - domestic assistance for 140 weeks at 20 hours per week at $8.00 per hour 1988 to date of trial - 124½ weeks at 20 hours per week at $20.00 per hour $25,080.00 $22,400.00 $24,900.00 0 0 0 There is no real dispute as to the reasonable nature of the Q hourly rates at the different periods of time specified. There seems to be no real dispute as to the number of weeks all told during which the plaintiff claims to have needed domestic assistance for which it was reasonable to charge the specified sums. The matter that has been debated is whether it could be said that she really needed in that period assistance at the rate of 20 hours per week. -- 28 of 33 -- 27 I am not persuaded that it is reasonable to claim for domestic assistance at the hourly rates prescribed for 20 hours each week. That involves domestic assistance for nearly three hours every day over and above what might reasonably be expected of the plaintiff's husband and daughter. The plaintiff has been living in a relatively small two bedroomed apartment and on my appreciation of the evidence there is not a great deal of work required of the person providing the domestic assistance. (~) I take the view doing the best I can that it would be CJ CJ reasonable to make an award on the basis that the plaintiff might reasonably require domestic assistance beyond what can reasonably be required from her husband and her daughter over this 10 year period for about one to one and a half hours per day. I would therefore allow sums calculated on the basis that she has reasonably required such assistance for 10 hours per week for the periods specified. The result of such an assessment is:- 1. between 1980 and 1984 - 208 weeks $6.00 per hour for 10 hours per week $12,540.00 2. between 1985 and 1988 - 140 weeks at 10 hours per week at $8.00 per hour $11,200.00 3. 1988 to 1991 - 124½ weeks at 10 hours per week at $10.00 per hour $12,450.00 All told then the pre accident Griffiths v. Kerkemeyer claim is assessed at $36,190.00. With respect to future domestic care one must keep in mind that the plaintiff's husband is 20 years her senior. Her daughter is now grown up and working and may of course not reside indefinitely in her present domestic environment. It may be that -- 29 of 33 -- 28 as the plaintiff gets older her husband will be unable to give her the assistance which he has been giving her for the last 10 years and she may be forced to seek other assistance. From a practical point of view it may be difficult for her to obtain domestic assistance each day for perhaps only one to one and a half hours. As well as that as it appears from Schedule D to the plaintiff's written calculations for damages under the heading "Future Care" it is conceded that on her past history the plaintiff might be expected to spend six weeks per year receiving treatment in hospital. She has explained that she has to go into hospital at the present time merely for the purpose of getting injections which before a recent change in the health care system was implemented she was able to get as an outpatient without going into hospital. All these matters combine to make even more difficult than usual the assessment of a claim for future domestic care in a case of this sort. I approach the problem on the assumption that on the average she will require domestic care over and above what she might expect from her husband and daughter or somebody else living in the house with her for a period of 46 weeks of each year for the rest of her life. It is stated that she has a life expectancy at the present time of 36.86 years. Of course life expectancy tables are only of limited value in determining what the life expectancy of this particular plaintiff will be. One must in cases of this sort make allowances for all of the vicissitudes of life. It may be that she will not attain the statistical average for women of her 0 0 0 0 -- 30 of 33 -- 29 age at the moment. She may live a longer period of time or a shorter period of time. I propose to assess damages for future care on the following assumptions:- 1. the plaintiff will need domestic care in the future for a period of 30 years 2. she will need domestic care for 10 hours per week for 46 weeks of the year () 3. the cost of this care will be $10.00 per hour CJ C) CJ 4. at present the cost of such care when expressed in weekly terms for a period of 52 weeks is approximately $88.00 per week. Using the five per cent tables then the present value of the loss of $88. 00 per week for a period of 30 years comes to $71,368.00 and I assess this sum for her future domestic care. Future Hospital and Medical Care The evidence shows that between 1981 and 1990 the plaintiff spent on average something in excess of 46 days per year in hospital. The cost of hospitalisation at the present time in the Cobram District Hospital is $169.00 per day. If one assumes that in the future she will need to spend 40 da¥s per ye~r in hospital seeking injections and other treatment for back pain that will amount to $6,760.00 per annum for hospital fees which is the equivalent of $130.00 per week. The present value of the loss of $130.00 per week for a period of 30 years using the five per cent tables is $105,430.00. Examination of the evidence shows that with respect to consultations with doctors she currently spends $11 .00 per week. -- 31 of 33 -- 30 The present value of $11.00 per week for a period of 30 years is $8,921.00. The cost of future medication is set forth in Schedule E to the written submission concerning the assessment of damages which was handed to me. The details do not seem to be in issue and the only alteration I make to the sums calculated is to reduce the period of loss for future expense from 36.86 years to 30 years. I make that deduction as I have already indicated to make some allowance for the ordinary vicissitudes of life keeping in mind that if the plaintiff maintains that actual expenditure for 30 years she will then have achieved the age of 7 4 years. Accepting generally the nature of the claims and the sums involved I assess the present value of future cost of medication for a period of 30 years in the sum of $16,055.00. Lastly I come to consider the moneys spent on renovating the shop shortly after the plaintiff was injured. I am not persuaded that the money spent ($1,248.84) was not in fact recovered as part of an increased purchase price for the shop when it was sold within about 12 months of the expenditure being incurred. In any event the plaintiff's past economic loss has been both claimed and assessed on the basis that she was unable to work at that time. I am unpersuaded on the whole of the evidence that the moneys spent upon altering the shop and improving its design and character for persons working in it are causally related to or connected with the plaintiff's injury. Damages therefore for the plaintiff's injuries are assessed as follows:- 0 0 0 0 -- 32 of 33 -- 31 Pain, suffering and loss of amenitiesof life Interest thereon on the sum of $45,000for 10 years at six per cent Past economic loss Interest on that sum at the rate ofsix per cent per annum for 10 years Future economic loss Griffiths v. Kerkemeyer - value of past assistance .~ Interest on past assistance - 10 years · / at six per cent Griffiths v. Kerkemeyer - value of future assistance Special damages as per ex. 36 Future hospital expenses Future medical expenses Future medication costs $ 85,000.00 $ 27,000.00 $ 40,000.00 $ 24,000.00 $ 45,100.00 $ 36,190.00 $ 21,714.00 $ 71,368.00 $ 54,733.31 $105,430.00 $ 8,921.00 $ 16,055.00 ,,--, There will be J' udgment therefore for the first plaintiff (._) ( -) v against the defendant by election in the sum of $535,511.31. -- 33 of 33 --