New South Wales Supreme Court CITATION : Addy v Superstar Gemini Limited [2000] NSWSC 1069 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC 9/99 20 July 2000 HEARING DATE(S) : 3 August 2000 16 November 2000 JUDGMENT DATE : 16 November 2000 PARTIES : Kerri Ann Addy (Plt) Superstar Gemini Limited (Def) JUDGMENT OF : Brownie AJ A J Renshaw/M K Rollinson (20/7/00) (Plt) K J Kelleher (20/7/00) (Def) COUNSEL : C A Evatt/M K Rollinson (3/8/00) (Plt) J Neill (3/8/00 (Def) C A Evatt/A J Renshaw/M K Rollinson (16/11/00) (Plt) K J Kelleher (16/11/00) (Def) SOLICITORS : Teakle Ormsby George (Plt) James Neill (Def) CATCHWORDS : No question of principle DECISION : Judgment for plaintiff IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADMIRALTY LIST BROWNIE AJ THURSDAY, 16 NOVEMBER 2000 9/99 - ADDY v SUPERSTAR GEMINI LIMITED JUDGMENT 1 HIS HONOUR: The plaintiff was injured on 24 February 1998 somewhere near Singapore. She fell and sustained a fracture of the right fifth metatarsal. The injury was not accurately diagnosed initially or indeed until after she returned to Australia some ten days later. 2 She consulted a general practitioner who referred her to Dr Giblin and eventually she proceeded to surgery. Dr Giblin inserted a screw, which remains there. The fracture united but left her with persisting disabilities in the foot and ankle. There does not seem to be terribly much dispute between the doctors concerning the condition of her foot and ankle. It seems to be accepted all round that there has been persisting disability in the foot and ankle, including pain, particularly when she stands for some time or walks for some time. 3 There is no doubt that the accident effectively ruined the holiday she was on when she was injured. At the time of the accident she sustained damage to the right knee which healed without complication. Whilst on crutches after the operation she fell and sustained injury to the left knee, which also seems to have healed without complication. 4 It seems to be common ground among the doctors that she is for practical purposes unfit for her pre-accident employment. 5 She worked for a company, the shareholders of which appear to be herself and her husband, which company was involved in work including a lot of private investigation work and surveillance work. 6 One of the great problems in the case is to know what she is now incapable of doing that she would have been capable of doing but for the accident, and reflecting that in the award of damages. She said in oral evidence that she worked anything up to seven days a week, when circumstances required it, and anything up to ten hours a day. She did not suggest that that happened every week or anything like that. She also said that she played tennis three times a week and went to the gymnasium five days or seven days a week, all of which sounded a bit unlikely as she said it. What was further clear was that what she said in chief was an exaggeration. It does seem likely that viewing the evidence overall she had played tennis once a week; she did go to the gym but one could not tell how often. 7 Those problems are relatively minor. The more difficult question is the assessment of impairment of earning capacity, both past and future. 8 There were tendered four tax returns, which it is to be remembered were all on their face prepared when the litigation was on foot. They show that she worked for the company that she and her husband controlled, and that the company paid her $20,000 per annum until the accident. There is simply no corroborative detail at all. On the other hand, that was not the subject of any attack. All I can say is that it is somewhat unsatisfactory and coupled with the other evidence it leads me to the view that the plaintiff has exaggerated her symptoms as well and on the evidence of Dr Eikens, or in the words of Dr Eikens: "I feel that she has undergone some degree of personality disintegration, and regression, with elements of learned helplessness being demonstrated." 9 I think it is clear that on the evidence she should be regarded as being incapable of going back to her pre-injury work. She was I think it should be held unfit for all or certainly virtually all forms of work for about a year after the accident. Since then it seems apparent from the evidence of Dr Eikens, which I accept, that other problems have tended to come to the fore and that she has regarded herself as unemployable. She seems to have made no real effort at all to find other work. She and her husband say that she is presently entirely unfit for work but when one reads the medical reports it really is a surprising contention that she is incapable of doing any work at all, which is what I understood her to be telling me when she gave her evidence. 10 At present I understand that position to have been retreated from, and very properly so. Her pre-injury income was not very high at all. I am told, without objection, that the Australian Bureau of Statistics records that the average earnings of all women are $504.80 per week, that is to say, she was earning rather less than average before the accident allowing for an unknown amount for inflation in the intervening period. 11 There is some measure of disparity between the experts as to what work she can do. It seems that for about a year from the accident onwards she has been capable of doing some work. I think that she needs, and since the time about a year after the accident has needed some form of training before she goes back into the work force. It can be allowed for under the rubric of future economic loss since she has not incurred that expense yet. 12 It really is all but impossible on any scientific or accurate sense to assess what her economic loss has been since about a year after the accident and what it is likely to be in the future. The conclusion I come to is that with training she will be fit for many forms of work in the future, and that if she had had training in the past would have been capable of some form of work since about a year after the accident. 13 I should say something about medication. She seems to have got by without medication for about a year after the accident; thereafter she has needed painkillers but has spent approximately $10 a week. As best I can tell, however, the need for painkillers arises partly from the consequences of the accident and partly from other medical conditions unrelated to the accident. 14 Mr Renshaw asks me to prefer the evidence of Dr Patrick, a surgeon. I do not see why such an opinion is to be elevated above the opinions of the other medical practitioners whose reports are in evidence. In any event, the report of Dr Eikens seems to me to fit best with my judgment of the plaintiff and her personality. 15 Out of pockets are $3,882.95. Interest on that sum is I think $365. To that there should be added something for medication. I take the figure of $10 a week. I take the period commencing about a year after the accident to date and I halve that figure to allow for medication attributable to other causes. I allow $400, and $70 for interest on that sum. 16 For her economic loss to date I proceed on the basis she should be allowed $300 per week for approximately a year, $300 representing the sum she was apparently receiving after tax prior to the accident. 17 Something should be allowed on a continuing basis for past economic loss of approximately 21 months. 18 Doing the best I can, I allow $22,500 for her past economic loss, that is to say, impairment of earning capacity reflected in loss of income. To this there should be a sum added for interest, $3071. 19 For future economic loss, including future pharmaceutical expenses assessed on the basis of $10 per week, but halved, for life, future earning capacity reflected in loss of income and for the chance of future surgery I allow $25,000. For non-economic loss I allow a figure of $40,000. I apportion $20,000 of that to the past. Interest is payable on that sum, of $1,092. The total figure is $96,380.95. 20 I give judgment for the plaintiff in the sum of $96,380.95. I grant liberty to either party to apply within seven days if any problem arises about those figures. I order the defendant to pay the plaintiff's costs. oOo Last Modified: 11/28/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.