New South Wales Supreme Court CITATION : HUNTINGTON v SAUNDERS [2001] NSWSC 692 revised - 17/08/2001 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 13587/90 HEARING DATE(S) : 18 October 2000, 19 October 2000, 20 October 2000, 23 October 2000, 17 November 2000, 20 July 2001 JUDGMENT DATE : 17 August 2001 Janice Huntington (Plaintiff) PARTIES : v Thomas Earl Saunders (Defendant) JUDGMENT OF : Adams J at 1 COUNSEL : Mr T D F Hughes (Plaintiff) Mr J P Guihot (Defendant) SOLICITORS : G H Healey & Co (Plaintiff) Blackmore & Associates(Defendant) CATCHWORDS : Death of plaintiff - substitution of wife - claim for voluntary services - whether provided to person "in whose favour award is made" within s72(1) Motor Accidents Act 1988 - whether limits apply. LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1944 Motor Accidents Act 1988 DECISION : Judgement for the plaintiff in the sum of $142,073.50 plus interest plus costs. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J FRIDAY 17 AUGUST 2001 13587/90 HUNTINGTON v SAUNDERS JUDGMENT 1 HIS HONOUR: This action arises out of a motor vehicle accident, the circumstances of which are sufficiently set out in my previous judgment dealing with liability. As I there mentioned, action was commenced by Mr Huntington and, when he died of independent causes in 1997, the present plaintiff, his widow, was substituted by order of the Court in 1999, pursuant to s 2 of the Law Reform (Miscellaneous Provisions) Act 1944, which provides that the cause of action vested in the deceased survived for the benefit of his estate. 2 The accident occurred on 5 May 1988, when the plaintiff was aged forty-eight years. At that time, the plaintiff was employed as a wool classer with Mr Kevin Kentwell of Warren and had been engaged in this occupation for some time. He returned to his former employment some eight weeks after the accident. It is claimed that, although he did so, he suffered continuing disabilities arising from the injuries he suffered in the accident and that these disabilities eventually forced him to give up this work. 3 Following the accident, the plaintiff was taken to Dubbo Base Hospital. He had suffered fractures of the second, third and fourth ribs on the left side together with a fracture of a scapula and the acromion. X-rays of the abdomen, skull and cervical spine were normal. The plaintiff had also suffered a haemopneumothorax with extensive interstitial oedema on the left side requiring insertion of a chest tube. He was alert and orientated with normal blood pressure. Although he was bleeding from the left ear canal, neurological examination was normal. The hospital's clinical notes for 5 May contain an entry, amongst others, "head injury # base skull". Of course, he needed to be treated in intensive care. Dr Gallagher reported that, five days after admission, the plaintiff was able to walk about, although he was bringing up copious green sputum and was febrile. It was noted, however, that he was showing symptoms consistent with alcohol withdrawal, and on the following day, the anaesthetist considered that he was suffering from delirium tremens. It is possible that these symptoms may have been complicated by the effects of pain relief medication and his head injury. The nursing notes for 23 May, on Mr Huntington's transfer from Dubbo to Warren, refer to vagueness and memory problems. 4 I interpolate here that Mr Huntington gave Dr Alam on 22 June 1989 a history, amongst other things, of unconsciousness and bleeding from both ears. The doctor noted that, if this was correct, "then this constitutes a clinical diagnosis of fractured base of skull". However, the radiologist's report on X-rays taken on 2 March 1989, whilst referring to a number of other fractures does not mention such a fracture. 5 By 15 May it was noted that the plaintiff was stable and improving. He was breathing spontaneously and was extubated the next day. Physiotherapy was continued. On 17 May, radiology showed a small left pneumothorax and a faint increase in opacity at both of the bases of the lungs. On 23 May the plaintiff was transferred to Warren District Hospital for convalescence and arrangements were made for him to be followed up by an alcohol counsellor. The hospital notes refer to an initial contact with drug and alcohol services from the Irana Health Centre on 25 May 1988. It was noted that there would be a follow-up session with Mrs Huntington. The plaintiff had no recollection of any such proposal or of attending any counselling session. Nor, for that matter, did the plaintiff consider that her husband had a drinking problem. She denied that, prior to the accident, her husband regularly consumed a large amount of alcohol each night. She said that his usual drink was light beer and that her husband did not drink wine. On the whole, she thought that he was an average drinker. She was not aware of his drinking habits outside the home. She denied the suggestion that at any stage he drank one or two bottles of wine in a sitting, let alone each day. Having regard to the histories of excessive drinking given by Mr Huntington to a number of doctors consulted by him in connection with his injuries, I am satisfied that, indeed, Mr Huntington did have a significant drinking problem before the accident. The plaintiff's evidence, in effect, denied that this was so. Nevertheless, it was, I consider, honestly given and I do not accept the defendant's submission that her general credibility has been adversely affected, though the plaintiff's evidence was marked by a degree of vagueness which affected its reliability in some respects. 6 Mr Huntington was eventually discharged from hospital on 30 May 1988 into the care of his wife. It appears from the history given to Dr Coffey (as to whom see below) that, for a time, he attended Warren Hospital twice daily for physiotherapy for his chest and shoulder injuries. Mr Huntington returned to his employment as a wool classer with Mr Kentwell on 18 July 1988 and continued to work for him until July 1992. Before dealing further with Mr Huntington's work history, it is convenient that I first deal with his developing medical condition. In March 1989, Mr Huntington was seen by Dr Viglione, an orthopaedic specialist, on referral from Dr Haynes, his general practitioner. The history taken by Dr Viglione does not refer to any head injury, but lists left chest and left scapula injuries and an undisclosed soft tissue injury to the lower back. The doctor noted that Mr Huntington had made "quite a satisfactory improvement with his left shoulder" and that, although he worked with reduced efficiency and sometimes required someone to assist him, he was still able to undertake his work as a wool classer. Mr Huntington complained to the doctor of discomfort caused by the physical requirements of his work, which increased when he was dealing with tangled fleeces and, at all events, towards the end of the day. Mr Huntington also complained about difficulty with reaching above his head and to the side and that these movements caused a grating sensation. On examination, the shoulder itself appeared relatively normal although, on close inspection, Dr Viglione thought there was some wasting. Movement of the shoulder was somewhat restricted with accompanying pain. Dr Viglione administered an injection in the subacromial bursa with some success. Dr Alam, who I take to be an orthopaedic surgeon but whose speciality is undisclosed, saw Mr Huntington, as I have mentioned, in June 1989. He noted significant physical restrictions especially in the neck and left shoulder with some limitations in mobility of the lumbar spine. Dr Alam thought that the neck and back problems arose from a marked aggravation of pre-existing spondylitic changes caused by the accident. Although Dr Alam referred to a closed head injury with a fractured base of skull, he did not suggest that Mr Huntington gave a history identifying any reflective complaint, the doctor observing, however, that it "takes some 3-5 years at least [for such an injury] to settle down, and for the signs of cerebral irritation to flow out of the system". The doctor reported that Mr Huntington had, in effect, told him that the accident had caused him to restrict his alcohol intake to beer instead of wine. 7 Dr Haynes reported in October 1990 as having attended Mr Huntington on his initial admission on 5 May 1989 to Warren District Hospital, before his transfer to Dubbo. He listed a number of injuries, but does not refer bleeding from the ears, though he passed on without comment the clinical note containing the reference to head injury to which I have already referred. Dr Haynes stated that he had seen Mr Huntington on a number of occasions since the referral to Dr Viglione concerning his shoulder and back problems, describing treatment involving rest, anti-inflammatory agents and physiotherapy. He noted that Mr Huntington had ceased work because he was unable by pain and restricted movement to continue to work as a wool classer, which required full and active movements in both upper limbs and shoulders. (However, it seems that Mr Huntington in fact returned to work after about three weeks of rest.) Dr Haynes made no reference to any alcohol problem. 8 In December 1990, Mr Huntington was seen by Dr Coffey, a consultant neurologist. He told Dr Coffey that his main problems resulting from the accident concerned his left shoulder and low back, injuries to which interfered considerably with his work as a wool classer. He said that he had made a reasonable recovery from "his head injury" but that he had been left with on-going problems, involving difficulties with memory and concentration and had noted, since the accident, a tendency to dizziness and unsteadiness as well as recurrent headaches, at times occurring almost every day, although these had mainly occurred since June 1990. Mr Huntington told Dr Coffey that his left shoulder, in particular, caused considerable discomfort and restrictions when working, problems to which his back also contributed. So far as the doctors' reports are concerned, this is the first complaint about headaches. He also complained, for the first time, of pain in his right hip region when he stood or walked for long periods and felt stiff and painful when he alighted from a motor vehicle. Dr Coffey attributed Mr Huntington's memory, concentration, dizziness and balance problems to the closed head injury which he accepted was caused in the accident. He considered these difficulties to be minor but expected that they would be persistent. Generally, Dr Coffey seems to have accepted that the other physical symptoms described by Mr Huntington were caused by the accident although, so far as the right hip is concerned, I think this depended upon his accepting that Mr Huntington had been troubled by pain in this region since the accident. However, as I have mentioned, it appears he had not previously complained in this respect. 9 Dr Haynes reported on 10 September 1992 that Mr Huntington had ceased work for "a number of weeks" in February 1991, as I gather from the report - which is not clear in this respect - because of problems with his left arm and shoulder. 10 In April 1991, Mr Huntington consulted Dr Milton, a psychiatrist. The history he gave Dr Milton was generally consistent with what he had already said to others although he dated his suffering headaches from about mid-1988. Dr Milton also considered that the vagueness and memory problems, noted in the hospital records on 23 May 1988, resulted from his head injuries rather than alcohol withdrawal, having regard to the two weeks' lapse of time since the withdrawal symptoms began. Mr Huntington told Dr Milton that before the accident he was a fairly heavy drinker but that this affected neither his marriage nor his work, that after the accident he received counselling about his drinking, which was reduced to a maximum of four drinks a day. Mr Huntington also complained of depression and reduced sexual functioning. Dr Milton noted that Mr Huntington tended to understate his problems. He thought it likely that Mr Huntington's complaint of reduced memory represented a mild residual feature of his concussive injury and suggested that further investigations were warranted. 11 Mr Huntington saw Dr Seaton, who specialised in rehabilitation medicine, in April 1991, whose opinion as to his disabilities was similar to those of the other doctors to whom I have referred. He mentioned a complaint of slight memory loss. Dr Seaton noted that X-rays of both hips and pelvis taken in December 1990 revealed early osteoarthritis, with the right hip being worse than the left. Dr Seaton considered that Mr Huntington's restriction in flexion in his right hip and pain on rotation was contributed to by the accident. Mr Huntington told Dr Seaton that he was finding work more and more difficult. Dr Seaton thought that, given Mr Huntington's range of disabilities, especially affecting the use of his left shoulder, it would be unlikely that he would work much longer as a wool classer. Mr Huntington saw Dr Alam again on 11 April 1991. Dr Alam noted his complaint of pain and stiffness in the right hip together with pain in the right knee on movement of the hip which Dr Alam considered to be referral pain from the hip. Dr Alam thought that the right hip had declared itself as an aggravation and showed signs of calcification in the torn tissues there. Although he does not directly say so, it seems to me that Dr Alam attributed this aggravation to the accident. Mr Huntington's disabilities as found on examination were significant and would not only hamper his work but also, I think, make it painful and difficult to undertake many household tasks, especially those requiring bending or the use of his left arm. Dr Alam noted, again, that, "typically of a rural worker" Mr Huntington minimised his complaints and disabilities. 12 In June 1991 the plaintiff was examined by Ms Jill Farrelly, a clinical psychologist. Amongst other things, Mr Huntington insisted to Ms Farrelly that, although he had been a regular drinker, he did not think he had a drinking problem and, in particular, his drinking habits had never caused him to miss a day's work. Although, as I have said, it is probable that Mr Huntington did have a serious alcohol problem before his accident it seems to me that, in a hard drinking culture, this was not regarded either by his workmates or himself as either unusual or a problem. It is evident that it did not adversely affect his employment. Overall, Ms Farrelly considered, as a result of her assessment, that there had been a decline in Mr Huntington's intellectual capacity, with signs of mild verbal memory impairment. Other poor performances indicated significant frontal lobe deficits with impairment of the ability to exercise judgment, be mentally flexible and organise material learn. Ms Farrelly considered the possible significance of Mr Huntington's alcohol abuse as an explanation for his frontal lobe deficit but concluded that the poor performances which she identified were the result of head injury. 13 Dr Haynes reported on 10 September 1992 that Mr Huntington had been seeing him each month. He said that, in May 1992, Mr Huntington presented in his surgery in great distress with severe right-sided abdominal pain, the cause of which was not revealed on investigation, but which was markedly aggravated by leaning forward over the wool classing bench. Dr Haynes said, "because of pain and disability in his left shoulder and right buttock as well as the abdominal tenderness, Mr Huntington has had to give up his work". It was submitted on behalf of the defendant that I should infer that the abdominal tenderness (apparently having no connection with the accident) was the substantial cause, so far as his physical disabilities were concerned, of Mr Huntington's decision to give up employment in July 1992. Although, no doubt, the abdominal pain played some part in the overall picture, I consider that the correct conclusion from the whole of the evidence, especially the history in the later medical reports, is that it played a relatively minor role. 14 In August 1992, Mr Huntington was examined by Dr Grimsdell, an orthopaedic surgeon. Dr Grimsdell was given a history, inter alia, that the immediate cause of Mr Huntington's departure from employment was the advice of Dr Haynes that he should cease work because the doctor considered that he was not fit to continue as a wool classer. Dr Grimsdell noted that Mr Huntington had severe problems with the use of his left arm and shoulder together with pain and stiffness in his lower back and right hip, all of which had been aggravated when working. It is not necessary to note all the doctor's findings, except that (oddly) Dr Grimsdell found no problems with Mr Huntington's hips and thought that some changes demonstrated on X-ray, were of no significance. In light of the other medical evidence in the case concerning the hip, to which I have referred, I do not accept this finding. Dr Grimsdell noted that Mr Huntington exhibited involuntary, mild but detectable ataxia and some disturbance of his balance. Dr Grimsdell concluded that Mr Huntington was no longer able to continue as a wood classer. 15 In December 1992, the plaintiff and her husband moved to Bribie Island. In December 1996, Mr Huntington was diagnosed with cancer of the bowel and he died on 21 December 1997 from this illness. I will deal later with the period between December 1992 and December 1997 but it is convenient first to consider his situation up to the time that he left Warren. 16 So far as Mr Huntington's work was concerned, the plaintiff relied principally on the evidence of a Mr William Darcy, who had been a close friend for over twenty years. Mr Darcy was a shearer and worked also for Mr Kentwell, for whom Mr Huntington worked as a wool classer. It is unnecessary to describe in detail the work of a wool classer. It is sufficient to state that it involved placing the fleece on the classing table, helped by a rouseabout, ensuring that the fleece is flat on the table, which requires leaning over to full extension whilst bending from the hip, examining the fleece, and throwing it into a bin labelled with the class. The pace needs to be maintained that keeps up with the shearers. Mr Darcy described the work generally in this way - "They are all arm and shoulders. You get your fleece and you throw him back over here and it is all arms. Sometimes when the wool gets up in the bins a bit high and you've got to throw them over, it's a fair bit of weight to it. It's no easy job...He has got to keep up with us and we are going flat chat. Everyone is flat chat and if you don't keep up, the fleece is in front of the table so you drop them down. You don't - the fellow picks them up, the three of us might finish together. You pick it up, put it down. Pick it up, put it down. It's a bit hard when you get behind. If there is three there, it is a bit hard to pick them up. You've got to get around and pick them up. It's pretty physical." 17 As to Mr Huntington's standard of work, Mr Darcy said - "Like, I have been in the sheds all me life really and he is the best wool classer I have ever seen. Get another fellow on the other side of the table, might not be able to keep up with him, might have to do a little bit extra on his side. He was really, really good." 18 Mr Darcy said that he noticed that Mr Huntington, when he returned to work following his accident, "wasn't as good as what he was before" and added, "he was doing it hard, you know". He explained it in this way - "...well, he was not so fast, you know. You are doing it hard...he didn't say he was doing it hard but he was doing it hard. In the shearing shed, like, if you do a bit of complaining, like if I whinge, I got a sore back, you are a whinger, a bit of a sook. You keep those things to yourself...you know, you see a few fleeces laying around, you know, jeez, he's doing it a bit hard. He smoked. He liked his smoke but a lot of the shearers pull up the hour, or a few of them pull up the hour. I don't, I just keep going. Why work an hour flat out and waste a bit, you know...I knew he wasn't as good. If you draw number one, you know what's going on. You know, you're up close to the table. Stand here, I would be along side of him, you know, have a bit of a yarn to him. "How're youse going?" You keep talking to one another, bit of a conversation while you are working, you know and he - yeah, yeah, he slowed up a lot, yeah...he was a hard worker..." Mr Darcy said that Mr Huntington would say that he was "doing it hard". 19 I was most impressed with Mr Darcy as a witness. He did not attempt to exaggerate, despite his obvious friendship with, and respect for, Mr Huntington. I do not doubt the astuteness of his observations, the honesty of his evidence or the reliability of his judgment. 20 The defendant relied upon the evidence of Mr Kentwell, who was, as I have mentioned, Mr Huntington's employer for many years. Mr Kentwell added some details of the work. He said that the number of fleeces an hour that would pass over the wool classer's table would vary but it could well be over seventy an hour, probably 40% of the time. The fleeces weighed between two to seven kilograms. Mr Kentwell was working with Mr Huntington, probably about 80% of the day only two or three metres away from him. He said that he did not notice any change in the mode of Mr Huntington's work, although he thought that for the first few days after he returned from the accident he may have been tired on his feet because he had been out of practice. He said that Mr Huntington never complained to him about restrictions in his physical ability to carry on his work and Mr Kentwell said that he did not notice any difficulty or apparent restriction in this respect. He said that Mr Huntington was usually a cheerful worker but that in the last few months before he left work he got "a little bit depressed and probably a little bit disgusted" because of problems in the wool industry. At some time before he left work, Mr Hungtinton told Mr Kentwell that he did not intend to continue to work for Mr Kentwell because he thought there was "no future for him in Warren" in the sense, as I understand it, that there was insufficient wool classing employment available in Warren and he may be able to pick up as much as he was getting in Warren elsewhere. Although Mr Kentwell's evidence in this respect is something less than crystal clear, I have no doubt that he understood that Mr Huntington was going to seek work elsewhere as a wool classer. Since Mr Huntington left Warren to go to Bribie Island, it is clear that this was not, and I am satisfied that it was never, going to be the case. For all that I accept Mr Kentwell as an honest witness who, also, was a long-standing friend of Mr Huntington, I think that Mr Huntington was not candid with him about the state of his health. At the end of the day, Mr Kentwell was his employer and I think that Mr Huntington took considerable pride in doing his work without complaint, despite the pain and discomfort that he was feeling. 21 Some medical reports refer to assertions by Mr Huntington that he had complained about his disabilities to his employer, who had made allowances for him and provided extra assistance. But I do not think that this was the case. That is not to say that the rouseabout on the table did not take up more of the physical work than had been the situation before Mr Huntington's accident. Indeed, I think that this was very likely. I do not think that Mr Kentwell would necessarily have noticed. This is a shearing shed, not a place for suits. Mates are mates and the boss is always the boss. In the end, however, I am left with assertions made by Mr Huntington about the way in which his difficulties at work were accommodated which I cannot accept as entirely true. Even so, I am satisfied that, on the whole, his accounts of his symptoms were truthful since they were, substantially, confirmed by clinical examination and supported by the evidence of Mr Darcy and the plaintiff. 22 On 4 April 1991, Mr Huntington was seen by Dr Edwards, a surgeon, on behalf of the defendants. Dr Edwards' description of Mr Huntington's injuries did not differ markedly from those given by the plaintiff's medical experts. In particular, he accepted that Mr Huntington may have sustained an injury to his thoraco-lumbar spine, though he considered that the effect of any such soft tissue injury had ceased. Dr Edwards also noted calcific tendonitis at the right hip, which he thought could explain his discomfort at the hip and thought that it may have been caused by the accident. He believed that Mr Huntington was fit for his duties as a wool classer though he might have to exercise care with activities which caused discomfort. I suspect that this opinion largely depended on the fact that Mr Huntington told him that he was still working. Dr Edwards thought Mr Huntington's prognosis was good. I interpolate here that Dr Edwards saw Mr Huntington again in August 1995, when he was given a history of severe symptoms in the left shoulder and arm, complaints of constant low back ache with some discomfort in the left posterior hip area. Mr Huntington described a basically sedentary lifestyle. Dr Edwards thought that Mr Huntington had more restriction of movement in his left shoulder than when he had seen him something over four years earlier and accepted that this restriction would make it difficult for him to carry out work which required him to use his left arm above shoulder height. However, he could not find any evidence of abnormality in Mr Huntington's thoraco-lumbar or cervical spine and thought his right hip appeared to be normal. The degenerative changes, which he accepted might be productive of discomfort, noted in the spine on X-ray were, Dr Edwards' thought, of constitutional origin and had not been caused by the accident. 23 In March 1992, Dr Sommerville, a consultant neurologist, examined Mr Huntington on behalf of the defendant. At that time the history given to him by Mr Huntington, amongst other things, was that memory and concentration did not seem to have been affected. Mr Huntington denied to Dr Sommerville that he had ever been a really heavy drinker. Amongst other things, Dr Sommerville noted Mr Huntington's complaints of headaches but thought that it was likely they would eventually go. Mr Huntington's difficulties with work associated with use of the left shoulder and the lower lumbar region were, Dr Sommerville thought, of orthopaedic rather than neurological origin. The vertigo, which Mr Huntington had complained of to Dr Coffey in December 1990, had gone. Dr Sommerville noted, as to Mr Huntington's overall intellectual capacity, that he did not himself claim to have difficulty with his memory, apart from the period immediately after the accident and had not noticed any deterioration in intellectual functioning. Dr Sommerville noted that alcohol abuse may produce impairment of memory and said that he would treat with considerable reservation the conclusion that Mr Huntington had suffered any brain injury, specifically to the frontal lobes, as a result of his accident. Dr Sommerville saw Mr Huntington again in August 1995. At this time, amongst other complaints, Mr Huntington said that he was still troubled by slight headaches which occurred occasionally but were not associated with nausea, vomiting or any other feature of migraine. He also complained of some memory problems but was unable to describe these more accurately. Dr Sommerville did not think that Mr Huntington had sustained any permanent neurological impairment resulting from his accident. Dr Roldan, a clinical psychologist, assessed Mr Huntington for the defendant in March 1992. Amongst other things, he described a drinking habit which, though he obviously considered it was of moderate proportions, in fact, was quite heavy, his then present drinking of three to four schooners of beer before dinner being a reduced intake. It is unnecessary to set out Dr Roldan's report in detail. In brief, Dr Roldan considered that Mr Huntington was a man of average verbal and non-verbal intellectual abilities with a memory function in the high average to superior level with no significant deficit in recall. His verbal fluency and reading were intact. Dr Roldan thought, I gather, that if there was any impairment of intellectual functioning, which was not evident from his assessments, it might well have been a result of excessive alcohol consumption. However, considering the evidence as a whole, including in addition to the reports of Dr Milton and Ms Farrelly, the reports of Dr Haynes as to his impressions of Mr Huntington (to which I refer below), I am satisfied, though somewhat doubtfully, that Mr Huntington did suffer a closed head injury as a result of the accident and that this caused some intellectual deficits that added to Mr Huntington's physical disabilities. 24 It is relevant to note that the plaintiff worked part time as a doorman at the local services club at the time of the accident, usually working two and occasionally three days a week. This employment ended when he and the plaintiff left Warren to go to Bribie Island in December 1992. 25 I have set out above a brief account of Mr Huntington's work and the effect that Mr Darcy and Mr Kentwell thought his accident had on him. It is now necessary to deal with the plaintiff's observations of her husband after the accident. Of course, no claim can be made for non-economic loss. However, some insight is gained as to the difficulties that Mr Huntington had in coping with work, even though those difficulties were perhaps not very evident in the work place. The plaintiff described her husband as a hard-working man who loved his work as a wool-classer. This is emphatically confirmed by the evidence of both Mr Darcy and Mr Kentwell. He played football and cricket, he liked to take his son bike riding and canoeing and excursions of like kind. He never took time off work. After the accident, the plaintiff thought that Mr Huntington was keen to get back to work because he was concerned about his loss of income. She noted that, when he came back from work, however, he was physically exhausted and complained continually about his back and shoulder. He undertook physiotherapy and exercised his left arm at home to improve movement and use of the shoulder. The plaintiff gave him massage, which her husband found helpful in easing his discomfort. The plaintiff said that Mr Huntington took Panadeine Forte and other medications for his pain but was uncertain about the quantities, although she bought them for him from time to time. The thrust of the plaintiff's evidence was, in my view, that she would need to buy a packet of Panadeine Forte, which she thought contained twenty tablets, every four or five days. 26 The plaintiff said that, when her husband stopped working in mid-1992, his condition had been getting worse. He would come in, she said, walking "like an old man". Quite often, she said, in perhaps the two months before he gave up work, he would vomit when he came home but this stopped after he ceased wool classing. There is no evidence that the vomiting was attributable to the accident. I accept that it was one of the collection of painful and unpleasant symptoms from which Mr Huntington was suffering at the time of his retirement. He complained to the plaintiff about feeling unwell and said that he could not work any longer, an opinion confirmed (as I have already set out) by his general practitioner. The plaintiff has no recollection of her husband complaining to her of severe right-sided pain in his abdomen though, as I have said, he did so to Dr Haynes. It is difficult to accept that Mr Huntington did not indeed complain to his wife about this problem but it is not impossible. He may have wished to protect her from worry. However, I think that the probability is that she has simply had a failure of recollection about it or has possibly confused it with vomiting, in respect of which, after all, there was no complaint by Mr Huntington to his general practitioner or, perhaps, his later cancer symptoms. The plaintiff does not recall her husband undertaking further abdominal tests after they moved to Queensland. The plaintiff also noted that her husband had difficulties with his memory so that, if he went shopping, she now needed to write him a list. The plaintiff said that, about twelve months before they left Warren, her husband was not well enough to do the work as a steward at the club and was put on the door, where work was easier. After Mr Huntington left Warren in December 1992, the plaintiff said that he did not do any more paid work. 27 The plaintiff said that it had always been understood between her and her husband that, when her husband finished work in the country as a wool classer, they would retire to the coast. Whether they could retire depended, as with most people, on their savings but otherwise they expected to work on, perhaps to the age of seventy, before retirement. The plaintiff denied that she and her husband would have left Warren to move to Queensland at the end of 1992 simply as the fulfilment of their plans for retirement. The plaintiff denied that her husband mentioned to her, about the middle of 1992, shortly before he stopped working as a wool classer, that he was concerned about the decline of the wool industry and the reduction of the amount of shearing work available and suggested that he might as well retire because of this situation. Even if this was said, it seems to me that, having regard to all the evidence, he was probably just making a virtue of necessity. 28 Towards the end of 1996, Mr Huntington, then 56 years of age, was diagnosed with the bowel cancer from which he ultimately died. I consider that, more probably than not he would have worked to that date but not beyond it. 29 Before the accident, Mr Huntington mowed and maintained the lawn in their big yard, work that he undertook about every three weeks, probably for about three hours or so. However, after the accident, although he tried to undertake these tasks, he could not do them. Before the accident, Mr Huntington would get breakfast for the family on the weekends as a kind of ritual but then he ceased to do so. He also contributed to the household tasks by cleaning the bathroom once a week, taking possibly an hour. This seems rather long to me. After the accident, he stopped doing this as he also stopped washing up after the evening meal. However, this seems to have rather resulted more from the fact that Mr and Mrs Huntington bought a dishwasher than because Mr Huntington was not able to help. He spent two or three hours monthly washing and vacuuming their car but after the accident he also stopped doing this. He did other work cleaning the house, of perhaps half an hour per week, which also stopped. He went from shopping about an hour a week before the accident to shopping just occasionally afterwards. The plaintiff did not know why Mr Huntington stopped doing the weekly shopping and did not suggest that he had any physical difficulty with undertaking this job. 30 The most significant part of the plaintiff's claim concerns her husband's lack of earnings following the accident from his job as a wool classer. It was submitted by the defendant that I should find that the substantial cause of Mr Huntington's leaving work was a general disillusionment with the wool industry and a downturn in the work available for wool classers together with the severe right-sided abdominal pain referred to by Dr Haynes in his report of September 1992 and included in a list of physical problems rendering him unable to carry on work. Even so, Mr Huntington continued to work after May 1992 for Mr Kentwell until 3 July 1992 as well as for the services club until the end of the year. 31 It may be that his side pain was a contributing factor in Mr Huntington's increasing inability to cope with the physical demands of his work as a wool classer. However, the overwhelming thrust of the medical evidence is that Mr Huntington's principal difficulties resulted from the significant physical limitations and pain mainly affecting his left shoulder and arm, his back and his hip, which can, in my view, be linked to the injuries suffered by him in the motor vehicle accident. Despite the language in Dr Haynes' September 1992 report, I consider that the appropriate and realistic assessment of the facts in this case is that the disabilities from which Mr Huntington suffered as a result of the injuries inflicted by the car accident were the substantial and material cause of his being unable to continue in employment as a wool classer, even if the right-sided pain was also, to some extent, a contributing factor. So far as Mr Huntington suffered from any loss of memory or concentration as a result of the accident, the evidence indicates that it is probable that he did so, although this is not without controversy. The defendant's experts point to Mr Huntington's excessive drinking as a likely explanation for this problem. However, having regard to the fact that it appeared following the accident and the likelihood that Mr Huntington suffered a closed head injury in the accident, I think that the more probable explanation is, indeed, an injury received in the accident. 32 In his report of 10 September 1992, Dr Haynes referred to his general impression that there had been a further deterioration in Mr Huntington's intellectual capacity which led him to doubt that retraining was an option for him, though he continued to work part time as a doorman at the club. Although the paucity of evidence makes it difficult to draw firm inferences, I am satisfied on the balance of probabilities that there was a deterioration as described by Dr Haynes and therefore accept that Mr Huntington's residual capacity for work was considerably reduced and far less than that which he enjoyed before he was forced to stop working as a wool classer. 33 On 23 September 1992, Dr Grimsdell reported on his examination of Mr Huntington on 24 August 1992 following referral by Dr Haynes who informed Dr Grimsdell that "Mr Huntington was not coping at work and was experiencing increasing pain and stiffness in his left shoulder as well as problems affecting his right hip which were thought to be associated with calcific tendonitis in the region of the right greater femoral trochanter". This referral did not mention the right-sided pain, which adds to the uncertainty about the significance of this complaint. Dr Grimsdell took what appears to be a comprehensive history from Mr Huntington in which he mentioned his problems concerning his left arm and shoulder, his lower back and his hip, the symptoms in which were aggravated by wool classing activities. It would be surprising if Mr Huntington would not have mentioned right-sided pain if, indeed, that was a significant problem, even though, of course, it was probably not orthopaedic. Dr Grimsdell considered that Mr Huntington's orthopaedic problems, in effect, would prevent him from working as a wool classer unless his employer made significant adjustments to allow for his disabilities. Mr Huntington, it seems, had told him that such accommodation had been given although Mr Kentwell's evidence is to the contrary. As the doctor did not give evidence, the terms of the history given by Mr Huntington could not, of course, be explored and I am left in some real doubt as to what Mr Huntington intended to convey. In the end, however, despite this question mark, the evidence taken as a whole leads me to conclude on the balance of probabilities that Mr Huntington indeed had significant physical disabilities caused by the accident that increasingly affected his capacity both for work and domestic tasks. He attempted, with more or less success, to overcome them but, by July 1992, he was unable to continue his work as a wool classer. 34 In light of Mr Huntington's disabilities arising out of the accident, I consider that he was left with a relatively slight capacity for work represented fairly, to my mind, by the casual work undertaken by him as a doorman at the Warren Services Club. This view is reinforced by the subsequent medical history. 35 In February 1993, Mr Huntington, of course, then living at Bribie Island, consulted Dr Richard Kling about persistant lower back and neck pains. Dr Kling prescribed Panedeine Forte for this pain, which clearly was not improving. Again, I notice that there was no complaint of right-sided pain. There may have been some improvement in his back, since, when Mr Huntington consulted Dr Botskor, an osteopath, for manipulation of his spine, the pain was described as occasionally recurring without any apparent cause but usually after bending and lifting activities. Dr Botskor reported manipulating Mr Huntington's back on eighteen occasions between 23 October 1994 and 1 October 1995. This frequency of treatment is, to my mind, eloquent of the problems Mr Huntington was having. On 7 August 1995, Mr Huntington returned for another examination by Dr Alam who noted much the same restrictions as he had previously seen. Mr Huntington stated to Dr Alam that he became depressed and frustrated, amongst other things, because he could no longer work. This is part of a depressive reaction which it is reasonable to attribute to the chronic problems resulting from the injuries caused in his accident. Dr Alam accepted that Mr Huntington's work capacity was nil. There is no contrary medical opinion. I consider that it is reasonable to accept Dr Alam's opinion about this matter. Even so, I note that Mr Huntington was seen by an orthopaedic surgeon, Dr Gillett, in Brisbane in February 1995, when he reported doing "some" bar work at the surf club and a "local caretaker's job" at a paper shop between 5am and 8am. The effect of Dr Gillet's report is, I think, that Mr Huntington could do little more than this type of work on a part time basis. In a later report, Dr Gillett, in effect, agreed with the assessment of Dr Alam as to Mr Huntington's disabilities, to which I have referred. 36 Mr Huntingon was absent from work from 6 May 1988 to 18 July 1988, a total of fifty-one days, whilst convalescing from the injuries he suffered in the accident. I accept that he returned to work as soon as he was able to do so. At the time, his average gross weekly ordinary time earnings was $575, giving a total for fifty-one days of $5,865 yielding, so far as I can calculate, $3,910 net of tax. His employment as a bar steward/doorman at the United Services Club was casual, comprising two days a week, working six hours a day. He returned to work after 16 July 1988, having lost twenty-two days. He was paid $82.50 a day, including tax, giving a net loss of $1,210. Thus, the total payable for this period is $5,120. 37 Having regard to the evidence overall, I am satisfied that, although Mr Huntington could not have worked as a wool classer after July 1992, he was able to work twelve hours a week in employment similar to that undertaken at the United Services Club in Warren. The plaintiff claims loss of income at the rate of $500 per week for the three and a half years until December 1996. As I read the income tax returns to 30 June 1992, his average earnings were closer to $450 net a week at that time. Since these returns annualise his income, it is unnecessary for me to make a further calculation upon the basis urged by the defendant (which I think to be reasonable) that he did not work and would not have worked the full year as a wool classer, having regard to the seasonal character of this employment. Assuming an increase in the appropriate award of the same order by which the average weekly wage increased over this period (which is almost certainly conservative), he would have been earning about $510 per week by the time, as is conceded on the plaintiff's behalf, the diagnosis of cancer would have caused him to have left employment at all events. I have therefore used the figure of $480 as the multiplier. Accordingly, I calculate the amount payable under this head, taking into account Mr Huntington's continued capacity for casual work as mentioned, the sum of $87,360. 38 I now come to the issue of compensation for gratuitous care provided to Mr Huntington by the plaintiff. On the face of it, the amount payable seems to be limited by the Motor Accidents Act 1988 (the Act). However, s 72 of the Act provides, so far as is relevant - "72. (1) An award of damages shall not include compensation for the value of [certain] services…which have been… provided to the person in whose favour the award is made …except in accordance with this section." (Emphasis added.) 39 As I mentioned at the outset of this judgment, this is an action which survives Mr Huntington's death by virtue of s 2, Law Reform (Miscellaneous Provisions) Act 1944. The services were provided to Mr Huntington. However, he is not "the person in whose favour the award is made". In this case the award is made to the plaintiff in an action surviving "for the benefit of [Mr Huntington's]…estate". The defendant submitted that the words "person in whose favour the award is made" should be read as referring to "the person to whom the services have been provided" which, it was argued, would give the section its natural and ordinary meaning. I consider, however, that such a construction would significantly depart from the natural and ordinary meaning of the words used and is accordingly not open. It was next submitted that the cause of action did not entitle the plaintiff, at the time of his death, to unqualified compensation for gratuitous services and hence, that entitlement which survived for the benefit of his estate was to the amount of damages as limited, inter alia, by s 72 of the Act. The obstacle facing this argument, however, comprises the words of s 72 of the Act itself. They direct exclusive attention to the person "in whose favour the award is made". As at the date of his death, Mr Huntington was not, nor could he have been, such a person. The submission, in effect, seeks to insert words into the section so that it would read "in whose favour the award is made or, where that person has died before the award is made, in whose favour the award would have been made if he or she were then alive". This is amendment, not interpretation. It is then submitted, as I understand it, that the words "an award of damages" should be construed as meaning merely a head of damage or entitlement to compensation, rather than a judgment or verdict. I do not see how the section could be properly so construed but, at all events, this would not overcome the problem posed by the language of para 72(1)(a). If "the person in whose favour the award is made", as used in para 72(1)(a) is the present plaintiff, albeit (it may be) for the benefit of Mr Huntington's estate, the same meaning must prima facie be given to the identical phrase in para 72(1)(b). So read, para 72(1)(b) makes grammatical sense, though it identifies a circumstance that, one could confidently say, would not have been contemplated by the legislature as relevant to the purposes of the section. However, if para 72(1)(a) is not satisfied, it is unnecessary to consider the possible application of para 72(1)(b), whilst, if para 72(1)(a) is satisfied, para 72(1)(b) applies in a logical and reasonable sense. Thus, para 72(1)(a) would only fall to be considered in circumstances where its meaning is unstrained and its relevance obvious. It was last submitted by the defendant that its proposed interpretation was supported, if not mandated, by s 2B(1) of the Motor Accidents Act 1988, inserted in 1995, which requires preference to be given to an interpretation that promotes the objects of a provision of the Act. This provision, however, cannot be used to override unambiguous language, which must be taken to express those very objects. Accordingly, although it seems an anomalous result, where an action proceeds by survivorship, the common law principles applying to the award of damages for gratuitous care are not affected by the Act. 40 There was no evidence from the plaintiff as to Mr Huntington's condition when he came out of hospital and before he went to work, but it is reasonable to infer that, for most of this period, he was unable to do most household tasks. Despite the paucity of the evidence I am prepared to accept, in light of the medical evidence, that, for one month or so after he came home from hospital, the plaintiff, conservatively, would have spent, on average, three hours a day ministering to her husband's needs by way of ordinary domestic tasks of shopping, cooking, cleaning, washing, ironing and the like. For this four week period, therefore, I would allow 21 hours per week for these services. I accept that the plaintiff assisted Mr Huntington with massage which helped ameliorate the pain from his injuries and that this took about twenty minutes a day. The plaintiff said that she undertook this task from six months after the accident (ie, the beginning of November 1988 "through to 1992", a reference, in the context, I think, to when Mr Huntington he left work in July of that year. During this period, therefore, two hours twenty minutes a week was taken up with massage. 41 The plaintiff also said that Mr Huntington was unable to mow the lawn after the accident, although he tried to do so. I accept her evidence about this and consider that an allowance of one hour a week is reasonable, up to the time when the couple moved to Bribie Island where, as I understand the effect of the evidence, they had no lawn. Mr Huntington was practically unable, I accept, to do any gardening, weeding and maintenance work around the lawns and gardens would require about another hour and a half a week. The couple also had a pool which required the usual cleaning and maintenance but I think that two hours a week described by the plaintiff was somewhat excessive. I would allow an hour a week under this heading but only up to the time that Mr and Mrs Huntington left Warren, as they did not have a pool on Bribie Island. 42 I do not accept that the plaintiff was completely unable to undertake any general household tasks such as cooking, washing up, cleaning, washing and ironing although, it may be, that he was disinclined to undertake them. It is one thing to put up with pain and discomfort at work. It is quite another to do so at home, especially when one is exhausted from work. Of course, it is a matter of degree. I consider that, over all, he would have needed help in these respects for three hours a week. It is reasonable to accept that Mr Huntington would find it difficult to undertake the task of cleaning his car. I allow thirty minutes a week for it. 43 Summarising these findings, I conclude that the plaintiff assisted Mr Huntington by way of gratuitous care for the following periods to the specified extent. The assessment task requires the specification of a number of distinct periods. This artificial process gives the appearance of precision. However, I am satisfied that the results (which I have rounded out to some extent) give a fair over all picture of the effect of the evidence which I accept. From hospital discharge (30.5.1988) for four weeks - 25 hours per week From 28.6.1988 to commencement of massage: 18 weeks - 7 hours per week From December 1988 to July 1992: 192 weeks - 9.3 hours per week From July 1992 to December 1996: 234 weeks - 5 hours per week 44 The effect of s 72 of the Act, if it applied in this case, is that the plaintiff can claim for certain gratuitous domestic care only that which occurred for over six months and for that part in excess of six hours a week. Sub-section 72(3) excludes from compensation those services which would have been provided even if there had been no injury. Thus, here, the plaintiff would only be entitled to compensation for that care in excess of six hours provided after 30 November 1988 and the temporal limits would confine the award to the third period specified above. However, the exclusion pursuant to s 72(3) of services which would have been rendered at all events, would bring the hours of services provided during this period under the threshold of six a week. Accordingly, the effect of s 72 of the Act, if it applied, would be to prevent any damages being awarded to the plaintiff for gratuitous services provided by her to Mr Huntington because of his injuries. 45 However, as I have said, I consider that s 72 of the Act does not apply in the present circumstances. It follows that the appropriate measure of damages is the cost of employing a person to provide the services that the deceased needed. The approach of the plaintiff had been, because of s 72(4) of the Act, to tender figures representing average weekly earnings over the relevant period. The defendant concedes that, if I hold that s 72 does not apply, these calculations provide an appropriate basis for determining the damages payable under this head. Accordingly, I award the plaintiff $36,023 for domestic care. 46 So far as past out-of-pocket expenses are concerned, these have been agreed at $4,247.50. In respect of past pharmaceutical expenses, the medical and the plaintiff's evidence supports the conclusion that Mr Huntington needed regular daily medication to alleviate pain caused by his injuries. I accept that Mr Huntington suffered from pain and discomfort almost unremittingly. It may be that this problem was exacerbated by conditions not caused by the accident but, overall, it is reasonable to allow the sum of $10 a week from the date of accident, 5 May 1988 to the date of death, 21 December 1997. I calculate this sum as $4,830. 47 I now come to the loss of superannuation. The relevant period commences when Mr Huntington returned to work and ceases at the end of 1996. The parties have agreed on the relevant percentages, which commence at 3 per cent and end at 6%. The relevant income is $480 per week. I calculate this sum at $4493. 48 Accordingly, damages are awarded in the sum of $142,073.50 plus interest, which I leave the parties to calculate and agree. I direct that judgement be entered accordingly. ************ Last Modified: 08/17/2001 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.