District Court New South Wales Medium Neutral Citation: Robson v Gould & Anor [2011] NSWDC 176 Hearing dates: 14/11/11, 15/11/11, 16/11/11 Decision date: 17 November 2011 Jurisdiction: Civil Before: Elkaim SC DCJ at Wagga Wagga Decision: See paragraph 78 Catchwords: Personal injury, contributory negligence Legislation Cited: Civil Liability Act 2002 Military Superannuation and Benefits Act 1991 (Cth) Motor Accidents Compensation Act 1999 Category: Principal judgment Parties: Lisa Maree Robson (Plaintiff) Simone Joy Gould (First Defendant) John James Allan (Second Defendant) Representation: I Roberts SC and J Ryan (Plaintiff) D Wilson (First and Second Defendants) Walsh & Blair Lawyers (Plaintiff) Sparke Helmore (First and Second Defendants) File Number(s): 2010/228621 Publication restriction: No Judgment 1The plaintiff finished school in November 1998. She immediately attempted to enlist in the armed forces. She was told that she was too young and needed to experience some aspects of broader life before she commenced her career. She did so and returned to her ambition in May 2002 when she joined the Royal Australian Air Force ("RAAF"). 2She hoped to remain in the RAAF until she retired at age 60. 3The plaintiff started off her military career as a Clerk. By October 2003 she had become a Leading Aircraftswoman stationed at the Williamstown Air Force Base. She decided to become a Military Skills Instructor ("MSI") and applied for this position. She was posted to Wagga Wagga in 2006 to train as an MSI. When she came to Wagga Wagga she was accompanied by her partner, Mr Zachary Haywood. He is a mechanic and Army Reservist. He found work in Wagga Wagga. The plaintiff and Mr Haywood lived in a 'Defence House' for which they paid a subsidised rent of $150 per week. 4In 2006 the plaintiff was an Acting Corporal. She applied to be a permanent Corporal in February 2007. Her promotion came through in August 2007. By this time, however, she had been involved in a major motor accident. 5The accident is the subject of these proceedings. The plaintiff was seriously injured. The first defendant admits the accident was caused by her negligence; however, she says that the plaintiff was guilty of contributory negligence. 6The accident occurred at about 5.30pm on 5 March 2007. The plaintiff was riding her motorcycle from work along the Sturt Highway. She was travelling in a westerly direction. Eunony Bridge Road intersects with the highway. The first defendant was travelling south on Eunony Bridge Road, intending to cross the highway. Travellers on the road must give way to vehicles on the highway. The first defendant did not do so. She did not see the plaintiff and moved from the road onto the highway and collided with the plaintiff. 7The plaintiff, as was her habit when riding to and from work, was dressed in her uniform. This was a camouflage ensemble of khaki and green hues. The plaintiff does not recall if the headlamp of her motorbike was illuminated. She said it was only her practise to switch on the light when conditions required it. She was a learner rider, but had been a motor car driver for some time. 8The defendants' main allegation of contributory negligence is essentially the plaintiff's failure to make herself more visible to motorists. She could have worn brighter clothing or turned on her headlight. Her uniform made her blend into the countryside. 9A secondary allegation was that the plaintiff should have seen the car crossing the highway and taken evasive action. 10The plaintiff does not remember the accident. Her first recollection is being at Wagga Wagga Base Hospital. She had suffered a number of fractures and required operative treatment. A summary of her presenting injuries and treatment in hospital can be found on page 1 of Exhibit B. 11She remained in the hospital until 11 April 2007, when she was discharged to Kapooka Army Hospital. On 30 April she was transferred to Forest Hill, an RAAF Hospital. She was finally discharged home, in a wheelchair, about two weeks later. 12The plaintiff has returned to hospital for further treatment. Details can be found in the chronology (Exhibit A). 13The plaintiff applied the same determination she had displayed in pursuing her military career to her rehabilitation and she was able to return to work, still in a wheelchair, in July 2007. 14A son was born to the plaintiff and Mr Haywood in June 2009. The plaintiff is now pregnant. Her due date is in May 2012. 15In October 2010 the Defence Force Medical Board ruled the plaintiff unfit for service. She was, however, able to take up a military position in Canberra but this will end, without possibility of extension, on 14 December 2013 (Exhibit B, page 10). The effect will be that the plaintiff's aspirations to progress in military service, perhaps even being posted to overseas deployments, have been lost to her. She has become depressed and currently receives treatment and medication for this condition. 16The plaintiff and her family plan to move to the Sunshine Coast in early 2014. The plaintiff anticipates that she will be able to obtain employment of a clerical nature. She is concerned that she will not be able to work in a fulltime job because of the necessity for treatment, which may not be available outside working hours. The job that her partner expects to obtain will require a good deal of driving on his part. The plaintiff will therefore also need to take into account the needs of her children in being able to obtain treatment in the evenings or perhaps on weekends. 17The plaintiff was often visibly upset in the witness box. She presented as a very genuine person who has dealt with adversity with courage and determination. Her return to work and even progress at work are testament to these traits. The various assessments of the plaintiff in Exhibit C demonstrate the high regard in which her superior officers have held her (see for example Exhibit C at pages 38, 77,78,80, 87 and 89). Contributory negligence 18The parties agreed that Sections 5D and 5R of the Civil Liability Act 2002 (the "CLA") are applicable to the defendants' allegation of contributory negligence. 19Motorcycles are notoriously dangerous vehicles to ride. One of the main reasons is that motorists do not see them. Reasonable riders know this. A reasonable rider, in my view, should take steps to make his or her presence on the roadway known to other road users. By the same token, of course, the drivers of motor vehicles are aware that motorcyclists use the roads and are more difficult to see. Drivers must therefore exercise care in keeping a proper look out for motorcyclists. 20The defendant here alleges that the wearing of a camouflage uniform was negligent. I do not agree. It is almost impossible to know the background against which the uniform was set as the motorcycle approached the accident. There is simply not enough evidence for me to address the causation question of whether or not the wearing of a different outfit would have made any difference. 21I do, however, think that the use of a headlight on the motorcycle would have made it significantly more visible. The defendant did not drive through the intersection without stopping. She did, however, simply not see the motorcycle. The use of the headlight, in my view, would have given her (the defendant) a much better chance of seeing the oncoming motorcycle. 22Before developing the argument any further it is necessary for me to decide whether or not the plaintiff's headlight was illuminated. Her evidence was that, during the day, she would not normally turn the headlight on, but she would do so if the weather was such as to affect general visibility. Thus she would turn on the light if it was particularly cloudy or perhaps raining. 23The first defendant said it was a sunny day. The triggers that would have caused the plaintiff to put on her headlight on the day of the accident were not present. On this basis I think I can infer that the plaintiff's headlight was not illuminated. In reaching this conclusion I do not attach any weight to the contents of the police officer's notebook (Exhibit 4). 24In terms of Section 5R I am satisfied that a reasonable person in the position of the plaintiff would have been aware of the value of a headlight in making her vehicle more visible. The plaintiff agreed that she was so aware. In addition, the act of turning on the headlight was a very small burden, in particular compared to the foreseeable risk of harm arising from a motorist not seeing the motorcycle. 25Turning to Section 5D, it is I think now established that the test posed by this section is a "but for" test. The first defendant stated in evidence that she looked in the direction from which the plaintiff had travelled but had not seen a vehicle approaching. This is despite there being a long and flat stretch of roadway. The first defendant did not see the motorcycle until an instant before the collision. She had made her way effectively across three lanes of the highway without being aware of the oncoming vehicle. If the motorcycle had its headlights on it would have been significantly more visible. Although one could not say that there would have been no collision but for the absence of a headlight I think I can conclude that the first defendant's capacity to see the motorcycle would have been significantly increased but for the headlight not being illuminated. 26Accordingly I think the plaintiff was negligent in not using her headlight, in particular when driving on a highway. 27I do not think there is any negligence on the plaintiff's part arising from her apparently not being in a position to take evasive action. The plaintiff was on the Sturt Highway. The defendant was crossing the highway from a minor road. In my view a driver or rider on a main thoroughfare is entitled to assume persons entering the highway will do so with care. A person in the plaintiff's position could not be expected to drive in such a manner that would anticipate vehicles crossing her path at every intersection with the highway. 28The bulk of the negligence must lie with the first defendant. As I have said above, the difficulty of seeing motorcycles is not only apparent to riders but also to drivers. The first defendant did not see a motorcycle that she should have seen. The first defendant drove into an intersection in which her right to proceed was governed by a giveway sign. In my view, contributory negligence should be assessed at 7.5%. Damages 29The plaintiff has claimed damages under the following heads: non-economic loss, past and future economic loss, past and future medical expenses and past and future domestic assistance. 30The assessment of damages is governed by the Motor Accidents Compensation Act 1999 ("the MACA"). The plaintiff, by agreement, exceeds the threshold set by Section 131 and is therefore entitled to non-economic loss. 31Dr Bentivoglio said the plaintiff " sustained horrendous injuries to her person..." (Exhibit B, page 76). I agree. The plaintiff's injuries have affected her physically and mentally and will continue to do so for the rest of her life. Her positive attitude will assist in defeating the psychological trauma she has suffered but the continuing pain and limitation of movement will no doubt lead to significant emotional upset from time to time. In addition, she will need to permanently face the deprivation of her chosen career. The plaintiff also gave evidence about episodes of anger. 32Dr White described her current position in this way: "She is tearful when talking about her experiences. Her sleep is variable. She has some nightmares but cannot recall the detail. Sometimes she is fatigued the next day. She feels that she is able to manage her work but is moody at home. She is often depressed. She is not suicidal. I consider that she has a PTSD and associated depressive disorder." 33The plaintiff has extensive scarring that she finds, quite reasonably, very embarrassing. She tends to cover her scars and, for example, she prefers not to go swimming because the scars are then visible. There are photographs of the scarring commencing at page 92 of Exhibit B. 34There is some suggestion of further surgery to equalise the length of her legs. The inequality appears to have given rise to back pain as well as perhaps some right ankle problems. In evidence I thought the plaintiff was perhaps a little reluctant to have yet more surgery but it does remain a possibility. She is however likely to have the surgery described by Dr Bentivoglio to remove 'hardware'. 35There is general agreement about the plaintiff in the medical reports. The summary given by Associate Professor Jones in his report of 14 February 2011, at page 7, I think is accurate. It recognises the severity of the plaintiff's injuries, how widespread they were and the continuing effects including the relationship of her back pain to the inequality of the length of her legs. Associate Professor Jones also notes that the plaintiff "would not be capable of returning to her previous lifestyle ..." . He adds: "She is understandably distressed by her inability to pursue her career with the Defence Forces ..." . 36According to Dr Cummine (Exhibit 1) the plaintiff's ability "to resume a normal life has been significantly hampered" . 37All of the doctors envisage future treatment. Dr Lewin, a psychiatrist retained by the defendants, suggests a multidisciplinary pain management programme including psychological treatment. He thought that the plaintiff requires "expert assistance with regard to the management of a depressive reaction ..." . 38Taking into account the severity of the plaintiff's injuries, the pain and suffering that she has and will endure, the dramatic effects on her overall life, and in particular on her career aspirations, I think non-economic loss should be assessed at $250,000. 39The plaintiff has had substantial periods off work. However, she has been paid by the RAAF, which does not seek a refund. Accordingly the claim for past economic loss is derived from the plaintiff's inability to advance her career (and therefore receive a higher wage as a MSI) and from her lost opportunity to have been deployed overseas and thereby receive an extra daily allowance. The amounts claimed for these two components are $13,936 and $11,760 respectively. 40The defendants conceded the first amount of $13,936. In relation to the deployment allowance the defendants submitted that there is no certainty that the plaintiff would have been deployed overseas. The plaintiff said that she thought there was a good chance of a deployment but could not say with certainty that she would have been sent overseas. 41Mr Roberts SC, who appeared for the plaintiff with Mr Ryan, agreed that the plaintiff's entitlement should be viewed as a loss of chance. He placed the chance at somewhere between 50% and 100%, but closer to the latter. There is no evidence from any senior officer, or other person from the RAAF, stating the likelihood that the plaintiff would have been sent on an overseas deployment. I do, however, accept that she was keen to go and would have made her best effort to have been selected. I think the loss of chance should be assessed at 50%, translating to $5,880. Total past economic loss is therefore $19,816. 42There is little doubt that the overall opinions expressed by the medical experts are to the effect that the plaintiff is capable of the clerical duties she is now doing and of pursuing a career of a clerical nature. That does not, of course, mean that she does not have a future economic loss. She has been deprived of the advancement that was open to her in the RAAF as well as the financial rewards of deployments and promotion. Even though the general opinion is that she can do clerical work, I have no doubt that she will have periods of time when she will need to take time off for treatment or simply excess pain. The plaintiff is now only 30 years of age. She had hoped to work to age 60 in the military. 43In my view, the plaintiff does have a physical incapacity for work. I have already acknowledged that she can do clerical work but she will not be able to do any clerical work involving extensive physical activity. Most clerical work is, of course, sedentary but the plaintiff has problems with sitting or standing for long periods of time and there may be jobs where these elements are important or required. 44For purposes of Section 126 of the MACA I am satisfied that but for the accident the plaintiff would have remained in the military, gradually advancing in rank and attracting a higher pay as well as the opportunity to serve in specific deployments, some overseas. 45I am also satisfied that the plaintiff would have been subject to the normal vicissitudes of 15%. I note that her evidence relating to overseas deployments described her duties as non-combative. I do not think any such deployments would have increased the level of vicissitudes to which she would otherwise have been exposed. 46The defendants submitted that the plaintiff's energy and devotion to work would ensure that her future economic loss would be minimal. I have no doubt that the plaintiff will always do her best but it is to be recalled that working in the Defence Forces was the plaintiff's ambition and the same desire to achieve may not necessarily be present in a clerical job on the Sunshine Coast. This is evident from the plaintiff's reaction to losing her job. Mr Haywood, her partner, also gave evidence of the disappointment he noticed in the plaintiff when she found out she could no longer remain in the RAAF. 47The defendants relied on the plaintiff's own words in Exhibit 2 to show the limited nature of her disability. This document was an attempt by the plaintiff to retain her job. She was obviously putting her best foot forward as exemplified by these words in the document: "My desired outcome is to continue with my service career as an Airforce Clerk. I have extensive knowlege [sic] of the Defence Force. I believe that I could still be utilised as a hardworking clerk even though I am considered undeployable. I have completed my clerk log books and have recently been awarded my CLK3. I am also close to being promoted to SGT, I have filled all the pre requisites except the residential component of the CPL Promotion course. My reporting has not been affected and I have continued to strive to be the best possible clerk." 48The plaintiff's claim for future economic loss has five components: (a)The difference between her current wage and the wage of a sergeant from the present until her date of termination on 13 December 2013. (b)The difference between her wage as a sergeant from December 2013 to age 60 and her likely wage in the Queensland Civil Service. (c)The lost opportunity to be promoted (valued at $75,000). (d)Her lost superannuation contributions. (e)The annual value of her housing subsidy. 49The plaintiff submitted that by 13 December 2013 she would have been earning $1,187.53 net per week. The defendants accept this figure. 50The plaintiff submitted that her likely wage in the Queensland Public Service would be $660 net per week. This figure is derived from Exhibit J. The defendants did not accept that this will be the level of the plaintiff's income. The defendants submitted that she would be likely to be earning a higher income, more like $70,000 gross, because of her skills and prospects of advancement. 51The plaintiff's claim for the period from the present to the end of 2013 is $7,378. This amount was agreed. 52In relation to the difference between the plaintiff's wage as a sergeant and that she is likely to receive in the public service, it is difficult to reach a specific finding. This is because of the unknown factor of what job will be available to the plaintiff after 2013. As I have said above the plaintiff clearly has a diminished earning capacity. I think the better approach is to take into account her earnings as a sergeant on the basis that it is a wage that necessarily involves the plaintiff being able to perform more than clerical tasks, in particular involving some aspects of physical activity. I think that if I assess this lost capacity at $250 per week for the 27 years from the beginning of 2014 that would achieve a fair reflection of her loss. The total is subject to deferral for two years and a reduction of 15% for vicissitudes. The calculation is therefore $250 x 783 x 0.907 x 0.85 = $150,913.46. 53The defendants submitted that there should be no allowance for the plaintiff's lost opportunity for further promotion. In my view, the plaintiff was committed to advance in her career and the regard with which she was held by her superiors make the likelihood of promotion, but for the accident, very high. It is difficult to know when promotion would have occurred and the precise benefits associated with any promotion. I think an allowance of $50,000 in addition to the already assessed future economic loss is appropriate. 54The total for future economic loss is $208,291.46 ($7,378 + $150,913.46 + $50,000). 55The plaintiff's claim for the lost superannuation contribution is based on 23% of her net wage. This is, of course, significantly higher than the normal 9%. The increase is derived from Exhibit K, in particular at page 4 where the superannuation rates for members of the armed forces are set out. 56The defendants submitted that Section 15C of the CLA, in particular subsection (2), dictated that the rate should be 9% of gross income (or 11% of net income) because this was the "minimum percentage required by law" . 57It was submitted by Mr Wilson, for the defendants, that if the "law" in Section 15C(2) could include the military superannuation rates then it would also include, for example, a contract between a plaintiff and an employer to be paid a higher than normal rate of superannuation benefit. The purpose of the legislation, to lower the amount of claims, would be then defeated. I disagree with this submission. I think the law referred to can only be a statute. In the present case I am satisfied that Sections 4, 10 and 13 of the Military Superannuation and Benefits Act 1991 together with the Military Superannuation and Benefits Trust Deed and Schedule 8 to that Deed all combine to establish the law giving rise to the plaintiff's entitlement for superannuation benefits at a higher level, in her case 23%. 58Accordingly, I think that the plaintiff's lost contribution benefits should be assessed at 23% of her lost future economic loss. Arguably the percentage should be higher because the assessment is being made on the net loss. The plaintiff has, however, claimed the lost benefit at 23% and I do not think it appropriate to exceed the claim. 59The lost superannuation benefit at 23% on future economic loss is $47,907.03. 60The lost annual housing allowance is claimed at $22,546 per annum. This figure is derived from Exhibit C at page 93 (after tax has been deducted). 61The basis for the claim is that the plaintiff, by virtue of her employment in the RAAF is entitled to subsidised housing. Obviously, if not so employed she would need extra income to make up for the lost subsidy. 62The difficulty I have with the claim is that it assumes the plaintiff would live in a certain size house in a certain area. As I understand the claim it is based on the plaintiff living in a three bedroom house in Canberra. 63The nature of the plaintiff's future accommodation is uncertain so that the extent of the lost subsidy must also be imprecise. The weekly equivalent of the plaintiff's claim is $433. 64In my view, the plaintiff has lost the benefit of the subsidy but it would not be fair to the defendant to base it on the current figures. I think an appropriate measure of the loss, taking into account that over the years the types of accommodation enjoyed by the plaintiff and her family might be smaller or in less expensive areas, is $250 per week. 65The absence of a subsidy will only become effective after December 2013. I allow $250 per week for 27 years but deferred for two years. I also think the normal vicissitudes of 15% should apply because the housing subsidy is a product of her employment which is subject to the vicissitudes. The calculation is $250 x 783 x 0.907 x 0.85 = $150,913.46. 66Section 128 of the MACA governs the plaintiff's claim for past domestic assistance. She is subject to the 'six hours per week for six months' threshold. 67Mr Haywood said that for the first 12 months following the accident he did "almost everything" for the plaintiff. She was in a wheelchair for a lot of the time. He helped her with many personal matters as well as taking over the care of the house. He estimated he spent an extra two hours per day plus half a day on the weekends. Since the end of the first year the plaintiff has gradually been able to do more in the home. Mr Haywood said that he currently does about half an hour per day plus three to four hours on the weekend in addition to his normal contribution. 68The defendants submitted that the plaintiff is generally able to do the housework, although she may need more time. In addition, she also spends a good deal of time taking care of her son, thus giving Mr Haywood more time to do the housework. I think these points have some validity, although not to the extent of a conclusion that the plaintiff is fully able to do all the domestic activities. 69I think that for the first year she required substantial assistance due to her being in a wheelchair and the many operative procedures she underwent. I think an allowance of 10 hours per week for 12 months is appropriate. Thereafter, taking into account the matters I have raised above, I think the extent of domestic care that I allow should be reduced to six hours per week. 70The agreed rate for past domestic assistance is $24 per hour. The calculation is as follows: (a)52 x 10 x 24 = $12,480 (b)193 x 6 x 24 = $27,792 71The total for past domestic assistance is $40,272. 72For the future both the plaintiff and Mr Haywood said that they would pay for assistance if they had the money. They would, however, continue to do some chores themselves. The plaintiff unquestionably has a disability for heavier tasks. This is evident from the medical reports. Associate Professor Jones suggested "an hour or two each week" for heavier household chores. Dr Cummine restricted his opinion to a need for handyman work rather than normal domestic assistance. Dr Bentivoglio thought the plaintiff would "benefit by having at least three or four hours domestic assistance per week to do activities she is no longer capable of doing" . Dr Honner envisaged 3 hours per week. Dr Walker did not seem to think there was a need for assistance. 73On balance I am satisfied that the plaintiff does have a continuing need for domestic assistance although it is not to the extent claimed by her. I have no doubt that the plaintiff's husband will continue to help and do many tasks around the home and that the plaintiff will herself also do as much as she can. On the other hand, both the plaintiff and Mr Haywood are likely to be in fulltime employment as well as looking after two children. This will place considerable strain on the plaintiff's physical resources as well as lessen the time when she is able to do housework. It is to be remembered that she will also require continuing treatment into the future. In my view, an allowance of 2.5 hours per week of paid care is appropriate. The agreed rate is $30 per hour. The plaintiff's life expectancy is 57 years. On the 5% tables the calculation is 1003.2 x 75 = $75,240. 74Past out of pocket expenses are agreed at $48,091.35. The plaintiff has claimed $31,500 for future medical expenses. The defendants' submission is $13,000. I think future out of pocket expenses should be awarded as follows: (a)Orthotics: $4,000 (b)Physiotherapy: $5,000 (c)Counselling and psychiatric treatment: $7,500 (d)Hardware surgery: $6,800 (e)Medication: $5,000. 75The total for future out of pocket expenses is $28,300. 76A summary of the damages that I have awarded is as follows: Non-economic loss $250,000.00 Past economic loss $19,816.00 Future economic loss $208,291.46 Lost superannuation benefits $47,907.03 Lost housing subsidy $150,913.46 Past care $40,272.00 Future care $75,240.00 Out of pocket expenses $48,091.35 Future out of pocket expenses $28,300.00 Total $868,831.30 77The above total needs to be reduced to reflect my finding of contributory negligence. The resulting figure is $803,668.96. 78I make the following orders: (a)Verdict and judgment for the plaintiff in the sum of $803,668.96. (b)The defendants are to pay the plaintiff's costs of the proceedings. 79I will hear the parties on any variation to the costs order arising from offers of compromise that may have been served. ********** 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. Decision last updated: 17 November 2011 * Policy and Procedures * Accessibility * Contact Us * Website last updated: 21 June 2023