District Court New South Wales Medium Neutral Citation: Fitzsimmons v O'Donnell [2011] NSWDC 197 Hearing dates: 7/12/11, 8/12/11 Decision date: 08 December 2011 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraph 46 Catchwords: Personal injury Legislation Cited: Motor Accident Compensation Act 1999 Social Security Act 1991 (Cth) Cases Cited: Penrith City Council v Parkes [2004] NSWCA 201 Rabay v Bristow [2005] NSWCA 199 Category: Principal judgment Parties: Kylie Fitzsimmons (Plaintiff) Des O'Donnell (Defendant) Representation: A Canceri (Plaintiff) J Gracie (Defendant) CMC Lawyers (Plaintiff) Rankin Nathan Lawyers (Defendant) File Number(s): 2010/00392478 Publication restriction: No Judgment 1On 9 August 2008 the train from Kiama to Wollongong did not run. It was replaced by a bus service. The plaintiff and her daughter thus found themselves on a bus on their journey to Wollongong Railway Station. As the bus approached the station, but before the scheduled stop, the driver met the request of a friend who he allowed to disembark at his convenience. The passengers on the bus, thinking that they had reached their destination, stood up, only to be met by the sudden departure of the bus. The plaintiff was thrown backward striking her lower left side on a seat and then falling to the ground. 2The bus driver's breach of duty of care to the plaintiff is admitted. The plaintiff now seeks damages arising from the injuries she suffered. 3The plaintiff's claim is governed by the Motor Accident Compensation Act 1999 ("the MACA"). The plaintiff does not meet the threshold set by Section 131. She is therefore not entitled to non-economic loss. The plaintiff seeks damages under the following heads: past and future medical expenses, past and future economic loss and past and future domestic assistance. 4The defendant challenges the extent of every claim under the above heads. 5The plaintiff's claim is extensive, totalling some $450,000. The evidence did not come close to justifying this amount. This is not to say, however, that the plaintiff was not an honest or credible witness. It is merely an observation arising from the size of the claim. 6I did think the plaintiff did her best to give evidence honestly. Often it was this very frankness that blunted the expansion of her claim. 7When the accident occurred the plaintiff was receiving a Disability and Support pension. This arose from a mental condition, which manifested as bouts of severe depression and continuing anxiety. The Statement of Particulars lists mental conditions as consequences of the accident. These allegations were appropriately not pressed. 8In addition to her depression, but perhaps related or causative of it, the plaintiff has a history of drug and alcohol abuse. She seems to have surmounted this abuse and no longer smokes cannabis or drinks alcohol. 9The plaintiff was born in 1968. She left school in Year 10. Almost her entire work history is as a cleaner at various establishments. I say almost because from 2006 she distributed pamphlets for a cash sum of $100 per week. This was actually a family enterprise that she undertook with her son and daughter, but she seems to have done the bulk of the work. The plaintiff's children are Luke and Samantha Feeney. They are now aged 22 and 24 respectively. 10The plaintiff's assorted jobs as a cleaner were never on a fulltime basis. She worked generally on a casual or relief basis. Her last cleaning job prior to the accident was in 2006 when she seems to have been earning about $200 per week after tax. 11The plaintiff's mother died when the plaintiff was very young. She is obviously close to her father who lives nearby and who she sees on a daily basis. Her father is now quite unwell and requires a good deal of care. This is provided by the plaintiff and her son, Luke. The latter actually receives a carer's allowance of $100 per fortnight for his assistance to his grandfather. He is also receiving a carer's pension of approximately $640 per fortnight to assist his mother. 12I raised with the parties the question of whether the carer's pension should be taken into account in the consideration of the plaintiff's claim for gratuitous domestic assistance. The argument would be that if the carer was receiving payment for his services then the assistance could not be regarded as gratuitous. Learned counsel for the defendant, after considering the matter, conceded that having regard to the terms of the Social Security Act 1991 (Cth) that the pension should be ignored in considering the question of domestic assistance. In addition to the points made by counsel it also seemed to me that Mr Feeney's entitlement to the pension arose from the plaintiff's mental disability. 13At the time of the plaintiff's accident Mr Feeney was living with his mother but was otherwise unengaged. He was not hampered by the burdens of employment or even domestic chores at home. His daily activities seem to have been dominated by a late start, around 10am, followed by watching television or perhaps entertaining his dogs. The plaintiff was entirely responsible for the domestic management of the home. This is a three bedroom cottage with a back and front yard. There is a bathroom and separate toilet, a kitchen, lounge and dining room. 14Other than the distribution of pamphlets the plaintiff was not working when she had her accident. In May 2007 she had commenced a day programme at Kedesh Rehabilitation Service to assist her to overcome her addiction to drugs and alcohol. The plaintiff harboured a desire to return to work in the future but had no definite plans or targets. She was seeing a psychiatrist, Dr Heiner, every six weeks. She continues to do so. She remains on medication to assist with her anxiety. 15Following the accident on the bus the plaintiff was in a good deal of pain in particular along her spine. She also found breathing difficult. She attended the Emergency Department at Wollongong Hospital but the prospective wait was too long. Her father picked her up and took her to the Kiama Medical Centre. Unfortunately, being a Saturday, the medical centre had closed. The plaintiff remained at home, in a good deal of pain and distress, until the Monday when she saw her local general practitioner, Dr Puris. The doctor's notes are Exhibit J. They disclose a number of visits arising from the accident through the balance of 2008 but then only one visit per year up to the present. 16X-Rays revealed a fracture to the plaintiff's 10 th rib. Her main and continuing complaint arises from an injury to her low back. 17The plaintiff takes some medication, usually Panadol Extra or Panadol Forte. She needs a prescription for the latter. The last prescription was provided about two months ago. The plaintiff also takes a drug called Mobic. 18The plaintiff said that her breathing difficulties continued for about two months. Her remaining problem is with her low back. The pain is constant but more severe at times. She finds it difficult to bend and twist and she cannot sit or stand for longer than about 15 minutes. I noticed, and remarked to the parties, that I had observed her fidgeting, as if uncomfortable, while she sat in the witness box. The plaintiff was not cross-examined to dispel this observation. 19The plaintiff says that as a result of her low back injury she continues to receive domestic assistance and will need it for the balance of her life. She also says that but for the accident she would have returned to cleaning work and continued in that occupation to age 67. 20The plaintiff's medical evidence, from an orthopaedic point of view, is lamentably out of date. An argument arising from Section 111 of the MACA, to suggest the plaintiff was effectively prevented from relying on up to date reports, was abandoned. The orthopaedic opinion relied upon by the defendant is simply lamentable. The defendant relies on two reports of a Dr Blue (Exhibit 2). These reports are replete with rigid and extreme statements. For example: "She has fully recovered physically from the incident of 9 August 2008 and any symptoms of a physical nature no longer could relate to this incident." "The incident in question has in no way adversely affected her physical requirements of living." "The incident has in no way totally or even partially incapacitated her for any employment for which she is qualified by way of education or experience." "Not only does she not require domestic assistance, she never has with reference to the incident of 9 August 2008." 21Dr Blue's examination commenced with him confirming that the plaintiff's appearance matched that in her driver's licence. Why this was necessary is not explained. He then observed the following: "She does display widespread lumbar tenderness and confirms that the site of her leg pain is her upper thigh to mid thigh level posteriorly and certainly not of a radicular pattern." He also noted that "she does display a very restricted range of lumbar movement with only 30 degrees of lumbar flexion and 10 degrees of extension; however her range of spinal rotation is normal at 90 degrees in each direction as is her range of lumbar tilt at 20 degrees in each direction with their being no dysmetria." 22Having made these observations the doctor makes the quantum leap to the conclusions of the type I have set out above. He does not, however, give any reason for the restriction of movement or complaints of pain. He does not, for example, suggest the plaintiff is exaggerating or malingering. Perhaps these conditions can be inferred; however, if they were the basis for his opinion then I would have expected them to have been clearly stated. While not abandoning Dr Blue, counsel for the defendant submitted there was more reliable medical evidence. I do not accept the opinion of Dr Blue. 23Although I have rejected Dr Blue's opinion I do recognise that the opinions relied upon by the plaintiff do not describe an overly serious condition. The most recent report is from Dr Maxwell (Exhibit F) who in November 2009 came to the following conclusion: "Kylie Fitzsimmons gives a history of falling onto the right side of her back. She was complaining of some discomfort in her chest. X-rays suggested she may have sustained a fracture of the right 10 th rib. The pain in her chest settled fairly rapidly. She now has no symptoms in relation to this area. She has continued to complain mainly of lower back discomfort which she says occasionally radiates up her spine to her neck. It is probable that she sustained soft tissue contusions in the fall to her lumbar and thoracic spines. Although she has a slightly decreased range of movement of her thoracolumbar spine there is no other evidence of a significant continuing injury." 24Dr Conrad, who gave his opinion in July 2009, accepted the plaintiff's injury to her back but suggested an MRI scan of the lumbar spine to rule out a disc prolapse. This does not seem to have occurred. Dr Conrad's report is Exhibit C. The best I can do, in respect of the plaintiff's lower back, is to accept that she suffered a soft tissue injury. Dr Conrad, in his supplementary report, noted that "there is no evidence of pre-existing degenerative disease ..." so that the plaintiff's back condition appears to be fully attributable to the accident. 25I think I can also accept that the injury has not yet resolved on the basis that I accept the plaintiff's evidence about her continuing problems. I cannot, however, reach a conclusion that the plaintiff will be forever impaired by the injury. Because it is soft tissue in nature the possibility of resolution must be considered as realistic. 26In relation to employment, Dr Maxwell, presumably because the issue fell outside the purpose of his assessment, makes no comment. Dr Conrad, in July 2009, felt that the plaintiff was not fit for fulltime cleaning work but that "she may be able to do about 12 hours per week of light cleaning work in a position where she is able to stand or sit at will and not lift anything more than five kilograms in weight and not do repetitive lifting or bending." 27Dr Conrad's proposed regime for home care was that the plaintiff "might need about six hours per week of Home Care Assistance" . He gives no analysis for the basis of this conclusion. He does not record any history of the plaintiff's circumstances (the size and constituents of her house and garden for example) nor does he define the activities that the plaintiff cannot do. 28The plaintiff's continuing anxiety problems suggest that her return to work between the accident and the present as a cleaner would not necessarily have occurred but for the accident. I do accept that the plaintiff did have a general intention to return to work as a cleaner and that her injuries have inhibited her capacity to do so. Lack of capacity is not, however, the sole test for economic loss. The incapacity must also have been productive of economic loss ( Rabay v Bristow [2005] NSWCA 199 at paragraph 73). I cannot see any past economic loss beyond that arising from the plaintiff's inability to prepare and distribute pamphlets. The defendant conceded that this loss should be accepted for only one year. I think the plaintiff's inability to do this work continues to the present day. Accordingly I allow past economic loss of $100 per week for 174 weeks. This is $17,400. 29There was no evidence to suggest that superannuation contributions were made on behalf of the plaintiff in respect of the pamphlet work. Accordingly I do not allow any past lost superannuation benefits. 30In relation to the future I think the position is somewhat different. The plaintiff is now aged 43 leaving her with about 24 years of the normal working life. I am satisfied, for purposes of Section 126 of the MACA, that but for the accident the plaintiff would have returned to cleaning work probably on a part-time basis but with substantial periods of unemployment or perhaps work with limited hours. In addition the plaintiff's pension would restrict her freedom to work at large. I think this is a case in which a buffer is appropriate. I note this approach is available to meet the requirements of Section 126 ( Penrith City Council v Parkes [2004] NSWCA 201). 31The plaintiff has not totally lost her capacity to work, as stated by Dr Conrad, and the nature of her injuries (soft tissue) means that she will not necessarily be excluded from work over the next 24 years. The above factors, when brought together, suggest a very modest buffer. I allow $10,000 including any lost superannuation benefits. 32In relation to care, the plaintiff's son, Luke, gave evidence about the length of time he spent carrying out certain tasks. Some of his assessments were vigorously challenged, even reaching the assertion that it was "stupid" to suggest that it might take five minutes to prepare potatoes for a roast dinner. I thought the cross-examination suggesting stupidity and ridiculousness was not borne out by the evidence and that many of Mr Feeney's estimates were both reasonable and consistent with commonsense. 33Where I find Mr Feeney's assessments to be unreliable, or at least not productive of assessable damage, is the frequency of certain tasks, such as the daily cleaning and the daily use of the washing machine. The necessity to vacuum every day was apparently produced by the shedding of hair by the two resident dogs. The habits of these dogs, a " Staffy " and a Cattle Dog, which seem to spend a good deal of time indoors (but in particular through the night), should not in my view give rise to an assessment that the daily cleaning was necessary or more relevantly, meeting the reasonable needs of the plaintiff. 34The defendant submitted that although the plaintiff may have had a need for domestic assistance immediately after the accident this need would not have continued for more than six months. Once the plaintiff was breathing freely (after about two months) her care requirements would not have exceeded six hours per week. The defendant submitted that the daily tasks performed by Luke should not be regarded as reasonable, therefore leaving about two hours per week of general cleaning and perhaps an hour per week for the lawns and garden. 35The plaintiff's submission was that she should be regarded as having received 10 hours of assistance per week for the whole period to the present and that this should continue, but at six hours per week, for the rest of her expected life. The six hours formula is based on the views of Dr Conrad. 36The difficulty I have with the defendant's approach is that it does not take into account assistance with items such as cooking and washing. These do not, of themselves, occupy a great deal of time but taken with the other activities do assist in allowing the plaintiff to exceed the six hour per week threshold. 37I am satisfied that the plaintiff required a greater deal of care immediately after the accident and that this has gradually decreased as her condition has improved and she has been able to contribute more to the running of the house. I do not, however, think that the plaintiff continues to require care exceeding six hours per week at the present time. It follows that I also do not accept the threshold has been exceeded for the future. 38I have pointed out above some difficulties with Dr Conrad's opinion for future care. There is another difficulty. Dr Conrad's assessment assumes the plaintiff does not have any assistance. It is the very essence of a claim for gratuitous domestic assistance that it will be provided by another person. In other words, the plaintiff is seeking damages in respect of the assistance of a person likely to be present and to help her. This is to be distinguished from a claim for paid care. Such a claim was originally made by the plaintiff but specifically abandoned. 39I think the appropriate award for past care should be based on the following: 10 hours per week for three months followed by six hours per week for a further 21 months. This allows the plaintiff two years of domestic assistance, which I will allow at an averaged rate of $24 per hour. Taken on a weekly basis the calculation is as follows: (12 x 10 x 24) + (92 x 6 x 24) = $16,128. 40In relation to past out of pocket expenses it was agreed that the plaintiff has received $412.60 in services paid for by Medicare. In addition the insurer has made payments under Section 83 of the MACA totalling $150.15. The plaintiff seeks a further $1720 in respect of medication at $10 per week for the last 172 weeks. Her evidence was that she pays about $8 or $9 per week for a packet of Panadol Extra. In addition, she buys a tube of Voltaren Gel for $12 every three to six months. She also has the occasional prescription for Panadeine Forte. She estimated, putting aside her anxiety medication, that she spends about $10 per week on medication. This assessment was not challenged and I allow it. Total out of pocket expenses are therefore $2,282.75. 41The plaintiff has claimed $23,760 for future medical treatment. This is made up of medication for the rest of her life, six episodes of physiotherapy a year and various consultations with a general practitioner. The claim is based on $25 per week for the balance of the plaintiff's life expectancy of 45 years. 42The defendant's submission is no more than $500. 43I could not conclude that the plaintiff will require medication, or any other treatment, for the balance of her life. She has not had physiotherapy since 2008 although she continues to do the exercises recommended by the physiotherapist. In my view I should allow the $10 per week in medication for the next 10 years together with an extra $500 for occasional visits to the general practitioner. On the 5% tables the resulting total is $4,629. 44A summary of the damages I have allowed is as follows: Past economic loss $17,400.00 Future economic loss including superannuation $10,000.00 Out of pocket expenses $2,282.75 Future medical expenses $4,629.00 Past care $16,128.00 Total $50,439.75 45The Section 83 expenses of $150.15 must be deducted from the above total. 46Accordingly I make the following orders: (a)Verdict and judgment for the plaintiff in the sum of $50,289.60. (b)The defendant is to pay the plaintiff's costs of the proceedings. 47I will hear the parties on any amendment to the above costs order arising from the CARS process or any Offers of Compromise. ********** 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: 09 December 2011