District Court New South Wales Medium Neutral Citation: Hurst v Tongia [2013] NSWDC 55 Hearing dates: 14 & 15.03.2013 & 24.04.2013 Decision date: 07 May 2013 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the plaintiff in the amount of $577,348; 2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; 3.The exhibits may be returned; 4.Liberty to apply on 7 days notice if further orders are required; [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - motor vehicle accident - negligence admitted - whether contributory negligence on the part of the plaintiff; DAMAGES - assessment of claimed heads of damage Legislation Cited: Evidence Act 1995, s 60 Motor Accidents Compensation Act 1999, s 111, s 136, s 141B Cases Cited: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Miller v Galderesi [2009] NSWCA 353 Category: Principal judgment Parties: Tracy Anne Hurst (Plaintiff) Harry Tongia (Defendant) Representation: Ms I Ryan (Plaintiff) Mr D Wilson (Defendant) Brydens (Plaintiff) Hunt & Hunt (Defendant) File Number(s): 2010/101211 Publication restriction: None Judgment Table of Contents Nature of case [1] Issues [2] Facts [3] - [45] Plaintiff's background circumstances [4] - [5] Accident details [6] Injuries and initial treatment [7] - [10] Medical assessments & further treatment [11] - [34] Disabilities [35] - [43] Economic effects [44] Mitigation [45] Alleged contributory negligence [46] - [47] Assessment of damages [48] - [127] Life span [49] Past economic loss [50] - [66] Past loss of superannuation [67] - [68] Future loss of earning capacity [69] - [79] Future loss of superannuation [80] - [81] Past domestic assistance [82] - [114] Future domestic assistance [115] - [120] Future out-of-pocket expenses [121] - [125] Past out-of-pocket expenses [126] Summary of damages assessment [127] Disposition [128] Costs [129] Orders [130] Nature of case 1The plaintiff, Tracy Anne Hurst, was injured in a motor vehicle accident that occurred at about 9.15am on Sunday 18 February 2007. At that time her vehicle had broken down and had become stationary on the edge of the Great Western Highway at Colyton, NSW. Before the plaintiff could alight from her stationary vehicle, another vehicle travelling in the same direction, and driven by Harry Tongia, the defendant, collided with the rear of her stationary vehicle with considerable force. Issues 2The defendant admitted that the collision was due to his negligence. A defence of contributory negligence was pleaded. The damages requiring assessment were limited to past and future economic loss, related superannuation losses, past and future domestic assistance, and past and future out-of-pocket expenses. Facts 3In the paragraphs that follow I set out my findings of fact concerning the plaintiff's background circumstances, the details of the accident, and the effects of the accident on the plaintiff. In my consideration of the evidence to arrive at my findings of fact, I have concluded that the plaintiff was an entirely credible and reliable witness who gave her evidence carefully and truthfully. Plaintiff's background circumstances 4The plaintiff was born in 1967. She is married with 4 children ranging in ages between 24 and 20 years. She had left high school at the beginning of Year 11. Since 1983 she has spent her entire working life in the supermarket retail industry in various full-time and part-time positions, depending on her prevailing family arrangements. Before the injury in question she was in good health and without any disabilities or work restrictions. Before the accident, she had recovered from a 2004 work related injury to her right shoulder, which occurred whilst she had been lifting a carton of goods at work. 5At the time of the accident, and since May 2001, apart from a short break, the plaintiff was working for Woolworths as a night packer of supermarket shelves. Before the accident the plaintiff had intended to continue working until at least the age of 67 years, if not longer. She had incentive to do so as she and her husband had mortgage commitments to fulfil. Accident details 6In the collision the plaintiff was thrown forward in her vehicle. The plaintiff was unrestrained at that time because she was in the process of attending to her children who were passengers in her vehicle. Initially, at the scene, the plaintiff had thought that her vehicle had become stationary because it had run out of petrol and she gave that account contemporaneous to the events. Subsequent examination of the vehicle revealed that it still retained half a tank of petrol but had developed a mechanical fault which led to vehicular breakdown. The collision with the defendant's vehicle caused a major deformity to the rear of the plaintiff's vehicle. Injuries and initial treatment 7In the course of the jolting action of the collision, the plaintiff was initially aware of having hit her right arm and elbow on the driver's side door of her vehicle. She also felt shaken and shocked. After she helped her children get out of the vehicle, she felt sharp stabbing-like pain across her lower back. She also felt immediate neck and shoulder pains. She experienced panic at that time because she perceived that she could not feel her legs. 8An ambulance attended at the accident scene. The ambulance report contains a diagrammatic representation of the plaintiff's pain, which was reported as being located in the region of the lumbar spine below T12, and in the neck on the right side of the mid-line at the root of the shoulder. The ambulance report noted that the plaintiff had complained of pain in the lumbar spine on active movement of her legs. She was provided with a neck brace. 9After the plaintiff was assessed by the ambulance personnel, she was given morphine and maxalon, and then transported to Nepean Hospital, where she stayed for several hours whilst her injuries were examined, observed and investigated. At hospital she was able to feel her legs again. During her time at hospital she was very scared and uncertain as to what was happening to her. At hospital, the plaintiff was diagnosed as having sustained a neck sprain/strain. Subsequently, her neck and back pains have continued to a variable extent, depending upon her level of physical activity. 10Before arriving at my findings as to the nature of the plaintiff's ongoing disabilities it is necessary to review the medical evidence as to assessments and further treatment. Medical assessments and further treatment 11On 22 February 2007, two days after the accident, and following her discharge from the Nepean Hospital, the plaintiff consulted her general practitioner complaining of neck and bilateral shoulder pains with tenderness in the left lower ribs. She subsequently gave her general practitioner a history of suffering sleep disturbance and some interpersonal issues with her son following the accident. In the weeks that followed the accident she presented with symptoms of tearfulness and anxiety, fatigue, irritability, neck and shoulder muscle pain accompanied by reduced movements. A diagnosis was made of whiplash injury due to the motor vehicle accident. 12On 7 March 2007, the plaintiff consulted the Greater West Physiotherapy Centre for treatment of pain in the region of her neck, shoulders, upper and lower back, and headaches. Physiotherapy was provided to her for restricted neck, mid and lower back movements, but the benefits of this treatment were impeded by the plaintiff's depression. The plaintiff received physiotherapy on a total of 48 occasions until 2 July 2009. The physiotherapist recommended that the plaintiff see practitioners skilled in pain management and depression as she believed the current psychological treatments were assisting the plaintiff to manage her pain. 13The plaintiff's general practitioner referred her to Ms Sharon McDermott, a clinical psychologist. Ms McDermott identified the plaintiff's symptoms of trauma, hypervigilance, anxiety, sleep difficulties, concentration and short term memory impairment, some ongoing pain and work difficulties. Ms McDermott gave the plaintiff cognitive behavioural therapy and some anxiety and pain management strategies. Ms McDermott saw the plaintiff on some 17 occasions between 17 April 2007 and 7 July 2010 for treatment of a post-traumatic stress condition. Ms McDermott noted that the plaintiff still had difficulties with domestic activities and some work tasks. In her opinion, the plaintiff has been left with chronic pain syndrome characterised by chronic anxiety, depression, anger, pain, and a changed lifestyle as a result. 14On 3 October 2007, at the request of the solicitor for the defendant, the plaintiff was examined by Dr John Stephen a consultant orthopaedic surgeon. Dr Stephen's report of the same date made no reference to, and did not acknowledge, the Expert Witness Code. No objection was taken to the tender of the report on account of that omission. Dr Stephen made a diagnosis of non-specific mechanical low lumbar back pain and cervical pain, without evidence of radiculopathy in any of the limbs. He related her injuries to the accident in question. At the time of his examination Dr Stephen thought that there would be no long-term effects on the plaintiff's earning capacity. 15On 20 March 2008, at the request of her solicitors, the plaintiff was examined by Mr Gerard Glancey a consulting clinical psychologist. The assessment of the plaintiff by Mr Glancey was that the plaintiff had developed an emotional and mental disturbance in association with the accident. This was associated with broken sleep, lethargy, mood disturbance characterised by irritability, unreasonable temper, anxiety and depression. Mr Glancey thought that the plaintiff's symptoms were maintained by her chronic pain. Mr Glancey's diagnosis was of a Major Depressive Disorder requiring antidepressant medication. 16On 18 March 2008, at the request of the Motor Accidents Authority, the plaintiff underwent a MAS assessment by Dr Richard Crane, a consultant specialist in physical medicine. He considered that the plaintiff had suffered musculo-ligamentous strains to the cervico-thoraco spine and the thoraco-lumbar spine, as well as soft tissue injury to both shoulders. 17On 15 April 2008, at the request of her solicitors, the plaintiff was examined by Dr Max Ellis, an orthopaedic surgeon. Dr Ellis stated that it was his impression that the plaintiff had suffered a musculo-ligamentous contusion, and aggravation of degenerative change in her neck and back, with referred pain to the shoulders. He was also of the impression that there were secondary referred pains from the back to the hips. 18On 19 June 2008, at the request of the Motor Accidents Authority, the plaintiff underwent a MAS assessment by Dr Norman Rose, a consultant psychiatrist. Dr Rose considered the plaintiff's complaint of depression. He found no evidence of a psychiatric illness but he recorded some past anxiety issues and some memory difficulties. He did not have any psychological reports available for his consideration at the time of his examination. He accepted that for a time following the accident the plaintiff had become mildly anxious and depressed and that the psychological treatment she had received had been effective. 19On 28 August 2009, at the request of her solicitors, the plaintiff was re-assessed by Dr Ellis, who re-iterated his earlier impression, but added that secondary to the back injury, the plaintiff was now experiencing referred pain to both thighs and knees. 20In October 2009, the plaintiff saw Dr Charles Ong, a general practitioner, for symptoms of recurrent difficulties at work, depression, tearfulness and sleep problems. Dr Ong reported to Ms McDermott that he trialled the plaintiff on Cymbalta, which I infer from the circumstances, to be a psychoactive drug. 21On 3 November 2009, the solicitor for the defendant obtained a supplementary report from Dr Stephen, who did not re-examine or see the plaintiff again for the purpose of preparing that supplementary report. Apart from commenting on some other reports that were not available to him at the time of his earlier examination of the plaintiff, Dr Stephen took issue with Dr Ellis' estimation of the degree of the plaintiff's permanent impairment, a matter that does not go to any fact in issue in the proceedings. Dr Stephen's commentary did not acknowledge the Expert Witness Code. No objection was taken by the plaintiff to the tender of this supplementary report. 22On 20 May 2010, the plaintiff was re-assessed by Mr Glancey. He elicited a history from the plaintiff of continuing pain, tensions with family relationships, and a reiteration of the history of problems he had elicited on his first consultation with the plaintiff in March 2008, and additional concentration and memory problems. Mr Glancey suggested the diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought that the stresses of litigation were playing a part in the maintenance of the plaintiff's underlying psychological symptoms. 23On 26 October 2010, at the request of her solicitors, the plaintiff was re-assessed by Dr Ellis, who again re-iterated his earlier impressions, but added that the plaintiff was now experiencing consequential referred pains from the neck and brachial plexus, and headaches. 24On 28 October 2010, at the request of Dr Ong, a general practitioner, the plaintiff underwent unstated radiological imaging of her lumbosacral spine that revealed some mild facet joint hypertrophy in the lower lumbar spine. 25On 10 November 2010, at the request of her general practitioner, the plaintiff underwent a radiological bone scan of the hip regions. This was reported as showing enthesopathy or inflammation of the right gluteal area and degenerative arthritis of the hips. There were no significant active findings concerning lumbar facet joint arthritis or other abnormalities. 26On 15 March 2011, at the request of her general practitioner, the plaintiff underwent dynamic MRI imaging of the lumbar spine, which was reported as showing early signs of disc degeneration and minor disc herniations occurring at the levels of L2-3 and L3-4 with extension movements. 27On 4 April 2011, the plaintiff underwent unspecified radiological imaging of her cervical and thoracic spines, and of her pelvis. The examining radiologist concluded that there was mild degenerative cervical spondylosis with reversal of the cervical curve, minimal scoliosis and degenerative spondylosis in the thoracic spine, normal sacro-iliac joints and minimal osteoarthritis affecting both hips. 28On 14 April 2011, the plaintiff's general practitioner provided the plaintiff with a certificate stating that the plaintiff was resigning from her work because of her back problem. 29On 4 May 2011, at the request of the solicitor for the defendant, the plaintiff was re-assessed by Dr Stephen. His report of that consultation acknowledged the Expert Witness Code. Dr Stephen reviewed with the plaintiff the events of the previous three and-a-half years when he had previously examined her. He noted her ongoing intermittent complaints of headaches, stress, neck and back pain, shoulder pains, and her changed employment situation. Dr Stephen also reviewed the radiological imaging of the plaintiff's spine at all levels. He concluded a diagnosis that the plaintiff's cervical symptoms had incompletely settled and that her lumbar complaints increased when she was working longer hours. He stated that the plaintiff proved herself incapable of working longer shifts. He stated that a programme should be instituted to find the plaintiff suitable long term duties of a part-time nature with restrictions on lifting, repeated bending, twisting and prolonged work in confined spaces. His report stated that he had recorded a history of ongoing low back pain which led to the plaintiff's resignation from her employment. 30On 10 May 2011, at the request of her solicitors, the plaintiff was again re-examined by Dr Ellis, who again re-iterated his earlier expressed impressions, and added the conclusion that the plaintiff was permanently unfit for physically demanding work requiring repeated bending and heavy lifting, with minimal chances of re-employment. 31On 21 July 2011, the plaintiff underwent a third psychological assessment by Mr Glancey. At that time he noted a history of ongoing pain and work difficulties that led the plaintiff to retire from her work. He noted the plaintiff's ongoing symptoms of a physical and psychological nature, but also noted some improvement of the psychological problems after she had ceased work. Mr Glancey was of the opinion that the anxiety and depressive disturbances previously experienced by the plaintiff had resolved and she was without psychological sequelae from the accident in question. He predicted a positive prognosis for continuing adjustment to her pains and physical restrictions. 32On 20 June 2012, Dr Stephen provided what was described as a supplementary report to the solicitor for the defendant. It was not clear from this supplementary report as to whether he had re-examined the plaintiff in 2012 for the purpose of providing that report. Dr Stephen stated there were no inconsistencies in the plaintiff's presentation. He noted that the plaintiff's neck pains were worsened when she was emotionally stressed. Dr Stephen placed lifting and other restrictions on the plaintiff's work activities. His commentary was qualified because he had not been provided with other available materials comprising relevant medical and allied reports. 33On 16 February 2013, the plaintiff underwent a fourth psychological assessment by Mr Glancey. At that time he noted a history of a relapse of the plaintiff's mood disturbance, with the potential for irritability and temper. Mr Glancey noted the presence of stresses involving the plaintiff's son and the death of her grandfather in January 2013, which he described as an Adjustment Disorder with Mixed Anxiety and Depressed Mood related to those stressors, and not from the effects of the motor vehicle accident, which he considered that she had adjusted to, despite her ongoing symptoms of chronic pain, which she appears to have grown to accept. 34The plaintiff has had chiropractic treatment of her spine from time to time but no historical or opinion reports were tendered in relation to that treatment, its purpose and its effect. Disabilities 35As I consider the plaintiff to be a truthful witness, I am satisfied that I should accept her accounts of her injuries and their effects as summarised in the various medical reports that were tendered. Accordingly, in addition to the plaintiff's oral evidence, I propose to draw upon the medical reports for evidence of the plaintiff's early post-injury difficulties, her treatment and her ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. My findings on those matters follow. 36Immediately after the accident the plaintiff experienced difficulty sleeping. This was because of the pains she experienced in her neck and lumbar spine, which she described as a squeezing sensation. She has developed severe pains in her neck, shoulders and back, especially with movement, as well as anxiety. 37The plaintiff continued to suffer neck, shoulder and back pains, which at times gave her a stabbing sensation. Her anxiety continued for a considerable period and she also developed depression due to her pain, altered sleeping and her changed life circumstances, which placed strain on family relationships, and because of her difficulty coping with the physical requirements of her work and domestic activities. Her accident-related complaints have fluctuated in intensity, depending on her level of activity. She has occasion to take medication although she found some medications counter-productive. 38The plaintiff's domestic and leisure pursuits have been adversely affected by her accident-related symptoms. In October 2008 she found that her symptoms increased due to the requirements of her work, in which she was called upon to carry out a greater level of physical work normally carried out by her manager. 39Although the plaintiff and her husband entered into a vendor-financed mortgage arrangement in 2009, which provided her with the financial incentive to work, including to take on more hours and greater responsibilities, she found she could not continue in her work, principally due to back pain and related restrictions. 40The plaintiff has ongoing difficulty with tasks involving lifting, bending, carrying and using her hands at or above shoulder height, such as hanging out washing. She has needed, and continues to need, domestic assistance. She has assumed limited responsibilities in assisting with the care of her grandchildren to enable their parents to work. She finds difficulty with some of the physical tasks associated with those activities, including lifting her grandchildren. 41The plaintiff's post-traumatic psychological symptoms included anxiety, hypervigilance whilst driving, sleep and concentration difficulties and short-term memory impairment, shortness of temper, frustration, a loss of sense of control, distress and depression, and these were also related to the plaintiff's ongoing physical complaints. The plaintiff committed herself to the treatment provided by her treating psychologist and complied with that treatment regime, which has lessened the intensity of her symptoms. 42In late 2012, and in early 2013, the plaintiff suffered bereavement in her family and she had some concerns over the health of one of her children. Those events proved to be significant and stressors for her, but those additional stresses seem to have been of relatively short-lived duration and have no significant bearing on these proceedings. 43The plaintiff's physical problems of neck, back and referred shoulder pain, are aggravated by maintaining sustained positions and using her arms above shoulder level. These problems are also related to the plaintiff's experience of occipital headaches. The plaintiff also continues to experience referred pain in the hips, and continues to experience painful and restricted movements in these areas. She also has difficulty standing and sitting for prolonged periods due to her back pain. These matters continue to adversely affect the plaintiff's ability to carry out her pre-injury work and domestic duties. Economic effects 44As a result of her injuries the plaintiff had some months off work. On resuming work she found she had to decline an offer to work full-time in January 2008. In October 2010 she resigned her work due to an inability to physically cope with the duties required of her. At present she feels she cannot return to her pre-accident work. I shall return to an analysis of the history of the plaintiff's work absences in considering her claim for economic loss. Mitigation 45The plaintiff has an obligation to mitigate her damage: s 136 of the MAC Act. The defendant did not suggest that there had been any relevant failure on the part of the plaintiff to fulfil that requirement. Alleged contributory negligence 46The defendant pleaded the following allegations of contributory negligence: (a)Failure to ensure sufficient fuel in her motor vehicle whilst driving on Great Western Highway. (b)Failure to maintain her motor vehicle in a roadworthy state so as to avoid stopping her vehicle on a highway. (c)Failure to obtain fuel for her vehicle at the nearest petrol station in time so as to avoid her vehicle breakdown on a highway. 47There was no evidence called by the defendant, or elicited from the plaintiff, to support any of those allegations. Once the plaintiff gave her evidence to the effect that her vehicle had not run out of petrol but had broken down, the defence of contributory negligence was not further pursued. Accordingly, that defence, for which the defendant carried the onus of proof, must fail. Assessment of damages 48In the paragraphs that follow, after identifying the plaintiff's probable statistical life span, I set out my assessment of the plaintiff's entitlement to damages. Life span 49In assessing the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At age 46 years, the plaintiff has a probable median statistical life span of 42 remaining years. Uninjured, she would have had an otherwise normal working life span. Past economic loss 50On behalf of the plaintiff, it was submitted that past economic loss should be awarded in the amount of $94,446. On behalf of the defendant, it was submitted that a buffer sum of $17,500, including superannuation should be allowed. 51The plaintiff's submission on past economic loss contained two components. The first component was a claimed allowance of $354 per week over 39 weeks between 1 January 2010 and 30 September 2010, which yielded an amount of $13,806. The second component was an allowance of $640 per week over 126 weeks between 1 October 2010 and 7 June 2012, which yielded an amount of $80,640. These amounts totalled $94,446. When analysed, these calculations appear to be unrelated to the evidence, a matter to which I shall return in setting out my assessment in the paragraphs that will shortly follow. 52The defendant's submission for a buffer allowance for past economic loss was also not co-related to any particular aspects of the evidence. The submissions stand to be evaluated against the evidence as a whole, starting with the medical evidence. 53On 18 April 2008, Dr Ellis considered that the plaintiff would have difficulty with physically demanding work, and was permanently unfit for work requiring repetitive bending and lifting. He reiterated his opinion to that effect in his reports dated 3 September 2009 and 2 November 2010. Over that period, Dr Ellis thought that the plaintiff was fit for the managerial aspects other work. 54On 4 May 2011, Dr Stephen accepted that the plaintiff was not fit to carry out her work of continuously filling supermarket shelves, especially on the longer shifts she had attempted. The plaintiff had no such restrictions on her work duties before the accident. Dr Stephen suggested the plaintiff was suitable for select part-time duties with restrictions on lifting weights such as 10kgs, and the avoidance of repeated bending, twisting and the avoidance of working in confined spaces for any length of time. These are significant work restrictions. 55In his final opinion dated 16 May 2011, Dr Ellis noted that the plaintiff had resigned her employment due to her experience of back pain, which had become severe. He also noted that the plaintiff's pains in the neck and the back were aggravated by the commonplace activities that he listed at page 2 of his latest report. He concluded that report with the following statement: "She has now lost her employment with Woolworths, she could not continue because of back and neck pain and was advised by her doctor to resign. She is permanently unfit for physically demanding work requiring repeated bending and heavy lifting. Her chances of reemployment are minimal, rehabilitation assessment and assistance would be helpful in an attempt to find alternate lighter work." 56It is plain from the medical opinions that I have cited, and the plaintiff's underlying evidence of her complaints, both of which I accept, that the plaintiff has suffered, and continues to suffer, a significant impairment in her capacity to carry out not only her pre-accident employment, but also a wide range of other employment that would require normal physical strength, mobility and dexterity. In my view, this evidence requires that there be a monetary assessment of loss of the plaintiff's earning capacity well in excess of the amount suggested on behalf of the defendant. 57The defendant tendered a certificate of the plaintiff's earnings current as at 11 April 2007 showing that at that time, the plaintiff's earnings were $220 per week gross and $204 per week net. That certificate was in respect of work for 3 hours per day for "3-4" days per week between 5.00am and 8.00am. That certificate noted that the plaintiff had been off work for 7 weeks as at the week ending 15 April 2007: Exhibit "4". 58I do not consider Exhibit "4" to be an entirely reliable guide to the plaintiff's pre-injury or post-injury earning capacity, or her claim for loss of earning capacity, for two reasons. First, because when analysed, it contains a significant internal variant of about one-third. For example, if it were to be read as representing earnings for 3 days per week or 9 hours per week, it would reveal an hourly rate of $22.66 net. If it were to be read as representing earnings for 4 days per week or 12 hours per week, it would reveal an hourly rate of $17 per hour net. The variation, which is significant, remained unexplained. The second reason is that the Exhibit is at odds with the plaintiff's broader and uncontradicted contextual explanation as to her earnings over time, and which is summarised below. 59At the time of her accident the plaintiff was classified as a night filler. Her duties were unloading trucks, splitting the loads on pallets of goods, stacking shelves, helping with staff issues, and also filling in for the manager in his absence. She also did some administration work which included stock control on the computer. Her base hours were 10 to 15 hours per week but there were periods when she would work 38 hours per week. When she was not working in a managerial role, she worked an average of 20 hours per week. Her shifts would vary between 3 hours per day and 7 hours per day, 6 days per week. 60On behalf of the plaintiff, a schedule was tendered which summarised her earnings for the 2003 to 2011 tax years. That schedule can be analysed as follows: Tax Year Annual Net Average weekly net 2003 $13,192 $254 2004 $15,284 $294 2005 $17,366 $334 2007 (11.04.2007) $204 2008 $16,184 $311 2010 $17,161 $330 2011 $7,718 $148 61The above figures need to be viewed in context. The earnings between 2003 and 2004 contain some components for a Centrelink pension for when the plaintiff was working part-time, and when she was also a carer for some of her children who were then of school age. The absence of figures for the 2006 year reflect the plaintiff's resignation from work in that year for personal reasons due to the unacceptable behaviour of a work colleague, which she found untenable. When her employer persuaded her to return to work in 2007, after that workplace difficulty had been resolved, her wages were initially along the lines set out in Exhibit "4", subject to the explanatory evidence as to her pattern of earnings. The post-injury earnings for 2008, 2009, 2010 and 2011 varied according to the hours she was able to work. 62For the reasons that follow, the plaintiff's damages schedule comprising MFI "2", as summarised in paragraph [51] above, seems to be factually incorrect, and not in accordance with the evidence of the plaintiff's absences from work due to her injuries. 63In respect of the first component of her claim for past economic loss, the plaintiff was absent from her work for a period of 8 months, or 32 weeks. At the lower range of analysed hourly rates of $17 per hour at an average of 20 hours per week, this reveals a loss of earnings in that initial periods of $10,880 net. 64After that initial absence from her work for 8 months, the plaintiff regained her previous working hours and she continued working until October 2010, at which time she felt compelled to give up her job because she could not continue due to pain, which was aggravated by her allocated work tasks. This resulted in her inability to complete her work tasks. Before resigning from her work, she discussed the issue with her general practitioner. She said, and I accept, that she resigned from her work because she could not give a 100 per cent effort to her work. Since leaving work some of her symptoms have reduced, but she remains unable to work in her pre-accident job. I accept that the plaintiff's reason for leaving her work was because of her experience of pain, and not due to any need to look after her grandchild, as was submitted on behalf of the defendant. 65In respect of the second component of the plaintiff's claim for past economic loss, the period between 1 October 2010 and the commencement of the trial on 16 April 2012, is a period of 132 weeks. In respect of that period, I accept that the plaintiff has lost earnings which should be assessed at somewhere between the average of 20 hours per week and the full-time rate of 38 hours to reflect the fluctuating circumstances. In my view that period of loss of earnings should be compensated at the average rate of 29 hours per week, i.e. $493 per week net. This yields an amount of $65,076. 66The above two elements of the plaintiff's past loss of earnings for the two periods in question amount to a total sum of $75,956. I therefore assess the plaintiff's damages for past loss of earning capacity in the sum of $75,956. Past loss of superannuation 67On behalf of the plaintiff, it was submitted that past loss of superannuation should be awarded in the amount of $10,389. The defendant submitted that past superannuation should be included in the lump sum allowed for past loss of earnings. 68As I have assessed the plaintiff's damages for past loss of earning capacity in the sum of $75,956, in accordance with convention, I assess the plaintiff's damages for past loss of superannuation at 11 per cent of that sum, namely $8355. Future loss of earning capacity 69On behalf of the plaintiff, it was submitted that future loss of earning capacity should be awarded in the amount of $382,867, being a 5 per cent projection of $640 per week net over the plaintiff's remaining working life, less 15 per cent for potential adverse vicissitudes. On behalf of the defendant, it was submitted that all that should be allowed is a buffer, in the amount of $50,000, including future superannuation. 70In my view, based on my acceptance of the plaintiff's evidence of her restricted abilities, and also based upon my acceptance of the medical evidence which I have summarised in my consideration of the claim for past economic loss, the defendant's submission advocating a buffer of $50,000 should be rejected as representing inadequate compensation. I have come to this view for the following reasons. 71Before the accident in question, the plaintiff's earning capacity was unrestricted and unhampered by any disability. She was fit for a range of manual and administrative jobs. In contrast, the accident has left her with the significant disabilities that have been identified in her evidence and discussed in the medical evidence. Those disabilities have left her with significant and permanent work restrictions, and a restricted capacity to sustain significant work tasks over prolonged periods. 72In my view, the matters I have recited in the immediately preceding paragraph militate against approaching the claim for future loss of earning capacity on the basis of a buffer, let alone a buffer of the order of $50,000. 73A buffer of $50,000, when analysed over a period of 21 years, which is the plaintiff's remaining working life to age 67 years, is the equivalent of a projection of $85.79 per week on the 5 per cent tables, and discounted by 15 per cent for vicissitudes ($50,000 divided by 85 x 100 divided by 685.6). In my view that is a manifestly inadequate sum. 74In my view, the work restrictions I have identified from the medical evidence and summarised at paragraphs [53] to [56] above call for a much higher amount for projection, particularly as I consider the medical opinions on the plaintiff's future work, for practical purposes, represent a substantial diminution in her prospects of obtaining alternative work, either full or part-time, and on a sustained basis over the plaintiff's remaining working life. 75The plaintiff's submissions proceed on the basis that she will be effectively unemployable for the remainder of her working life, which, absent the injury, would have been unimpeded. The plaintiff's submission calls for a projection of $640 per week net and assumes a 38 hour working week for the remaining years of earning capacity. 76Whilst I am satisfied that the plaintiff had the incentive, the ability and the experience to meet the demands of a full-time position, thus justifying consideration of the full-time rate, I consider that the plaintiff's submission of effective unemployability has overlooked the fact that until she increased her hours in 2010 to carry out additional physical and managerial tasks, she had been successfully exercising a capacity to work for lesser hours. It was the increased pain caused by the increased hours, and the inability to sustain those increased tasks, that led to her resignation. 77On that basis, I am satisfied that following the accident, albeit with some restrictions, the plaintiff had retained a capacity to work part-time for an average of about 15 hours per week, which, at the rate of $17 per hour, is the equivalent of $255 per week net. 78I consider that the difference between the full time rate of $640 per week net, which was the plaintiff's likely earning capacity uninjured, less the average part-time rate of $255, namely $385, represents the appropriate measure of the plaintiff's weekly future loss of earning capacity to be projected in the assessment of her damages for loss of earning capacity. The medical evidence does not indicate that a discount of greater than the conventional discount of 15 per cent for potential adverse vicissitudes is called for in the plaintiff's circumstances. 79The projection of $385 per week net, at 5 per cent over 21 years (x 685.6) less 15 per cent for vicissitudes, yields an amount of $224,362. I therefore assess the plaintiff's entitlement to damages for future loss of earning capacity in the amount of $224,362. Future loss of superannuation 80On behalf of the plaintiff, it was submitted that future loss of superannuation should be awarded in the amount of $53,601 based on an assessment of future loss of earning capacity in the amount of $382,867. On behalf of the defendant, it was submitted that there should be no separate allowance for future superannuation. The defendant included an allowance for future superannuation in its submission of a lump sum for future loss of earning capacity. 81Consistent with my findings concerning the plaintiff's claim for future loss of earning capacity, and applying the revised conventional formula of 14 per cent of the net amount assessed for future loss of earning capacity, namely $224,362, this should serve as the basis for the assessment of damages for future loss of employer funded superannuation benefits, which amounts to $31,410. I consider this sum need not be further discounted in this case because the underpinning calculation has already been discounted. I therefore assess the plaintiff's damages for future loss of employer funded superannuation contributions in the amount of $31,410 Past domestic assistance 82On behalf of the plaintiff, it was submitted that past domestic assistance should be awarded in the amount of $11,760 comprising 7 hours per week at $24 per hour over 70 weeks. It was difficult to relate that submission to the evidence and to the agreements the parties reached in the case. In contrast, on behalf of the defendant, it was submitted that no allowance should be made for this head of damage because the assistance provided to the plaintiff was below the statutory threshold of 6 hours per week for 6 months: s 141B of the MAC Act. 83A convenient starting point for the evaluation of this component of the claim is to review the relevant portions of the medical evidence that deals with the issue of the plaintiff's need for domestic assistance. 84In his report dated 3 October 2007, Dr Stephen considered the plaintiff needed "a little help around the house" but there was no need for any personal or domestic assistance in the long term. In his report dated 4 May 2011, in which Dr Stephen revised his earlier opinion concerning the nature of, and the likely duration of the plaintiff's post-injury problems. Dr Stephen noted that the plaintiff does some housework but receives help and sometimes pays for the heavier housework. Dr Stephen offered no definitive or prescriptive opinions on the subject of the need for domestic assistance. 85In his report dated 18 April 2008, Dr Ellis considered that it was appropriate that the plaintiff be provided with domestic assistance of 4 hours per day, twice per week, for the initial period of 12 months. In his updated report dated 3 September 2009, Dr Ellis reiterated the above view. In his next report dated 2 November 2010, Dr Ellis again reiterated that view. In his last report dated 16 May 2011, Dr Ellis again reiterated his earlier view as originally stated, and as summarised above. 86Against that background it is necessary to review the factual evidence concerning the plaintiff's need for domestic assistance. 87Before her accident, the plaintiff undertook all aspects of domestic work. This included the laundry tasks of washing, hanging out the washing, cooking, cleaning, managing the garbage, dusting, care and cleaning of her extensive trinket collection, gardening, care of the domestic pets and their pens. The plaintiff carried out those tasks without physical restrictions. 88After the accident the plaintiff's ability to carry out these activities was significantly curtailed because of her experience of pain, which caused her to desist from her previous levels of activity in those areas of domestic tasks. This has led to the plaintiff receiving gratuitous domestic assistance from her son Russell, and from her husband. The plaintiff estimated that level of assistance to be 2 hours per day: T17.13. That assistance did not include the activities involved in the care for her grandchild. There were other persons in the house who attended to the physical needs of her grandchild if a need arose, although she did occasionally lift her grandchild, this was physically painful for her. 89The plaintiff's son Russell described a regime whereby he provided the plaintiff with assistance of 2 hours per day with laundry tasks (T61.24) and an additional 4 - 6 hours per day of assistance with tasks such as sweeping floors, cleaning benches, general tidying and cleaning, including in the kitchen, caring for the animals and cleaning the plaintiff's animal pens. This level of assistance was initially provided by him at 2 - 3 hours per week. I accept that level of assistance increased to the level as described above, and in the evidence of Mr Russell Hurst. I reject the suggestion that Russell Hurst exaggerated his evidence in that regard. That said, the efficiency with which Russell Hurst carried out those tasks in the time he described is another matter. 90The plaintiff's husband, Mr Norman Hurst, also described the assistance he provided to the plaintiff for housework, including cleaning of the bathroom, care of the animals, gardening, cleaning and arranging the contents of the plaintiff's display cabinets. 91The impression I gained from the evidence of the plaintiff's husband and her son was that there were tasks that were shared or alternated, and that there was no doubling up of the time estimated for the described tasks. The described regime of domestic assistance to the plaintiff was instituted and maintained since the plaintiff's accident, and continued until the present time. It is against that background that the claim for past domestic assistance must be assessed. 92In my assessment the plaintiff would not have required assistance with the described tasks were it not for the described effects of the accident upon her. Had she remained uninjured, she would have continued in her work and managed her home in the ordinary way. 93It appears from the evidence of Russell Hurst, that he has expended a lot more time than the plaintiff would have taken in carrying out the described tasks. This much is implicitly acknowledged in the reduction in the hours claimed for assessment purposes, namely 7 hours per week compared to 14 hours per week as was particularised by the plaintiff. I consider 7 hours per week to represent a reasonable time allocation for the tasks described. 94I find that the described assistance provided by the plaintiff's family was solely due to the effects of her accident. I base that finding on my acceptance of the evidence that before her injury the plaintiff attended to the described tasks herself without impediment, and upon my acceptance of the evidence of the plaintiff's husband and her son, as to the nature of the assistance provided. The change in the pre-accident regime for carrying out domestic tasks was necessitated by the effects of the accident upon her. 95In reaching those conclusions, I have not overlooked the fact that some of the plaintiff's weekly routine has involved care of her grandchild in her home. The evidence indicates that other persons are present in the house to lift the child if the need arose. I find that the domestic assistance provided to the plaintiff is not directed at the care of her grandchild. 96When viewing the domestic assistance evidence as a whole, it is plain that a foundation for the claim arises in the opinions of Dr Ellis. Whilst it is true that Dr Ellis restricted his consideration of the claim for domestic assistance to 8 hours per week for 12 months, in my view that opinion is neither definitive nor prescriptive. 97The plaintiff's need for domestic assistance arose in the period immediately following her injury and has continued until the present time. It has arisen because of the plaintiff's accident-related disabilities and is therefore a matter that requires assessment in monetary terms, according to the requirements of s 141B of the MAC Act. 98The claim for domestic assistance has undergone a number of iterations in the particulars provided by the plaintiff's solicitor, as follows. 99First, in the plaintiff's statement of claim filed on 14 April 2010, an unspecified claim was made alleging difficulty with pre-accident domestic duties. 100Secondly, in an undated statement of particulars filed after the statement of claim was filed, an unspecified claim was made alleging a restricted ability to undertake household and domestic tasks, together with an unspecified claim for domestic assistance on commercial basis. No mention was made of a claim for past gratuitous services within the ambit of s 141B of the MAC Act. 101Thirdly, on 4 April 2011, the claim for domestic assistance outlined in the preceding paragraph was reiterated. In addition, a further and inherently vague claim for past domestic assistance was made in the following terms: "PAST DOMESTIC ASSISTANCE From time to time the plaintiff has required gratuitous domestic assistance at home since she has, by reason of her injuries and continuing difficulties been restricted in her ability to undertake household and domestic tasks. At time the plaintiff has required extensive gratuitous assistance in and about household tasks at other times she has not. It is claimed however that on average the plaintiff has required 14 hours per week of gratuitous domestic assistance and this is claimed at average weekly earnings rates." 102At the commencement of the trial, in the opening address, counsel for the plaintiff presented a damages schedule which was marked MFI "2", which had the following inclusion: "8. Past domestic assistance 7 hrs x 24hrs (sic for $24) x 70 weeks $11,760" 103In analysing the evidence and the submissions concerning this head of damage, a difficulty arose in identifying those particular 70 weeks in the period of 313 weeks that had elapsed between the accident on 18 February 2007 and the commencement of the hearing on 14 March 2013. The difficulty to which I refer arises from the specific terms of s 141B(3) of the MAC Act, which requires that services of the type here claimed must relate to a particular period of not less than 6 months. The evidence in this case does not identify a particular period of 6 months although it does make clear that the services were provided in excess of 6 hours per week for longer than 6 months. 104In the course of submissions made by the parties on the second day of the trial, for reasons that are not entirely apparent, the parties agreed that the claim for past domestic assistance should commence from 1 October 2010: T97.15. The period from 1 October 2010 and the commencement of the hearing on 14 March 2013 is 127 weeks. On the evidence, it was not possible to determine which of those 127 weeks should be the subject of an award of damages for the value of 70 weeks of past domestic assistance. 105In order to clarify the submissions on this point, on 24 April 2013, the matter was re-listed for further argument. At that time, the above difficulty was exposed, together with the analysis of the evidence that indicated the assistance provided to the plaintiff went beyond the 70 week, 7 hours per week calculation provided on behalf of the plaintiff. The parties were invited to make further submissions within 7 days on the points raised. 106On 3 May 2013, by leave, albeit out of time, a submission was received on behalf of the plaintiff, seeking, among other things, to expand the claim for past care to 100 weeks. The submissions on behalf of the defendant, received on the same day, did not oppose the expansion of the plaintiff's claim to 100 weeks, but noted the plaintiff was bound by the agreement between the parties whereby the claim was to be calculated from 1 October 2010, notwithstanding that the plaintiff had been provided with domestic assistance from the time of the accident to that date. 107The defendant also sought to enforce the agreement that the claim be limited to 7 hours per week from 1 October 2010, notwithstanding that the plaintiff might be found to have received domestic assistance for a greater number of hours per week, namely 14 hours per week, as submitted on behalf of the plaintiff. 108In supplementary submissions received on 3 May 2013, responding to the plaintiff's supplementary submissions, the defendant also identified the need to confine the plaintiff's claim to 100 weeks from 4 April 2011, which was the date of the plaintiff's amended particulars in respect of this claim. 109The plaintiff relied upon 2 alternative supplementary submissions. First, was an allowance for domestic assistance of $16,800, being 7 hours per week of domestic assistance at $24 per hour over 100 weeks, from 4 April 2011. The second was an alternative allowance of 14 hours per week at $24 per hour over 100 weeks, namely $33,600, as set out in the amended particulars of claim. 110The defendant pointed out, in reply, that the latter submission was not open to the plaintiff because of an agreement that had been entered into by the parties to limit the claim to 7 hours per week in order to avoid a further CARS assessment. The plaintiff considered herself bound by that arrangement as she did not want to have the matter delayed by a further CARS assessment that may have been necessitated due to a late particularisation of the claim. 111I therefore propose to assess the plaintiff's damages for domestic assistance in accordance with the agreement entered into between the parties, notwithstanding that the evidence indicates a different assessment would otherwise be called for. 112In those circumstances, where I am satisfied on the evidence that solely as a result of the accident in question, the plaintiff received domestic assistance from family members for at least 7 hours per week from the time of the accident until the present time, and this includes the period of 100 weeks now submitted on behalf of the plaintiff commencing from 4 April 2011, that assistance has to be quantified to ensure the monetary award for this head of damage does not exceed the required statutory rates. I am otherwise satisfied that the plaintiff received such assistance for 14 hours per week from the time of her accident to the time of the hearing. 113The Appendix to these reasons identifies the statutory rates for quantifying damages for domestic assistance, which according to the mandatory requirements of s 141B(4) of the MAC Act, cannot be exceeded. The Appendix reveals an amount of $18,219 being the statutory value of the assistance provided to the plaintiff from 4 April 2011 and for the ensuing 100 weeks to the time of the hearing. If I had been required to assess those damages to the time of the hearing, the resultant amount would have been in a higher amount, as indicated in the preceding paragraph. 114I therefore assess the plaintiff's damages for past domestic assistance in the sum of $18,219. Future domestic assistance 115On behalf of the plaintiff a claim is made for 6 hours of paid future domestic assistance at $40 per hour over her life span, namely $225,168. On behalf of the defendant, it was submitted that it would be appropriate to award a buffer amount of $20,000 for this head of damage. 116I am satisfied from the evidence that since the accident, until the present time, and as a result of her injury-related disabilities, the plaintiff has received at least 14 hours per week of domestic assistance from members of her family. I am also satisfied that such assistance is likely to continue for some considerable time into the future. I am also satisfied that it is unlikely that Mr Hurst, as a truck driver who is working 6 - 7 days per week, will be likely to continue to provide the plaintiff with the domestic assistance that he has provided to date. Even when the plaintiff's household diminishes with regard to the number of persons residing in the house, the plaintiff will still need help with the domestic tasks of housework and gardening. I consider that this is unlikely to be continued to be provided gratuitously by family members: Miller v Galderesi [2009] NSWCA 353. 117The claim is particularised by the plaintiff in the statement of particulars, filed on 6 November 2011, at page 4, for future paid care of 14 hours per week: In my view that claim for 14 hours of paid care has been made out, but will diminish to some degree over time as the numbers in the plaintiff's household is likely to recede. Nevertheless, she is likely to remain in her home where her children and grandchildren will continue to visit. The need to keep the home cleaned and the gardens maintained, will therefore continue. 118Notwithstanding the particularised claim for 14 hours per week of paid domestic assistance, and notwithstanding support in the evidence for that claim, the plaintiff's submissions have limited the claim to the value of 6 hours of future paid domestic assistance. This is because the parties have entered into an agreement to this effect in order to avoid the consequences of an application of s 111 of the MAC Act, which would require the proceedings to be remitted for a further CARS Assessment. I am informed that this agreement, which was reached at the conclusion of the trial, was on the plaintiff's instructions, her counsel, Ms Ryan and her solicitors, Brydens, having advised her in that regard. 119In those circumstances I am bound to limit my assessment of damages for future domestic assistance to 6 hours per week, notwithstanding that the evidence supports an award for a significantly higher amount. 120The projection of the value of 6 hours of future domestic assistance per week at $40 per hour at 5 per cent, namely $240 per week, over 42 years (x 931.6) yields the amount of $223,584. In my view, that sum should be discounted by 15 per cent for the conventional potential adverse vicissitudes, including a possible decrease in the extent of the plaintiff's need for such assistance. The resultant discounted amount is $190,046. I therefore assess the plaintiff's damages for future paid domestic assistance in the sum of $190,046. Future out-of-pocket expenses 121On behalf of the plaintiff, it was submitted that damages for future out-of-pocket expenses should be awarded in the amount of $20,000. On behalf of the defendant, it was submitted that the appropriate award for this head of damage should be $10,000. 122The evidence in support of the claim for future treatment costs is sparse and not precisely defined. The basis of the claim is the plaintiff's historical expenditure on treatment for her condition, and the evidence of Dr Ellis in his report dated 16 May 2011, in which he anticipated that in the coming year, the plaintiff's needs for conservative treatment and supervision, pain relief, medication, consultations and intermittent physiotherapy, should be allowed for in the amount of "at least $2000" which "may well continue". I include chiropractic treatment in those characterisations. 123In my view the evidence in this case does not permit a precisely calculated assessment over the plaintiff's remaining life span. Instead, I consider that the evidence calls for the assessment of a buffer amount. In my view the amount submitted on behalf of the defendant is inadequate. I consider the appropriate amount for the required buffer for future treatment expenses to be $15,000. 124The amount expended by the plaintiff on treatment to date, namely, $14,000, over the past 6 years, reveals an average amount of $2333 per annum or $44.86 per week. That analysis is to a degree necessarily superficial, and not entirely indicative of an ongoing rate of similar expenditure because it included what I infer from the evidence to have been a significant component for psychological treatment, the need for which has largely receded, if not ceased. 125Against that background, the amount of $15,000 which I have selected, is the equivalent of an amount of $27 per week projected at 5 per cent over 15 years. Whilst that projected calculation is not the basis of my assessment, that comparative analysis suggests to me that the selected amount of $15,000 is appropriate and reasonable. I therefore award the plaintiff damages for future treatment expenses in the sum of $15,000. Past out-of-pocket expenses 126The parties have agreed that past out-of-pocket expenses should be assessed in the amount of $14,000. I therefore award the plaintiff damages for past out-of-pocket expenses in the sum of $14,000. Summary of damages assessment 127My assessment of the plaintiff's damages is summarised as follows: (a) Past economic loss $75,956 (b) Past loss of superannuation $8,355 (c) Future economic loss $224,362 (d) Future loss of superannuation $31,410 (e) Past domestic assistance $18,219 (f) Future domestic assistance $190,046 (g) Future out-of-pocket expenses $15,000 (h) Past out-of-pocket expenses $14,000 Total $577,348 Disposition 128The plaintiff has succeeded in her action and is entitled to a verdict and judgment in the amount of $577,348 without discount for alleged contributory negligence. Costs 129Unless otherwise ordered, the plaintiff is entitled to an order for her costs to be paid by the defendant on the ordinary basis, unless an entitlement can be shown to some other order. Orders 130I make the following orders: (1)Verdict and judgment for the plaintiff in the sum of $577,348; (2)The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; (3)The exhibits may be returned; (4)Liberty to apply on 7 days notice if further orders are required. APPENDIX CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO MOTOR ACCIDENTS ACT 1999, s 141B (7 hours per week between 4 April 2011 and 14 March 2013) PERIOD WEEKS WEEKLY HOURLY AMOUNT FOR s.141B s.141B 7 HOURS PER RATE RATE WEEK 1. 04.04.2011 to 20.05.2011 6.57 $1025.90 $25.64 $1179.18 2. 21.05.2011 to 19.08.2012 12.85 $1026.00 $25.65 $2307.21 3. 20.08.2012 to 18.11.2011 12.85 $1027.10 $25.67 $2309.01 4. 19.11.2011 to 17.02.2012 12.85 $1016.30 $25.40 $2285.40 5. 18.02.2012 to 19.05.2012 12.85 $1054.70 $26.36 $2371.08 6. 20.05.2012 to 14.03.2013 42.57 $1054.70 $26.36 $7760.35 TOTAL $18,219.23 ********** 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: 24 May 2013