Midson v Adamczuk [2014] NSWDC 130

District Court New South Wales

Medium Neutral Citation: Midson v Adamczuk [2014] NSWDC 130 Decision date: 16 July 2014 Before: Cogswell SC DCJ Decision: (1) Verdict and judgment for plaintiff against the defendant in the sum of $44,703. (2) Defendant to pay the plaintiff's costs of the proceedings. Catchwords: Torts - negligence - car accident - liability admitted - assessment of damages - employability and earning capacity significantly affected by ADHD unrelated to the accident - already on disability support pension - post traumatic migraines further limit earning capacity - prospect that headaches and psychological condition will improve. Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) ss 83, 126. Category: Principal judgment Parties: Brooke-Anne Gail Midson (plaintiff) Simon Adamczuk (defendant) Representation: Counsel: J Reimer (plaintiff) C Allan (defendant) File Number(s): DC 2012/00259147

Judgment 1A mother and her two children were involved in a nasty car accident. It happened on 1 December 2007 near Liverpool here in New South Wales. Fortunately, no one was fatally or very seriously injured. The mother's name is Michelle Tramantana. There were two of her children in the car. One of them was her daughter Brooke-Anne Gail Midson and the other was her son, Harley. 2Brooke-Anne Midson has sued the driver of the other car, claiming that the accident was a result of his negligence. She said in her statement of claim that he drove through a red light. 3The driver of the other car, Simon Adamczuk, sensibly admitted through his solicitors the allegation that he had gone through a red light. Formally, he admitted liability in the proceedings which had been commenced by Brooke-Anne Midson when she filed her statement of claim on 20 August 2012. 4The case came before me, therefore, as an assessment of the damages which should be awarded to Brooke-Anne Midson as a result of Simon Adamczuk's negligence. I heard the case last week over 10 and 11 July 2014. 5Life had been a struggle for Michelle Tramantana and her two children. She was a single mother. She had, not long before, left her husband. Both she and Brooke-Anne Midson gave evidence of trauma within the family, including domestic violence which prompted the separation. Not only that, Brooke-Anne Midson was diagnosed when she was a young child with attention deficit hyperactivity disorder. She has been treated for that condition for some 10 years now. Indeed, as a result of that condition, she receives a disability support pension from the Australian Government and her mother receives an allowance as her carer. 6Ms Tramantana's small family, including Brooke-Anne, also had some bad luck. Ms Tramantana had started her own business. It was a takeaway shop. She arranged for Brooke-Anne to work in the shop. This was before the accident. The idea was for Brooke-Anne to get work experience. But in fact Brooke-Anne, who had not been doing very well at school at all and was missing a lot of it, left school at about the time that she worked in the business. Unfortunately however, the business did not work out and had to close after some months. 7In addition, Ms Tramantana's father became ill and had to be cared for. He later died. When the accident happened Ms Tramantana, whose business had closed about a year before, was in the process of establishing a second business - another takeaway shop enterprise. The accident put a stop to that ambition. 8I repeat, life has been a struggle for Michelle Tramantana and her two children, including her daughter Brooke-Anne. Ms Tramantana supports Brooke-Anne as best as she can. The impression I have from hearing both from her and her daughter is that she is a very good and supportive mother in very challenging circumstances. It is a struggle to make ends meet. Sometimes Ms Tramantana has to choose how to spend her money. Perhaps she has to choose between spending the money on Harley or on Brooke-Anne for some kind of treatment. Sometimes they cannot afford to see a doctor or to buy medication. Ms Tramantana and her children eke out their lives in a determined manner by making these hard decisions. 9One of the reasons I am making those preliminary observations is that, as Ms C Allan (counsel for the other driver, Mr Adamczuk) observed at one stage, it is important that I keep in mind that I am compensating Brooke-Anne for the consequences of the accident and not Brooke-Anne's mother. 10I do not propose to recite the evidence which I have seen and heard. The case was conducted without a transcript. I have reread my own notes of the evidence given by Brooke-Anne Midson and her mother, Ms Tramantana, and I have reread all of the exhibits. I will make some observations about some of the exhibits. 11Ms Allan pointed out the significance of Brooke-Anne Midson being on a disability support pension. I think there is some force in that submission. Exhibits 3 and 4 were documents obtained from the Australian Government Department of Human Services. The pension which Brooke-Anne receives is not for any condition related to her accident but for her ADHD. She was receiving the pension at the time of the accident. Eligibility for such a pension includes an inability to work for 15 hours or more a week. It also includes having been "assessed as having a physical, intellectual or psychiatric impairment". 12Other exhibits which I will comment on include reports from a consultant paediatrician, Dr Alan Chong. He has been Brooke-Anne's treating paediatrician since at least early 2002 when he first provided a report to Brooke-Anne's general practitioner, Dr Kumar. Before then, Brooke-Anne was treated by Dr David Rogers, a paediatrician in Queensland. He had prescribed Dexamphetamine. When Brooke-Anne moved to Sydney, Dr Chong took over her care. 13Ms Allan drew my attention to two of Dr Chong's reports. One of them was dated 10 October 2005 which noted that Brooke-Anne had been "off Dexamphetamine" for a period of time - which was about two months - and had been described as "unmanageable". On resuming her Dexamphetamine, Dr Chong observed a couple of weeks later that her concentration had improved. The second report was dated 13 November 2006. Dr Chong reported that Brooke-Anne Midson "ran out of Dexamphetamine for a month and mother claimed that her behaviour and concentration was significantly worse". Again her concentration improved. Dr Chong noted early that a consequence of the accident was a complaint of headaches from Brooke-Anne Midson. 14I turn now to an assessment of the damages which I ought to award to Brooke-Anne Midson as a result of the accident. I was assisted both by Ms Allan and Mr J Reimer, who was counsel for Brooke-Anne Midson, both in their oral submissions and schedule of damages which they produced for me. 15The past out-of-pocket expenses I will deal with first. They are noted in marked for identification 3, which was Ms Allan's proposed schedule of damages, as being $3,385.40 as agreed. However, Ms Allan pointed out to me in her oral submissions that an amount of $2,182.40 had already been paid on behalf of the defendant. What I do not know and will clarify after my judgment is whether the agreed $3,385.40 includes that defence or not. 16There is no claim for non-economic loss. 17There is a claim for future out of pocket expenses. Mr Reimer argued that I should allow $25,000 on what he called a "global award basis". He set out his calculations in marked for identification 2, which was his proposed schedule of damages. Part of the calculation was based on "the long life expectancy" of his client. 18When I look at future out of pocket expenses I note the following. A psychologist, Gerard Glancey, thought that Ms Midson would need eight or 12 consultations with a psychologist and each one would be about $222. I would allow $1,776 for that. Dr Lorentz, one of the neurologists who examined Brooke-Anne Midson, expected her headaches to "gradually improve". He thought that she should see a general practitioner about four times a year which would cost about $80 per attendance. I would allow $320 per annum for that. He thought she should see a neurologist a few times and gave an estimate for that. I would allow $560. 19Insofar as Mr Reimer argued that his claimed figure should allow for "the long life expectancy", both Dr Lorentz and another neurologist, Dr O'Neill, were of the view that the headaches, which are Brooke-Anne's main complaint, are not likely to be long-lasting. Dr O'Neill said that she needs migraine treatment which would bring potentially significant improvement. 20Ms Allan's proposed allowance for future treatment expenses was $3,000. 21I think the evidence supports making an allowance for over $3,000 when I take into account the future need for medication, which might include special migraine medication. It is hard to say how much I should allow. I think I should allow a little more than $3,000 but there is, in my opinion, no basis for the $25,000 claim on her behalf because of the prospect that the headaches will improve. I propose to allow $5,000 for future out-of-pocket expenses for her treatment. 22There is no claim for attendant care services, that is, assistance around the house in doing chores, up till now. But Mr Reimer argues that I should make a global award on a commercial care basis of, say, $10,000. Ms Allan argues that I should make no allowance under such a head. 23Ms Midson, in her evidence, said that she helps around the house with the chores. She does it as often as she can but she cannot do it if she has a headache. What she cannot do her mother does or it is left undone. Asked by Mr Reimer how often her headaches interfere with her housework, she said several times a week. It depended on whether she takes tablets and if they are effective or not. If they are effective, she does the housework; if not, she is confined to bed. I notice that Dr Conrad, an orthopaedic surgeon qualified for an opinion on behalf of Ms Midson, estimated that she should need some assistance for six hours a week. 24The figure disclosed in exhibit B is about $43 for assistance around the house. Given her evidence of the impact which the headaches have on her work around the house but, on the other hand, the evidence that, with proper migraine medication, her headaches should improve, I would be prepared to allow about three months for domestic assistance at six hours a week. I would award under that head an amount of $3,500. 25I turn now to Ms Midson's claim for economic loss. The claim for past wage loss is set out in marked for identification 2 by Mr Reimer. The assumption is that Ms Midson would have worked in her mother's business enterprise, which had to be abandoned because of the car accident. 26I think the main problems in assessing Ms Midson's economic loss to date are those pointed out by Ms Allan. She is receiving a disability support pension for an unrelated condition. She is receiving it because she has been assessed as being impaired by that condition. She is also receiving it because, as a rule, she is not able to work more than 15 hours a week because of that condition. I take into account that when she was working for her mother in the takeaway shop, her mother paid her about $100 a week plus some phone credit. 27Mr Reimer's argument is based on the assumption that, for the period since the accident which he estimates is 344 weeks, his client would have been earning about $500 a week which would have produced $172,000. From that he deducts earnings which Ms Midson received in a couple of jobs, producing his claimed amount of just over $143,000. 28The evidence does not satisfy me of the likelihood that Ms Midson would have worked for all of that time at that amount but for the accident. I need to take into account the likelihood or otherwise of her mother's enterprise taking off and being successful. Mr Reimer, in his submissions, developed an argument to the effect that the likelihood was significant. There are some favourable points, although I do not take into account the submission about the statistical success of start-up businesses. 29What seems to me to be significant is that Ms Midson's grandfather became ill and she and her mother moved to the south coast to look after him. When down there, instead of getting paid employment, Ms Midson, as well as looking after the house and her grandfather, was engaged in voluntary work in a canteen with her mother. I make the observation here that Ms Allan made and I accept that whenever Ms Midson works it is always in the presence of her mother. As I have already said, I think Ms Tramantana looks after Ms Midson very well and supports her in the jobs which she is able to do. But her employability is very limited because of her ADHD which is, of course, unrelated to the accident. 30In that regard, I accept Ms Allan's submissions about Ms Midson's general earning capacity being very limited. At present, it seems from marked for identification 2, Ms Midson is earning about $167 a week from her fruit picking. Her earning capacity, I accept, is presently suffering because of the headaches which she experiences. She is sometimes on the job and simply has to sit down in the shade because she cannot work; at other times she cannot go to work. 31It is hard to estimate how the headaches may affect her earning capacity. I am thinking that they may represent a figure of about $50 a week, so that, but for the headaches, her earning capacity might be in the region of $220 per week. If I was to assume that she would have worked at $220 a week for 344 weeks, that would produce a figure of $75,680. From that I would deduct the total earnings to date of $28,830 which would produce a figure a little less than $50,000. 32But it is here that I need to take into account the uncertainty about whether or not Ms Midson would have been employed full time by her mother in the business if it had got underway as well as any impact which the illness and death of her grandfather may have had. Taking those factors into account, I would reduce the amount I have just estimated by about half and award $25,000 for past wage loss. 33I turn now to Ms Midson's claim for future economic loss. I should here refer to some of the medical evidence which I have already taken into account. Ms Midson saw a psychologist a couple of times, a Mr Gerard Glancey. Gerard Glancey has provided a couple of reports. He noted that Ms Midson "continues to suffer chronic pain by way of migraine headaches": that was in his report of 17 June 2013. He diagnosed her disorder as "Adjustment Disorder with Anxiety". He thought perhaps a diagnosis might be "Adjustment Disorder with Mixed Anxiety and Depressed Mood". He thought that Brooke-Anne "could benefit from treatment by a psychologist". He had said in an earlier report dated 7 July 2009 that Brooke-Anne "needs specialist intervention with regards to headache". She needed more effective pain management. He thought that any depressive disorder "is largely dependent upon her prognosis with headaches". 34It is fair to say that Ms Midson's ongoing complaint and her major concern are the headaches. For this reason I regard as important the reports from the two neurologists whom I have mentioned. Dr Lorentz, in a report dated 11 August 2009, expected that her headaches will gradually improve. He made reference to "anxiety, panic attacks and depression" since the accident which "significantly interfere with her working capacity". He added that an "opinion from a psychologist or psychiatrist is suggested". He thought that there was no need for future domestic assistance. He expressed an opinion on 19 February 2014 that the car accident was significant in that "the head injury and the post traumatic stress have aggravated her pre-existing migraine". He thought that she suffered from "post traumatic migraine" and pointed out that these normally settle within two years of the accident. He obviously had not taken into account when the accident had occurred in this case because he thought that they "may continue intermittently for two years following the accident". 35Dr O'Neill saw no reason to materially differ from Dr Lorentz's diagnosis of post traumatic migraine but added that Ms Midson should be tried on a particular migraine medication and he said that "there is potential for considerable improvement in her current headache management". He noted that she was undertaking her fruit picking and said that, provided she was motivated for work, he was "sure she would be able to perform much more work if there was better control of her headaches". He added that "she has never been tried on proper migraine treatment and there is potential for significant improvement". 36The orthopaedic surgeon qualified for an opinion, Dr Conrad, as Ms Allen pointed out, effectively deferred to the opinions of the neurologists so far as her headaches were concerned and thought that she should be "referred to a psychologist for psychological counselling and support". He put a restriction on Ms Midson's working capacity but that seemed to relate to her headaches and psychological impairments. 37It does not seem from the evidence that Brooke-Anne Midson has undertaken any regular psychological treatment, nor has she taken on the suggested migraine medication. I am not critical of her for that because, as I pointed out in my introductory remarks, part of the reason is the hand to mouth existence which her family ekes out. An appointment with a consultant neurologist and the purchase of medication is sometimes simply out of their financial reach. 38On the other hand, of course, one cannot expect the defendant in this case to simply pay indefinitely for any impact which the headaches have on her future earning capacity when they can be appropriately treated and her earning capacity improved. Again, looking at s 126 of the Motor Accidents Compensation Act 1999 (NSW), I must estimate Mr Midson's "most likely future circumstances but for the injury". 39Like her past loss of earnings I would assume that the shop went ahead, but the likelihood is that the shop may have been affected by Ms Midson's grandfather's illness, need for care and death. In addition, I have to take into account that her earning capacity is significantly affected by her condition of ADHD. I think, I repeat, her earning capacity is probably about $220 a week without the headaches, but she is limited to about $167 a week because of the headaches. 40I would be inclined to allow Ms Midson two or three years to sort out her headaches and her psychological condition. I do not think it is fair on the defendant to make an allowance any more than that and, in my opinion, it is certainly not appropriate to assume that she will be affected for the rest of her earning life, which is the basis of Mr Reimer's submission contained in marked for identification 2. 41I think that the proposed allowance for future economic loss at $10,000 contained in marked for identification 3 and advanced by Ms Allan is about right as a buffer to make an allowance for the impact which the car accident has had on her future earning capacity. It is more an allowance by way of a buffer than a carefully calculated amount. I would, therefore, award Ms Midson $10,000 for her future economic loss. HIS HONOUR: All right, I will just depart from my judgment at this point and we need to do some calculations. I need a calculator and you two should do the same. Let's leave out the $3,385 at this stage or the defence; let's put that to one side. You two make your calculations and tell me what you get, leaving out the past out of pocket expenses. You two first see whether you can agree and then tell me if you can or can't. Have you got a problem with the future OPs? VO: Yes. HIS HONOUR: I started listing them individually as a basis for my calculations and then I made an overall estimate of $5,000; so the future OPs are $5,000. The individual references were simply as a basis for my calculations of getting to that figure. O'SHEA: Your Honour, we have arrived at the out-of-pockets at $43,500; I'm wondering if your Honour concurred with that. HIS HONOUR: That's good, well done; that's very encouraging. Okay, I got $43,500. Now, what do you want me to do with the past out-of-pockets and that question of a defence? Do you need instructions on that? O'SHEA: If I could just have a few minutes to talk; I do have instructions on my phone. HIS HONOUR: All right. Good, I'll wait. O'SHEA: I've also got a voice message on it; may I retrieve that? HIS HONOUR: Yes, you may. I've got things to do on the bench so retrieve that. Unrelated voice message? O'SHEA: It was just telling me that he has emailed me, which is a bit of a pointless - which I have in front me, your Honour; very diligent solicitor. HIS HONOUR: Good. O'SHEA: If we could each just phone our separate insurers just to clarify. We have instructions but they're not agreeing. HIS HONOUR: Good. All right. O'SHEA: If I may be excused for a minute. HIS HONOUR: Yes. Why don't - we'll just tidy up. I'll go off the bench and we'll come back in a few minutes. O'SHEA: Thank you. SHORT ADJOURNMENT HIS HONOUR: How did you go? O'SHEA: We have reached consensus, your Honour. The out-of-pocket amount of $3,385.40 needs to have taken away from it the $2,182.40 amount. HIS HONOUR: Thank you. O'SHEA: Net $1,203. VO: That's correct. HIS HONOUR: $1,203? O'SHEA: Correct. VO: Yes, your Honour. HIS HONOUR: Okay. I'll return to my judgment. 42As I indicated, the past out of pocket expenses were agreed at $3,385.40. It is acknowledged that of that amount, $2,182.40 has already been paid on behalf of the defendant. That comprises a defence under s 83(5) of the Motor Accidents Compensation Act 1999. Therefore, I should deduct the amount already paid from the agreed sum and award the plaintiff for past out of pocket expenses the amount of $1,203. HIS HONOUR: Now, I get a total amount of $44,703; do you both agree? O'SHEA: We concur, your Honour. 43I therefore enter a verdict and judgment for the plaintiff against the defendant in the sum of $44,703. HIS HONOUR: Now, any questions of costs, Ms Vo, Dr O'Shea? VO: Your Honour, the defendant agrees to pay the plaintiff's costs on a party/party basis. HIS HONOUR: Good, thank you. O'SHEA: And that's fine by the plaintiff, your Honour. HIS HONOUR: Good. 44I order the defendant to pay the plaintiff's costs of the proceedings. I will just leave it at that. That is understood to be on a party/party basis.