SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Lambourne v Ritchie & Anor [2005] QSC 096 PARTIES: FILE NO/S: 71 of 2001 DIVISION: PROCEEDING: ORIGINATING COURT: JULIE-ANN LAMBOURNE (plaintiff) v COLIN SAMUEL RITCHIE (first defendant) QBE INSURANCE (AUSTRALIA) LIMITED (ACN ) (second defendant) Trial Claim Supreme Court at Cairns DELIVERED ON: 4 April 2005 DELIVERED AT: Cairns HEARING DATE: 22 March 2005; 23 March 2005; 24 March 2005 JUDGE: ORDER: CATCHWORDS: Jones J 1. Judgment for the plaintiff against the second defendant in the sum of $366, The defendants pay the plaintiff s costs of and incidental to the action to be assessed on the standard basis, such order to take effect after the passing of 15 days unless stayed or varied by order of this court. 3. Parties have leave to make written submissions within 14 days seeking a variation of the preceding order. DAMAGES MEASUREMENT OF DAMAGES IN ACTIONS FOR TORT ROAD ACCIDENT CASE where vehicle driven by plaintiff was struck from behind by vehicle driven by defendant where plaintiff developed back injury and subsequent mental disorders where liability for physical injury not in issue where personality of plaintiff made her particularly vulnerable to development of mental disorders measurement of damages for physical and mental injuries COUNSEL: Commonwealth v McLean (1996) 41 NSWLR 389, considered Mr D Turnbull for the plaintiff

2 2 SOLICITORS: Mr D Reid for the defendants Dean & Bolton for the plaintiff Jensen McConaghy for the defendants [1] The plaintiff sustained injuries in a motor vehicle collision on 19 June 1998 and now sues for damages in respect of those injuries. Liability to pay damages has been admitted but the parties have not been able to agree upon the extent of the plaintiff s injuries nor of their impact on the quantification of damages. [2] The plaintiff was born on 16 February 1973 and was 25 years old at the time of the incident. She is now 32 years old. She left school after completing Year 10 but after some casual employment she undertook courses at TAFE College in Early Childhood Development which she did not complete. Instead, she successfully undertook the Queensland Public Service Entrance Exam which led to her gaining employment in a number of government departments. She obtained a traineeship which included courses at the Cairns Business College and training leading to her classification as an AO3. Her success in these courses and her indigenous background meant that her future employment prospects were quite good. At the time of the incident she was employed as a Participation Officer within the Department of Education with the classification of AO3. There her duties involved visiting Aboriginal communities in the Cairns region and assisting children with education related issues. This involved significant amounts of driving. [3] The plaintiff is married and has one child, Isabella, who was born on 12 February The plaintiff and her husband have lived together since August 1997 and were married in April 1999, some 10 months after the incident. [4] At the time of the collision the plaintiff s vehicle was stationery when it was struck from behind by a vehicle driven by the first defendant. The impact of the collision was heavy: the mountings of the plaintiff s seat broke under the force of her weight on the support structures. She ended up spread-eagled across the back compartment of the vehicle. With some difficulty she was able to alight from the vehicle, and thereafter was assisted by bystanders. [5] The plaintiff states that prior to the collision she was in good health and led an active lifestyle. She was living in Atherton and commuting daily to Cairns for her work. She enjoyed her work and apparently handled the tasks cheerfully and without physical discomfort. Mrs Bobongie, a witness, described her as being very fit and as having more energy than other people in the office. 1 She was active in sporting pursuits and regularly exercised at a gym. The records show that two days prior to the collision she had consulted Wuchopperen Medical Service for a general medical check-up. There appears to have been two main concerns for her: she was gaining weight, and she had been trying unsuccessfully for eight months to fall pregnant. At that consultation she said her weight had increased over the previous four years from 80 kilograms to 117 kilograms. The plaintiff is only 5 4 in height so there was justifiable concern about her weight then. At that consultation she also made complaints of being lethargic and of snoring. 1 Ex A2

3 3 [6] The immediate effect of the incident was to cause her to be shocked and dazed and to experience pain in her lower back and neck. She was attended at the scene by ambulance officers but she persuaded them to allow her to go home. During the afternoon the level of pain increased and at the urging of her husband she attended the Atherton Hospital. The examination there is described in the following terms:- No evidence of injury other than to her lower back. She is tender over the lumbar sacral spine and the iliac crests on both sides. Sensation (light touch, cold, vibration, proprioception) was intact in both limbs. Her reflexes were normal and she had down-going plantars on both sides. She had decreased power in both limbs, with a score of 2/5 throughout. This was thought to be secondary to pain in her lower back a diagnosis of musculo skeletal back pain without neurological compromise was made. 2 The plaintiff attended the Atherton Hospital on the next day complaining of ongoing back pain. On this occasion lumbo sacral X-rays were taken with normal findings. She saw Dr White at Atherton six days later complaining of being unable to sleep despite taking medication for pain. [7] As a result of these injuries the plaintiff was off work until 16 October 1998, a period of 17 weeks. During this time she suffered with continuous pain of varying intensity. Because of this she limited her physical activities. Her husband assisted in the household chores, she undertook some physiotherapy exercises but the treatment mainly consisted of medications for pain relief. [8] Her treatment was continued at the Wuchopperen Medical Service. She was seen there on 21 and 23 July 1998 complaining of severe low back pain for which various analgesics were prescribed. Her condition was reviewed at that clinic at regular intervals. 3 She was referred to Dr Thomas, orthopaedic surgeon, in September He opined that the plaintiff sustained some form of soft tissue strain or bruising to the sacrococcygeal area. 4 He also noted that there were some inappropriate signs on physical examination. Plain X-rays and bone scans showed no abnormality. 5 Her later examinations at Wuchopperen indicated some improvement in her back symptoms leading to a desire to return to work. [9] On her return to work she experienced an increase in lower back pain. She continued regular physiotherapy and exercised by swimming and walking. On the weekend prior to 24 May 1999 she appears to have over-exerted herself in such pursuits and exacerbated the back injury. She had further time off work until 22 July During this period she was referred by the Workers Compensation Board to Dr Clark, orthopaedic surgeon, who diagnosed her condition as an injury to the L5/S1 segment. He noted also that she was inappropriately tender to light touch over a wide area of the lumbar area. 6 Initially the Workers Compensation refused to acknowledge her claim but after an appeal her benefits were reestablished and these continued until her return to work Ex G2 Ex G1 (reviews on 17 August, 17 September, 21 September, 7 October, 9 November and 16 December 1998) Ex H4 Ibid at p 2 Ex H6

4 4 [10] In late 1999 she accepted a position as a research officer with the Department of Employment, Training and Industrial Relations (DETIR) in Brisbane. In career terms this was a significant promotion. The job entailed the plaintiff going out with Workplace Health and Safety Inspectors to various incident sites once a week but otherwise she would spend four days in the office. Travelling to and from work on public transport caused an increase back pain but she continued in employment despite these problems. In the latter part of the year 2000 the plaintiff was pregnant with her child but continued to work until 5 January 2001, one month before her confinement. During her pregnancy she was allowed to work three days a week at home and two days at the office. [11] The plaintiff took maternity leave from 5 January 2001 and attempted to return to work in May 2001 but found she could not cope with work related duties because of back pain. At this time she was also beset by a number of other problems of an emotional or psychological nature which will be discussed later in these reasons. [12] On 31 August 2001 the plaintiff was examined by Dr Curtis, orthopaedic surgeon. He directed that an MRI examination be undertaken and this was done on 10 September That scan revealed evidence of annular tearing to the L4/5 and L5/S1 discs. At these sites there were well-established degenerative changes consistent with the plaintiff s symptoms. In his report dated 23 October 2001 Dr Curtis said:- I note the date of her injury was June 1998 and her MRI scan has been taken some three years later. It is likely, given the nature of her injury, that these matters offer a causal relationship and on that basis I consider her permanent impairment in the order of some 5% (five per cent) of the whole person. 7 [13] In Dr Curtis view, the most telling factor in attributing those radiological signs to the accident was that the degenerative changes were at focal points, and not broadbased which usually depicts generalised degenerative changes. A degenerative focal change at a point is usually the result of injury, 8 and the plaintiff experienced no other traumatic event that would explain such damage. Once the damage had occurred, there was a potential for a major prolapse if the tearing increased in size or degree. 9 [14] Dr Fraser, orthopaedic surgeon, called by the defendants did not agree with that interpretation of the imaging results. He expressed the view that one could not be so specific about the description of the focal tear or focal bulge. He opined that a focal tear or bulge may or may not be due to a traumatic event. It may come on spontaneously in the course of normal daily activity in association with the degenerative changes. 10 He did however agree that for a person of the plaintiff s age at the time of the accident it would be uncommon to see the degenerative changes of the severity and extent demonstrated in MRI. 11 He nonetheless adhered to the opinion that the degenerative changes pre-dated the motor vehicle accident Ex B2 Transcript 106/30-40 See ex B3 Transcript 141/35-40 Transcript 143/35 Transcript 143/10

5 5 [15] Having regard to the lack of debilitating pain prior to the accident, its onset immediately after the accident and its persistence ever since, there is a high probability of causal connection. The forces involved in the impact between the vehicles would, according to Dr Curtis, be sufficient to cause the harm revealed by the MRI scan. Added to this there was no sign of degenerative changes anywhere in the plaintiff s spine on radiological tests undertaken before the MRI. [16] I am satisfied on the balance of probabilities that the damage to the plaintiff s lower back described by Dr Curtis and its continuing effects were caused by the incident. [17] The prognosis for this injury includes the risk of further tearing of the annulus and prolapse of the disc. This in turn might lead to surgery for discectomy if the nerve roots became compromised. The plaintiff was noted to have large canal 13 and so there is less likelihood of compression of the nerve roots. On the other hand the plaintiff s obesity compounds the pressures that are placed on the disc in ordinary day to day activities and this must increase the risk of future annular tearing. The means of reducing this latter risk are solely in the hands of the plaintiff who has constantly been advised of the necessity of losing weight. I assess the risk of future surgery for which the defendant should bear responsibility as being relatively slight. Nonetheless the injury results in the plaintiff having to endure chronic pain of varying intensity. This impacts on virtually every facet of her life, in employment and in fulfilling her personal and family commitments. Added to this the plaintiff has suffered adverse psychological sequelae in the form of traffic anxieties. 14 [18] The plaintiff s treatment throughout 1998 and 1999 was undertaken at the Wuchopperen Medical Service until she moved to Brisbane. As appears from the records of that centre the consultations related to her complaints of back pain and concerns about her weight and infertility. In the beginning of 2000 she moved to Brisbane and soon afterwards fell pregnant. On medical advice, because of her pregnancy she gave up physiotherapy. By this time, she was well established in a routine of treating her back pain by the use of medication. No medical records were tendered that covered this period, but the injury was not of a kind that would resolve completely. The symptoms may have abated but there is no reason to suppose that the complainant s pain and treatment regime would have been greatly different to that existing in the preceding years. [19] The plaintiff s treatment throughout 2001 and 2002 is recorded in the notes of the Hillcrest Family Medical Practice in Brisbane. These notes detail a history of significant emotional upset for both the plaintiff and her husband. It led the defendants to suggest that much of the plaintiff s difficulties with life and in employment was a result of this emotional upset and not related to the effects of the injuries sustained in the motor vehicle incident. The true nature and effect of the emotional upset has given rise to very significant evidentiary conflicts between the plaintiff and her husband on the one hand and a therapeutic counsellor, Ms Jennifer Amey on the other. [20] The plaintiff and her husband each had a troubled upbringing. In respect of the plaintiff, her parents separated when she was three years of age and she would spend Monday to Friday of each week with her father and most weekends with her mother. Her mother was alcoholic and had a relationship with a man who was also Transcript 107/50 Ex B4 Reports of Dr Richards

6 6 alcoholic and was abusive towards her mother. The plaintiff found this to be personally disturbing, even though violence was never directed towards her. Her three sisters and three brothers lived within this (or a similar) regime and she had a close relationship with them. When she was eight years of age she was inappropriately touched while she was in the shower by her 18 year old brother, but this does not appear to have had any lasting impact on their relationship. At the age of 21 the plaintiff was the victim of a rape. The perpetrator was convicted and sentenced to a term of imprisonment. Following this event the plaintiff had counselling and a period of time off work and claims that thereafter she got on with her life. This background has to be considered in the context of the plaintiff s relationship with her husband who as a child was also the victim of sexual abuse by a former neighbour. In 1999 Mr Lambourne made a complaint about this abuse and the investigation and subsequent hearing was not completed until He acknowledges that he had a troubled childhood, had suffered depression since his teenage years and was adversely affected by having to re-live the events which were the subject of the complaint. These personal stressors were exacerbated by his having to deal with the effects of the injury to his wife higher physical demands on him, interference with their personal relationships and having to cope with her traffic anxieties and nightmares. Thus there was a confluence of personal stressors on the couple during the period [21] On 2 and 23 April 2001 the plaintiff consulted Dr Bieraghi for her post-natal check up after the birth of Isabella. On 3 May 2001 the plaintiff complained to Dr Bieraghi about emotional stress and was referred to Ms Jennifer Amey, a counsellor in private practice. Dr Bieraghi continued to see the plaintiff about her emotional problems which he variously diagnosed as acute major depression, agoraphobia and panic attacks leading to his prescribing a variety of anti-depressant medications. He also referred the plaintiff for sleep apnoea testing. He did not refer the plaintiff to a consultant psychiatrist but was content to leave most of the therapy in the hands of Ms Amey despite the plaintiff s complaints of a worsening situation. Of the 20 odd visits made to Dr Bieraghi throughout this period (April 2001 September 2002) there are only two noted references to the plaintiff s back condition. But Dr Bieraghi conceded there may have been more complaints which were not noted because of their perceived unimportance. The defendants argue that this suggests the relatively lower impact of the back injury on the plaintiff s life at that time. They argue that it was her emotional problems unrelated to the accident which caused her inability to function in employment and in her domestic affairs. The defendants urge my acceptance of the evidence of Ms Amey to support this submission. [22] Ms Amey was also treating the emotional problems of the plaintiff s husband and gave evidence of very significant conflicts between the couple at this time. She suggested that this led to a breakdown in the marriage relationship leading to a separation of seven months. The content of their complaints to Ms Amey and her style of counselling is the subject of some conflict. The resolution of that conflict in my opinion is both unimportant and unnecessary for the purpose of assessing the effect of the plaintiff s injury arising from the motor vehicle accident. The plaintiff and her husband admit that there were higher levels of stress imposed on them during this period and they related the cause principally to the effects of pain and limitation on the plaintiff arising from her back injury. I do not accept that to be the case. But they particularly deny there was any breakdown in the marriage relationship and say that the period of separation was mutually agreed and done for

7 7 the purpose of allowing Mr Lambourne to fully recover from the stress which he was experiencing. Ms Amey was involved in counselling this couple sometimes in joint sessions but usually in separate weekly sessions over a period of 18 months. The counselling involved the revisiting of earlier sexual traumas. Despite the obvious lack of success in this process the couple were not referred by either Ms Amey or Dr Bieraghi for review by a psychologist or psychiatrist. [23] I am satisfied that there were increased emotional burdens borne by the plaintiff and her husband during the period following the birth of Isabella through to the end of These burdens had a number of causes. Both the plaintiff and her husband had personalities which were vulnerable to stress and the stressors each experienced at that time were more significant than usual. For the plaintiff undoubtedly the inability to nurse and care for her baby because of her pain would have been significant. The interaction with her husband during this period, because of his fragile emotional state, would only have compounded the problem. In addition, the couple undertook the care of three nieces and one nephew who came to reside with them in their home in Brisbane. Also of significance is the nature of Ms Amey s counselling which, in the opinion of Dr Richards, would produce adverse effects in her pain management. 15 I am satisfied that the counselling undertaken by Ms Amey gave rise to a further stress to those already imposed on this couple. I do not accept that the evidence of Ms Amey indicates a serious ongoing emotional condition which impacts on the plaintiff s functioning. [24] Dr Richards examined the plaintiff on two occasions, the first of which on 14 August 2001 by which time the plaintiff had commenced counselling therapy with Ms Amey and after Dr Bieraghi had prescribed anti-depressants. He found the plaintiff to have a personality vulnerable to emotional and physical stress. 16 He diagnosed her as suffering from a Traffic Phobia and with a Pain Disorder. By the time of his second interview with the plaintiff on 10 June 2003 the frank injury to the plaintiff s spine had been discovered. By this time the plaintiff had ceased the counselling therapy and she had embraced religion with the Forest Lake Group of Jesus Heals International. Dr Richards concluded that the plaintiff suffered from a Pain Disorder of a degree and extent inexplicable on physical grounds alone. 17 He came to the view that there were unconscious conversion mechanisms involved in her complaint. Dr Richards saw the plaintiff for a third time on 19 October 2004 and came to the following conclusion:- Her overt anxiety and depression have remitted with a stable home life and her religious experience, but unconscious conversion mechanisms continue to accentuate the symptoms mediated by her lumbo sacral pathology and the prognosis for her pain disorder has not improved. 18 Dr Richards maintained his diagnosis of Pain Disorder associated with both Psychological Factors and a General Medical Condition. When asked about the plaintiff s prognosis Dr Richards said:- The problem with the diagnosis of Pain Disorder which relates to physical circumstances and to psychogenic overlay, the problem is that the proportion of psychogenic overlay can vary from time to Transcript 225/10 Ex B Report of Dr Richards 21 August 2001 at p 5 Ex B Report of Dr Richards 11 June 2003 at p 7 Ex B Report of Dr Richards 19 October 2004 at p 2

8 8 time, so that if a person s life is running well the pain s mostly physical, but if for example, they re having some sort of therapy which is not helping them, their management of pain can actually be worse. If they have faith in their religion and can get on with the job and never mind the past just get on with the job and make the best of it then they handle the pain better. So, that the clues to good pain management are to be happy, to be busy and to get cracking with your life Now to what extent she can get on with her life depends on both psychological and physical factors. 19 [25] The plaintiff was examined by Dr Alcorn, psychiatrist, on one occasion on 7 March 2003, who furnished two reports dated 14 March 2003 and 6 October These reports challenge the validity of Dr Richards diagnosis. Speaking of the plaintiff s then condition, Dr Alcorn said:- At this valuation, she reported being largely asymptomatic from a psychiatric viewpoint, apart from fears associated with driving and being a passenger. In my opinion this did not amount to a specific phobia in the absence of significant functional restriction. I consider that this more likely amounts to a slight Adjustment Disorder. 21 Dr Alcorn also challenged Dr Richards diagnosis of a conversion disorder and the relationship of psychogenic factors to the motor vehicle incident. Dr Alcorn attached importance to Ms Amey s report on the plaintiff s childhood abuse. I do not accept that report as a reliable basis for the assessment of the plaintiff s ongoing emotional state. [26] I accept the opinion of both psychiatrists that the plaintiff had a somewhat vulnerable personality. I prefer the opinion of Dr Richards as correctly identifying the cause and effect of the plaintiff s symptoms. I accept also that her perception of pain is higher than what could be justified from the nature of the physical injury. The frequency of her visits to the Wuchopperen Medical Service in the months following the accident would seem to indicate this. Also, the ineffectiveness of the medications and the presentation of inappropriate signs suggest that other factors were present. Furthermore, from the plaintiff s statement there seems to be an interplay between the level of pain and changes in her personal circumstances and her interactions with other people. I accept that the changes in her life after the birth of Isabella and the additional stressors noted above all joined to cause an exaggerated pain and disability response to her minor back injury. The fact that this exaggerated response was evident well before the manifestation of the relationship issues supports the opinion expressed by Dr Richards. I accept his opinion as to the interplay between pain and psychogenic overlay and his diagnosis of Pain Disorder. [27] The plaintiff was off work following the birth of Isabella until May She found it difficult to return to her former duties and lasted only two weeks. She returned to work for the Education Department but was assigned to low level girl Friday duties which she was unable to perform. She accepted a redundancy offer and ceased work on 27 September This was a low period for the plaintiff Transcript 219/30 See ex H2 and H3 Ex H2 at p 17

9 9 Her sister had committed suicide in the previous month and the combination of circumstances left the plaintiff depressed. [28] By the commencement of the trial the plaintiff appeared to have been emotionally and physically much improved. She had recommenced work on 3 March 2005 as a supervisor for Mission Australia. This job involves her supervision of persons engaged in Work for the Dole schemes. The plaintiff is happy in her performance of this work and it appears to be within her physical capabilities. Her emotional life appears to be stable. Both she and her husband have embraced religious studies and appear to be coping well with their family responsibilities. With the greater understanding of the way in which emotional problems exaggerate the physical manifestation of pain it is less likely, in my view, that the plaintiff will in the future suffer a repetition of the type of stress which she experienced in 2001 and Whilst flare-ups for emotional reasons may occur in the future, the plaintiff is now in a position to deal with these flare-ups more efficaciously. A greater threat is the development of more serious pathology in the injured areas of her spine due to her being overweight. This risk has been referred to by each of the orthopaedic surgeons and indeed is a risk that is obvious to all. The risk from this quarter is entirely within the control of the plaintiff. The plaintiff has the ability to find employment of a kind which is mainly sedentary which allows her some flexibility in movement. With awareness of her back condition and with proper care, the risk of having to undergo surgery of the kind described by Dr Curtis would seem to be minor. General damages [29] It follows from these findings that the plaintiff is to be compensated for the combined effects of the physical injuries to her lower back, and their exacerbation resulting from the features of the psychogenic overlay. See Commonwealth v McLean. 22 As a consequence of these factors the plaintiff has suffered significant pain and disability in her lower back since the date of the accident. That pain has become chronic. This has had a significant effect on her capacity to enjoy the amenities of life as well as her relationship with her husband. The level of pain is not such as to interfere seriously with the plaintiff s capacity to earn income, though it may give rise to periods of unemployment and changes in employment. By and large the plaintiff should be able to perform the usual domestic tasks associated with running a house as a wife and mother whilst in gainful employment. For pain, suffering, loss of amenities and some small amount to take account of the risk of future surgery I would allow the sum of $50,000 of which $25,000 will be attributed to the pre-trial period. This attracts a component of interest at 2% for 6.75 years which calculates to $3,375. [30] Special Damages are essentially agreed between the parties in the sum of $3,153 of which $850 were out-of-pocket payments made by the plaintiff. Interest on this component computes to $255. Economic Loss [31] The defendant takes no issue about the plaintiff s loss of wages for the period immediately after the accident during which time she received Workers Compensation payments which have to be refunded. The plaintiff has had 22 (1996) 41 NSWLR 389/404

10 10 significant periods off work between January 2001 when she commenced maternity leave until she commenced work on 1 March The issue here is whether the time off work is a consequence of the injuries sustained in the incident or whether, as the defendant asserts, it is the consequence of emotional decompensation due to unrelated factors. As detailed above, a combination of factors impact upon the plaintiff s inability to work. [32] I am satisfied that had the plaintiff not been injured at all she would have established a career in mentoring and assisting indigenous people. She appeared to me to have the interest, energy and personality to succeed in this type of work. Opportunities for employment in this field are spread across a number of government departments and agencies and one expects she would have had relatively continuous employment. I am satisfied that some periods of unemployment during this time relate to emotional decompensation consequent upon her personal circumstances. The plaintiff showed commendable fortitude in continuing to work to within one month of her confinement. Her intention to return to work in May 2001 was overly ambitious, considering the demands of motherhood and the limitations imposed by her back injury. However I am satisfied that she would have managed to cope with both at a point prior to March Further, the plaintiff had undertaken voluntary part-time work for her church for some of this period. Whilst this has proven to be therapeutic it has no doubt influenced her choice not to return to paid employment. During this period she was in receipt of Centrelink payments. It is not possible to identify a specific period during which the plaintiff may have been fit for work so I propose to reflect this consideration by increasing the contingency discount factor. [33] The plaintiff s potential earnings between the accident and trial a period of 6.75 years using $550 net per week as a fair average, totals $193,000. Her actual earnings were approximately $75,270 ($86,135 - $10,862 WorkCover refund) leaving a shortfall of $117,730. For the reasons stated I will apply a 25% discount to this figure and assess the allowance for past loss of earnings at $88,000. [34] I will allow interest on $74,000 ($88,000 - $14,000 Centrelink payment) at 5% for 2.5 years which computes to an allowance of $9,250. [35] Loss of superannuation on past income of $88,000 should be allowed at 9% yielding the sum of $7,920. [36] Loss of future earnings is predicated upon the plaintiff s present earnings of $400 net per week. These earnings are from part-time employment the contract for which has only a four month duration. Mr Turnbull of counsel argues that her prospects of continuing in this employment are slight and her future prospects should be assessed on the basis of an average of approximately 20 hours per week with some future periods of unemployment. My expectation is that work of this kind will continue to be available and that the plaintiff will have the ability to engage in it, but this supervisory position and its remuneration is not in my view, a reflection of the full extent of the plaintiff s earning capacity. She is still young. She has had training for positions which command significant higher salary levels and with time may expect she will again be able to advance in such a calling. However, her preaccident career has been blighted by the injury and its impact on her employment over the past seven years. The arithmetic approach of adopting a differential between the Public Service Award rate of $600 per week and her present earnings

11 11 of $400 per week projected over a number of years can be but a rough guide. Taking her employment to age 60 years (multiplier 803) or to 65 years (multiplier 855) suggests a range of $160,000 to $170,000. The defendant submits that substantial discounting is called for to take account of the plaintiff s emotional vulnerability. The view I have taken on the evidence leads me to conclude that this argument is over-stated. I see the plaintiff s physical and emotional interests being met by her continuing to work in meaningful employment and I expect she will strive to do this. Her lost potential for achieving a higher position than that reflected by the AO3 level of the Public Service Award means there should not be any significant discounting of the range referred to above. I would allow $150,000 for loss of future earning capacity. [37] Loss of superannuation should be assessed at 9% of $150,000 leading to an allowance of $13,500. Other allowances [38] Past care is another allowance affected by considerations of the circumstances giving rise to this need. I expect that following the accident and for some extended period thereafter the plaintiff required personal and domestic assistance for short periods. Mrs Helen Coles assessed the plaintiff s need for assistance in May 2002 to be 8 10 hours per week for 12 weeks reducing to 5 4 hours per week thereafter. By February 2005 the need was assessed at 3 4 hours per week. These assessments are reasonable in the circumstances and will form the basis of my assessment of these allowances. For past care I allow the sum of $10,000. I assess interest on past care at 5% for 6 years computing to a further allowance of $3,000. [39] For future care I would allow $25 per week over the likely span of the plaintiff s working life and this computes to an allowance of $20,000. [40] Future medical expenses are sought on a global basis to cover the provision of treatment, medication and the minor risk of surgery. I allow the sum of $4,000. [41] The Fox v Wood component is agreed at $4,473. In summary, the plaintiff s damages are assessed in accordance with the following allowances:- General Damages $ 50, Interest thereon $ 3, Special Damages $ 3, Interest thereon $ Past Loss of Earnings $ 88, Interest thereon $ 9, Past superannuation $ 7, Future earning capacity $150, Future superannuation $ 13,500.00

12 12 Past Care $ 10, Interest thereon $ 3, Future care $ 20, Future medical expenses $ 4, Fox v Wood $ 4, $366, [42] Orders 1. I give judgment for the plaintiff against the second defendant in the sum of $366, I order that the defendants pay the plaintiff s costs of and incidental to the action to be assessed on the standard basis, such order to take effect after the passing of 15 days unless stayed or varied by order of this Court. 3. I give leave to the parties to make written submissions within 14 days seeking a variation of the preceding order.