Susan Constance Walmsley v Bronwyn Katrina Evans [1986] ACTSC 83 (12 September 1986)

SUPREME COURT OF THE ACT

SUSAN CONSTANCE WALMSLEY v. BRONWYN KATRINA EVANS
S.C. No. 1554 of 1981
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Damages - Personal injury - No new question of principle involved.

HEARING

CANBERRA
12:9:1986

ORDER

There be judgment for the plaintiff in the sum of $230,691.50.

DECISION

This a claim for damages arising out of an accident which took place on 12 June 1981 at the intersection of the Barton Highway and William Slim Drive when a motor vehicle driven by the defendant collided with the plaintiff who was riding her motor cycle. By the time the hearing began liability had been admitted and the matter proceeded as an assessment only.

2. The medical evidence consisted of reports none of which was challenged by the defence. I accept them as accurate.

3. The plaintiff sustained bilateral comminuted fractures of the femora with associated fractures of some ribs on the left side. She was admitted to Calvary Hospital for resuscitation, antibiotic therapy and assessment. Her treating orthopaedic surgeon was Dr McNicol. He fixed both femora internally, using condylar plates, on the evening of her admission. He noted that the fracture of the left femur extended into the joint surface. The plaintiff also sustained a fracture of the inferior pubic ramus and appears to have had her spleen ruptured although nothing seems to have been made of this. The evidence does not establish how many ribs were fractured but I am satisfied that as a result of the accident she has suffered and continues to suffer from costo-chrondritis, a condition of chronic inflammation of the tissues of the junction of rib and cartilage. The fractures of the femora were the most serious of the injuries. Their medical affect is set out in the reports of Dr Brook, a rheumatologist to whom she was referred for treatment of continuing pain in the rib area.

4. I accept the plaintiff's account of the pain and disabilities from which she suffered and continues to suffer. She was described by a witness, who was called on her behalf and whom I accepted, as tenacious, brave, stoic and honest. He saw her as a person of indomitable spirit who understated her difficulties. I give as an instance of that spirit her determined and quite successful attempts to teach herself to walk with as little limp as possible. But there are other instances apparent from her evidence.

5. I am satisfied that she suffers and will continue to suffer severe continuing pain and disability. I think that, more probably than not, she will suffer as well from osteo-arthritis in the right knee and that sooner than later.

6. Yet she has recovered some ability to carry out her preferred work. She engages in gardening to a moderate degree. By dint of careful organisation of her physical resources she is able to carry out a fair amount of the work which formerly she did on her parents' property and on her own small farm.

7. The plaintiff was born on 12 October 1941. She was educated by correspondence until she was aged about 11 and subsequently went to boarding school at Orange. She apparently gained her Intermediate Certificate. I am, nevertheless, pursuaded that her literacy skills are not high. She appeared unable to read the words of the oath when they were presented to her, the quality of the writing and the contents of an explanatory letter she wrote to the Commissioner of Taxation to accompany her return for the year ended 30 June 1980, and her evidence concerning the difficulty she had when performing simple clerical work, indexing and photocopying, while undergoing rehabilitation all satisfied me that she was not much fitted for even the simplest clerical work although, conceivably, with her determination she might eventually make a success of simple clerical operations. The view which I had formed concerning the plaintiff's literacy was reinforced by evidence given by her sister who has had experience as a remedial teacher.

8. Mrs Kerry Tapsell, an occupational therapist who considered the plaintiff's situation, took the view that she would eventually be able to do clerical work but that was on the basis that for the plaintiff to get such work it would be necessary for her to be specially placed. I think such placement unlikely.

9. On leaving school the plaintiff worked on the family property until 1975 when she inherited a small farm of some 70 acres from one of her aunts. About that time she moved to Canberra to live. Her ambition was and still is to build up her farm so that it will constitute a firm base for her for the rest of her life. While living in Canberra she returned frequently to the family farm and worked on her own land as well. During the week she worked on a casual basis in motels and at cleaning and engaged in child minding and the care of animals. She also earned some money by the sale of vegetables grown on her farm and at 12 Geerilong Gardens, Reid where she lives. In addition from time to time she has provided agistment for horses.

10. She was saving with the object of being able to have a small two storey house (she described it as a "doll's house") built on her land. When the house was completed, she intended to spend most of the time improving the land. She reasonably expects in due course to inherit from her father something like six hundred and thirty acres of land adjoining hers. However, she will need to work to have a cash income over and above her nett income from her land sufficient to meet the expenses which would ordinarily arise, expenses such as rates, Pastures Protection Board charges, any repayments needing to made in respect of the mortgage on the house and numerous items which cannot be produced on a small farm even by someone as self-sufficient as the plaintiff obviously was.

11. By the date of the accident the plaintiff had saved $5,000. Additionally she had spent $1,000 in sinking a dam and $1,000 in fencing. She had lived in Canberra since 1975 and I am satisfied that the total of $7,000 was accumulated during her residence in Canberra to the date of the accident.

12. The only evidence of her earnings is in copies of Income Tax Returns for the years ended 30 June 1978, 1979 and 1980, in a letter from Mr Jack Cohn, formerly a director of Quayle Pty. Ltd. which employed the plaintiff during the financial year ended 30 June 1981, and in her Income Tax Assessment for the year ended 30 June 1981.

13. For the financial year ended 30 June 1978 the plaintiff earned a nett profit from livestock trading and sale of vegetables of $450. She made a claim for depreciation in that year of $174. This would have left her, no doubt, with cash in hand of $624. For the year ended 30 June 1979 she made a loss on livestock sales and the sale of vegetables totalling $1,238.50. Included amongst her expenses was a depreciation claim of $441. As well, she earned $2,080 as a cleaner. Assuming she did not set aside the sum claimed for depreciation, she would have had available cash in hand of $1,283. For the year ended 30 June 1980 she earned about $680 for casual house cleaning and babysitting and a small profit of $207, which I take to be a net profit, on livestock sales. Her income for the year ended 30 June 1980 therefore was $887.

14. Things took a turn for the better in the financial year ended 30 June 1981. Quayle Pty. Ltd. employed her from 8 August 1980 until 5 June 1981. For that period of 43 weeks she was paid a total of $5,650.52 from which $1,030.52 was deducted for tax, $131.41 gross and $107.44 net per week. She had a net additional income before taxation of $1,420 as appears from the assessment, Exhibit B. This most probably came from sales of livestock and the sale of garden produce. The assessment shows her net income after tax for the year ended 30 June 1980 to have been $6,100 or $117.30 per week. Her gross income was $7,070.52 or $135.50 per week.

15. A letter, Exhibit G, shows that between March 1982 and December 1984 the minimum average weekly female earnings increased from $279.70 to $358.00, an increase of 28% over approximately 33 months. For the nine months from the date of the accident to March 1982 it seems safe to postulate an increase of 7% so I find that from June 1981 to December 1984 average weekly earnings increased by 35%. In addition three National Wage Case increases, of 2.6% on 6 April 1985, of 3.8% on 4 November 1985 and of 2.3% on 1 July 1986, have to be taken into account. From June 1981 to 1 July 1986, therefore, average weekly earnings would have increased by about 47%.

16. The gross minimum female wage as at 30 June 1981 may therefore be taken as $261.40 per week. It may be taken as averaging $250 per week for the year ending on that date. It follows that for that year the plaintiff earned at about one half of the gross minimum rate.

17. I note from the plaintiff's letter to the Deputy Commissioner of Taxation, part of Exhibit A to which I have earlier referred, that she kept house before the accident for "free rent and keep" and I have no doubt that her ability to earn that free rent and keep formed part of her earning capacity.

18. I am satisfied that the plaintiff would have continued to be capable of earning the amount she earned in 1980/81, suitably adjusted for wage increases, and her rent and keep. No doubt, had she wished, she could have earned more in some full time occupation as a cleaner, housemaid or the like. I think that she would have commended herself to any number of employers as capable of doing such work and hence would have been readily able to get it. But I am also satisfied that the plaintiff would not have earned according to her full potential because of her consuming interest in farm life.

19. I think it far more probable that she would have continued in the general working pattern which she had established but I am also satisfied that sheer economic necessity would have driven her to work at least at the rate at which she worked in the year ended 30 June 1981.

20. Taking account of all the circumstances I think the proper view to take is that the plaintiff would have continued to earn in the past and would have continued to earn in the future an amount equivalent to the total she earned in the year ended 30 June 1981. It is inconceivable that she would have continued to attempt to live on and improve her farm on the very modest amount she earned in the years before 30 June 1980.

21. I think the proper way to assess her loss of earning capacity is to take her earnings for the year 1980/81 as a basis and to adjust the figures for that year to take account of the increases to which I have earlier referred. I am satisfied that I need make no adjustment in respect of her capacity to earn her rent and keep. She continues to live at the address where she lived before the accident, no doubt under the same arrangements, and if she chooses to change the arrangements in the future by going to live elsewhere I do not see how any resultant loss in respect of rent and keep could be attributed to the defendant. At the same time the extra cost of supporting herself would, I think, be reflected in the money she would have to earn and I think this makes it the more likely that she would continue to earn at what, with adjustments, I call the 1980/81 rate. She would thus have more than half of her reasonable working time available for work on her farm.

22. As to her earnings from her farm and from gardening I think the appropriate course is to accept the amount she appears to have earned in the year ended 30 June 1981 as continuing making no allowance for increase because of her reduced physical capacity.

23. On consideration of all the relevant factors, it seems to me that the appropriate amount to award in respect of past economic loss is $32,500.

24. As to future economic loss, I think I should proceed on the basis that in one way or another, either from work of the type she had been doing as an employee or from her own efforts at farming, she would have continued to earn after taxation a net weekly amount of $150.00 per week. This amount is reached after taking into account adjustments in respect of wage increases and balancing the income she would have received in due course from her farm and the land she hopes to inherit from her father against what she would have needed to earn to live frugally as, no doubt, she would have.

25. Some small allowance must also be made for the fact that her circumstances might, during the rest of her working life, have become so altered as to force her to seek continuing full time employment.

26. I am satisfied that the plaintiff would have continued to work at least until the age of 65. That expectation takes no account of unfavourable contingencies but, using that date as a starting point and allowing the usual discount figure of 3%, I think that for future economic loss there ought to be an allowance of $100,000. This takes account of her probable need to employ assistance, at least at some times, on the farm. In this regard, I accept the unchallenged statement of her father in the document, Exhibit H.

27. I accept the evidence of the assistance which she needed during her long convalescence and for the Griffith v. Kerkemeyer ((1977) [1977] HCA 45; 139 CLR 161) component. I allow $12,500 on this account. This makes allowance not only for past assistance but for the likelihood that in due course she will require, after the very probable onset of severe arthritis, some assistance in carrying out ordinary domestic tasks.

28. A claim was made in respect of the cost of swimming in which she engaged as a therapeutic measure. I do not think that she will continue to swim at the same rate as she has in the past for the next 20 years. For this and for future out-of-pocket expenses I allow a total of $6,000.

29. For general damages for pain and suffering and loss of enjoyment of life including particularly the partial destruction of her hopes that she would end her days as an active pastoralist, I think the sum of $55,000 is appropriate. In fixing this amount I have regard to the risk of an overlap between it and the amount allowed for future economic loss but in all the circumstances I think the figure I have allowed takes due regard of that risk.

30. Out-of-pocket expenses are agreed at $24,691.50.

31. There will be judgment for the plaintiff in the sum of $230,691.50.