Mary Carol Tait v Jim Chinh-Minh [1996] ACTSC 81 (26 July 1996)

SUPREME COURT OF THE ACT

MARY CAROL TAIT v. JIM CHINH-MINH
No. SC223 of 1995
Number of pages - 8
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER T. CONNOLLY

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Soft Tissue Injury to Neck - Severe Migraine Headaches - Loss of Opportunity - Future Economic Loss - No Issue of Principle.

Brandi v Mingot (1976) 12 ALR 551

Wynn v NSW Insurance Corp [1995] HCA 53; (1995) 70 ALJR 147
Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Medlin v State Government Insurance Commission [1995] HCA 5; (1994-5) 182 CLR 1
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327

HEARING

CANBERRA, 8, 9 and 15 July 1996
26:7:1996

Counsel for the Plaintiff: Mr R. Williams QC and Mr F.G. Parker

Instructing Solicitors: Phillips Fox

Counsel for the Defendant: Mr D.D. Feller

Instructing Solicitors: Deacons Graham and James

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $251,274.35, subject to credit for those out of pocket expenses paid to date by the defendant.
2. The defendant pay the plaintiff's costs.

DECISION

MASTER T. CONNOLLY This is a claim for damages for personal injuries arising from a motor vehicle accident on 16 April 1994. Liability was not in issue, and the matter proceeded by way of an assessment of damages only.

2. The plaintiff, Mary Tait, was born on 9 April 1959 in Hong Kong. She moved back to Australia at age 8 with her family and was educated to the end of High School in Sydney and Kiama. She left school at age 17 having completed year 12. In 1978 she completed a tax consulting course with H and R Block, a national chain of tax agents, and worked for that firm in the 1978 "tax season" which runs from the end of the financial year until about September or October.

3. The plaintiff married around this time and her first son was born in 1979. She worked full time for a pharmaceutical company before her son's birth in March. The family moved to Brisbane in 1980 where the plaintiff's husband joined the Army. The family then moved to Adelaide. Another child was born in 1981, and in 1983. During this time, despite her young family the plaintiff worked during most tax seasons for H and R Block until 1986. By this time she was doing more bookkeeping type work, and she then commenced part time work, for about 25 hours a week, for an Adelaide solicitor.

4. The plaintiff obtained a position with the National Farmers Federation in Canberra in April of 1988, and the family moved to Canberra. Her husband had left the Army, and was looking to establish a small business, which he eventually did, but I accept that the main reason why they moved to Canberra was because the plaintiff had secured a position. She was appointed as assistant to the Director of Finance at the National Farmers Federation, Mr Ceramidas, who was married to the plaintiff's sister.

5. It was clear from the evidence of both the plaintiff and Mr Ceramidas that this was a demanding and responsible job, but that the plaintiff thrived in it. Mr Ceramidas gave evidence of the quite complex structure of the National Farmers Federation and its associated entities for which he was responsible, and said that, over time, the plaintiff was gradually taking on more responsibility. It is clear from letters tendered in evidence that the plaintiff was held in high regard by both Mr Ceramidas and Mr Farley, the then Executive Director of the Federation. Her duties involved a range of bookkeeping and administrative duties, including management of the building and its various tenants, and the range of funds and associated companies, under Mr Ceramidas' general supervision.

6. The plaintiff's marriage ended in divorce in April of 1995. She had separated from her husband in October 1993, and in the year following the separation until the accident, she said that she felt "a new start to life". She was coping with the sole responsibility of caring for her children, and enjoying her work. She was looking to purchase her own home, and secured a Commissioner for Housing loan which enabled her to do this. The purchase was in fact completed shortly after the accident.

7. The plaintiff and Mr Ceramidas both said that at this time her prospects at the National Farmers Federation were bright. Her salary at the time was a package of around $36,700, but this was under review. In fact in January 1995 her position was reclassified as "Assistant Director" and the salary raised to $38,000. This has since grown, and the present appointee is on a $44,000 package, although Mr Ceramidas acknowledged that this person has degree qualifications, which will attract some additional salary. Moreover, there was at the time some thought being given to appointing a separate company secretary to some of the National Farmers Federation entities for which Mr Ceramidas was secretary, and the plaintiff and Mr Ceramidas both said that the plaintiff would have a very strong chance of securing this appointment. In fact this position has been created and filled, with the successful applicant on a package of some $80,000, although again this person has degree qualifications. Nevertheless Mr Ceramidas said that, had the plaintiff been in a position to apply she would have been his choice, on a package of perhaps $70,000 to $72,000.

8. The motor vehicle accident of 16 April 1994 occurred as the plaintiff was driving south along Northbourne Avenue in Braddon. She was struck from the left by the defendant's vehicle which emerged from Elouera Street. The impact forced the plaintiff's car sideways into the middle lane of traffic. She says she felt a jolt, and was sore in the neck. She was able to drive home. The next day she felt very sore with headaches and a sore neck. She attended a local General Practitioner, and x-rays were taken. She had tingling in her fingers and a pain in the foot. She attended chiropractic sessions, but these were not helpful.

9. Her condition was not improving in the weeks following the accident, and she saw Dr Keiller on 19 May 1994. He found that she was still having headaches and neck pain, and said "This lady sustained painful, but non-serious bruising to various areas and soft tissue injuries to her neck and low back, in the accident described. The history and findings were consistent with such a cause." At this time she was still off work, but was hopeful of soon returning, a course recommended by Dr Keiller.

10. About a week after this consultation the plaintiff had a severe headache with numbness over the whole right side of her body, and difficulty with her speech. This, understandably, caused her considerable alarm and a friend took her to the Accident and Emergency Section of Woden Valley Hospital, from where she was referred to Dr Danta, a neurologist. In his report of 1 June 1994 he said "The attack of right-sided numbness with the presumed dysphasia followed by a headache is fairly typical of migraine which is known to become aggravated by or come on for the first time following a neck injury."

11. Dr Danta, who gave evidence in person and was subject to cross examination, made it clear that it is now broadly accepted that motor vehicle injuries which result in soft tissue type damage can, in a minority of cases, also lead to migraines, which will persist for some years before subsiding. He said that this would occur typically after 5 to 10 years, but conceded that, given the subsequent progress the plaintiff has made that this case would be at the lower end of that spectrum.

12. Dr Danta continued to see the plaintiff regularly in mid 1994. He said in a report to the plaintiff's general practitioner on 20 July 1994: "I reviewed this patient on the 18th July. She still has the headache. After the accident the headache was continuous for five or six weeks. It then became somewhat intermittent, but she still had it about 80% of the time, and since she returned to work some three weeks ago or so working from 9 till 12, the headache has again become continuous. After discussion we decided to admit her to hospital for DHE injections. On the whole she is improving and is coping well at work and hopes to increase her hours."

13. The plaintiff did spend some 6 days in John James Hospital in July 1994 undergoing a course of intravenous therapy designed to reduce her migraines. She described this as a most unpleasant experience, although it did reduce the severity of her migraines. She was then prescribed Deseril as a migraine prophylactic, and Dr Danta recorded in August that this was proving effective, with severe headaches present only about 20% of the time, but a "very mild" headache present 90% of the time. The plaintiff gave evidence that she began to develop unpleasant side effects from the medication, which Dr Danta recorded in December 1994 as visual hallucinations. The medication was changed in late 1994, and this seemed to be fairly effective through 1995.

14. The plaintiff complained to Dr Danta early this year of increased migraine, and associated numbness, and he again admitted her to John James Hospital for intravenous therapy. This proved an even more unpleasant experience than the first course, and at one point the intravenous line was lost. The therapy was then discontinued.

15. The plaintiff was seen again by Dr Keiller in October 1995. He reported that from an orthopaedic point of view she had a full range of neck movement. He said: "Apart from the migraine, she has minimal nuisance value symptoms, which are genuine, but which do not amount to impairment of function, as defined by the tables of the American Medical Association, such as to constitute disability or handicap." However, he acknowledges that migraine was not within his expertise, saying: "I will leave any remarks about her migraine to Dr Danta, except to say that migraine is frequently precipitated or aggravated by a neck injury."

16. This is consistent with the views of Dr Goldrick, who examined the plaintiff for the defendant in August 1995, and who reported that the plaintiff had suffered whiplash type injuries which had now largely resolved.

17. It is clear that the plaintiff's present disabling condition is the migraine rather than her neck or soft tissue type injuries, which I accept have now largely resolved to nuisance value symptoms. In relation to the migraine, I have the various reports of Dr Danta and his oral testimony, which presents a picture of a real and substantial disability, albeit one which permits the plaintiff to work on a restricted basis for twenty hours or so in bookkeeping activities and for longer hours on lighter duties, and which should resolve within a period of some years. The plaintiff was examined by a specialist in this field at the behest of the defendant, a Dr Jubert, in May 1996, but his report was not produced. In these circumstances I am entitled to infer that this report would not have been of assistance to the defence case (Brandi v Mingot (1976) 12 ALR 551 at 559).

18. The difficulties which the plaintiff has suffered due to the migraines and the invasive unpleasant treatments which she has undertaken, must sound in general damages and lifts this claim well above what it would be if it were solely a soft tissue whiplash claim. I also bear in mind that the unpleasant effects of the migraines are, on Dr Danta's evidence, likely to continue for some years. I award $50,000 for general damages, $30,000 of which is for past loss, generating interest of $1,362.

19. In assessing economic loss it is necessary to examine the plaintiff's work history since the accident, and her evidence of what her expectations for employment during this period were.

20. In the year following the accident it is clear that the plaintiff hoped that her symptoms would resolve and that she could return to her full time work at the National Farmers Federation, where her prospects were bright. She attempted a graduated return to work, but it is clear from the evidence of the plaintiff and Mr Ceramidas that this was not successful. The plaintiff said that her headaches were affecting her concentration, and that she was not coping. She sought to negotiate a return to work on a permanent part time basis, working 25 hours a week, 9am to 2pm for 5 days. The prospect of part time work was acceptable to her employers, but Mr Ceramidas said that he was not prepared to guarantee fixed minimum hours, and was in fact proposing casual employment. On 1 February 1995 the plaintiff accepted a proposal to work on a casual basis, but on 3 February she resigned.

21. The plaintiff said that this was because she could not accept casual employment with no guarantee of hours. She was at this time supporting her children and had mortgage commitments. Instead, she took up a position at normal hours with "Farmhand", a charitable body set up under the auspices of the National Farmers Federation to assist Australian farmers facing difficulties from the prolonged drought.

22. This employment was paid at the rate of $17 per hour, which was similar to her previous employment, but the duties of answering the telephone and recording donations and requests for assistance, were considerably less demanding in terms of concentration and attention. Employment records from Farmhand show that in the period February 1995 to August 1995, when the Farmhand project concluded, the plaintiff in fact worked at near full time hours with many 7 to 8 hour days, and indeed some longer days.

23. At the conclusion of the Farmhand contract, the plaintiff established her own business, Systemic Office Skills, to provide bookkeeping services. This business was in fact set up in March 1995, but showed no profit in its first 1994-95 tax year. Figures provided by the plaintiff show that the business has grown through 1995-96. While its net profit for 1995-96 was $6,935.44, I accept the argument that this understates its real worth as a business, and that if it continued through 1996-97 and the future on the basis of its second six months performance (which is consistent with the plaintiff's evidence that she is now working to her full capacity), it would be generating about $16,958.88, or $326.13 per week gross to the plaintiff.

24. It is thus apparent that the plaintiff retains a real earning capacity, and to her credit, she has sought to mitigate her loss and exploit her capacity by establishing and building a bookkeeping business.

25. Counsel for the defendant argued that, as the plaintiff was capable of working on virtually a full time basis from February to August 1995, this establishes that there has in fact been little or no incapacity since then. I am unable to accept this argument, as I accept the plaintiff's evidence that this work, involving essentially telephone answering, was considerably less taxing than her normal bookkeeping duties. I find that, while she could work full time on such light duties, her migraine condition continues to represent a genuine barrier to her pre accident earning capacity.

26. It was further argued that, with the plaintiff being at home now with her part time business, together with some sole parent income support she has received and the maintenance paid in respect of her children, she "...has assumed a different type of lifestyle", and that to some extent this has been a matter of choice.

27. In so far as this suggests that the plaintiff should be assessed on the basis that she may, regardless of the accident, have chosen to leave full time employment or at any event reduce her hours to spend more time with her children, I would repeat the words of the High Court in Wynn v NSW Insurance Corp [1995] HCA 53; (1995) 70 ALJR 147 at 151: "So far as concerns the prospect of reduced participation in the workforce, there is nothing in the evidence to suggest that the (plaintiff) was any less able than any other career orientated person, whether male or female, to successfully combine a demanding career and family responsibilities."

28. The plaintiff did give evidence that the possibility of establishing her own business in the bookkeeping area, where she could work from home with greater flexibility, had long been on her mind, but said, and I accept this, that this would be weighed against career opportunities at the National Farmers Federation, where she both enjoyed her job and had realistic prospects of significant advancement.

29. In respect of the plaintiff's past economic loss, I am satisfied that her claim, as particularised, is broadly made out. This is based on the difference between her notional earnings had she continued at the National Farmers Federation, and her actual earnings to the trial date, from the National Farmers Federation, Farmhand and her own business, Systematic Office Skills. While the defendant argues that the business earnings are understated, as they do not fully reflect superannuation payments, it is equally true that the plaintiff's claim is projected on her actual 1995 earnings, which, on the evidence, were highly likely to have increased.

30. I award $30,000 for past economic loss, with interest of $3,207.

31. In respect of future economic loss, I must take into account a number of probabilities in arriving at a verdict. In such a case a court must, of course, assess the degree of probability that those future events would occur, and assess damages to reflect this - Malec v Hutton [1990] HCA 20; (1990) 169 CLR 638.

32. The factors which I must attempt to bring into balance in looking at the future are the likelihood of the plaintiff's promotion, and the expected duration of her disabilities. The evidence of Mr Ceramidas and the plaintiff satisfy me that it is more likely than not that the plaintiff would have attained a significantly higher level of remuneration had she been able to continue in her employment. I accept the concession from the plaintiff's Counsel that it is unlikely that her earnings would have reached the $80,000 level, but I do accept that they would have moved well beyond the $36,000 she was in fact earning.

33. In the course of arguments the plaintiff's Counsel prepared a set of calculations based on a range of salary levels, from $38,000 to $44,000 on small increments, and then on $70,000 and $72,000. I find that, while $44,000 is perhaps too low, $70,000 is too high, and that, on the evidence before me her earnings would probably have been at around $700 net per week. Her present earnings from her company are a matter of some dispute, but I will accept that it is at least $200 per week, leaving a net loss attributable to the accident of $500 per week.

34. I must also make a finding of the duration of this loss. The evidence of Dr Danta is that her disability will persist for from 5 to 10 years, probably at the lower end of this range.

35. A net loss of $500 per week for 6 years would amount to an award of $121,889.61 with a normal discount for contingencies of 15%. I consider this to be an appropriate sum.

36. I must, however, also consider a buffer to reflect a lost opportunity. While the evidence establishes that the plaintiff will, more likely than not, recover her full capacity in about 7 years, and while the evidence of Mr Ceramidas is that the National Farmers Federation could well be prepared to again engage the plaintiff, her chance to achieve the type of promotion that she would have had as her position had been upgraded, and a new position created has been lost. This loss of a one-off opportunity must sound in damages - Medlin v State Government Insurance Commission [1995] HCA 5; (1994-5) 182 CLR 1 - and as a consequence, I adjust the award for loss of future income to $140,000 as a global sum.

37. Out of pocket expenses have been agreed at $10,705.35, and I note that of this $5,905.35 has been paid to date by the defendant. I accept that expenses will be continuing for the period of her disability, and award $12,000 under this head.

38. There is a Griffiths v Kerkemeyer claim particularised at a claim to date of $15,400 with an ongoing claim of $40 per week. This claim was only able to be supported by oral testimony of the plaintiff, her spouse and a friend, and a very rough calculation of times provided in the plaintiff's handwriting. Counsel for the plaintiff acknowledged that the claim has not met the level of the particulars, but he said, and I accept, that the plaintiff's ongoing disabilities have required gratuitous assistance from family members going beyond the ordinary give and take of domestic affairs (Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327). I award $4,000 as a discretionary sum under this head for past and future loss.

39. This amounts to an overall award of $251,274.35 which I consider is appropriate in the circumstances.