Adams v McDonald [1999] ACTSC 41 (7 May 1999)

Last Updated: 7 October 1999

Adams v McDonald [1999] ACTSC 41 (7 May 1999)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Plaintiff a front seat passenger when the vehicle left the road and hit a tree - Driver was killed - Fracture to the vertebra of her lumbar spine requiring spinal fusion and a bone graft - Ongoing restriction of movement in her back and pain - Fractured nose - Post traumatic stress disorder and depression - No issue of principle.

No. SC 41 of 1998

Coram: Master T Connolly

Supreme Court of the ACT

Date: 7 May 1999

IN THE SUPREME COURT OF THE )

) No. SC 41 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: EMMA ADAMS

Plaintiff

AND: JACQUELINE JENNIFER

McDONALD

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 7 May 1999

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $349,891.48.

2. Costs reserved.

1.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred in the early hours of Sunday on the Australia Day weekend in 1992. The plaintiff, who was 20 at the time and a Canberra resident, was staying with her family at Albury, and had attended on the Saturday a pop concert at Yarrawonga in Victoria with a boyfriend. The entertainment commenced at around 6.30 in the evening and they left the venue at around 1.00am, intending to make the drive back to Albury.

2. They were travelling along the Murray Valley Highway towards Albury and had been travelling for about fifteen or twenty minutes when the driver, Mr McLachlan, asked the plaintiff to open a can of drink for him. She was a front seat passenger wearing a seat belt, and she leant down to obtain the drink from below the seat of the dual cab utility. She says that as she was trying to retrieve the can from under the console part between the seats she

"...heard a noise and I looked up and I realised we were on the side of the road and I called out to him and that's when he swerved the car to the right and then to the left and then the car slid off the road."

The car then continued through some bush until it hit a tree.

3. The driver of the vehicle was killed in the accident. These proceedings are brought against the defendant who was the registered owner of the vehicle at the time. Liability was, properly, admitted at the hearing and the matter proceeded by way of an assessment of damages only.

4. There is no question that this was a serious impact. The plaintiff could see that the driver was very seriously injured, and could hear him trying to breathe. She could smell petrol and hear a clicking noise, and became very fearful that the vehicle would catch fire and explode. She tried to get out of the car, but found that her legs would not work. She opened the door and fell to the ground, and dragged herself to the side of the road where she was eventually able to attract the attention of a passing motorist. Another driver went back to summons assistance and someone stayed with the plaintiff. She says that this person checked the vehicle, but didn't say anything to her about Mr McLachlan. She was told that he had died by police before she was taken by ambulance to Wangaratta Hospital before being transferred to the Austin Hospital in Melbourne.

5. In the accident she sustained a fractured dislocation of the L3 vertebra and a fractured nose, as well as lacerations to the face and bruising to the chest, legs and abdomen. She was stabilised at Wangaratta and an open reduction fixation was performed to the fracture at L3 at the Austin Hospital, where she remained an inpatient for two weeks. She was then transferred back to Albury wearing a back brace. Some surgery was also performed on her nose.

6. The plaintiff was assessed for rehabilitation at Albury, but it was recommended that she not commence physiotherapy until the back brace was removed, which did not occur until May. She then commenced a course of physiotherapy. She developed some pain from the site of her bone donor site, and in October 1992 Dr McCarten treated the scar tissue with an injection of Kenacort.

7. The plaintiff had been born in England, but moved to Australia with her mother before she started school, and was educated in Australia. She left school half way through Year 12 in 1988 due to glandular fever, but she commenced some accounting and bookkeeping studies at a TAFE College. She said it was always her intention to combine work and part time study so as to eventually obtain accounting qualifications. She worked as an accounts clerk for an air freight company from January 1989 to mid 1990, when she embarked on an overseas trip, originally for family reasons. On her return to Australia in late 1991 she found employment with a Canberra company as a receptionist and clerk, and said that it would have been her intention to improve her qualifications by way of part time study had the accident not intervened. In July 1992, while she was still recovering from the accident, she in fact commenced study at the Albury TAFE towards an advanced commerce certificate.

8. Ms Adams continued with her studies, although she says that she had some problems with ongoing back pain, and nightmares and other symptoms which have been diagnosed by her doctors as being consistent with post traumatic stress disorder. There seems to be general agreement between the plaintiff's doctors and the defendant's doctor that the plaintiff has sustained a fracture to the vertebra of her lumbar spine which has been resolved by way of spinal fusion involving metal plates and a bone graft, and that this has resulted in some restriction of movement in her back, and some ongoing pain. There has been no challenge to the evidence of the plaintiff's doctors that the accident has produced a psychological sequelae of post traumatic stress disorder and some depression.

9. In mid 1993 the plaintiff underwent a residential rehabilitation course with the Victorian Transport Accident Commission rehabilitation unit. In December 1993 she married, and a daughter was born in June 1994. She commenced some part time work in June 1996 as a bookkeeper, and in September 1996 gave birth to her second child, a son. Unfortunately her marriage broke down in December 1997, and she has been caring for her children by herself since then.

10. The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, `in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

11. In the present case I assess general damages on the basis of the plaintiff suffering a major injury to her back which has resulted in surgical intervention, and which, despite the general success of that procedure, continues to give rise to some ongoing pain. I note that Dr Vote, her consultant orthopaedic surgeon, said in a report of 9 July 1998 that the plaintiff presents as

"...a very genuine patient who sustained a severe injury to her back which has been well treated and now has a stable spine but restriction in terms of range of movement and mechanical effectiveness of the spine."

He noted that she

"...complains of back ache particularly relating to mechanical and postural stresses."

12. Dr Buckley, a consultant physician in rehabilitation medicine, examined the plaintiff and reported to her solicitors in November 1998 and January 1999. In his report of November 1998 he expressed the view that the plaintiff would be at an increased risk of developing osteoarthritic pain at the site of the surgery, and that she would require assistance in heavier household tasks from about the age of 50. I note that this is at odds with the prognosis of her consultant orthopaedic surgeon, Dr Vote, who said

"I would consider her prognosis is quite good though I do not think she will improve past the point where she currently is."

13. This is broadly in line with the view of Professor Oakeshott who examined the plaintiff for the defendant, and reported in March 1998 that

"I expect no further deterioration in her present condition. I expect no improvement in her present back condition."

14. I am satisfied from the reports of Dr Whitaker, consultant psychiatrist, that the plaintiff has sustained ongoing psychological consequences from the accident, in the form of post traumatic stress disorder and depression, although the post traumatic stress disorder seems on all of the evidence to be resolving, leaving a degree of ongoing depression with, on Dr Whitaker's opinion

"...more serious depression...a distinct probability in the future."

15. Counsel for the defendant acknowledged that this was a case where a substantial injury had been suffered by the plaintiff. I must take into account the fact that the injury occurred to a young woman of 20 years of age, who had been in good health and who enjoyed a range of active sporting and recreational pursuits. While she has had what her own doctors describe as a good recovery from a successful surgical intervention, she remains limited in her range of movements and this limits her recreational pursuits and all aspects of her daily activities, although she has of course managed to bring up her children. I must also take account of the fact that her back pain is a problem in lifting and playing with her children.

16. Taking all of this into account I would assess general damages in the sum of $85,000. I note that the plaintiff will continue to experience ongoing back pain and that the psychological impact of the accident will persist, so it is appropriate to attribute $50,000 of this sum to past injury. I note that a sum of $9,606.36 was paid by way of an impairment payment from the statutory insurer in October 1995, and I must take this into account in assessing the appropriate award of interest. (Batchelor v Burke [1981] HCA 30; (1981) 148 CLR 448). I award interest in the sum of $6,598.

17. Out of pocket expenses were agreed in the sum of $51,243.41 which I award. As this has been paid by the insurer no interest is appropriate. There was also a payment made to the plaintiff's mother by way of a carer's allowance. It was not clear at the hearing whether the sum was included in the particularised out of pockets claim. I gave the parties leave to clarify this point and on 3 May received a letter which indicated that the $51,243.41 did not include the additional carer's allowance. A claim for future treatment expenses was particularised in respect of future psychiatric treatment and future attendances on general practitioners and specialists in relation to her back, and in respect of medication for pain relief amounting to a claim for some $24,000. Claims for future treatment expenses are necessarily somewhat difficult to quantify with precision, and in his submission counsel for the plaintiff said that in all of the circumstances an award in the order of $10,000 for future expenses would be appropriate. I agree, and award this sum in respect of future treatment expenses.

18. The plaintiff's past economic loss claim was originally particularised as a claim for loss of wages from the date of the accident, 26 January 1992 to 31 May 1994, when the plaintiff says she would in any event have ceased work due to the birth of her first child in June 1994. This was particularised as a claim for the closed period at $294.03 a week, resulting in a claim for $49,691.07. After addresses commenced it became apparent that counsel for the plaintiff wished to pursue an additional claim by way of a buffer claim beyond this date, which had not been particularised. The matter was adjourned so that the plaintiff could properly particularise this claim, and re listed so that the defendant could have the opportunity to test this claim, which had not been before them on the first day of hearing.

19. I am satisfied that the original claim is well made out, that is, that the plaintiff did suffer an economic loss from the date of the accident until 31 May 1994. I am satisfied that the loss is as particularised, and award the sum of $49,691.07. I note that the plaintiff has received the sum of $38,926.90 by way of loss of earnings payments from the statutory insurer, which must be repaid and which is relevant to the assessment of the interest on the past wage loss.

20. Counsel for the defendant submitted that this should be the outer limit of any past economic loss claim, and that, since the birth of her first child, the plaintiff has been capable of work, but has instead been occupied in the role of a parent, with the exception of some part time work from time to time. The plaintiff puts the past buffer case in two ways. It is said that the plaintiff's intentions had been to establish herself in a career in accounting before having children, but that as a result of the accident her plans to have children were brought forward. I note that this is at odds with a history given in a report presented in the plaintiff's case in relation to the timing of the plaintiff's first child (Report of Dr Kenny, 16 August 1994 at page three). In any event, it seems to me that it is somewhat artificial to say that but for the accident the plaintiff would have started a family but at a later date, and because of the accident the family was started when it was.

21. I do accept, however, that the plaintiff does suffer from ongoing back pain, and while she has been able to cope alone with two small children, which is no easy task, she has not been able to combine this role with part time study to improve her qualifications or ongoing part time work as a bookkeeper or clerk which, but for her ongoing pain and depression may have been possible. I am thus not satisfied that the defendant is correct in saying that from the date that the plaintiff accepts she would have ceased full time work for the birth of her first child there is no evidence of any ongoing diminution of earning capacity. On the contrary I am satisfied that, while the plaintiff has been able to cope with the responsibility of bringing up her children, lately by herself, she has been precluded from otherwise exercising her pre accident earning capacity, and this must sound in an award of damages for economic loss by way of a buffer. Doing the best I can, and being mindful of what the Full Bench of the Federal Court said in relation to global buffer approaches to damages in Fry v McGufficke [1998] 1499 FCA, I would award the sum of $20,000 in respect of economic loss for this period. This amounts to a total award for past economic loss of $69,691.07, which I award.

22. The plaintiff received ongoing payments from the Transport Accidents Commission for three years following the accident in the sum of $38,926.90, which is repayable but which also must be taken into account in relation to interest. Interest on the adjusted sum amounts to $12,100, which I award, making a total award of $81,791.07.

23. As the plaintiff has paid tax on her earnings by way of payments from the statutory insurer it is appropriate to make an award under the principle of Fox v Wood which should be in the sum particularised of $3,259.00.

24. The plaintiff makes a claim for future economic loss. This is particularised as a claim based on the plaintiff being unable to work for more than 20 hours a week. I am not satisfied that this is made out. There is a significant degree of agreement between the medical reports for the plaintiff and the report tendered for the defendant in relation to the plaintiff's abilities in this respect. Dr Buckley in his report of January 1999 says

"With regard to her physical status, I believe that my previous suggestions are correct, in that she is unfit for heavy manual work but is fit for sedentary work, provided she is able to move around from the seated position regularly."

25. Dr Corry, a consultant in rehabilitation medicine who reported for the plaintiff in February 1999 broadly agreed, saying that

"Her present described physical limitations would suggest that she would have physical capacity to work in duties of a sedentary or light nature."

26. Dr Vote in his report of July 1998 said

"I think her employment capabilities may well be compromised to a degree in that she will obviously not be fit for heavy work and will be best suited by a light sedentary and part ambulatory position."

27. Dr Oakshott, who reported for the defendant, said in his report of March 1988

"I consider that she is fit for full time work. I would suggest that any job she applies for in the future should avoid heavy lifting or constant or repetitive bending."

28. I am satisfied from all of this that the plaintiff is capable of full time employment in her preferred field of clerical and bookkeeping work in relation to the physical effects of her accident. I must note, however, that the evidence from her psychiatric experts does indicate that her post traumatic stress and depression is a factor. Dr Whitaker said in his report of January 1999 that

"Mrs Adams' low stress tolerance, impaired concentration, and other cognitive impairments, and her difficulty in coming to terms with the psychological disaster which has befallen her, will permanently (as far as I can see) reduce her employability in other than a heaven sent tailor made job."

I take this into account, and note that the defendant did not challenge the psychological evidence.

29. I must also note however that the plaintiff has, since the accident, successfully completed studies towards a TAFE certificate in accounting. She gave evidence that she intends to go on to obtain a tertiary qualification in accounting, and that, if it were not for the demands of looking after her children, she would be studying part time now. She agreed that she could perform non heavy work, and that she was improving emotionally. She made it clear that it is her intention to go on and obtain further qualifications. She said

"My intention has always been to get my degree. I think that I'd have a much better chance of gaining employment if I had my degree, especially seeing I have been out of the work force now because I have had children and so forth that I need to be more competitive and I would hope to have a degree before I seek full time work."

30. She indicated that she would expect to commence studies next year, when her youngest child is able to be in pre school. She said

"I would go to work full time when both the children had reached school."

31. I am satisfied that the plaintiff, who impressed me as a truthful person and as a person with a real determination to get on with her life despite this accident, will indeed be able to either work or study when her children reach school age. But I am also satisfied that her accident related disabilities will continue to impact on her earning capacity. I am satisfied that, if it were not for the accident, she would have been able to continue with part time work or study after the birth of her children. I am satisfied that she would, but for the accident, have continued with part time studies I am quite satisfied from observing the plaintiff that she has the capabilities to have successfully completed those goals. While she may well yet attain her professional accounting qualifications, she is well behind where she otherwise would have been.

32. Quantifying such a loss is a difficult matter. Counsel for the plaintiff acknowledged that this could not be done on an arithmetic basis, and suggested a buffer in the range of $100,000 to $200,000. Taking into account all of the evidence, and doing the best that I can, being mindful of what the Full Court said in Fry v McGufficke, I would assess future economic loss in the sum of $100,000, which I consider appropriate given the age and circumstances of the plaintiff, and which would also be in the same range as a finding based on an ongoing wage loss of around $100 a week. It seems to me, on all of the evidence, that this is an appropriate award.

33. There is a claim for damages for gratuitous care and assistance for the past and the future. The claim for the past amounts to a claim for a period immediately following the accident where the plaintiff's mother left her employment to provide intensive care at around four hours a day for three months. This is particularised as a claim for $8,064, which I award, noting that a carer allowance had been paid to the plaintiff's mother by the statutory insurer which will need to be repaid. There are also two periods where it is said that the plaintiff was assisted by her husband and in-laws following the birth of her children. The plaintiff has claimed two sums of $1,260 to cover this assistance, which seems appropriate, making a total award for past assistance in the sum of $10,584, which I award. Taking into account that part of this was in fact paid, I would round this up to $12,000 to allow for interest on the past loss.

34. There is a claim for future assistance. Dr Buckley, the plaintiff's consultant physician, has provided an opinion that because of the plaintiff's fusion, she is at greater risk of developing osteoarthritic changes in the future. He has said in a report of 14 November 1998 that from the age of 50 the plaintiff will require three hours of handyman assistance a week and five hours of housekeeper assistance. This has been particularised as a claim for 8 hours from the age of 50 to a claim for $56,094.00.

35. I am not satisfied to the requisite standard that Dr Buckley is able to look forward some twenty years and derive a precise need for such services for eight hours a week.

36. I note that the plaintiff is now fully independent. I note that the orthopaedic surgeons for both plaintiff and defendant do not predict a deterioration from the plaintiff's present condition. I am not satisfied that a claim for future domestic assistance is made out.

37. This amounts to a total award of $349,891.48 which I consider to be appropriate in all of the circumstances and award. The parties asked me to reserve on the question of costs, and I will hear the parties on that point.

I certify that this and the eleven (11) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 7 May 1999

Counsel for the Plaintiff: Mr R Crowe

Instructing Solicitors: Pamela Coward & Associates

Counsel for the Defendant: Mr P O'Connor

Instructing Solicitors: Phillips Fox

Dates of hearing: 9 March and 12 April 1999

Date of judgment: 7 May 1999