Labuda v Langford [2001] ACTSC 108 (16 November 2001)

Last Updated: 4 May 2002

Bogumila Labuda v Anne Maree Langford

[2001] ACTSC 108 (16 NOVEMBER 2001)

CATCHWORDS

DAMAGES - motor vehicle collision in New South Wales - injury to cervical spine - no evidence of disc protrusion until CT scan years later - whether sufficient continuity of symptoms in meantime - there was.

DAMAGES - Motor Accidents Act 1988 (NSW) restrictions of damages under various heads - proportion in relation to "a most extreme case" - out-of-pocket expenses - sufficiency of proof - future loss and percentage likelihood - interest - whether calculable before damages awarded and announced.

Motor Accidents Act 1988 (NSW), s 79

Limitation Act 1985

John Pfeiffer Pty Limited v Rogerson [2000] HCA 36 (2000) 74 ALJR 1109; (2000) 172 ALR 625

El-Syoufi v Alcazar [2000] ACTSC 109

Southgate v Waterford (1990) 21 NSWLR 427

Grincelis v House (unreported, Supreme Court of the ACT, 11 July 1997)

Black v Lipovac (unreported, Supreme Court of the ACT, 4 June 1998)

Ren v Mukergee (unreported, Supreme Court of the ACT, 12 December 1996)

Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402

No. SC 691 of 1996

Judge: Miles CJ

Supreme Court of the ACT

Date: 16 November 2001

IN THE SUPREME COURT OF THE )

) No. SC 691 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: BOGUMILA LABUDA

Plaintiff

AND: ANNE MAREE LANGFORD

Defendant

ORDER

Judge: Miles CJ

Date: 16 November 2001

Place: Canberra

THE COURT ORDERS THAT:

1.

ASSESSMENT OF DAMAGES FOR PERSONAL INJURIES

1. The plaintiff was injured on 13 July 1990 when travelling as a passenger in a car driven by her husband on the Bradfield Highway just south of the Sydney Harbour Bridge. The car was stationary. The defendant was driving another car in a line of traffic behind the plaintiff's car. The defendant ran into the vehicle in front of her car, causing what counsel described as a "rear end shunt" in the line of traffic. As a result the plaintiff's vehicle was rammed by the vehicle immediately behind, throwing the plaintiff about and causing her injury. The nature, extent and duration of the injury is what the case is mainly about.

2. A writ of summons (a process which has since been abolished) was issued under the common law system of procedure on 19 August 1996. The statement of claim attached to the writ alleged that the plaintiff's claim was in negligence, and, therefore, on the face of it likely to be barred by the relevant statute of limitations. The writ was served on 10 February 1997. A defence was filed on 25 July 1997 in which the defendant denied everything alleged in the statement of claim, including the collision itself, and relied also on the statutes of limitations of New South Wales and the Territory. However an extension of time in which to sue was granted by this Court on 31 October 1997. Eventually liability was admitted on 9 March 1998.

3. A final certificate of readiness was filed on 14 December 2000 and on 2 March 2001 a hearing date was fixed.

4. The facts relevant to damages are relatively straightforward but it is necessary to set them out in a little detail. The plaintiff was an articulate and, in my view, truthful witness whose evidence was corroborated as far as might be expected by that of her husband and that of a friend.

5. The plaintiff was born on 5 September 1952. She married in 1977. She has three adult children. She has various tertiary qualifications in language teaching, childcare and disability care. At the time of the collision she was living in Newcastle and was travelling to Mascot Airport in order to deliver a friend there. Immediately after the collision she noticed "the pulling to the back." She completed the journey and returned to Newcastle with her husband driving the car as planned. The morning after the collision she noticed a headache, pain and restriction of movement in the neck and pain in the left shoulder. She attended her general practitioner, Dr E Balaz, and was advised to take pain-killing medication. However, Dr Balaz, found full movement in the neck at that stage. The plaintiff saw Dr Balaz or her locum for a sore throat and tonsillitis later during the year, but there was no further complaint of neck pain until 5 November 1990 and only one further complaint of that nature to Dr Balaz on 28 May 1991. The plaintiff's evidence was however that she continued to have intermittent but repeated pain and continued to take pain-killing medication. She continued at her work as a language teacher at the Merewether School of Languages until the family came to Canberra in March 1992 for the purposes of her husband's employment.

6. On 18 June 1992 the plaintiff saw a general practitioner, Dr A Rososinski, complaining of neck pain over the preceding three months. At first Dr Rososinski thought the symptoms were stress related and advised rest and mild pain-killers. However, Dr Rososinski was sufficiently concerned to have a cervical x-ray done on 1 July 1992. The results were normal.

7. In 1993 the plaintiff attended the CIT or TAFE (or both) where she obtained further qualifications in the teaching of languages. During that time she took some brief part-time work as a respite carer. After, she obtained the qualification she obtained a position as a carer at the Villaggio Sant'Antonio Hostel, a hostel for senior citizens, in late 1993. The work was not constantly heavy and involved four days on duty and four days off.

8. In 1994 the plaintiff continued her studies and obtained an advanced Certificate in Disability Studies at the CIT. At about the same time she obtained a position at Woden Community Services as a carer of disabled persons. She had three young men under her charge to organise "as normal as possible". She remained in that position from 21  February 1994 to 17 March 1995.

9. On 25 March 1995, the plaintiff went to Poland for about two months. Two days before she left, she complained to Dr Rososinski of pain in the left side of her neck which was worse in the morning. Dr Rososinski repeated his previous advice to her that the problem was stress related. The plaintiff however did not accept that opinion and whilst she was away she had an x-ray done on 22 June 1995. The results of that x-ray were not in evidence.

10. On 14 September 1995, Dr Rososinski referred the plaintiff to Calvary Hospital after complaints of pain in the lower back (scoliosis). There were nine visits to the hospital and/or to the doctor over the next few months for the scoliosis and no claim is made that that condition was causally related to the collision. It appears that the symptoms of scoliosis, if not the condition, resolved in that period. In the meantime, Dr Rososinski recorded that the plaintiff complained on 23 October 1995 of pain on the left side of the neck over the preceding two months.

11. It appears that on her return to Canberra the plaintiff returned to work at the hostel. Shortly before Christmas 1995 a resident of the hostel suddenly seized the plaintiff around the neck as the plaintiff was bending over her. About half an hour later, possibly longer, the plaintiff felt pain in the neck which was gone after a couple of days with the assistance of pain-killers. She lost no time from work at that stage.

12. In early 1996 the plaintiff was sitting on a beach in the Bateman's Bay area when, without any associated movement or incident, she felt sudden pain in the neck. She happened to be with a physiotherapist friend who assisted her by way of massage. During the drive back to Canberra (the vehicle apparently not being driven by the plaintiff) the pain in the neck was severe and radiating down the back and shoulders. It may be noted that this was the first time that the plaintiff felt pain radiating from the neck area.

13. On 17 January 1996, a day or two after her return to Canberra, the plaintiff sought medical assistance for her neck pain. She decided to attend the practice of Dr Gray-Grazeszkiewicz, although she was seen by a locum, Dr Gyory, who prescribed pain killing and anti-inflammatory medication and certified her unfit to work. The next day the plaintiff consulted a Dr Nambiar, whose practice was closer to her home. Dr M A L Nambiar increased the medication and prescribed a cervical collar. The plaintiff was certified unfit to work until 24 or 27 January 1996. An x-ray of the cervical and thoracic spine taken on 18 January 1996 showed "minimal narrowing of C5/6 disc space."

14. On 30 January 1996, the plaintiff consulted Dr A T Wright with whom she had become acquainted during his visits to the hostel. Dr Wright then assumed management of the plaintiff's condition with more active involvement than his predecessors. The plaintiff mentioned to him the incident with the resident in the hostel and the injury in the collision of 1990. Dr Wright noted the latter as a "whiplash" injury but it is not clear whether that was the term used by the plaintiff or Dr Wright's interpretation of what she said. Dr Wright recorded also somewhat briefly a "history of neck pain going into the left shoulder and arm over a few weeks". Dr Wright arranged a CT scan and chiropractic treatment. The CT scan of 14 February 1996 confirmed the x-ray results at C5/6 but also showed disc protrusion at that level and at the adjoining and lower disc spaces at C4/5 and C6/7. Dr Wright considered that there was some nerve entrapment. Dr Wright advised part-time work only, on light duties, together with an exercise program, in the hope of avoiding surgery. Despite the continuation of pain she did return to work on 20 February 1996. She managed to arrange exchange of shifts with other employees to meet the circumstances.

15. In April 1996, on the recommendation of Dr Wright, the plaintiff's duties at the hostel were further restricted to activities not involving lifting and other heavy work. Similarly, in May 1996 the plaintiff's working shifts were reduced to two per week.

16. The plaintiff's symptoms did not improve. In July 1996, she underwent a form of treatment known as Bowen therapy, involving the application of slight pressure to the affected area, with temporary relief of symptoms.

17. It may be noted that the writ was issued about this time.

18. The plaintiff's hours per shift were further reduced in the middle of 1996 and at the end of that year she commenced a second course of physiotherapy at the Calvary Hospital.

19. In early 1997, the plaintiff continued to complain to Dr Wright of pain and she was referred to Dr K N Chandran, a consultant neurosurgeon. In referring her, Dr Wright noted that she felt a "bit bitter" about the motor vehicle accident six years before. Dr Chandran, who saw her on 24 February 1997, recommended surgical fusion which the plaintiff declined, reasonably enough.

20. Her condition continued to deteriorate to the extent that Dr Wright considered that her hours should be limited to four per day. This appears to have contributed to some difficulty with her employment. The management took the view that Dr Wright's medical certificate prevented the hostel from requiring her to carry out lifting at all and that there was therefore no suitable work available to her. The outcome was that the plaintiff's employment was terminated on 18 March 1997.

21. By the time of the plaintiff's termination of employment her husband had left to take up an appointment at the Hague. At about the same time the plaintiff enrolled in a two year post-graduate diploma course in social science at the Australian Catholic University in Canberra. The idea was that at the end of the first year, she would follow her husband to the Hague. However, the plaintiff had so much difficulty with the course that she decided to suspend her part in it pending some treatment which she proposed to undergo in Poland. Dr Wright in effect certified that she was fit to undergo that treatment and therefore, presumably, to travel. The treatment was called cryotherapy. It basically involved subjecting the affected areas of the body to very low temperatures for short periods over two weeks. However, the plaintiff was able to complete only one week of the course because of serious flooding in the area where the clinic was situated. It did however give her "some lasting relief".

22. On her return to Australia in August 1997 and continuing to the end of the year, the plaintiff's symptoms continued. It is not clear whether or not she returned to her diploma course. During this period she saw general practitioners, Dr Wright and Dr T Niewiadomski. The latter referred her to Dr G Speldewinde, a specialist in rehabilitation medicine. She followed a rigorous exercise program advised by Dr Speldewinde and that also gave her some relief. Dr Wright's view was that she was fit for office work only, limited to 20 hours a week. She received treatment in a traction device over some months in late 1997.

23. In January 1998, the plaintiff joined her husband in The Hague and she has lived there ever since. She has been under the treatment of a general practitioner, Dr Ph F Meijer, and has been referred to specialists, including Dr F M C van der Eeden, orthopaedic surgeon, who, somewhat more firmly than Dr Chandran, recommended surgery. She also saw Dr W J H M Grosveld, and Dr J Th J Tans, neurologists, both of whom recommended against surgery. On a visit of a few weeks to Australia at the end of 1999 the plaintiff saw a Dr J Fuller and Dr Sheehy, a neurosurgeon, who advised continuing exercises and physiotherapy treatment. In the reference to Dr Fuller on 6 February 1999, Dr Wright noted that the plaintiff presented with "neck and left arm symptoms following a motor vehicle accident in 1990". The exercises helped but, according to the plaintiff's evidence, it was "not significant". In July 1999 she underwent a second and complete two week course of cryotherapy in Poland which, she said, provided relief. Whilst in the Hague the plaintiff commenced and continues with something called "conscious body treatment", apparently an alternative form of therapy involving breathing and posture. In April 2000, she commenced occupational therapy which appears to have almost concluded. She is waiting to see a psychologist recommended by her general practitioner in the Hague. She continues on the Netherlands equivalent of prescription and non-prescription pain-killing medication.

24. Since the termination of her employment at the Villaggio Sant'Antonio Hostel in March 1997, the plaintiff has not performed any paid work. She does some voluntary work of a relatively unskilled nature, helping expatriate people relocating in the Netherlands. Serious cases she refers to a psychologist or a social worker. She has difficulty spending more than two hours or so at a computer or any activity involving bending the head. She has domestic help twice a week and does not do any of the heavy housework.

25. As previously indicated, the plaintiff's evidence was generally corroborated by that of her husband and Mrs A Szymanska, who was the physiotherapist present at the incident, if it may be called that, at the beach in early 1996. Mr Labuda was not specific in his evidence of the plaintiff's complaints of pain immediately after the collision, except to the extent that they continued whilst the family lived in Newcastle. He also said that the plaintiff seemed to lose "positive vitality" after coming to Canberra. Mrs Szymanska also confirmed that the plaintiff gradually withdrew from social life, having previously been an enthusiastic member of a movie club and active in the Polish community in Canberra.

26. Dr Chandran did not see the plaintiff until 24 February 1997 but I regard his opinion of considerable weight. He was the first specialist to consider the plaintiff's condition. It is likely that he paid greater attention to matters of history than previous medical advisers. He recorded that, after the initial pain in the days after the collision, there were intermittent symptoms, not severe but requiring periodic visits to the general practitioner. Dr Chandran also took into consideration the incident in the hostel which he was told brought on neck pain which settled within a few hours. He therefore saw it as only a temporary aggravation. In the light of the x-rays showing a normal spine in July 1992 contrasted with those in January 1996 showing a narrowing of disc space at C5/6, with the later CT scan in February showing protrusions at all three levels of C4/5, C5/6 and C6/7, Dr Chandran concluded that the plaintiff was suffering from multiple disc lesions which "must have started with the initial accident and steadily deteriorating thereafter". In a report to solicitors on 3 March 1997, Dr Chandran expressed the view that the protrusions "particularly at C5/6 and C6/7" probably occurred in the collision in June 1990 and that her condition had stabilised, requiring periodic analgesics and physiotherapy two or three times a year for any temporary aggravations. Dr Chandran expanded on this view when answering questions over the telephone at the hearing.

27. When he again saw her on 25 May 2001 the plaintiff was complaining of neck pain extending to the left arm as far as the middle of the forearm and into both shoulders. Dr Chandran thought that her condition was further complicated by depression and other factors not due to the injury and that by that stage the chances of future surgery were looking greater.

28. I do not think that Dr Chandran's views are contradicted in any real sense by those of Dr Speldewinde or of Dr G G Griffith, a consultant surgeon, who saw the plaintiff for medico-legal purposes on 15 December 1999 and 30 May 2001. Dr Griffith's view was that the disc generation shown in the CT scan would not have been expected in a 44 year old woman who had no history of prior trauma. Dr Griffith also stressed the psychological aspects of the plaintiff's condition when he saw her on the later occasion.

29. The doctors in the Netherlands who have been treating the plaintiff since she took up residence there differ in their attitudes towards future surgery, but that only goes to reinforce the proposition that the plaintiff's symptoms are subjective and one must be dependent upon her description of it.

30. Dr W H Wolfenden, who saw the plaintiff on behalf of the defendant on 17 February 1999 does not express a view which is of any great assistance to the defendant. He thought that the plaintiff's condition then was "equally attributable to the motor vehicle accident of July 1990 and to fairly heavy work done lifting patients in the hostel around the period of 1995". He considered that she was fit for work only as a receptionist and thought that the prognosis was guarded.

31. Dr Wolfenden's view does not exclude the proposition that, in legal terms, the injury in the motor vehicle collision is causally related to the plaintiff's cervical condition.

32. In accordance with the above, I find that the plaintiff has become progressively disabled with associated increasing symptoms of pain causally connected to injury to the cervical area received in the motor vehicle collision. Whilst this progressive condition may have been contributed to by her efforts to keep working, the defendant has not shown that there has been anything by way of a novus actus interveniens. The plaintiff's decision to keep working was not unreasonable and was entirely within the range of foreseeability. Although there has been an increasing degree of psychological overlay, particularly since her husband's departure from Australia and her joining him in the Hague, at the present time this cannot be disassociated from the physical condition directly related to the plaintiff's cervical condition. There is no evidence that she was at the time of injury suffering any abnormality or early degeneration of her spine. Despite the efforts of counsel for the plaintiff I am unimpressed by the submission that the extent of the cost of and the damage to the vehicle somehow provides a measure of the seriousness of the injury to the plaintiff. However the trauma of the impact in the motor vehicle collision, whilst not trivial, was not very substantial either, so that some allowance or discount must be made for the possibility that even absent that particular trauma she might have come to some disability and developed some symptoms in the cervical spine.

33. Since about January 1997 the plaintiff has been unable to carry out more than very light physical duties, and then only for a few hours for two or three days a week. The total hours per week would not exceed those of one or two normal days work at the most. She has not been deprived totally of her income-earning capacity however. She is professionally well equipped as a trained language teacher to do part-time work of that nature, although she has lost the capacity to take part in actively caring for the infirmed and disabled which no doubt gave her satisfaction and may well have been better paid than language teaching.

34. My general findings are that the plaintiff's injury and disability have resulted in a substantial interference with her enjoyment of life. She was previously a keen skier, horse woman, swimmer and walker for pleasure. She has had to put most of that behind her although it is difficult to see that the neck symptoms should entirely preclude her from walking. According to Dr Griffiths, the neck condition causes her to walk stiffly. I think that the psychological overlay has become very important. She has clearly been less than pleased with her lot since she went to the Hague to join her husband. He himself is clearly in a stressful job being a chemical weapons inspector with a United Nations organisation, and that can hardly help her peace of mind.

35. It is tolerably clear on the balance of probabilities that the plaintiff has shown a history of neck pain from the time she came to Canberra in 1992. At that time the pain was mild and intermittent. Her case on this aspect is confirmed by the medical records to some extent but also, and perhaps more significantly, by the evidence of Mrs Szymanska, who met the plaintiff in 1993 when the plaintiff was complaining of neck pain when sitting for long periods at a desk. Mrs Szymanska also remembered that in later years but before 1996 the plaintiff complained of pain when sitting through a film performance. I do not think that the absence of precise evidence on those matters from the plaintiff and her husband affects the weight of Mrs Szymanska's evidence nor the tendency of that evidence to support the plaintiff's case of pain continuing through the period, although it might be more accurately described as repetitive and irregular rather than continuous.

36. In those circumstances I think that the plaintiff's evidence of symptoms in the earlier period between the collision and the time she left Newcastle should be accepted.

37. The plaintiff continues to suffer neck pain mainly in the left side which radiates down the left arm. In recent times she has complained to the doctors of numbness in both hands and tightness in the chest. I am not satisfied that these are the result of the injury and are more likely to be associated with psychological factors. She has tried and continues to try a number of alternative therapies, which I think tends to support her subjective genuineness. I am sceptical however as to the future. I think that once the plaintiff can put this very long-standing litigation behind her and she has the security of an award of damages she will approach her situation much more positively and, if she so wishes, will be able to put some of her learning and skills to work for her financially. Ultimately I think there is a sufficient history of continuity or repetition of symptoms to justify acceptance of Dr Chandran's view, supported by that of Dr Griffith, that the collision initiated a process in the plaintiff's cervical spine which has never resolved and which was exacerbated and continues to be exacerbated from time to time by the ordinary wear and tear of everyday living, well within the scope of foreseeability. Therefore it is correct to say that there has been a degeneration in the plaintiff's condition from which the injury in the collision cannot be excluded as a causal factor. The incident at the end of 1995 with the hostel resident gave rise to a foreseeable and temporary exacerbation, and the incident at the beach was simply another foreseeable circumstance in the chain of deterioration.

38. I have had a wealth of documentary material put before me about the quantification of her loss of earning capacity, and other aspects of her damages, but before attempting to carry out that exercise, it is necessary to remind myself of the relevant law. It is common ground between the parties that as a result of the decision of the High Court in John Pfeiffer Pty Limited v Rogerson [2000] HCA 36 (2000) 74 ALJR 1109; (2000) 172 ALR 625 the law of New South Wales, as it was at the time of the hearing, is to be applied for the purposes of assessing the plaintiff's damages. It is also common ground that the relevant law of New South Wales includes the Motor Accidents Act 1988 (the Motor Accidents Act). Until John Pfeiffer, this Court had negligible experience in applying the provisions of that Motor Accidents Act as they relate to the assessment of damages and has not had much since (but see El-Syoufi v Alcazar [2000] ACTSC 109). The plaintiff's damages remain to be assessed on those factual findings.

39. The satisfactory assessment of damages in substantial claims for personal injury, even (or especially) under the Motor Accidents Act, often depends not so much on intellectual analysis and formulation as on skill derived from experience and the application of commonly held social and cultural values. Those values, which the Motor Accidents Act was presumably designed to implement for the purpose of doing justice in New South Wales, may not be identical with those which had been developed under the common law and which continue to be applied by this Court for the purpose of the assessment of damages where the law of the Territory is to be applied without incorporation of the law of the place of injury. I do not think that this is a case in which it is appropriate to discuss some of the possibly fundamental questions in any depth. I am not aware of any cases in New South Wales in which such discussion has occurred and counsel were not able to refer me to any.

40. I begin with non-economic loss, defined by s 68 of the Motor Accidents Act to include pain and suffering and loss of amenities of life. Damages for those components must be assessed in accordance with the provisions of the Motor Accidents Act. Damages for non-economic loss are excluded altogether by s 79(1B) unless the injured person's ability to lead a normal life is or has been significantly impaired for a continuous period of less than six months by the injury suffered in the accident. There is no real issue and I have no difficulty in finding that the plaintiff's ability to lead a normal life has been significantly impaired within the meaning of s 79(1B).

41. Section 79 of the Motor Accidents Act applies to motor accidents that occurred before midnight on 26 September 1995 and provides where relevant as follows:

"(1B) No damages shall be awarded for the non-economic loss of an injured person as a consequence of a motor accident unless the injured person's ability to lead a normal life has been, or in the near future is likely to be, significantly impaired for a continuous period of not less than 6 months by the injury suffered in the accident.

(2) The amount of damages to be awarded for non-economic loss shall be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.

(3) The maximum amount which may be awarded for non-economic loss is $180,000, but the maximum amount shall be awarded only in a most extreme case.

(4) If the amount of non-economic loss is assessed to be $15,000 or less, no damages for non-economic loss shall be awarded.

(5) If the amount of damages to be awarded for non-economic loss in accordance with this section is more than $15,000 but less than $55,000, the following deductions shall be made from that amount:

(a) if the amount of damages is less than $40,000 - the amount to be deducted is $15,000,

(b) if the amount of damages is not less than $40,000 - the amount to be deducted is $15,000, or $15,000 reduced by $1,000 for every $1,000 by which the amount of damages exceeds $40,000."

42. Sections 79(5) and 80 provide in effect that where the amount of damages for non-economic loss "to be awarded" in accordance with s 79 is more than $15,000 but less than $55,000 certain deductions are to be made from the latter amount, subject to such orders, in the nature of indexation, as may be published by the Minister.

43. The maximum amount which is to be awarded for non-economic loss is fixed but that maximum "shall be awarded only in a most extreme case"; s 79(3). It was common ground at the hearing that the maximum amount was $284,000. If the amount "to be awarded" for non-economic loss is more than the amount fixed by s 79(5) then certain deductions are required to be made. The amounts fixed for the purposes of s 79(5) are subject to ministerial order. Order number 11 published in the New South Wales Government Gazette on 29 September 2000 fixes the amount of the deductions for the purposes of the present case.

44. In Southgate v Waterford (1990) 21 NSWLR 427 the Court of Appeal rejected an interpretation of s 79 which did no more than fix a jurisdictional limit on the damages that might otherwise be ordered, calculated in accordance with common law principles. The Court of Appeal approved the following approach:

(i) Determine whether there has been significant impairment under s 79(1);

(ii) If there has been, determine the amount of damages "to be awarded" according to the severity of the non-economic loss as a proportion of the maximum that may be awarded;

(iii) Apply s 49(4) and s 79(5) making such deductions as are required by those subsections from the amount determined under 79(2).

45. The Court of Appeal said at 440:

"There are a number of ways by which trial judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the `proportion' required by s 79(2). But clearly, because the task in hand is that of awarding damages for `non-economic loss', it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive `a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article `a' has already been noted. Opinions of what constitute `a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for `a most extreme case'."

46. Bearing in mind the sorts of extreme cases with which this Court has had direct experiences, usually cases of quadriplegia or brain damage or both eg. Grincelis v House (unreported, 11 July 1997); Black v Lipovac (unreported, 4 June 1998); Ren v Mukergee (unreported, 12 December 1996) for which awards of $250,000 to $300,000 for general damages are commonly made, I find that the proportion of the present plaintiff's non-economic loss to a most extreme case is 20%. Hence the amount "to be awarded" under s 79 is $56,800. The amount to be deducted under s 79(5) is $23,000. The award for non-economic loss then is $33,800. No interest is to be awarded on that component of the damages: s 73(3).

47. As far as past loss of earning capacity is concerned, it is clear that from the time the plaintiff came under the care of Dr Wright, competent medical opinion was that her income-earning capacity was substantially impaired, and that impairment increased over a period of time. She remained unfit, in my opinion, from then to the present for all work involving moderately heavy lifting and prolonged or repeated bending or sitting for substantial periods beyond two hours. She remained fit however for other types of work for which she is well qualified, for instance, part-time language teaching or coaching. The amount claimed in respect of past loss is based on $200.00 per week from 18 March 1997 and as set out in the particulars amounts to $72,722. It is a reasonable claim and the plaintiff will be awarded $65,000 which allows for the contingency that she might have been injured in some other way.

48. The question of past and future out-of-pocket expenses presents an unusual amount of difficulty. It should not be overlooked that if past out of pocket expenses are not agreed the plaintiff still bears the onus of proof and that the scales are not weighed down, even ever so slightly, by simply tendering a mass of documents. Nor should it be overlooked that the plaintiff delayed issuing her writ for over six years and until after the time limited by the Limitation Act 1985 of this Territory, which was then understood to apply. In those days, as a matter of judicial knowledge, interest rates were high and the plaintiff had nothing to lose by the delay except the unlikely prospect of the defendant successfully pleading the time bar. The plaintiff appears also to have made little effort to keep records especially in the earlier years of the expenditure now claimed to be due to her injury. Otherwise in more recent years the details of her claim for out-of-pocket expenses are clearer.

49. With regard to out-of-pocket expenses a schedule, accompanied by some but not all supporting documentary evidence such as invoices and receipts of expenses alleged to have been incurred as the result of the plaintiff's injury, was tendered and admitted into evidence as exhibit G. The tender was objected to after the following exchange between the plaintiff and her counsel:

"MR CROWE: Now you have I think prepared a - or been involved in the preparation of a bundle of the expenses which you have incurred, both in Australia and since going to Holland, is that right?---Yes.

Can I ask you to identify this document? Do you recognise that?---Yes.

Does that contain all of the accounts or receipts that you have in relation to each item of treatment referred to in the bundle?---I think that yes, that's - but I don't know. This is - they - this documents are containing all the bills that I have been presenting and asked to submit."

50. The tender was deferred in order to enable both counsel to see if some of the items could be agreed. The tender was renewed on the following day, without any apparent agreement, and the objection being withdrawn by counsel for the defendant on the express basis that he did not admit the accuracy, truth or reliability of anything in the schedule and would reserve his position until addresses. There followed detailed oral submissions as to these out-of-pocket expenses and the Court has had to carry out the somewhat tedious exercise of looking at the particulars and the supporting documentation as well as the very brief evidence on this aspect set out above. The results of those labours are set out in a summary of the schedule of out-of-pocket expenses which is attached to these reasons. I award $13,454.81 for past out of pocket expenses.

51. As far as future economic loss is concerned both for continuing loss of earning capacity and liability to incur expenditure for medical and other therapeutic treatment, and medication, as well as domestic help, s 71 of the Motor Accidents Act provides that "the present value of the future economic loss shall be qualified" by adopting a discount rate of 5 per cent. This provision appears to imply that damages may not be awarded for future economic loss by way of a lump sum to provide a "buffer" or "cushion" against that loss. Such a lump sum award has become common in this Territory, particularly where the evidence does not permit of a finding on the balance of probabilities of a continuing periodic financial loss. Where the evidence does permit of such a finding, it is now usual to apply a notional discount rate to avoid overcompensating the plaintiff for a receipt of the damages in advance of the actual loss: see e.g. Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402. The Motor Accident Act appears to make that approach mandatory.

52. I have some difficulty in applying the provisions of s 70A of the Motor Accidents Act which prohibits the award of damages for future economic loss or diminution of future economic capacity unless the claimant first satisfies the Court that there is "at least a 25 per cent likelihood that the claimant will sustain a future economic loss or that there is at least a 25 per cent likelihood that the claimant will sustain a diminution of future economic capacity, as the case requires." I have not been assisted by reference to any New South Wales authority on some of the problems that I see occurring and I avoid discussing them in any depth. It should be enough to say that the claimant has to prove a 25 per cent likelihood of a future economic loss or a diminution of future economic capacity as the case may be. Any loss or diminution is sufficient, so long as the magnitude of the likelihood (not the magnitude of the loss or diminution) is 25 per cent or more. With regard to diminution of future earning capacity in particular, it is not appropriate to make a finding of a diminution expressed in terms of a percentage or proportion. As indicated, s 71 provides a barrier against that course, and requires a finding of a periodic financial loss for a term into the future, the present value of which is to be calculated and "qualified" by adopting a discount rate of five per cent.

53. In the present case I find it established as a matter of likelihood exceeding 25 per cent that the plaintiff will continue to suffer a diminution of earning capacity due to her injury for ten years into the future. Thereafter, there is a possibility that a diminution will continue but the possibility is remote and I would not put it as high as a likelihood of 25 per cent.

54. The Motor Accidents Act does not appear to require any further discount due to "ordinary contingencies".

55. The present loss of $200.00 per week over five years discounted at 5 per cent is represented by a present value of $46,400. The loss is likely to diminish during and after that time. A loss of $100.00 per week for five years similarly discounted thereafter is represented by a present value of about $19,000, (bearing in mind that that loss does not commence until the expiration of the first five years). I would award $60,000 for future loss of economic capacity.

56. For future medical expenses and the like I think that there is more than a 25 per cent likelihood that in the next ten years the plaintiff's injury will result in a reasonable need for general practitioner treatment about once every three months and a visit to a specialist every second year, together with pain-killing medication at the following annual cost. The likelihood of any other treatment, reasonably required due to the injury, is less than 25 per cent.

General Practitioner $225.00

Specialist $75.00

Medication $220.00

Total $500.00 per annum over ten years.

57. The present value of say $10.00 per week for ten years discounted at 5 per cent is $4,130.

58. I also think that there is a more than a 25 per cent likelihood that the plaintiff will reasonably require domestic help for another five years. The amount allowed is $40.00 per week and the present value of that loss over a ten year period similarly discounted is $9,280. After that the likelihood is less than 25 per cent. I allow $13,000 in total for future out-of-pocket expenses.

59. I am satisfied that there is a chance of the plaintiff undergoing surgical fusion, but in my view the probability is less than 25 per cent. The award for future economic loss cannot reflect the value of that chance.

60. It appeared to be common ground that the provisions of s 78 of the Motor Accidents Act do not apply to the plaintiff's claim. That section provides for the reduction of damages for economic loss to take into account entitlements to or payment of certain benefits on the injured person's behalf. The present plaintiff had some of her expenses paid by Medicare and apparently some similar fund in the Netherlands. There is nothing before me to suggest that any such payments are benefits or entitlements within s 78. Accordingly, there will be no deduction under s 78.

61. It appears that interest may be awarded in respect of past economic loss, or at least some part of past economic loss, but only if the conditions of s 73(4) are met. It is not necessary to set out those provisions. I agree with the submissions of counsel that, as they would appear to involve the disclosure of pre-trial negotiations for settlement, the evidence as to such matters should not be called until the Court has assessed damages under all other heads and made its decision known to the parties or published that decision.

62. In summary the award of damages is as follows:

Non-economic loss $33,800.00

Past economic loss:

Loss of earning capacity $65,000.00

Out-of-pocket expenses $13,454.81

Future economic loss:

Loss of earning capacity $60,000.00

Out-of pocket expenses $13,000.00

__________

Total $185,254.81

63. The New South Wales decisions seem to indicate that the court is required to make a global review of the total damages awarded, notwithstanding the provisions of the Motor Accidents Act. Having regard to the total and to the decisions in New South Wales, it appears to me that the sum is within the range that might be expected to be awarded by a court in New South Wales, before interest, if any, is added. As there is a risk of mathematical error in cases such as this the parties should be astute to make application promptly under the slip rule if that is appropriate.

64. I shall hear the parties now on the matter of interest, and, if appropriate, on costs.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 16 November 2001

Counsel for the plaintiff: Mr R L Crowe

Solicitor for the plaintiff: Maliganis Edwards Johnson

Counsel for the defendant: Mr H J Marshall

Solicitor for the defendant: Dibbs Barker Gosling

Dates of hearing: 18 and 19 June 2001

Date of judgment: 16 November 2001