Sharp v Gilchrist & Nominal Defendant of NSW [2005] ACTSC 136 (7 December 2005)

Last Updated: 7 February 2006

ALANAH HELENE SHARP v JEREMY GILCHRIST and

NOMINAL DEFENDANT OF NEW SOUTH WALES

[2005] ACTSC 136 (7 December 2005)

Ex TEMPORE JUDGMENT

DAMAGES - personal injury - motor vehicle accident - soft tissue injuries - no issue of principle.

Griffiths v Kerkemeyer (1977) 139 CLR 161

No SC 465 of 1999

Judge: Connolly J

Supreme Court of the ACT

Date: 7 December 2005

IN THE SUPREME COURT OF THE )

) No SC 465 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ALANAH HELENE SHARP

Plaintiff

AND: JEREMY GILCHRIST

First Defendant

AND: NOMINAL DEFENDANT OF

NEW SOUTH WALES

Second Defendant

ORDER

Judge: Connolly J

Date: 7 December 2005

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $90,463.97 with costs.

1. This is a matter on which I think I can deliver an ex tempore judgement, which will ensure that there is an outcome today rather than waiting for written reasons, which would inevitably be occurring after Christmas.

2. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 10 December 1997. The judgment that I am delivering today relates only to that motor vehicle, but the case commenced as a claim by the plaintiff against both the first defendant, Mr Gilchrist, and the nominal defendant of New South Wales, arising from a motor vehicle accident that occurred on 11 June 2001.

3. That accident occurred on a rural road near Nowra in NSW when the uninsured vehicle driven by a third party came onto the wrong side of the road and struck the plaintiff's vehicle causing massive damage to her vehicle and very significant frank damage to her legs and feet.

4. I heard her evidence over two days and most of that related to the very significant injuries and that matter was settled in the sum of $500,000 which, it seems to me, adequately reflects the range that, without having heard all the evidence in relation to the second claim, I would have expected that I would have awarded. It was clearly a very major injury.

5. It was clearly necessary for the actions to be joined, because if they both went to trial, one would need to somehow distinguish between the first and second accidents.

6. The second accident having settled, I am left to rule purely on the motor vehicle accident that occurred on 10 December 1997, when the plaintiff, who at the time was still a learner driver, had come to a stop at a red light on Constitution Avenue near the Reid TAFE. She waited at the traffic lights for a green turning arrow. She proceeded through the green turning arrow and was struck by the first defendant.

7. Liability, quite properly, was admitted early in the proceedings. The plaintiff at the time was obviously most agitated by the fact of a motor vehicle accident occurring in, I take it, a borrowed car, while she was a learner driver.

8. She presented to her general practitioner the next day complaining of neck, back and shoulder pain, and it is the neck, back and shoulder pain that persisted right through until the point of the second motor vehicle accident.

9. The second motor vehicle accident was of such severity and such impact that effectively it seems to me it has subsumed entirely the effects of the first motor vehicle accident, and I am dealing with this essentially, as a closed period claim.

10. There was some confusion in the medical evidence in that a sports physician, Dr J Kellett, mistook the history and in his first report of October 1998 seemed to suggest that the shoulder complaint, as it then was, was a complaint that had emerged subsequent to the accident, but it is apparent from the general practitioner's reports, the other reports, and from Dr Kellett's brief clarification of 23 November 1998 that that was not the case, that he was in error, and that the plaintiff had been genuinely complaining of shoulder pain from the very point of impact.

11. The plaintiff at the time was a high school student, in Year 11. She presented as an honest and credible witness and, quite properly, was never challenged in cross-examination by the first defendant.

12. She was able to continue with her schoolwork despite the accident, and was able to continue, for a time at least, with her part-time employment at a dry-cleaning, fast photo business, although that became increasingly difficult particularly in relation to her dry-cleaning duties which required her to press and iron clothes. The ongoing shoulder pain, in particular to the right shoulder was problematic in relation to that, and she eventually terminated from that position because, she said, she simply was not able to be as productive as other members of the team.

13. The medical evidence in relation to the first accident is uncontradicted. There are no medical reports tendered by the first defendant. From that I am entitled as a matter of law to draw the inference that any medical examination that did occur on behalf of the first defendant, and there was evidence that there were medical examinations, would not have assisted the first defendant's case. In effect, I am left to accept on an uncontradicted basis the medical evidence presented in the plaintiff's case that these were significant soft tissue injuries. I say significant because this goes well beyond the low level soft tissue type of case that we sometimes see in these courts, but nonetheless these are soft tissue injuries. There were examinations in relation to nerve impingement, particularly in relation to the shoulder, but that seems to have been ruled out. There were some more extensive examinations in relation to the shoulder to see if there was any frank damage, up to and including examinations by Dr Roberts, a senior orthopaedic surgeon about town.

14. But the result is that each of the injuries is to be regarded as soft tissue in nature, and the prognosis in the medical reports that appears in the plaintiff's case against the first defendant, which does conclude in mid to late 1999, is all for ultimate resolution. In September 1998 Dr J Petelczyc, the general practitioner at Holt who had been the plaintiff's treating general practitioner for many years, diagnosed soft tissue injuries to the neck and shoulder, with a variable course of improvement to date. He noted that improvement seemed to be slow and suggested she would require ongoing physiotherapy and would continue her slow course of recovery.

15. Dr Kellett was also of the view that these were soft tissue injuries. In his report of October 1998 he was referring only to the neck and back complaints because at that stage he had some incorrect information in relation to the shoulder. He indicated that those injuries would cause difficulties and discomfort in relation to both part-time study and work.

16. The plaintiff received physiotherapy throughout the course of her injuries and indeed it is agreed that there are substantial out-of-pocket expenses related in part to that ongoing treatment.

17. Dr Scott, an occupational physician with considerable experience in relation to soft tissue style injuries, concluded that that was her difficulty. She had, he said, significant range of movements but with pain, and noted that that did cause difficulties with study and part-time work and in relation to sleep. His report of 22 November 1998 gave a prognosis of ultimate resolution of the soft tissue injuries, noting that if the shoulder was not settling Dr Roberts may make a different prognosis. In fact, Dr Roberts, in his latest report in relation to the case against the first defendant, and in his report of May 1999, was of the view that an arthroscopy would not be appropriate, and that she continue with treatment in effect for soft tissue injuries by way of physiotherapy.

18. That has been the outcome, and that is consistent with the report of Dr D Veal, a physiotherapist in the Sports Injuries Centre, which again suggested ongoing physiotherapy, which is consistent with the type of treatment one would except for soft tissue injuries.

19. These injuries occurred when the plaintiff was a young girl completing her high school. She seems to have been an active and enthusiastic sportswoman before the injury, being interested in water-skiing, snow-skiing, rock climbing and other outdoor pursuits, and in particular basketball. She played basketball at the club level as a competitive player, and she says she enjoyed that activity, and it was an activity that had significant family connections. She was unable to return to basketball as a consequence particularly of the shoulder injury, and she attempted that but not at a club level and felt that it was inappropriate for her to resume club basketball. She attempted water-skiing but found that to be inappropriate and desisted.

20. These injuries for a young person, it seems to me, do sound greater in general damages than they would for a person of more advanced years, because the plaintiff has, as a consequence of this, been deprived of that period of active involvement in sporting life that one would expect to enjoy during her final senior high school years and early years of tertiary study.

21. Despite the injury she was able to complete her high school studies, although she required some assistance in assignments and typing, particularly using the computer. She was able to engage in tertiary study successfully by way of the Canberra Institute of Technology Hospitality Course. Again she required assistance, particularly from her mother, in typing assignments because, she says, and it is entirely consistent with the medical evidence, any long period at keyboards would aggravate her neck, shoulder and back.

22. It seems to me that in relation to general damages I am constrained by the ranges of general damages awarded for soft tissue injuries. This is towards the mid to upper range of soft tissue injuries occurring, and for a young woman I would award, taking all of the evidence into account, some $35,000 in relation to the soft tissue injuries, with interest to date of $5,596.

23. In relation to Griffiths v Kerkemeyer (1977) 139 CLR 161 damages the evidence is that there was considerable assistance by way of the typing of assignments, which is assistance that one would not have expected the plaintiff's mother to have given. There has also been considerable assistance, it seems to me from the evidence, by way of taking the plaintiff to various medical appointments and the agreed out-of-pocket medical expenses particularly in relation to physiotherapy, which was a very regular and ongoing process. One would have expected a young woman, independent and able to drive, to otherwise have been able to manage in those trips herself. She also says that her mother essentially continued to do all of the household tasks for her, because of her neck and pain, where she should have expected otherwise to have done them herself.

24. Mr Parker, for the first defendant, rightly points out that in relation to Griffiths v Kerkemeyer it has got to be reasonably incurred expenses, and not everything that a parent does for a child, even a child who has suffered an injury, is necessarily compensable. It seems to me that it might be possible to deal with this on an hours per week basis, and I would need to make some form of buffer approach.

25. It seems to me that a sum of $4,000 would represent about 200 plus hours at $20 an hour, which is slightly above the current rate, and would be a realistic approximation of some additional effort by the mother in relation to the typing and the driving to appointments, and the requirement for some additional household activities.

26. However, it seems to me that the medical evidence which does indicate that she is generally self-sufficient and, which at no point in the medical evidence tendered in respect of the first defendant, is there an express need for personal care and assistance, would not justify a greater award than that. I am prepared to accept that perhaps the parents have assisted beyond that, but the medical evidence only supports that type of award.

27. The claim for economic loss is limited only to the past, and is on the basis that, first, there was a clear loss of employment, and I am satisfied as a matter of fact that there was a clear loss of employment. That is to say that the plaintiff had obtained the type of high school student part-time employment that is not uncommon. She was working as an assistant in the fast photo and dry-cleaning store. I accept as a matter of fact that she lost that job as a direct result of the accident because her shoulder injury in particular made her less efficient than the other workers, and as a consequence that job was denied her.

28. She was out of employment from July 1998 to August 1999. That does cover the second half of the Year 12 studies, a fact that I take into account, and the early part of her tertiary studies. She was able to obtain part-time employment in the hospitality field, which was consistent with her then tertiary studies, and the tertiary studies that she successfully completed. She worked at a number of institutions around town. These included a nightclub called Insomnia, which had just opened at the time, and which is a place that one hears about from time to time, not infrequently in the criminal side of this Court, where funny activities start or end in or about the Insomnia nightclub, but that is no criticism of a person who is genuinely working at the bar. But it is a busy, rowdy place, and she was able to work there as a drinks attendant. She then worked at the West Belconnen Leagues Club. She would have liked longer hours, and she then found a position at the El Rancho, where she was able to get some longer hours.

29. Her evidence was that she worked between 5 and 25 hours a week. It varied from place to place over the period of time up until the second accident. She says she would have liked to work longer hours, and from that I must take it that she would have been able to work longer hours if the work was offered but, and I accept her evidence about this, she was less successful than other workers in obtaining the additional hours because she was a bit slower, and she was a little less capable due solely to the neck, shoulder and back pain. So it seems to me that there is a level of loss there, even though she was able to work between 5 and 25 hours a week. She says she could have had more work if it was available.

30. It is difficult to precisely quantify such a claim. The claim is particularised on the basis that during this period, and during the period in question, she was able to earn about $11,000 a year. It seems to me that she would have been able to do significantly better than that if not for the accident, and to adopt a past economic loss award inclusive of interest of $25,000 would represent something more than a doubling of what she was able to do, which it seems to me is about right together with an appropriate sum for interest.

31. The outcome of that would be an award of general damages of $35,000 which generates interest of $5,596. An award of Griffiths v Kerkemeyer damages which is inclusive of interest is $4,000, and a past economic loss claim inclusive of interest of $25,000. That amounts to a total award of $69,596 to which is added the sum of agreed out-of-pocket expenses, which was $20,876.97, making a total of $90,463.97 which, on the basis of all the evidence, I would award with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 7 December 2005

Counsel for the plaintiff: Mr R Mildren

Solicitor for the plaintiff: Hill & Rummery

Counsel for the first defendant: Mr G Parker

Solicitor for the first defendant: Dibbs Barker Gosling

Counsel for the second defendant: Mr J Ringrose

Solicitor for the second defendant: Meyer Vandenberg

Dates of hearing: 6 and 7 December 2005

Date of judgment: 7 December 2005