Wallace v Spiers [2005] ACTSC 17 (17 March 2005)

Last Updated: 11 May 2005

LEANNE WALLACE v SANDRA SPIERS

[2005] ACTSC 17 (17 March 2005)

DAMAGES - personal injury - injuries to thighs and low back- public servant - no issue of principle

No. SC 758 of 2002

Judge: Master Harper

Supreme Court of the ACT

Date: 17 March 2005

IN THE SUPREME COURT OF THE )

) No. SC 758 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LEANNE WALLACE

Plaintiff

AND: SANDRA SPIERS

Defendant

ORDER

Judge: Master Harper

Date: 17 March 2005

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $147,496.79.

1. This is an action for damages for personal injury arising out of a motor vehicle collision. Liability is not in issue, and my sole task is to assess the plaintiff's damages.

The plaintiff

2. The plaintiff is a single woman, born on 19 March 1964. She was thirty-six at the time she was injured, and is now almost forty-one. She is a Commonwealth public servant, an Administrative Service Officer grade 6 with the Department of the Environment and Heritage. She grew up in South Australia, matriculating in 1981. At school she displayed exceptional talent at tennis and squash, playing both sports at state level. When she left school, she completed two years of a course as a medical technician. She moved to Sydney in 1984 where she worked at a hospital and later at a succession of merchant banks and stockbrokers. In 1990 she completed the first year of an economics degree at the University of New South Wales. The following year she moved to Armidale where she spent four years, completing a bachelor's degree in agricultural economics majoring in natural resource management. After graduating she moved back to Sydney and worked with a merchant bank while completing a thesis on harvest rates of southern bluefin tuna.

3. In 1995, she moved to Canberra and joined the public service. She remained in Canberra until her accident, apart from some travel with the Department, mostly to Queensland. She had a number of overseas trips from 1988, cycling and trekking in various countries. In 2000 she completed a nine-week commercial course at the Ecole Arts Culinaires Hotellerie at Lyons in French cuisine and culture under the supervision of the world-renowned chef Paul Bocuse.

4. Early in the following year, the plaintiff spent a day at the Oriental Hotel in Bangkok. The Oriental has been described at the best hotel in the world and the plaintiff had been informed that it offered the second or third-best cooking school in the world. The plaintiff's evidence was that she loves cooking, and wanted to supplement her income and perhaps one day to establish a business. She often entertained ten to twenty friends at home, cooking six to eight course meals. Towards the end of 2001, she approached Mr Graham Green of the Green Herring Restaurant at Ginninderra Village, Nicholls. Mr Green agreed to provide the plaintiff with some casual work in the kitchen. He gave cooking classes from time to time at a venue operated by a business named Cooking Coordinates at Belconnen markets, and he had met the plaintiff at one of those classes. After a trial without pay, the plaintiff was offered a number of shifts helping in the kitchen with food preparation and service during November and December 2001.

The collision

5. On Christmas Eve, 24 December 2001, the plaintiff was a passenger in a Toyota Rav 4, a compact four-wheel drive vehicle, driven by the defendant on Adelaide Avenue, opposite the Prime Minister's Lodge in Deakin. It was about 4.15 pm and there was thick smoke about from bushfires. The defendant attempted to cross Adelaide Avenue, apparently to travel in the opposite direction. This took her across the extreme right city-bound lane, which is signposted as reserved for buses and taxis. A police car was travelling at high speed, perhaps 100 km/h, in the bus lane, and the police vehicle struck the defendant's car with great force. The defendant's car rolled over, probably twice, and came to rest upside down. This left the plaintiff suspended by her seatbelt, with her head in contact with the caved-in roof of the car. She undid her seatbelt, which caused her bodyweight to crash onto her head and neck. The plaintiff could see that the defendant's head was in contact with the roof and she thought that the defendant had been killed. She could hear people screaming to get out of the car and feared that it was about to explode. She realised that she could not get the defendant out and crawled out of the broken passenger side front window. She found herself lying on the median strip in the middle of Adelaide Avenue, with a burning pain in her legs. There were firemen about and an ambulance came. From the moment of impact until the car came to rest, she was fearful that she would be killed. It took about half an hour to get the defendant out of the car and both defendant and plaintiff into an ambulance. They were taken to the Canberra Hospital. She was unable to find out whether the defendant was alive or dead, and that although she was in immense pain the hospital staff would not give her anything in case there were other injuries as yet undetected. At about midnight, after some six or seven hours at the hospital, they told the plaintiff that they needed her bed and sent her home with Panadeine Forte and some ice. She collapsed a couple of times, and fainted twice when she tried to stand up with the assistance of hospital staff.

The period since the accident

6. A friend took the plaintiff home from hospital, and the plaintiff stayed on her lounge for three or four days from Christmas Day. She was in constant pain and could not sleep. She could not walk. She had pain in her head, arms, neck, back and legs. On 27 December, her friend lifted her to the car and took her to Dr David Peachey, her then general practitioner. She was back at her own home by then. Dr Peachey prescribed Panadeine Forte and, about two weeks later, anti-inflammatory medication and physiotherapy. She found the physiotherapy painful and of little assistance. During the month after the accident, she spent most of her time in bed with her legs elevated, unable to sleep. Both thighs were very swollen and painful, and prevented her from lying on either side or on her front. She had nightmares, flashbacks and hallucinations which she attributed to the drugs she was taking.

7. Early in February 2002, the plaintiff changed general practitioners and commenced to see Dr R Ilbery at the Interchange General Practice in Canberra City. She returned to work on 25 February 2002, on a graduated return to work program, initially working three hours a day for two days a week. She gradually increased her hours and days to full-time in November 2002.

8. During 2002, she continued to suffer from pain in the low back, sternum, thighs and legs, and from headaches. She continued with physiotherapy once a fortnight, changing to a different physiotherapist in May 2002. She did not drive a car after the accident until June 2002 when she took some driving lessons. She was scared to get into a car and to drive in traffic, and thought that it would be best to start with an instructor supervising her in case she could not cope. She had about eight lessons over four months, and at the end of that time was satisfied that she could drive alone with sufficient confidence.

9. Immediately after the accident, the plaintiff's upper legs and abdomen were heavily bruised and discoloured. The discolouration cleared up over six to eight weeks but the swelling remained. The plaintiff said that she felt then, and still felt by the time of the hearing, as though her legs had plastic bags of water strapped to them. In June 2002, her left thigh was aspirated under ultrasound, under the supervision of a radiologist. Collections of fluid were identified by the ultrasound and removed by needle. The plaintiff found this an extremely painful experience.

10. Later in June 2002 the plaintiff was sent by the defendant's insurer to a rehabilitation consultant who arranged for the purchase of a workstation permitting the plaintiff to sit or stand as she felt the need. The workstation was described as similar to a desk, with the surface able to be raised or lowered hydraulically by pedal.

11. During August and September 2002, on referral from Dr Ilbery, the plaintiff had a number of sessions of counselling with Fleming Psychology Services for post-traumatic stress disorder, and thought she gained some benefit from that program. In October 2002 the plaintiff commenced massage sessions twice a week for about three months. She found the massage to her legs very painful, and said that her legs kicked uncontrollably. She did not find the massage of much benefit though she conceded that she was slowly improving with the passage of time. By the end of 2002 she took up walking and cycling, each for about twenty minutes at a time. She limited these outings to about twenty minutes because by that time she was experiencing significant pain in the thighs and low back. She tried once walking to work (Red Hill to Parkes) but when she got to work she had to go to the sick room and lie down with her legs elevated, to relieve pressure and pain. She did not attempt this again. At the end of 2002 she attempted tennis on two occasions, unsuccessfully. She made another two attempts in January and February 2004, again resulting in increased pain.

12. The plaintiff's father died unexpectedly in November 2002. She decided to take leave from the Public Service and to move to South Australia for some time, to be close to her mother and family, and also to test herself in a work situation where no one knew about her car accident or injuries. She spent ten months in the Barossa Valley, returning to Canberra in December 2003. She found employment with Maggie Beer Products as manager of the Old Pheasant Farm Shop and Restaurant. She was responsible for ten or twelve staff including a chef, waiters and shop assistants. She attained the position after a rigorous interview process, and worked there for nine months, five days a week, including most weekends (she generally took Tuesday and Wednesday off). She worked from 8.30 or 9.00 am to 6.00 pm or later. Her evidence was that at the end of the working day she was exhausted and had pain in her legs and back, and usually a headache.

13. During this period she resumed competitive squash, and played for about six months in the Nuriootpa-Tanunda competition at the lowest grade level, once a week. She won most of her games but found that the jarring associated with the game aggravated the pain in her thighs and low back.

14. In December 2003 the plaintiff resigned from her job with Maggie Beer Products. She said that this was because she could not take the pain and the long hours any more, and found that she was becoming irritable in dealing with staff and customers. She came to the conclusion that she could not continue working in that position or a similar position in the hospitality industry. She returned to Canberra and resumed her employment with the Commonwealth. Her old job had been abolished, and she was initially given a temporary position. In early May 2004, she was placed in a permanent position with the Department of the Environment and Herritage.

15. In February 2004 the plaintiff took up Pilates, which she finds painful but beneficial in that it has increased muscle strength in her torso. She also took classes in yoga for the first three or four months of 2004, but gave up because she found that the time taken by both Pilates and yoga interfered with her work. In December 2003 she joined the Southern Cross Club gymnasium, paying a year's membership in advance, but stopped going after about two months because by the end of the working day she was fatigued and in pain. By the time of the hearing, she was taking Panadol or Nurofen for headaches, leg pain and back pain, as required, and these provide her with some relief. She continues to see her general practitioner from time to time. Her evidence is that by the end of a working day she feels distressed and irritable and does not want to face people, talk to people or go out. She still has nightmares, and relives the accident if she passes the site of another car accident. She tries to avoid heavy traffic by leaving for work very early in the morning and leaving work late. She is angry at having lost three years of her life. She finds it difficult to concentrate, particularly at work, and she is embarrassed at the lumpy appearance of her thighs, which she hides with clothing.

16. The plaintiff agreed in cross-examination that she had suffered from migraine headaches from time to time before the accident, perhaps twice a year, but said that the post-accident headaches were of a different kind. She was cross-examined from notes produced on subpoena by her then general practitioner, Dr Peachey. On a few occasions she denied matters of history but withdrew the denial when it was clear that she must have given the history to Dr Peachey who had noted it as she did so.

17. She agreed that there was no record of her having complained of low back pain, other than pain in the coccyx region, until early September 2002 when she consulted Dr Ilbery and was referred for an MRI scan of the lumbar spine.

18. The plaintiff also agreed that she had attended yoga and Pilates classes once or twice a week before the car accident, and that she was exercising at the Southern Cross Club gymnasium about once a fortnight.

19. Within the six months or so leading up to the hearing, the plaintiff had walked to work, from O'Connor to Parkes, on one occasion, taking about two hours, and had cycled to work, a twenty to twenty-five minute ride, a couple of times. During 2004, she attended six two-hour cooking classes in Canberra, Thai cooking in particular.

20. She said that at about Christmas 2003, she decided to try to get back into her old routines and demonstrate to herself the limits of her capacity. She played some tennis and went to the gym over a period of about six weeks. She became fatigued and realised that her work was suffering. She decided that she needed to wait a bit longer and try not to do too much at once. She regarded her work performance as her first priority. She still intends to get back to her old physical activities as far as she can, when she is able to, and she intends to keep trying to do a little more each day. By the time of the hearing, she was walking for twenty-five minutes every second day, and had been doing so for the previous three weeks, gradually increasing the time and distance. She intended to get back to cycling with the aim of regularly riding to and from work.

21. Counsel for the defendant sought to attack the plaintiff's credit on a number of issues but I am satisfied that her evidence was generally truthful, and that she is an honest witness. She had a tendency to be definite in her denials of some matters which were put to her and later had to withdraw these denials when confronted with inconsistent contemporaneous records. It is true to say that many plaintiffs regard the presentation of their evidence as an opportunity to put their best foot forward, and this plaintiff was probably in that category. This is not to say that I thought she exaggerated her evidence about any significant issues, and I am quite satisfied that she did not deliberately give any evidence which she knew to be incorrect. Generally I accept the plaintiff's evidence.

The medical evidence

22. A large number of medical reports were tendered on both sides. None of the doctors gave oral evidence. Although there was some difference of opinion, no major medical issue emerges from the reports. I shall deal with them chronologically, as briefly as a proper analysis permits.

23. The ACT Ambulance Service report and the clinical notes from the Canberra Hospital confirm the plaintiff's evidence as to the immediate post-accident period. X-rays taken on the evening of the accident of the neck, chest, left hip and pelvis revealed no fractures or other abnormalities.

24. The plaintiff's solicitors referred her to Dr G G Griffith, a consultant surgeon resident in Victoria but with rooms in Canberra. Dr Griffith saw her on 19 February 2002, not quite two months after the accident. He took a detailed history and conducted a thorough physical examination. He thought she was suffering from post-traumatic stress disorder, noting that she was tense and worried, short-tempered, chronically tired and socially withdrawn. He said that the plaintiff's seatbelt had almost certainly saved her life, though in the process inflicting significant soft tissue injuries. She would continue to suffer symptoms for many months, and perhaps for two to three years or longer. He speculated that the swelling in the upper thighs might be due to organised haematomata. He said that often such swellings arose because of the forcible translation of the skin and subcutaneous tissues at the level on the plane of cleavage between then and the deep fascia. This lateral movement could rupture, perforating blood vessels, both veins and arteries, leading to large subcutaneous fluid collections. These could become encysted and relatively inert, and should be investigated by ultrasound. He thought that the points of tenderness in the plaintiff's spine, from the neck down to the coccyx, would be likely to respond to injections of local anaesthetic and depot-steroid.

25. About a week later, the plaintiff was referred by Dr Ilbery for ultrasound of both thighs. This revealed extensive soft tissue subcutaneous injury with probable fat necrosis and fluid collection, which might have consisted of old blood, seroma or oil cyst from the fat necrosis. The radiologist, Dr Sullivan, recommended clinical aspiration.

26. In March 2002, the plaintiff was referred by her solicitors to the late Dr R J Scott, occupational physician. He generally agreed with Dr Griffith, but thought that with time the plaintiff would recover completely. The extent of her recovery was dependent on her improvement over the ensuing three to six months.

27. The plaintiff was also referred by her solicitors to Dr Bruce Stevens, a clinical psychologist, who subjected her to extensive testing. He found, in late March 2002, that she was suffering from moderately severe acute pain disorder and mild to moderate chronic post-traumatic stress disorder, with some symptoms of depression. He thought that with appropriate psychological treatment and counselling, perhaps accompanied by eye movement desensitisation, she might make a full recovery though symptoms could persist for a number of years even after treatment. He noted that about half of sufferers from post-traumatic stress disorder recover within two to three years, but of the balance, forty to fifty percent still have the condition ten years later, their symptoms fluctuating in severity.

28. The plaintiff underwent bilateral thigh ultrasound review in June 2004 which confirmed the continuing presence of fluid in both thighs, reduced in quantity.

29. In September 2002, her general practitioner, Dr Ilbery, referred the plaintiff to Dr Judith May, a sports medicine specialist. Dr May thought that there might be some lymphatic damage causing the accumulation of fluid in her thighs, and also thought that she probably had some component of a chronic regional pain syndrome. She suspected that there might be an injury to the L1 disc, and recommended an MRI scan. The scan identified a small focal right posterior paracentral L5-S1 annular tear with mild associated disc bulge, but no damage to the L1 vertebra. Dr May did not think that the annular tear was a contributing factor to the plaintiff's symptoms. She prescribed amitriptyline, a nerve stabilising drug.

30. By mid-October 2002, the plaintiff had completed ten sessions of psychological counselling for post-traumatic stress disorder at the expense of the defendant's insurer. She made significant improvement during this period, though the accident continued to have a marked impact on her life both physically and psychologically. However, a number of the symptoms giving rise to the diagnosis of post-traumatic stress disorder had ceased or substantially diminished. Her concentration levels were gradually improving and she had adopted a number of strategies to assist in managing her continuing psychological problems.

31. In December 2003, the plaintiff was reviewed by Dr P D Stevenson, consultant physician, at the request of the solicitors for the defendant. Dr Stevenson thought that Dr May's diagnosis of a possible complex regional pain syndrome was almost certainly inappropriate in the absence of evidence of any actual nerve injury, though he noted that the plaintiff appeared to be left with some minor bilateral cutaneous neuropathy of the thigh nerves. Dr Stevenson was not called to resolve this apparent inconsistency. He thought that the plaintiff's soft tissue trauma had generally resolved, apart from minor and on the whole fairly subjective symptomatology in the thighs. He assessed the plaintiff as currently fit for work and as requiring no treatment. He thought that her thigh nerve problems would resolve and that she would be able to regain normal fitness, though he did not express a view as to a time frame for this process.

32. The plaintiff was referred by her solicitors to Dr C J Andrews, neurologist, for opinion and report in June 2004. Dr Andrews recorded complaints of intermittent low back pain, headaches three times a week, soft tissue damage to the thighs causing deep aching and superficial tingling, and the possibility of restless legs syndrome. He noted from a review of the MRI scan reports that there appeared to be some calcification of subcutaneous fatty tissue in the thighs. He found some tenderness of the L4-5 facet joint. He was aware that the plaintiff had a previous history of migraine in her twenties. He thought that she had injured her neck and aggravated the migraine condition, that she had suffered facet joint strain in the lower lumbar region, and that she might have developed restless leg syndrome. He suggested further investigation of the lumbar spine with a view, if necessary, to a facet joint block injection to relieve any inflammation. He thought that her prospects of recovery were reasonable provided that the plaintiff continued with medical treatment over the ensuing three to six months.

33. Dr Stevenson reviewed the plaintiff for the defendant's solicitors in July 2004. He rejected Dr May's suggestion of possible complex regional pain syndrome, commenting that none of the objective signs of colour and circulation change were present to confirm such a diagnosis. He thought that the annular tear at L5-S1 was a normal age-related change, unconnected with the motor accident. He wondered whether the ultrasound of the thighs in February 2002 might have been over-interpreted by the radiologist. He generally concluded that there was nothing much wrong with the plaintiff, and that her non-specific symptoms were probably not traumatic in origin and had probably been over-interpreted. He found no objective consequence of the accident which affected the plaintiff's ability to lead a normal life. He thought it reasonable for the plaintiff to continue to attend yoga and Pilates and to continue to exercise at a gym for her general wellbeing, but did not accept that these should be seen as in the nature of lifetime treatment for what he described as minor injuries.

34. Dr David McGrath, musculoskeletal and occupational physician, assessed the plaintiff in June 2004 at the request of her solicitors. She told him that he had attempted squash and tennis in the previous six months but had found them mentally and physically exhausting. He recorded anterior thigh pains in both legs, with a deep stabbing pain in the left groin, and pain in the sacro-coccygeal region on sitting, and also headaches about three times a week. He observed a dysfunction with the left hip joint on rotation, and tenderness in both buttocks. The plaintiff reported reduction in thinking and concentration when in pain or discomfort and being easily fatigued at work. She became uncomfortable in social gatherings because of loss of tolerance. Dr McGrath expressed the opinion that the fluid in the subcutaneous area of both thighs was a marker of an unresolved injury with continuing irritation and dysfunction. In simple terms, he said, she had a significant soft tissue injury about the pelvis, and a non-specific injury to the tailbone, reducing her capacity to sit comfortably for long periods. He thought that this might be secondary to abnormal muscle tension within the pelvis. His prognosis was for continuing slow resolution over several years.

35. In August 2004, the plaintiff was referred by her solicitors to Dr A W Searle, a Sydney orthopaedic surgeon. In his opinion, the tear of the L5-S1 disc annulus was caused by the accident, which also caused ligament strain to the lumbar area, and a minor sprain of each hip joint. The more serious injuries in his view were the haematomas to the thighs which had become liquefied and remained tender approaching three years since the accident. In his view the symptoms were permanent and were productive of a moderately severe degree of disability, rendering the plaintiff permanently unfit for activities requiring prolonged sitting and standing, lifting, repeated bending, twisting movements of the trunk and carrying weights. He thought that she should avoid regular long-distance travel. Degenerative changes would gradually develop in the injured disc and the symptoms and disability would then gradually increase over time. She should be given an opportunity to try the various anti-inflammatories available, to see which provides the best relief without side effects. In Dr Searle's opinion, the injuries had caused a great deal of pain and suffering and had severely impaired the plaintiff's social, domestic and recreational activities and employment prospects.

36. Dr A K Lethlean, neurologist, assessed the plaintiff at the request of the solicitors for the defendant in October 2004. He was satisfied that she had made a complete recovery from a closed head injury which had initially caused concussion. She had suffered soft tissue injuries to various parts of the body, in particular the lower abdomen and thighs. There was a mild change in the sensory distribution of the lateral femoral cutaneous nerve. He accepted that she had injured her L5-S1 disc, and that she was continuing to suffer low back pain as a result. He thought that there was likely to be improvement over time and that deterioration was unlikely. He thought that she would require review and supervision by her general practitioner indefinitely, with a continuing modest requirement for medication. He thought that she would be able to maintain full employment and was optimistic that she would eventually be able to resume interstate travel. He thought it possible that the plaintiff's restrictions in activities would continue permanently, though her condition might be improved by an increasing program of activity. He mentioned her present program of Pilates and yoga, and expressed the hope that she would progress to gymnasium classes as a prelude to resuming walking, cycling and bushwalking.

37. Dr Griffith reviewed the plaintiff on 28 October 2004. It will be recalled that he saw the plaintiff less than two months after the accident, and had not seen her since. On examination, he found focal tenderness at the sacro-coccygeal joint and also in the paravertebral musculature at L4-5, and overlying the L5-S1 facet joints. He also noted significant psychological decompensation, which he described as little improved since he had last seen her. He recommended application of a firm bandage over the swollen areas of both thighs for not less than two weeks after further aspiration, perhaps with infiltration of a concentrated glucose solution, and he thought that it might be helpful to prescribe the plaintiff a different anti-depressant, although this was not his specialist field. Like Dr Searle, he expressed the view that the L5-S1 annular tear and disc bulge were probably causally related to the car accident rather than to idiopathic degenerative change. If it were the latter, one would expect other manifestations to be present in addition. He attributed the fact that the tear was not detected earlier to the fact that it was not looked for by appropriate investigations. He noted that CT and plain x-rays do not identify annular tears.

38. I had some difficulties with the reports of Dr Stevenson. He did not appear to accept the plaintiff's complaints, and saw her injuries as minor. Where there were physical findings, he was reluctant to accept that they could have any causal relationship with the motor vehicle injuries, notwithstanding the absence of any other traumatic incident which might have explained them. Where Dr Stevenson's opinion departs from the opinions expressed by the other doctors, I prefer the other opinions.

39. Once one excludes the opinion of Dr Stevenson, the other doctors can be seen to have only relatively minor differences. I accept the opinions expressed, in particular, by Dr Griffith, Dr Stevens, Dr Andrews, Dr McGrath, Dr Searle and Dr Lethlean. The differences between these doctors, after taking account of the differences in specialty, are largely of emphasis rather than substance.

40. On the basis of their opinions, I accept that the plaintiff underwent a terrifying and, as she saw it, a life-threatening experience in which she suffered severe and extremely painful injuries. I accept that more probably than not, the injury to her low back at the L5-S1 level was caused or made symptomatic by the accident. I accept that the condition of her thighs remains painful and embarrassing, though that condition has improved significantly over time. I accept that initially the plaintiff suffered from post-traumatic stress disorder, and that with the passage of time and counselling, the symptoms which led to that diagnosis have greatly reduced although some remain.

Loss of earning capacity

41. At the time of the accident the plaintiff's substantive level in the Commonwealth Public Service was ASO 6, the most senior clerical level. She had, for various periods, held acting appointments at Executive Level 1, the lowest level of the senior executive ranks. The gross salary applicable to her substantive position was $55,697 per annum. The equivalent salary for an EL 1 officer was $60,347, the rate applicable to the lowest of the three pay points for an El 1. It was submitted that I should adopt the mid-level EL 1.2 figure of $65,164, but in the absence of supporting evidence that seems to me inappropriate. It appears to me much more likely that if the plaintiff was acting at EL 1 level, she would be remunerated at the lowest of the three pay points applicable to that level.

42. By the time of the hearing, the applicable salaries had been increased to $59,949 for the ASO 6 position, and $64,954 for the EL 1.1. The differential remains about $5,000 per annum before tax.

43. The position is complicated by the fact that the plaintiff had available to her the opportunity to `purchase' additional annual leave, and she did this in most years in order to give herself more time for overseas travel. The plaintiff was able to `purchase' up to four additional weeks of leave a year. If she chose to do so, she would be paid at a lesser rate each fortnightly pay, and would take the additional leave as paid leave at the lower rate. The plaintiff's evidence about the periods during which she acted at the higher level was not supported by departmental records, although her own tax returns were in evidence. Consequently I am unable to be precise about the periods. I accept that she had acted from time to time at the higher level and that she would have continued to do so in the future as the opportunity arose, had she not been injured.

44. The plaintiff was off work following the accident for two months. She returned to work on a graduated basis, achieving full hours in November 2002, some nine months later. She used up all of her sick leave credits during this time and may have suffered some actual loss even against her ASO 6 rate of pay. A claim is made on her behalf for the initial nine weeks after the accident, an amount just short of $8,000 net. The evidence is not entirely clear as to when the plaintiff ran out of sick leave credits, but it appears that the whole of the initial period was covered by sick pay. The plaintiff thus suffered no actual loss of earnings during this period (other than the possibility that she might have been called upon to act at Executive Level 1) but she lost her sick leave credits which would otherwise have accumulated and been available to her had she needed to take sick leave for some other reason in the future. The evidence is that she was generally fit and healthy before the motor accident, and it seems to me that the likelihood that she would have needed to take sick leave in the future for longer than her accruing annual entitlement was relatively low. For that early period I would award her $2,500 for loss of sick leave credits, plus interest which I calculate at $800.

45. The plaintiff then makes a claim for the entire period from her return to work to date at the difference between the ASO 6 and EL 1 rates of pay. This is put on the basis that at some point between the accident and the hearing, the plaintiff could have expected a promotion to EL 1, and that prior to the promotion, she could have expected opportunities to act at that level.

46. Evidence was given in the plaintiff's case by Mr R J Rees, a substantive EL 1 who had been the plaintiff's supervisor from November 1999 until about June 2000, and who continued to work with the plaintiff until late 2003. He described the plaintiff as a very good worker, very capable with initiative and well educated. He explained that at ASO 6 level the job is that of a project officer, given a range of tasks or projects to complete, whereas an EL 1 is required to manage an area of responsibility which consists of a number of projects being undertaken by staff, and also to fulfil representational duties. The work of an EL 1 is more demanding, requiring longer hours, more travel and greater intellectual capacity. Mr Rees's view was that the plaintiff has the necessary qualities to function at EL 1 level, and he would have been happy to provide her with a referee's report to that effect. He conceded that he had not had any contact with the plaintiff during periods when she was herself acting at Executive Level 1. He also said that the requirement for travel varied from department to department, and that the travel required in the Environment Department was greater than in some other departments.

47. The plaintiff's own evidence was that in late 2003 or early 2004 she prepared and lodged an application for promotion to EL 1, but withdrew the application prior to interview because she realised, after speaking to the chair of the interview committee, that she was not up to the job. She had been told that the position would involve extensive travel to Queensland.

48. There was no independent evidence which would enable me to conclude that the plaintiff was more likely than not to have succeeded in her application for that position, either if she had persisted with it in early 2004, or, at a more hypothetical level, if she had not been injured in the motor vehicle accident. Similarly, there is no independent evidence as to the availability of EL 1 work for the plaintiff in an acting capacity. I am satisfied from Mr Rees's evidence that the plaintiff would have been capable of performing at that level if it had not been for her injuries, and I can infer from the fact that the plaintiff had had the opportunity to act at EL 1 prior to her accident that there might have been such opportunities available to her in the period since 2001. The evidence falls short of satisfying me that the plaintiff would have been working at the EL 1 level for the whole of the period since the accident.

49. Although precise figures were not put in evidence or submission, I accept that the differential between the two rates of pay, ASO 6 and EL 1, would have been about $50 per week after tax at all relevant times. If the claim were made out in full, the plaintiff's loss to date would be of the order of $8,000. I propose to allow $5,000 to compensate the plaintiff for the loss of the opportunity to be promoted to that level and to act at that level as the opportunity arose. That award attracts interest which I assess at $800.

50. There are other past losses claimed, in relation to the plaintiff's interest in cooking and the loss of the opportunity to earn income from that source. I have mentioned her work at the Green Herring. Mr Green, the proprietor of that business, met the plaintiff at a class he conducted at Cooking Coordinates at Belconnen Markets in late 2001. She approached him and asked about the possibility of work. After an unpaid trial, he offered her a casual job approaching Christmas 2001, and she worked a number of shifts doing basic food preparation and helping with service. Her shifts were generally from 6.00 pm to 10.00 pm. She was a good worker, interested in the kitchen, always eager and keen to learn. He would have been happy to keep her on in the New Year when the restaurant was busy enough. It is a small restaurant and he was not in a position to offer her permanent work. The busiest periods for the restaurant were from late November to Christmas, and from May to August. He paid her $20 per hour and would have paid $22 on Saturday and $25 on Sunday if work had been available for her. Fridays and Saturdays are the busiest nights at the restaurant, and so the nights when she would be most likely to have been offered work. January is a quiet month and he closed the restaurant for most of January 2005. He thought that he probably would have needed the plaintiff as a casual from about the beginning of March each year. He agreed that there was not a lot of room to get around the kitchen of his restaurant and it was necessary for staff to push past one another.

51. The plaintiff, during the short period she worked at the Green Herring before her accident, earned $396 gross, less $106 tax, $290 net. It seems to me that if she had been appointed EL 1, or asked to act at that level, the demands of the position would have interfered with her availability to undertake the Green Herring work. It appears that she was earning about $90 net for a four-hour shift on a week night, and a little more for Saturday and Sunday work. It seems that the plaintiff might have earned $200 to $300 net a week during busy periods, but that there would have been periods during the year when she would not have been required. I am reasonably satisfied that she might have earned something of the order of $5,000 net per year from the Green Herring, but that her earnings would have inevitably been reduced if she had been promoted in the Public Service. Without promotion, she might have earned about $15,000 net since the accident, taking account of the fact that she might have been promoted and might have had extended periods acting at the Executive Level. It seems to me reasonable to allow $7,500 for loss of Green Herring earnings, plus interest of $1,000 to date.

52. The plaintiff had two one-off arrangements in place at the time of her accident from which she expected to earn income. It had been arranged that she would present a class in February 2002 at Cooking Coordinates on hand-made chocolates, a skill she had learned during her course in France. Thirty-one people had booked and paid to attend the class, which had to be cancelled. The plaintiff claims that she would have earned $45 net and this is conceded by the defendant. There is also a general claim that this might have led to more work in the future with Cooking Coordinates. I allow $60 including interest for that lost opportunity. Otherwise the claim is of insufficient magnitude to warrant a separate allowance for loss of opportunity but I shall reflect it in general damages, which I see as appropriate bearing in mind that the plaintiff gained enjoyment as well as income from activities of this kind.

53. The other claim relates to a fortieth birthday party for which the plaintiff was to undertake the catering, to be held during March 2002. The plaintiff's evidence was that she had had some discussions with a friend who was organising the party for her partner. The plaintiff was to supply the food and wine and to organise the event. The plaintiff said that the cost of the party was to be about $4,000, of which the plaintiff would have made a profit of about $2,800.

54. The friend, Ms Dumbrell, was called to substantiate the claim. It became clear from her evidence that there had been no agreement about the cost of the event. Ms Dumbrell had known the plaintiff since 1999, having worked as her supervisor, and had become a personal friend. She asked the plaintiff to be the caterer for the party, and to prepare the food. She said that there had been discussion about a service fee, and covering the cost of the food, but no discussion as to detail. In the event, Ms Dumbrell arranged, with the plaintiff's help, for outside caterers to do the job, and the plaintiff was not paid. It seemed to me from Ms Dumbrell's evidence that there was no firm arrangement about payment and I suspect that Ms Dumbrell would have been astounded at a proposition that she should pay the plaintiff a fee of $2,800, on top of about $1,200 as the cost of the food and wine. I suspect that there was a misunderstanding between the plaintiff and Ms Dumbrell, the former seeing it as a business opportunity and the latter probably as a chance to save on the cost of the function by having a friend cater for it rather than a commercial organisation. I am not satisfied that I should allow any more than a relatively nominal sum which I can be reasonably satisfied Ms Dumbrell would have accepted as appropriate. I allow $500 including interest.

55. The total allowance for past loss of earnings, including interest, will thus be as follows:

loss of sick leave credits $2,5000.00

interest thereon $800.00

loss of opportunity for promotion and higher duties $5,000.00

interest thereon $800.00

loss of Green Herring earnings $7,500.00

interest thereon $1,000.00

loss of Cooking Coordinates income (including interest) $60.00

loss of birthday party catering income (including interest) $500.00

$18,160.00

56. The plaintiff makes a claim for future impairment of earning capacity. Her counsel concedes that the amount to be awarded is not capable of mathematical calculation. Counsel for the defendant submits that the plaintiff is presently working full-time, and that she has the capacity to undertake restaurant work in addition if she chooses to do so, so that any allowance for future economic loss should be modest. I am satisfied that the plaintiff, prior to her injuries, had the capacity to work at Executive Level 1 in the Public Service, and in addition to undertake some additional income-earning activities such as restaurant work, catering for functions and giving classes. I acknowledge that the demands of an EL 1 position would have been such that the plaintiff would probably not have had a great deal of opportunity to exercise her capacity to earn income in those other areas. The majority of the medical practitioners take the view that the plaintiff will continue to improve, and I accept that view. She agrees that she is an ambitious person. I think that over time it is likely that she will succeed in obtaining promotion to the Executive Level, and that she will return to some of the cooking-related activities which have the potential to earn income once this case is behind her. Having said that, I am satisfied that now, and for some years to come, the plaintiff's previous earning capacity will remain impaired to a reducing extent. This is an appropriate case for a lump sum award to compensate the plaintiff for her impaired earning capacity, to the extent that it is likely to be reflected in reduced earnings. An appropriate amount would be $30,000 which I award.

Treatment expenses

57. Past expenses are agreed at $10,836.79. Of this sum, I am informed that $7,612.29 has been paid by the defendant's insurer. The balance, $3,224.50, has been paid by the plaintiff and attracts interest which I allow at $500.

58. I accept that the plaintiff will have a continuing need for review by her general practitioner and for medication, and that there is a possibility, referred to by Dr Searle in his report, of deterioration leading to greater expense. Dr Andrews thought that the plaintiff might need facet joint block injections in the future.

59. I accept the medical evidence to the effect that the injuries have created in the plaintiff a need for exercise and physical activity programs of the kind she is presently obtaining through yoga, Pilates and attendance at the gymnasium. This need has been created by the plaintiff's injuries notwithstanding that she was engaged in similar activities before her accident for general fitness and well-being. An allowance must be made for this need, to the extent that it will be reflected in expense, discounted for the likelihood that she might, regardless of the accident, have continued with such programs.

60. Again, the various considerations in relation to future expense do not lend themselves to a mathematical approach to the calculation of an appropriate figure to compensate the plaintiff for this component of her damages. I am satisfied that an appropriate figure would be $20,000.

Damages

61. I assess general damages for pain and suffering and loss of enjoyment of life, and for disfigurement, at $65,000, which I apportion as to $40,000 for the past and $25,000 for the future. I allow interest on the past component of $3,000 which takes account of the fact that the figure is more heavily weighted to the period immediately after the accident.

62. The total of the individual components of the award is as follows:

general damages $65,000.00

interest thereon $3,000.00

past loss of earnings including interest $18,160.00

loss of earning capacity - future $30,000.00

past treatment expenses $10,836.79

interest thereon $500.00

future treatment expenses $20,000.00

$147,496.79

63. I note that the defendant is to have credit out of this sum for the treatment expenses paid by her insurer, $7,612.29.

64. The total appears to me to represent a proper reflection of the impact of the accident and the injuries on the plaintiff. There will be judgment for the plaintiff for that amount. I shall hear the parties as to costs.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 17 March 2005

Counsel for the plaintiff: Mr R J Mildren

Solicitors for the plaintiff: Capital Lawyers

Counsel for the defendant: Mr I M Newbrun

Solicitors for the defendant: Hunt & Hunt

Date of hearing: 16, 17, 18 November 2004

Date of judgment: 17 March 2005