Wilson v The Nominal Defendant [2007] ACTSC 58 (3 August 2007)

Last Updated: 28 July 2008

DELA THERESE WILSON v THE NOMINAL DEFENDANT

[2007] ACTSC 58 (3 August 2007)

NEGLIGENCE - personal injury - motor vehicle collision - driver of unidentified vehicle admittedly negligent - whether contributory negligence by plaintiff

DAMAGES - personal injury - enrolled nurse aged 37 - injury to right hip - hip replacement likely in 15 to 20 years - reduction in earning capacity - no issue of principle

State Government Insurance Commission v Oakley (1990) Aust Torts Reps 81-003

Donaldson v Canberra Tyre Service [2004] ACTSC 26

No. SC 770 of 2005

Judge: Master Harper

Supreme Court of the ACT

Date: 3 August 2007

IN THE SUPREME COURT OF THE )

) No. SC 770 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DELA THERESE WILSON

Plaintiff

AND: THE NOMINAL DEFENDANT

Defendant

ORDER

Judge: Master Harper

Date: 3 August 2007

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the amount of $406,500.00

1. This is an action for damages for personal injury. At about 6.35 am on Thursday 9 March 2000, the plaintiff was driving to work when her car was forced off the road and collided with a tree. The offending vehicle and its driver were not able to be identified. The Nominal Defendant concedes that the driver of the unidentified vehicle was negligent, but asserts contributory negligence on the part of the plaintiff. It is accordingly necessary for me to describe, and make findings of fact about, the circumstances of the incident.

The accident

2. It was dark and raining heavily. The plaintiff, who lives at Charnwood, was on her way to work at Jindalee Nursing Home at Narrabundah, where she was employed as an enrolled nurse. She was due to start work at 7 am. She picked up a work colleague, Melissa Robertson, at Fraser. Her route took her along William Hovell Drive through the Glenloch Interchange and along Parkes Way in an easterly direction. She stopped at a set of traffic lights in the vicinity of the Glenloch Interchange in the left of the eastbound lanes, behind a white utility. The lights changed and the vehicles moved off. The plaintiff noticed that the driver of the white utility was driving erratically, veering from side to side. She thought that the speed of the vehicles was about sixty kilometres per hour at this time, the speed limit being ninety. Other cars overtook them in the right lane. The plaintiff was a little nervous about the white utility and decided to overtake it and get away from it. She changed into the right lane to overtake, and accelerated for that purpose. As she did so, the utility moved without warning into the right lane also, and into her path. The plaintiff's evidence was that at this time she was travelling at about sixty-five kilometres per hour, although there is a note in the Calvary Hospital records that later in the morning her speed was recorded at eighty kilometres per hour, presumably by a member of the hospital staff taking a history from her. It seems to me unlikely that in all the circumstances the plaintiff would have been particularly focused on her speed, but I am satisfied that at no time did she exceed the speed limit.

3. Parkes Way is divided by a wide grassed median strip, kerbed on either side. The plaintiff lost traction and the wheels of her car struck the median strip. The car ran across the strip and across the westbound lanes of Parkes Way, fortunately not colliding with any vehicles coming in the opposite direction. The vehicle left the road on the other side of Parkes Way and struck a tree. The tree, or a branch, fell over the driver's door. The car was extensively damaged on the driver's side.

4. Counsel for the defendant submitted that the plaintiff should not have attempted to overtake the utility, and should have foreseen that its driver might once again veer out of his lane and into her path. The plaintiff agreed in cross-examination that if she had not overtaken, but had stayed behind the utility, the accident would not have happened, although she added that she might as a result have been late for work.

5. Other vehicles had overtaken the utility without incident. It is easy to look back with the benefit of hindsight and identify behaviour on the part of the plaintiff which might have avoided the accident. My task, however, is to examine her behaviour at the time she decided to overtake and commenced the overtaking manoeuvre, and to decide whether her behaviour amounted to a failure to take reasonable care for her own safety such that she should be obliged to accept some proportion of responsibility for her own injuries. I am not satisfied that the behaviour of the white utility which she had observed gave rise to a risk of danger such that she should have decided not to overtake. I am satisfied that the plaintiff's injuries were caused entirely by the negligence of the driver of the utility in changing lanes without warning and in driving into the path of her vehicle while she was overtaking.

The plaintiff

6. The plaintiff was born on 8 September 1962 in Canberra. She attended Macgregor Primary School and Ginninderra High School, which she left after year nine. She worked as a shop assistant and a meat packer before having children. She has three sons and a daughter, born between 1979 and 1983. She spent the ensuing years bringing up her children as a single mother, occasionally undertaking casual work including cleaning and security work. She was aged thirty-seven at the date of the motor vehicle accident and is now not quite forty-five. She has two grandchildren.

7. In 1996, at about the time her youngest child started secondary school, the plaintiff started work at Jindalee as an assistant in nursing.

8. In the late 1980s she became interested in martial arts in the form of kickboxing. She became highly proficient at kickboxing, and spent considerable periods of time training and competing. She became an instructor and ultimately achieved black belt status, becoming the highest-ranked female kickboxer in Canberra. I am satisfied from her evidence about kickboxing that this required a high standard of fitness as well as physical flexibility and skill.

9. In November 1997 the plaintiff slipped on a wet bathroom floor at Jindalee, and, in her words, did the splits. She injured her right groin. Her general practitioner referred her for physiotherapy. She was off work for about a month. During 1998 and 1999 she undertook further training at the Canberra Institute of Technology, and qualified as an enrolled nurse.

10. It is common ground that the clinical notes of the plaintiff's general practitioner, Dr Stephen Ahern, record complaints of groin pain in November 1998 and May 1999, though not of such severity as to warrant any time off work.

11. On 29 December 1999 the plaintiff injured her left knee in the course of her employment at Jindalee, when she knocked her knee on a metal projection on a bed. She was referred by Dr Ahern to Dr David McNicol. She was not able to obtain an appointment with him until after the motor accident. In May 2000 he carried out arthroscopic surgery on the left knee.

The plaintiff's evidence about her injuries

12. The plaintiff said in evidence that she briefly lost consciousness. Her passenger shook her and woke her. A man who may have been the driver of the white utility helped them out of the passenger side of the car and lent them his mobile telephone. The plaintiff rang her partner and her brother. The man left, and the plaintiff and her friend sat at the side of the road in the rain for thirty to forty minutes before a passing policeman stopped to help. A little later her brother arrived and took the plaintiff to hospital, and her partner attended to the damaged motor vehicle. She explained that she and her then partner, Simon Epstein, were together for about ten years, separating in acrimonious circumstances during 2005.

13. The plaintiff's brother took her to Calvary Hospital where x-rays were taken of the cervical spine, thoracic spine, lumbar spine and shoulders. She was sent home with a neck brace. The x-rays were generally normal and revealed no evidence of recent injury. The Calvary Hospital records note a history of headache at the back of the head and dizziness with no loss of consciousness. The neck was very tender with restriction of movement. The entire spine was tender as were both scapulas. She was given Panadol and Panadeine, a soft collar and a medical certificate for four days off work.

14. The next day she went to her general practitioner. Dr Ahern, who had been her general practitioner for a number of years, was unavailable and she saw Dr Turner. She complained of headache accompanied by vomiting, and a sore neck. She first saw Dr Ahern on 14 March, five days after the accident. By then she was complaining of headaches, a sore neck and pain in the lower back. She had a bruise on the back of her left hand and a painful right hip and left knee. Dr Ahern formed the view that she had suffered a head injury accompanied by soft tissue injuries to the neck, lower back and left hand, with some injuries to the right hip and left knee.

15. The plaintiff does not complain that she injured her left knee in the motor accident and I conclude that her knee symptoms were referable to the earlier work injury.

16. Dr Ahern prescribed analgesics and referred the plaintiff for physiotherapy and counselling. He kept her under review, and she remained off work until 19 June when she was due to start again on light duties.

17. On 20 June 2000, the plaintiff attended to have x-rays taken on referral from Dr Ahern. This proved to be a painful and humiliating experience for the plaintiff, who had to lie down and spread her legs apart to have her hip x-rayed. To compound the emotional impact of this experience, she found that the workers' compensation insurer had not agreed to pay for the x-rays, and she had to wait for about two hours while this difficulty was resolved. It was another wet day, and as the plaintiff was leaving to return to the car with her daughter she fell and injured her right knee. It seems that she grabbed at her daughter for support, and in the course of falling, she tried to protect her left knee, which had been operated on by Dr McNicol the previous month. In this fall, the anterior cruciate and medial collateral ligaments of the right knee were torn. These were repaired surgically by Dr Gillespie, another orthopaedic surgeon. The plaintiff was unable to return to work until 28 July 2000.

18. Senior counsel for the plaintiff submitted that the fall on 20 June should be seen as flowing from the defendant's negligence. I am not persuaded that any causal connection has been made out. There is no evidence that the plaintiff fell because of any instability in either leg. She cannot explain why she fell, though she assumes that she slipped. It may be that the condition of her left knee following the surgery performed by Dr McNicol in May 2000 played some part. For the purpose of assessing damages in the present action, it seems to me that the fall and its consequences must be seen as unrelated to the motor vehicle accident: see State Government Insurance Commission v Oakley (1990) Aust Torts Reps 81-003 at 67, 577 per Malcolm CJ, applied in this Court by Crispin J in Donaldson v Canberra Tyre Service [2004] ACTSC 26. The only link which can plausibly be pointed to is that if it had not been for the motor accident, the plaintiff would not have been attending for x-rays, and thus would not have been in what turned out to be the wrong place at the wrong time. This is not a sufficient nexus. The injury to the right knee must be regarded as causally independent of the motor vehicle accident.

19. The plaintiff's evidence was a little unclear as to when she worked and when she did not during this period. It seems that she returned to work about three months after her fall. She worked with ACT Mental Health and with National Capital Private Hospital. Dr Gillespie operated on her right knee in October 2001, after which she was off work for four or five months. At different times she worked at Hennessy House and also at Hyson Green, a psychiatric unit within Calvary Hospital. She started work at National Capital Private Hospital through an agency at some time after this, and was still working at that hospital by the time of the hearing, as a medical ward nurse.

20. In August 2002 she was referred by her general practitioner to Dr Peter Morris, a Canberra orthopaedic surgeon. He arranged an MRI arthrogram of the right hip which was suggestive of a nondisplaced superolateral labral separation. Dr Morris referred the plaintiff to Dr Warwick Bruce, an orthopaedic surgeon in Sydney with expertise in hip arthroscopic surgery unavailable in Canberra. The plaintiff's evidence was that Dr Bruce referred her for an injection to the hip. This was administered in Canberra but gave no relief. The plaintiff went back to see Dr Bruce: a second injection was effective, relieving the plaintiff's pain for about two weeks. She had a number of later injections at intervals of about two or three months but said that these did not really help.

21. In April 2004, the plaintiff went to Sydney again for arthroscopic surgery performed by Dr Bruce. She was in hospital for two nights. On discharge she returned to Canberra and was off work for some weeks. She then returned to her work as a nurse at National Capital Private Hospital. Dr Bruce recommended that she take Chondroitin Sulphate and Glucosamine, non-prescription medications available from chemists and health food stores. She found these helpful but decided that she could not afford to continue buying them. She said that initially the defendant paid for them but at some point she was told that a decision had been made not to continue doing so.

22. The plaintiff's evidence in chief was that her usual working hours were 6.5 hours, five days a fortnight. She had increased her hours at her own request from about October to December 2006, because she needed money to repay a loan she had taken out for a headstone for her late mother. Once she had repaid the loan she said that she reverted to her usual hours. She says that she would like to be able to work longer hours and would do so if she could, but that her hip and lower back pain do not permit this.

23. Her evidence was that if it had not been for the motor accident, she would have pursued an ambition to qualify as a registered nurse. This would have taken two years of full-time university study. She says that she is not able to concentrate on study, which she blames on her medication.

24. She said that she had tried to get back to kickboxing after the accident, but had been unable to meet its physical demands. During the seven years between the accident and the hearing she thought that she had spent a maximum of two years instructing beginners at kickboxing and training so as to keep up her own skills.

25. The plaintiff says that she cannot mow her lawn, which she used to enjoy. Before the accident she had two German Shepherd dogs and used to spend a lot of time walking and training them. One was a trained security dog. After the accident she was unable to continue with this and her then partner looked after the dogs. Both dogs had died by the time of the hearing.

26. The plaintiff said that she used to enjoy camping before the accident. She had tried it since but had been unable to sleep because of pain and discomfort. Her sleep at home was still sporadic by the time of the hearing. She described herself as very sexually active before the accident but said that her sexual activity had ceased entirely. She blamed this for the break-up of her relationship with Mr Epstein. She also found driving for long distances painful.

27. A particular concern of the plaintiff is that she has gained significantly in weight since the accident, which she blames on her injuries. She had been a light to moderate drinker before the accident, but after it began drinking heavily, a bottle of whisky every three days, which she says she did to relieve pain and help her sleep, though she agreed that alcohol was not particularly effective for these purposes. She said that at the time of the hearing she hated herself, referring to her body weight and her drinking.

28. The plaintiff was cross-examined by reference to records provided by her employer, and conceded that there had been a number of two-week periods when she had worked longer hours than she had conceded in chief, both before and after the period when she worked longer hours to repay her debt. Notwithstanding this, I formed the view that the plaintiff was generally a truthful witness. It did not appear to me that she was consciously tailoring her evidence to advance her case, or exaggerating her symptoms. It is in the nature of personal injury litigation that a plaintiff will put her best foot forward when she is given the opportunity for her day in court. To the extent that the present plaintiff did so, she did not seem to me to depart from the pattern of the typical plaintiff. All things considered, I accept her as a witness who was doing her best to give honest and truthful evidence.

The medical evidence

29. I had the benefit of reports from the plaintiff's general practitioner, Dr Ahern, and also from Dr Gillespie who operated on her right knee, as well as radiological reports. There was also a short report from Dr Morris outlining his involvement, including his referral of the plaintiff to Dr Bruce.

30. Dr Bruce first saw the plaintiff in December 2002. Her principal complaint was of pain in the right hip. He thought that she might have a labral tear, though her symptoms were not classical. He suggested an injection of steroid and local anaesthetic. He next saw her in July 2003, about two weeks after this injection. She reported that the injection had not helped and that she was in some doubt whether the injection actually went into the hip. Dr Bruce recommended a repeat injection and a hip arthroscopy. A further injection late in 2003 was successful, resulting in absence of pain in the hip region for three weeks.

31. Dr Bruce operated on 8 April 2004 in Sydney, carrying out a right hip arthroscopy and chondroplasty. He found that there had been no tearing of the labrum, but there was a split beside the acetabulum, resulting in overload caused by mild dysplasia, which might deteriorate in the future. Dr Bruce thought that nursing duties would be too heavy for the plaintiff, and that she should restrict herself to seated clerical or supervisory work. She should lose weight. She would need intermittent analgesic and anti-inflammatory medication. It would be useful for her to try Chondroitin Sulphate and Glucosamine. If the hip deteriorated in the future, she might require a further arthroscopy. If the pain became very severe and significant arthritis developed then total hip replacement would be indicated. Dr Bruce did not expect that this would occur for at least fifteen or twenty years. A conventional total hip replacement (metal on plastic) would have a 70% chance of lasting fifteen years. Recent developments in hip replacement technology gave hope that in the future, an artificial hip could be expected to last longer than twenty years.

32. Counsel for the defendant tendered a report dated June 2005 by Dr Lybus Hillman, a Canberra gastroenterologist who had seen the plaintiff on referral from her general practitioner. Dr Hillman noted two episodes of rectal bleeding and a tendency to diarrhoea, following a split from her partner after ten years together. The plaintiff had been smoking and drinking heavily and her diet was "horrendous". She expressed an intention to cut back on drinking and smoking. She was "training at boxing daily". She also had chronic obstructive airways disease, probably emphysema. Dr Hillman noted the history of a motor vehicle accident but did not refer specifically to any symptoms outside his specialty.

33. The plaintiff was seen for the defendant in May 2006 by Dr Max Wearne, a consultant orthopaedic surgeon who offers his services through a group medico-legal practice. Dr Wearne took a detailed history from the plaintiff. He was provided with what he described as a large file which included radiological reports and other medical reports and material. I cannot be sure that all of the documentation with which he was briefed found its way into evidence. He commented that Dr Bruce's findings on arthroscopy raised the possibility of previous wear and tear on the acetabulum rather than an acute injury. With the plaintiff's history of involvement in martial arts it was feasible that she had some previous damage to her right hip. However, considering the undoubted violence of the motor vehicle accident, he said, it would be difficult to deny that the accident was a major contributor to the condition of her right hip. Dr Wearne concluded that the plaintiff had suffered a soft tissue injury to the right hip in the motor accident. He accepted that she had also suffered a sprain to the right hand and wrist, and soft tissue injuries to the neck and back. He considered that as a result of the motor accident she no longer had the physical ability to engage in kickboxing. He advised continuing conservative treatment in the form of medication. Her symptoms could be temporarily alleviated by one or two more steroid injections into the right hip, but he advised no more than two injections, as repeated therapy in that form could be destructive in the long term. Dr Wearne thought that the plaintiff would probably eventually require some form of arthroplasty (hip replacement), although she was too young to consider surgery of that kind at present. He recommended deferring a decision about hip replacement surgery for at least ten years.

34. As to working capacity, Dr Wearne regarded the plaintiff as fit for general nursing work for no more than 6½ hours a day, five days a fortnight, provided that she could rest for ten minutes at the end of each hour. These work restrictions were in his view permanent. She would probably continue at her present level of incapacity for a number of years, with a probability that her level of incapacity would increase. Over time, osteoarthrosis in the right hip was likely to develop. The right hip disability was in his opinion solely due to the motor vehicle accident.

35. After reporting to the solicitors for the defendant, Dr Wearne was furnished with further documentation including medical reports and copies of documents produced by Jindalee Nursing Home and by Return to Work Express, a rehabilitation provider engaged by the workers' compensation insurer. He referred to the incident of 1 November 1997 when the plaintiff slipped and fell while working at Jindalee. He inferred from a note in Dr Ahern's records that the plaintiff had attended his surgery in November 1998 complaining of soreness in the groin for which she was prescribed medication, that the symptoms from her fall had continued for about a year. I am not satisfied that this inference should be drawn. It is clear from the records that the plaintiff did not see her general practitioner between January and November 1998. If she had any symptoms during that period, they were clearly not of a level requiring treatment or prescription medication. Nor is there any record of any attendance after November 1998 and prior to the motor accident, in relation to such symptoms. The plaintiff's evidence is that she recovered from the fall at Jindalee within two or three months, and I accept that evidence.

36. Dr Wearne was asked by the defendant's solicitors to express an opinion "as to the likely future effects of any pre-existing groin and right hip condition (without the motor vehicle accident) both as to their nature and their future development and progress". He said that he regarded damage to the right hip joint arising from the fall at Jindalee as "only a possibility" but said that a hypothesis could be developed from Dr Bruce's findings on arthroscopy "whereby the damage of [sic] the articular cartilage of Ms Wilson's right acetabulum could be seen as arising from previous trauma to her right hip such as involvement in martial arts or the type of incident that occurred on 1 November 1997".

37. It seems to me that Dr Wearne was here drawing a long bow. If anything, it seems to me arguable that the plaintiff's kickboxing activities and her fall at Jindalee may have predisposed her to somewhat more serious injury when subjected to the trauma of the motor vehicle accident than might have been the case if she had not had a history of such activity and trauma. The evidence does not permit me to conclude that prior to the motor vehicle accident her hip was, as a result of previous activity and trauma, in such a condition that future deterioration was likely in the absence of further trauma.

38. Dr Bruce is an acknowledged expert in hip surgery within the general field of orthopaedics. The evidence is silent as to whether Dr Wearne has developed any similar sub-specialist expertise in hip surgery, or indeed whether he is in practice at all other than as a provider of medico-legal reports. Where his opinion departs from that of Dr Bruce, I prefer the latter.

Damages

39. I accept that the effects of the motor vehicle accident on the plaintiff have been significant. For seven years she has endured a varying but continuing level of pain in the right hip and groin and the low back, which I take to be largely manifestations of the injury to the hip area. Fortunately she has been able to continue working as a nurse, though not full hours, and she has been unable to take advantage of opportunities to work overtime. She has had to give up her kickboxing, something which she enjoyed and which provided an additional dimension to her life. She has had to take medication to relieve her pain, and also her depression which I accept is a consequence of that pain and the interference with her normal life. Her capacity to sleep at night has been greatly reduced, as has her ability to engage in normal physical activity such as walking with active dogs. Sexual intercourse has become uncomfortable and painful for her, and she avoids it. She attributes the breakdown of her ten-year relationship with Mr Epstein to this, and has been unable to form another relationship since then because of it. She has put on a great deal of body weight and her body image has negatively affected her self-esteem. Her smoking and heavy drinking can be attributed to her accident.

40. The plaintiff believes that hip replacement surgery will cure most of her problems. This may or may not be correct, but none of the medical specialists agree with her that hip replacement surgery is desirable now. I accept Dr Bruce's view that she will come to it eventually, but that this may not be for fifteen or twenty years. It is likely that she will need at least one further replacement operation, perhaps fifteen or twenty years after the first.

41. I invited counsel to make submissions as to general damages for pain and suffering and loss of enjoyment of life. Senior counsel for the plaintiff suggested a range of $90,000.00 to $100,000.00; counsel for the defendant put a figure of $60,000.00. The plaintiff has endured seven years of disability; she is 44 and will have many more years of pain, discomfort and interference with the quality of her life, with surgery in the medium to distant future. It seems to me that a proper figure for general damages is $90,000.00, of which I apportion $40,000.00 to the past. I allow $6,000.00 for interest on the past component.

42. The treatment expenses are claimed at $16,744.32. I am informed that this amount has been paid either by the defendant or by the workers' compensation insurer, the plaintiff's injury having occurred on her way to work. I allow that amount. No interest on it is claimed. To cover the period since trial I allow $17,000.00.

43. For future treatment expenses, the plaintiff in her statement of particulars claimed $19.46 per week for medication for the rest of her life, a present value of some $24,000.00. She also claimed $20,000.00 to cover the cost of hip replacement surgery in the future, with associated rehabilitation treatment. In closing submissions, senior counsel for the plaintiff sought to increase this to cover a second future hip operation in an amount of another $20,000.00. As I have said, it seems to me likely that the plaintiff will come to hip surgery, but probably not for fifteen or twenty years; and that she is likely to require a second hip replacement operation another fifteen or twenty years after the first. Accepting that the total costs surrounding a hip replacement operation are of the order of $20,000.00, the plaintiff is entitled to be awarded now only such an amount as will, invested at 3% per annum compounding, provide the necessary sum when it is required. By reference to Table 1 in the Appendix to Luntz, Assessment of Damages for Personal Injury and Death (4^th Edition), I note that the present value of a single payment of $20,000.00 in fifteen years on the 3% tables is roughly $12,800.00, in twenty years $11,100.00, in thirty years $8,200.00 and in forty years $6,200.00. I propose to allow $12,000.00 for the first hip replacement operation and $7,000.00 for the second. These figures will need to be further reduced to reflect the vicissitudes of life. I would thus start with a figure of $43,000.00, which I reduce by 15% to take account of the vicissitudes of life. I allow $36,500.00 for future expenses.

44. In relation to past economic loss, the plaintiff was in receipt of workers' compensation benefits for the period immediately after the accident until 20 June 2000. She received compensation for that period of $3,981.93 gross. The tax would have been taken out by the insurer but the plaintiff is entitled to recover the tax in addition to her net loss of earnings (the Fox v Wood component) and for simplicity I allow the gross amount.

45. It will be recalled that on 20 June 2000 the plaintiff fell and injured her right knee. She was due to return to work on light duties on that date. Her incapacity for the last ten days of the 1999-2000 financial year must be seen as due to the knee injury.

46. For 2000-2001 the plaintiff claims a net loss of some $4,700.00, being the difference between what she was able to earn in fact and what she would have earned but for the accident. This must be reduced to reflect the impact of the right knee injury on her lost earnings for that year. For the year I allow $2,500.00.

47. For 2001-2002, the plaintiff claims some $9,000.00. Taking account of the fact that the surgery to her right knee was carried out by Dr Gillespie in October 2001, and that she was off work following that surgery for some time, I allow half the claim for that year also, that is $4,500.00.

48. For 2003-2004, the plaintiff claims a differential of some $7,400.00. Again I make an adjustment for the effect of the right knee injury and surgery for that year. I allow $6,000.00.

49. For 2003-2004, the plaintiff claims a differential of just on $7,700.00. It seems to me that by that year, her entire loss should be seen as a consequence of the motor accident, and I allow $7,700.00.

50. For 2004-2005, on the same basis, I allow the total net loss of $8,600.00.

51. For 2005-2006 I allow the net difference in earnings at $13,500.00.

52. For 2006-2007, although the figures were not complete at the time of the hearing, it seems reasonable to allow the same amount as the previous year, $13,500.00.

53. The total of those figures up to 30 June 2007 is a little over $60,000.00. To allow for the period since 1 July 2007, I make that total up to $61,000.00 as the total allowance for past economic loss. I allow $16,000.00 by way of interest on that loss.

54. For future economic loss, counsel for the defendant submits that I should take the view that the plaintiff will find full time work within her capacity at about the same rate of pay as a full time nursing job. The only evidence of the availability of any such work is in the form of two advertisements, one for a receptionist at a podiatric clinic at Woden and the other for "front desk team members" at the National Capital Private Hospital. The plaintiff was cross-examined about the positions at the hospital. She was familiar with what was required of the front desk staff and explained that she would be unable to cope with a number of their responsibilities and with the high pressure of the work.

55. It is common knowledge that positions of this kind today require some computer skills. The plaintiff's skills in that area are negligible. She has made it clear that she wants to work as a nurse in the area for which she has been trained and in which she has built up her years of experience. I am not satisfied that I should treat the plaintiff as notionally failing to mitigate her loss in the future by not taking up full time employment in some other position at equivalent remuneration to a nurse. The evidence in any event does not enable me to find that the plaintiff would be likely to be offered such positions which meet those criteria as may be available.

56. The figures I have allowed for the past two years for loss of earnings are equivalent to an average of $260.00 net per week. That seems to me a reasonable measure of the plaintiff's impaired capacity, now and in the future. According to Table 4A in the Appendix to Luntz, Assessment of Damages for Personal Injury and Death (4^th Edition) the present value of a regular loss of $1.00 per week to a female aged 45 (the plaintiff will turn 45 in about a month), utilising an interest rate of 3% per annum and factoring in mortality statistics, is $623.00 to age 60, $770.00 to age 65 and $1161.50 to death.

57. Depending on whether one assumes that the plaintiff will work to age 60 or to age 65, this suggests a range, after deducting the conventional 15% for vicissitudes, of about $138,000.00 to $170,000.00. It seems to me reasonable to allow $160,000.00 for loss of earning capacity for the future.

58. There is a claim for loss of superannuation benefits, and both counsel accept that it is appropriate to apply the present statutory employer contribution of 9% to the figure for past and future economic loss. For past superannuation I allow $5,500.00 and for the future $14,500.00.

59. There is no specific claim for the value of services provided gratuitously by family members; I have allowed for the plaintiff's need for help with some tasks in the figure for general damages.

60. The individual components of the award of damages are:

General damages $90,000.00

Interest on past component $6,000.00

Treatment expenses

- past $17,000.00

- future $36,500.00

Loss of earning capacity

- past $61,000.00

- interest $16,000.00

- future $160,000.00

Loss of superannuation benefits

- past $5,500.00

- future $14,500.00

$406,500.00

61. That total seems to me to represent an appropriate reflection of the effects of the motor vehicle accident upon the plaintiff. There will be judgment for the plaintiff for $406,500.00. I shall hear the parties as to costs.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 3 August 2007

Counsel for the plaintiff: Mr BA Meagher SC and Mr DP Shillington

Solicitors for the plaintiff: Butler & Co

Counsel for the defendant: Mr IM Newbrun

Solicitors for the defendant: Sparke Helmore

Date of hearing: 2, 3, 4 April 2007

Date of judgment: 3 August 2007