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Supreme Court of the ACT |
Last Updated: 24 October 2008
CHRISTEL BONNIE MOLYNEUX v SAMANTHA ANN
GUY
[2007] ACTSC 99 (17 December 2007)
DAMAGES – personal injury – motor vehicle accident – compound fracture to tibia and fibula of right leg – injury to neck, upper back, right shoulder scapula region – post-traumatic stress disorder – depression – no issue of principle
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Griffiths v Kerkemeyer
[1977] HCA 45; (1977) 139 CLR 161
Grincelis v House (1998) 156 ALR 443
No. SC 296 of 2005
Judge: Higgins CJ
Supreme Court of the ACT
Date: 17 December 2007
IN THE SUPREME COURT OF THE )
) No. SC 296 of
2005
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: CHRISTEL BONNIE MOLYNEUX
Plaintiff
AND: SAMANTHA ANN GUY
Defendant
ORDER
Judge: Higgins CJ
Date: 17 December 2007
Place: Canberra
THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $486,769.39.
1. In this matter the plaintiff claims damages for injuries sustained by her in
a motor vehicle accident which occurred on 27 September
2004. Liability is
admitted, though damages are in dispute.
2. The plaintiff was a motorcycle
rider. The defendant was a motor vehicle driver who made an unsafe right hand
turn. In the accident
the plaintiff suffered:
3. As a result, the plaintiff contended, she suffered a range of ongoing disabilities:
Particulars of Disabilities
4. The plaintiff gave the following evidence.
5. She was born on 27 March
1975 at Canberra. She attended St Clare’s College to year 10. She did
part of year 11 at Phillip
College. At school she played netball, volleyball
and tennis. She participated in athletics and swimming. She suffered an injury
from burning oil in 1993 but attended a secretarial course at TAFE. She worked
for her father in a secretarial capacity and for
a Mr Dyson for about 12
months.
6. In 1994 she met Michael Billingham. They became de facto
partners. Her first child, Jacob, was born 14 May 1996. Her second son,
Nicholas,
17 January 1999. She worked at the Hanging Rock Motel on the South
Coast for three months as a housemaid.
7. She returned to Canberra in 2001
and in 2002 commenced work as a cleaner at the Deakin offices of a Mr Reno
Sinsoc for six hours
weekly.
8. During January or February 2003, she did a
venepuncture course and commenced worked at Jindalee Nursing Home, Narrabundah
in March
2003. She was attracted to nursing work, believing she was suited to
it and would enjoy caring for the elderly.
9. Her work at Jindalee was
combined with practical training leading to qualification as an Enrolled
Nurse.
10. However, before that course of training could be completed, she
had a dispute with her manager over the restraint of a patient.
She took
offence at what she considered an unjustified accusation and quit. She felt she
could get similar employment elsewhere.
However, it was more difficult than she
had anticipated. She had young children and initial offers of appointment
entailed a start
early in the morning, that is 7.00 am starts. That was
unrealistic. Certainly, after some time in the job, she had prospects of
more
flexible hours as had occurred at Jindalee but it was a clear “chicken and
egg” situation. There was, towards the
end of the year a tragic death in
the family. She was treated for depression.
11. On 17 January 2004 she
suffered a fall and injured her heels. She was virtually immobilised for about
six weeks and was for some
time thereafter on crutches. At about this time she
and her partner separated. She applied for further nursing home positions.
She
obtained a positive response from two of them but the early starts offered were
not acceptable.
12. She was in the process of making a further application in
September 2004 when the accident the subject of these proceedings
happened.
13. There is no dispute about the liability of the defendant for
the collision nor is there any room for any accusation that the plaintiff
was
guilty of contributory negligence. The defendant turned into the
plaintiff’s motorcycle smashing into her right leg and
hurling her to the
roadway.
14. She felt severe pain and panic being on the roadway and unable
to get herself off it. She was, after about 30 minutes, attended
to by
ambulance officers and taken to hospital at Woden.
15. On her mother’s
advice, she kept a diary recording her experiences then and the following day.
She was subjected to an
operation on 28 September 2004.
16. The injury
required further treatment including plaster cast over the next eight months.
It continued up until March 2005. Considerable
scarring remains.
17. The
plaintiff’s pain and discomfort was not confined to her leg. She had
severe pain, as at October 2004, in her right
shoulder blade, shooting pain down
her arm to the thumb. She was referred to physiotherapy. It gave occasional
relief.
18. The plaintiff was granted a disability pension in November
2004.
19. She has also been plagued by nightmares since the accident. Zoloft
was prescribed for her but she took herself off it about April
2007. She felt
improved.
20. Painkilling drugs, Panadeine Forte and Norspan, were prescribed
but since April 2007 she has not used Norspan. She still takes
Panadeine Forte,
particularly on occasions when she had engaged in three hours of doing a
“little gardening”.
21. The bone graft to assist her leg
fractures became a further source of pain in her hip. That operation occurred
on 3 February
2005. It left another scar. During the period shortly after she
got out of hospital she lost her rental accommodation and was housed,
with her
children, in a refuge.
22. In May 2005 her lower right leg was reported as
wasted, with pain in the knee and ankle aggravated by walking. Her gait was
badly
affected. It has improved but she is left with a limp. She was, after
April 2005, housed in a unit at Reid. Her depression had
deepened to the point
where she contemplated suicide and attempted an overdose of heroin. I should
add that that was a one-off purchase
for the express purpose of suicide. She is
not, and never was, an illicit drug user. She was then admitted to a
psychiatric unit,
not being discharged till 8 December 2005.
23. By 19
December 2005 her physical rehabilitation had resulted in a considerable
physical improvement, though considerable disability
continued and has done so
since.
24. The children were returned to her about Christmas 2005. A court
order was subsequently made. She engaged in further rehabilitative
treatment
with Dr Speldewinde. By the end of November 2006 she was able to continue
with a home exercise program.
25. In December 2006 she applied for a job at a
Kippax Nursing Home. She was rejected because of her history of injury. She
was
perceived as being at risk of further injury. Subsequent applications at
other nursing homes were similarly unsuccessful.
26. On 26 June 2007, the
plaintiff had a further motor vehicle accident. She suffered a whiplash injury.
She experienced pain from
that for about five weeks.
27. Her leg is a
continuous problem. The knee or ankle will give way without warning. It
requires strapping which eases the pain
to an extent as well as adding to
stability. Needless to say, sporting activities, martial arts and snow skiing
are no longer possible.
She has limited capacity for swimming. Her disability,
as described, is clearly such as to preclude or limit most physical
activities.
28. She did state that the right shoulder injury, though less
painful, still limits her reaching up for things. Her upper back injury
is the
source of a nagging pain across her shoulder blades. She takes Panadeine Forte
three or four times weekly, two at a time.
29. Her neck had been, “on
and off,” the source of a nagging pain.
30. The scarring referred to
above is not only a source of embarrassment but remains sensitive even to
stockings. The area of her
knee where a nail was inserted remains numbed.
There is some problem underneath it. A tendon seems to catch whilst she is
sleeping,
waking her “with a scream” three or four times a night.
Keeping the leg straight will avoid it.
31. The plaintiff agreed with Mr
Purnell SC that she could do part-time secretarial work. More would cause
problems, she considered,
with “agitation” whilst sitting still.
She could not think of other occupations she could do, save childcare, which
she
nominated.
32. She had, since the accident, received domestic assistance and
financial support from her father, Mr Ronald Molyneux. She had
received
assistance also from her mother, Grace, her former partner, Michael, Deeann
Flewellen and Christine Dixon.
33. Ms Flewellen worked two to three hours on
three days – basic cleaning and washing, some assistance with cooking
meals.
That continued until July 2005.
34. Ms Dixon was a school friend.
She provided the plaintiff with personal care and assistance with such tasks as
showering and dressing.
She also provided some assistance with housework,
cooking and cleaning generally.
35. Mr Billingham had moved out in April 2004
but after the accident he, nevertheless, provided gardening and cooking
assistance until
she moved out of the Deakin house in December
2004.
36. After she and the children moved into their current dwelling Mr
Billingham offered further assistance, particularly with cooking.
37. Mr
Ronzani did elicit from the plaintiff that some, at least, of the assistance
Mr Billingham offered after the accident
had also been given to her by him
before it.
38. Between February and May 2005 she had been at the refuge. She
did not receive such assistance there. She also conceded that,
of the three
days assistance Ms Flewellen provided, one was “for companionship”
rather than necessary work.
39. In July 2005 she fell into a “deep
depression.” The new house came up in December 2005. That was the time
her boys
were returned to her. She agreed that after December 2005 her need for
domestic assistance had ceased.
40. She had also assessed her work capacity
at 20 hours per week.
41. Mr Billingham confirmed the level of the
plaintiff’s pain and disability so far as he could observe it. He stated
that,
after she came out of hospital he did work to assist the plaintiff a
couple of hours per day four or five times per week for about
three to four
months.
42. He resumed assistance to the plaintiff after about four months
but thereafter there was the custody dispute terminating on 19
December 2005.
Then in February 2006 he assisted by having the children on weekends.
43. I
would comment that this would not be a part of the Griffiths v Kerkemeyer claim.
He remains, however, willing to help if need
be. He does home work that she
cannot do. He would spend 10 hours per week moving beds, mowing lawns and the
like. He highlighted,
in general terms, a person who had changed from being
strong and capable to a very fragile person.
44. In cross-examination, he
revealed that his impression was that the plaintiff had left Jindalee to attend
to their son Nicholas
who had a serious eye problem. That is, of course, more
favourable to the plaintiff’s case than her own evidence.
45. The
plaintiff’s father was the next witness. He, again, in general terms
supported the plaintiff’s case. He confirmed
his assistance but it seems
to have been financial rather than by way of domestic assistance.
46. The
plaintiff’s mother, again, confirmed the general contrast between the
plaintiff’s pre-accident presentation and
that subsequent to
it.
47. The plaintiff was recalled, effectively to say that Mr
Billingham’s recollection about Nicholas’ eye condition was
not
correct. That contention was supported by an optometrist’s report. For
what it is worth, I accept the plaintiff’s
evidence on this
point.
48. I do comment, as I alluded to before, that it is less favourable
to the plaintiff’s case that she left Jindalee in the circumstances
that
she deposed to. That is because it suggests that the plaintiff is likely to
“throw in” employment impulsively if
offended, rather than to
perservere.
49. Christine Dixon was the final witness for the plaintiff. She
confirmed the plaintiff’s evidence concerning assistance.
50. It is
difficult to assess the extent to which the past assistance and current need for
assistance is caused by the result of the
accident. There is, as was conceded,
an element of social or emotional support involved in each of the persons
assisting the plaintiff
(see Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, Grincelis
v House (1998) 156 ALR 443). That leads to a need to discount the time actually
spent for that reason so that it may be compared with the provision of necessary
assistance at commercial rates.
51. Ms Dixon, for example, deposed that she
spent two to three hours per day with the plaintiff assisting her for the two
months following
the accident whilst the plaintiff was dependent for mobility on
a wheelchair and then crutches. After the plaintiff came from the
refuge to a
flat she assisted her for about “an hour or so” a day. That has now
reduced to three or four hours per week.
52. She also confirmed other
observations of the contrast between the plaintiff’s pre and post accident
presentations. She
had been improving over the period since the accident.
Consequently her need for assistance had also reduced.
53. The defendant, in
reply, relied only on two medico legal reports.
54. These reports suggested
that the plaintiff had no significant disabilities arising from the accident,
save, of course, scarring,
though Professor Oakeshott did not comment on the
psychological injury. He did concede the plaintiff would have needed domestic
assistance of two to three hours per day during the recovery period when she was
physically disabled. The second report was from
Ms Bronwyn Thompson, a
rehabilitation psychologist. She assessed the plaintiff after a rehabilitation
course. She reported “intermittent
discomfort” in the
plaintiff’s back, fluctuating with anxiety and exercise levels. She
recommended a continuing exercise
program.
55. Dr Lin reports complaints of
neck and right lower leg pain worsening following cessation of the above
physiotherapy and considerable
use of Norspan or Panadeine Forte. His notes
generally reflect, perhaps, greater stress involvement than her account in the
witness
box.
56. The plaintiff was also treated by Dr Fatma Lowden, a
psychiatrist.
57. On 10 April 2006 Dr Geoffrey Speldewinde reported the
plaintiff as suffering “some apprehension and distress at persisting
pain”. The spinal examination indicated a mild to moderate tenderness
which responded well to appropriate exercise. He considered
it necessary to
prescribe Norspan.
58. A physical assessment by Mr Trevor Beswick on 15
January 2007 found:
59. Whilst the masseter muscle trigger point is not apparent as relating to the
accident, the remainder are clearly right leg injury
related.
60. The medical
evidence for the plaintiff may be summarised as follows:
61. Dr Bryan Ashman,
orthopaedic surgeon, reported on 20 March 2007 a good result for the fracture of
the right leg. He noted, however,
the sensation changes deposed to by the
plaintiff. There were, he found, “residual symptoms of a feeling of
instability in
the right leg, hypersensitivity over the tibial scar and numbness
on the dorsum of the foot”.
62. However, the feeling of instability he
considered, agreeing with Professor Oakeshott, was not due to any lack of
healing of the
right leg.
63. Dr Geoffrey Speldewinde, rehabilitation
specialist, reported on 17 April 2007 that the plaintiff suffered distress and
anxiety
by reason of persisting pain. There was no specific deficit of movement
that he noted. The exercise program previously referred
to did, despite her
unreliable attendance, result in considerable physical improvement. There was,
however, “residual aching
with sustained weight bearing
activities”.
64. Dr Endrey-Walder examined the plaintiff for her
solicitors, reporting on April 28, 2007. He found some deficit in movement of
the ankle joint and the changes in sensation previously referred to. There was
some grating on extension of the right knee but it
was stable. He pointed to
the likelihood of consequential psychiatric problems contributing to her
physical difficulties. He did
agree that she would have the ongoing disability
with the right knee she described. He hypothesised that the intramedullary nail
might contribute to this. He disagreed with Professor Oakeshott’s view
that there was no significant abnormality.
65. There were psychiatric reports
from Drs Synnott and Knox. Dr Synnott prepared two reports for the
defendant’s solicitors.
First, on 6 November 2006. Dr Synnott noted the
serious physical symptom which, the plaintiff complained, seriously limited her
ability to cope or to be employed. He found there had been a reactive
psychological effect, including a suicide attempt as a result.
He postulated
Adjustment Disorder and Major Depressive Disorder, both of which had since
settled. In a supplementary report, Dr
Synnott addressed the issue of the
connection of the suicide attempt of late 2005 with the accident. That question
was not directly
answered but Dr Synnott’s comments suggest that
connection.
66. Dr William Knox reported to the plaintiff’s solicitors
on 6 March 2007. He considered that the plaintiff exhibited features
of
Post-Traumatic Stress Disorder. She was taking medication for anxiety and
depression. Dr Knox felt that:
... while Ms Molyneux clearly has had a significant injury to her body I think she does distort the extent of her disability due to psychological factors ...
67. He considered that the accident had caused a chronic Post-Traumatic Stress
Disorder. There was also depression warranting a
diagnosis of Adjustment
Disorder with Depressed Mood. That, in Dr Knox’s opinion, would
significantly interfere with her capacity
to return to work. The significant
injury to her right leg would render it difficult for her to persuade potential
employers she
was fit for heavier demands of the anticipated workload. She
would require ongoing further treatment over 12 months to the value
of about
$4,500.
68. On balance, I am satisfied that the injury to the plaintiff had,
and continues to have, significant effects, both physical and
psychological,
upon her enjoyment of life and working capacity. I consider her assessment of
her working capacity is essentially
accurate. To that extent I discount
Professor Oakeshott’s assessment.
69. Mr Ronzani did not dispute that
general assessment. He did point out that so far as past earning capacity was
concerned the plaintiff
had not been able to exercise it fully, partly for the
reason that her children’s needs conflicted with the available working
hours, partly because the plaintiff was, to some extent, a difficult employee
not because of lack of diligence, but more for the
contrary reason. I consider
that the plaintiff’s chances of full-time employment would, however, have
improved over time,
but for the accident.
70. It is more likely than not that
she will cope with clerical work but will find it less satisfactory than her
chosen career in
nursing.
71. Accordingly, I now turn to the assessment of
damages.
72. For general damages, I award the sum of $110,000.00. Interest
thereon from 27 September 2004 is $6,600 plus $6 per day from
27 September
2007 to 21 December 2007 totalling $7,110.
73. For past economic loss, I
agree with Mr Ronzani to the extent that the loss must be discounted to some
extent because of the plaintiff’s
decision to leave Jindalee when she did.
I would allow as a matter of estimation $40,000 plus $4,000 for superannuation
loss plus
interest at the commercial rate of 9%, a further sum of
$6,395.
74. For future economic loss, I consider the plaintiff, but for the
accident, would now be fully employed as an enrolled nurse. I
accept that if
she was totally disabled her loss would be, as calculated in the
plaintiff’s Amended Statement of Particulars,
$549,900 reducible for
normal vicissitudes to $467,415 plus superannuation loss of 10%. However, I
consider that she will, after
about 12 months, return to work earning
approximately 50% of her past capacity. She would have more difficulty working
full-time
on a continuing basis because of her disabilities. Accordingly, I
award $230,000 plus $23,000 for lost superannuation.
75. For past out of
pocket expenses the parties agree on $18,564.39. None of these sums are claimed
to have been paid by the plaintiff.
Accordingly, no award of interest is
required.
76. For future out of pocket expenses, I act on Dr Knox’s
prognostication and include $9,000 for future psychiatric care and
a buffer of
$10,000 for the chance of future operative treatment. I assess that, absent
firm proposals, as no worse than 50:50 for
the latter. I award $19,000 under
this head of damage.
77. As to domestic assistance it is clear that an
allowance should be made, at commercial rates, for both actual expenditure and
notional
expenditure in respect of such assistance so far as the need for it is
caused by the tortious injury and is not a mere rearrangement
of tasks in the
household (Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161; Van Gervan v Fenton [1992] HCA 54; (1992)
175 CLR 327). Need does not arise merely because the domestic tasks are done
less efficiently or with discomfort. The latter is compensated for
by general
damages.
78. The rate of $25.00 per hour is not disputed. Deeann Flewellen
was paid that rate and the sum of $5,720 is agreed for her assistance.
That
represents 228.80 hours and covers the period up to the plaintiff’s move
to the refuge. The picture is further complicated
by the break-up between the
plaintiff and her partner. Had they continued together, he would have, as he
did and now does, assist
with some domestic tasks. The break-up of their
relationship, rather than the accident, has created some of the need for
domestic
assistance.
79. Nevertheless, after the accident and until she
became mobile, I accept that the plaintiff needed approximately, but not less
than,
2 hours per day in domestic assistance over and above the paid cleaning
work. Up to December 2004 the plaintiff was either in a
wheelchair or on
crutches. But even thereafter, the fractures were not healing nor was the leg
wound. Thus the need for assistance
continued during the period the plaintiff
was running her own household though less than when she was immobile. For the
period February
2005 to May 2005, there is no call for an award. Thereafter,
the plaintiff was in a flat until about December 2005. The need for
assistance
was then much less. Further, the plaintiff’s partner had taken custody of
the children until December 2005 for
about two and a half months due to the
problems the plaintiff was having coping. Again, that reduced the need for
assistance of
the kind now being considered.
80. From December 2005 to
December 2006 the plaintiff required some of the assistance rendered to her
because of her injuries. I
think that commenced at two hours per day decreasing
to December 2006 to one hour per day. As a matter of estimation I would allow
$15,000 for the past domestic assistance apart from that which was afforded by
Ms Flewellen. For interest thereon I award $2,950.
81. Having regard to the
medical reports, I am of the opinion that the plaintiff requires minimal
domestic assistance by reason of
the accident itself but allowance should be
made for a buffer for that purpose.
82. The total award is,
therefore:
Interest thereon $7,110.00
Past loss of earnings including
superannuation $44,000.00
Interest thereon $6,395.00
Future loss of earnings $230,000.00
Superannuation loss $23,000.00
Past out of pockets (as agreed) $18,564.39
Future out of pockets $19,000.00
Griffiths v Kerkemeyer
Interest thereon $2,950.00
Future (Buffer only) $5,000.00
_________
Total: $486,769.39
83. I consider that to be an appropriate award, viewed globally. I enter
judgment accordingly.
84. I will hear the parties as to costs and any errors
or omissions.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 17 December 2007
Counsel for the plaintiff: Mr F J C Purnell SC with Mr J Sainty
Solicitor
for the plaintiff: Blumers Personal Injury Lawyers
Counsel for the
defendant: Mr D Ronzani
Solicitor for the defendant: Abbott Tout
Date of
hearing: 6 & 7 September 2007
Date of judgment: 17 December 2007
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