MVA: “ageist assumptions are anathema” – $500k awarded

 Hooper v King [2011] QSC 324

Issue: quantum only – assessment of damages by reference to the impact of a pre-existing degenerative condition, having been out of the workforce for a number years and a post incident driving phobia.

The female plaintiff hairdresser was 54 (08/08/2006) at the time of the accident and 59 by trial. The Plaintiff had commenced employment in 1971 and ceased in 1993 to care for her children.  She had sought work shortly before the accident and had been offered part-time work which she was not in a position to take up because of the accident. There was substantial contention as to whether she would have been able to perform the arduous work in her advanced years because of her degenerative back. Ultimately damages of $501,000.14 were awarded.

 

McMeekin J

General Damages

[12] The parties are agreed that a maximum dominant ISV of ten is appropriate. I am not sure that they agreed on the injury that merited the attribution. The plaintiff referred me to Schedule 4 of the Regulations, items 21 (moderate mental disorder with an ISV range of 2 to 10), 22 (minor facial scaring with an ISV range of 0 to 5) and 93 (moderate thoracic or lumbar spine injury – soft tissue injury with an ISV range of 5 to 10).

[13] Two orthopaedic surgeons were called, Doctors Nave and FitzPatrick. The doctors conferred prior to trial and provided a joint report in which they agreed on a 5% impairment as being the appropriate level of impairment using the preferred AMA guidelines. Dr Flanagan, a consultant psychiatrist, has provided a psychiatric assessment. Using the PIRS assessment system he assessed a 5% impairment attributable to the psychiatric injuries. His opinion was not contested and hence I record my acceptance of the PIRS assessment as the legislation requires.[3] He concluded that altering medication or the provision of further psychological treatment would be unlikely to benefit the plaintiff.

[14] The difference between the parties has centred on the percentage uplift that ought to be applied. The defendant concedes that a 25% uplift is appropriate and the plaintiff seeks a 75% uplift.

[15] I have set out my understanding of the methodology that is required to be adopted under the CLA to assess damages where multiple injuries have been suffered in Allwood v Wilson & Another [2011] QSC 180.

[16] It can be debated as to whether it is the psychiatric or the orthopaedic injury that merits the maximum dominant ISV and a strong case can be made for either injury. There is a similar level of impairment assessed for each. Arguably the impairment rating has little to do with the consequent disability as each has had a very significant impact on the plaintiff. The impairment ratings are not the only relevant consideration in the assessment.[4] It needs steadily to be borne in mind that the ISV is intended to reflect “the level of adverse impact of the injury on the injured person”.[5]

[17] I am mindful too that the evidence is plain that there was pre-existing degeneration and in those circumstances “the court may have regard only to the extent to which the pre-existing condition has been made worse by the injury.”[6] The plaintiff was formerly an active asymptomatic woman enjoying her life and is reduced to a person in permanent pain needing a walker to ambulate. There is no evidence that she would have eventually ended up in her present pitiable state.

[18] Given the high levels of pain that the plaintiff reports and the consequent inability to ambulate with any degree of comfort I attribute an ISV of 10 to the lumbar injury. The driving phobia has made life very difficult for the plaintiff as it restricts her capacity to live independently. It has proved resistant to treatment. In my view a similar ISV applies to the psychiatric injury. The injuries to the lower back and face are of course separate and distinct injuries but it seems probable that the PTSD has impacted on the plaintiff’s perception and ability to cope with her pain and in that sense there is an overlap with the psychiatric condition. I would assess an ISV of 2 for the minor facial scaring.

[19] In my view it is plain that an uplift is justified, as the defendants concede. Section 4(3)(b) of schedule 3 of the Regulations provides that the ISV for multiple injuries “should rarely be more than 25% higher than the maximum dominant ISV”. In my view, given that the symptoms of the driving phobia are quite separate and distinct from the symptoms of the lumbar spine injury and given that the injury scale values for the psychiatric and lumbar spine injuries are closely comparable there should be a 50% increase in the ISV assessment. I therefore assess an ISV of 15 and award damages of $18,000.[7]

Past Economic Loss

[28] I turn then to the principal issue between the parties.

[29] The orthopaedic surgeons were agreed that there was extensive pre-existing degeneration in the lumbar spine. The plaintiff said that in the years leading up to the accident she was asymptomatic. She was supported in that claim by the observations of her friends and family. There is no medical record of her complaining of symptoms in the lumbar spine for several years prior to the accident. There is a debate about the significance of entries made in the general practitioner’s notes in the period from 1999 to 2002. I will turn to that issue in a moment. But it seems clear that there is no evidence of any difficulties with the lumbar spine for at least four years prior to the subject accident. The defendants’ contention was that had the plaintiff attempted to return to the reasonably arduous work of a hairdresser, requiring as it does the adoption of postures that might place some strain on her back, that there ought to be a finding that she was highly unlikely to maintain employment for any significant period.

[30] The principles that guide me in my approach to such an argument were explained in Smith v Topp [2003] QCA 397 [38] and Hopkins v Workcover Qld [2004] QCA 155. Those cases in turn discuss the principles established in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, Purkess v Crittenden (1965) 144 CLR 164 at 168 and Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 642-643.

[31] Those cases stand for the proposition that there is an evidential burden on the defendant to show “with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to the nature and future development and progress, were likely to be”.[9] Where proof is necessarily unobtainable to achieve that level of precision then Malec requires that I assess the degree of probability that an event might occur and adjust damages to reflect that degree of probability.

[32] As I have mentioned, the defendants emphasised the history of problems of back pain recorded several years before the subject accident. As well there are references in those records to numbness in the right leg. The clearest entry is that of November 19 2001 when Dr Dolan, the plaintiff’s usual general practitioner, recorded “back pain lower back – difficulty bending down and getting up”. A TENS machine was apparently prescribed. Thereafter there are several entries referring to pain in the right renal area. Indeed the very next entry, which however is some months later (April 12th 2002), speaks of “pain in the R renal area again”. There was a symptom recorded of the plaintiff losing power in her legs at that time. The plaintiff associated the pain with a kidney problem that she had previously had diagnosed and in respect of which she had had surgery in 1999. The precise cause of the pain was never established. It may have been back pain consequent upon an aggravation of the underlying degenerative condition, as the defendants contend, but the evidence, it seemed to me, established the possibility not the probability of that. Whatever be the explanation of the pain, the significant point is that the complaint disappears from the medical record after 2002 and several witnesses spoke of being unaware of any complaint of back pain by the plaintiff, or restriction from any apparent back problem, in the years leading up to the subject accident.

[33] With that background, I turn then to the opinions of the orthopaedic surgeons.

[34] In her initial report, Dr FitzPatrick had concluded that the extensive pre-existing degenerative change “would make it difficult for [Ms Hooper] to stand for a prolonged period of time”.[10] Dr Fitzpatrick thought that the motor vehicle accident had not significantly altered this. In her later report Dr Fitzpatrick said that the degenerative change “would make it difficult to undertake work that would involve repetitive bending or heavy lifting or even perhaps standing for prolonged periods of time”[11]. Again she expressed the view that the motor vehicle accident had not significantly altered this condition.

[35] Dr Nave did not address the hypothetical question of Ms Hooper’s capacity to engage in hairdressing work had the accident not occurred in his initial report. In the joint report prepared by the two surgeons they concluded: “upon discussion, Dr Nave and Dr FitzPatrick agreed that the pre-existing degenerative change could easily have impacted adversely on her ability to work as a hairdresser but the injury itself did not have a significant effect on sedentary employment”[12].

[36] In the course of her evidence, Dr FitzPatrick maintained her view that by reason of the extent of the degeneration present and given the physical demands placed on the hairdresser, and given Ms Hooper’s age, that whilst “she may have coped” Dr FitzPatrick thought that it would have been “difficult for her”[13]. Dr FitzPatick conceded that flexibility in her hours and in the spacing of clients would assist.[14] She accepted too that if the plaintiff was engaged more in a teaching role then that would “increase her likelihood of being able to return to the workforce”[15]

[37] Dr Nave’s evidence was to much the same effect in my view. He accepted that with the radiological demonstration of degeneration that it would be “quite likely” that the plaintiff would find it “very difficult” to stand for 8 to 10 hours a day at hairdressing.[16] He accepted that the degeneration “could have been a problem” and it may have been that she could only manage part time.[17] He perhaps was more tentative in his views, accepting that Ms Hooper “may have had some difficulty of getting back to work in the absence of the accident” and “it’s certainly possible it could have been” a difficulty.[18] As I understood Dr Nave’s view, he was not greatly influenced by the history set out in the general practitioner’s notes.

[38] In summary, there was a real prospect that the plaintiff’s pre-existing degeneration would have prevented her from working full time as a hairdresser. She may have been able to work part time depending upon the level of symptoms experienced but that cannot be known. A teaching role would probably have been within her abilities irrespective of the onset of symptoms. She was well motivated and asymptomatic immediately prior to the accident. All the evidence suggests that the plaintiff was “not one for sitting around idle” as one witness put it.[19]

[39] A significant matter that should not be overlooked is that the plaintiff had two strings to her bow. She could work both as a senior hairdresser and alternatively as a teacher in a hairdressing salon. Whilst the degenerative condition may have come against her as a hairdresser, and probably would have, it was of much less significance should she have pursued a career as a teacher. Because of this I think it appropriate that I moderate the discounting that ought to apply to her claims.

[40] Given her asymptomatic condition immediately prior to the accident and given the job offer that she had it seems likely that the plaintiff would have commenced part time employment at around the time of the accident and sought to work her way into fulltime employment as the years passed. Given the illness of her husband that commenced to be symptomatic in 2008 it is probable that the plaintiff would have had an economic imperative to maintain fulltime employment.

[41] I do not overlook the difficulties that Mrs Vivash has spoken of in coming back to hairdressing after several years of absence. But given the plaintiff’s excellent credentials and long experience it can be confidently predicted that she would have mastered any changes fairly readily. Plainly Mrs Vivash did so successfully. Ms Turner’s evidence establishes that there was a substantial demand for senior hairdressers in Gladstone, where the plaintiff lived, at the time of the subject accident and since.

[42] The evidence of Ms Turner was that a senior hairdresser could earn $1050.00 per week gross.

[43] I assess the past economic loss at $115,000.[20] I have assumed initial employment at two days per week for about 6 months, then three days per week for about 18 months and then full time work from early 2009. I have assumed four months out of the workforce whilst the plaintiff cared for her husband whilst he was seriously ill, as she in fact did and as I gather would have been her wish whether working or not. I have discounted the figure arrived at by about 35% to allow for contingencies and the expenses involved in maintaining employment.[21] The significant contingency is the possible onset of significant back pain. (emphasis added – see also Brooks v Zammit & Anor [2011] QSC 181 at [37] & [42] where an additional discount of 10% was allowed).

[44] A secondary issue that the defendants agitated related to the plaintiffs thyroid problems. She has been diagnosed as having “Reidels Thyroiditis”. The plaintiff was commenced on prednisone in April 2003 and has been under the care of a specialist ever since. The plaintiff’s symptoms have flared from time to time. The defendants have summarised the entries in the medical records relating to her thyroid problems in a document that I received after submissions were made, which I have marked Exhibit 11. There is no evidence that the symptoms that the plaintiff experiences would have impacted on any employment. Nonetheless the plaintiff appears to suffer from pain and occasionally nausea and I have endeavoured to bring that into account in setting the appropriate discounts.

Future Economic Loss

[45] The considerations relevant to the future claim are much the same as for the past. A greater discount is justified because of the greater chance that, with time and increasing age, the degenerative condition could become significantly symptomatic.

[46] The defendants’ submission was that I should allow only $25,000 for both the past and future components of economic loss. I reject the defendants’ approach. While there was certainly a reasonable chance that the plaintiff would suffer symptoms of back pain once she took up hairdressing, that prospect was not certain, and if it occurred would not have necessarily precluded her from employment.

[47] The plaintiff’s submission was that I should allow a loss of $700 per week for 6 years and discount that by 20% to allow for contingencies and then allow a further sum of $350 per week for a further 5 years, again discounted by 20%. This would take the plaintiff through to age 70. No evidence was led of any person working as a hairdresser through to age 70. Ms Turner had only one employee in her forties and none in their fifties working in her salon. She agreed that generally speaking the predominant weighting was towards younger people being employed in the hairdressing profession.

[48] It is relevant that the plaintiff has no savings to fall back on and more than likely would have continued to work for as long as she was physically able. Nonetheless hairdressing is a physically arduous profession and she was particularly vulnerable to the development of symptoms. It seems to me likely that she would eventually have reduced her hours to a part time level and more probable than not that she would have restricted herself to teaching.

[49] I allow $130,000 for future economic loss. In arriving at that figure I’ve adopted a net weekly wage of $859, which reflects my calculation of the net after tax income adopting a gross weekly wage of $1050, applied that over 6 years (multiplier 271) and discounted by 45%. It is possible that the plaintiff may have worked for a longer period[22] – she probably would have had some economic imperative to do so – but that is balanced by the fact that she may not have been as fit as I have assumed for as long as I have assumed.

Past domestic service

[53] I should say at the outset that the various witnesses who were called to support this aspect of the claim were patently honest. That they had rendered assistance to the plaintiff from time to time cannot be doubted. However it is true, as the defendants contend, that the estimate of the time spent in assisting the plaintiff needs to be scrutinized carefully. No contemporaneous record was kept and witnesses were asked to recall events long after they had taken place. As the Court of Appeal observed in Shaw v Menzies & Anor[25] a plaintiff who neglects to keep a weekly diary recording tasks and times taken by friends and family members, a practise which is often urged by solicitors acting for such plaintiffs, can run into difficulties, no matter how deserving.[26]

[54] That there are difficulties here is manifest from the plaintiff’s own evidence. When challenged that one of her estimates in the schedule was a “guess” the plaintiff responded: “It is a guess. I can’t say whether it’s more or less. I really can’t remember coz there was so much turmoil – in everything – since that accident that I can’t recollect dates, hours, to an exact time I’m afraid.”[27] And, unlike the situation in Shaw, no evidence was lead from an occupational therapist. I will attempt then the necessary scrutiny.

[70] I note that combined with the assistance that I consider the plaintiff needed for domestic tasks the plaintiff has satisfied the threshold laid down in Section 59(1)(c), namely that the services be provided for at least 6 hours per week and for at least 6 months. That being made out it is irrelevant that the care needed might drop below that level at other times.[36]

[77] In summary I will allow:

(a) Four hours of domestic assistance for four weeks;

(b) Two hours of domestic assistance for a further four weeks;

(c) Thereafter one hour of domestic assistance for 265 weeks through to the present;

(d) One hour of assistance with gardening and yard maintenance from January 2008 to the present – taken as 199 weeks;

(e) Five hours of assistance per week with driving and grocery shopping in the period from August 2006 to October 2007 -59 weeks;

(f) Two hours of assistance with driving and grocery shopping for the period from October 2007 to the present – 156 weeks.

[78] There is a debate as to the hourly rate that should be allowed. The plaintiff contends for a rate of $27.50 per hour for the past and $40.00 per hour for the future. The defendants contend for a rate of $18.00 per hour.

[79] The defendants base their submission on the actual rate charged to the plaintiff by cleaners who worked for her in Benaraby between October 2006 and July 2007. The difficulty with the defendants’ submission is that the person who was providing the cleaning services ceased to provide them because of her own difficulties and the plaintiff was unable to find anyone to replace her. The fact that one person was prepared to provide cleaning services at that rate does not establish a market rate. It is some indication but hardly conclusive, particularly given the fact that the plaintiff could not replace her. As well, the plaintiff no longer lives in Benaraby and has not done so since October 2007 and so, even if the cleaning rates actually charged did form a proper basis for an assessment of market rates, this evidence would not justify applying them past that date.

[80] The plaintiff has provided evidence from a property manager with PRD Nationwide Realty as to the rates they are charged for cleaning, house and yard maintenance and lawns. The plaintiff’s submissions are based on those rates.[37] That seems to me to be the best evidence that I have as to market rates which, as the authorities show, is what should guide me in making the appropriate assessment.

[81] The PRD Nationwide figures to not deal with driving. Ozcare Gladstone Community Carers[38] advised that the normal hourly rate for travel time is $55 per hour. The adoption of $27.50 per hour would seem to be appropriately conservative.

[82] Adopting the hours that I have previously set out, I allow $30,000 for past gratuitous assistance.

Future Gratuitous assistance

[83] According to the orthopaedic and psychiatric evidence the plaintiff’s present condition is more or less stable. Various psychiatric medications and treatments could be attempted but Dr Flanagan thought that they would be unlikely to succeed. There is no reason to think that the plaintiff’s physical capacity is likely to change significantly.

[84] For reasons already explained I will allow four hours per week assistance – one hour for domestic assistance, one hour for gardening and yard maintenance and two hours for driving and grocery shopping.

[85] The plaintiff has a life expectancy of nearly 30 years. There needs to be discounting for the prospect that the plaintiff may have had symptoms from her degenerative back condition irrespective of the accident that would have necessitated some assistance in any case. She may have become disabled through age and as well her thyroid problems may come against her or cause her to need assistance from time to time. There is the further prospect that, as she ages, the plaintiff may not wish to live on a 40 acre block, nor live in a community remote from the larger provincial towns. Her need for driving assistance would then be reduced. In my judgement there is a significant chance that these matters could have come to pass.

[86] Doing the best I can I allow $85,000.[39]

Summary

[95] In summary I assess the damages as follows:

Pain Suffering and Loss of Amenities of Life $18,000.00
Past Economic Loss $115,000.00
Interest on Past Economic Loss[40] $10,523.95
Past loss of Superannuation Benefits $10,350.00
Future Loss of Earning Capacity $130,000.00
Future Loss of Superannuation benefits $11,700.00
Past Paid Care[41] $786.00
Interest on Past Paid Care[42] $106.11
Past Gratuitous Assistance $30,000.00
Interest on Past Gratuitous Assistance[43] $6,300.00
Future Gratuitous Assistance $85,000.00
Future Treatment Costs $70,000.00
Special damages $12,000.00
Interest on special damages[44] $1,234.08
Total Damages $501,000.14

 

Brisbane Barrister – David Cormack

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