MVA – Assessment of Damages – Yoga teacher

Bezant v Davis & Anor [2010] QSC 229

Catchwords

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where plaintiff suffered a fractured pelvis and a minor head injury in a motor vehicle accident – where liability admitted

McMeekin J

Liability was admitted and quantum was in issue for a female plaintiff aged 54 years at trial and 50 years on the day of the injury.

Fractured pelvis/hip, adjustment disorder, laceration/scarring to the scalp  and minor head injury (concussion) Item 127ISV 25 20% uplift  – allowing an ISV of 30$45,000 Yoga instructor $10,400 over a 5 year period $65,000As a rough guide – $50 pw over 16 years as a yoga teacher, and $35,000 as a global sum reflecting the general impact on her prospects of obtaining and maintaining clerical or the like positions ($300 x 11 years (444) x 25%). Met the threshold  -Past

$30,980

Future

34 years, and discounting as required on the 5% tables, results in an assessment of $86,590.00.

General Damages

[10] As Ms Bezant suffered multiple injuries I am required by the CLA to determine the dominant injury as it is defined, having regard to the injury scale values (“ISVs”) applicable to that injury, determine where in the range of ISVs provided for that injury it should fall, and then determine whether the maximum ISV in that range (“the maximum dominant ISV”) adequately reflects the adverse impact of all the injuries. If the maximum dominant ISV is not sufficient then the ISV may be higher but not more than 100 and only rarely more than 25% above the maximum dominant ISV selected.[5]

[11] The parties are agreed that the dominant injury consists of the fracture to the pelvis. They disagree on whether the injury falls within item 126 of schedule 4 of the Regulation (“serious pelvis or hip injury”) or item 127 (“moderate pelvis or hip injury”).

[12] Counsel are agreed as to the categorisation of the remaining injuries. The adjustment disorder falls within item 12 of schedule 4 (“moderate mental disorder”) with an ISV of between two to ten. Given the PIRS rating of 6% I would assess the ISV at the mid range of 6. The laceration to the scalp falls within item 155 (“scarring to parts of the body other than the face”) with an ISV of 0 to 25. Mr Morton who appeared for the plaintiff contended for an ISV at or near the middle of the range suggesting that the injury fell within the fourth point of the commentary of the table. Here, however, the scarring resulting from the laceration is of no embarrassment to Ms Bezant as it is covered by her hair line and is invisible, and the only complication that she has suffered is that small glass pieces have been expelled from the scarred area from time to time. It seems to me the ISV should fall towards the bottom end of the range and I assess an ISV of 2. Finally it is clear that Ms Bezant had a minor head injury. It would appear that she was knocked unconscious at some point. It is not clear that there are any ongoing symptoms from the head injury not covered by the allowances for the adjustment disorder or laceration to the scalp. I think the appropriate item is item 9 with an ISV range of 0 to 5 and an assessment of 2.

Contention

[19] Two orthopaedic medico legal reports were tendered, one by Dr Morgan and the other by Dr Pincus. Their examinations occurred in February and April of 2008 respectively. The only significant difference between their findings was that Dr Morgan thought that the left hemi pelvis was 2.5cm higher than the right hemi pelvis. Dr Pincus recorded that “[i]t was not my impression from the x-rays I reviewed that there was indeed more than one inch of displacement of the ischium”[6] and after reviewing the X-rays Dr Pincus confirmed his view that he was “unable to find evidence of more than 2.5cm displacement of the left ischium.”[7] He measured the displacement at somewhere between 18mm and 21mm. The significance of this debate is that the AMA guidelines that the doctors are required to use to assess an impairment rating allow for an increase in ten per cent of the rating if the displacement exceeds one inch. As a consequence Dr Morgan assesses the impairment rating at 23% and Dr Pincus at 15%. Neither doctor suggested that it made any real difference to Ms Bezant’s condition if the displacement was as Dr Morgan thought or as Dr Pincus thought.

[20] There was no cross examination of the medical witnesses. There is no feature of the evidence that I can see, established on the balance of probabilities, which would support the assessment by Dr Morgan. In the circumstances, the onus being on the plaintiff to establish her injuries and loss, she has not established, on the balance of probabilities, the greater displacement and hence higher level of impairment that Dr Morgan suggested. The AMA guides therefore require an assessment more in line with that provided by Dr Pincus of 15%.

[21] In my view the injury suffered does not satisfy the requirements of item 126 but rather item 127, but clearly would fall at the top end of that range. I thus assess an ISV of 25.

[22] Given that the ISV assessments that I make for the pelvic injury fall at the very top of the ISV range available and given that the other injuries complained of are quite different in character from the pelvic injury it is appropriate that there be some uplift to reflect those multiple injuries.

[23] I bear in mind that Ms Bezant is of middle age, that there has been a significant disruption to Ms Bezant’s life caused by these injuries, but that pain is not a significant feature of her presentation. I propose increasing the maximum dominant ISV by 20% and hence arrive at an ISV assessment of 30. Pursuant to schedule 6A of the Regulations I assess damages at $45,000.00.

Past Loss of Income

The plaintiff had a very modest income as a yoga instructor.

[24] Prior to the subject accident Ms Bezant was a teacher of yoga (the “Turiya” method). Her earnings were modest. She had qualified in 2001 and had pursued her yoga teaching as her principal source of income since that time. Mr Morton carried out an analysis of the tax returns that were supplied. Her average net weekly earnings were:

Year Ended Average Net Weekly
30.06.2002 $44.52
30.06.2003 $49.13
30.06.2004 $45.46
30.06.2005 $36.12
30.06.2006 $56.62

 

Assessment

32] The defendants’ submission was that the pre-accident earnings provided the surest guide to the potential loss, had the accident not intervened. This had roughly been on average around $50 per week and that should be applied over the period since the accident.

[33] The plaintiff’s submissions were that there was a significant increase between 2005 and 2006, that I ought to accept Ms Bezant’s future was a reasonably good one, and award her damages based on an ever increasing income from that source up to about $40,000 per annum.[9] Ms Bezant pointed out that some of the senior teachers in Maryborough were due to retire in the not too distant future, one being aged 76 and the other in her early 70s.

[34] The difficulty with the plaintiff’s submissions is that there is really no evidence to support the claimed potential increase in the numbers of students likely to attend Ms Bezant’s classes, assuming that the accident had not occurred. As she mentioned in her evidence, new teachers come onto the scene. Thus the retirement of older teachers would not necessarily have any significant impact. As well, the senior teachers were not taking a large number of classes. As her own history demonstrates the earnings can vary widely. Her annual earnings in 2006 were only a few hundred dollars greater than her earnings in 2003. In the meantime there had been a significant dip in her earnings. In my view there is no good reason to assume that the earnings were any more likely to increase as decrease, as they had done in the past. There is certainly no basis for an assumption that her student numbers were likely to double, as the submission required.

[35] Ms Bezant’s attitude seemed to be that she would have persisted with the yoga teaching at least until now, although she would have considered earnings of the type that she had enjoyed pre-accident as unsatisfactory. That being so it seems to me that the defendants’ submissions more accurately reflect the probabilities. I assess damages at $10,400.00.

 

Future Economic Loss

[37] There is no good reason to think that Ms Bezant was likely to achieve an income of $300 per week. Indeed there is no evidence that any yoga teacher in Maryborough has ever achieved an income at that level.

[38] It was submitted that Ms Bezant would have turned to other methods of earning income had she not been able to improve her yoga earnings. There are two observations that I would make. First, it is far from clear that Ms Bezant was strongly motivated to pursue employment. It would seem that she was only prompted to return to any form of work – even the relatively minimal level that she achieved – at the urgings of Centrelink officers.[10] To her credit she seems to have embraced that urging and pursued her career in yoga teaching with some energy. Second, there is very little in the way of evidence to indicate that she cannot return to such work as a travel agent. Dr Morgan commented that her “future remunerative prospects have been reduced” pointing out that she had a limited capacity to stand or walk for prolonged periods or carry heavy objects. He went on:

“Even sitting for prolonged periods is likely to give rise to discomfort. She is capable of some physical activities such as those of a clerical nature, telemarketing or call centre operation.”[11]

[39] Dr Pincus commented that the injury “would not prevent her from returning to her prior work doing office duties in a travel agency”.[12]

[40] Assuming that Ms Bezant had not been injured, if the earnings from yoga had not worked out as she had hoped then she nonetheless could have returned to her travel agency work, but maintained yoga teaching in her spare time. She made it plain that she enjoyed the teaching of yoga. Her injuries would prevent her now from doing both. As well her capacity to sit and concentrate for long periods is plainly reduced and she would be significantly less attractive as an employee in a travel agency.

[41] Thus I am satisfied that there has been impairment to Ms Bezant’s earning capacity and one likely to be productive of financial loss, but it is at a fairly modest level. The evidence plainly demonstrates that yoga teachers are able to go on well past what might be considered a normal retirement age. As I have mentioned one of the teachers continues at the age of 76 years.

[42] I assess the loss at $65,000.00.[13]

Damages for Past Gratuitous Services

[46] The defendants concede that gratuitous services were necessary as a result of the subject injury and that the threshold requirements of s 59(1)(c) of the CLA have been met. There was no submission made that any other provision in the section affected the assessment.

[47] The defendants contend that the assessment should be in the order of $13,400.00 adopting a need for assistance at a total of 611 hours since her discharge from hospital. The submission is substantially based on particulars provided of the gratuitous care needed as set out in the letter from the plaintiff’s solicitors which became exhibit 9, and subsequent to that letter on a report of an occupational therapist, one Ms Tschirpig.

[48] The plaintiff’s submission was that the assessment should be based on an assumption of the provision of care of a total of 2,582.5 hours over that same period and an assessment made of over $64,500. The submission is dependant upon the acceptance of the assessment of the time spent caring for the plaintiff made by the plaintiff and her principal carer, Mr Bradbury. Their evidence was to the effect that for the period that Ms Bezant was bed ridden (“the first period”) she needed about 44 hours per week care. For the period that she was partially weight bearing, up to mid-2007 (“the second period”), she needed about 30 hours per week care. Thereafter the plaintiff’s claims adopt a figure of one hour care per day.

[55] I am conscious that Ms Bezant has an adjustment disorder and no doubt such disorders can cause perceptions of impairment and disability to be greater than they would otherwise be if the disorder was appropriately treated. As well it is commonplace that the care actually provided to injured persons by persons well disposed towards them, as I am sure Mr Bradbury was to Ms Bezant, can well exceed what objective observers would consider reasonable. I note that Ms Tschirpig’s report did not purport to assess Ms Bezant’s full range of care needs and I can readily accept that Mr Bradbury has performed duties relating to the heavier household tasks which were necessarily required by reason of the injuries. It is difficult to see, however, why Ms Bezant cannot prepare a meal for herself, carry out modest shopping and do basic housework. I think that the best guide I have comes from Dr Morgan. His assessment was carried out in February of 2008.

[60] Adopting the agreed rate per hour of $22.00 I allow damages for past care at $30,980.00.

 

Future Gratuitous Assistance

[61] The only significant difference between the past and future assessments is the possible impact of the psychological treatment that is proposed. That may reduce the plaintiff’s anxiety in traffic, and her perception of her difficulties, and hence her reliance on Mr Bradbury. Success is not certain.

[62] I am conscious of Dr Pincus’ comment: “Ms Bezant is likely to be able to carry out her activities of daily living such as household chores as she gets stronger and loses weight. I would not expect any requirements for long term assistance around the house. I also would not expect her longer term to have to continue to use crutches to walk outside.”[21] Nonetheless I consider that he has underestimated the impact of he injury on Ms Bezant. I allow the future assistance at 4 hours per week.

[63] The agreed rate is $25.00 per hour. Allowing that care over the plaintiff’s statistical life expectancy of 34 years, and discounting as required on the 5% tables, results in an assessment of $86,590.00.

 

Future Chiropractic Treatment Costs

[68] Dr Pincus did not specifically address the question of a need for chiropractic treatment but he certainly does not give it any support. He said that he expected that she would not degenerate and would have ongoing symptoms of stiffness. He was in possession of Dr Morgan’s report and hence aware of his opinions concerning future chiropractic treatment and I assume would have mentioned any disagreement.

[69] It is relevant that for many years prior to the subject accident Ms Bezant was in the habit of attending on a chiropractor. The history that Dr Morgan recorded was that Ms Bezant had had previous problems referrable to the lumbar spine. Ms Bezant denied giving that history. She maintained that she went to the chiropractor on a monthly basis for “maintenance” and to enable her to perform her yoga. I note that her attendances on a chiropractor long pre-date her taking up yoga in 2001.[23] However Dr Morgan recorded that the history was “consistent with the multi level spurring noted on her radiographs” and as well he noted that she suffered from a “constitutional spondylitic problem” unrelated to the accident.[24]

[70] Subsequent to the subject accident the second defendant met some payments to a chiropractor, and in submissions concedes that some amount should be allowed for chiropractic services. This conduct acknowledges that to an extent the first defendant’s negligence created a need in the plaintiff for those services and that a reasonable measure of them would be the amount that the defendants concede.

[71] No attempt has been made to differentiate between treatments that might have been attributable to accident caused injury and treatments that may have been attributable to whatever condition prompted the pre-accident treatment. No evidence has been called from the chiropractor as to what treatments were applied. His records have been tendered but they are not helpful. To the extent that the expense involves the disentangling of a pre-existing condition from the present condition then the onus lay on the defendants to call that evidence: Watts v Rake;[25] Purkess v Crittenden;[26] cf. Malec v JC Hutton Pty Ltd;[27] Smith v Topp;[28] Hopkins v WorkCover Queensland.[29]

[72] However, before one reaches that point, to the extent that the plaintiff seeks to establish the prima face right to the amounts expended as an item of damage, the onus lies on the plaintiff.

[78] I do not think that there is any reason to disallow such claims, even though the effect may be no more than a placebo effect, where the plaintiff is in receipt of medical opinion from an apparently reputable source that the treatment ought to be attempted. The difficulty here is that there was no such advice, or at least no evidence of it.

[79] That being so it seems to me that that submission cannot be right in principle. It certainly has the undesirable effect of opening the flood gates to claims by plaintiffs, who otherwise appear perfectly honest, to be paid what they please.

[82] I propose allowing a modest amount for future treatments of the type claimed, whether it is by way of chiropractic care, or through a physiotherapist, or the like, for a limited period to allow time for any psychological treatment to have an effect. I do so on the assumption that the psychiatric condition is of significance in the plaintiff’s perception of her problems and of what relieves her problems.

[83] I allow $3,500.00 for this component.

Summary

 

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

Pain, suffering and loss of amenities of life $45,000.00
Past economic loss $10,400.00
Interest on past economic loss[35] $1,204.97
Future loss of earning capacity $65,000.00
Past gratuitous services $30,980.00
Future gratuitous assistance $86,590.00
Miscellaneous future expenses $10,927.00
Special damages $13,282.49
Interest on special damages[36] $1,039.51
Total Damages $264,423.97

 

Brisbane Barrister – David Cormack

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