SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Cressy v Miloriad

Citation: [2016] ACTSC 303

Hearing Dates: 4, 5, 6, 10 October 2016

Decision Date: 12 October 2016

Before: Mossop AsJ

Decision: See [129]

Catchwords: PERSONAL INJURY – Motor vehicle accident – Assessment of damages – Pre-existing degenerative condition of the hip rendered symptomatic by accident – Likelihood of requirement for hip replacement in any event – Loss of chance of promotion – Loss of sick leave – Turns on own facts

Cases Cited: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 Kennedy v Mangos [2001] ACTSC 92 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Texts Cited: Harold Luntz, Assessment of damages for personal injury and death (LexisNexis Butterworths, 4th ed, 2001)

Parties: Angela Cressy (Plaintiff)

Milosevic Miloriad (First Defendant)

NRMA Insurance (Second Defendant)

Representation: Counsel

A Muller (Plaintiff)

J Pappas (Defendants)

Solicitors

Maliganis Edwards Johnson (Plaintiff)

Moray & Agnew (Defendants)

File Number: SC 375 of 2015

MOSSOP AsJ:

Introduction

1. This case involves an assessment of damages arising out of a motor vehicle accident

which occurred on 11 August 2011. The plaintiff, Angela Cressy, was driving her

vehicle to work on Bindubi Street in Aranda. There was an accident involving four

vehicles. The vehicle driven by the first defendant collided with the rear of a white

Holden Commodore, which in turn collided with the rear of the plaintiff’s vehicle, which

in turn collided with a Subaru vehicle in front of hers. Breach of duty was admitted.

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2. The principle issue in the case was how, in the assessment of damages, to take

account of the fact that the plaintiff had a degenerative right hip which would have

required her to undergo a hip replacement in any event. Notwithstanding some

criticisms by counsel for the defendants of the plaintiff’s evidence, I do not consider that

issues in the case turn on issues of reliability of her evidence. I found her to be a

reliable witness who gave frank evidence about her condition.

The plaintiff prior to the accident

3. The plaintiff was born in 1958 and was aged 52 at the date of the accident. She was

aged 58 at trial. She lived in Sydney until 1968. As a child she learnt classical ballet

and continued that from around the age of seven until the age of 18.

4. She completed year 12 at Canberra High and moved to the south coast. She worked

in various shop assistant roles for around 12 months and then completed a secretarial

course at the Milton Technical College. In 1979 she returned to Canberra and worked

as a legal assistant in the Attorney General’s Department. In 1980 she travelled to and

worked in Western Australia and the Northern Territory. In 1981 she returned to the

south coast where she worked in real estate. Her son was born in 1982.

5. Between 1984 and 1993 she was self-employed, operating a dance and fitness

business in Mollymook in New South Wales. She commenced smoking in 1991.

6. She returned to Canberra in 1994. In 1994 she worked part-time as an assistant in

nursing while studying a Bachelor of Tourism (Information Technology) at the

University of Canberra. She concluded that degree in 1998. Between 1999 and 2001

she lectured in marketing and business administration at the University of Canberra,

worked as a researcher with the Cooperative Research Centre for Sustainable Tourism

and also worked for a consulting business called Davis Consultancies. She lectured

part-time at the Australian Institute of Management.

7. In 2002 and 2003 she and another woman established a business known as Corpfit

Training Solutions which was a nationally registered training organisation.

8. In 2004 she lived and worked in Thailand for 12 months teaching English at a business

administration college in Bangkok. She returned to Australia in May 2005 and joined

the Australian Public Service in 2006. She entered at the APS6 level and worked in

the Department of Health and Ageing in the section of the Department dealing with

Medicare outlays for diagnostic imaging.

9. In July 2009 she attended a general practitioner Dr Nambiar. She had been

recommended to her because he had a background in psychological counselling and

the plaintiff was suffering from anxiety. That anxiety related to her work in a new area

and the fact that her father had been recently diagnosed with dementia. She was

prescribed Seroquel and improved progressively as a result of her consultations with

Dr Nambiar.

10. In February and March 2011 she took up an acting position at the EL1 level in the

Department of Health. That role involved participation in a newly established task force

within the Department which was conducting a review of Medicare funded diagnostic

imaging services and the presentation of the departmental analysis to a panel of

eminent persons.

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11. In May 2011 she attended a general practitioner at Hawker Medical Practice and was

prescribed Champix to assist her in giving up smoking. She was successful in quitting

smoking by July 2011, just before the accident. However, she recommenced about

five months later and has not stopped since.

The accident

12. The accident occurred on 11 August 2011, a Thursday. She was sitting in her vehicle

with her hands on the wheel and her foot on the brake when she heard what she

described as “a loud explosion” followed shortly after by feeling the impact. The impact

threw her head and upper body forward. Her vehicle had been struck from behind,

pushed forward and struck a black Subaru which was in front. The plaintiff’s vehicle, a

Mitsubishi Colt, suffered damage to the bumper bar and rear door. It suffered only

minor damage at the front of the vehicle.

13. The plaintiff got out of the car. The immediate impact that she felt was to her shoulder

and breast which had been affected by the seat belt. She felt shocked. She got out

and walked around. Those involved in the accident gathered by the side of the road.

She called the police who attended the scene.

14. She was able to drive her vehicle to work. She left early that day and went to the

doctor. She perceived that she was somewhat “hyper” and not quite normal. She felt

stiff in the neck, calves and hips as if she had undertaken a severe workout. The

doctor advised her to take pain relief.

15. The next day she was quite stiff all over and had pain in her knee, hip, back and

shoulders. However, she returned to work on the day following the accident, a Friday,

because she and her supervisor were in the process of preparing a Cabinet submission

and there were tight deadlines to be met. She took Mersyndol for her pain.

16. Over the weekend she described herself as “a cripple”. She did, however, return to

work on the Monday. Over the next few weeks she found that her generalised pain

was localising to her knees, left breast, neck, lower back right groin and hips.

17. At that time she was in a relationship with Christopher Lansdown. He did not live with

her but helped her a lot, especially in the first week. He lived with her for the first week.

After that he would come over regularly. Her mother and father would assist her on

weekends. She had difficulty doing housework and washing. Her mother would come

up from Tuross Heads in New South Wales and spend a couple of days a week there.

She continued to that for three to four months.

18. At work she perceived that her performance was below what was expected. She found

that her pain and preoccupation with pain detracted from her working capacity. She

also noticed that her anxiety increased and there was a drop in her self-confidence as

a consequence of her pain. She saw Dr Nambiar following the accident and she

prescribed an increased dose of Seroquel which assisted to eliminate the symptoms of

anxiety.

19. She received physiotherapy treatment between August and November 2011 and was

given exercises to carry out. The principal areas where she experienced pain which

were treated by this physiotherapy were the left side of her neck and areas related to

her right hip.

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20. In October 2011 she took recreation leave and travelled to the United States for two

weeks with her sister-in-law (the wife of her brother) and her sister-in-law’s twin sister.

This trip had been arranged only a few weeks before. Her sister-in-law and twin sister

travelled to New York. The plaintiff stopped off in Los Angeles for a few days before

going on to meet them. She adopted this approach because she was not sure how she

would cope with travelling to New York in one go. She did some sightseeing in Los

Angeles. When she met her sister-in-law and twin sister in New York they did some

sightseeing and visited tourist attractions in New York. She walked “a wee bit” but

otherwise travelled by bus or taxi.

21. Upon returning from her holiday she returned to work as an acting EL1. She was back

under work pressure. She had pain in her knees, neck and hips and lower back.

22. In March 2012 she was reviewed by Professor Paul Smith. She was told that she had

a bad right hip and similar left hip, as well as degeneration of her cervical spine. She

was told that at some stage she would need a right hip replacement.

23. In April 2012 her supervisor at the Department of Health moved to the Department of

Agriculture and asked the plaintiff to join her on the basis that she would be acting at

the EL1 level and being paid at the top of the salary range for that position. The

plaintiff took up that offer.

24. She continued to have pain in her hip, lower back and knees. She suffered from

headaches and anxiety. She felt she was not coping with the new position.

Dr Nambiar prescribed her with Pristiq, but this had an adverse effect and made her

feel worse. She was referred by Dr Nambiar to Dr Speldewinde, a pain physician.

25. She continued to act at the EL1 level until April 2013. Prior to the end of that period the

substantive position at the EL1 level was advertised. Because of her ongoing issues

with pain and her concern that, as a result, she was not performing at her full capacity,

the plaintiff chose not to apply for the substantive position notwithstanding her history

of acting in that position. Her supervisor, Adrienne Hallam, who had brought her

across from the Department of Health, considered that she had been a hard worker,

diligent, reliable and had been putting in a lot of hours. However, Ms Hallam

considered that following the accident the plaintiff had struggled and was not as

capable because she seemed overwhelmed. Prior to the accident her performance

was such that she would have characterised her as a very high performing APS6 and

“eminently promotable”. She said that she would have been competitive in the selection

process for an EL1 position.

26. By November 2013 she continued to suffer from intermittent neck pain as well as pain

in her hip and knees.

27. Following consultation with Dr Speldewinde the plaintiff continued to use Mersyndol

and anti-inflammatory drugs and also undertook Pilates.

28. In October 2014 she was reviewed by Professor Smith who recommended a hip

replacement. By this time she still suffered from fluctuating neck pain which, on a bad

day, led to a headache.

29. The plaintiff underwent a total hip replacement on 19 March 2015. She remained in

hospital from 19 to 24 March 2015.

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30. Prior to the hip replacement her mother had continued to assist her with some things

such as window cleaning. The amount of assistance that her mother provided had

lessened over time. Her brother assisted by taking garden waste away and she also

had assistance from gardeners that she employed. Her neck had improved to the point

that it only caused her occasional pain.

31. She was discharged from hospital on 24 March 2015 and spent a few days at home

before being transported to her parents’ house at Tuross Heads were she stayed for

approximately six weeks.

32. Prior to the move to Tuross Heads the plaintiff was only able to walk with crutches.

She got assistance with personal care and meals from her sister-in-law’s sister, Nicole

Whitman, and did no housework herself.

33. During the six weeks at Tuross Heads she did no housework, no cooking and was

largely incapacitated. Her mother helped her with personal care and she used the

various “tricks” that she had been taught in the hospital to look after herself. She

received some physiotherapy at Moruya Hospital.

34. After she returned to Canberra she didn’t attempt housework or undertake significant

lifting. She waited until her friends or her mother could assist her. Her mother visited

her monthly. Her mother moved in with her in August 2015. Her father died in

February 2016. Her mother continues to live with her.

35. For reasons which are not clear, the second defendant required her to travel to Sydney

for medical examination in May 2015. An investigator engaged by the second

defendant took video of her in Sydney walking down the pavement and catching a taxi

without apparent impediment. When cross-examined about this the plaintiff said that

she was very tired at the end of that day and that she had regretted not taking her

crutches with her. I accept her evidence on that point.

36. She returned to work in May 2015. This was a graduated return to work and she

returned to full-time hours about eight weeks after having started. By the time she had

resumed full-time hours she felt she was able to function well. She benefited from

having a sit/stand desk at work.

37. Up to the end of 2015 she did not apply for any promotions because she thought that

she was not able to commit to work at that level. Although it was suggested to her that

she had not applied for promotion because of her father’s dementia and her desire to

spend time with him, I accept her evidence that while this was an issue that was “in the

mix” it was not the main reason why she did not apply for higher duties.

38. It was only in 2016 that she reapplied for an EL1 level position. That was a position in

which she had been acting from about February 2016. However, in June 2016 she

was unsuccessful in her application.

39. The plaintiff’s present condition is as follows:

(a) Her neck is “okay”, although she avoids looking down for a long time and

lifting her arms up or repetitive actions. She has perceived it to gradually

improve either because of a substantive improvement or because of her better

capacity to manage.

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(b) Her back is “okay” largely because of the hip replacement, although she did

have one recent episode of back pain. Any ongoing knee and lower back pain

appear to have resolved as a consequence of her hip operation.

(c) Her right hip is “great” compared to how it felt prior to the operation, although

she does have the odd pain. She does not mind the scar from the operation,

but does notice a protrusion where the prosthesis is.

40. The evidence of the two psychologists whose reports were tendered was that any

psychological effect of the accident is subclinical, that is, the plaintiff does not suffer

from any diagnosable mental condition.

Medical Issue

41. The principal medical issue was when, in any event, the plaintiff’s right hip would have

required replacement and to what extent the accident altered what would otherwise

have been the condition of the plaintiff’s hip. There was good evidence of the condition

of the plaintiff’s right hip at about the time of the accident because of an x-ray taken on

19 August 2011 and an MRI performed on 23 November 2011.

Professor Smith

42. In his report dated 3 March 2015 Professor Smith, in response to a question posed by

the plaintiff’s solicitors, said:

Ms Cressy suffered her injuries in a motor vehicle accident on 11 August 2011. Radiographs performed on 23 November 2011 revealed established right hip osteoarthritis. Prior to the motor vehicle accident Ms Cressy had no history of any hip problems and described no symptoms referable to the hip prior to her accident.

Based on the radiographs available Ms Cressy most likely had gradually developed osteoarthritic change over the course of her life, however this was rendered symptomatic by the vehicle accident. Based on the radiographs it would appear that Ms Cressy would have required hip replacement at some point in her life, however may have remained asymptomatic for a long period if the vehicle accident had not occurred.

43. In cross-examination he agreed that the condition visible on the MRI taken in

November 2011 could be described as “end-stage osteoarthritic change”. He agreed

that the complete loss of joint space increased the likelihood of pain. He also agreed

that even without a car accident the plaintiff would have required a hip replacement at

some stage and that her level of activity made it more likely that that would be sooner

rather than later. As to when a right hip replacement would have been required in any

event, his evidence in cross-examination was as follows:

Now the last proposition I want to put to you is this doctor, would you agree that within a period of two to not more than five years, even if she had not been involved in this car accident, she would likely have needed the right hip replaced?---I think there would’ve been a high probability if that was the x-ray taken.

When you say - - -?---If – if we’re saying – if we’re saying that that’s the x-ray taken at the time of the car accident.

Before the car accident you mean?---Yes. You’d say that that would be fairly likely to have been an operation in a five year interval, yes.

44. In my view, it is necessary to read the doctor’s reference to “fairly likely” in the light of

his earlier statement that there was a “high probability” of requiring a hip replacement

within two to five years.

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45. In re-examination he was asked whether there were studies which provided an

empirical basis for the timeframe between the radiological presence of advanced

osteoarthritic change and the need for a hip replacement. He described a study by Dr

Tonnis which, in the case of advanced arthritic change, indicated a 100% chance within

10 years and an 80% chance within five years. He could not recall the percentage

chance within a two-year period. Having regard to the three and a half-year period

between the accident and the hip operation, he said that the plaintiff had “extracted all

the value” from her hip prior to replacement.

Dr Le Leu

46. Dr Leon Le Leu saw the plaintiff after she had undergone the total right hip

replacement. He had been briefed with the x-ray of the plaintiff’s pelvis and right hip on

19 August 2011. When it was suggested to him in cross-examination that the MRI

showed “end-stage osteoarthritis” he said that it showed end-stage osteoarthritis or

something close to it. However, he emphasised that there was not a linear relationship

between symptoms and what was seen on an MRI. In his report he said:

… she would have required the hip surgery eventually-probably in the next 2 to 5 years. The subject accident made the previously asymptomatic advanced degeneration of the right hip suddenly symptomatic; the symptoms did not abate and, despite conservative treatment, she eventually required a hip replacement.

Hence the subject accident brought forward rather than accelerated the need for the hip replacement by approximately 2-5 years although this is a rough estimate.

47. There was some contention in the course of submissions as to whether the two to five

years referred to by Dr Le Leu was to be taken from the date of his examination in

2015 or the date of the accident. Having regard to the extract quoted above, it is

apparent that he meant two to five years from the date of his examination.

48. In cross-examination Dr Le Leu said that such predictions were often “wildly

inaccurate”. In re-examination he indicated that he was not aware of studies which

provided data on how long it was between changes as indicated on the MRI and the

need for surgical intervention.

Dr Higgs

49. Dr Robin Higgs is an orthopaedic consultant, biomedical and forensic engineer. His

report was dated August 2015 and he had seen the plaintiff once on 24 July 2015. At

that point she had satisfactorily recovered from most of her injuries although she

continued to suffer from discomfort at her right hip joint and some pain in her left knee

joint. She did not then suffer from any other spinal symptoms or from any upper or

lower extremity symptoms. He expressed the view that bracing of her lower right

extremity during the accident has been the cause of her suffering from “permanent

aggravation of pre-existing secondary degenerative osteoarthritis of the right hip joint”.

He expressed the opinion that the result of the total hip replacement could be

considered to be excellent in accordance with the guidelines referred to as AMA 4 and

AMA 5. Although the basis for such an apportionment was not explained, he

apportioned the cause of the impairment as follows:

it is my conclusion that one half (1/2) of any impairment should be associated with the presence of the pre-existing dysplasia and degenerative condition and that one half (1/2) of any impairment should be associated with the consequences of undergoing a right total hip replacement surgical procedure.

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50. In relation to when a total hip replacement would have been required in any event, he

said:

However the lady was, prior to the accident, asymptomatic and the date when any surgical intervention would have otherwise been required cannot be determined.

51. He identified that there was a chance that the prosthetic device may require revision in

the future and identified the costs of that process as being currently between $35,000

and $40,000.

52. In cross-examination Dr Higgs did not embrace the term “end-stage osteoarthritis”. He

preferred instead to describe it has advanced osteoarthritis. He explained that every

patient undergoing a total hip replacement has a different degree of degenerative

pathology and the need for a hip replacement depended upon whether it was

necessary to relieve pain, to restore the patient’s range of motion or allow the patient to

walk.

Dr Pascall

53. Dr Virginia Pascall is an occupational physician whose present practice is primarily

medico-legal. She saw the plaintiff on a single occasion at the request of the second

defendant on 16 October 2013 and reported to the second defendant on 14 November

2013. In cross-examination on her report she accepted that the plaintiff’s right hip was

asymptomatic before the accident and had been rendered symptomatic by the

accident. She said it was possible that the degeneration of the hip described in the

MRI scan of November 2011 had some contribution from the accident and that it was

for that reason that there had been a sudden onset of pain.

54. In re-examination she said that having regard to the advanced arthritic changes

demonstrated in the MRI she considered that even without the accident it was likely

that the plaintiff would have suffered some pain and disability within a year of the date

of the accident. That might have been triggered by matters as little as a slight twist or

sleeping on the hip. The likelihood of her hip becoming symptomatic would be

increased by her level of activity including her social dancing and walking.

Dr English

55. Dr Hugh English examined the plaintiff on 8 April 2015. He described the x-rays of

August 2011, November 2011 and March 2015 as demonstrating “end stage

osteoarthritis of the right hip secondary to acetabular dysplasia with moderate

osteoarthritis of the left hip”. He expressed the opinion that the underlying

osteoarthritis in the right hip had been aggravated by the car accident. He did not give

oral evidence.

Dr Stubbs

56. Dr Geoffrey Stubbs is an orthopaedic surgeon. In his report of 13 December 2012, in

relation to the plaintiff’s right hip, the doctor said:

Plain Xrays of the hip show well established osteoarthritic change on the right side with complete loss of joint space and early changes on the left side, some joint space narrowing and some marginal osteophyte formations.

…

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The right hip is worse than the left and the surprise is not that she has groin pain but that she was not aware of the groin pain prior to the motor vehicle accident. Given the radiological changes on the right side I would have thought that groin pain at least in the right hip, would have been present for some time. However she reports doing disco dancing prior to the motor vehicle accident. The accident is neither the cause of the osteoarthritis of the hip nor the cause for pain in the groin. The groin pain would certainly have occurred independently of the motor vehicle accident.

…

The hip osteoarthritis has now become symptomatic and it is impossible to say when this would have occurred if she had not been involved in the motor vehicle accident but it is certainly of long-standing and is not a result of the motor vehicle accident.

Associate Prof Smith’s claim that the motor vehicle accident has rendered her hip symptomatic is the claim made by a treating doctor. My surprise is that the hip wasn’t already symptomatic at the time of the motor vehicle accident. I do not believe the accident in any way influences her need for treatment. Whatever treatment she has, she would have had in any case and symptoms vary, if anything, they are overdue.

57. In his report dated 25 February 2016, Dr Stubbs stated:

The issue here is really what role the motor accident plays in the development of arthritis in the right hip, to which the answer is none. It is clearly a well-established process and the range of motion recorded by Prof Smith is of a very stiff right hip. The onset of pain in the hip from osteoarthritis is unpredictable and we do see people who have advanced changes with only a short history of symptoms, but my strong belief is that her hip arthritis would have occurred anyway and that the development of symptoms is not the consequence of the motor vehicle accident, it is merely coincidental.

…

The key issue is not whether Ms Cressy had osteoarthritis in her hip or that she would proceed to a hip replacement, but whether the motor vehicle accident plays any role in the generation of her arthritis.

58. In cross-examination he identified that he had expressed his opinion on the basis that

there had only been a rear end collision. With a front end collision as well, he accepted

that injury may have been caused to the plaintiff’s hip. He said that he was surprised,

having regard to the 2011 x-ray that the plaintiff’s hip was not symptomatic. In relation

to when symptoms would have occurred without the motor vehicle accident he said

“more likely than not within two years”.

Dr Gorman

59. Dr David Gorman, a consultant general physician, pain management specialist and

medical oncologist, examined the plaintiff in December 2014 and reported to the

defendants’ solicitors in February 2015.

60. In oral evidence he said that if he was a clinician assessing the patient in 2011 based

upon the x-ray then available, which showed advanced degenerative change in the

right hip, then he would have been in a position to advise the plaintiff, if she was

asymptomatic, that she would suffer the onset of symptoms within one to three years

and would need a total hip replacement within two to five years. It was suggested to

him that it was difficult to predict how the plaintiff’s hip would progress. The doctor said

that while he accepted the uncertainty of clinical medicine he could say that he was

“absolutely certain” that within the next two to five years the patient would need a hip

replacement. He said: “There is no uncertainty about that, that’s one of the least

uncertain propositions I’ve ever-you know, I’ve looked at…”

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Conclusion on the medical issue

61. So far as the causal connection between the onset of pain and the motor vehicle

accident is concerned, I find that the plaintiff was asymptomatic prior to the accident

and rendered symptomatic immediately upon the occurrence of the accident. That

temporal connection is sufficient to indicate a causal connection as the medical

evidence indicated that, having regard to the radiological imaging, the state of the

plaintiff’s hip was such that it might have been rendered symptomatic by relatively

minor events. It is not necessary to find as Dr Pascall did that the cause was the

extension of the labral tear, although that is certainly one possibility consistent with the

evidence. Each of the doctors appeared to recognise that with advanced degenerative

changes, such as were visible on the x-ray and MRI taken in 2011, the plaintiff’s

condition may have been rendered symptomatic by an event such as the motor vehicle

accident.

62. The advanced degeneration in the plaintiff’s right hip meant that her hip would have

been rendered symptomatic and required a total hip replacement at some stage. The

requirement for a hip replacement was a certainty. The issue as to which there was

some uncertainty was when her hip would have been rendered symptomatic and when

a hip replacement would have been required.

63. Although the medical evidence was generally consistent, in addressing this issue I

place greatest reliance upon Professor Smith’s evidence, as that evidence was given

with an understanding of the empirical studies as to the duration between advanced

osteoarthritic changes being detectable on the MRI and the requirement for a hip

replacement.

64. In final submissions counsel for the plaintiff submitted that caution should be applied to

empirical studies identifying the period between radiological evidence disclosing a

particular degree of osteoarthritic change and the requirement for hip replacement

surgery, because it was not clear whether those studies were based upon hips which

had become symptomatic or not. This was not an issue which was explored when

Professor Smith gave his evidence (or indeed when any other doctor gave evidence

subsequently). Having regard to the apparently well-established grading of

radiologically detectable deterioration this was an issue which might have been readily

clarified either by the witness or through the tender of the study to which Professor

Smith referred.

65. Counsel for the plaintiff also pointed to some uncertainties in the evidence of Dr Le Leu

as to whether or not his reference to two to five years was a reference to that period

from the date of the accident or that period from the date when he examined the

plaintiff. However, as indicated above, I accept that he intended to say two to five

years from the date of examination although he accepted that such a statement was a

“rough estimate” and could be “wildly inaccurate”.

66. Doing the best I can with the evidence, the following is a summary of the position of the

doctors who expressed opinions as to the likely course of the plaintiff’s hip based upon

the state of degeneration in 2011:

(a) Prof Smith: hip replacement a high probability within 5 years from accident;

(b) Dr Le Leu: hip replacement within two to five years from 2015 (seven to 10

years after the accident);

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(c) Dr Higgs: the date when any surgical intervention would have been required

cannot be determined;

(d) Dr Pascall: symptoms of hip degeneration within a year of the date of the

accident;

(e) Dr Gorman: one to three years from the date of the accident for symptoms and

two to five years for an operation;

(f) Dr Stubbs: symptoms more likely than not within two years of the date of the

accident.

67. The other empirical figure available was that it was three and half years between her

hip being rendered symptomatic and having a hip replacement. That process does not

appear to have been shortened by reason of the aggravation that occurred in the

accident having regard to the extent of the degeneration and the comment of Professor

Smith that the plaintiff had extracted “full value” from the hip.

68. In those circumstances it is only possible to assess the chance that the plaintiff might

have been free from significant symptoms in a reasonably imprecise way. There was

certainly a chance that she would have remained asymptomatic for a year beyond the

date of injury. Following a period during which she was asymptomatic she would have

suffered symptoms similar to those that she in fact suffered following her hip being

rendered symptomatic. The outer bounds of the period during which it could be said

with a reasonable degree of certainty that a hip operation would have been required in

any event is five years from the date of the accident, that is, about the time of the

hearing. In that regard I prefer the evidence of Professor Smith and Dr Gorman to that

of Dr Le Leu, largely because the evidence of Professor Smith appears to be based

upon and consistent with the empirical study to which he referred and of which Dr Le

Leu was not aware.

69. However, in the absence of the accident her symptoms would not have occurred at the

same time as the other injuries that she suffered as a consequence of the accident,

most significantly a whiplash injury to her neck. The overall impact therefore of the

onset of hip symptoms would have been less.

Damages

70. Flowing on from the medical issue as to when, in any event, the plaintiff would have

been required to undergo a hip operation was the issue of how to assess damages in

circumstances where the disability caused by the accident would have arisen in any

event.

71. In Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at 168 (Purkess) the

plurality judgment of Barwick CJ, Kitto and Taylor JJ states:

We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima

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facie case that Watts v. Rake (1960) 108 CLR 158 was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence.

[Footnotes included as text]

72. Windeyer J said (at 170):

In a personal injury case the ultimate burden is on the plaintiff to establish the extent of his injuries caused by the conduct of the defendant. If when the tort occurred the plaintiff was suffering from a progressive disease which, even if he had not been tortiously hurt, would certainly and within some reasonably predictable time have disabled him in the same way as the tort did, then the defendant's conduct has merely hastened the inevitable; and damages must be measured accordingly.

73. Harold Luntz, Assessment of damages for personal injury and death (LexisNexis

Butterworths, 4th ed, 2001) provides at [1.9.14]:

In innumerable cases it is proved that prior to the accident for which the defendant is responsible, the plaintiff suffered few or any symptoms of the condition for which damages are now claimed. Investigations subsequent to the accident reveal, however, that the plaintiff was suffering from a pre-existing degenerative condition that would or might have produced symptoms similar to those from which the plaintiff is now suffering. Issues of onus of proof arise in this context.

74. The author then refers to the decision in Watts v Rake (1960) 108 CLR 158 and

Purkess:

Neither Watts v Rake nor Purkess v Crittenden was referred to in Malec v JC Hutton Pty Ltd. To reconcile these different lines of authority, it is necessary to say that the plaintiff must prove on the balance of probabilities that the defendant’s negligence did contribute materially to the present symptoms (this is the legal onus that rests on the plaintiff). Once that is satisfied, there is an evidential onus on the defendant of proving that the alleged pre-existing or subsequent natural condition did exist and that this condition in its natural progression would have produced similar symptoms. If the defendant is unable to satisfy the evidential burden, the court will reduce the plaintiff’s damages for contingencies to no greater extent than in the ordinary case. If, however, the defendant shows that there was a real chance that the plaintiff would have developed similar symptoms from a natural condition attaching to the plaintiff, the court will make a greater reduction than normal to reflect this increased chance.

[Footnotes omitted]

75. The position adopted by the plaintiff in relation to damages reflected the approach

which appears to be articulated in Luntz, namely that in a case where there is at least a

real chance that the plaintiff would have developed similar symptoms, a greater than

usual reduction for vicissitudes will be allowed. As a consequence, counsel for the

plaintiff approached the question of damages by:

(a) submitting that damages should be assessed on the basis that the defendant

was wholly responsible for all of the consequences of the plaintiff’s underlying

hip condition; and

13

(b) then applying a percentage discount of either 25% or 50% to various

components of damages so as to take into account the chance that the

plaintiff would, in any event, have suffered the consequences of her

degenerative hip.

76. The defendants, on the other hand, approached damages on the basis that it was a

certainty that the plaintiff’s hip would become symptomatic and require replacement

within a reasonably short period after the time when it in fact did. The defendants

submitted that damages should be awarded in a manner which reflected that certainty

and hence captured the difference between what occurred and what was going to

occur in any event. As a consequence, the matters productive of damages related to

the timing of the requirement for surgery and the non-hip consequences of the

accident, as well as the additional consequences for the plaintiff arising from the fact

that her hip was rendered symptomatic at a time when she was suffering those other

consequences.

77. In my view the approach adopted by the defendant is, in the circumstances of this

case, a more appropriate one. That is because of the degree of certainty surrounding

the requirement for a hip replacement. If it was a case where the potential for the

materialisation of an underlying degenerative condition was less clear, then dealing

with the issue by an adjustment to the allowance for vicissitudes might be appropriate.

However, in a case such as this, the existence and consequences of the underlying

degenerative condition are very clearly established and the time frame in which that

condition would, in any event, manifest itself, reasonably well defined. Addressing the

consequences of the accident and the plaintiff’s hip condition in relation to each head

of damage will more accurately reflect the relative significance of each. In those

circumstances it is possible to undertake in relation to each head of damage a more

specific comparison between the position that the plaintiff would have been in without

the accident and the position in which she finds herself. That is the approach that I

have adopted in my assessment of damages.

General Damages

78. The requirement to have a hip replacement has significantly affected the plaintiff’s

enjoyment of life. It has, in particular, affected her involvement in dancing and the

social life associated with that. It has affected her capacity to enjoy walking, yoga and

gardening. However, because of the inevitable need to undergo a total hip

replacement that was going to occur in any event. The pain associated with her

degenerative hip condition and the hip replacement was something which would have

to occur in any event.

79. The accident rendered her hip symptomatic earlier than might otherwise have been the

case. The plaintiff was required to face the symptoms of her symptomatic hip condition

along with the other consequences of the accident, including a whiplash injury to her

cervical spine. That is likely to have contributed to a greater aggravation of her pre-

existing anxiety state than might otherwise have been the case. In other words,

because of the coincidence of the onset of hip pain with the other symptoms of the

accident, the overall effect of the hip pain was probably greater than would have been

the case in the absence of that coincidence.

80. The plaintiff’s present situation described at [39] above is consistent with the report of

Dr Le Leu which describes her as no longer suffering symptoms in her neck. Although

14

there was some cross-examination of Dr Gorman directed to the proposition that the

spondylitic condition in the plaintiff’s cervical spine might remain symptomatic, the

evidence does not, in my view, establish that the plaintiff will have significant ongoing

neck problems attributable to the accident.

81. In the circumstances, having regard to the inevitability of her hip becoming

symptomatic and the need for a hip replacement, I consider that an award of only

$80,000 for general damages is appropriate.

82. I apportion $70,000 of this to the past and award interest of $7,224 (2% x $70,000 x

5.16 years). The defendant submitted that interest should not be awarded for the full

period from the accident because of the delay on the plaintiff’s part in bringing the

matter on for a hearing. I do not consider that there should be any reduction in the

interest awarded. The matter was brought on for hearing within two years in

circumstances where the plaintiff underwent hip surgery during the pendency of the

proceedings which gave rise to consequences significantly affecting the question of

damages. I do not consider that the manner in which the proceedings were conducted

warrants any reduction in the award of interest.

Loss of Earnings

Loss of sick leave

83. In relation to the past, the plaintiff claimed damages for periods during which she was

on sick leave. In Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 351 the

judgment of the Court recognised that in an appropriate case, the extinguishment or

diminution of sick leave credits may result in some damage. In the usual case where

there is no financial benefit accruing from not using up an entitlement to sick leave then

the loss incurred by having to use up sick leave as a consequence of a tortiously

inflicted injury is the loss of the value of the chance that the plaintiff might fall ill in the

future and be compelled to take leave without pay, the value of which is dependent

upon the circumstances of the case: Luntz [8.3.4]; Kennedy v Mangos [2001] ACTSC

92 at [19].

84. The plaintiff has not suffered any actual loss because all of the time that she had off

work was accommodated by sick leave entitlements. There was evidence that as at

April 2013 she had a sick leave balance (described as “Personal leave” on the pay slip)

There was no evidence as to what her current accrued sick leave entitlement is. There

was no identified reason why she might need more sick leave between now and

retirement than she has or would have available when it was needed. There was no

actuarial evidence providing a basis for assessing the likelihood of a person of the

plaintiff’s age who had the sick leave balance and entitlement that the plaintiff has

needing more than that balance prior to retirement. There was no evidence suggesting

that prior to the accident the plaintiff was someone who would use most of her sick

leave entitlement and hence not accrue a balance that could be used when some

significant issue arose. In those circumstances there is a chance that the use of sick

leave will be productive of loss, but it is not possible to attribute more than a nominal

5% chance that it will be productive of loss. The total amount claimed was $12,755. I

award damages for loss of sick leave of $638.

15

Past loss – chance of promotion to EL1

85. Prior to the accident the plaintiff had anticipated that she would have obtained an EL1

position by the end of 2012 and had planned to seek an EL2 position by the end of

2014. She considered that this would be assisted by the fact that both the Assistant

Secretary and her immediate supervisor had previously worked in the Department of

Health.

86. Although she had previously considered that it was likely that she would work until the

age of 65, presently she considers the future from day-to-day. There is evidence that

she is a member of an accumulation, rather than defined benefits, superannuation

scheme. I consider that in the plaintiff’s circumstances she was likely before the

accident to continue working until the age of 65 and that remains the position after the

accident.

87. The plaintiff’s long time friend Flora Maleganeas described her as being “very

ambitious” prior to the accident, but that following the accident that was “not sort of in

forefront any more”.

88. Although there were some references in the histories recorded in the expert reports to

the plaintiff wishing to spend more time with her father, who was suffering from

dementia, and some cross-examination to that effect, I do not consider that, in the

absence of the accident, she would have not taken the opportunity of working at a

higher level.

89. The central issue in relation to the loss of earnings is valuing the loss of the chance

that in the absence of the accident the plaintiff would have been in a position to have

obtained a permanent EL1 position. As pointed out above, there was a chance that

she would have remained symptom-free for a period and that the onset of symptoms

would have had a lesser effect on her because they did not occur in conjunction with

the other injuries caused by the accident. Although the evidence is not very precise,

having regard to the fact that she dropped down from an acting EL1 to her substantive

APS6 position in April 2013, I infer that the recruitment process relating to the

substantive position took place some time in early 2013. Had she applied for that

position, having regard to the fact that she had been in that position on an acting basis,

had come across from the Department of Health at the suggestion of her superior to fill

that position and was considered by her immediate supervisor to be a “competitive”

applicant, there is a significant chance that she would have obtained an EL1 position in

the absence of the accident. The level of that chance is influenced by a number of

factors, including:

(a) whether her hip would have been symptomatic;

(b) if it was, how bad those symptoms were and the extent to which they affected

both the plaintiff’s work performance and her own perception of her work

performance prior to the application and appointment process.

90. There is a chance that her hip would have remained asymptomatic up until early 2013

(approximately one and a half years after the date of the accident). There is also a

chance that even if her hip had been rendered symptomatic, she would have been in a

better position to manage the consequences of that because it occurred without the

other injuries associated with the accident and after she had more time to settle into

her acting position at the Department of Agriculture. Both factors would have made it

16

more likely that she would have applied for the job and more likely that she would have

been successful in the application.

91. Balancing these various factors I consider there was a 70% chance of her having

achieved an EL1 position in the first half of 2013 and I will assess damages on that

basis. I have chosen this figure because it represents a better than even but less than

75% chance. The precision in the percentage chance adopted should not obscure the

fact that there are many uncertainties as to what might have occurred. However, it is

necessary to reflect the extent of the chance as accurately as possible. While the

uncertainties behind the percentage figure are such that it might be described as a

buffer, it is in my view, better, where possible, to expose the basis for the figure arrived

at whether or not it could be described as a buffer.

92. Had the plaintiff achieved a permanent EL1 position then I consider it likely that she

would have been able to maintain that position notwithstanding the requirement for a

total hip replacement even though that would have involved some time off work.

93. The wage rates shown in Exhibit 6 for APS6 and EL1 positions respectively are

$88,315 and $103,635 per annum. This gives rise to a net weekly income of $1,457

per week or $1,276 per week and hence a weekly difference of $181 per week.

94. There has been a period (some time in February to some time in June 2016) during

which the plaintiff has acted at the EL1 level. This period must be taken into account

when assessing the past loss. This can be done by excluding those weeks from the

calculation of loss. The period from 11 April 2013 to the date of judgment is 183

weeks. Excluding a period from February to June 2016 of 18 weeks, gives a total of

165 weeks. A loss of $181 per week over that period gives $29,865. Seventy percent

of that figure is $20,906.

95. Interest on that amount at Court Procedures Rules rates is $2,168.

Future loss - chance of promotion to EL1

96. The plaintiff is now in a position where she feels capable of applying for an EL1

position. She was unsuccessful in her application in 2016. Ms Hallam’s evidence

indicates that while the Department is a large one (approximately 4000 staff) and there

are hundreds of EL1 positions, the number of positions filled as a result of “bulk

rounds” of recruitment has been reduced over the last few years as a consequence of

recruitment freezes. It is not easy to assess the prospects of the plaintiff now being a

successful applicant for an EL1 position. That will depend upon the Department

recruiting for such a position and the applicant being successful. The applicant is now

older and has had several years labouring under the effects of the accident. There was

no evidence that her age would adversely affect her capacity to obtain employment at

the EL1 level.

97. As pointed out above (at [86]) I consider it likely that she will continue working until age

65.

98. If, without the accident, she had not achieved a promotion in 2013 then she would still

have the chance of achieving that promotion now. She is likely to have had a slightly

better chance of achieving a promotion now without the accident because that would

have avoided the additional impacts upon her health that went beyond her hip

condition. However, the extent to which those additional impacts would manifest

themselves in making her a less attractive candidate is hard to gauge.

17

99. The starting point is the loss of the chance to have been already employed at the EL1

level as at the date of judgment and working through to retirement at that level. That

would give a loss of approximately seven years at $181 per week which, with a

multiplier of 330, gives $59,730. Seventy percent of that figure, reflecting the chance

that she would have achieved a promotion notwithstanding her hip symptoms, is

$41,811. There is, however, a chance of that loss not materialising because she

achieves a promotion. I assess that chance to be 50% having regard to her past

prospects of being promoted, the impact of the accident on her work performance, her

level of experience, the significant number of such positions in existence within the

Department and the more recent limitations on the number of persons being recruited

to such positions. However, that is a chance of promotion which could occur at any

time over the remaining period of her employment. Such a promotion is less likely in

the period immediately prior to her expected retirement. Taking account of the fact that

the chance of promotion is throughout that period but with a slight bias towards the first

half of the period, the appropriate deduction to take account of the chance of future

promotion is 30%. As a consequence, I assess future loss at approximately 70% of the

figure referred to above, namely $29,268 (70% of $41,811).

Superannuation

100. The payslips that were in evidence (Exhibit 6) disclosed an apparent rate of

superannuation of 17.7% of her gross APS 6 salary which equated to 23.6% of her

after-tax salary. In the statement of particulars her claim to superannuation was

articulated as “18% of the net loss of wages for past and future”. The defendants

submitted that the plaintiff should not be entitled to recover superannuation at a greater

rate than she had particularised. No application was made to amend the particulars of

the claim. Therefore, notwithstanding the evidence in Exhibit 6, I will award

superannuation based upon the particularised claim at the rate of 18% of net loss of

wages.

101. In relation to the past this gives a figure of $3,763 (18% of $20,906). The plaintiff’s

schedule of damages provided in final submissions made no claim for interest on past

loss of superannuation.

102. In relation to the future this gives a figure of $5,268 (18% of $29,268).

Out-of-pocket expenses – past

103. The plaintiff particularised her claim for past out-of-pocket expenses at $38,091.29,

comprising amounts paid by the plaintiff of $32,719.79, amounts paid by Medicare of

$2,334.25 and amounts paid by the NRMA totalling $2,090. The issues in relation to

out-of-pocket expenses were:

(a) whether the amount paid for the hip replacement would have been incurred if

the hip replacement did not arise from a compensable accident;

(b) what amounts would have been incurred in any event having regard to the

plaintiff’s hip condition; and

(c) whether amounts incurred were for reasonably required medical treatment

arising from the accident.

104. These last two issues can be dealt with together.

18

Whether the amount paid for the hip replacement would have been incurred if the hip

replacement did not arise from a compensable accident

105. In relation to the cost of the hip replacement, the prima facie position is that the plaintiff

would, in any event, have had to have undergone that surgery. Counsel for the plaintiff

submitted that because the accident happened in circumstances where her condition

was related to a car accident she was unable to rely upon the public health system for

that treatment. That put her in a position where, because there was third party liability,

she was required to expend her own funds to pay for the surgery. Hence, he submitted

that the cost of the surgery should be allowed as damages notwithstanding that the

surgery would have taken place in any event.

106. The evidence relevant to this submission is as follows:

(a) The Medicare history statement does not include items related to the surgery.

As a consequence those amounts are not included in the Medicare notice of

charge.

(b) The invoices or receipts demonstrate significant payments related to the hip

surgery:

(i) $22,223 paid to Calvary John James Hospital;

(ii) $4,354.20 paid to the orthopaedic surgeon;

(iii) $900.84 paid to the surgical assistant;

(iv) $1,653 paid to the anaesthetist.

(c) The invoices from the doctors contain reference to Medicare benefit schedule

items.

107. There is no evidence of any Medicare rebate having been received by the plaintiff and

no evidence in relation to her private health insurance status. There is no evidence

that she was denied access to Medicare rebates because the surgery arose from an

accident.

108. Counsel for the plaintiff said he thought that the consequence for which he contended

arose as a matter of law, but did not identify any relevant statutory provision which

would support his submission.

109. If the plaintiff had established that the financial position relating to the hip replacement

surgery was different because that surgery was required as a result of her hip being

rendered symptomatic by reason of a motor vehicle accident, as opposed to becoming

symptomatic because of some non-compensable cause, then I would have awarded

damages so as to compensate her for that different position. However, the evidence

available to me and the submissions made do not demonstrate the foundation upon

which I could do so. Therefore, in relation to the costs associated with the plaintiff’s hip

replacement I treat those as costs which would, inevitably, have had to have been

incurred in any event.

110. No submission was made to the effect that damages should be awarded to take into

account the requirement for the payment of those amounts at an earlier date than

would have been required had the accident not caused the aggravation of her hip

condition when it did.

19

What amounts would have been incurred in any event having regard to the plaintiff’s hip

condition?

Whether amounts incurred were for reasonably required medical treatment arising from

the accident.

111. Clearly, having regard to my conclusion above, the direct costs of the total hip

replacement fall into the category of expenses which would have been incurred in any

event. The plaintiff’s submissions did not address the claim for out-of-pocket expenses

in any detailed fashion. The defendants provided alternative calculations identifying

which of the plaintiff’s out-of-pocket expenses would be recoverable on two alternatives

depending upon whether certain treatment was included or excluded. (I will mark the

defendants’ calculations as MFI C and leave it with the file so that it is clear what I am

referring to.) The second approach identified by the defendants included the

consultations with Dr Nambiar, massage and vitamins, but excluded radiology after

2013 and the expenses associated with the plaintiff’s total hip replacement. That

calculation would give a total for out-of-pocket expenses of $5,385.10.

112. I find that it is more likely than not that the remedial massage was required because of

the accident and would not have been required otherwise and to generally adopt the

approach outlined by the defendants referred to above. There are some adjustments

that I have made to that total.

113. Dr Nambiar’s notes were illegible. The plaintiff gave evidence that her attendances

post accident were “generally” related to managing pain from her hips, neck, knees and

her psychological condition. The notes in relation to seven of the 23 consultations

mention the word Seroquel. The plaintiff’s evidence was that she would see Dr

Nambiar (as opposed to some other doctor) if she had a cold or other medical

condition. Having regard to the likelihood of other medical conditions and the fact that

she would have had to see a doctor in any event about her degenerative hip I will allow

as damages only two thirds of the total for Dr Nambiar and hence reduce the total

above by $587.

114. Notwithstanding the description by counsel for the defendant that the total reached

included “vitamins”, the total excluded items purchased from “Quality Discount

Vitamins” which was the subject of specific evidence of the plaintiff. Notwithstanding

that evidence I consider it properly excluded because the evidence suggested it would

have been required in any event as a result of the plaintiff’s hip condition. I have also

excluded from that calculation amounts identified as being for “Aromatherapy =- 1.5hr”

($110: Exhibit 8 p 45) and the purchase of various vitamins or supplements ($39.07:

Exhibit 8 p 38), the utility of which has not been established and is not otherwise

obvious.

115. These deductions reduce the amounts for past out-of-pocket expenses to $4,649.

116. The plaintiff in her schedule of damages provided in final submissions made no claim

for interest on past out-of-pocket expenses and consistent with the standard trial orders

made in the matter I treat any claim for interest as abandoned.

117. The plaintiff gave evidence that she engaged a gardener to assist her with her

gardening after the accident. She paid cash and obtained no receipts. In cross-

examination the plaintiff accepted that she would engage her gardener about four times

a year for two or three hours paying $50 per hour. Therefore a reasonable estimate of

20

the total amount paid per year would be $600. This appears to arise from the

combination of symptoms which she suffered post accident and not the inevitable

problems with her hip. I will allow that rate for three years giving $1,800.

Out-of-pocket expenses – future

118. In relation to medical expenses the plaintiff submitted that an award of $20,000 was

appropriate. This was described by counsel for the plaintiff as “a stab on a buffer

basis”. He pointed to the increase in the plaintiff’s use of Seroquel shortly after the

accident and identified the risk of a revision procedure on her hip being required and

that necessitating review by an orthopaedic specialist twice per year. The defendants,

on the other hand, contended that the maximum that should be permitted would be

$2,000 involving occasional GP attendances and the purchase of Seroquel reducing to

pre-accident dosage over time.

119. Proceeding on the basis that the total hip replacement would have occurred in any

event within a reasonably short period, no future expenses arise from the plaintiff’s hip

replacement. Because there is a chance that she might have been able to postpone

the hip operation for a period, she has lost the chance of avoiding the risk of revision

surgery during an equivalent period. So far as Seroquel was concerned there was

evidence that her dosage had doubled shortly after the accident, but little evidence of

an ongoing increased need for the drug arising out of the accident. I do not think that it

is appropriate to award a substantial sum in those circumstances on “a stab on a buffer

basis”. The evidence of both psychologists was that any effect of the accident was at

the subclinical level. The evidence does not establish, in my view, an indefinite need

for higher dosage of Seroquel because of the accident, even though in relation to the

past that increase was identified by Dr McMahon, the psychologist retained by the

defendants, as having arisen because of the accident.

120. I will therefore award an amount of $3,000 which is largely consistent with the

defendants’ submission except for the addition of an amount on account of the up to

1% per year risk of revision surgery on her hip during the period she might have

delayed a total hip replacement in the absence of the accident.

Griffiths v Kerkemeyer

121. The rate for Griffiths v Kerkemeyer damages was agreed at $35 per hour.

122. The principal issue in relation to Griffiths v Kerkemeyer damages arises because the

plaintiff’s submissions make an allowance for the fact that the plaintiff would have had

to have had a hip operation in any event by reducing:

(a) past Griffiths v Kerkemeyer to 75% of what would otherwise be recoverable;

and

(b) future Griffiths v Kerkemeyer damages to 50% of what would otherwise be

recoverable.

123. By this means she contended that amounts of approximately $42,000 and $36,000

respectively should be awarded for past and future. In contrast, the defendants

contended that damages should only be awarded for a relatively short period in relation

to assistance provided by the plaintiff’s mother and Mr Lansdown, because after the

initial consequences of the accident any assistance required by reason of the plaintiff’s

degenerative hip would have been required in any event. As pointed out above, I do

21

not consider that the plaintiff’s approach of applying a discount to the amount that

would be recoverable if she would not have suffered any hip disability properly reflects

an appropriate comparison of the position that the plaintiff is in and the position that

she would be in if the accident had not occurred.

124. As I have pointed out in relation to economic loss, the plaintiff’s position was made

significantly worse by reason of the coincidence, as a result of the accident, of the

onset of her degenerative hip pain with the other consequences of the accident.

However, the care that she required which was associated with the hip replacement

was care that she would have required in any event.

125. I therefore award past Griffiths v Kerkemeyer damages as follows:

(a) In relation to care provided by her mother, she provided significant care in the

year after the accident, travelling up from Tuross Heads to assist the plaintiff

on a regular basis. I therefore award damages based upon 10 hours per week

for a period of four months post the accident, less the two weeks when she

was overseas (15 weeks, 10hrs per week, $35/hr = $5,250). During that

period she visited weekly and this need on the plaintiff’s part is attributable to

the coincidence of injuries caused by the accident and hence would not have

been otherwise required. After that she came once every three weeks to a

month for the balance of the first 12 months (11 visits, 5hrs per week, 35/hr =

$1,925). After that period I am not satisfied that the need would not have

been required in any event. This gives a figure of $7,175.

(b) In relation to her brother, over the first four months he assisted her a couple of

hours a month or every three weeks. This gives $420 (6 occasions x 2hrs x

$35/hr).

(c) In relation to Mr Lansdown, he provided significant care in the first week after

the accident then helped her regularly in the following months. I will make an

award on the basis of 20 hours in the first week and then four hours a week for

five months. This gives $3,500 (20hrs x $35 plus 20 weeks x 4hrs x $35).

126. The total for the past is therefore $11,095.

127. In relation to future I am not satisfied that any award is necessary. The plaintiff’s

mother now lives with her. Her mother does most of the domestic tasks because the

plaintiff works full-time and she has time to do so rather than because the plaintiff

would be unable to perform those tasks. The evidence does not establish that the

plaintiff has an ongoing inability to perform domestic tasks that she would not have had

in any event having regard to the inevitability of a hip replacement.

Summary of damages

128. The components of damages and the amount I will award in relation to each of them is

set out in the following table.

Head of damage Amount

General damages $80,000

Interest on past component of general

damages

$7,224

Loss of sick leave $638

Past loss of income $20,906

22

Interest on past loss of income $2,168

Future loss of income $29,268

Superannuation-past $3,763

Superannuation-future $5,268

Out of pocket expenses-past $6,449

Out of pocket expenses-future $3,000

Griffiths v Kerkemeyer-past $11,095

$169,779

Orders

129. The orders of the Court are:

1. Judgment be entered for the plaintiff against the second defendant in the sum of

$169,779.

2. The second defendant is to pay the plaintiff’s costs of the proceedings.

3. Order 2 does not take effect for 14 days, and if any party notifies my associate by

email (copied to each other party) that it wishes to be further heard in relation to

costs the order does not take effect until further order of the Court.

I certify that the preceding one hundred and twenty-nine [129] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.

Associate:

Date: 12 October 2016