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

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

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

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.

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.

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.

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.

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.

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.

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.

(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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

...

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".

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..."

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);

(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.

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 facie case that Watts v. Rake [1960] HCA 58; (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]

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] HCA 58; (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

(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.

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 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.

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.

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 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.

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.

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).

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).

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.

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.

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 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.

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.

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 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).

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.

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

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.