Davis v Grgic [2006] ACTSC 14

Supreme Court of the ACT|2006-03-06|Before: Marshall J

1. There be judgment for the plaintiff in the sum of $155,137.66.

2. The parties file and serve written submissions on the question of costs within 14 days.

3. There be liberty to either party to apply on not less than 48 hours written notice to the other party.

2. The defendant admits that she breached her duty of care to Ms Davis. There is also no issue concerning contributory negligence. Consequently I am only required to assess the damages which should be awarded to Ms Davis.

3. Ms Davis was born on 29 July 1970. At the time of the accident she was 32 years old. She was employed as a bookkeeper by a firm of solicitors. She worked full time, five days per week. She gave birth to her first child in November 2001. At the time of the collision Ms Davis was expecting her second child. She gave birth to her second child in September 2003.

4. Ms Davis lives at Yass, about a one hour driving journey away from Canberra. Her husband is a bobcat driver who works long and unpredictable hours.

5. The collision occurred when Ms Davis was on her way to work. Her car was stationary in a line of traffic when the defendant's car ran into it from behind. Ms Davis sat in her vehicle for a short time after the collision. She then alighted from the vehicle, exchanged details with the defendant and checked her own vehicle for damage. The collision shook Ms Davis but, as she was only a short distance from her work, she drove on to work.

6. Immediately after the collision, Ms Davis felt pain at the base of her neck on the right side. Within a couple of hours the pain increased and by then she had developed right side lower back pain as well. The lower back pain radiated down her legs as far as her knees, via her buttocks. Over the subsequent two days her symptoms steadily increased.

7. Two days after the collision, Ms Davis attended Dr Burn at Yass who diagnosed soft tissue injuries to her back and neck. He prescribed paracetamol and physiotherapy.

8. In August 2003, Ms Davis attended Dr Griffith in Deakin. Dr Griffith noted that Ms Davis complained of "low back pain, aching in nature, worse on the left side than the right, and radiating to the buttock". She stated that she is never free of the pain and that it varies in intensity. When severe, the pain is incapacitating to the extent that Ms Davis may require physical assistance to get up from the floor.

9. Ms Davis also informed Dr Griffith that she had not worked since the collision. She said that she found it uncomfortable to drive, even for a short distance and has to lie back in the passenger seat for travel lasting longer than 15 minutes. Ms Davis also reported trouble with some housework, including vacuum cleaning and hanging clothes on a clothesline. She reported that she was no longer able to work in the garden. She also had difficulty carrying heavy shopping bags.

10. Dr Griffith reported that although Ms Davis' soft tissue injuries had resolved she had ongoing symptoms in the areas in which she first suffered the symptoms. Dr Griffiths considered that Ms Davis could expect a full recovery but that it may be delayed for many months or even years.

11. Dr Griffith examined Ms Davis again on 24 May 2005. Dr Griffith noted that Ms Davis recommenced physiotherapy two months after the delivery of her second child, originally three times per week then decreasing in intensity. She is now reviewed by the physiotherapist at about two monthly intervals for assessment and direction concerning exercises.

12. Dr Griffith noted the continuation of pain in the right lumbar region, radiating down as far as the knee. The pain is aggravated by Ms Davis sitting for longer than 60 minutes and by bending and lifting.

13. Dr Griffith considered Ms Davis' prognosis to be excellent with "ultimate resolution expected". He noted that slow progress had occurred, which may be expedited.

14. Ms Davis attended Dr Burn at Yass on about nine occasions. On 3 May 2004, Dr Burn reported that Ms Davis had severe back and neck strain. He noted that physiotherapy had assisted her, but that the need for further physiotherapy would be indefinite. Dr Burn considered that Ms Davis would continue to suffer problems in sitting for extended periods and in undertaking sexual relations with her husband.

15. In a report dated 10 May 2005, Ms Davis' physiotherapist, David Kennard, noted that there had been a significant improvement in Ms Davis' cervical and lumbar spine complaints as a result of physiotherapy. He observed that Ms Davis still experiences dull pain in her neck and lower back, "with episodes of stiffness". He further noted that Ms Davis reported she was "managing her complaints" with an exercise program. David Kennard said that Ms Davis ceased to have physiotherapy from 4 August 2004 until 25 October 2004, when she experienced "a flare up to her cervical spine after a period of increased stress". Further flare ups have resulted in further physiotherapy sessions.

16. Ms Davis attended Dr Robin Jackson, an orthopaedic surgeon, on 17 February 2004 and 31 August 2005 at the request of the defendant's solicitors. Following the consultation on 17 February 2004, Dr Jackson confirmed that Ms Davis suffered soft tissue injuries to her neck and back, with the injury to her back being the more severe one.

17. Following the consultation on 31 August 2005, Dr Jackson noted that Ms Davis remains symptomatic. She continued to complain of neck pain and headaches, whilst her lower back continued to give her constant background pain. She experiences difficulty sitting and has to shuffle a lot. The pain is referred from her back through her right buttock region. Dr Jackson also noted that Ms Davis dislikes travelling over long journeys. Her sleep pattern is disturbed by stiffness and soreness in her back and she has not returned to any sporting or hobby activities.

18. Although saying that it is difficult to offer a definite diagnosis, Dr Jackson considered that Ms Davis' pregnancy may have aggravated her back pain. However, it is not in dispute that the pain continued after she delivered her second child. Flare ups in her condition require her to revisit her physiotherapist at 3 to 6 month intervals.

19. Ms Davis appeared to be in obvious discomfort, in respect of her back, during the course of her evidence and when sitting in the back of the Court during the other part of proceeding. She gave her evidence in a frank, forthright manner. I consider her to be a witness of the truth. Indeed, I heard no submission to the contrary.

20. The following salient points about the effect of her injuries arose in Ms Davis' evidence.

* in addition to her discomfort to her neck and back, Ms Davis has regularly suffered from headaches since the collision, whereas she had not suffered from regular headaches before the collision;

* strenuous activities cause her back condition to flare up. These include the performance of too much housework in one day, especially vacuuming, mopping and putting clothes on the clothesline. Her housework now takes her longer to do;

* sitting still for long periods of time increases the stiffness in her neck. The same happens when she drives for long periods of time or sits before a computer without an appropriate ergonomic set-up;

* before the collision Ms Davis used to play 10 pin bowling and golf. She has played neither since the collision, lacking the confidence to pick up a bowling ball or swing a club;

* she does not go to the movies as often due to the need to fidget in her seat;

* she has cut down on her attendance at social gatherings, has become more reserved and stays at home a lot;

* as a result of the collision Ms Davis is unable to play on the trampoline with her children and is restricted in her ability to pick them up from the ground. It upsets her that she cannot play normally with her children as most mothers do;

* although suffering from neck pain from time to time before the collision, Ms Davis was not constantly inconvenienced in the neck region;

* although she slipped and fell on a greasy floor in June 2000, Ms Davis had no ongoing soreness in her back from that accident, other than for a few days subsequent to the fall; and

* she experienced some back soreness after the delivery of her first child, but nothing of any lasting consequence.

21. On 8 December 1989, Ms Davis suffered an injury to her right shoulder as a result of a motor vehicle collision. Dr Griffith described the injury as:

...(a) soft tissue injury with later necessity for a right shoulder arthroscopy and probable acromioplasty.

22. Dr Griffith noted in his 2003 report that a subsequent operation "resolved the problem".

23. In his 2005 report, Dr Griffith referred to Ms Davis' shoulder injury and then said that:

I consider that she was not suffering any significant symptomatic musculoskeletal pathology of any type at the time of the index injury....

24. In his report, Dr Burn said that he did not think the shoulder injury incurred in the 1989 collision had an effect on Ms Davis' back and neck problems.

25. Although noting that "some residual disability" remained in Ms Davis' shoulder, Dr Jackson did not say that the back and neck injuries were in any way connected to, or aggravated by, the injury to the shoulder sustained in the 1989 collision.

Competing submissions concerning the level of general damages

26. In accordance with the judgment of the Court of Appeal in Vulin v Cox [2005] ACTCA 22, counsel for the parties provided me with assistance "by reference to non-appealable ranges of damages derived from decisions of this Court"; see Vulin at [9].

27. Counsel for Ms Davis referred the Court to the following judgments:

* Harris v Knight [2005] ACTSC 32, per Ryan J;

* Napper v Abell [2005] ACTSC 64, per Ryan J; and

* Dennis v Australian Capital Territory [2005] ACTSC 118, per Master Harper.

28. In Harris, the plaintiff suffered soft tissue injuries to his lower back and neck after a motor vehicle collision. His injuries ended in his participation in elite clay pigeon shooting, as well as significantly diminishing his participation in other recreational activities. The accident also severely impinged on the plaintiff's social and sex life. Ryan J assessed general damages at $70,000.

29. In Napper, the plaintiff suffered a soft tissue injury to her neck as a result of a motor vehicle collision. The injury aggravated an underlying tendency to tightness in the plaintiff's neck caused by stress at work. The plaintiff's prognosis was good, although Ryan J considered that she would be left with some residual difficulties. His Honour assessed general damages at $40,000, with $3,000 interest.

30. In Dennis, the plaintiff suffered soft tissue injuries to her neck, right shoulder and her lower back as a result of being injured in a low-impact motor vehicle collision. At the time of the collision the plaintiff played A-grade ten-pin bowling. Master Harper assessed general damages at $55,000. He did so having regard to the significant interference with the plaintiff's enjoyment of life and the likely permanency of the injuries, despite the fact that the injuries were not at the "worst end of the spectrum", according to the Master.

31. Counsel for Ms Davis submitted that the Court should award general damages in the sum of either $45,000 or $50,000, having regard to the Harris, Napper and Dennis judgments. Counsel for the defendant submitted a lower figure of $20,000 to $25,000 to be appropriate, but did not refer to any additional guiding authority.

32. I consider that Ms Davis has suffered injuries which have significantly impacted on her enjoyment of life. She cannot play with her young children in an unrestricted way. She cannot engage in sexual relations with her husband in the way she had prior to the collision. She finds it difficult to sit still for long periods, including travelling in a vehicle. While her symptoms will resolve with exercise and physiotherapy by reference especially to the judgment of Ryan J in Napper, I consider that her general damages should not be less than $40,000. A figure of $45,000 is reasonable in the circumstances, apportioned equally between the past and the future. There is no basis on the evidence to reduce that amount by reference to the shoulder injury incurred in 1989. The evidence discloses, as referred to above, that that condition had resolved prior to the 2003 collision.

33. Counsel for the defendant submitted by reference to clinical notes taken by a Dr Reid on 29 May 1999 that Ms Davis had experienced neck pain since an accident in 1991. Ms Davis did not have an accident in 1991, the accident that led to her shoulder reconstruction occurred on 8 December 1989. It is entirely possible that the confusion about dates is not the only inaccuracy in Dr Reid's clinical notes. I accept the evidence of Ms Davis when she said that she had no major neck complaint prior to 3 April 2003. There is no report of Dr Reid to the contrary. The overwhelming weight of the medical reports tendered show no major underlying neck injury which was aggravated by the effect of the collision in 2003.

34. The general damages figure of $45,000 should be supplemented by $1,305, interest calculated by multiplying half of $45,000 by 2% and again by 2.9 years.

35. Counsel agreed that a figure of $17,459.18 should be awarded for past out of pocket expenses and a figure of $10,000 for future out of pocket expenses.

36. Counsel for Ms Davis contended that a figure of $53,203.48 should be awarded for past wage loss. As a direct consequence of the collision and her ensuing injuries Ms Davis became entitled to workers compensation payments due to her incapacity to work her normal hours of work since the collision. As at 21 April 2005 her workers' compensation payments amounted to $53,203.48. That is the sum claimed by Ms Davis, including Fox v Wood damages. There is no good reason not to award that amount. Counsel for the defendant suggested a lower figure of $28,600 based on an estimate of the time Ms Davis would have worked had she not been injured and had returned to full time work according to a pre-accident vocational plan. However, as counsel for Ms Davis submitted, her employer terminated her employment which meant that that plan could not be put in place. I agree with her counsel that it would be grossly unfair not to allow her the full amount which she had been paid by the workers' compensation insurer. Counsel for the defendant submitted, that the fairness of the situation is irrelevant and that Ms Davis must prove her past economic loss. I consider that she has proved it. When counsel for the defendant cross-examined Ms Davis about her desire for more flexible working hours she replied to the effect that she would like more flexibility provided she received the same or additional pay that she was entitled to on a full time basis. Ms Davis has proved that she lost on-going future full time employment with Garry Robb and Associates. Her employment was terminated by those solicitors because she became unable to perform the inherent requirements of her job, as a result of the negligence of the defendant. I award $53,203.48 in respect of past wage loss. I also award a consequent past loss of superannuation component of $11,020.00, calculated at 10% of her pre-accident salary (being $38,000) multiplied by 2.9 years. This is as a consequence of the evidence that her then employer paid 10% of her salary into a superannuation fund.

37. Counsel for the defendant suggested a modest buffer of $5,000. He submitted that Ms Davis' injuries have resulted in her being retrained (in mortgage broking and real estate) which has put her on a "better vocational trajectory as a result".

38. Counsel for the defendant submitted that no real case had been made out for lost future capacity, given that Ms Davis has improved her vocational situation.

39. Counsel for Ms Davis noted that on 31 August 2005, his client resigned from a full time job as a bookkeeper receptionist with Your Asset Solutions in Yass because of the difficulty experienced in working fulltime without discomfort.

40. It is difficult to assess how much remunerative work Ms Davis will obtain either from real estate or mortgage broking. There is a real prospect that the earnings she may achieve from those vocations will not rise any higher that what she would have expected to continue to earn in the legal industry working full time with generous superannuation payments. In the circumstances, I consider a buffer of $12,500 to be reasonable. Added to that should be component for future loss of superannuation which I assess at $1,250.

41. In Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, the High Court noted that a plaintiff is entitled to recover the cost of domestic assistance, even when provided for at no cost by a family member.

42. In her amended Statement of Particulars, Ms Davis claimed domestic assistance from Mr Davis at four hours per week from April 2003 to October 2003 and from Ms Davis' mother, Mrs Stanford, at the rate of four hours per week from April 2003 to October 2005 at a rate of $30 per hour, amounting to a total of $16,800. No authority was provided for this hourly rate and a review of recent decisions in this jurisdiction indicate that a rate of $17 per hour is more appropriate; see Dennis v Australian Capital Territory [2005] ACTSC 118 at [39], per Master Harper and Smith v Canberra Labor Club [2005] ACTSC 121 at [46], per Master Harper. At trial, counsel for Ms Davis provided a revised estimate of $7,000 under this head of damages, based on the submission that Mrs Stanford provided up to six hours domestic assistance per week, from the date of the accident until the birth of Ms Davis' second child in September 2003, and beyond that time for a few months. Counsel for Ms Davis also made a claim for future domestic assistance based on the fact that the evidence that the plaintiff will have flare ups and on those occasions will require further assistance. It is assumed that these revised figures are also based on a rate of $30 per hour.

43. The evidence of Ms Davis and Mrs Stanford supports the claim that Mrs Stanford provided six hours domestic assistance per week between April and October in 2003. This included vacuuming, washing floors, cleaning the bathroom and ironing. Calculated at a rate of $17 per hour and incorporating a component for interest, this accounts for $3,000. It is also reasonable to expect that Mrs Stanford will give some on-going support to Ms Davis with her housework as required when her injuries flare up. However, the need for that on-going support is likely to be infrequent. I allow a very modest $400 for future damages under this head, leaving a total of $3,400. The evidence does not justify any payment of damages of this type in respect of any support provided by Mr Davis to his wife.

44. I award the sum of $155,137.66. It is calculated as follows:

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Marshall

Solicitor for the plaintiff: Maliganis Edwards Johnson

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