Lewis v Shimokawa

District Court of NSW|2008-09-25|Before: Mr P

For the reasons outlined in my analysis of the medico-legal opinions I find the opinions of Dr Conrad, Dr Ellis and Dr Robertson to be confirmatory of the opinions of the Plaintiff's treating clinicians on matters of diagnosis and prognosis. I reject the opinions to the contrary from Dr Zeman, Dr Cummine and Dr Walden. Properly understood and analysed, I find that the reports of Dr Jones and Dr Kaplan are not contradictory of the opinions of the treating clinicians or contradictory of the Plaintiff with regard to the causal connection between the Plaintiff's stated problems and the subject collision.

I now turn to an assessment of the nine individual heads of damage claimed by the Plaintiff.

I find that her residual post-injury physical problems are that she has permanent neck and right shoulder pain with stiffness. She is never pain free. She has cervical facet joint disease, which, if not caused by the collision, then it was at least stirred up and made symptomatic by the collision. She has a cervical nerve irritation and a C5/6 nerve injury, which has led to an overactive sympathetic nerve response and the condition of reflex sympathetic dystrophy. Her neck pain radiates down her right side and into her right arm. She describes her arm as not working properly which is not surprising because she has had a nerve injury with incomplete recovery. She holds her left shoulder when she walks. The Plaintiff's physical restrictions cause her difficulty in grooming herself, attending to her hair, doing up her bra, her buttons and dressing herself. She has problems lifting objects. She has back and right leg problems, including recurrent lower limb spasms. Those spasms were observed to be quite pronounced and were obviously distracting and embarrassing for the Plaintiff. Her daily existence is beset with pain. She has lost a significant amount of weight and her muscles have become deconditioned due to reduced activity. Her sleep is disturbed. She cannot properly perform her household tasks. She has chronic pain syndrome, she suffers psychological distress, and major depression. She has been suicidal at times. Her medical prognosis is poor and she cannot work.

I find that the Plaintiff has severe and pronounced emotional and psychological problems. Her self-assessment in which she describes herself as "a mess", seems to me to be an apt description. I have accepted medical evidence, which has identified her psychological problems as having developed a chronic pain syndrome and a major depression. The effect of expert opinion is that the chronic pain syndrome fuels the depression and therefore, a self-perpetuating cycle has become entrenched. She also has poor concentration. Her estranged husband, her former employer and her aunt each gave evidence of a markedly changed personality and demeanour. I accept their evidence in this regard. I also accept the Plaintiff's descriptions of her condition.

The practical effect of her residual disabilities upon her is that she is socially withdrawn, she is in continual physical pain and she is unable to work.

Her treating general practitioner whose evidence I accept, is of the opinion that the Plaintiff is liable to suffer frequent and severe exacerbations of her pain. He is of the opinion that there is unlikely to be any significant improvement in her condition in the foreseeable future. This augurs for an unfortunate and miserable existence for the Plaintiff for the remainder of her life. She has made reasonable efforts to undergo rehabilitation treatment but this has not provided her with significant benefit.

I am conscious of the need to avoid an overlap in the award of damages for non-economic loss where damages for loss of earning capacity, both past and future, will be assessed as a separate head of damage. In my assessment the Plaintiff's circumstances warrant a significant award of damages for non-economic loss. Mr Lidden SC has submitted that the Plaintiff's damages for non-economic loss should be assessed in the sum of $180,000. In my view that sum represents an inadequate assessment of damages for non-economic loss to compensate her for the permanent conditions from which I have found she suffers and which I have summarised above. Section 134 of the Motor Accidents Compensation Act, 1999 establishes an indexed ceiling for maximum damages for this head of damage but the assessment of such damages must be undertaken according to conventional common law principles of proportion and reasonableness.

In striking a balance between the need to ensure the Plaintiff is neither over-compensated nor under-compensated and at the same time being fair to the Defendant I assess the Plaintiff's damages for non-economic loss at what I consider to be the upper end of the range in the sum of $265,000.

In order to assess the Plaintiff's entitlement to damages for past loss of earning capacity it is necessary to review the Plaintiff's pre-injury work history, the effect of the injuries on her ability to resume her pre-injury employment and to review the medical evidence as to her fitness to work.

The Plaintiff's work history, of which there was no dispute, appears to be one of virtually continuous employment over the 14 years since she left school. I regard this as an impressive work history in someone of the Plaintiff's age. She left Fairvale High School following the completion of the School Certificate in Year 10 in 1989 and in 1990 she worked as a check-out operator and packer for a company called Food for Less. Between 1991 and 1993 she worked for EFCO as a process worker. Between 1994 and 1997 she was employed by Harrisons' Timber and Hardware where her duties included customer service, invoicing and that of a floor hand. Between 1997 and 1999 she was employed by Electro Cables where she worked in customer service. Between 1999 and the time of her injury on 23 November 2003 she was employed by Industrial Wipers in a responsible position as a sales manager with customer service duties that involved significant physical work.

It becomes relevant to consider the nature of her pre-injury employment with Industrial Wipers. The principal of that business, Mr Mark Wheatley, who was the Plaintiff's employer, gave oral evidence. His business was concerned with selling industrial supplies to panel beaters. Mr Wheatley is married to the Plaintiff's aunt. He described how he had offered the Plaintiff employment with his company in 1999 because he had been given advice to the effect that she would be good at selling his products. He had decided at that time to expand his business into the South-Coast and Wollongong area. He appointed the Plaintiff as sales manager and equipped her with a Toyota Hi Ace van to service his customers and to effect deliveries of his goods. It seems that the Plaintiff was successful in building up his business in that area.

Following her injury in the collision on Friday 23 November 2003 the Plaintiff returned to work on Tuesday 27 November 2003 but on light duties. She remained on light duties until 28 July 2004 when her employment was terminated in consultation with her employer's workers' compensation insurer. Following this time she has been unemployed but she has continued to receive workers' compensation benefits.

Effect of the Plaintiff's injuries on her pre-injury employment duties

The Plaintiff said, and I accept, that she is unable to drive for more than 15 to 20 minutes. She also said, and I accept, that she had reduced standing and walking tolerance. I also find that on physical grounds alone, she can no longer perform her pre-injury work duties of driving, loading and unloading her employer's vehicle. Mr Lidden SC submitted that the Plaintiff was highly motivated and probably drove herself beyond her physical and emotional capacity in the first six months following her injury in an endeavour to carry out her work. I accept that submission as it clearly fits with my impression of the evidence in this case.

Mr Wheatley described the Plaintiff's pre-injury work duties as having a run on the South-Coast, which I infer, meant that she attended customer premises in that area to sell her employer's products. Mr Wheatley described the Plaintiff's pre-injury duties as including the handling of 20kg bags of rags, 20litre/kg drums of paint thinners, 16kg cartons containing 4 tins of paint and paint strippers and boxes of masking tape. I infer from this description that the Plaintiff's pre-injury work, which included periods of driving, was not a light or sedentary job.

Mr Wheatley described his post-injury observation of how the Plaintiff struggled to cope with her duties after her injury. He observed the Plaintiff to be in apparent pain all the time. She nevertheless attempted to continue on with her work. Her customers helped her by performing the unloading tasks from her delivery van. Mr Wheatley described how after the Plaintiff's injury he had undertaken the task of loading her van for her himself. Mr Wheatley subsequently terminated the Plaintiff's employment. He stated that if she were physically fit again he would employ her. Mr Wheatley's business had not contracted in size since the Plaintiff was injured but he has not replaced the Plaintiff since she had left his employment and has taken over her duties himself to keep on serving his regular customers.

I infer from the fact that the Plaintiff's employment was terminated and from the fact that she is in receipt of continued workers' compensation benefits, that no light duty position for which she is fit and capable is available to her in her former employment.

Mr Wheatley described the Plaintiff's pre-injury personality as being very outgoing. He described how after the collision the Plaintiff had become a completely different person in the sense that she was obviously in pain and walked holding her shoulder. He described his observation of the Plaintiff's inability to lift things after her injury and he described a deterioration in her physical abilities leading up to the termination of her employment. Mr Wheatley's observation of the Plaintiff following the collision in question was that the Plaintiff appeared to be in a lot of pain. In his opinion, from an emotional perspective, the Plaintiff had undergone a change in her pre-injury state. Mr Wheatley described the Plaintiff as having changed, now being very emotional and beset with pain and anxiety.

Mr Scott Lewis, the Plaintiff's estranged husband also gave evidence corroborative of the evidence given by the Plaintiff. He recalled the Plaintiff having complained of "a niggling lower, sort of, back pain, sort of a muscular type spasmy thing" after her 2001 work related lifting injury. During some four to six months following that injury he used to load her van for her. His evidence did not leave me with the impression that the Plaintiff had any lasting effects from the 2001 work injury when she was injured in the subject collision in 2003. He described her pre-injury personality and activities to indicate that she was very active and involved in outdoor and sporting activities without physical problems. He described how after the collision in question she had complained of pain, she became subject to mood swings, she was snappy and irritable and she could not wash up the dishes properly. Their relationship ended about 8 months after the injury due to arguments that had occurred between them.

When Dr Conrad saw the Plaintiff on 29 August 2005 he was of the opinion that she was unfit for "full on" work in her previous employment but thought she might be able to do 12 to 15 hours per week of light administrative or secretarial or similar work with restrictions on lifting weights over five kilograms and no lifting or reaching above shoulder level. He also recommended curtailment of computer work commensurate with her symptoms. When he saw her again on 11 April 2007 he re-iterated his earlier opinion on suggested work restrictions but added his opinion that the last five years of the Plaintiff's normal working life to age 65 would be curtailed by at least five years. When Dr Conrad saw the Plaintiff again on 24 July 2008 he reiterated these opinions on the Plaintiff's work restrictions.

When Dr Ellis saw the Plaintiff on 29 November 2005 he expressed the opinion that she was unfit for her pre-injury employment and was unfit for most forms of employment for light housework or its equivalent. With two years having passed since her injury he thought there was a degree of permanence in her condition. When Dr Ellis re-examined the Plaintiff on 1 May 2007 he reiterated that she was fit for light and moderate housework or its equivalent.

Dr Jones expressed no opinion on the Plaintiff's work fitness. I have rejected the opinions of Dr Zeman, Dr Cummine and Dr Walden on the issue of the Plaintiff's opined fitness for work

Dr Robertson expressed the opinion that the Plaintiff was clearly unfit for any employment as a result of her physical condition. From the viewpoint of her depression he thought that she was unable to work for more than one or two days at a time, less than 20 hours per fortnight, with reduced pace and erratic attendance. In my view the limited residual earning capacity identified by Dr Robertson and the other doctors here cited is theoretical, impractical and unlikely to be productive of mitigatory earnings.

The Plaintiff's treating general practitioner Dr Sherrell described the Plaintiff as being vulnerable to frequent and severe exacerbations in her baseline chronic pain which renders her unfit to return to her pre-injury duties. I accept Dr Sherrell's opinion in this regard. In my view, Dr Sherrell's opinion carries great weight because he has had frequent contact with the Plaintiff and has had the opportunity of reviewing and monitoring her condition over time.

I find that since the Plaintiff ceased work on 28 July 2004 she has remained totally unfit for her pre-injury employment or any other employment and will remain so.

Basis of assessment of damages for past loss of earning capacity

The Plaintiff has been off work in the period from 28 July 2004 until the commencement of the trial on 22 September 2008. This is a period of 216 weeks. I reduce the period of the claim for loss of earnings by 5 working days to 215 weeks in accordance with the requirements of Section 124 of the Motor Accidents Compensation Act, 1999.

The Plaintiff's 2002 and 2003 income tax returns were admitted into evidence as Exhibit "H" and Exhibit "J". These returns show that the Plaintiff's pre-injury gross income in these years was $24,464 and $24,798 respectively. The 2003 figure of $24,798 is the equivalent of $20,606.63 per annum net after allowing tax at the applicable tax scales and the 1.5% Medicare Levy, this is the equivalent of $396.28 per week net. In my view this figure represents an inadequate and an artificially low basis upon which to assess the Plaintiff's damages for loss of earning capacity from the date she ceased work until the date the trial commenced.

It appears from the workers' compensation payments printout that at the time she ceased work on 28 July 2004 her weekly earnings had increased to $560 per week gross. After allowing for the applicable rates of tax and the 1.5% Medicare Levy this is the equivalent of $457.21 per week net.

Mr Lidden SC submits that to assess the Plaintiff's claim for past loss of earning capacity at these rates over the entire period of over 4 years since she left work would have the effect of under-compensating the Plaintiff because, as he has correctly pointed out, since 2004 average weekly earnings for females have risen by 15% from $892 to $1,023 in the intervening period. Applying a 15% increment to the 23 November 2004 gross weekly rate of $560 per week this is the equivalent of $644 per week gross or $544.98 per week net after allowing for the applicable tax scales and Medicare Levy. The Defendant acknowledges that this latter rate is within the appropriate range for the assessment of past loss of earning capacity.

In my view such increases in rates of remuneration from November 2004 to date would have been gradual in their implementation and effect over that period of time so I propose to adopt an average of $457.21 and $544.98 over the period which reveals the figure of $501.09. I round this figure down to $500 per week net over the period claimed. I find that this sum is the appropriate measure by which to compensate the Plaintiff for her past loss of earning capacity. The loss of $500 per week net over 215 weeks is calculated at $107,500.

I assess the Plaintiff's damages for past loss of earning capacity in the sum of $107,500.

The parties have agreed that the Plaintiff has paid tax on the weekly payments she has received from the workers' compensation insurer in respect of her injuries sustained in the subject collision. It has been agreed that such tax payments amount to $17,030. I assess the Plaintiff's damages for the Fox -v- Wood component of her claim in the sum of $17,030.

The Defendant has submitted that the Plaintiff is fit for her pre-injury employment. Mr Lidden SC submitted that effectively, the Plaintiff has no remaining residual earning capacity. I accept the Plaintiff's submission in this regard. That submission is supported by the opinion of the Plaintiff's treating general practitioner, Dr Sherrell. His opinion, which I accept, is that the Plaintiff is unfit to return to her pre-injury duties. That submission is also supported by the opinion of Dr Robertson. Based on those opinions I find that the Plaintiff's unfitness for work will remain chronic and permanent. I find that the Plaintiff's future earning capacity has been adversely and permanently affected by her injuries and the related disabilities, and has been effectively destroyed. Given the nature and extent of the Plaintiff's ongoing injury related physical and psychological problems I find that the Plaintiff has no effective residual earning capacity. This should be reflected in damages for loss of earning capacity.

It is necessary for me to fix an appropriate figure which, but for her injuries, fairly represents the Plaintiff's future probable earnings rate.

I start from the proposition that the Plaintiff's pre-injury earnings rate was not truly reflective of her earning capacity. I see no reason why I should not adopt the measure of Average Weekly Earnings of Total Employees for Australia rather than the lower rate of Average Weekly Earnings for Females. I take this view for a number of reasons. Firstly, the Plaintiff's pre-injury situation seems to me to be outside the parameters that would seem to normally drive the difference between male and female earnings in that the Plaintiff has no children and therefore would have had no reason to work only part-time or intermittently as is often the case with young women upon whom pre-school child rearing responsibilities usually fall, to the detriment of their earning capacity. Secondly, the Plaintiff showed considerable skill, ability and initiative as an employee in her employment with Industrial Wipers in that she established a viable business for her employer in the South Coast region. She was assessed as being a good sales person and had a bright pre-injury personality. I find that these attributes are significant and positive labour market considerations, which in my assessment call for and attract remuneration at the higher rate. I believe that a prospective employer would tend to reward such proven attributes with a higher salary structure, which to my mind justifies using the higher rather than the lower statistical measure of average weekly earnings.

As a background yardstick to the assessment of future loss of earning capacity there is no issue that Average Weekly Total Earnings for Total Employees, Australia are $1,260 per week gross or $960 per week net after allowing for the applicable rate of tax and the Medicare Levy.

The projection of a loss of $960 per week net at 5% over 31 years to the end of the Plaintiff's 65th year (x 833.8) is $799,872. After applying a conventional 15% discount for potential adverse vicissitudes this yields $679,891.20.

I assess the Plaintiff's damages for future loss of earning capacity in the sum of $679,891.

Past loss of employer funded superannuation payments

Consistent with my finding that during the period of 215 weeks from 28 July 2004 until the trial the Plaintiff lost earnings in the sum of $107,500 net, it is necessary to assess the value of the loss of past employer funded superannuation benefits. The convention is that in the absence of actuarial evidence of that loss, 11% of the net sum awarded for past loss of earnings is taken to represent the loss for this head of damage. Accordingly, 11% of $107,500 is the equivalent of $11,825.

I assess the Plaintiff's damages for the value of past loss of employer funded superannuation benefits at $11,825.

Future loss of employer funded superannuation payments

Consistent with my findings in respect of past employer funded superannuation losses net it is necessary to assess the value of the loss to the Plaintiff of future employer funded superannuation benefits. I apply a similar convention of 11% of the net sum awarded for past loss of earnings to represent the loss for this head of damage. Accordingly, 11% of $679,891.20 is the equivalent of $74,788.03.

I assess the Plaintiff's damages for the value of past loss of employer funded superannuation benefits at $74,788.

The plaintiff makes a claim for the cost of future domestic or attendant care services. In order that such a claim be sustained the Plaintiff must satisfy the requirements of Section 128 of the Motor Accidents Act, 1999. There is no claim for past services although there is evidence that the Plaintiff's family have provided her with assistance from time to time.

The Plaintiff's estranged husband, Mr Lewis, gave evidence that prior to her injury the Plaintiff was able to participate in the physical work of the household which included painting, gardening and work of that nature. I infer from this evidence that prior to her injury the Plaintiff had no difficulty performing domestic tasks of all kinds without difficulty and without the need for assistance. In contrast, after her injury in the subject collision the Plaintiff stated that she could not perform her housework like she used to. She cannot wash the dishes properly. She said she could not function and just does what she can. She stated that she would be interested in paying for the heavy work to be done. She was referring to vacuuming and repetitive work that involved her neck. There was also evidence that she had difficulty grooming herself, doing her hair, doing up her bra, her buttons and attending to the task of dressing. I accept this evidence and find that this justifies her need for domestic care and assistance.

I find that the Plaintiff's ongoing neck, shoulder, right arm, back and reflex sympathetic dystrophy problems, together with her depression and chronic pain syndrome will in combination preclude her from properly attending to and carrying out her day to day housework, shopping, cooking and attending to ordinary household tasks and home maintenance tasks that she would normally have attended to herself if she were not injured.

In his report dated 25 July 2007 Dr Conrad offered the opinion that the Plaintiff was unable to properly attend to her housework and cooking on her own and would need about 6 hours per week of home care assistance. I accept that opinion as being a reasonable and appropriate insight into the Plaintiff's situation.

I infer and therefore find that the tasks, which the Plaintiff described, and the tasks to which Dr Conrad referred would readily occupy at least 6 hours per week. I therefore allow 6 hours per week for future domestic and attendant care assistance on an ongoing week-to-week basis. I am satisfied that uninjured, the Plaintiff would not have needed to have paid for such assistance.

The parties have agreed that the applicable rate for the assessment of this head of damage is $35 per hour. When $35 per hour for 6 hours per week, i.e. $210 per week is projected at 5% over 54 years this yields $208,467.

I assess the Plaintiff's damages for future domestic or attendant care at $208,467.

The likely cost of the Plaintiff's reasonable needs for ongoing treatment for her post-injury problems is difficult to estimate on the available evidence. Nevertheless it is necessary for an estimate to be undertaken for the purposes of a damages assessment. The evidence discloses that the Plaintiff has a need for treatment from within five basic treatment modalities, namely general practitioner consultations, consultations with a psychiatrist or psychologist, possible orthopaedic consultations and treatment, physiotherapy and medications of various types. I review these issues in the ensuing paragraphs.

The Plaintiff sees her general practitioner on about a monthly basis. I infer that this frequency of consultations is a reasonable pattern upon which to base an assessment that would allow for the future cost of monitoring her ongoing neck, back, arm and leg problems and to check on her chronic pain syndrome. It would also be reasonable to keep an intermittent check on the degree and progress of major depression to determine whether it is appropriate and timely to arrange for periodic assessment and treatment from a psychiatrist or a psychologist. Given that the Plaintiff has had a post-injury history of suicidal thoughts I believe it would be inhumane not to make an allowance for the cost of such consultations in an award of damages in her case. The Plaintiff would also have a recurring need for renewal of her prescriptions for Diazepam, Epilim and any antidepressant medications she may be advised to take from time to time. Exhibit "O" provides up to date evidence of the cost of such consultations at $60 per consultation. I make an allowance of $60 per consultation for 12 consultations per annum, i.e. $720 per annum.

I consider that it would be inappropriate and inhumane for the Plaintiff not to have provision made for the opportunity for regular intermittent consultations with either a psychologist or a psychiatrist to assist with the monitoring and management of her chronic pain syndrome and major depression especially since she has had suicidal thoughts in the past. There is also a need for intermittent professional monitoring of the appropriateness or need for prescriptions for psychotropic and neuroleptic drugs. Notwithstanding that the parties have not tendered any direct evidence of the cost of such consultations I infer from the payments made by the workers' compensation insurer as set out in Exhibit "O" that the cost of a consultation with a psychologist would be of the order of $181 per session. I infer from this that a consultation with psychiatrist would be slightly higher, at the specialist rate of $200 per session. Although no oral evidence was called on this issue and therefore there is no evidence as to a recommended frequency for such consultations, in the presence of a need for such treatment, I must nevertheless attempt quantification of this need. I believe that an allowance for an average regime of one such consultation every two months at an average cost of $190 per session would be an appropriate regime. I therefore allow $1,140 for future psychiatric and / or psychological consultations.

The evidence concerning the need for orthopaedic review has been left in an incomplete state. At page 6 of his report dated 30 July 2008 Dr Ellis points to the possible need for orthopaedic intervention in the form of arthroscopic surgery for the calcific tendonitis in the shoulder. The cost of such shoulder surgery was said to be attached to Dr Ellis' report but for some reason best known to the parties this evidence was not included in the tender bundle Exhibit "G". The indication for such intervention is noted by Dr Ellis to be complicated by the Plaintiff's depression. In addition to the shoulder condition the Plaintiff has chronic neck pain, back pain and reflex sympathetic dystrophy. It would seem to me to be reasonable to make an allowance for intermittent consultations with an orthopaedic and or a pain specialist for management of this condition as someone in addition to the general practitioner should take responsibility for overseeing these chronic conditions if only because the Plaintiff should not be left without access to such review and assessment of whether further treatment is required. The Plaintiff has elected not to call evidence as to the cost of such reviews. Having regard to the items of treatment expenditure by the workers' compensation insurer as is evident from Exhibit "O" I allow for the cost of one consultation per annum, which I estimate at $200 per annum.

Dr Ellis has identified the cost of physiotherapy at $70 per session. There is evidence that the Plaintiff's muscles have become deconditioned by inactivity. The Plaintiff also experiences chronic neck, shoulder and back pain. Although there is no direct evidence as to a recommendation for long term physiotherapy, given that the Plaintiff's physical problems are chronic and are associated with chronic pain, I believe it would be reasonable to allow for five physiotherapy sessions per annum to supervise an exercise regime for the Plaintiff directed at palliative management of these issues. I make an allowance for future physiotherapy sessions in the sum of $350 per annum.

The Plaintiff takes Diazepam tablets 3 times per day for her muscle spasms. The medical reports also disclose that she takes Epilim for nerve pain. She also takes antidepressants intermittently. Antidepressants have been prescribed in view of her past suicidality although there are periods when she has ceased taking them for a time because of side effects. In addition, the Plaintiff takes Panadeine Forte and Panadol for pain relief. The Plaintiff did not call or tender any evidence of the cost of such a medication regime but that circumstance does not mean I should not make an allowance and attempt to identify a reasonable amount to cover the likely cost of the Plaintiff's future medication needs. I believe $75 per month or $900 per annum would be a reasonable and appropriate allowance in the circumstances.

The foregoing allowances for future treatment costs total $3,310 per annum. I have not included any lump sum allowance for possible future shoulder surgery even though the Plaintiff said she might have shoulder surgery in the future. The evidence indicates that the Plaintiff's condition is chronic, ongoing and unlikely to improve in the foreseeable future. In these circumstances I believe it is appropriate to allow the sum of $3,310 per annum or $63.65 per week over the Plaintiff's statistical life expectancy of 54 years at 5% (x 992.7) which yields $63,189.17. I believe it would be inappropriate to significantly discount this sum other than by rounding it down to $60,000, recognising that the calculation is not capable of being, nor is it intended to be, precise.

The majority of the Plaintiff's out-of-pocket expenses have been paid by the workers' compensation insurer of the Plaintiff's employer. The total sum for such payments made by that insurer is $18,834.92. In addition to the out-of-pocket expenses paid by the insurer the Plaintiff has made a claim for some additional amounts totalling $1,515.90. These comprise a Medicare charge for payments made by the Health Insurance Commission (Commonwealth) in the sum of $484.00, a payment by NRMA Insurance Australia Limited in the sum of $50.00 and massage therapy expenses paid for by the Plaintiff totalling $981.90. These additional amounts total $1,515.90. I accept that these additional expenses legitimately form part of the Plaintiff's reasonable treatment expenses and I allow the additional sum of $1,515.90. The total of these two amounts is $20,350.82. I assess the Plaintiff's reasonable out-of-pocket expenses in the rounded-off sum of $20,350.

My assessment of the Plaintiff's damages is summarised as follows:

(a) Non-economic loss $265,000 (b) Past loss of earnings $107,500 (c) Fox -v- Wood $17,030 (d) Future loss of earning capacity $679,891 (e) Past loss of employer funded superannuation benefits $11,825 (f) Future loss of employer funded superannuation benefits $74,788 (g) Future domestic or attendant care $208,467 (h) Future treatment $60,000 (i) Past out-of-pocket expenses $20,350 Total $1,444,851

I order: (a) A verdict and judgment be entered for the Plaintiff in the sum of $1,444,851.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION: Lewis v Shimokawa [2008] NSWDC 244

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Judgment (65 paragraphs)

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Cases Cited (7)