Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396
Norman v Spiers (2004) 155 ACTR 8
(2004) 43 MVR 186
Source
Original judgment source is linked above.
Catchwords
Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396
Norman v Spiers (2004) 155 ACTR 8(2004) 43 MVR 186
Judgment (27 paragraphs)
[1]
A. Introduction
In June 2011 Cherry Logar was injured when she drove into a controlled intersection facing a green light and collided with an ambulance. The circumstances of the collision, and the damages she suffered as a result, are the principle issues in the proceedings.
[2]
B. The accident
Mrs Logar's account was that on 3 June 2011 she was driving south in the second most easterly of four lanes on Castlereagh Rd, Penrith (lane 2 of lanes numbered 1 to 4 from the kerb) towards the intersection with High St, also named the Great Western Highway. She was travelling at about 50km/h, and increased her speed so that she reached 55km/h about 10m short of the intersection.
Nearing the intersection, lanes 3 and 4 on Castlereagh Rd are dedicated right turn lanes only. Mrs Logar recalled that as she approached the intersection the traffic lights were green, with a red arrow for the right turning lanes. She could not recall any cars waiting in any lanes, nor could she recall the position of any other vehicles save for one car in her lane about 20m ahead of her, which she said proceeded through the intersection. Her window was down about 10cm and her radio was off. She heard no siren nor saw an ambulance or any flashing lights. She acknowledged that if an ambulance's lights were flashing and its siren was on, she should have noticed them.
Just after entering the intersection, Mrs Logar's car collided with an ambulance. Her vehicle came to a stop in the intersection near the eastern pedestrian crossing on High St, near the northern most west bound lane of High St.
Mrs Logar gave an account of a conversation with the ambulance driver, Megan Riches, where Mrs Logar said: "I'm sorry, I didn't see you. Help, I'm pregnant with twins," and Ms Riches responded: "No, it's my fault. I didn't see you."
The content of this conversation was changed slightly by Mrs Logar in cross-examination (T155/28-36), where Ms Riches is asserted to have said, "I'm sorry. I didn't see you".
After the accident, Mrs Logar was transported by another ambulance to Nepean Hospital. Ms Riches was also in the vehicle. Mrs Logar gave evidence that she overheard a conversation between the new ambulance driver and Ms Riches. The driver said: "Where were you going?" Ms Riches said, "High Street". He said, "How fast were you going?" She said: "You know how fast these things can go zero to 60".
The evidence of Mrs Logar was similar to a statement she gave to the police on 30 June 2011, about four weeks after the collision, where she stated that Ms Riches had said, "No it was my fault I didn't see you," and also, in the ambulance, Mrs Logar had said, "I was doing about fifty to fifty five, my speed was increasing," and Ms Riches is asserted to have said, "I was at a red light I went from zero to sixty, you know [how] fast these can go".
Ms Riches gave a different account. She had received an assignment to attend a 1B emergency. This is an ambulance code indicating that the assignment involves an unconscious patient with breathing difficulties. It is the second highest level of emergency. She was travelling west on High St near the relevant intersection when she received the call to attend the emergency. She turned around about 500m west of the intersection, activated the flashing lights and siren of the ambulance and proceeded east towards the intersection.
Ms Riches said that as she approached the intersection she switched the siren from the longer "wailing" sound to the "dog bark" or "yelp" sound. There was traffic stopped at a red light in the two general traffic lanes heading east on High St so she moved to her left and stopped in the bus lane at the lights.
The bus lane was the left hand or most northerly of the three lanes. She checked the traffic on her right and, it being stationary, after about ten seconds she moved slowly against the red light across the northbound traffic lanes. She stopped in front of the stationary vehicles in the two right hand turn lanes (lanes 3 and 4) on the eastern side of Castlereagh Rd for a further 10 seconds. She then continued at 1 to 2 km/h passing in front of a vehicle stopped at the front of the second lane from the east or kerb (lane 2), the first southbound lane. Ms Riches looked to lane 1 and found no movement that she could see in that lane. She moved forward at 1 to 2km/h, putting the nose of her ambulance out into lane 1, and the collision occurred. At no stage prior to the collision were the ambulance's lights or siren switched off. Ms Riches denied making any admission after the collision to Mrs Logar as to responsibility for the accident or not seeing Mrs Logar's car. She also denied that she had any conversation in the other ambulance about the acceleration of her vehicle.
Gavin Whaites and his partner, Lynn Tanner, also gave evidence. Mr Whaites was a driver facing south in the third lane from the kerb (lane 3), a right hand turn lane. He gave evidence largely corroborating Ms Riches' account: that Ms Riches stopped in the bus lane, that her siren and lights were on at all times, that the siren sound changed before she entered the intersection, that she proceeded slowly "ten to 15 tops", that all cars had stopped, that there was a vehicle in the southbound lane 2 next to him on his left, and that as the ambulance passed and he looked up to check the traffic lights governing his lane the collision occurred.
Ms Tanner was in the rear seat behind Mr Whaites. Her evidence also largely corroborated Ms Riches' account of the ambulance regarding its lights and siren, stopping in the bus lane at the traffic lights and proceeding slowly across the intersection including in front of stationary vehicles on the southbound side. She said that there was a stationary vehicle, a "white van or truck" in lane 2 to her left.
Some further support for the operation of lights and sirens is found in the medical reports. The plaintiff's orthopaedic expert, Dr James Bodel, recounts in his report of 15 July 2012 that Mrs Logar gave a history that the ambulance proceeded into the intersection with its lights and sirens activated. In a subsequent report he said that this account was confirmed by Mrs Logar on 20 May 2013. Although these statements were not put to Mrs Logar in cross-examination, they remain evidence of what was seemingly an earlier recollection of hers. I also note that she made no complaint in conversation with Ms Riches or in any of her accounts to the various medical experts about the absence of lights or sirens, although, as noted above, in her police statement Mrs Logar said she "could not see any flashing lights or hear any sirens".
The detailed evidence by Ms Riches, Mr Whaites and Ms Tanner in their testimony (admittedly not all of which is in the brief handwritten notes in the police notebook), the independence of Mr Whaites and Ms Tanner as witnesses, the circumstance that Ms Riches was recounting what she did, not merely what she saw, the absence of any recollection about stationary cars from Mrs Logar, and the general consistency between the accounts of Ms Riches, Mr Whaites and Ms Tanner persuades me that their accounts are more reliable than Mrs Logar's as to the position and movement of the vehicles at the time of the collision. In particular, I find that lanes 2, 3 and 4 on the eastern side of Castlereagh Rd were blocked by stationary vehicles and that Mrs Logar was in lane 1 as she entered the intersection immediately before the collision. I also accept that the ambulance's lights and siren were activated at all relevant times, and that Ms Riches proceeded slowly and cautiously across the intersection.
Regarding the asserted conversations by Ms Riches about the speed of her ambulance, the version given by Mrs Logar in the witness box is somewhat ambiguous and, at least potentially, different in meaning from the account in her police statement. Mrs Logar was upset at the time of her travel in the second ambulance, and in pain. Recollections of oral statements, particularly self-serving recollections, are a less than reliable way of determining what occurred: c.f. Watson v Foxman (1995) 49 NSWLR 315 at 318-319. But most importantly, the words attributed to Ms Riches by Mrs Logar were denied by Ms Riches, were unlikely to be said by an experienced person in Ms Riches' position after an accident, and were inconsistent with the facts testified by Mr Whaites and Ms Tanner, as well as Ms Riches and the police notebook record of Ms Riches' statement. For these reasons, I do not accept that a conversation about speed occurred in the terms asserted by Mrs Logar.
It follows that I find that Mrs Logar's memory was deficient in her failing to recall any stationary cars, and that her recollection was wrong in respect of the sounding of the siren, the flashing of lights and the movement of the ambulance, the position of her car and what lane it was in as it entered the intersection, and the alleged second conversation of Ms Riches. Whether Ms Riches said she was sorry and that she did not see Mrs Logar, as Mrs Logar asserts but Ms Riches denies, is of little help in determining the disputed elements of the collision.
In these circumstances, and also because it conflicts with Mr Whaites' and Ms Riches' accounts, I am unpersuaded of Mrs Logar's recollection of a car 20m in front of her proceeding into the intersection.
I have found that Ms Riches proceeded slowly and cautiously through a red light at a controlled intersection while having to deal with a high level emergency. She says she checked the final, easterly lane before moving into that lane, and saw no movement. I accept that evidence.
Some limitations on Ms Riches' check of the traffic in the most easterly lane of Castlereagh Rd are apparent. Her vision of lane 1 must have been impaired because of the presence of the vehicle in lane 2 and the circumstance that the nose of her ambulance vehicle extended into lane 1 before she had an uninterrupted view down the lane. She was driving a Volkswagen Caddy ECP ambulance: the front of her ambulance protruded well in front of the windshield and thus in front of her.
Mrs Logar gives no evidence about changing lanes, but I have found that she proceeded into the intersection from lane 1. Her evidence was that she approached the intersection in lane 2. Either she was always in lane 1, or she changed into lane 1 moving past the car or cars in lane 2 as she travelled towards the intersection. Both alternatives are contrary to her evidence. The latter alternative might explain why Ms Riches did not see Mrs Logar as Ms Riches proceeded into the intersection.
[3]
C. Conclusion on liability
Mrs Logar's primary contention was not that it was negligent for the ambulance to enter the intersection, but that it was negligent to enter the intersection at speed without lights and sirens. However, I have found that that did not occur. Her primary case of negligence must be dismissed.
In the alternative, Mrs Logar, through her counsel, submitted that Ms Riches was negligent even if Ms Riches' account was accepted. She said Ms Riches was negligent in not proceeding in a more southerly position into the intersection, to improve her view of the traffic in lane 1.
As Ms Riches proceeded in front of Mr Whaites' car, the distance between the side of Ms Riches' ambulance and the front of Mr Whaites' car was about a car's length comprising the width of the pedestrian crossing and its surrounds. For Ms Riches to have moved to the south throughout that journey into the intersection would only improve her angle of view of lane 1 marginally. It may have improved Mrs Logar's view of the ambulance, although Mrs Logar's failure to see the ambulance (or any stationary cars) before the collision may indicate that this would not have been significant.
Any travel by Ms Riches further to the south as she entered the intersection would involve the ambulance travelling across more lanes of traffic, blocking other lanes and increasing the risk of a collision. At the stage of entering the intersection, there was no identifiable utility in Ms Riches travelling into other more southerly lanes. Ms Riches gave the following evidence:
"Q. Given that you only had that one lane of traffic to keep your eye on.
A. Yes.
Q. There's no reason is there, why you couldn't have moved across the intersection towards the south, even onto the incorrect side of the roads so as to give yourself the best opportunity of being able to see where the traffic was coming through in that lane?
A. When I was stationary in front of the right hand turn lanes, I only had those two lanes to move across. When I started to move I did move across, started to move across. So I don't know how I would've turned any sharper to get a better view, given that when I was hit, the front foot of my car was in the lane, so I, I couldn't have got a view.
Q. But you knew that there was only that one empty lane before you put yourself in the position in front of the turning lanes, didn't you?
A. I didn't know. When I stopped in front of the turning lanes, I didn't know what I was going to find and when I looked it was clear and when I looked beyond that lane, I didn't see any movement. And that's what led me to believe that that lane was clear and that is why I proceeded." (T362/5-23).
Lessening the risk of collisions would be achieved by diminishing rather than increasing the number of lanes of traffic with which Ms Riches interfered, even if traffic in those lanes was stationary as she travelled into the intersection. I do not accept that a more southerly approach would have been a more reasonable course for Ms Riches to take as she entered the intersection
Once Ms Riches came to the southbound lane 1, she could not improve her viewing angle down lane 1 without the front of her vehicle entering the lane. Turning to her right, to the south, away from the traffic lane of concern to her would not improve her view of lane 1 but would require her to look over her left shoulder, behind her, and would still involve encroaching on the lane. It would be an unorthodox and unexpected manoeuvre and thus might increase the risk of collision including with those behind her in eastbound lanes should the lights change. It would also likely increase the time it would take for her to cross the intersection. I do not accept that moving to the south as Ms Riches proceeded across lane 1 was an appropriate manoeuvre, nor was such a manoeuvre at that point in her journey specifically submitted by the plaintiff to be negligent.
Section 5B(1)(c) of the Civil Liability Act 2002 ("CLA") requires an assessment of whether a reasonable person in Ms Riches' position would have taken other or additional precautions to what she took. The statutory considerations listed in s 5B(2) include consideration of the probability and likely seriousness of harm. The possibility of serious harm was present, but it was lessened by the ambulance moving a minimal distance into the lane, by there being some space in the intersection for a moving vehicle in lane 1 to swerve to avoid a collision with the ambulance, by Ms Riches having checked the lane for movement, and by her travelling with her lights and siren on.
The burden of taking precautions is another statutory consideration. Other precautions resulting in delay would burden the injured or ill person to whom the ambulance was travelling to assist. The final consideration in s 5B(2)(d), the social utility of urgent and speedy responses by ambulances, is readily apparent.
This was not a case of a failure by Ms Riches to keep a proper lookout, or driving at an excessive speed (cf Turkmani v Visvalingam [2009] NSWCA 211; Warth v Lafsky [2014] NSWCA 94). But under s 5B of the CLA, Ms Riches was required to take reasonable care for the safety of other road users: Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396 at [33], and to "exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections" (Turkmani at [28], Warth at [56]).
Section 5B(2)(c) and (d) of the CLA indicates that, in the circumstances of this case, the real question is whether Ms Riches should have avoided the risk of harm and remained stationary, not putting the nose of her vehicle into lane 1 until such time as either a car in lane 1 had pulled up at the intersection (which would preclude any car from proceeding into the intersection from that lane) or until the lights had changed so that she could proceed through on a green light. This was, however, not the case put by the plaintiff. In any event, whilst either of those options would have been preferable in ordinary circumstances, this was an emergency situation. It did not, I think, allow Ms Riches the option of waiting for the lights to change or the lane to block. As much as she was able she checked for movement in the lane and she edged out the nose of her vehicle partly across the lane. That conduct resulted in the collision of the front corner of both vehicles when Mrs Logar, who increased her speed to near the speed limit, failed to notice the ambulance's lights or siren, failed to notice the surrounding stationary vehicles, and who perhaps changed lanes as she passed stationary vehicles to enter the intersection.
In my view, the action Ms Riches took was a reasonable course to take bearing in mind the emergency situation she faced and which might gravely worsen if she had made no attempt to cross the final lane of traffic.
For these reasons, I do not accept that Ms Riches' conduct was negligent.
[4]
D. Contributory negligence
If I am wrong and Ms Riches was negligent in failing to wait until lane 1 was blocked or the light changed, or in failing to proceed in a more southerly direction, a question arises about contributory negligence. Mrs Logar's failure to see the ambulance's lights and hear its siren and her failure to keep a proper lookout and to observe the surrounding stationary vehicles amounts to a failure to take sufficient care for her own safety.
Mrs Logar submits that any allowance for contributory negligence should be minor. She submits that Ms Riches proceeded across a lane without checking that it was clear; that Ms Riches had in mind as she entered the intersection the potential for harm of the kind that eventuated, and that she created that potential for harm by travelling into the intersection on a red light, whilst Mrs Logar has merely been guilty of some inadvertence.
The defendant pleads ss 5R and 5S of the CLA ([4] of the amended defence) that contributory negligence is a complete defence, although that submission was only faintly made (see T563). In my view, this is not a case where the contributory negligence of Mrs Logar is so grave so as to justify a finding of 100% contributory negligence under s 5S.
The defendant alternatively submits that the conduct of Mrs Logar is the more culpable and warrants her accepting a greater responsibility: she failed to notice the ambulance's lights and siren and the stationary vehicle in lane 2 and she was accelerating prior to entering the intersection. Reference was made to the decision in Norman v Spiers (2004) 155 ACTR 8; (2004) 43 MVR 186; [2004] ACTCA 25, where 50% contributory negligence was ordered in circumstances where the plaintiff failed to keep a proper lookout and the defendant police officer was travelling at an excessive speed: 110km/h down a bus lane. It was submitted that the failings of Mrs Logar were much greater because Ms Riches took precautions, all other traffic was frozen, and her lights and siren were on for some time, and that it is just and equitable that the plaintiff should be 70% responsible.
If Ms Riches was found to be negligent, I would assess the level of Mrs Logar's contributory negligence at 60%. Her failures are lessened by the circumstance that she was facing a green light, but on the facts that I have found, her negligence was greater than any negligence that could be found against Ms Riches.
[5]
E. Damages
Lest I am mistaken on liability, I propose to make some brief findings on damages (see e.g. Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7]-[8]).
[6]
Pre-accident condition
Mrs Logar is now 35 years old. In 2001 she dislocated her left shoulder. She obtained a Bachelor of Arts degree in Design in 2003 although for some years prior had been employed as a Bar and Gaming Attendant. She used her design knowledge in her employment in 2004 as a logo embroiderer and subsequently as an Apprentice Sign Writer, but she returned to employment as a Bar and Gaming Attendant later in 2004 and remained in that employment until 2007. In December 2007 she gained employment as a train guard. Mrs Logar gave evidence that she liked the job as it gave her a lot of time to read on the train (T36/7-11).
Mrs Logar became pregnant in about February 2010. By June 2010 she had made an election with her employer, Rail Corporation New South Wales ("RailCorp"), because of her pregnancy with her son, to take "no safe work" leave: as RailCorp did not offer her alternative duties safe for a pregnant woman, she was entitled to elect to remain at home and receive her full-time base rate of pay.
Opting to take "no safe work" leave meant that Mrs Logar remained off work from May until November 2010 on full base pay. This period when she was not on active duties in her employment was not referred to in her chronology but was addressed in her evidence in chief. During this period her partner, Jonathon Logar, was employed full-time, working five to six days per week as an electrician.
In October 2010 Mr and Mrs Logar married and Riley, their son, was born in November 2010. Mrs Logar opted to take maternity leave which included six months on half pay, then annual leave, then six months or more leave without pay. However, within about three months of Riley's birth, Mrs Logar became pregnant with twins. One consequence of the pregnancy was that it again enlivened an entitlement, at about 12 weeks (or at about the time when the period of six months maternity leave at half pay had expired), for Mrs Logar to again take "no safe work" leave on full base pay during the term of the pregnancy. Although Mrs Logar had decided to take that course, before that decision was implemented the collision occurred.
[7]
After the accident
In the collision Mrs Logar felt impact on her elbow and head, and was "sore all over", especially her left foot, right elbow and neck. She remembered that she remained in her car for perhaps half an hour until two men pulled her door open.
Mrs Logar was taken by ambulance to Nepean Hospital where she underwent x-rays of her right arm and foot. She was found to have bruising on her head, foot and shoulder, and chest burning from the seat belt. For a time she could not move her right shoulder and claimed to have dislocated it in the accident and slipped it back in about half an hour later, although that is not reflected in the medical reports or in the histories recorded by the doctors. Whilst I am not persuaded that Mrs Logar's injury to her shoulder and upper arm in the collision included a dislocated shoulder, as she came to believe, that difference is of little significance.
Mrs Logar's condition after the accident was largely confirmed by Mr Logar. In the fortnight following the accident, she was emotional, anxious, in shock, terrified, in disbelief, worried about her son, Riley, and her pregnancy, and had chest and shoulder pain, panic and fever. She was readmitted to Westmead Hospital on 14 June 2011. Placental protein levels indicated a possible concern for one of her in utero twins. She was discharged after three days having been diagnosed with biliary colic and pancreatitis. Her anxiety continued. She felt a lump in her throat and found it hard to breathe, and that recurred from time to time. She returned to driving although she was anxious about using an unfamiliar hire car at first.
Mrs Logar changed over from maternity leave to "no safe work" leave two weeks following the accident, in accordance with her pre-accident intention. At that time, she was a full-time mother caring for Riley, and carrying the twins. Mr Logar was working six days per week.
Mrs Logar gave evidence that before the accident she did about 80% of the housework inside the house whereas Mr Logar took care of the yard outside. She did the shopping, cleaned the bathrooms, washed clothes, prepared meals, vacuumed, sometimes mopped the floor and she would clean up after dinner. Mrs Logar "pretty much" provided all the care for Riley although Mr Logar would play with him and change his nappy.
After the accident, Mr Logar took over the shopping, washing and housework, although Mrs Logar continued to care for Riley.
The twin girls were born in the 35th week of Mrs Logar's pregnancy in November 2011. Whilst there were apparently no difficulties with the first pregnancy, the second presented challenges. After the hospital stay for pancreatitis, Mrs Logar returned to hospital in September 2011 because of complications with her pregnancy which were apparently unconnected with the accident and remained there almost permanently until a few days after the birth of the twin girls. When she went into hospital in September 2011, an organisation called Sydney In-Home Care provided full-time care for Riley free of charge to Mrs Logar, as the care was funded by Centrelink.
Mrs Logar returned home shortly after the birth of the twins. She missed Riley and thereafter "spent a lot of time" with him. The twins remained in hospital for three weeks.
By January 2012 the twins were at home and Mrs Logar was under the care of a psychologist named Patrick Marando. She found it hard to bond with the twins. As a result of his recommendation, Sydney In-Home Care continued to provide care for the children, especially the twins, free of charge.
Mrs Logar commenced taking painkillers from or shortly before the birth of the twins. In the months thereafter, she had physiotherapy, an x-ray, an ultrasound and a steroid injection on her right shoulder. Mrs Logar was also concerned about her appearance after the twins' birth and considered getting a referral to a plastic surgeon. By 2013 Mrs Logar was taking significant dosages of Panadeine Forte (two to four per day), Neurofen (two to four) and Tramadol (two to three per day). She gave evidence that she found herself crying a lot, short-tempered and experiencing a lump in her throat, and that she used the painkillers principally to remove anxiety.
Mrs Logar suffered another motor vehicle accident in May 2012 although no physical injuries resulted.
In 2013, apparently due to the combinations of medication she was taking, Mrs Logar would have significant highs and lows, and on one occasion of a very high and happy time, she said she attended a Myer store with her children and departed with some toys without paying. On 4 June 2013, she underwent a right shoulder arthroscopy and anterior stabilisation.
Mrs Logar remained on maternity leave until 17 November 2013 (T110/25-26).
She was then due to return to work. To do so she needed to undergo and pass physical and psychometric testing. She failed both tests in November 2013. Mrs Logar was advised of her results in February 2014, and on 24 March 2014 she chose to resign employment with RailCorp.
Sydney In-Home Care ceased providing free child care for the twins in about December 2013. Since then Mrs Logar's mother has taken over a significant amount of the childcare and domestic work for four days a week: feeding the children, changing nappies, attending to the children's clothes and baths, sweeping floors and making beds, whilst Mrs Logar remained afflicted with anxiety and depression. In 2014 and 2015 Mrs Logar found herself unable psychologically to handle the challenge of caring for the children and found herself feeling aggressive if the children cried or were "whiney or whingey". She would hyperventilate and have panic attacks.
Mrs Logar's mother would take the twins home with her after childcare on Wednesdays and mind them until they were returned to childcare on Fridays. Mrs Logar would then collect them that afternoon. In early to mid-2014 Mrs Logar commenced a Diploma of Visual Arts. She said it was so as to be able to secure publicly-funded child care. She continues with the course presently.
Mrs Logar was admitted to Fountainhead Retreat and Educational Centre on 31 December 2015 until 7 January 2016 and this has helped her to have a more structured day, especially rising early, but home life remains problematic.
Mr and Mrs Logar have slept separately for the past 18 months and the relationship was described as difficult for both.
Mrs Logar made reference to one friend in a mothers' group, but otherwise has limited social interaction. She is lonely and sometimes finds herself unable to get out of bed at least until late in the morning. She says she could not work as a train guard because of the expressed need to be physically and mentally aware and present with high concentration. She also found it difficult to lift her right hand above her head. She cannot handle picking up Riley with the girls in the car. She trusts her own driving but gets anxious in the car with Mr Logar. Although her mother is helpful, there are some personality challenges between them.
Assessing the condition of Mrs Logar during the period since the accident is not without complications. Not only are there disagreements between the different medical experts, but some of the experts disagreed with their own earlier views, sometimes in the same report. None were called to give evidence.
For example, Dr Peter Klug, a forensic psychiatrist retained by the plaintiff as an expert witness, saw Mrs Logar on 1 May 2012 and reported on 3 October 2012 a diagnosis that Mrs Logar suffered an:
"acute adjustment disorder with mixed features of anxiety and depression for less than six months following the accident…Her symptoms…have substantially resolved…Her adjustment disorder has in my view resolved. Her psychiatric prognosis is good."
Dr Klug also appeared to attribute Mrs Logar's marital difficulties to having three small children at home.
However, when Dr Klug saw Mrs Logar 18 months later in November 2013 for reassessment, in a report dated 20 January 2014 Dr Klug noted his earlier findings twice, although he struck through and initialled the second reference to them. The reference struck through was nevertheless quoted in a third report. I take that to mean no more than that those earlier findings are no longer current and that her condition had deteriorated to a "chronic major depressive disorder with melancholic feature".
The report was difficult to follow in respect of suicide risk. Dr Klug recorded that Mrs Logar has "suicidal intent at one point only", "although she described no suicidal intent" and "no current evidence of suicidal intent". He also recorded that she suffers from "suicidal ideation" and "must be regarded as representing a potential suicide risk".
Mrs Logar's treating psychologist in the 13 months to January 2013, Patrick Marando, reported on 11 September 2013 that Mrs Logar's post-traumatic stress disorder symptoms had "settled and apart from fear whilst driving did not presently [a]ffect her". He also concluded that her ongoing depression and anxiety "was mainly due to family issues and difficulties coping with her children". He gave no subsequent reports. He last saw her in January 2013.
Dr Philip Truskett, a surgeon retained by the defendant, consulted with Mrs Logar in April 2012 and reported her as self-caring with support required mainly for her children.
The initial report of Dr Klug and the report of Mr Marando (and also Dr Truskett's report) indicate that Mrs Logar's condition improved throughout 2012 into 2013. But it had worsened by November 2013 when Dr Klug's second consultation occurred.
Dr Klug adhered to his January 2014 diagnosis when he reported on 26 October 2015 in respect of Mrs Logar's condition. He regarded the motor vehicle accident to be the cause of her major depressive disorder.
Dr Robert Lewin, a psychiatrist retained by the defendant, initially doubted that the evolvement of the "mixed mood disturbance" in late 2013 was causally related to the car accident. He considered a MAS report of Assessor Baker of 13 March 2015 referring to a serotonergic syndrome arising from the combinations of medication taken by Mrs Logar as a consequence of the motor vehicle accident. The assessor had concluded that this syndrome had developed into the anxiety and depression constituting Mrs Logar's permanent psychiatric impairment. Dr Lewin accepted this conclusion as possible.
In his final report dated 3 December 2015, Dr Lewin accepted that although there may have been a "degree of premorbid vulnerability" in Mrs Logar to the melancholic depressive episode, nevertheless, the Serotonin Syndrome from the post-accident medication "could account for the manic symptoms" and that "the mood symptoms…were causally related to the accident".
The defendant did not press a case that Mrs Logar's psychiatric condition was unrelated to the accident.
Accordingly, I accept that the accident materially contributed to Mrs Logar's present psychiatric condition.
So far as her right shoulder is concerned, whether the motor vehicle accident caused a dislocation or some lesser injury such as a subluxation and consequence instability is of little moment. Dr Brian Noll, the orthopaedic surgeon retained by the defendant, (but not Dr Seamus Dalton, the defendant's rehabilitation specialist) accepted that Mrs Logar's right shoulder instability was attributable to the accident even though he doubted that it was dislocated at the time. The orthopaedic experts refer to conclusions of a Professor Murrell who treated Mrs Logar's shoulder injury, although no report of the professor was included in the evidence. Dr Bodel, the orthopaedic surgeon retained as an expert by the plaintiff, concluded in June 2014 that after surgery a year earlier, the shoulder was "much more stable and it has not subluxed or dislocated" although she still took medication occasionally and it sometimes interferes with her sleep.
In these circumstances, I find that the mild impairment of the right shoulder was related to the motor vehicle accident.
[8]
Quantum of damages
The following is a table of the quantum of loss particularised by the parties, although there were some concessions made about it in submissions:
Head of damage Plaintiff ($) Defendant ($)
(a) Non-economic loss 300,000 160,000
(b) Past out of pocket expenses 30,190 30,190
(c) Future out of pocket expenses 100,000 20,000
(d) Past economic loss 135,850 50,000
(e) Past superannuation 14,943 5,500
(f) Future economic loss 827,288 200,000
(g) Future superannuation 107,547 26,000
(h) Past domestic assistance Nil
3 June 2011 to 25 November 2011 9,450
January 2012 to 28 December 2013 41,202
January 2014 to date 41,958
(i) Past 15B (care of dependants) 29,970
January 2012 to 28 December 2013 191,295
January 2014 to date 149,850
(j) Future domestic assistance Nil
Commercial care 348,408
Gratuitous care 252,595
(k) Future 15B 46,656
73,805
50 hours x $29 x 50.9 (1 year)
341,980
Then 30 hours x $29 x 412.9 (10 years) x 0.952 (deferred for 1 year)
33,726
Then 20 hours x $29 x 99.4 (2 years) x 0.585 (deferred for 11 years)
[9]
(a) Non-economic loss
Mrs Logar claims $300,000 while the defendant submits that the appropriate sum is $160,000 for this head of damage. Part of this disagreement is due to whether Mrs Logar's condition resulted solely from the accident or partly from the birth of the twins.
The defendant accepts that Mrs Logar's condition partly results from the accident. In that event, as the accident has materially contributed to her condition, there is no basis for a deduction because of the contribution of another extraneous factor.
On the other hand, I am not persuaded that Mrs Logar's pre-accident condition fairly represents the condition against which her present condition must now be compared. The birth of the twins impacted on her condition irrespective of the car accident. Dr Klug noted her dissatisfaction with her physical changes from the birth of the twins, including a claimed weight of 95 kgs after their birth (35 to 40 kgs above her normal weight). She was also certified as suffering from post-natal depression by her general practitioner in letters in 2012 to Sydney In-Home Care.
Further, any non-economic loss damages should not include damages awarded for lost capacity to provide domestic services for her family under s 15B of the CLA, by reason of s 15B(5)(b). Absent this provision, her inability to care for her children would be a significant component of her non-economic loss. It is considered separately below, and would result in double compensation if it were awarded under this head. Nevertheless, Mrs Logar must be compensated for her psychiatric condition, her shoulder injury, and the treatments and suffering associated with them, including the adverse impact those disabilities have had on her relations with her children and husband. I would award the sum of $200,000 for damages for non-economic loss arising from the accident.
[10]
(b) Past out of pocket expenses
Past out of pocket expenses are agreed at $30,190 (T463/50).
[11]
(c) Future out of pocket expenses
There is uncertainty regarding whether Mrs Logar will be benefitted by further treatment, or whether her condition is permanent. Mrs Logar seeks $100,000 and the defendant allows $20,000.
Dr Ronald Thomson and Dr Bodel, both retained by the plaintiff, give evidence about treatment costs for Mrs Logar's shoulder involving physiotherapy and medication. Dr Bodel's report suggests $800 for physiotherapy and $300 per annum for medication, whereas Dr Thomson suggests $2,400 for physiotherapy, $3,000 for medication and also postulates a need for general practitioner visits in respect of her shoulder. I would allow $5,000 for future treatment and medication.
Treatment in respect of her psychiatric condition is recommended by Dr Klug. In 2014 Dr Klug recommended admission to a psychiatric unit for four to six weeks (a cost of $28,000 to $42,000), although Mrs Logar did not undergo this treatment but instead elected to attend the Fountainhead Retreat at a lower cost. Dr Klug repeated this recommendation in his final report.
Dr Klug also recommended about $10,000 of psychiatric and psychological counselling. I would allow the sum of $35,000 for the inpatient care, and $10,000 in respect of future counselling. With $5,000 allowed for her shoulder treatment, I would allow a total of $50,000 in respect of future medical expenses.
[12]
(d) Past economic loss
Mrs Logar claims past economic loss of $135,850 (see table below), based upon the assertion that absent the accident, Mrs Logar would have worked every second week in 2013. Effectively, Mrs Logar would be going back to work at half pay during 2013.
$
26 November 2012 to 26 November 2013 at half pay (52 weeks x $550 - $21,450 (wages received from 26 November 2012 to 1 September 2013 (39 weeks)) 7,150
27 November 2013 to date at full pay (117 weeks x $1,100) 128,700
Total 135,850
[13]
The defendant contends that Mrs Logar would have been on maternity leave up until 17 November 2013 and thus suffered no economic loss until after that date. The defendant also submits that after maternity leave Mrs Logar would have returned to work on a split shift or job share arrangement and would have worked half the hours and thus earned half the income, $26,000 per year ($500/week x 52 weeks), which over the course of two years (2014 and 2015) would justify an amount of $52,000.
Mrs Logar accepted that she may have applied for an additional period of perhaps 12 months maternity leave. Documentary evidence dated 30 October 2012 indicated that she sought two years of maternity leave, returning late November 2013, which was the period she remained on maternity leave. I accept that this period of leave was not a consequence of the accident but a consequence of the birth of the twins and that she then had three young children. I would not allow any lost earning capacity for this period.
By November 2013, Mrs Logar had been off work for about three and a half years. She had three young children: Riley aged 3 and the twins aged 2. The demands of the children and Mrs Logar's manifest willingness to take time off while they were small might suggest that she was likely to avail herself of a more limited work commitment such as a job sharing arrangement, until the children commenced school. Mr Logar gave evidence that a period of job sharing was intended for Mrs Logar after maternity leave. I would award half of the amount claimed, namely $550 per week, for the period of 150 weeks from 25 November 2013 to date, namely $82,500.
[14]
(e) Past superannuation
The parties accept that 11% of the plaintiff's past economic loss claim is the appropriate level of lost superannuation. 11% of $82,500, being $9,075, should be allowed.
[15]
(f) Future economic loss
Mrs Logar claimed in submissions that she has lost 75% of her future earning capacity due to her shoulder and psychiatric problems (T506/10-19).
The defendant concedes an amount of $200,000 on the basis that there is a possibility of improvement in the plaintiff. That is, full loss of earnings for say three or four years and then partial loss.
In obtaining employment, Mrs Logar's principal disability is her psychiatric condition. Her mildly impaired shoulder is, I think, less significant. Her psychiatric condition has manifested itself significantly in the challenge of caring for her twin daughters, at least on a full-time basis. I think that there is a likelihood of Mrs Logar being able to obtain employment, perhaps part-time, after her children have commenced school. Nevertheless, her earning capacity has been substantially diminished. I would assess her lost earning capacity resulting from her psychological and physical disabilities to be about 40%. The calculation of her loss would thus be $1,100 x 875.6 x 40%, or $385,264. I would allow the sum of $393,514 bearing in mind the period of 15 weeks from now until February 2017, when all her children would be at school, at $550 per week. Reducing this amount by 15% for vicissitudes, including the possibility that Mrs Logar would never have returned to work or full-time work in any event, produces an amount of damages under this head of $334,487.
[16]
(g) Future superannuation
The parties accept 13% of future economic loss as future lost superannuation. That amount is $43,483.
[17]
(h) Past domestic assistance
Pursuant to s 141B of the Motor Accidents Compensation Act 1999, no compensation is to be awarded for gratuitous domestic services unless the services are provided for at least six hours per week and for a period of at least six consecutive months.
The plaintiff claims the following for past domestic assistance:
Period $
3 June 2011 to 25 November 2011 25 weeks less 10 weeks (while the plaintiff was in hospital) x 14 hours x $27 9,450
January 2012 to 28 December 2013 109 weeks x 14 hours x $27 41,202
January 2014 to date 111 weeks x 14 hours x $27 41,958
Total 92,610
[18]
The defendant submits that although there was evidence of the provision of some domestic assistance to the plaintiff until 2013, it was to such an extent that the Court could not be satisfied that it exceeded six hours per week. As such, the defendant allows nil under this head.
Although there is past gratuitous domestic assistance in respect of Mrs Logar's children, this is dealt with separately below. I am not satisfied that there was any period where Mrs Logar received domestic assistance for herself beyond six hours per week. I would not award any damages under this head.
[19]
(i) Past 15B
As indicated earlier, s 15B of the CLA provides that damages may be awarded for Mrs Logar's loss of capacity to provide gratuitous domestic services to her dependants ("dependants" is defined in s 15B(1) and would include Mr Logar and the plaintiff's children). The provision requires that Mrs Logar have provided the services before the accident (except in the case of the unborn twins), that her dependants are unable to perform the services themselves (which would include the children but not Mr Logar) and that there is a reasonable expectation that but for the injury she would have provided those services to her dependants for at least six hours per week for a period of at least six consecutive months.
Mrs Logar claims the following for past 15B:
($)
January 2012 to 28 December 2013 109 weeks x 65 hours x $27 191,295
January 2014 to date 111 weeks x 50 hours x $27 (or perhaps $28, see T584/41) 149,850
[20]
This calculation adopts, as its first component, the amount of gratuitous care provided by Sydney In-Home Care, which was paid for by Centrelink, and values that care at $27 per hour. The plaintiff submits that the Court is bound to follow this method of calculation by reason of the decision of the Court of Appeal in Amaca Pty Ltd v Phillips [2014] NSWCA 249.
I do not think that this principle follows from the decision. Rather, Amaca (at [55]-[57]) indicates that the valuation of this loss is not determined by the commercial cost of services, and indicates (at [53]) that the cost of provision of gratuitous care for a plaintiff is not a guide for damages under s15B.
The value of Mrs Logar's lost capacity must be substantially reduced in circumstances where full-time professional in-home care for the children has been provided at public expense. Section 15B does not exclude an award for this reason, but it seems to me to be relevant in deciding what, if any, award should be made.
In my view, no damages under s 15B should be awarded for the period where Centrelink, through Sydney In-Home Care, provided care for the children.
The care provided by Sydney In-Home Care has no application to the second component of the damages claimed under this head, that is, from January 2014 to date. In this period, care for the children, outside of ordinary childcare and more recently schooling, has been supplied by Mrs Logar, Mr Logar, or Mrs Logar's mother. The calculation of an appropriate award is difficult, in part because Mrs Logar seems to have (or have had) less difficulty caring for her son, Riley, and also because the hours of care have varied over time as the hours that the children attend childcare, preschool and school have also varied. This loss is properly compensable even though there is no evidence of monetary loss because the children's need for care has been covered by their father and grandmother.
I must also take into account that some of the care during this period could not have been provided by Mrs Logar in any event, because as I have found, and as she contended, she would have been working during this period but for the accident.
In all these circumstances, I would have awarded an amount of $50,000 for past s 15B damages.
[21]
(j) Future domestic assistance
For the same reasons as given above in relation to past domestic assistance, I would not award any amount in respect of future domestic assistance. Mrs Logar's injuries from the accident have not resulted and likely will not result in an inability to care for herself.
[22]
(k) Future 15B
The plaintiff submits that she is currently seriously impaired, has serious problems caring for her children and it should not be assumed that she will return to looking after them at any time in particular. She submits that the children will require a lot of assistance from people other than Mrs Logar for the next 10 years, until the twins turn 14, and then a lesser amount of care for another two years until the twins are 16. This submission presumes that the care Mrs Logar is able to provide is unaffected by the age of the children or the time at which they are outside Mrs Logar's presence, such as at school. I do not think that is established on the evidence. Mrs Logar has managed to take care of some of the duties of care, particularly in respect of Riley, and her panic episodes impacting on her care of the children occurred when she had care of all three young children by herself. I think that there is a real prospect that the care she is able to provide, when her children are less dependent on a carer due to their age, is likely to improve. Also, the likelihood of obtaining care in respect of the children on a commercial basis, not having been obtained to date, might be expected to diminish as they mature. I would award an amount of $80,000, reduced by 15% on account of vicissitudes to $68,000.
[23]
(l) Conclusion on damages
Head of damage ($)
(a) Non-economic loss 200,000
(b) Past out of pocket expenses 30,190
(c) Future out of pocket expenses 50,000
(d) Past economic loss 82,500
(e) Past superannuation 9,075
(f) Future economic loss 334,487
(g) Future superannuation 43,483
(h) Past domestic assistance 0
(i) Past 15B (care of dependants) 50,000
(j) Future domestic assistance 0
(k) Future 15B 68,000
TOTAL 867,735
[24]
Were the damages to be awarded, this amount must be reduced by reason of contributory negligence to 40% of this figure, or $347,094.
[25]
(F) Costs
Costs should follow the event, although as the parties have made no submissions about costs I will grant a short stay of the costs order in case either party seeks to make submissions about costs.
[26]
(G) Orders
Accordingly, the orders of the Court are:
1. Judgment for the defendant.
2. Plaintiff to pay the defendant's costs.
3. Stay entry of order (2) for two weeks and thereafter until further order if an application in respect of costs is made within that period.
[27]
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Decision last updated: 18 October 2016
Parties
Applicant/Plaintiff:
Logar
Respondent/Defendant:
Ambulance Service of New South Wales Sydney Region