Monement v Faux & Anor

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - MEDICAL AND HOSPITAL EXPENSES - where plaintiff suffered substantial injuries in a motor vehicle accident - where liability admitted - where injuries included head and facial fractures and lacerations, spinal fractures, fractures to both legs and right knee, multiple fractures to the pelvis, a left arm fracture and ulna nerve injury as well as an artery laceration, organ lacerations and bruising - assessment of damages

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY - EXPENSE FLOWING FROM PLAINTIFF'S INABILITY TO WORK - RE-EMPLOYMENT OF WORKER - where plaintiff worked as a patient or environmental services assistant at a hospital - where accepted that plaintiff would not be able to work again - assessment of damages

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - NON-PECUNIARY DAMAGE - LOSS OF AMENITIES OR CAPACITY FOR ENJOYMENT - where doctor assessing plaintiff assessed that the plaintiff's incapacity had worsened over time - where further hospital work required - assessment of damages

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION - WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE - WHERE OFFER OF COMPROMISE MADE - where award of damages to plaintiff was less than the amount offered in the mandatory final offer required by s 51C(1)(a) of the Motor Accidents Insurance Act 1994 - where a subsequent offer pursuant to Chapter 9 Part 5 of the Uniform Civil Procedure Rules 1999 that was also in excess of the amount awarded at trial - where defendant contended that the plaintiff should pay the defendant's costs from the date of the first offer - where the defendant argued that it should pay the plaintiff's costs from the second offer - whether the defendant ought pay the plaintiff's costs from the first or second offer

Motor Accident Insurance Act 1994, s 51B, s 51C(1)(a), s 51C(7), s 51C(8), s 51C(10), s 55F

Uniform Civil Procedure Rules 1999, Part 5, Chapter 9

Kenny v Eyears [2004] QSC 59, distinguished

Quality Corp (Aust.) Pty Ltd v Milford Builders (Vic) Pty Ltd [2003] QCA 550, cited

[1] Douglas J: The plaintiff, Catherine Monement, was injured in a motor vehicle accident on 3 March 2002. She was then 55 having been born on 27 October 1946. Liability in negligence has been admitted by the defendants and it remains for me to assess the amount of the damages she has suffered as a result of the accident and her injuries.

[2] She suffered head and facial fractures and lacerations, spinal fractures, fractures to both legs and her right knee, multiple fractures to her pelvis, a left arm fracture and ulna nerve injury as well as an artery laceration, organ lacerations and bruising. She was a patient in the Princess Alexandra Hospital intensive care unit for about 18 days and was then an inpatient at the hospital's rehabilitation unit for a further four and one half months. She underwent a number of operations.

[3] Ms Monement is no longer able to work. Until the accident she had been employed at St Andrew's Hospital as a patient or "environmental" services assistant, working in the hospital's laundry as well as performing other cleaning work. She began to work there in 1988 and intended to stay in her position until she was 65. It seems likely to me that she would have tried to continue working until that age as she would not have been entitled to a pension until she was almost 65.

[4] She had suffered a number of other injuries at work and other medical conditions for which she was treated but none that seemed likely to prevent her from continuing to work until that age.

General damages for pain, suffering and loss of amenities

[5] Her orthopaedic injuries are the most serious. Dr Pentis gave evidence about the problems she now faces as a result of those injuries. He saw her on two occasions, 4 March 2003 and 18 August 2005. His reports dealt with the multiple injuries she had sustained. In dealing with her orthopaedic injuries he referred to the fracture of her pelvis, involving the sacroiliac joint on the right side and a fracture of the left acetabulum, which had been openly reduced and plated. He observed that she was having problems with the range of movement of her hip and with the occurrence of heterotrophic bone formation, which may require future excision at a cost in the vicinity of $4,000. He thought that she would develop arthritis in that hip in the long term, and would be left with scarring and a decreased range of movement for which she would be likely to need a total hip joint replacement at a cost in the region of $7,500 to $10,000, with a recovery period of nine months to a year at least.

[6] His evidence also suggested Ms Monement may need a total knee replacement on the right side at a similar expense and with a similar recovery period. The fracture of her femur and the injury to the patellotibial ligaments had already required nailing of the femur and wiring on two occasions of the patella to the tibia, leaving her with a residual incapacity, decreased range of movement and scarring. He assessed her incapacity as a 30% loss of the efficient function of the right lower limb and the same percentage incapacity of the left lower limb. He also believed that the fracture of her pelvis would leave her with a 15% loss of the efficient function of her spine as a whole and pointed out that she had also had a fracture of the L5 transverse process which was associated with the soft tissues in relation to the pelvic fracture. He believed that those fractures would persist as a long term problem and a weakness that would affect her bending and lifting.

[7] Her comminuted fracture of the left ulna had been openly reduced and fixed and Dr Pentis assessed her residual disability in that arm as 5% to 7.5% loss of the efficient function of the limb long term for strenuous activities. He believed her condition had worsened between his two consultations with her, that she would not be able to return to gainful employment and that she would continue to have difficulties in performing house work requiring bending, squatting and activities where she had to scrub, clean and lift. The plaintiff also suffers from residual scarring from her injuries and operations.

[8] Dr Pentis did not use the American Medical Association Guidelines in estimating the plaintiff's percentages of disability because he said that they were expressions of the percentage of impairment rather than disability or incapacity. He agreed that the percentages he estimated would commonly be higher than the American Medical Association Guidelines percentages. In any event, however, it is clear that the plaintiff has suffered serious injuries with consequences that are likely to continue to be very disabling for her.

[9] The parties had difficulty in producing recent comparable decisions of plaintiffs with similar injuries and of a similar age. Some of the decisions referred to also had the complicating factor that the plaintiffs in those cases had developed more significant psychological problems than the plaintiff here, who was described by Mr Stevenson as having sustained "low moderate" generalised anxiety leading to her avoiding driving, preferring to let her partner drive whenever possible. Her de facto husband has remained very supportive of her although the injuries from the accident have interfered with their sexual relations and both expressed some loss of intimacy to Mr Stevenson as a result.

[10] In my view an appropriate reward for general damages under this heading is $80,000. I would allow interest on those damages at the rate of 2% per annum on $35,000 of that amount as past loss for the period of approximately 3.7 years since the accident. That figure comes to $2,590.

[11] The plaintiff's claim is for past and future economic loss to the age of 65 at a rate of $500 per week nett after income tax. The plaintiff's income tax returns and the other available evidence support such an approach and Mr Given, who appeared for her, submitted that it would be inappropriate to discount that part of the claim because there was evidence from a Mr Fox that his position was the same as that of the plaintiff and that his current nett earnings after income tax were in the region of $32,000 to $33,000 per annum.

[12] That may assist me in reaching the conclusion that the amount of the claim for this head of damages should not be reduced significantly for the normal contingencies of life but the evidence was that the plaintiff incurred substantial expense to earn her income by travelling to and from work by car, at a cost conceded to amount to 50 cents per kilometre for a round trip of 64 kilometres per work day together with $6 per day parking charges amounting to $190 per week. She now does not have a car and does not incur that expense. It seems appropriate, therefore, to allow the past economic loss at the rate of $310 per week for the approximate 3.7 years that have elapsed. On my calculation that amounts to $60,140.

[13] It was agreed that interest on that component should be calculated at 2.805% over the period of 3.7 years from the accident until the present. That amounts to $6,241.63.

Past loss of employer's contribution to superannuation

[14] The parties agreed that 9% of the award for past economic loss was the appropriate calculation for the past loss of the employer's contributions to superannuation. That amounts to $5,412.60.

[15] As I have already found it is my view that the plaintiff wanted to continue to work until the age of 65. It is also my view that, subject to the normal contingencies of life, the probabilities are that her health would have remained sufficiently good to allow her to continue to work. From the date of this judgment until she turns 65 is slightly less than 6 years. At a present loss of $310 per week on the 5% tables over 6 years an assessment of $84,010 is produced which, discounted by approximately 15% for the contingencies of life and further because she now has slightly less than 6 years of work left, leads to an assessment of $70,000.00.

[16] An allowance of 9% of that award for future impairment of earning capacity from the loss of the employer's contribution to superannuation amounts to $6,300.00.

[17] The parties agreed that the appropriate hourly rate for past care was $14. The plaintiff agreed in substance with the estimates for past care put to her in a schedule, exhibit 7, by Mr Kent for the defendants. It was clear that she had significant needs for care during the period of two months after she was discharged from hospital. She also needs to be driven now in circumstances where she would have driven herself in the past. Her needs have declined since the accident to the extent that she now mainly needs assistance with shopping and driving and periodic heavy cleaning. Exhibit 7 seems to me to be a reasonable basis from which to work. Taking into account some services such as massages provided to her by her de facto husband, Mr Crane, and longer hours spent in shopping and cleaning than might be contemplated by that schedule it seems appropriate to me to allow past care in a global amount of $16,000. Interest on that component at 2.805% over 3.7 years is $1,660.56.

[18] Counsel for the plaintiff argued that she should receive damages calculated upon the basis of 1.5 hours per day over 26 years discounted on the 5% tables at $15 per hour less 15% for vicissitudes, amounting to $102,949.87. The defendants argued that the maximum allowance for this component should be $55,000 on the basis that before the accident the plaintiff and Mr Crane shared some of the household duties. The hourly rate of $15 was agreed.

[19] Taking into account the personal care rendered by Mr Crane in helping the plaintiff shave her legs and cut her toe nails, the driving he does for her, the periodic heavy cleaning and the shopping, which may well take up to four hours per fortnight, it seems to me that a reasonable allowance to make is one hour a day at $15 per hour amounting to $105 per week. If one applies the 5% multiplier of 754 for 25 years discounted by 15% for contingencies the result is $67,294.50. But something should be added to that, as Mr Kent recognised, for the cost of additional care in the future while the plaintiff recovers from the surgery recommended by Dr Pentis. In my view an appropriate award for future care would be, therefore, $75,000.

[20] I have already referred to the cost of the surgery recommended by Dr Pentis for heterotrophic bone excision and replacement of the hip and knee totalling between $19,000 and $24,000. He also refers to the cost of removal of fixation devices for the right leg of $3,000. The plaintiff also now receives hydrotherapy at a cost of $16 per week plus $44 for travel expenses. That loss of $60 per week for 25 years applying the multiplier of 754 amounts to $45,240 and, reducing that by one quarter for contingencies, leaves a figure of $33,930. There are occupational therapy aids referred to in the reports of Ms Toddhunter and Ms Campbell and home modifications referred to in the report of Ms Campbell that also should be taken into account. Mr Given's estimate of their present value was $5,000 for the occupational therapy aids and $14,000 for the home modifications.

[21] Because of the uncertainties as to when any of the further operations the plaintiff will need may take place, it is impossible to be precise in fixing on an amount for this head of damages. It seems to me that an appropriate award would be $65,000.

[22] An agreed amount of $4,000 should be awarded for special damages. The insurer which was the second defendant's predecessor had also spent $7,962 on rehabilitation and other costs associated with the plaintiff's injuries. It is appropriate to allow that amount as special damages because of s 51(9A) of the Motor Accident Insurance Act 1994 but the early receipt of that benefit should be reflected in the judgment by setting off that amount pursuant to the same subsection. Interest should be allowed on $3,500 of the special damages at 2.805% for the 3.7 years from the date of the accident. That amounts to $363.25.

[23] In summary, therefore, my calculation of the plaintiff's damages is:

Component Amount

General damages for pain, suffering and loss of amenities $80,000.00

Interest on $35,000.00 for past loss at 2% per annum for 3.7 years $2,590.00

Past economic loss $60,140.00

Interest at 2.805% for 3.7 years $6,241.63

Past loss of superannuation $5,412.60

Future economic loss $70,000.00

Loss of future superannuation $6,300.00

Past care $16,000.00

Interest at 2.805% for 3.7 years $1,660.56

Future care $75,000.00

Future expenses $65,000.00

FAI rehabilitation and other costs $7,962.00

Special damages $4,000.00

Interest at 2.805% on $3,500.00 for 3.7 years $363.25

Total damages $400,670.04

Set off of rehabilitation expenses $7,962.00

Judgment amount $392,708.04

[24] After I delivered my reasons in this matter further submissions were made as to costs. On 16 February 2005 the second defendant made a mandatory final offer to the plaintiff of $400,000 inclusive of the then rehabilitation expenses of $7,429 plus costs pursuant to s 51C(1)(a) of the Motor Accident Insurance Act. That offer expired on 2 March 2005. When one takes into account the component of interest in the judgment accruing since 2 March 2005, estimated at $2,200.43, it is clear that the offer then made was more advantageous to the plaintiff than the amount of this judgment. This judgment if given at that time, without the rehabilitation expenses and the interest accrued since then, would have been $390,507.61 and the offer after deduction of rehabilitation expenses was $392,571. In that situation the second defendant seeks an order that it pay the plaintiff's costs on the standard basis until 2 March 2005 and that the plaintiff pay its costs thereafter on the standard basis.

[25] The second defendant also made a further offer to settle in accordance with Part 5 of Chapter 9 of the Uniform Civil Procedure Rules 1999 on 21 April 2005 in an amount of $440,000 clear of rehabilitation costs, then amounting to $7,962, plus the costs of the action from the date of service of the offer. The plaintiff concedes that the effect of that offer should be that the second defendant pay the plaintiff's costs on the standard basis up to and including 21 April 2005 and that the plaintiff pay the second defendant's costs on the standard basis after 21 April 2005.

[26] In my view it is appropriate that I take into account the effect of the mandatory final offer with the result contended for by the second defendant. This follows either because s 51C(10) requires me (where relevant) to have regard to the mandatory final offer in making a decision about costs or because it is a matter relevant to the general discretion as to costs discussed, for example, in Quality Corp (Aust.) Pty Ltd v Milford Builders (Vic) Pty Ltd [2003] QCA 550.

[27] There is a statement by Philippides J in Kenny v Eyears [2004] QSC 59 at [11] that s 51C(10) is directed to s 55F dealing with costs in cases involving relatively small awards of damages, namely $50,000 or less, and did not dictate any particular result in the circumstances of the case before her Honour. In examining her general discretion her Honour referred to matters which do not affect this case. She pointed out at [12] that the plaintiff's claim had unusual aspects to it and involved an issue of some novelty concerning the first plaintiff's entitlement to recover damages for gratuitous assistance. It is important, however, to take into account the role of the statutory regime requiring full disclosure under s 51B before the making of mandatory final offers in encouraging speedy resolution of claims. The significance of those offers is emphasised by the requirement of s 51C(7) and s 51C(8) that they be filed in the Court. In my view, s 51C(10) is not limited in its language to cases involving relatively small awards of damages under s 55F and should be taken into account by me in making a decision about costs in a case of this nature.

[28] Although, here the difference between the final result and the offer made on 16 February 2005 is relatively minor the effect, taking into account the interest component accrued since then, was that the offer was more advantageous than the judgment I have given. The plaintiff's own final offer was for a sum significantly more than that awarded, $485,000 clear of the rehabilitation expenses plus costs. The fact that r 362(2) requires the Court to disregard damages in the nature of interest relating to the period after the day of service of an offer to settle does not mean that the accrual of interest since a mandatory offer is an irrelevant consideration when the Court takes that offer into consideration under s 51C(10) or in the exercise of its general discretion as to costs.

[29] Mr Kent for the second defendant also submitted that evidence relevant to the assessment of damages, improving the plaintiff's position since the mandatory final offer, had been admitted, namely the second report of Dr Pentis and the whole of Mr Fox's evidence as to the plaintiff's earning capacity, his evidence being admitted over objection. Those are matters which are also relevant to the exercise of my discretion.

[30] Accordingly it seems to me appropriate to make the order sought by the second defendant that it pay the plaintiff's costs on the standard basis until 2 March 2005 and thereafter the plaintiff pay the second defendant's costs on the standard basis.

[32] Order the second defendant to pay the plaintiff's costs on the standard basis until 2 March 2005 and thereafter the plaintiff pay the second defendant's costs on the standard basis.