54The defendant's case was that there was no evidence supporting the plaintiff's case for past care or assistance with her children. The only evidence in respect of her claim for care for the children came from the plaintiff's mother, Mrs Gaskin. It was submitted that Mrs Gaskin's evidence was exaggerated, for example, her evidence that the plaintiff was "drugged out on medication" and her evidence that the plaintiff could not take the children to school, to basketball or to a swimming carnival. I accept that there was an element of over-embellishment in Mrs Gaskin's evidence, arising from an overprotective nature in respect of her daughter.
55An issue in the case concerned the plaintiff's refusal to have surgery offered to her and whether that amounted to a failure to mitigate her damages. The first question is whether her refusal to undergo the surgery was unreasonable. In a letter dated 27 June 2008 from Dr Saad to Dr Hoe, Dr Saad recorded that the plaintiff had been seen by Dr Fox who declined to offer surgery. In her report dated 7 September 2012 Dr Saad stated that Dr Fox was unable to carry out the surgical repair as the plaintiff could not afford private treatment. Dr Saad reported that the plaintiff had told her that she had temporarily declined any surgery as there was no one able to care for her and her three young children if she was to undertake any necessary surgical procedures.
56I find that the real reason why the plaintiff has refused the surgery is that she is scared of having a poor outcome. I find that this is an unreasonable position for her to take, given that she will remain significantly disabled without surgical repair of her ACL and will be susceptible to ongoing pain and instability in the joint which will cause her much disability into the future. By comparison, the surgery is relatively safe, with the majority of patients doing well following the procedure, according to Dr Pillemer in his report dated 29 May 2012, a report relied on by the plaintiff. It was Dr Pillemer's opinion that it is "essential" that the plaintiff undergo surgical treatment for her injury.
57Dr Hoe, in a report dated 21 July 2012, stated as follows:
"Mrs Hobby's left knee is likely to remain unstable without surgical intervention. Surgery has been recommended. Following that surgery, she is unlikely to be able to look after children for approximately 3-4 weeks. She may require assistance from family members.
Following the surgery I would expect a return of close to normal function of her left knee."
58In a report dated 14 February 2012 Mr Gerard Glancey, psychologist, noted that the plaintiff reported anxiety associated with the surgery and with the anaesthetics involved in such surgery. She also reported anxiety related to the prospect of an undesirable outcome to surgery. Mr Glancey was of the opinion that treatment by a psychologist for six consultations may assist with the anxiety she suffers associated with the surgery.
59I prefer the evidence relied on by the plaintiff referred to above to that of the report of Dr Peter Burke dated 12 December 2011 relied on by the defendant. Dr Burke diagnosed an "apparent rupture of the anterior cruciate ligament of the left knee", and stated:
"Clinical examination does not confirm such an injury."
He went on to state that, in his view, further surgery was not indicated.
60In respect of the plaintiff's claims for past and future economic loss, the defendant submitted that there was no evidence that the plaintiff had worked since 2003. The evidence that she had worked for her uncle, following her father's injury, was vague, and not supported by contemporaneous documentation. It was submitted that Part 15, Rule 12 of the Uniform Civil Procedure Rules imposes an obligation to provide documentary evidence including tax returns for a period of two financial years immediately before the injury was suffered. Part 15 Rule 12 does oblige a plaintiff in a claim for damages for personal injuries to serve with the claim and statement of particulars documents supporting a claim for economic loss, see Rule 15.12(2), (5) and (6). Rule 15.12(7) provides that if such documents as are required cannot be served, "a statement of the reasons why it cannot be served must be included in the documents served". The plaintiff has failed to comply with that Rule here.
61Further, notwithstanding that the plaintiff was served with a subpoena requiring her to produce her tax returns, no documents have been produced and the plaintiff tendered no evidence that she worked after 2003. The plaintiff gave somewhat unsatisfactory evidence that all of her wage details had been taken care of by her uncle, that he was out of the jurisdiction on holiday in Hawaii and no explanation was provided as to why she did not obtain the documents from him before he left. Further, the plaintiff told Dr Burke that she had ceased work at aged 23 years, which would have been sometime in 2004, following her father's accident.
62Further it was submitted that her mother's evidence, where it was suggested that prior to the accident the mother did little to assist in the care of her children, gave rise to an inference that the plaintiff was not working for a considerable period of time prior to the accident.
63The defendant further relied on exhibit 4 in the proceedings which demonstrated that she received fortnightly payments from CentreLink for a period of time in 2007.
64The defendant submitted that the reality was that the plaintiff was not working for some years prior to the accident, and that whilst her children were young, there was no real prospect of her returning to any paid employment. For the future, the defendant submitted that the Court would have regard to the need for her to undergo surgery, and award at best a very modest cushion for diminished earning capacity.
65With respect to past gratuitous care, the defendant submitted that there was no evidence that the plaintiff required any such care and that there was no evidence that she required assistance with her children. In respect of the future, the evidence suggested that the plaintiff may need some assistance with heavier aspects of her domestic duties.
66The plaintiff's assessment of damages for non-economic loss involves an assessment of 32% of a most extreme case pursuant to s 16 of the CLA. There is no doubt that the plaintiff sustained a significant injury, and that it has had a considerable impact on all of her domestic activities.
67The plaintiff has submitted that she exceeds the threshold pursuant to s 15 of the CLA for domestic care and assistance, and requires 26 hours per week. Whilst it was submitted that the plaintiff's mother's evidence was "a bit over the top", that evidence did corroborate the plaintiff's inability to carry out domestic chores and was important corroborative evidence. For the future, the plaintiff submitted that 7 hours was a reasonable assessment of the plaintiff's need for paid assistance at a rate of $40 per hour and that her medical evidence supported that claim.
68The plaintiff further submitted that she was entitled to past care relating to her children, based on 14 hours per week. For the future, a claim was made for a lump sum of $50,000 for such dependent care.
69The plaintiff's claim for past wage loss was based on her working first for a period of two years on a part time basis at a rate of $400 per week. Thereafter, as her children reached school age, her loss was at a full time rate of $800 per week. The plaintiff's case was that she was completely unemployable, however, given that the sort of work that she was doing was "high risk", she would not be doing that work into her sixties. Her claim was therefore calculated at a rate of $500 per week over her working life to age 67. Past superannuation was claimed at 11%, whilst future superannuation was claimed at a rate of 14.21%.
70Having considered all of the evidence, I make the following assessment of damages. For non-economic loss, given the severity of the injury to the plaintiff's left knee and the need for surgery, and having regard to the impact that it has had on all of her domestic activities, I assess the plaintiff's claim for non-economic loss at 28% of a most extreme case, pursuant to s 16 of the CLA. Having regard to the table in s 16, that would result in an award of 14% of the maximum amount, namely, $75,000.00.
71I note treatment expenses are agreed in the sum of $1,995.00. It is also agreed that the plaintiff should be awarded future treatment expenses, having regard to her need for surgery. The cost of that surgery will be in the region of $8,000.00, according to the evidence of Dr Pillemer and Dr Conrad. In addition, the plaintiff will require therapeutic physiotherapy treatment and psychological treatment, according to the evidence of Mr Glancey. She will also require medication from time to time in the future, particularly following the surgery. I therefore allow the sum of $15,000.00 for future treatment expenses.
72I do not accept the evidence of the plaintiff's mother in respect of her need for past gratuitous care. However, given the significant ongoing problems that she has suffered with the instability of her left knee, I am satisfied that the plaintiff has met the threshold for such gratuitous attendant care services in s 15(3) of the CLA. Whilst her need for such assistance was greater for the year or so immediately following her injury, on average, that need was in the order of 14 hours per week. At a rate of $25 per hour I have assessed the appropriate award over a period of 5 years since the accident and rounded it off at $90,000.00. Further, I find that the plaintiff has established a claim pursuant to s 15B for gratuitous assistance provided to assist her in looking after her young children and that the threshold in s 15D(2)(c) has been met in respect of such services. I assess the plaintiff's claim at 7 hours per week over the 5 year period and have rounded it out to $45,000.00.
73For future care, I find that the plaintiff will require 7 hours care per week and that $40 per hour is a reasonable commercial rate for that care. However, provided the plaintiff has the recommended surgery for reconstruction of her anterior cruciate ligament, she will not require that care for the rest of her life and I award it for a period of 10 years only. I have rounded that award off to $145,000.00.
74As the plaintiff's children reach school age and require less intensive care from her on a daily basis, I find that the need for dependent care will diminish. I find that it is an appropriate case to award a lump sum for such care and I award the sum of $30,000.00 for that head of damages.
75With respect to the plaintiff's claim for past wage loss, I find that the plaintiff had not worked for some five years prior to the accident, and given that the youngest child was still a baby at the time of her injury, she would not have worked in any capacity until that child had commenced school. I therefore decline to make an award for past wage loss for the plaintiff.
76Section 13 of the Civil Liability Act 2002 provides as follows:
"Future economic loss - claimant's prospects and adjustments
(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.
(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
77The section is in the same terms as s 126 of the Motor Accidents Compensation Act 1999. It is well settled that the section may be satisfied by the award of a lump sum by way of a "buffer" - see Macarthur District Motorcycle Sportmen Inc v Ardizzone [2004] NSWCA 145, Penrith City Council v Parks [2004] NSWCA 201. However, the section imposes a requirement on the plaintiff to satisfy the Court that the assumptions about future earning capacity on which an award is to be based accord with the claimant's most likely future circumstances, but for the injury - see Kallouf v Middis [2008] NSWCA 61 at [55] - [57]. Thus, the Court is required to be satisfied on the probabilities that a loss will be suffered, notwithstanding that a precise calculation cannot be made - see Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244 at [33] - [40] referring to Pollard v Baulderstone Hornibrook Engineering Pty Limited [2008] NSWCA 99 and Nominal Defendant v Livaja [2011] NSWCA 121 at [39] - [40].
78The plaintiff's claim for future loss of earning capacity is somewhat complex. She is uneducated, and has relied on her physical capacity to carry out high risk but unskilled work, which has been made available to her by her father or uncle. To that extent, her capacity for work has not been tested on the open market for labour. I find, pursuant to s 13 of the CLA that her most likely future circumstances, but for the injury, would have been a return to work in her uncle's roofing business once her children reached school age, and that that would have been on a part time basis. I am not persuaded that she would have returned to work full time and further, I am satisfied that she would not have continued doing this type of work for the whole of her working life.
79The adjustment required pursuant to s 13(2) of the CLA involves an assessment of the percentage possibility of the assumption made about her future earning capacity by reference to events that might have occurred, but for the injury. Here, an adjustment has to be made by reference to the imprecision with which the plaintiff has presented her case on economic loss. She relies on no contemporaneous record of wages of salary, and there are no taxation returns supporting her claim. In Matar v Jones [2011] NSWCA 304, the Court of Appeal held that failure to comply with taxation legislation is a matter that goes to credit, although evidence of earnings not disclosed to the Commissioner for Taxation may be taken into account, subject to reduction for income tax that should have been paid. That is not the case here where there is no evidence of any earnings by the plaintiff.
80Given that the plaintiff's prospect of return to any work is a low probability, this is an appropriate case for an award of a lump sum representing her inability to compete with able bodied persons on the open marketplace for labour. However, having regard to the various matters set out above, I assess the plaintiff's future loss of earning capacity as a lump sum of $30,000.00, including any lost future superannuation entitlements.
81I therefore assess the plaintiff's claim as follows:
Non-Economic Loss $75,000.00
Treatment Expenses $1,995.00
Future Treatment Expenses $15,000.00
Past Gratuitous Care $90,000.00
Past Dependent Care $45,000.00
Future Gratuitous Care $145,000.00
Future Dependent Care $30,000.00
Future Diminished Earning Capacity $30,000.00
Total $431,995.00