Sparks v Phegan

Graham v Baker (1961) 106 CLR 340 at 347 Macarthur District Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145 at [6] CASES CITED : Penrith City Council v Parks [2004] NSWCA 201 at [56] Purkess v Crittenden (1965) 114 CLR 164 State of New South Wales v Moss (2000) 54 NSWLR 536 at [87] Watts v Rake (1960) 108 CLR 158

PARTIES : Ayeshea Maree Sparks - Plaintiff Gerard Michael Phegan - Defendant

COUNSEL : Mr I Roberts SC/AJ Black - Plaintiff Mr P J O'Connor - Defendant

SOLICITORS : Walsh & Blair - Plaintiff McCulloch and Buggy - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20201/2006 - Ayeshea Maree SPARKS v Gerard Michael PHEGAN

JUDGMENT 1 HIS HONOUR: Nature of claim On the afternoon of 9 November 2002 the plaintiff was swimming in the Murrumbidgee River at Kohlhagen Beach. She was about 3-5 metres from shore. She was struck by a speedboat driven by the defendant. The plaintiff suffered serious injuries to her right leg. 2 The plaintiff has brought proceedings against the defendant alleging negligence on his part in failing to keep a proper lookout and in failing to properly control the speedboat. She claims damages in respect of the injuries which she suffered in the collision. The claim is governed by the Civil Liability Act 2002 (CLA).

Factual background 3 Unless otherwise indicated I find the facts to be as follows. 4 The plaintiff was born on 23 August 1988. She was 14 at the time of the accident and is now 18. She was raised in Uranquinty, a small village 15 kms from Wagga Wagga. At the time of the accident the plaintiff was living with her mother and younger brother aged 9. The plaintiff's father had left the family when she was 5 and since then she had had little contact with him. The plaintiff's mother was working as a cook and was also active in the Army Reserve, being a member of 1/19 RNSWR. 5 At the age of 8 the plaintiff was diagnosed with a condition described as a neurofibromatosis Type 1. This was a tumour located in the thalamus region of the brain. It was inoperable. MRI scans were carried out in 2001 and 2002. Biopsies were carried out in 2001. The advice from Dr Vonau, who was the neurosurgeon treating the plaintiff at the time, was that the plaintiff should be followed up with regular MRI scans. 6 The follow up with regular scans does not appear to have taken place. On that issue the plaintiff's mother said: "A. No, sir. After she was diagnosed with the neurofibromatosis growth on her brain I don't have to have it reinvestigated unless I notice any signs of her having headaches, memory loss or loss of feeling in her hands and then I can act on it again. Q. You told them, didn't you, that she suffered from a slow growing growth which you had been informed was inoperable? A. That is correct. Q. And that remains the position, so far as you are aware, to this day? A. That is correct. … Q. You said that after the biopsies you were advised that you only needed to have MRI's if she complained of headaches, loss of memory or problems with loss of feeling in her hands. Has there been any such complaint at all? A. There's been no such complaints with her." (T.73-74)

I accept that the plaintiff has not to date suffered any symptoms from her neurofibromatosis. 7 The day of the accident was a Saturday. The plaintiff's mother was on duty with the Army Reserve that weekend and arranged for a friend, Tanya Andrews, to look after the plaintiff and her younger brother. On the afternoon of 9 November 2002 the plaintiff with her younger brother accompanied Ms Andrews and her partner and one of their children, Sheridan, to Kohlhagen Beach. Kohlhagen Beach was a popular and well known swimming spot on the Murrumbidgee River. 8 During the afternoon they had a picnic on the beach and the children went into the water on a number of occasions. They were not the only people on the beach enjoying the location. There were other persons also on the beach who from time to time entered the water. There was at least one boat engaged in water skiing on the river some distance away from the beach. 9 Late in the afternoon the plaintiff and Sheridan, who was then 7, went into the water and at a distance of between 3 and 5 metres from the shore were jumping up and down. The water came up to the plaintiff's waist and up to Sheridan's chest. The evidence as to what happened next came primarily from Ms Andrews. 10 A speedboat "Shellouise", driven by the defendant, was towing a water skier. When that water skier fell, the defendant turned the boat back to pick up the skier. In doing so the boat came close to the shore where the plaintiff and Sheridan were located. It struck the plaintiff. 11 The plaintiff's evidence was that the first she knew of the presence of the speedboat was when she saw it rapidly approaching from her right. It struck her before she could do anything to avoid it. She was, however, able to push Sheridan out of its path. Thereafter the plaintiff's recollection was somewhat vague. She could remember sitting on the bank with people standing around her. She remembered looking at her right foot which she described as looking like "a big chunk of meat". 12 Photographs of the beach and the accident scene taken by the police were tendered in the plaintiff's case. It is clear from those photographs that it would have been obvious to the defendant that not only were there persons on the river bank, but that there were persons swimming in the river. Ms Andrews in her evidence was able to identify by reference to the photographs where on the beach she and her partner and the children were positioned on that day. Such persons would have been clearly visible to the driver of a speedboat on the river. No evidence on liability was adduced on behalf of the defendant and the defendant did not give evidence. 13 It took some time for the ambulance to arrive. The plaintiff had a recollection of other people on the beach providing first aid and wrapping her legs in towels. Initially the plaintiff was taken to the Wagga Base Hospital. She had sustained severe lacerations to her right leg and foot and a laceration to her left leg. The propeller blades had cut into her right foot taking slices of skin and tendon away leaving a very large soft tissue defect and a grossly dislocated ankle with bone visible. She was immediately taken to the operating theatre where the wounds were cleaned. The medial malleolar fragment was stabilised and the ankle was washed extensively. The ankle was stabilised using K wires. The dorsalis pedis artery was tied off and a repair of the tibialis posterior tendon was carried out. 14 On 11 November 2002 she was returned to the operating theatre and skin grafts to the right foot and ankle were applied. Surgery to the ankle fracture was carried out with plating of the fibular and screw fixation of the medial malleolus. On 14 November 2002 she again had a debridement of her right leg and diastasis screw was inserted. A further debridement of her right leg took place on 16 November 2002. 15 The plaintiff was transferred to Royal North Shore Hospital on 17 November 2002. Further skin graft procedures were then carried out in relation to the right ankle. A re-operation on her right ankle took place on 24 December 2002. Her time at Royal North Shore Hospital was complicated by wound infections including a golden staph infection. She was discharged from Royal North Shore Hospital on 8 January 2003. 16 Except for one day, her mother remained with the plaintiff for the whole time that she was hospitalised. This was necessary because the plaintiff had become very depressed whilst she was at Royal North Shore Hospital. There were a number of attendances on her by a child psychiatrist, Dr Chanter. These attendances did not improve the plaintiff's state of mind. She hated being in hospital and in her words: "I didn't want to be there. I constantly shut myself down, shut myself off from people who tried to talk to me." 17 While the plaintiff was in hospital she was entirely dependent upon others for care and assistance. Her mother performed all personal tasks for her including dressing her, washing her and assisting her to eat. Despite powerful pain killers, the plaintiff was in constant pain while she was in hospital. I am satisfied that the plaintiff's mother spent in excess of 40 hours per week providing assistance to the plaintiff while she was in hospital. 18 Following her discharge from Royal North Shore Hospital, the plaintiff was unable to weight bear. She continued to be substantially dependent upon her mother. Dr Gates was her treating plastic surgeon and Dr Grujic was her treating orthopaedic surgeon. It was necessary for her to go to Sydney on a number of occasions for follow up consultations with those doctors. It was also necessary for her to attend the Wagga Base Hospital to have dressings changed. The plaintiff's mother would drive her to those appointments. 19 The plaintiff was not able to return to school until June 2003. At that time the plaintiff was still on crutches, although she was starting to weight bear on her injured foot. Before her return to school she had been fitted with a special plastic boot. This boot was large and unsightly but assisted the plaintiff in weight bearing. The plaintiff experienced difficulty on her return to school because of the need to walk between classes and to use stairs. These difficulties continued even when she was given permission to use the school lift. She was also the subject of cruel jibes from her fellow students because of the boot and her foot deformity. 20 On 7 October 2003 the plaintiff obtained part time employment at Kentucky Fried Chicken (KFC) in Wagga Wagga. She performed general duties which included serving customers and packing the meals. She did this work outside school hours. She would normally work 3 to 4 days per week and her shifts were between 3 and 6 hours. Her mother used to drive the plaintiff to and from work. Her average earnings while at KFC were $65.40 per week. 21 The plaintiff found that after a 3 hour shift her right foot and ankle became swollen and sore. She would soak the foot in a bath and her mother would massage her ankle. On one occasion she did a shift of 8 hours. Her foot and ankle were so painful at the end of the 8 hour shift that she decided that she would not attempt such a shift again. 22 The plaintiff continued working at KFC outside of school hours until 6 April 2004. The plaintiff said that she stopped work because it became too painful. This is consistent with the history which she gave to Dr Courtenay when she saw him on 27 November 2003. On that occasion he noted: "She does, however, work three afternoons a week for four hours on each occasion at Kentucky Fried Chicken where she is on her feet. She gets quite a lot of soreness as a result of that but she is pushing herself to continue doing that activity." 23 The plaintiff ceased using the special boot in November 2003. In its place she used a pressure sleeve over the skin grafted area. This was more comfortable than the special boot but when the pressure sleeve was removed the plaintiff's ankle would swell and become uncomfortable. She continued to wear the pressure sleeve until March 2004. 24 At the beginning of 2004 the plaintiff changed schools to Mater Dei High School. She did so because this school was on a single level and her attendance did not require her to climb stairs. Because her 2003 year had been so disrupted, she repeated year 9 in 2004. 25 On 23 July 2004 the plaintiff was admitted to Royal North Shore Hospital for further procedures. She underwent a revision of the scar on her left leg by Dr Gates. Dr Grujic performed an operation to lengthen her Achilles tendon. She was discharged from hospital on 25 July 2004. She was readmitted to Royal North Shore Hospital on 7 September 2004 with an infection to the wound on the right leg. She was discharged following treatment on 9 September 2004. 26 Although the plaintiff was happier at the Mater Dei High School than she had been at Wagga Wagga High School, she continued to be upset and distressed because of the disfigurement of her right ankle and foot. On three or four occasions during 2004 and 2005 she made what appear to be attempts to take her own life. In her words "I wasn't happy with how I looked and I just didn't want to live any more". She took an overdose of Panadol tablets and on one occasion tried to end her life by sniffing petrol. By the date of the trial the plaintiff said that her mental state had improved and she did not intend to do anything like that again. 27 In 2005 the plaintiff attended the Wagga Wagga TAFE with the intention of completing year 10 and obtaining her school certificate. Although she did well in subjects such as English and Biology, she failed mathematics and did not obtain her school certificate. The plaintiff had never performed well academically, even before the accident. After the accident, she found it difficult to concentrate. 28 On 8 December 2005 the plaintiff obtained a traineeship with the Big W Store. This employment was arranged through TAFE. In that job the plaintiff was able to sit down when she needed to. Whilst in that employment the plaintiff worked 4 hour shifts. The number of shifts she would work in any one week varied between 3 and 5. On average the plaintiff received $137 net per week from that employment. In March 2006 she commenced volunteer work at the Caloola Centre for Aged Care. This involved assisting the residents with eating, talking to them and playing board games. In order to be allowed to do that volunteer work, she completed a workplace hygiene course at TAFE. She used to spend up to 10 hours a month performing that volunteer work. 29 On 28 October 2006 she ceased her employment with Big W. This was not because she was unable to do the work but because she had a disagreement with the manager. This related to her difficulty with mathematics. She was having trouble balancing the till receipts at the end of a shift. 30 Between 1 February and 30 April 2007 the plaintiff worked in the kitchen at a Mobil Service Station earning approximately $218 net per week. That job involved 6 hour shifts for 4 days a week. She was on her feet all the time. Her right ankle became swollen and very painful during those shifts and that is why she ceased that employment. Shortly before the hearing the plaintiff worked as a salesperson for two weeks. 31 The situation as of the date of the trial in relation to the plaintiff's scars was set out in a series of photographs dated 5 April 2007 (exhibit E). When those photographs are compared with the ones taken on 27 February 2003 (exhibit D), it is clear that the plaintiff's scarring has improved considerably during the intervening years. Nevertheless, the scars constitute a significant disfigurement which will only be marginally helped if the plaintiff undergoes further plastic surgery. 32 The present state of the plaintiff's scars was described by Professor Haertsch as follows in his report of 23 March 2006: "She presently has scarring of the left side of her back in the region of her posterior auxiliary fold, a scar of her left lower leg of the medial aspect, severe scarring with contour deformity of the lower third of the right leg extending onto the ankle, and a well healed split skin graft donor site over the medial aspect of the right thigh. The plaintiff did not complain of any symptoms in relation to the scarring except that it was numb and it very much restricted her choice of clothing. She was not prepared to wear a skirt, or any other clothing which would expose her right ankle." 33 In relation to the functionality of her right ankle and foot Dr Grujic described this in November 2005 as follows: "Examination shows she walks with a stiff ankle with a slightly antalgic gait on the right side. There is a slight valgus attitude to the ankle. The range of motion is very restricted, being able to just achieve neutral and approximately 20-30% of plantar flexion. Subtalar motion is also stiff."

It was generally agreed by the doctors that osteoarthritis was present and that at some time in the future the plaintiff would need to undergo an arthrodesis procedure to fuse her ankle joint. 34 The plaintiff's description of her disabilities was that she could walk for 10 to 15 minutes before pain in the ankle increased and could stand for about half an hour before the pain became worse. She found squatting and crouching painful and climbing stairs to be very painful. She found it very difficult and painful to walk across uneven ground. The effect of the evidence of the plaintiff and her mother was that she was able to perform most household tasks. She could hang out washing but this was uncomfortable because she had to stretch up and because of the scar underneath her arm. Vacuuming was uncomfortable and painful. She was able to cook and clean the bathroom. She was independent in looking after herself.

Liability 35 The defendant as the driver of a speedboat operating in the relatively confined waters of the Murrumbidgee River, owed a duty to exercise reasonable care towards other persons using the river. This was particularly so in relation to swimmers. It must have been obvious to the defendant that there were a number of persons including children on the riverbank, who were also swimming in the river near to that bank. In those circumstances the duty which he owed included an obligation to keep clear of such persons particularly children who were swimming in the river. 36 A reasonable person in the position of the defendant would have realised that if a speedboat came in contact with a swimmer, particularly a child, serious injuries could result. Despite that obvious risk the defendant brought the speedboat close to the riverbank when turning back to retrieve the fallen water skier. In doing so he brought the speedboat to within 3-5 metres of the shore so as to collide with the plaintiff. 37 That manoeuvre brought the speedboat too close to the riverbank and involved a clear breach of the duty of care which the defendant owed to the plaintiff. Not only did the defendant fail to keep a proper lookout for persons such as the plaintiff, who was standing waist deep in the water, but he failed to keep the speedboat under proper control in the circumstances. 38 Given the obviousness of the risk of injury and the likelihood that if injury did occur it would be of a very serious nature, it was incumbent upon the defendant to so control the speedboat that it operated well away from where persons were known to be swimming. This he failed to do. 39 There was no issue that the serious injuries suffered by the plaintiff were caused by the defendant's breach of duty. Contributory negligence was neither pleaded nor relied upon. In those circumstances I find that the plaintiff has established liability on the part of the defendant.

Damages Non-economic loss 40 Under the CLA the maximum amount payable for non-economic loss is $427,000. This is to be awarded only in a most extreme case. The difficulty here is to assess where on such a continuum the plaintiff's case falls. 41 The plaintiff suffered her injuries when she was aged 14. Those injuries resulted in significant scarring and disfigurement of her right ankle and foot. It was clear from the plaintiff's evidence that she remains very sensitive to strangers looking at her right foot and that her disfigurement in that regard continues to be a source of great distress to her. It prevents her from wearing a large array of clothing, including swimwear. She will have to live with this disfigurement for the rest of her life. 42 It is also not without significance that this disfiguring injury was suffered at a time when she was maturing into a young woman and was particularly sensitive about her personal appearance and body image. 43 The injury significantly interfered with her schooling. It was the cause of cruel remarks by fellow students. 44 The plaintiff has suffered a significant loss of function in her right leg. She can no longer run or engage in sports. She is unable to resume her much loved activity of refereeing junior rugby league games. She is prevented from engaging in any activity which requires prolonged walking or standing. Even the activity of walking is difficult since the plaintiff is forced to do so in an awkward manner. She often walks with a limp. The plaintiff will be left with this disability for the rest of her life. 45 Since the accident the plaintiff has been in continuous pain because of her injuries. That pain is exacerbated when she stands or walks for long periods. Her attempts to work over the last 4 years have led to exacerbations of that pain. 46 The plaintiff's level of pain is likely to increase as osteoarthritis develops until a point is reached when she will have to undergo an arthrodesis of the right ankle. While such a procedure will fuse her right ankle so that no movement occurs, the purpose of such a procedure is to reduce and eliminate her pain. 47 Although the success rate of such a procedure is high, there is no guarantee that it will be successful in her case and no guarantee that all of her pain will be eliminated. The possibility that the operation will fail to alleviate her pain has to be taken into account. If her pain does continue then she will have to put up with it for the next 70 years, which is the present life expectancy of an 18 year old female. 48 The defendant while conceding the severe nature of the plaintiff's injury submitted that with the passage of time, the plaintiff's acceptance of her disability and disfigurement will increase and it will not be so psychologically disabling as it has been. Put bluntly, the defendant submitted that the worst period for the plaintiff was behind her and that things will be much better for her in the future as she comes to terms with her disability. The defendant submitted that despite the severe nature of the plaintiff's injury, she still had the capacity to significantly enjoy life. 49 Doing the best I can, I would assess the plaintiff's non-economic loss at 50% of a most extreme case, ie $213,500.

Out-of-pocket expenses 50 The plaintiff's past out-of-pocket expenses were mathematically agreed by the defendant at $9,581. The defendant did not concede the plaintiff's entitlement to that amount. It seems to me that the treatment costs in the plaintiff's schedule properly relate to her injuries and that she is entitled to this amount. 51 In relation to future out-of-pocket expenses, it seems clear that the plaintiff will need to undergo an arthrodesis of her right ankle, the only issue being when. The current cost of such a procedure is $21,140. The plaintiff's evidence was that Dr Grujic told her in November 2005 that she would need to undergo such an operation in 5 years, ie in about 3 years time. In his note Dr Grujic said "Ayeshea will eventually require ankle fusion." Dr Redgment in June 2006 thought: "She is definitely developing significant ankle arthritis and also arthritis of the joints below the ankle as well and she may require major fusion surgery over the next few years."

Dr Buckley said: "In my opinion, provision should be made for formal fusion of the ankle joint within the next ten years." 52 Against that background it seems to me that the deferral of 5 years submitted on behalf of the plaintiff is reasonable and I award $16,574 in respect of the need for a future arthrodesis. 53 A claim has been made for the cost of physiotherapy and occupational therapy at the rate of $340 per year. There is no evidence of the plaintiff having undergone such treatment in the past when her need was at its greatest. To the extent that there is a need for physiotherapy, it is likely to be reduced after the arthrodesis procedure. There may, however, be a need for physiotherapy following that procedure. I propose to allow $1,000 to the plaintiff for this part of her claim. 54 A claim has been made for possible future cosmetic surgery in the amount of $8,000. I am not quite sure where that figure comes from or how it has been calculated. Certainly the opinion of the plastic surgeons is that some slight improvement to the plaintiff's scars can be achieved by further surgery and the plaintiff's evidence was that she would be prepared to undergo such surgery. No timeframe was indicated by the doctors in their reports. In those circumstances I accept the submission that an allowance needs to be made for future plastic surgery and I would allow $5,000. 55 A further claim has been made for $5,000 to have regard to the plaintiff being reviewed by her general practitioner, by an orthopaedic surgeon from time to time and for medication and analgesia in the future. Since the period concerned is 70 years that claim is, in my opinion, reasonable if not a little conservative. 56 In summary I award to the plaintiff $27,574 for future out-of-pocket expenses.

Past economic loss and loss of earning capacity 57 In relation to past economic loss, an amount of $165 net per week was claimed for 104 weeks, ie 6 April 2004 - 1 January 2006 and 28 October 2006 - 1 February 2007. I have no difficulty with the periods referred to but it is not clear to me how the amount of $165 net per week qas calculated. The plaintiff's average earnings with KFC were $65.40 per week and with Big W $137.50 net per week. I accept that uninjured she may have been able to work longer hours but it also needs to be kept in mind that this work was performed at a time when uninjured the plaintiff would probably have still been attending school. It seems to me that an amount of $120 net per week for 104 weeks would better reflect what was likely to have occurred had the plaintiff not been injured, ie $12,480. 58 When considering loss of earning capacity, it is necessary to have regard to s13 of the CLA. That provides: "13(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 for future economic loss 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 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." 59 The plaintiff's evidence was that at the time of the accident she had in mind nursing, working with animals or joining the police force as future employment options. She also intended to join the Army Reserve like her mother. The plaintiff's evidence on this issue was not challenged in cross-examination. Although she was only 14 at the time of the accident, it seems to me that these aspirations on her part were reasonable. 60 Because of her academic limitations I doubt whether she would ever have become a registered nurse, but it seems to me that employed as an Enrolled Nurse, as an Assistant In Nursing or as a veterinary nurse were within her capabilities. I also see no reason why she could not have joined the police service. In relation to joining the Army Reserve while it may be that her neurofibromatosis may have stood against her, it did not prevent her mother (who suffers from the same condition) from joining and serving in the Army Reserve for over 10 years. 61 I accept, therefore, that had the plaintiff not been injured it is quite likely that she would have successfully engaged in one or more of those occupations. 62 The next matter to be considered is the extent of the earning capacity which the plaintiff has lost and what earning capacity she presently retains. 63 It was submitted on behalf of the defendant that the Court ought take what the plaintiff said to Dr Grujic when she saw him in November 2005 as an accurate indication of her post injury employment capacity. It was further submitted that the failure by Dr Grujic to indicate that these aspirations were unrealistic indicates that he believed that they were within the plaintiff's ability. 64 What Dr Grujic recorded was: "She wants to be a casualty nurse. She is planning to do her HSC and may then do a palliative care course." 65 What we have from Dr Grujic is something of a shorthand note. I do not accept that in the context in which that history from the plaintiff is recorded that Dr Grujic was necessarily approving or disapproving the plaintiff's intentions. I am, however, satisfied that the plaintiff would be unlikely to be successful in obtaining her HSC given that she has as yet been unable to obtain her SC. It also seems to me to be quite unrealistic to contemplate that the plaintiff might still be able to work as a casualty nurse. This is because of her academic limitations and also because of her inability to remain standing for any lengthy period. It is not without significance that in the same paragraph where Dr Grujic recorded the plaintiff's employment aspirations he also records her significant physical problems. 66 The following is a summary of medical opinion relating to the plaintiff's employability. "This lady may well have some incapacity for employment activities in the future. In general activities that require prolonged standing or walking particularly on uneven surfaces or activities that require a lot of climbing should be avoided." (Dr Bodel) "I am sure Ms Sparks is capable of obtaining gainful employment in the future, suited to her training and experience. She should avoid work which requires prolonged standing which clearly aggravates pain and will continue to do so. She will never be suitable for heavy manual work." (Dr O'Neill) "As she is a student she was not working prior to the accident but her expectations have in the past been that she was considering the Army Reserve, possibly beautician work or even nursing. The problem with all of these is that they do require her to stand for long periods of time. Unfortunately she would not pass the fitness requirements for the Army Reserve and I think any military career is impossible unless she became a specialist in some area in which the Army was particularly interested. With regards to nursing, she will find it very difficult but I am heartened by her ability to work at KFC and to do that for four hours, three afternoons a week. This would cause a lot of pain and disability for this young lady and she is to be commended for pushing herself to do that. … This young lady will need to make very significant and sensible career choices because her ability to stand for prolonged periods of time or carrying any loads will be significantly impaired." (Dr Courtenay) "Ayeshea would have had significant loss of earning capacity as a result of increased difficulties with school and she will find it more difficult to obtain employment on the open labour market because of the difficulty she has in standing for any length of time or walking and because of the deformity that is present in her right foot." (Dr Redgment) "In my opinion, Ms Sparks is unfit for employment where she is required to be on her feet for substantial periods. At the present time she can manage about four hours with a significant sitting rest. In my opinion this length of tolerance is likely to reduce progressively. In my opinion she requires sedentary work." (Dr Buckley) 67 It was the plaintiff's evidence that after she lost the job with Big W she had sought secretarial work in Wagga Wagga but had been unsuccessful in even obtaining an interview. She said that in her studies she had done well in English and that she could use a computer. She was intending to obtain her school certificate and to do a secretarial course at TAFE which she hoped would assist her in obtaining that kind of work. 68 It seems to me that the sort of work which the plaintiff has attempted to do since her injury, ie working with KFC, Big W and at the Mobil Service Station has been unsuitable for her given the nature of her disability. I do not think that those jobs provide an accurate indication of her ability to work. What they do show is that the plaintiff is very determined and is prepared to put up with some level of pain in order to obtain and keep employment. 69 It seems to me that the area of employment which the plaintiff is likely to engage in for the future and which is realistically within her capacity is work of a secretarial or receptionist kind. It will be necessary for her to successfully pass a TAFE course in secretarial work for her to obtain such employment. While her success in such a course is not certain, her ability to use a computer and her good knowledge of English persuade me that if she does attend such a course she is likely to be successful in it. On the other hand there are assumptions involved in reaching that conclusion and employment opportunities in that field in Wagga Wagga are likely to be more restricted than in large commercial centres such as Sydney. 70 Average weekly earnings of females in New South Wales at the present time are approximately $1,000 gross per week or $775 net. The base rate for an Assistant in Nursing working fulltime is $611.30 gross per week and the base rate for a four year trained Enrolled Nurse is $744 gross per week. Those amounts would be significantly increased by allowances and overtime which are usual in such jobs. While I was not provided with any information as to the earnings of a secretary or receptionist, I can take judicial notice that such earnings would be at least equal to those of an Assistant In Nursing but without the availability of allowances and overtime. 71 In relation to Army Reserve service the minimum requirement for effective service is 26 days, including a 14 day camp. The base rate of pay for a private soldier is $80 per day tax free. Most Army Reserve soldiers do more than the minimum 26 days required. The maximum number of days which can be paid for Reserve service is 150 in any financial year. In my opinion there was a strong likelihood that the plaintiff would have joined the Army Reserve and served in it for some years as her mother has done. She would have performed that service in addition to her regular employment. She has accordingly suffered economic loss by her inability to participate in a second career in the Army Reserve. 72 The plaintiff has lost a significant part of her earning capacity. She was not academically inclined and uninjured was likely to have performed the sort of work which she unsuccessfully tried to perform following the accident. That whole area of employment is now permanently unavailable to her. 73 Although she is able to perform sedentary work such as that of a secretary or receptionist, she will require some further qualification if she is to be successful in obtaining such a job. It is not without significance that as yet she has not been able to obtain even an interview for such a job in Wagga Wagga. 74 Because she can only perform what is essentially sedentary work, if she loses such a job her chances of obtaining another job would be more difficult than for an able bodied person. She may well experience significant periods of unemployment because her work options are so restricted. 75 I am satisfied that not only has the plaintiff suffered a very significant impairment of her earning capacity but that this impairment is productive of financial loss. (Graham v Baker (1961) 106 CLR 340 at 347.) The difficulty for the Court is to calculate with any precision the economic consequences for the plaintiff of her loss of earning capacity. 76 Some assistance is provided by the State of New South Wales v Moss (2000) 54 NSWLR 536 at [87]: "[87] In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages. … The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility." 77 Following that approach I am of the opinion that $350 net per week appropriately reflects the economic consequences to the plaintiff of her loss of earning capacity. This figure also takes into account any loss which the plaintiff might have suffered by her inability to serve in the Army Reserve. 78 Having made that finding, it is then necessary to apply the provisions of s13(2) of the CLA to have regard to the discount for vicissitudes (Penrith City Council v Parks [2004] NSWCA 201 at [56]; Macarthur District Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145 at [6]). 79 It was submitted on behalf of the defendant that the conventional discount of 15% would need to be increased to have regard to the plaintiff's neurofibromatosis condition. The submission was that there was a possibility that this condition could become symptomatic in the future and if so it might significantly affect the plaintiff's ability to work. 80 As indicated in the review of facts, the evidence on this issue was limited. The defendant carries the onus of establishing a pre-existing condition which might affect the plaintiff's earning capacity (Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164). In this case the defendant has succeeded in discharging that onus in that the presence of the condition has been established and the evidence of the plaintiff's mother and the reports of Dr Vonau (exhibit Q) make it clear that there is a possibility of the plaintiff developing symptoms in the future. I am able to infer, it seems to me, that if such symptoms do arise they will adversely affect the plaintiff's capacity to work. 81 What the defendant has not done, however, is to indicate the likelihood of the condition of neurofibromatosis becoming symptomatic, when such symptoms are likely to arise and if they do what treatment is available. The plaintiff's mother suffers from the same condition and it has not apparently adversely affected her ability to work. 82 On that state of the evidence I am only prepared to slightly increase the figure for adverse contingencies from the conventional amount of 15% to 20%. 83 As a result of those findings, I assess the plaintiff's loss of earning capacity at $269,220 and her loss of superannuation contributions at $29,653.

Past and future attendant care 84 The plaintiff's claim for past attendant care services is based on the gratuitous assistance provided to her by her mother. In respect of the period 10 November 2002 until 8 January 2003 when the plaintiff was in hospital the claim is for 40 hours per week at $759.40 per week. Since neither the plaintiff nor her mother was cross-examined to suggest that this assistance was not provided, this claim has been made out. 85 In relation to the period 9 January 2003 to 1 November 2003 the claim on behalf of the plaintiff is for 21 hours per week at $19.50 per hour for 42 weeks. In view of the plaintiff's inability to weight bear until she returned to school in June 2003, that claim is made out for that period. The same cannot be said for the period June 2003 to 1 November 2003 keeping in mind that on 7 October 2003 the plaintiff commenced working part time for KFC. I accept that while the plaintiff was working for KFC she received some assistance from her mother in massaging her ankle after a shift, but that level of assistance was considerably less than the 21 hours per week that is claimed. I propose to allow 21 hours per week until 9 June 2003 and thereafter 7 hours per week. This produces $11,466. 86 A claim was made on behalf of the plaintiff for gratuitous attendant care services between 1 November 2003 and 1 November 2004 for 7 hours per week at $20 per hour. Although the plaintiff did receive some assistance from her mother by way of foot massage during the period, I am not satisfied that the assistance amounted to at least 6 hours per week as required by s15(3) CLA. Accordingly, I do not award any damages for gratuitous attendant care services for that period. 87 In relation to future attendant care, the claim made on behalf of the plaintiff was for 5 hours of paid attendant care at the rate of $30 per hour for the next 57 years deferred for 5 years. The basis for the claim was that when the plaintiff commences to live on her own, she would be unable to perform some of the heavier housework and would need to pay to have this done for her. It was conceded, on behalf of the plaintiff, that the figure of 5 hours was somewhat arbitrary and came from the report of Dr Buckley. Dr Buckley in that report did not explain how he arrived at that figure but merely described it as appropriate. 88 All of the medical evidence was to the effect that the plaintiff would have difficulty if living alone in performing heavy household chores. Dr Bodel in his report of 25 July 2005 thought that the plaintiff would require about 2 hours of domestic assistance per week. Dr O'Neill thought that the plaintiff would be capable of basic domestic activities but would need assistance for outdoor work such as gardening or maintenance. 89 The plaintiff's evidence was that she did have difficulty with such activities as vacuuming and hanging washing on the line. She said that if she did not have a partner living with her and was living on her own she would pay someone to do some of the heavier work about the home. 90 The plaintiff currently has a partner but it was not clear how he fitted into the household and what, if anything, he was doing by way of assistance. I am satisfied that if the plaintiff were living alone she would require assistance with the heavier aspects of housework and that she would pay for that assistance if funds were available. I am also satisfied that if she were living with a partner that person would probably provide unpaid assistance for her in relation to housework. I am not sure that the plaintiff ever performed outdoor work such as gardening and cleaning the swimming pool. In any event it has not been established that if the plaintiff were to live on her own, she would be living in a house with a garden which required maintenance rather than a unit. 91 It also needs to be kept in mind that a very long period of time is involved. The plaintiff has a life expectancy of 70 years. As she becomes older because of her disability, she may well require significantly more paid assistance in order to have household tasks performed for her. It seems to me that justice would be done between the plaintiff and the defendant if 3 hours of paid assistance for the future is allowed in favour of the plaintiff, such amount to be deferred for 5 years as was conceded by the plaintiff. This amounts to a figure of $70,800. 92 In summary, the plaintiff's entitlement to damages is as follows: Non-economic loss $213,500 Past out-of-pocket expenses $ 9,581 Future out-of-pocket expenses $ 27,574 Past economic loss $ 12,480 Future loss of earning capacity $269,220 Loss of superannuation contribution $ 29,653 Past attendant care services (gratuitous) $ 17,849 Future attendant care (paid) $ 70,800 Total $650,657

(i) I enter judgment in favour of the plaintiff in the amount of $650,657.

(ii) I order the defendant to pay the plaintiff's costs as agreed or assessed, such costs to include costs of the plaintiff's legal advisers in arranging for witnesses or other evidence as to liability, even though that evidence may not have been called at the trial. **********

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