Ziliotto v Dr Hakim

[2012] NSWSC 610

Supreme Court of NSW|2011-06-22|Before: Davies J

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Court

Supreme Court of NSW

Decision date

2011-06-22

Before

Davies J

Source

Original judgment source is linked above.

Judgment (33 paragraphs)

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Judgment 1On 28 February 2008 the Plaintiff was admitted to the Eastern Suburbs Private Hospital under the care of Dr Hakim, the Defendant, for an abdominal hysterectomy, left oophorectomy and abdominal lipectomy. During the course of the operation the Defendant ligated the external iliac artery and divided and ligated the external iliac vein. 2The result was a considerable loss of blood and serious permanent damage to her right leg. 3The Defendant has admitted liability for the negligent way in which the operation was performed and it is now necessary to determine the damages to which the Plaintiff is entitled. The Plaintiff is considerably disabled as a result of the operation. By reason of a pre-existing psychiatric condition of the Plaintiff issues arise concerning a number of the heads of damage. The issue of care was hotly disputed by reason of its being bound up with the marital difficulties that the Plaintiff has experienced and continues to experience.

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4The Plaintiff was born in Argentina in February 1955. She was, therefore, aged 53 at the time of the surgery and is now aged 57 years. 5She was first married at the age of 18 in 1973. Two children were born of that union being a son Ismael born 1974 and a daughter Vanessa born March 1975. 6The Plaintiff divorced her first husband in 1975 and remarried in 1985. Her third child, Yasmin, was born in October 1987 and her fourth and final child, Solange, was born in July 1989. 7The Plaintiff was divorced from her second husband in 1998 because, she said, of her husband's infidelity. When they separated before the divorce she suffered from depression for which she received psychological and psychiatric treatment. She said that that depression resolved about three years later. 8The Plaintiff met Tony Ziliotto (to whom I shall refer as Tony with no disrespect intended) as a result of making contact on the internet in May/June 2005. This came about because Tony was a friend of one of the Plaintiff's friends who had married an Australian man. The Plaintiff first came to Australia on 23 December 2005 and married Tony on 27 January 2006. She returned to Argentina in March 2006 to await the arrival of her spousal visa. In February 2007 she returned to Australia and commenced living with Tony in Fairfield. Her two youngest daughters, Yasmin and Solange, came to Australia in February 2008. 9After she migrated to Australia she said that she experienced adjustment difficulties including the fact that her children had remained in Argentina. Those difficulties caused her to become depressed for which she sought and obtained treatment including antidepressant medication. She had, however, suffered from depression for a number of years previously whilst living in Argentina. I shall discuss this in greater detail later in this judgment. 10She said that until the date of the incident complained of she and Tony had a successful marriage and got on very well with each other.

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16Following that operation, and by reason of the complications that ensued during it, the Plaintiff was transferred to Prince of Wales Hospital, but she does not remember anything until 6 March 2008. She remained in Prince of Wales Hospital until 2 May 2008 where she underwent the following procedures: (a) On 28 February 2008 Dr Lennox, a vascular surgeon, performed an emergency laparotomy and four compartment fasciotomy (an operation involving re-vascularistion and grafting surgery; (b) On 29 February 2008 Dr Phoo performed an embolectomy of thrombosed superficial femoral artery (removing a blood clot); (c) On 10 March 2008 a debridement of right leg wound; (d) On 16 April 2008, a right achillis tendon relief due to the development of a right foot clot. 17The Plaintiff experienced what she described as extreme pain whilst in hospital. She received morphine for the pain but it did not provide any significant relief. She said her English was not good enough, whilst she was in pain and under pressure, to make herself clearly understood. She was scared of dying and felt overwhelmed by fear of losing her left leg. The doctors had advised her that she was going to lose her right leg because it was not getting better. 18She was discharged from Prince of Wales hospital on 2 May 2008 in a wheelchair and with a walking frame to use when she was not in the wheelchair. She still had right foot drop and was experiencing very severe pain in her right leg. She had great difficulty weight-bearing on her right leg. 19The Plaintiff has suffered from low back pain for about 20 years. After the operations in Prince of Wales hospital she said her lower back pain became more intense. She said it has got worse because of her limp and her general inactivity caused by her disability. 20The Plaintiff has attended the pain clinic at Prince of Wales hospital and has been prescribed a number of medications and painkillers. She was also referred to rehabilitation to Braeside Hospital in Fairfield where she was given physiotherapy. Because of her pain and disabilities Dr Meneghetti referred her to Dr Vinicio Harrera, a psychologist, whom she has continued to see up to the time of the hearing. 21She moved from rehabilitation at Braeside Hospital to Rehab Solutions Australia at Fairfield which she attended from 29 July 2008. Treatment included physiotherapy, hydrotherapy, remedial massage, acupuncture for a short period, and gym-based exercises. 22On 23 December 2008 the Plaintiff fell down the internal stairs at home and fractured the fifth metatarsel bone in her left foot. She was admitted to Fairfield Hospital overnight and the fracture was treated in a plaster cast for six weeks. She also had to wear a special boot on her left foot. The injury eventually healed without any residue. 23By early 2009 the Plaintiff said she was unhappy with Dr Meneghetti and she consulted Dr Porta Francio, whom she has seen since that time as her general practitioner. Dr Francio referred her to Dr Jose Menendez, consultant psychiatrist, on 12 November 2009, and she has continued to see Dr Menendez ever since, usually about once a month. 24The Plaintiff said that since the operation she has suffered and continues to suffer from constant pain affecting the whole of her right lower leg, foot and toes. She gets severe cramp-like pain in her right lower leg, foot and toes and she has weakness and loss of sensation in those body parts. She has tingling and pins and needles in the right foot. She says her pain is worse in cold environments. She says that she has difficulty moving the toes of her right foot which are stiff. The toes curl under so that they have a claw-like appearance. 25She said that her right lower leg changes colour, it is weak and constantly feels as though it will give way. She said that she wears an ankle brace on her right lower leg all the time at home when she is resting and another style of brace when she is in bed. 26At home she uses a walking stick and when she goes out for local activities such as shopping she is either in a manual wheelchair pushed by her husband, or on an electric scooter. 27If she sits with her right foot on the floor she finds that the pain in her right leg and foot increases significantly. Accordingly, she prefers to sit with her right foot elevated and supported on the stool, preferably with a cushion. 28Ordinarily, she uses the internal stairs at home only twice daily. She must use the stairs very slowly, stepping sideways one step at a time to each step. She has difficulty sleeping due to pain and discomfort. 29The Plaintiff said that she was able to walk on flat surfaces but she avoids walking on uneven ground or up and down hills. She is able to walk up and down stairs with difficulty, relying on the handrail and her walking stick for support. She avoids kneeling and is unable to squat. 30She cannot lie in bed on her right side due to pain. When she lies in bed she elevates and rests her right foot on a cushion. 31She lives with Tony in a townhouse that he has owned for many years. It is a two storey, three bedroom townhouse with a toilet and baisin on the ground floor and a bathroom with a shower on the first floor. Three bedrooms are upstairs. The flight of stairs has 14 stairs which are very steep. 32The townhouse is very small and she cannot use her wheelchair at home. She walks with a walking stick around the home and for short distances, no more than 60 to 80 metres. Anything in excess of that causes extra pain. 33Outside the house she can use an electric scooter to travel to nearby places such as to go shopping. 34The Plaintiff does not have a driver's license in Australia. She attempted to get one on two occasions but was unsuccessful as she failed the general knowledge test about the rules of the road. She had a driver's license in Argentina. 35The car Tony owns is not big enough to house the electric scooter. Accordingly, if she is not able to drive her electric scooter to places like the Westfield shopping centre she travels there in the car or is pushed in her manual wheelchair by Tony and then she hires an electric scooter at the shopping centre. 36The Plaintiff said that she regularly loses her balance and, although she has only fallen once on the stairs, she is always fearful of losing her balance and injuring herself. 37The Plaintiff says that she can now hardly do any domestic duties including the preparation of other than very simple meals. This is because of her inability to stand for any period of time. She has relied on Tony to do most of the housework although since about October 2010 her husband has paid for a cleaner to come two days a week for two hours at a time. 38She is reliant on Tony for transport to and from activities and medical appointments. The electric scooter has helped in this regard and she is able to travel to the local shopping centre across the road from their home and to the doctor and hydrotherapy sessions within the local area. 39Previously the Plaintiff liked going to the theatre, to museums, to movies, to art exhibitions and out to dinner. She says that her pain and loss of mobility has created great problems in pursuing theatre interests and other social activities generally because of the stairs involved in those places. 40The pain and discomfort in her right leg has prevented her from enjoying a normal sexual life and she has lost interest in sexual activity. This affected her marriage and she feels that Tony is unhappy about it. 41Her weight has increased significantly by up to 20 kilograms. However, she had been putting on weight before the operation, and from shortly after arriving in Australia. She variously gave as the reasons for the increased weight before the operation as "when I came here all the people gain weight, I don't know why" and the medications (probably the anti-depressants) she was taking. 42When she gave evidence she said that her marriage had deteriorated as a result of her problems. She was not easy to be with. She argued with Tony and they fought. Since the operation Tony had given her much help and care but he said the relationship was bad and the marriage would not continue. The Plaintiff said she was unable to leave the marriage and the family home until the case was concluded because she did not have the money to obtain her own home, and she could not afford to pay for the amount of care and assistance that she needed. She said she intended to get a divorce and live in her own home. 43The hearing commenced in June 2011. It was thereafter adjourned at the Plaintiff's behest so that further expert evidence could be obtained. When the hearing resumed in December 2011 I was informed that the Plaintiff and Tony had divorced in the interim. Documents evidencing the divorce were tendered. The Plaintiff and Tony had both given evidence prior to the divorce. The Plaintiff's evidence, as I have said, was that she intended to get a divorce. Tony's evidence was that he would not resist if she sought a divorce, but that he would not do anything to initiate it because he felt that he had obligations towards her. 44It appears, although it was not made clear, that the Plaintiff continues to reside with Tony at his townhouse, and that this is so because, until she receives an award of damages in the matter, she is not (as she said) able to afford to move to other premises. 45In the light of particular heads of damage claimed, it is necessary to make reference to some further aspects of the Plaintiff's history in Argentina. 46In 1978 the Plaintiff obtained a Bachelor of Arts degree, and in 1979 she completed a Diploma of Literature. Both of these courses were undertaken at the University of El Salvador in Buenos Aires. She later completed a Diploma in Special Education and in High School Administration. 47The majority of her working life was as a high school literature teacher for a period of 21 years. For three of those years she was the principal of the school. At the same time she also owned a childcare business which employed up to ten staff. However, that childcare centre went broke. 48As noted earlier, it appears that the Plaintiff first suffered from depression at the end of her second marriage in 1998. She was put on antidepressant medication at that time. She had to cease work for a period of six months because of her psychological symptoms. During that time she was cared for by her mother and saw a psychiatrist approximately once a month for a period of six months. 49In 2004 her mother died in Argentina from leukaemia. The Plaintiff again experienced depressive problems after her mother's death because they had been very close. She again saw a psychiatrist and was prescribed Efexor which she was still taking at the date of the incident. 50At her second consultation with Dr Peter Klug, the psychiatrist retained by the Plaintiff's solicitors, she disclosed that in March 2005 she was admitted to a psychiatric hospital for approximately six and a half weeks. In that hospital she had various types of therapy and attended groups including group therapy, music therapy, craft groups and yoga groups. She had a trial of medication which caused side effects. Her medication was not changed by her treating doctors in hospital, so her family requested she be transferred to another hospital. Her medication was changed and she began to improve. She was discharged on Venlafaxine and Clonazepan. She remained well on those drugs until 2007. When she came to Australia in 2007 her GP here ceased the Clonazepan but she continued on Venlafaxine. 51It is to be noted that the Plaintiff did not disclose this admission to the psychiatric hospital when she first saw Dr Peter Klug, not did she disclose it when she saw Dr Kathryn Lovric, the psychiatrist retained by the Defendant in the matter. 52It transpired during cross-examination of Tony Ziliotto that the Plaintiff had never told him before they married that she had been taking antidepressant medication nor that she had been hospitalised in a psychiatric hospital in Argentina. Those failures on the Plaintiff's part cause me to scrutinize her evidence with great care because the failures suggest a certain lack of frankness that was certainly expected both with Tony and the psychiatrists who examined her. 53The information came to light when material was obtained from a doctor in Argentina. That doctor provided a report which said that the diagnosis of the second hospital to which she was admitted in Argentina was that she was a patient "who was severely disturbed, with a depressive background". A number of antecedent matters were said to be causative including the infidelity of her second husband after the birth of Solange in 1989, the death of the Plaintiff's mother, and the actions of Solange's father taking her away to live with him. 54After Dr Klug became aware of the further history in Argentina he made a number of enquiries of the Plaintiff at the second consultation with her. Those enquiries ascertained that in 1989, when she discovered that her then husband was having an affair, the Plaintiff attended a psychotherapist because she was distressed and depressed. She was then medicated for two years with the antidepressant Imipramine. 55When Drs Klug and Lovric prepared their joint report of 15 June 2011 it does not appear that the experts had seen all of the material pertaining to the Plaintiff's psychiatric history. The joint report said that the doctors were in agreement that the Plaintiff was not suffering from a clinically significant depression at the time she underwent the surgery in February 2008. They added this: We agreed that the above issues pertaining to Ms Ziliotto's past episodes of depression required further clarification as they could potentially imply that Ms Ziliotto's past depressive history was of greater severity than we documented in our reports. If there were no evidence of a Melancholic type of depression, psychosis or suicidality, we would not consider her past episodes of depression to have been severe. 56When the psychiatrists gave concurrent evidence it was Dr Lovric's view, particularly from an examination of notes of the Plaintiff's Australian psychiatrist Dr Menendez, that she suffered from a more significant depression in 2007 prior to the surgery and more significant depression earlier in her life. He thought she may have suffered from an episode of psychosis during her hospitalisation in Argentina because, it would seem, she was prescribed the antipsychotic medication Zyprexa. Dr Lovric said that Dr Meneghetti's comments in her notes were that some 14 family members on the Plaintiff's father's side had suffered from psychiatric illness. On the other hand, Dr Klug said that he did not change his opinion based on a perusal of the documents that he had more recently seen. He did not think that the prescription of Zyprexa was an indication of psychosis although he acknowledged that there was some "very cursory reference" to psychotic symptomatology in the material. 57Both doctors acknowledged that the length of time she spent in the psychiatric hospitals in Argentina was an indication of the seriousness of her depression. 58In their joint report the psychiatrists agreed that given her past history of depression prior to the surgery in 2008 there was a high likelihood that she would have relapsed at times of stress in her life. They noted that she had been on antidepressant medication continuously since 2004 right up to the time of the surgery. They agreed that even without the surgery and the complications from it any reasonable psychiatrist would have recommended that she should continue on the medication at that time. 59They agreed that if her depressive illness was not shown to be in substantial remission in 2007 prior to the surgery, it would have been less likely that she would have required ongoing psychiatric care at the time of the surgery. In that regard there were entries in both sets of general practitioner records in 2007 documenting that she was depressed that year and was referred to a psychologist. 60With that background it is convenient to consider the matter under the particular heads of damage claimed by the Plaintiff.

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61The Plaintiff claims the sum of $390,000. That is equivalent to 75% of the most extreme case. 62The Plaintiff submits that prior to the operation the Plaintiff was a strong, independent and outgoing woman. She was well educated and worked in a number of jobs including as a teacher for 21 years. The Plaintiff points to the fact that she completed a number of courses when she arrived in Australia including an English language course. She then worked long hours for Sydney Home Child Care. She had an active life outside work involving the theatre, galleries, museums, movies and dining out. 63By contrast, the Plaintiff is now said to be an inactive and depressed woman who endures constant pain. She is very restricted in her activities and even in her ability to look after herself. It is said that the Plaintiff has lost her working life and career, her social life, her mobility, her independence, her freedom of movement and her sexual life. In addition, she has now lost her marriage. 64The Defendant draws attention in particular to her pre-existing depression including periods of time in Argentina when she was unable to work at all by reason of that depression. The Defendant also draws attention to matters which might be thought to affect the Plaintiff's credit, particularly with the inadequate or untruthful histories given to some of the doctors and the fact that she did not disclose a number of matters to Tony Ziliotto about her past including the extent of her depression and financial and other problems she had had in Argentina. The Defendant submits that she should be regarded as 50% of a most extreme case. 65In my opinion, there can be little doubt that the Plaintiff has been badly injured as a result of the operation that was performed so negligently upon her. As a result she has been left in a very disabled condition. I do not have any doubt that she continues to suffer a great deal of pain which the rehabilitation doctors described as neuropathic pain. 66Her lack of frankness with Tony about her psychiatric history may be understandable out of a sense of embarrassment, and is of little consequence in these proceedings except if it is necessary to consider the issue of the marriage breakdown, but her lack of frankness with the psychiatrists is in a different category. Indeed, the matter went further than a lack of frankness. Dr Lovric expressly asked her if she had ever been psychiatrically hospitalised and she denied it. 67In my opinion the Plaintiff was endeavouring to minimise her pre-existing psychiatric problems although (except for the lie to Dr Lovric) I cannot conclude that she was doing so deliberately or dishonestly. I think it is likely that she honestly believes that most of her present problems, particularly the psychiatric ones, stem from the operation and what followed. 68Apart from this perhaps unconscious tendency to minimise the pre-existing psychiatric problems I consider that the Plaintiff endeavoured to give her evidence honestly. I do not doubt that she experiences pain of varying intensity a great deal of the time. Nor do I doubt that she is disabled to a marked extent as a result of the problems with her leg. She was prepared to make appropriate concessions. For example, she volunteered when being asked about problems with her lower back that she had always had pain in her lower back for some twenty years. There is no doubt that her quality of life has been impaired to a significant extent. 69Although it is not always easy to point to specific reasons for the break up of a marriage or a relationship, I can accept that what befell the Plaintiff as a result of the operation had a significantly detrimental effect upon her marriage which was of relatively recent origin. There does not seem to be much doubt that other factors were at play here, not the least of which was in relation to her daughter Solange who left me with the impression of being a selfish and uncooperative daughter who was not prepared to put herself out for her mother. Tony was frank in his evidence concerning the difficulties with Solange. It is not necessary for me to say anything about who is to blame for the breakdown in the relationship between Tony and Solange, but Tony greatly impressed me as a man of decency and principle who, despite the continuing unhappiness in his marriage, saw that he had obligations to the Plaintiff which he was quite prepared to continue to carry out so long as the Plaintiff wished to remain in the marriage. As matters transpired during the course of the hearing, the marriage came to an end. As I have said, I have no doubt that the operation and its sequelae was a factor in that breakdown. 70I do not overlook the Defendant's submissions suggesting a more optimistic outlook for the Plaintiff when the litigation is concluded and I do not overlook the fact that the Plaintiff's psychiatric condition is only partly attributable to the operation. 71Making an assessment of a percentage of the most extreme case is always a matter of impression. Taking into account the specific matters that I have mentioned and the other matters contained in the written submissions, in my opinion the Plaintiff should be assessed at 65% of the most extreme case. Damages for non-economic loss therefore equals $338,000.

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(a) Occupational therapist 74The third joint report of the occupational therapists of 19 September 2011 indicated agreement on 14 hours for one off occupational therapy for advice on home modifications including therapist travel. The report also agreed on six hours every three years including therapist travel for equipment review. When the occupational therapists gave concurrent evidence Ms Flanagan said that she believed that 14 hours was in effect a typographical error and that it should read 24 hours. 75Ms Cheel did not make any comment in relation to that. In particular, she did not say that Ms Flanagan was wrong in suggesting that 14 was a typographical error for 24. Moreover, in Ms Cheel's original report of 28 April 2011 she recommended in paragraph 4.6 that there should be an allowance for 22 hours for what amounted to one off advice and liaison regarding home design and home modifications. Further, in the first joint report of the occupational therapists they agreed on a one off 24 hours intervention and thereafter six hours on an annual basis. 76I do not overlook the fact that in the third joint report the occupational therapists were asked to assume the Plaintiff would be living in a modified house and that might lead to the view that fewer hours would be needed for the initial consultation and assessment than had been estimated for her existing residence. Nevertheless, the matters to which I have referred all lead me to conclude that Ms Flanagan is correct in saying that 14 was a typographical error for 24. An amount of 24 hours for one off occupational therapy for home modifications advice should be allowed. The occupational therapists agreed that the rate was $150 per hour plus GST. Accordingly, I allow $3,960 ($165 x 24). 77In their third report the occupational therapists agreed on six hours of occupational therapy every three years. The Plaintiff points to the second joint report of the rehabilitation specialists where Dr Buckley proposes an annual visit of an occupational therapist for four hours. I note that the other rehabilitation specialist, Dr Dalton, did not agree with that recommendation. In my opinion the occupational therapists are best placed to decide what is needed in terms of future occupational therapy. There will be an allowance for one visit of six hours each three years. The first such visit should be three years after this judgment. Given that her life expectancy is approximately 31 years, ten such visits should be allowed. For calculation purposes I allow 1/3 of a visit each year for 30 years at $165 per hour ($6.30 x 841.3 = $5300.19). I allow $5,300. 78The total for occupational therapy is $9,260.

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(c) Psychiatrist 82In his first report Dr Klug was of the opinion that the Plaintiff required monthly psychiatric intervention at a cost of $300 per month. At the time of that report Dr Klug did not have available the further information concerning the Plaintiff's psychiatric history in Argentina. When he prepared his second report he had seen that material. He was prepared to say that, although she had not revealed her full psychiatric history to him, she was well at the time of the surgery, and the complications of the surgery had played a substantial causative role in her then current chronic depressive episode. She had had a pre-existing vulnerability but she was well. 83In the joint report Dr Klug and Dr Lovric said this: We agreed that if her depressive illness had been in substantial remission prior to the surgery, that it would have been less likely that she would have required treatment by a psychiatrist or a psychologist at that time had she not suffered the adverse sequelae of the surgery in February 2008. Conversely if her depressive illness was shown to be not in substantial remission in 2007 prior to the surgery, it would have been more likely that she would have required ongoing psychiatric care at the time of the surgery. 84The joint report said also that there was a high likelihood, given her past history of depression, that she would have relapsed at times of stress in her life. They noted that she had taken antidepressant medication continuously since 2004 and was still on it at the time of the surgery. They said that even if she had not been through the problems with the surgery there would likely have been periods of time during which she would have been unemployable because of her recurrent depressive illness. They concluded in that regard: Based on her history of recurrent depression, it was more likely than not that she was going to suffer from future episodes of depression, perhaps triggered by stress or occurring de novo. It was likely that future episodes of depression would have been of at least similar severity to her previous episodes, which necessitated time off work. 85Based upon the opinions of the psychiatrists, I consider that even if the Plaintiff had not been injured as a result of the operation she would from time to time have needed psychiatric intervention and would have continued on her psychiatric medication. I do not consider that the Plaintiff was free of her psychiatric problems at the time she underwent the surgery although they appear to have been under reasonable control by the medication she was taking. 86There remained stresses in the Plaintiff's life involving her children and particularly Solange. On the one hand there were some difficulties because the Plaintiff was away from her children who were in Argentina. On the other hand, when Solange was present her presence created tension within the relationship between the Plaintiff and Tony. He gave evidence, for example, that he used to complain to the Plaintiff often about Solange and that the Plaintiff did not like that. She saw him (on Tony's understanding) as being an interfering stepfather. Although things improved when Solange returned to Argentina it seems to have been the intention for her to return here so the tension was not far below the surface. After Solange's return in February 2008 it has continued to be a source of tension with the Plaintiff. On the view of the psychiatrists there was a high likelihood that the Plaintiff would have relapsed into a depressive state at times of stress. 87On the other hand, the Plaintiff would not have needed monthly psychiatric intervention at all times. The psychiatrists both agree that the operation and what followed have been a significant cause of her present depression. 88In my opinion, the Plaintiff should be entitled to have the cost of a monthly consultation with a psychiatrist for the remainder of her life less one third of that period where she may have needed psychiatric intervention as a result of relapses that might be expected. The Plaintiff claims at the rate of $300 as referred to by Dr Klug. However, the Medicare records show that the Plaintiff has in fact been paying Dr Menendez no more than $150.20 for a 45-75 minute session. I note in passing that her visits to Dr Menendez appear to have been less frequent than monthly, but I accept the evidence of Drs Klug and Lovric that monthly consultations should be allowed. 89I allow $150.20 x 12mths/52 wks x 841.3 = $29,160 less 1/3 = $19,438 rounded to $19,500.

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(g) Pain management 100The Plaintiff's primary claim here is for intervention by a multi-disciplinary team for the next 12 months on four occasions, the following year on three occasions, and thereafter at six monthly intervals for the rest of her life. This is said to be supported by Dr Buckley's view that her pain is permanent and that she will continue to require significant assistance in managing it. Dr Dalton, on the other hand, thought that pain management intervention was required on a six monthly basis but only for a limited period. He explained his view on the basis that once the patient was stabilised they were ordinarily referred back to their GP to maintain the program. 101Up until about May 2010 the Plaintiff was receiving four interventions annually in pain management but the clinic at that time reduced her reviews to six monthly intervals. On that basis alone, there can be no justification for providing for four reviews in the next 12 months and three in the following year. 102The real issue for determination is whether she should have pain management intervention twice a year for a limited period or for the remainder of her life. 103In my opinion, Dr Dalton's view is to be preferred. My understanding is that the purpose of pain management clinics, which may involve a multi-disciplinary approach including perhaps psychologists or psychiatrists, is that a person is taught to manage their pain with the assistance of medication and other means. When stability is reached in that management it simply needs to be maintained and that is ordinarily able to be done by the patient's general practitioner. My understanding accords with the views expressed by Dr Dalton. 104The Plaintiff has been attending pain management consultations for four years. The decision to reduce her to six monthly reviews in about May 2010 points to some stability in her position. In my opinion it would be appropriate to allow six monthly reviews for a further two year period but not thereafter. Dr Buckley provides a cost of $460 for the first visit with the pain specialist each year and $230 for a second or subsequent visit. For a two year period I allow $1380.

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(j) Hydrotherapy 109Both rehabilitation specialists agree that hydrotherapy is recommended. 110The issue of hydrotherapy involves two matters. First, should the Plaintiff have a small, domestic, heated swimming pool at home in which hydrotherapy can be conducted? Secondly, how many times per week is hydrotherapy reasonably required? 111In relation to the first matter both of the occupational therapists and Dr Dalton are of the view that the Plaintiff does not require her own swimming pool. Dr Bhar, the pain management specialist is of a similar opinion. Dr Buckley, on the other hand, thinks that it would be advantageous for her to have her own pool so that she can access it whenever she wishes without the need for being transported to a public pool. This issue is dealt with later in the judgment. 112In my opinion, the Plaintiff has been able to access appropriate hydrotherapy at a public pool since undertaking that form of therapy. It is not reasonable to require the Defendant to pay for a pool at any house where the Plaintiff will be living. The weight of medical and paramedical opinion is against such a proposition. 113The Plaintiff claims for four, alternatively three, hydrotherapy sessions per week at Rehab Solutions.. The Defendant submits that two is adequate. 114In May 2010 Dr Bhar recommended that the Plaintiff have three sessions per week on Monday, Wednesday and Friday of each week because she had been overdoing it with sessions very close together with the result that the subsequent session was not achieving very much. 115Dr Dalton said that one could not be prescriptive about how many times per week a person in the Plaintiff's position should undertake hydrotherapy. He said that some of his patients went once a week, some three and some five times per week. Dr Buckley made similar comments but said that he suggested to his patients that they undertook their exercise three or four times per week. 116A subsidiary issue in this regard was whether the Plaintiff needed a personal trainer to undertake the hydrotherapy or whether it would be sufficient that she was at a public pool with supervision. 117The occupational therapists recommend only that the Plaintiff have an annual pool pass to enable her to have hydrotherapy at a cost of approximately $600 per year. Hitherto the Plaintiff has undergone hydrotherapy at Rehab Solutions at a cost of $60 per visit. 118In my opinion, the Plaintiff should be allowed the cost of an annual pool pass for the remainder of her life (probably a generous provision because she will use it less frequently as she gets older) with an additional small sum to enable occasional visits to Rehab Solutions. 119I allow $12 per week for a pool pass ($12 x 841.3 = $10,095.60). I will round this up to $11,000 to include a small provision for hydrotherapy at Rehab Solutions.

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(m) Pharmaceuticals 125The parties agree that the following medications should be allowed to the Plaintiff: (a) Gabapentin at a weekly cost of $16.80. Using the multiplier of 841.3 and rounded down I allow $14,000 as claimed. (b) Durogesic patches. The Plaintiff said that she uses a patch every 72 hours for neuropathic pain. On that basis she uses 2.33 patches per week. There are five patches per packet at a cost of $34.20. The weekly cost is therefore approximately $16. The cost over the Plaintiff's lifetime is therefore $13,461. (c) Oxynorm. The weekly cost is $9.38. I allow $7891. (d) Paracetamol. The weekly cost is $0.28. I allow $236. 126The Plaintiff also claims for Nulax, Movicol and Coloxyl with Senna. Those medications are concerned with the Plaintiff's bowels. The rehabilitation specialists agreed that those medications were required by reason of the adverse sequelae of the abdominal hysterectomy. The Plaintiff in her submissions says that she takes six to eight tablets a day of these medications. The only evidence she gave "sometimes" taking Coloxyl with Senna. However, in the absence of any challenge to the rehabilitation specialists' opinion I consider the Plaintiff should be allowed the cost of these medications. I allow $4500 as claimed. 127The Plaintiff next claims for Cartia which is a low dose Aspirin that operates as a blood thinner. In their joint report the rehabilitation specialists included Cartia as one of the tablets required by reason of the complications with the operation. However, when I asked questions of the specialists Dr Dalton thought that it was not related to the hysterectomy and thought that whether it related would depend upon when it was commenced. Dr Buckley observed that the Plaintiff would have a higher risk of developing DVT in the leg by reason of the complications from the operation. The Defendant submitted that Dr Buckley's evidence was not such that I could conclude on the balance of probabilities that Cartia was needed as a result of the operation. 128The Plaintiff was asked about it in cross-examination and she said that the doctor in the hospital gave it to her for circulation. As noted earlier, two of the procedures the Plaintiff underwent after the operation were in relation to the development of blood clots. On balance, therefore, and in the light of the comments of both Dr Dalton and Dr Buckley it should be accepted that the Plaintiff takes that drug by reason of the operation and its complications. I allow $500 as claimed. 129The Plaintiff also claims for Effexor, an antidepressant. The joint report of the rehabilitation specialists included this amongst the list of tablets said to be needed as a result of the complications of the operation. However, the Plaintiff had been on antidepressants for a number of years before the operation, and Dr Buckley recorded in his report of 11 June 2010 that she had taken Effexor at the time she was admitted to hospital. In those circumstances the claim in respect of this tablet should be disallowed. 130The Plaintiff claims also that because Drs Klug and Lovric agreed that she should have her psychiatric medications reviewed, and because it was anticipated that she might require drugs not subsidised on the PBS the costs of her psychiatric medications would increase between $50 and $100 per month. 131However, the joint report of the psychiatrists does not support that she will be receiving non-subsidised medication. Rather, it says "if" a non government-subsidised medication were selected, then the cost of treatment could increase between $50 and $100 per month. In my view nothing should be allowed in relation to this. 132The total for future medication is $40,588.

[22]

140The Plaintiff claims care based upon Ms Flanagan's original assessment of the number of hours divided into discrete periods. The total of the hours assessed by Ms Flanagan was for $3,362.61. An amount is claimed of $81,600 based on a statutory rate of $24.27 per hour said to be the average statutory rate from February 2008 to the present. 141The Defendant allows $30,874.58 for past care on the basis of calculations set out in a Schedule provided during addresses. Certainly, Ms Cheel assessed fewer hours over the period. These differences are made clear in the first joint report of the occupational therapists. The Plaintiff submitted that in the first joint report of the occupational therapists Ms Flanagan noted that she would revise certain of the periods down if the Court accepted certain assumptions relied upon by Ms Cheel. It was then submitted that those assumptions should not be accepted. In my opinion, that is not what the joint report says. Ms Flanagan says in a number of places: However, considering the information provided to Ms. Cheel at her assessment on 28 April 2011 as described above I consider X hours per week is appropriate. 142In my opinion Ms Flanagan was accepting the information that was provided to Ms Cheel with the result that Ms Flanagan was prepared to reduce the number of hours as indicated for each period. 143I accept the revised hours as indicated by Ms Flanagan. For some of the periods those revised hours are identical with the number of hours assessed by Ms Cheel. For some other periods they exceed Ms Cheel's hours, but on the basis of the Plaintiff's evidence of her infirmities I accept Ms Flanagan's revised figures. 144However, I do not accept the need for any domestic assistance during the periods the Plaintiff was in hospital from 28 February 2008 to 1 May 2008 and on 16 and 17 December 2008. 145Past care is allowed for on the following basis: DATES NUMBER OF WEEKS HOURS PER WEEK TOTAL HOURS 2 May 2008 - 31 July 2008 13 13.75 178.75 1 August 2008 - 30 September 2008 8.6 11.5 98.9 I October 2008 - 15 December 2008 11 10.33 113.63 18 December 2008 - 31 December 2008 2 13.75 27.5 1 January 2009 - 26 January 2009 3.7 13.75 50.875 27 January 2009 - 2 June 2010 18 11.5 207 3 June 2010 - 6 June 2011 53 11.5 609.5 7 June 2011 - 27 July 2012 59 11.5 678.5

[24]

147The Plaintiff, chiefly relying upon Dr Buckley's opinion, claims 13.5 hours per week personal care and domestic assistance for the next five years, being 7 hours personal care, 4.5 hours domestic assistance and 2 hours assistance with shopping. Thereafter, the Plaintiff claims 27.5 hours personal care and domestic assistance being made up of 21 hours of personal care, 4.5 hours of domestic assistance and 2 hours assistance with shopping. In addition to both of these, the Plaintiff claims 3 hours per week for gardening/handyman assistance and 0.5 hours for pool care on the assumption that it is considered reasonable that she will be provided with a hydrotherapy pool. 148The Defendant submitted that a reasonable provision for future care was 3.5 hours per week inside the house and 1 hour per week for outdoor/handyman assistance. 149In the joint report of the rehabilitation experts the doctors agreed that the Plaintiff needed 4.5 hours per week for housework, cleaning and meal preparation. In addition, Dr Buckley said that she needed 2 hours per week for shopping but Dr Dalton considered that with her ability to use a shopping scooter and to shop online she did not need that assistance. Dr Buckley thought she needed a handyman for 3 hours per week whereas Dr Dalton thought that such a person was needed for 3 hours per fortnight. 150By contrast, the occupational therapists were asked to assume in their third joint report that the Plaintiff would divorce her husband and thereafter live in a separate residence initially, but for an unknown duration of time, with her daughter Solange, but would not in either the short term or long term receive any significant care and assistance from Solange. On those assumptions the occupational therapists considered that future personal care assistance was not supported, nor was attendant care or companion care. They thought that she would require 2.5 hours per week assistance for cleaning and heavy laundry and that 3 sessions for window cleaning of 3.25 hours per year was supported. They considered that 4 hours should be provided for a gardening and handyman per month. 151Whilst there are reasons to prefer the views of the occupational therapists over those of the rehabilitation specialists (both of the occupational therapists observed the Plaintiff at her home and formed their assessments of what she was able to do and for what she needed assistance, and their experience generally would make them the better judges of an injured person's needs for the sort of assistance under consideration) no real explanation has been provided by the occupational therapists for why the Plaintiff's needs in this regard will diminish so much when she cease to live with Tony in his house. For that reason I consider that I should accept the opinion of the rehabilitation specialists that the Plaintiff requires four and a half hours per week for housework, cleaning and meal preparation. 152On the other hand I consider that the assessment by the occupational therapists of the need for a handyman/gardener four hours per month is adequate. It is to be remembered that the assumption is that the Plaintiff will be living in a new custom built house modified for her needs. I accept their assessment also of the need for window cleaning three times per year for 3.25 hours per visit. I consider that these assessments must be regarded as being somewhat in the Plaintiff's favour in the short term because I do not accept that Solange is unable to provide some assistance to the Plaintiff, nor do I accept that she will not do so if it is needed. Hitherto, she has been able to depend on Tony looking after the Plaintiff's needs. However, the likelihood is that she will not remain living with the Plaintiff in the long term. 153I do not consider that any separate allowance should be made for shopping assistance. The occupational therapists did not consider it was needed and that opinion accorded with Dr Dalton's view. 154I do not consider that any provision should be made for pool maintenance because, for reasons which I will detail later, I do consider it is appropriate that the Plaintiff should be provided with a hydrotherapy pool. 155Accordingly, future care is allowed on the following basis: 4.5 hours per week for domestic assistance; 4 hours per month gardening and handyman assistance; 10 hours per year for window cleaning. 156I, therefore allow future care on the basis of 5.6 hours per week at $24.27 per hour x 841.3 = $114,343 rounded to $114,400.

[25]

157Although the Plaintiff arrived in Australia to live permanently in February 2007 she did not commence any form of employment until she entered into an agreement with Childcare Services of NSW Pty Ltd on 18 November 2007. That was an agreement to work as an independent contractor with that company from 18 November 2007 to 30 June 2010. Under the arrangement she provided childcare to various clients of the company. She was paid on an hourly basis as an independent contractor. 158She first worked under this arrangement on 29 November 2007 and continued to do so until 17 February 2008. Most of the work was performed for one particular client in Maroubra although she carried out brief work for two other clients, one in Ryde and one in Camperdown. 159Her work records show that she worked long hours including working seven days per week during a number of weeks in that period. She was paid $24 per hour gross. 160The Plaintiff says that on average she worked six days per week through the period, ten hours per day at $24 per hour. Accordingly, her gross wages were $1440 per week. 161The Defendant says that her tax return for the year shows that she earned $13,923 in a 12 week period. Accordingly, her gross wages on average per week were $1160.25. In my opinion the Defendant's approach to her average weekly wage is the correct one since it is based on her actual earnings over that period. 162The Plaintiff had liability insurance with QBE at a cost of $200 per month. In addition, she had income protection insurance at a cost of $70 per month. She gave evidence that her weekly travelling expenses in relation to work were $60. Accordingly, there should be deducted from her average gross weekly wage of $1160.25 the sum of $62.30 for insurances and $60 per week for fares. The Plaintiff says that the income protection insurance is not a deductible expense because it is discretionary. I think I can take judicial notice of the fact (as the Plaintiff's counsel agreed) that the ATO allows such premiums to be deducted whether they are classified as a work-related expense or otherwise. In any event, the Plaintiff chose to pay such premiums and they were in fact an expense she incurred in earning her income. 163The Plaintiff submits that the amount to be deducted for fares should be reduced to $40 per week on the basis that if she was not living in Fairfield she could choose to live at an address closer to where she was working. However, it is not apparent from the evidence that the Plaintiff had a choice about where she would perform the childcare work. In the short period she worked for the company she worked at three different locations. It does not seem to me there is any basis from acting other than on the evidence of the short period that the Plaintiff did carry out her childcare work. Accordingly, and for ease of calculation, I shall work on the basis that her taxable income was $1050. Using the Furzer Crestani Services Guide her net income would have been as follows:

2008 - $822.73
2009 - $838.21
2010 - $843.96
2011 - $852.59
2012 - $852.13 164The Plaintiff gave evidence that she expected to be off work for about six to eight weeks after the operation. I shall assume, therefore, that the Plaintiff would have resumed work on 21 April 2008. Since she was self-employed I have assumed she would take four weeks annual holiday for which she would receive no income. 165He past wage loss is calculated as follows: 2008 (from 21 April - 37 weeks) $30,441 2009 $40,234 2010 $40,510 2011 $40,924 2012 (to 30 July - 31 weeks) $26,416

$178,525 166Although the detail of the Plaintiff's work in Argentina is unknown, what is clear is that there were some prolonged periods where she did not work chiefly because of her depression. The view of the psychiatrists was that there would be periods of time when she would again suffer from depression whether triggered by external events or otherwise. It is appropriate, therefore, to apply a discount to this period to allow for periods of time where the Plaintiff may not have worked. It seems clear enough that matters in the marriage would not have been clear sailing particularly because of the problems with Solange. Further, the Plaintiff was herself worried about Solange and the problems that she apparently suffered from. It is not unreasonable to think that these sorts of matters may have triggered the Plaintiff's depression from time to time that would have left her unable to work for periods of time. The Defendant submits that a discount of 35% should be applied for this period. In my opinion, that is too high. I consider it appropriate to apply a 15% discount for the past period. 167Her past wage loss is therefore $151,746. 168She is entitled to interest at the rate of 5.49% for 2 years 3 months (being half the period) amounting to $18,744.

[26]

169The Plaintiff claims that she has no future earning capacity. She claims on the basis of the net figure derived from $1440 gross per week with an amount added for wage inflation of 3.5% over the past four years. The claim is for a present value of $11,076.37 net per week until the Plaintiff turns 67 years of age. The Plaintiff submits that there should only be a 15% discount applied for vicissitudes because the Plaintiff would not have substantial periods of time off work from her pre-existing vulnerability to depression. The Plaintiff concedes, however, that if a percentage was to be added in relation to the depression the total adjustment for vicissitudes would not exceed 20% in total. 170The Defendant accepts that it is unlikely that the Plaintiff will return to work on the open labour market. The Defendant draws attention to what must be found for the purposes of s 13 Civil Liability Act 2002 and points to the following relevant matters: (a) her contract with Childcare Services was for a fixed term and would have expired by the time of trial. Further, there was no evidence that she would have continued to be engaged by them at the conclusion of the contract; (b) her work history in Australia was short making it difficult to determine what earnings she was likely to have received on an ongoing basis. In addition it would have to be taken into account that she might want to return to Argentina for periods of time; (c) the Plaintiff suffers from other problems including gallbladder complaints, lower back pain, arthritis in the hands and elsewhere, and depression. 171In relation to what must be found under s 13 the Defendant sought to rely upon a report from Mr James Athanasou who was said to be a consultant in vocational guidance. Mr Athanasou expressed the opinion in his report that it was unlikely that the Plaintiff would have continued working much beyond 55 years in personal service work but she thereafter might have considered other employment or part-time work. The parties argued about the admissibility of Mr Athanasou's report and I rejected the report but said that I would give my reasons for doing so in this judgment. 172The report was rejected for two reasons. The first concerned the expertise of the author. His curriculum vitae shows impressive qualifications. He has a Bachelor of Arts (Univ of NSW), a Master of Arts (Univ of Sydney), Bachelor of Letters (Univ of New England - Exceptional Merit), a Diploma of Education (Univ of New England) and a Doctor of Philosophy (Univ of New England). He also discloses his authorship of a number of books and publications. He lists his appointments as Associate Professor and Adjunct Professor at various institutions. He identifies his most recent university consultancy. He says that he specialises in the field of vocational guidance and assessment. His report, on the other hand, is largely an assessment of statistics and he draws conclusions from those statistics. He does not show that he has any particular expertise in relation to statistics. 173The second reason for rejecting the report relates to the conclusions he draws from the material he relies upon. Two extracts provide a fair summary of his material. The report says: I have considered three sets of information in determining her likely vocational potential had the accident not occurred. Firstly I considered the pattern of employment of females in community and personal service work and showed that this declines with age; then I show that the overall participation rate for female employment is around 70%; next I indicate that there is a high probability of part-time employment in the ages groups 53 years and onwards; and finally I cite some indicative wage rates for your information. ... On the basis of the information available to me, it would appear that had the accident not occurred then this woman had the potential to continue in the labour force at an unskilled level in elementary service work or personal service work. It seems unlikely that she would have continued working much beyond 55 years in personal service work but she might have considered other employment. Thereafter she might have switched to some part-time work. Her overall level of participation in the labour market would have been consistent with that of females aged 15-64 years and around some 70%. It would have declined with age but this is a reasonable benchmark. The injury occurred when she was aged 53 years. Assuming that she would have been in the labour force until aged 67 years and that she had a 70% participation rate over those remaining 14 years (i.e., approximately 9.8 years). Of those 9.8 years, it is possible that not all of them would have been in full-time labouring work, especially after age 55 years. From 55 to 65 years only 50.6% of females work full-time, so for some 7 8 years there was a likelihood of some 50.6% part-time work. In summary I considered that it was unrealistic to consider that she would have worked 70 hours per week until age 67 years. I thought she would have worked a normal 38 hours per week for around 5.9 years full-time equivalent at an unskilled level (2 years full-time plus 7.8 years part-time) and earned around $743.60 pw (gross). 174It seems to me that all that Mr Athanasou has done is to conclude on a statistical basis that the Plaintiff would have worked full-time until a certain age and would thereafter have worked part-time or not at all. 175If these statistics are of any use at all to determine the Plaintiff's likelihood of future employment, at best they provide a mere starting point. It is always necessary to factor into any assessment matters personal to a Plaintiff's situation including work history, health and other matters. Indeed, to some extent s 13 CLA emphasises that the matter is more than statistics because what must be determined is the particular Plaintiff's most likely future circumstances but for the injury. 176Having regard to s 13 the assumption that I make is that the most likely future circumstance but for the injury would have been that the Plaintiff would have continued to work in the childcare business on a full-time basis until she was aged 60 years, and would thereafter have worked part-time in that business until she was aged 63 years. I base this assumption on the following matters. First, I take into account, not only her pre-accident employment in Australia, short as it was, but on the fact that she had worked in the childcare business in Argentina for some years. Secondly, I assume that, but for injury, the Plaintiff would have remained married to Tony. Thirdly, Tony, who was born on 18 February 1954, gave evidence that he always thought he would continue to work until he was over the age of 55 and at an appropriate time thereafter take a redundancy package. He said that he could not afford to leave Australia Post where he worked without a redundancy package. In fact, a redundancy package was offered to him on the day before his 55th birthday on 17 February 2009. It seems to me that the most likely situation would have been that the Plaintiff, who was a year younger than Tony, would not have wished to continue working fulltime beyond her 60th birthday when her husband was likely to have been retired for a year or a few years prior to that time. 177Further, I consider the Plaintiff's other health problems, particularly her arthritis and lower back problems, make it unlikely that she would have been able to continue working fulltime in the childcare business beyond about the age of 60. I consider that she would have had a need to work for a a few years after that time from a financial point of view but that her age and health problems would have require her to cut back on her working hours. 178Figures from the Australian Bureau of Statistics, helpfully reproduced in the Furzer Crestani Services Guide show that the Consumer Price Index has risen 8% since 30 June 2008. It is appropriate, therefore, to increase the average wage figure calculated for 2008 by 8% and use that figure as the basis for her future economic loss. The figure should be discounted for vicissitudes. Bearing in mind her age and other health problems, including her depression, I consider that a discount for vicissitudes of 20% should be applied. 179The future economic loss is calculated on the basis of a fulltime net weekly wage of $920.30 ($852.13 increased by 8%) for 3 years and thereafter on $460.15 (being half that sum) for a further 3 years. The multiplier for 3 years is 145.6. The deferred multiplier for 3 years is 0.864. Her loss for the next 3 years, subject to the discount for vicissitudes is $920.30 x 145.6 = $133,996. Her loss for the further 3 year period is $460.15 x 145.6 x 0.864 = $57,886. These amounts total $191,882. Discounting by 20% for vicissitudes produces a total for future economic loss of $153,505.

[27]

180The Plaintiff claims the difference between a standard project home and a modified project home with scooter access and a six metre hydrotherapy pool. The architects agree that a standard, unmodified project home would cost $218,150. A scooter accessible, modified project home would cost $333,275. A six metre hydrotherapy pool would cost $182,110. The Plaintiff also claims a buffer of $15,000 for demolition costs making the overall accommodation costs claim $312,235. 181The Defendant submits that there should be no allowance for accommodation costs. This is because the first report of the rehabilitation specialists thought that her current living arrangements were satisfactory. Further, the Defendant submitted that the Court could not be satisfied that but for the Defendant's negligence the breakdown of the marriage would not have occurred with the Plaintiff moving to another residence. The Defendant pointed to a number of matters suggesting that the marriage was unlikely to last. These included the way in which the Plaintiff met Tony, the shortness of time in which they married, the Plaintiff's lack of frankness with Tony about her past psychiatric problems, the return to Argentina for a period of time, and the problems in the marriage particularly because of Solange, including statements made by the Plaintiff to Dr Meneghetti about her family problems. The Defendant also pointed to the fact that the Plaintiff had already had two failed marriages. In this regard the Defendant drew my attention to s 5D CLA regarding the proper test for causation. 182The Defendant submitted also that the Plaintiff was perfectly able to live in the present accommodation notwithstanding it was on two levels, thereby suggesting that modifications were not needed to any new residence. Finally, the Defendant submitted that the Plaintiff did not have the capital or access to the capital to purchase a standard project home. 183In relation to the hydrotherapy pool the Defendant submitted that the Plaintiff had no need for one, relying upon a number of the experts, and the fact that the Plaintiff has been able to use, and has used, public hydrotherapy facilities. 184In my opinion, the Plaintiff is entitled to the costs of modifying the standard project home but not the costs of a hydrotherapy pool. My reasons are these. First, the rehabilitation specialists modified their views in their second report of 6 September 2011. They were of the view that she should live in a single level house with flat ingress to a suitable storage area for her scooter. They agreed that the bathroom should be modified. They disagreed about whether there was the need for scooter or wheelchair access in the house. Dr Dalton noted that at the present time the Plaintiff was able to mobilise independently with a single stick and did not require the use of a scooter or wheelchair within the home. 185Secondly, the occupational therapists in their third report agreed that the Plaintiff required single level accommodation with level access and with a number of modifications to the bathroom, the laundry, the kitchen and the storage area. 186Thirdly, I accept from hearing and observing the Plaintiff that she has difficulty standing for extended periods in a way that requires modification, particularly in the areas identified by the occupational therapists. 187Fourthly, although I consider that if the Plaintiff had not been injured in the operation the likelihood is that the Plaintiff and Tony would have remained married this is not a determinative factor, and for that reason I do not have to consider s 5D. My brief reasons for thinking they would have remained married are that despite tensions that might have been present particularly because of Solange, Tony impressed me as a gentle and caring person who would have worked very hard to preserve his marriage and would have made what compromises were necessary. Although it was clear that the relationship had deteriorated as a result of the Plaintiff's condition and other matters he felt an obligation to continue to support the Plaintiff for as long as she remained married to him. 188I do not consider this view about the marriage is determinative because I consider that even if the Plaintiff had remained married to Tony her disabilities would have required them to move to a single level house with the modifications recommended. The Plaintiff's increasing age when coupled with the disabilities would have made the present living arrangements untenable. 189Fifthly, there was considerable evidence against the need for the Plaintiff to have her own hydrotherapy pool. Dr Dalton thought it was not necessary in the first joint report of the rehabilitation experts. He reaffirmed that opinion in his oral evidence. The third joint report of the occupational therapists agreed that the Plaintiff did not have a need for a hydrotherapy pool in her home and that she had used and was able to use public facilities. Dr Bhar, the pain management staff specialist who was looking after the Plaintiff at the Prince of Wales Hospital also considered it was not necessary for her to have her own pool. She expressed concern about the Plaintiff getting into trouble in a private pool with no one to supervise her. As the experts noted, the Plaintiff had used and was able to use public hydrotherapy facilities. 190In my opinion, the Plaintiff is entitled to the difference between a wheelchair accessible modified project home and a standard unmodified project home ($333, 275 - $218,150 = $115,125 + $15,000 demolition costs which were agreed). Accordingly, the damages under this head are $130,125).

[30]

194The Plaintiff claims the cost of a modified motor vehicle that can accommodate a wheelchair or scooter. She also claims driving lessons as a disabled person. 195Although the Plaintiff wishes to drive herself she did not manage to obtain a driver's licence in New South Wales prior to her surgery despite attempting it on two occasions. She did not even pass the general knowledge test. If she was unable to obtain her licence when she was in relatively good health prior to the operation I do not consider that there is any serious likelihood that she would now be able to obtain a licence, particularly as she would need to drive a modified vehicle as a disabled person. The claim for a motor vehicle is rejected. 196The Plaintiff has the ability to use a four wheel scooter outside the home for relatively short trips. Where longer trips are needed she will be required to use taxis. 197The occupational therapists identify the following needs for taxi transport: (a) 26 return trips per year out of the area at $150 return approximately; (b) 2 returns trips per week in the local area within a 10 kilometre radius at $50 return; (c) 12 return taxi fares per year to her podiatrist at Kings Park at $85 return; (d) 9 return trips to and from Prince of Wales Hospital to obtain Gabepentin at $187.40 return. 198No evidence was offered to explain 26 return trips per year out of the area. Nor was it explained why it was necessary for her to travel from Fairfield to Kings Park to see a podiatrist. The occupational therapists said that it was unclear why she could not access Gabepentin closer to her home. No evidence was offered why this was not possible, particularly when, at the least, Westmead and Liverpool Hospitals are much closer to the Plaintiff's residence than Prince of Wales. 199If the Plaintiff was granted a taxi subsidy the occupational therapists suggested that the cost would be about half of their estimate. The Plaintiff submits that the Plaintiff would not be entitled to a taxi subsidy in circumstances where she owned her own vehicle. I have held that she is unlikely to be able to drive and would not therefore have a vehicle. 200After addresses concluded I was provided with material (by consent) about the taxi subsidy scheme. Having read that material and those parts of the Occupational Therapists' reports dealing with the Plaintiff's ambulatory abilities I consider that the Plaintiff would fall within the requirements of the scheme to obtain a subsidy. In particular I note what Ms Cheel said on p 17 of her report concerning the Plaintiff's ability to walk. 201In circumstances where there was little or no evidence from the Plaintiff about a need to travel by taxi, apart from an inference that such travel would be convenient from time to time to attend at doctors or hydrotherapy or even shopping, it is necessary to take a broad brush approach to the need to make an allowance for taxi travel. I consider a fair approach would be to allow ten return trips per year out of the area at a subsidised rate of $75 and three return trips per week in the local area at a subsidised rate of $25. This is a figure of $90 on a weekly basis and over the Plaintiff's lifetime equals slightly in excess of $75,000. I allow that figure for taxi fares.