PARTIES:	BETWEEN:

	LISA PRICE
	Plaintiff
	AND:

	STEPHEN WATTS
Defendant

TITLE OF COURT:	In the Supreme Court of the Northern Territory of Australia 

JURISDICTION:	Supreme Court of the Northern Territory of Australia

FILE NO:	329 of 1991

DELIVERED:	12 July 1996

HEARING DATES:	26, 27 and 28 June 1996

JUDGMENT OF:	MILDREN J

CATCHWORDS:

Legislation

Motor Accidents (Compensation) Act 1979 (as amended)

Cases

Nil

Texts

Nil

REPRESENTATION:

Counsel:

	Plaintiff:	Mr B Cassells
	Defendant:	Mr J Tippett

Solicitor:

	Plaintiff:	Michael Whelan & Assoc.
	Defendant:	Ward Keller

JUDGMENT CATEGORY:	CAT C
JUDGEMENT ID NUMBER:	MIL96012
NUMBER OF PAGES:	12

IN THE SUPREME COURT OF
THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

No. 329 of 1991
(9117138)

	BETWEEN:

	LISA PRICE
	Plaintiff

	AND:

	STEPHEN WATTS
Defendant

CORAM:  MILDREN J

	REASONS FOR JUDGMENT

	(Delivered 12 July 1996)

This is an action for damages at common law arising out of the negligence of the defendant.

On 10 September 1989 the plaintiff, who was then 17 years of age, was injured when a motor vehicle in which she was a passenger overturned whilst being driven by the defendant in a westerly direction along the Victoria Highway in the Northern Territory at a point approximately 160 kms west of Timber Creek Police Station.

Mr Tippett, counsel for the defendant, conceded liability at the commencement of the hearing.  It was conceded that the plaintiff was not precluded by the provisions of the Motor Accidents (Compensation) Act 1979 (as amended) from recovering her full damages at common law.

The plaintiff gave evidence that in September 1989 she was living at Kununurra in Western Australia with her parents.  At that time she was unemployed and had been unemployed for approximately two weeks.  She said that she had previously been working at the Cotton Tree Bakery at Kununurra as a shop assistant, earning $150.00 per week net.  She said that she had lost that job because of a disagreement she had with another girl who was working at the bakery.  Prior to the accident she had gone to the office of the Commonwealth Employment Service in Kununurra to look for work.  She was not sure if she had received any unemployment benefits before the accident.

The plaintiff has no recollection of the accident itself.  Her first recollection after the accident is regaining consciousness in the Royal Darwin Hospital.

As a result of the accident the plaintiff suffered bilateral mid-shaft fractures of both femurs.  She also had undisplaced fractures of the left superior and inferior pubic rami, a fracture of the 5th metatarsal bone of the left foot and lacerations over the left parietal region and left Achilles tendon.

She underwent surgery.  The leg fractures were reduced and bilateral AO nails were inserted into each femur.  Post-operatively, she required mechanical ventilation in the intensive care unit - probably secondary to pulmonary oedema.  She was extubated one day later and transferred to the ward on 14 September.

The plaintiff said that when she awoke she suffered significant pain on the top of her legs, she had a cast on her left ankle and she was aware of lacerations and bruises and stitches in the head as well as an abrasion on her lip.

Whilst in hospital she was visited by her parents who had travelled to Darwin from Kununurra for this purpose.  There is no claim for damages in respect of the parents’ visit to Darwin.

For a period of time she was unable to get out of bed.  She said that she felt very uncomfortable and was unable to move or wash herself.  She was given medication in the form of injections and tablets to alleviate her pain.

The plaintiff said that eventually, when she was able to get out of bed, she was placed on crutches.  She said that the first time that she tried to use the crutches it was very difficult for her and she suffered from a lot of pain in her thighs.  She said that she was unable to bend her knees at all at that stage. She said that she commenced daily physiotherapy when she got the crutches.  The physiotherapy involved lying on her stomach and bending her heels back to her buttocks.  She found this extremely painful and said that she was unable to bear it.  In the meantime her family had returned to Kununurra.  She said that because the painfulness of the physiotherapy and the lack of any family to give her support she discharged herself and travelled by bus to Kununurra.

The medical records indicate that she was discharged on 11 October 1989.

The hospital records indicate that physiotherapy began on 13 September whilst the plaintiff was still in the intensive care unit.  At first she was very aggressive and resistant to the treatment but over the next two days became more cooperative.  However, by 17 September she had developed a high temperature with rigors.  This was controlled with anti-biotics.

On 19 September the physiotherapy was resumed.  This was the date when the plaintiff was first introduced to the crutches.  She appeared to have had physiotherapy daily thereafter but by 23 September it was noted that her knee flexion was poor and that she would need extremely intensive physiotherapy in order to avoid stiffening in both her knees.  The hospital records indicate that the plaintiff was resistant to intensive physiotherapy and by 2 October 1989 she underwent a manipulation under general anaesthetic in order to free dense adhesions which had formed at the fracture sites.  This enabled her to regain a full range of movement in both knees.  The physiotherapy regime continued until 3 October.  The hospital notes indicate that she was improving under her physiotherapy regime but resistant to continual knee flexion.

After her return to Kununurra she convalesced at home for a short time until she was encouraged by her parents to undergo physiotherapy treatment again.  At that stage she was still on crutches and could not move freely.

I had the opportunity of seeing a video tape of the plaintiff walking on crutches at the Darwin Hospital including the first occasion when she was placed on crutches and several other occasions shortly thereafter.  As to be expected, the first occasion the plaintiff was placed on crutches was obviously painful and distressing to her and she needed a lot of support and encouragement from the nursing staff.  Film taken on later occasions showed her to be able to walk on crutches without any assistance and in no obvious discomfort.  At first her ability to walk was fairly limited but it gradually improved.  This accords with the assessment recorded in the hospital file.

The plaintiff was able to dispense with her crutches just before Christmas 1989.  In January 1990 she travelled to Mandurah, 70 kms south of Perth, where she had previously lived with her parents.  She obtained employment in early February 1990 with Foreshore Bakeries, having applied in the meantime for employment and unemployment benefits with the Commonwealth Employment Service.  The plaintiff said that she was employed at the bakery for about a month but was then forced to give up that employment because there was a ramp at the premises of the bakery which she was required to negotiate and her employer considered that she was at risk.  The plaintiff said that prior to her obtaining work with the bakery she had undergone further physiotherapy whilst in Mandurah.  After losing her employment with the bakery she went back on unemployment benefits until May 1990 when she obtained employment of a clerical nature with the Wyndham Shire Council.  Thereafter she has remained in employment, with some periods of unemployment for reasons unconnected with the accident.

The plaintiff said that during the time that she was still on crutches at Kununurra she could feel the pins at the top of her hips and this caused her some discomfort when lying on her side. She had no difficulty sleeping but she sometimes got cramps mainly in the right thigh.  Initially these occurred once or twice a fortnight and the cramps could be intense.  These cramps lasted at about this level until the pins were removed in 1991. She said that the removal of the pins was precipitated by a severe cramping episode which prevented her from any movement.  She was then taken to the hospital, and the pins were removed the next day.  She still complains of some cramps occasionally. She was on crutches again for approximately a week after the pins had been removed.

The specialists’ reports indicate that she has been effectively left with no disability and has made an excellent recovery from the accident.  It is unlikely that there will be any early onset of degenerative changes in any of the joints as the fractures involve the shafts of the long bones rather than the joints themselves.  No further treatment is anticipated except a possible revision of some of her scars.

As a result of the accident the plaintiff has been left with the following scars:

1.	A small white scar near the corner of the mouth on the left upper lip measuring 1.5 cm in length and about .3 cm in width.

2.	An irregular obvious scar measuring 4 cms by 1.5 cms in width on the left wrist which could be improved by surgical revision.

3.	A longitudinal scar .5 cm by 1 cm on the right buttock.

4.	A long thin scar measuring 14 cms by .8 cm extended over lateral aspect of the right thigh.

5.	A scar 10 cms by 1 cm extending over the lower left buttock.

6.	A long stretched scar 14 cms by 1 cm over the lateral aspect of the left thigh.  At the junction of the upper and middle one-third of the scar there is a contour depression due to loss of subcutaneous fatty tissue in this region.  Mr Christopher Allen and Mr Robert Wheeler, plastic surgeons, both feel that this scar could be improved by surgical revision.

I had the benefit of photographic evidence of the scars as well as the opportunity of viewing them privately in chambers in the presence of the plaintiff’s and the defendant’s legal advisers. There is also a scar in the scalp area not referred to in the plastic surgeon’s reports which I also saw and which is evident in the photographs.  I also saw photographs and inspected some scars to the left ankle and heel.  These are not referred to in the medical reports.

The reports indicate that the scars are not likely to improve further without the surgery mentioned.

So far as the plaintiff is concerned, she considers that the scars on her legs are the most significant and she regards them as “disgusting and ugly”.  She says that she feels embarrassed about these scars being seen by strangers.

I can understand how the plaintiff, a young woman, would feel embarrassed particularly about the scarring to her legs.  The scars are obvious although they are, fortunately, not as bad as many I have seen.  Nevertheless they represent a significant cosmetic disability.  However, I note that the plaintiff has not had any difficulty forming relationships with young men as a result of the scarring.  She has had a regular boyfriend since May 1994.  Although they are not presently engaged to be married, they intend to marry eventually.

The scarring has had no impact on her ability to find employment.

There appears to be no other loss of amenities of a permanent nature.

The plaintiff is entitled to be compensated for the pain and suffering that she endured from the period shortly after the accident when she regained consciousness until about Christmas of 1989, with a small allowance for the discomfort as a result of cramping which she suffered until the nails were removed in 1991.  She is also to be compensated for the pain and suffering involved in having to undergo that further surgery and for a short period of convalescence thereafter.  I accept the plaintiff’s evidence that the physiotherapy which she underwent whilst at the Royal Darwin Hospital was extremely painful to her.  I do not consider that any criticism can be levelled at her for discharging herself from the hospital bearing in mind that she was a young woman separated from her parents and the amount of pain and discomfort that she must have undergone.  Notwithstanding the manipulation performed on 2 October to remove the adhesions, the medical evidence as well as the plaintiff’s evidence suggests that she was still having some difficulties until she was discharged.

I accept the submission of the plaintiff’s counsel, Mr Cassells, that the plaintiff was not a vocal complainer and did not seek to exaggerate her complaints when giving her evidence in the witness box.

For pain and suffering I award the sum of $12,000.

As to the scars, the plaintiff said that she was unsure whether or not she would have the scars revised.  If she did have the scars revised there would no doubt be further pain and suffering to be endured.  I think in the circumstances of this case that it is unlikely that the plaintiff will have the scars revised, but that nevertheless I must make an allowance for that possibility, and I have taken that into account in assessing damages for pain and suffering.

My impression of the likely improvement to be gained by surgical revision of the scarring is that any improvement will not be very significant.  Further, only one of the scars on the legs will be attempted.  Although the plaintiff is not a person who overly complains, I consider that she is anxious about any further revisions and I note that revisions have now been in contemplation for nearly two years although nothing has so far been done by the plaintiff herself.  At this stage I consider that the probability that the plaintiff will undergo the revisions is only in the order of about 25%.  Making allowance for that possibility, I award the further sum of $10,000 in relation to the scarring.  In addition, I award the sum of $340 in relation to hospital fees and surgical and anaesthetist’s fees, representing approximately one-quarter of the anticipated cost.

There is also a claim for past economic loss.  The plaintiff’s employment history prior to the accident was that she left school at the end of the second term of the first semester of year 11 in 1988 at Mandurah.  Initially she obtained employment at the Red Rooster at Mandurah for some three months as a cashier earning $123 per week net.  At some stage her parents had separated and her father had moved to Kununurra.  After her parents reconciled and her mother also moved to Kununurra, she moved with her and obtained employment at the Cotton Tree Bakery at Kununurra as a shop assistant earning $150 per week net.  She claimed that she worked for four months at the bakery before transferring her employment to the Ord River Co-op, a supermarket, as a cashier.  She said that she was in that job for about three to four months earning $200 per week net.  She voluntarily left that employment to return to the Cotton Tree Bakery which was owned by friends of hers.  She said that she preferred to work at the bakery notwithstanding that there was a loss of income to her.  She said that she was in that employment until September 1989, approximately two weeks before the accident.

After the accident she had the employment at Mandurah with the Foreshore Bakery for a month and then in May 1990 she had the employment with the Wyndham Shire Council and was in that employment for five months before she left Kununurra with her parents to take up residence in Geraldton.  Initially whilst in Geraldton she was unemployed for about four months before obtaining work as a check-out operator with Target.  She remained in that employment for about one year.  She then moved back to Mandurah and was on unemployment benefits for a few months before obtaining employment as a cashier with K-Mart.  She worked for K-Mart for eight months but left that employment as she was not getting enough hours and went back on unemployment benefits for eight months.  She underwent training through the Commonwealth Employment Service at a skill share centre for four months and in July 1995 commenced employment as a trainee with the Peel Development Commission.  She is presently unemployed and is living with her parents in Mandurah.

She also gave evidence that for part of the period in 1989-1990 she was in receipt of sickness benefits and also for part of that period she was on unemployment benefits.  The material put before me in relation to the period during which she was on benefits was most imprecise.  The plaintiff said that she was in receipt of sickness benefits which she obtained from the Commonwealth Employment Service office in Kununurra for about two months in all.  She also said that she moved back to Mandurah in January 1990 and transferred her payments to Mandurah.  I am not sure exactly what she means by this but I consider it likely that when she went to the Mandurah CES, she was still on sickness benefits, but then immediately went on to unemployment benefits before obtaining employment with the Foreshore Bakery. I think it is likely therefore that she was on unemployment benefits probably for two or three weeks in January of 1989 before she obtained this employment.  Thereafter she was on unemployment benefits again for approximately three months until she obtained employment with the Wyndham Shire Council.  In assessing the plaintiff’s lost earnings to the date of trial, I am required to take into account unemployment benefits received but not sickness benefits.  No evidence was led as to the total amount of unemployment benefits which the plaintiff received.  I think I can take judicial notice of the fact that the current level of unemployment benefits is about $130 per week for a single person.  I doubt if it would have been more than that in 1990 and it may well have been a little less.

I note that the plaintiff, when she was employed at the Wyndham Shire Council as a clerk, received $250 per week net.  While she was employed at the Foreshore Bakery she earned $180 per week net.

I consider that the plaintiff had the capacity to earn approximately $200 per week net.  The period from the time of the accident until early January 1990 is approximately four months.  During two months of this period she was on sickness benefits.  This amounts to a raw figure of approximately $3,467. Thereafter there is a period of about three weeks when the plaintiff was probably in receipt of unemployment benefits.  I allow her three weeks at $70 per week, a total of $210.  As the plaintiff lost her position with the Foreshore Bakery due to her employer’s reluctance to keep her on as a result of the injuries which she sustained, I consider that she is entitled to a further allowance of approximately three months at $70 per week until she obtained her employment with the Wyndham Shire Council.  This produces a figure of $910.  The total of these amounts is $4,587.  From the sum an amount has to be deducted for the contingency that she may not have been able to obtain employment irrespective of the accident.  She had already been out of work for two weeks.  Her employment history indicates that she has from time to time had periods of unemployment although she has found it easier to obtain employment in Kununurra than elsewhere.  I think it is likely that she would have obtained employment relatively soon, but for the accident. Allowing for the contingency that she may not have obtained employment immediately and for the further contingency that she may have lost that employment and been unemployed again for a short period of time I reduce the figure of $4,587 to $3,500 and I award that sum.

Special damages have been agreed at $12,287.90.

The plaintiff is entitled to interest on the amount awarded for pain and suffering and for some part of the damages awarded for the scarring.  I apportion the amount of $10,000 awarded for the scarring as to $1,000 for the disfigurement up to the date of trial and as to $9,000 thereafter.

Most of the damages awarded for pre-trial non-economic losses were incurred in a period of about four months after the accident.  I think justice will be done if I were to award interest at the rate of 4% on the amount of $13,000 from 1 January 1990 until the date of trial.  This amounts to approximately $3,420.

As to interest on the lost earnings, the plaintiff is entitled to interest thereon at commercial rates.  No evidence was tendered as to rates of interest between the time of the accident until now.  Currently commercial rates are quite low, but they were much higher in 1989 to 1991.  I consider justice will be done if I allow overall a rate of interest of 9%.  Most of the loss was incurred before the end of 1989 and I think justice will be done if I allowed a period of six years and three months.  This totals $1,970.  The total amount of interest is therefore $5,390 approximately.

Accordingly there will be an award to the plaintiff as follows:

	Pain and suffering	$12,000.00
	Scarring	10,000.00
	Pre-trial lost earning capacity	3,500.00
	Allowance for future scar revision	340.00
	Special damages	12,287.90
	Interest	5,390.00
		 __________
	Total	$43,517.90

Accordingly there will be judgment for the plaintiff in the sum of $43,517.90.  I will hear the parties on the question of costs.