COATES v. O'KEEFE & ORS.
Supreme Court of the Northern Territory of Australia O'Leary C.J.

3 and 4 December 1985; 19 March 1986 at Darwin

Damages - Assessment - Motor vehicle accident - 59 year old female plaintiff - Relatively u displaced fracture of the neck of the left humerus - Isolated fracture of the right lateral malleolus with no evidence of disruption of the ankle mortice - Fracture of the manubrium and one or two ribs on the right side - Small laceration to her left parieto-occipital region - Rupture of the extensor pollicis longus of the left thumb - Shock - Bruising of the abdomen - 20% loss of function of the left shoulder in all - 10% loss of function of the right ankle in all - Weakness in extension of the left thumb which could be corrected by surgery - Retired registered nurse - Plans to seek part-time post-retirement work - Measure of economic loss and appropriate contingencies - Loss of earnings and loss of earning capacity $9,000 - Pain; suffering and loss of amenity $25,000.

Counsel for the Plaintiff: Solicitors for the Plaintiff: Counsel for the Defendants: Solicitors for the Defendants:

Mr. J. Waters
Waters, James & O'Neill Mr. T. Riley
Ward Keller

ole860025

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IN THE SUPREME COURT

OF THE NORTHERN TERRITORY
·OF AUSTRALIA No.	89 of 1984

BETWEEN:
LILLIAN BEATRICE COATES

Plaintiff

DESMOND PATRICK O'KEEFE
First Defendant
AND:
ELIZABETH ROSE STUBBS
Second Defendant

AND:

THE NORTHERN TERRITORY OF AUSTRALIA
Third Defendant

CORAM:	O'LEARY C.J.

REASONS FOR JUDGMENT
(delivered 19th March 1986)

At about 6 o'clock in the evening of Thursday,
16 September 1982 the plaintiff, Lillian Beatrice Coates, was riding as a passenger in the front seat of a motor vehicle when it came into collision with another vehicle at the intersection of Trower Road and Vanderlin Drive, Darwin. The vehicle in which the Plaintiff was riding was being driven by the second defendant; the other vehicle was owned by the third defendant and driven by the first defendant.

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As a result of the collision the plaintiff sustained injuries, and she now brings these proceedings to recover damages for those injuries.	The defendants have admitted their liability to the plaintiff, and the case therefore comes before me for assessment of damages only.

The plaintiff is a married woman.	She was 59 years of age at the time of the accident.		Following the accident, she was admitted to the Royal Darwin Hospital where she was found to have suffered a relatively undisplaced fracture of the neck of the left humerus, an isolated fracture of the right lateral malleolus with no evidence of disruption of the ankle mortice, and a fracture of the manubrium and of one or two ribs on the right side.	She was also found to have sustained a small laceration to her left
parieto-occipital region which required five sutures.		In hospital her humeral fracture was managed in a sling, and her right leg was placed in a split-padded plaster.	At a later time, she was also found to have suffered a rupture of the extensor pollicis longus of the left thumb.	As well as these injuries, she suffered shock and bruising to the abdomen as a result of seat belt pressure.

The plaintiff remained in hospital in Darwin for 1 week.	She then returned to Adelaide where her home is, and was admitted to the Flinders Medical Centre.	She was in hospital there for a further week.

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The plaintiff's arm remained in a sling, and her ankle in plaster, for 6  weeks altogether.	Thereafter she underwent intensive physiotherapy some 3 times a week until the end of that year, 1982.		X-rays at about that time showed  there was good0 -union	of both humerus and ankle..	She had recovered good movement of.her ankle, but her sub-taloid
joint was   limited by half.	As a result, she found
difficulty in walking on rough ground.	Her left shoulder, however, presented a problem in that it only abducted to 60°, and it was still stiff.	Her thumb was not worrying her a great deal.

On 13 January 1983 she was again admitted to hospital where she underwent a manipulation of her left shoulder under general anaesthetic.	She was discharged from hospital 2 days later.	As a result of the manipulation some increase in movement of the shoulder was obtained; abduction was now 90° with two-thirds of external rotation and
one-half internal rotation.	Thereafter, the plaintiff continued mobilisation of the joint with further physiotherapy until about June 1983, by which time her condition had become stabilised.

At the present time the plaintiff's left shoulder has limitation of abduction to 90°, flexion to 120° and 60° of rotation.	There is a slight wasting of her biceps.	In the result, she has suffered about a 20% loss of function to

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the shoulder.		She has 5° of loss of flexion and extension of the right ankle, and 50% loss of sub-talar movements with the foot in valgus.	She walks with a slight limp and there is a half inch of wasting of her calf.	She has suffered about a 10% loss of function of the ankle.	She has weakness of extension of the left thumb due to the rupture of the long tendon,	This could be substantially corrected by surgery, but the plaintiff has so far declined to have this done, and I think she will probably prefer in the future to live with the disability, which she says is not great, rather than undergo surgery.

The plaintiff told me that her shoulder and ankle are stiff in the morning, and that they ache in cold weather.	She also told me that they interfere substantially with her enjoyment of life.	She said that before the accident she was a healthy, active woman, and that she enjoyed playing golf, dancing and sailing.	Particularly, she said, she enjoyed bush walking, walking along the beach and fossicking in the bush for gem stones.	These pleasures, she said, are now almost wholly denied her by reason of the disability in her ankle; she finds it difficult to walk over rough ground or on sand, and if she spends any time standing on her ankle it swells and becomes painful.		She said her thumb makes it difficult at times for her to pick things up, and sometimes she drops things; it is more an embarrassment than anything else.	She is now a restless sleeper.	Besides

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all this, however, the plaintiff said that her disabilities have reduced her capacity to earn, and I must now turn to consider that aspect of her claim.

By occupation the plaintiff is a registered nurse. She received her initial training in London starting at the age of 17.	Besides her general nursing training, she also received training in midwifery and anaesthetics.	She married in England in 1948, and migrated with her husband to Australia in 1951.		They set up home in Adelaide, and have three children.	She did not work when the children were small, but as they began to grow up she returned in time to work as a nursing sister.		At first this was on a part-time basis, but in 1969 she took up full time employment with the Royal Adelaide Hospital.	The hospital was then just setting up an Intensive Care Unit, and that was the Unit·in which she went to work.	To equip herself for that work, she did a full 12 months Intensive Care Course of training at the hospital, and also an In-Service Ward Administration Course. She worked in that unit at the hospital until 1975, when she transferred to the Flinders Medical Centre.	That is a Centre attached to Flinders University as a Teaching Hospital; it is also attached to Sturt College, a College providing nursing training.		The plaintiff went to Flinders Medical Centre as a fifth year senior sister in charge of critical care equipment.	Later on, and whilst still employed at the Centre, she became a consultant to various

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. country hospitals in the management of critical care patients and in the use of critical care equipment.	In the course of this work she in fact spent some 2 weeks in Alice Springs in September of 1980 or 1981.

The plaintiff r€11llained at the Flinders Medical Centre until March 1982, when she resigned.	Her reason for resigning, she told me, was that she had established the Department there, she felt she was standing in the way of the promotion of other people coming on, and, in any event, she and her husband had decided that they would take early retirement from their regular work and go on working holidays around Australia.	She said that in the course of her work at Flinders as a consultant to country hospitals, she had realised that country hospitals need a lot of help, and she was confident that she would be able to get work, either as a consultant or as a nurse, as she and her husband travelled around.	She said she had not formally made any enquiries about work, but she had made a lot of contacts in her work in country hospitals, she had made them aware of what she was going to do, and she had had offers of work.	Besides that, she said she had also had several offers of work from medical equipment firms to demonstrate their equipment.	Her husband, she told me, was also confident that he too could get work, as they travelled around, in his own field of automative engineering.	In this way, the plaintiff said, she and her husband estimated that they could each earn
about $10,000 a year.

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It was with all this mind, then, the plaintiff said, she retired from Flinders Medical Centre in March 1982.	Her husband (who, incidentally, had had his 60th birthday in October 1981) planned to retire in June 1982, but his firm had asked him to stay on for a time on a part-time basis to train another person to take over his position.	At the time of the accident he was working for the firm 3 days a week.	He had a slight heart attack in February 1982, but he told me he was now recovered from that.

The plaintiff told me that in furtherance of their plan for retirement, she and her husband had about that time sold 2 vehicles that they had, and bought a 4 Wheel Drive Jackaroo, as well as a caravan and a tent.

Following her retirement from the Flinders Medical Centre in Marc:h 1982, the plaintiff did not engage in any gainful employment until about August of that year when the Matron of the Centre asked her to go back and to help out with a course that was then being run for country nurses.
The plaintiff did so, and while she was there she received an invitation from the Darwin Hospital to visit that hospital for 2 weeks to give instruction to staff in various aspects of intensive care nursing.	She was in fact engaged at the Darwin Hospital in that work when she was involved in the accident the subject of these proceedings.	The

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plaintiff also told me that while she was at the Darwin
Hospital she received an invitation from the Alice Springs Hospital to spend some time there teaching on her way back to Adelaide.	The time suggested to'her was 2 weeks, but, for personal reasons, she agreed to spend only a week there. The arrangement made by her with the Darwin Hospital, as well as with the Alice· Springs Hospital, was that the hospital would pay her fare, provide her with accommodation and meals, and pay her a consultancy fee of $350.00 per week gross.	She said that the fee for that kind of service varied from State to State, but was in the region of $350 to
$420 per week gross.

The plaintiff's claim for loss of earning capacity is that, by reason of the injuries received by her in the accident and the disabilities arising from ½hem, she has been and will be deprived of the income which she otherwise. could and would have earned in the way I have described above.	She said she had planned to go on working full time in country hospitals for 6 or 8 months a year.	25% to 30% of her time, she said, would be in consultancy work, and the balance in nursing.	She said she thought she could have gone on doing consultancy work for about 2 years, but as a nurse she could have gone on for "quite some time".	She said there is a great shortage of experienced nurses, particularly in country hospitals.	The reason why she would only have been able to go on doing consultancy work for

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about another 2 years was that, after that time, she would become out of date.	She said that she does not think she would be strong enough now to do ordinary nursing work; she said her foot would not take an 8 hour day, and the weakness in her left shoulder would inhibit her other nursing duties, particularly lifting.	She agreed that she would be able to do administration work in hospitals, and that, if she sought that kind of work now, she could probably get it.	However, she said she does not enjoy it; she would prefer to do nursing.	At the time of the accident, the plaintiff had not in fact made arrangements for any further consultancy or nursing work, other than for the l week at Alice Springs.
The first trip she had planned to go on was into the Southeastern region of South Australia, sometime before that Christmas, and there go to all the hospitals she had previously visiteu.	She had .also, it seems, planned another trip for after Christmas.	That was to go up the Murray River to the Riverlands area, but what she had proposed to do there was not at all clear.

Although the injuries suffered by the plaintiff in the accident were not great, I have no doubt they caused her much pain and suffering at the time, and for some months thereafter.	Dr. Sweeney, who treated her in Adelaide, and who gave evidence for her at the hearing, described her present disabilities as moderate, and I accept that as a fair assessment of them.	Nevertheless, I am satisfied that

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they have interfered, and will continue to interfere, to a significant extent, with her enjoyment of life, and her ability to pursue the activites which she formerly enjoyed.
For her pain and suffering and her loss of enjoyment of l fe, I award her the sum of $25,000.00,

I now turn to consider the plaintiff's claim for loss of earning capacity arising from her injuries.		I think it is clear on the evidence that the disabilities from which she now suffers have, to some extent at least, reduced her capacity to earn, at any rate as a nursing sister carrying out ordinary nursing duties.	The chief difficulty I have, though, in considering the plaintiff's claim on this head, is to make some assessment of the measure of her economic loss resulting from that reduced capacity to earn.	At the time of the accident the plaintiff had in fact retired from her regular employment, and although, as she told me, she and her husband had plans for post-retirement employment, those plans were then almost entirely in the future; they had not been put to the test in any really concrete way.
The question, therefore, is what remunerative work would she have done in the years following her retirement, had there been no accident?

By the time of the accident the plaintiff had already been in retirement for some six months or so, and in that time had earned or would, were it not for the accident,

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have earned something of the order of $1,100.00.	That includes the one weeks work she had arranged at Alice Springs Hospital.	Nothing definite was in prospect for the next six months, though I accept that she may well have found some further work.	For all that, however, I cannot think that her earnings for the first year of her retirement would have been anywhere near the $10,000.00 gross she had estimated that she would earn.	At most, I think it would have been of the order of $2,500.00 to $3,000.00.		Nor do I think it would have been much, if any, more than that in each of the succeeding years up to the date of trial, that is, assuming that she would in fact have continued working that long.	In short, then, whilst I do not doubt what she
told me about her plans, and her hopes, as to part-time employment following her retirement, I think they must be regarded very much as plans and hopes - untested and untried
- for the purpose of attempting to translate them into terms of monies she would have earned but for her disabilities. In my opinion, they must obviously be discounted by a number of contingencies which I see as very real contingencies.
Principal amongst these, I think, is the contingency that she may well have tired, at least after a year or two, of travelling around the country working in country hospitals, and have preferred to settle for a life of retirement on the income that was otherwise available to herself and her husband.	That is, in fact, what they are doing now.	They do not seem to have persued their plans to travel to the

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extent that the plaintiff said they had planned to do. Perhaps this is because the plaintiff's disabilities prevent her from enjoying it as much as she otherwise would have done, but it may well be also because of some loss of enthusiasm.	Certainly, the plaintiff's husband has not sought post-retirement employment as he had planned, although he told me he is bored in his retirement.	The plaintiff also told me that they have considered, in more recent times, buying a country store.	That may well be something for which they will eventually settle, and for which they may have settled in any event.	Another
,·	contingency, which I think is significant, is the
contingency that work may not have been as readily available to the plaintiff as she had hoped, bearing in mind her age, and the fact that she would be looking for work at a place, a time and for a period of time when it suited herself and her husband to be in that particular place.

In the end, then, the conclusion I reach is that the plaintiff would probably, for some few years after her retirement, have done some work of the kind she described to me, but I do not think it would have been on such a regular basis or nearly as remunerative as she had hoped.	Whether she would have continued beyond the date of trial I cannot say.	I think, therefore, the appropriate course for me to follow is to fix one sum for her economic loss both past and
future (if any).

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Making the best assessment that I can of the whole of the evidence put before me I think the amount that I ought to award the plaintiff for her loss of earning capacity is $9,000.00

In addition to the amqunts referred to above, the plaintiff also claims interest on the award of damages pursuant to section 84 of the Supreme Court Act.	The items of the award which I think should bear interest are, first, the amount awarded for economic loss, that amount being substantially loss suffered up to the date of trial, and
,.	secondly, some proportion of the amount awarded for pain,
suffering and loss of amenities.	The appropriate proportion of that amount would, I think, be 50%.	The result, therefore, is that the total amount which should bear interest is $21,500.00.	Accordingly, I award the plaintiff interest on the sum of $21,500.00 at the rate of 6% from the date of the accident to the date of judgment.	In round figures, that is the sum of $4,200.00.

Special damages have been agreed between the parties in the sum of $3,451.95.	I therefore award the plaintiff damages as follows:

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loss of amenities	$25,000.00	
Special damages	$ 3,451.95	
Loss of earning capacity	$ 9,000.00	
Interest on $21,500.00 from		

Pain and suffering and

16th December 1982 to date at 6%
TOTAL

$ 4,200.00
$41,651.95

Accordingly, there will be judgment for the plaintiff in the sum of $41,651.95 with costs.

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