Background Facts
Chernita Hick (the Plaintiff) claimed
damages for personal injuries sustained in a MVA that occurred
on 20 August 2004 shortly after her 17th birthday. The Plaintiff’s
mother was killed in the accident. The Plaintiff sustained
multiple fractures (shoulder, thoracic spine, right humerus
and L5), chronic depression, anxiety and scarring. Liability
was not in issue.
Medical Evidence
Dr Cook opined that the significant forces
involved in the MVA led to a very high probability that
the injury to the lower back would lead on to degeneration
of the discs within 7 to 10 years. Dr Nutting did not expressly
disagree with Dr Cook but conceded that he did not know
what the future held for the Plaintiff.
When specifically asked about the degeneration,
Dr Nutting conceded that Dr Cook’s opinions deserved
respect, which led the Court to prefer Dr Cook’s evidence
that the Plaintiff would have:
• increasing symptoms of lower back pain;
• an increased need for domestic assistance;
• diminished capacity for employment in the long term
The Plaintiff was also diagnosed with
an adjustment disorder with anxiety and depression that
had not been adequately treated. The Plaintiff had an entrenched
opposition to counseling which the Defendant argued constituted
a failure to mitigate her loss. The Court disagreed opining
that the Plaintiff does not fail to mitigate their loss
when their failure arises involuntarily.
Quantum
General Damages
The Plaintiff’s lumbar spine injury
was held to fall within Item 91 of the CLR with an ISV range
of 16 to 35. The ISV was then uplifted by 25% on account
of the multiple injuries and their profound impact on the
Plaintiff resulting in an award of $78,320 for general damages.
Economic Loss
Since she had left school the Plaintiff
had worked as a kitchen hand, cleaner, housekeeper, console
operator and retail shop assistant. At the time of the trial
she was employed as a cleaner with the assistance of a sympathetic
work mate. At the time of the trial the Plaintiff was working
5 hours per day 5 days per week earning $486 net. The Plaintiff
had aspired to perform secretarial work and it was held
that her ability to perform that work had been adversely
affected. A global allowance of $10,000 was made for past
economic loss.
The Court held that the Plaintiff had
been rendered suitable to part time light sedentary work
and now required a sympathetic employer. The Plaintiff’s
injuries meant that she would be an unreliable employee
with an increased risk of dismissal and a decreased chance
of promotion.
Despite the relatively modest allowance
for past economic loss the Court awarded $300,000 for loss
of future earning capacity (noting that the Defendant argued
an award of $150,000 and the Plaintiff argued that $500.000
was appropriate).
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Whilst the figure arrived at by the Court
was a global one, it essentially mirrored the Plaintiff’s
Counsel’s submissions but with a 40% discount to for
contingencies (namely an easing of psychological symptoms,
adaptation to impairment and the probability of degeneration).
Care
Whether or not the Plaintiff would meet
the statutory thresholds was not in issue. There was a dispute
as to the hourly rate that should apply to the care provided.
The Court rejected the Plaintiff’s claim that the
rate should be the market cost of supplying the services
($25 per hour). The Court opined that its task was to arrive
at an objective monetary value which was a question of fact
in each case. With that in mind, the Court adopted the Defendant’s
(conceded) figure of $20 per hour. An allowance of $26,800
was made for past care.
Again, despite the relatively modest award
for past care, the Court awarded $255,250 for future care
(comprised of 10 hours per week for 60 years at $25 per
hour which contained inbuilt discounts).
The Court rejected the Defendant’s
contention that modern day appliances such as a clothes
dryers and dishwasher would alleviate the need for some
of the services currently provided by the Plaintiff’s
partner. Surprisingly, the Court opined that because the
Plaintiff had no experience using such devices she could
not know what effect they would have on her capacities.
The Court also factored in the fledging
nature of the Plaintiff’s relationship with her partner
(despite the fact he had changed occupations to care for
her) and contended that the need for commercial assistance
(at the rate of $35 per hour) could not be ruled out. The
Court therefore awarded a higher rate of $25 per hour for
future care instead of the $20 per hour allowed for past
care.
Practical Significance of the Claim
Whilst it is would be easy to get carried
away at the magnitude of the award for future economic loss
and future gratuitous care, it is important for insurers
to remember that this case turned on its own facts.
Insurers can expect at CC that Claimant
lawyers will claim future paid gratuitous care at the rate
of $25 per hour. This case can be distinguished from cases
involving Claimants in the long standing and stable relationships
where it should continue to be argued that $20 per hour
for future care is appropriate.
On a positive note, the Court reaffirmed
the decision of CSR v Eddy, by disallowing care provided
for the benefit of the Plaintiff’s partner and also
for the future need for services when caring for an infant.
The Court also adopted a rate of $20 per hour for past care
in keeping with Winter v Bourboulas & Ors.
It must also be remembered that the substantial
award for future economic loss should be viewed in light
of the Plaintiff’s young age and the seriousness of
her injuries (highlighted by an ISV of 44).
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