Microsoft word - ntsc1 tho200601 elaine jeffs v capiteq.doc
Elaine Jeffs v Capiteq Pty Ltd & Ors  NTSC 1
CAPITEQ PTY LTD t/as AIRNORTH REGIONAL AIRLINES
MICHAEL JOHN BOURKE and ELIZABETH RAYNER t/as AIR MANYMAK
SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
DAMAGES -- GENERAL PRINCIPLES -- LIABILITY ADMITTED Measure of Damages in Action for Tort. Medlin v The State Government Insurance Commission (1995) 182 CLR 1, applied. REPRESENTATION:
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN
Jeffs v Capiteq Pty Ltd & Ors  NTSC 1
BETWEEN: ELAINE CAPITEQ PTY LTD t/as AIRNORTH REGIONAL AIRLINES MICHAEL JOHN BOURKE and ELIZABETH RAYNER t/as AIR MANYMAK
This is a claim for damages arising from injuries suffered by Mrs Elaine
Jeffs in an airline crash on 30 October 1998.
With the consent of the parties, a claim for damages by Mr Peter Jeffs the
husband of Elaine Jeffs, proceeded as a joint hearing. The evidence of all
witnesses is evidence in both matters. Mr Priestley appeared as counsel for
the plaintiff. Mr Rose SC appeared as counsel for the second defendant.
By consent I made an order allowing the plaintiff to discontinue her claim
against the first defendant. I further ordered that costs of the proceedings
against the first defendant be costs in the cause against the second
The Court was advised that liability had been admitted by the second
defendant and both matters were before the Court for an assessment of
The plane crash
The only evidence as to the plane crash was given by Mr and Mrs Jeffs.
Because it is relevant to the claim for pain and suffering I have summarised
the evidence of Mrs Jeffs concerning the plane crash. Her evidence is
essentially supported by the evidence of her husband. The evidence of
Mr Jeffs, relevant to the plane crash, is summarised in the court’s reasons
In October 1998, Mr and Mrs Jeffs were employed by the Arnhemland
Progress Association (“the Association”). They had obtained a contract for
employment. Mr Jeffs was to be manager and Mrs Jeffs the assistant
manager at the Milingimbi store. Their plan was to work there for five years
and to then seek a further five year contract, if the community would agree
to this. Prior to being offered this contract, they had been employed by the
Association as assistant relief managers in a husband and wife team, at Lake
Evella, Elcho Island, Ramingining and Milingimbi.
Mr and Mrs Jeffs had a commitment to attend a 21st birthday party for
Mrs Jeffs daughter in Perth. They left Milingimbi on 30 October 1998.
They were to start back at the Milingimbi store on 15 December 1998.
On 30 October 1998, Mr and Mrs Jeffs left Milingimbi and flew to
Maningrida on a Cessna 210 plane. At Maningrida they were to board an 18
seater plane to travel to Darwin. There was no pilot at Maningrida. Mr and
Mrs Jeffs got back on the Cessna 210 and departed Maningrida for Darwin.
Mrs Jeffs was seated in the co-pilot’s seat next to the pilot at the front of the
plane. During the flight, Mrs Jeffs looked at the dials on the instrument
panel. The temperature was very high. The pilot was calling “Mayday.
Mayday. Mayday”. Mrs Jeffs turned to look at her husband who was seated
at the left hand side at the back of the plane. He was asleep. Because his
head was lolling from side to side, she asked the person directly behind the
pilot to wake him. Mr Jeffs woke and said “Are we in Darwin?” Mrs Jeffs
replied “No, we’re going to crash”.
 The plane crashed. It hit the ground and bounced back up to the height of
the trees. It came back to the ground on its belly to the end of the gravel
pit. The plane came to a stop just over the end of a mound of gravel at the
end of the gravel pit. The plane pulled up before the trees. The doors had
come off the plane. The person sitting behind Mrs Jeffs had come forward
and pushed her seat off the tracks. Mrs Jeffs stated she felt as though the
top of her body had been crushed. Her legs were underneath the instrument
panel. The top of her body was turned 90 degrees toward the pilot. The
pilot’s head was on her shoulder. Her seatbelt was still on. Mrs Jeffs stated
she felt stunned and scared. She felt as though the front of her chest had
been crushed. Her arm had been hit by the steering wheel. A fuel line had
ruptured and there was fuel pouring through the pilot’s window. Mr Jeffs
called to her and said “We’ve got to get out of here”. Mrs Jeffs was not able
to get out of the plane on her own. She was not able to use her right hand to
undo the seat buckle. Her body was twisted. Her feet felt squashed under
the pedals. Mr Jeffs and another person helped her out of the plane and sat
her down. Mrs Jeffs felt her chest was being squashed. She had fuel all
over her clothes. She was petrified she was going to burn. She did not burn
because she was wearing a long skirt and protective clothing. Mr Jeffs and
another passenger assisted the pilot out of the plane. Altogether, there were
five passengers and the pilot on board. The other passengers were able to
get out unassisted. The pilot was covered in aviation gas and was burning.
A man named Greg removed the pilot’s clothes and then removed his own
shorts. He put them on the pilot because she was burning from the avgas.
Mr Jeffs tried to calm the others and persuaded the two aboriginal
passengers not to go for help, that it would be better for them all to stay
together to be rescued. Approximately 40 minutes after they had crash
landed there were planes circling overhead. These planes stayed overhead
until the search and rescue vehicles came in from Maningrida. The rescue
team included a doctor and two nurses. Photographs of the crashed plane
 The rescue team arrived some two and a half hours after the accident.
During this time, Mrs Jeffs was petrified. She was particularly concerned
that she could not tell her daughters she was alive. She felt sore, ants were
crawling all over her and biting her. She could not move the ants, or the
flies, off herself. As a result of the plane crash, Mrs Jeffs sustained a
whiplash injury to her neck, broken right wrist, badly bruised chest,
shoulders and hips, lacerations to her right knee and badly bruised feet and
toes. The rescue team rendered first aid. Mrs Jeffs’ arms were bandaged.
She was placed on a stretcher. She had blood on her clothing from the
pilot’s facial injuries. There was blood on her knee from the laceration.
 Sometime between 5.00 pm and 5.30 pm, which was about five hours after
the crash, a helicopter arrived. Mrs Jeffs and the other injured passengers
were placed on the back of a Toyota Troop Carrier and transported very
slowly, one at a time, to the helicopter which was at least 200 metres away.
 Mrs Jeffs gave evidence she was in a lot of pain from her injuries and
feeling very frightened. Before being moved, a collar had been placed on
her. While waiting to be rescued, she and other passengers had tried to find
some shade. Being the end of October it was very hot.
 The troop carrier drove through the bush to the helicopter. The ground
surface meant Mrs Jeffs was jostled about in the vehicle which hurt her neck
and chest. Mrs Jeffs was placed into the helicopter on a stretcher. During
the helicopter flight she felt very anxious and scared. She was upset
because of the way they were positioned in the helicopter, she and Mr Jeffs
could not talk to each other. She was given a sedative.
 The plane crash had occurred at approximately 1.30 pm on 30 October 1998.
At approximately 8.45 pm on the same date they arrived at Royal Darwin
 I accept the evidence given by Mrs Jeffs as to what occurred at the time of
the plane crash, the injuries that she received and the fear and distress she
suffered. I find that it was a terrifying ordeal that resulted in physical
Treatment received following the plane crash
 Upon arrival at Royal Darwin Hospital, Mrs Jeffs was taken to the
Emergency Ward. A bangle was cut off her arm. Her clothes were cut off.
She was placed straight onto oxygen because of dehydration. X-rays were
done. Her knee was stitched. She was given a sleeping tablet and morphine
and taken to a ward on level 3 at Royal Darwin Hospital. Mrs Jeffs
described this experience as being “like hell”.
 The second day in hospital Mrs Jeffs complained the calf of her left leg was
hot and sore. An ultrasound found she had a 10 centimetre blockage, being
a thrombosis in her leg. She was given injections, oxygen and strong pain
killers, for the pain she was experiencing in her chest, hips, neck and lower
back. She also suffered headaches. A cast was put on her arm. Family
members arrived including Mrs Jeffs’ two daughters. She stated this
 Under cross examination Mrs Jeffs gave evidence that as a consequence of
the aircraft crash she had suffered a fracture of her right wrist. She had
sustained soft tissue damage to her chest, shoulders, back, neck, a
thrombosis in her left leg and pain in her hips, knees and feet. Mrs Jeffs
agreed that subsequently her right wrist had healed.
 After being in hospital for 10 days, Mr and Mrs Jeffs were discharged. The
Association arranged accommodation for them at Cullen Bay Marina Views.
Mrs Jeffs had broken her top denture and glasses in the plane crash and had
to organise replacements. She was placed on a regime of pain management.
Mrs Jeffs’ daughter Teisha came to stay with them for five days. During
this time Teisha did everything for them. This included assisting Mrs Jeffs
to shower and dress, doing the shopping, preparing meals and providing
emotional support. During this time Mrs Jeffs consulted Dr Guthrie.
 Because they had no family in the Northern Territory, it was decided that
Mr and Mrs Jeffs would travel to Rockingham, which is 45 miles south of
Perth, to stay with Mrs Jeffs’ sister, Valerie Lee.
 Mrs Jeffs gave evidence that she had to be sedated to travel on the plane.
She gave evidence that prior to the plane crash she had no fear about flying.
 Mr and Mrs Jeffs stayed at the home of Ms Lee until 9 March 1999.
Mrs Jeffs attended the Woodbridge Medical Centre. Dr Kennison organised
physiotherapy and for her to see a psychologist. Mrs Jeffs was placed on
medication for the thrombosis in her left leg. This thrombosis did not exist
 Whilst at the home of Ms Lee, Ms Lee cared for both Mr and Mrs Jeffs. She
helped Mrs Jeffs shower and dress. Ms Lee did the cooking. Mrs Jeffs
estimated the time Ms Lee spent caring for her was between 10-12 hours per
day for the whole period up to 9 March 1999.
 Under cross examination Mrs Jeffs gave evidence that Ms Lee lived on her
own. She agreed when Ms Lee did the cooking and washing for Mr and
Mrs Jeffs she would also be preparing her own meal and doing her own
washing. When asked in cross examination where the 10-12 hours a day
constant care came from, Mrs Jeffs replied that Ms Lee was always with
them, sitting on the bed, making sure they were all right. Mrs Jeffs stated
that Ms Lee was in part time employment at the Catherine McAuley Old
People’s Home. This part time employment continued during the time
Mr and Mrs Jeffs were at Ms Lee’s home.
 Mr Jeffs gave evidence that the Arnhemland Progress Association had, as
part of their workers compensation, paid for certain expenses whilst they
were staying with Ms Lee. These expenses are set out in a letter dated
8 April 1999 from Mr and Mrs Jeffs. Copy of the letter has been tendered
 The expenses claimed related to the period from 17 November 1998 to
9 March 1999 whilst Mr and Mrs Jeffs were at Ms Lee’s home. They are as
These expenses have been paid by the Workers Compensation Insurer.
 During their stay at Rockingham, Mrs Jeffs paid regular visits to
Dr Kennison. She attended for physiotherapy. The manipulation hurt. The
pain was in her shoulders and neck. It was decided hydro-therapy would be
a better option. Mrs Jeffs gave evidence that by March 1999 she was
experiencing psychiatric problems. These problems manifested themselves
as feeling low, being moody, grumpy and irritable and taking things out on
her husband in a way she had never done before. Mrs Jeffs stated her libido
 On 9 March 1999, Mr and Mrs Jeffs left Rockingham to return to Darwin.
Mrs Jeffs was placed on Valium so that she could travel on the plane. She
described the take off and landing as horrific.
 Upon returning to Darwin, Mrs Jeffs attended Dr Guthrie. She was deemed
unfit for flying, and to resume light duties only, with no lifting.
Arnhemland Progress Association required a second opinion. Mrs Jeffs
consulted Dr Brownjohn. Dr Brownjohn also deemed her unfit for flying in
a small aircraft and recommended light duties only. Mrs Jeffs consulted
psychologist Jan Isherwood Hicks and physiotherapist Mr Tim Hayman.
Mrs Jeffs then gave evidence concerning the employment she undertook
following the plane crash and up to the present time.
 I will detail Mrs Jeffs’ post accident employment a little later in these
Employment prior to the plane crash on 30 October 1998
 Mrs Jeffs was born on 20 September 1952. As at the date of the plane crash
she was 46 years of age. Her parents were farmers. She had grown up on a
farm between Toodyay and Bolgart in Western Australia. This is about 120
kilometres north east of Perth. She attended school until the age of 16,
having completed Year 11 at Northern Senior High School. On leaving
school, she returned to work on the family farm, as her father had passed
away. It was a mixed farm. Her duties included milking cows, raising
chickens for sale, sheep, cattle and pigs. At the age of 17½, Mrs Jeffs
obtained a full time position at the Bolgart Co-operative Store as a sales
clerk. Mrs Jeffs married at the age of 20. After she married she continued
in part time employment at the Bolgart Co-op Store as a shop assistant. Her
work involved ordering, packing shelves, paper deliveries, wrapping of
bread, vegetables and hardware. She and her husband had their own farm
where they lived and where her husband worked. There were two children
of the marriage, Haley Joy McGill and Teisha Maree McGill.
 Between 1976 and 1978, Mrs Jeffs and her husband travelled around
Australia. A few months after their return to Bolgart, Mrs Jeffs’ husband
obtained employment as a Ranger at Yanchep National Park, 50 kilometres
north of Perth. During the two years they lived there, Mrs Jeffs worked at
the Yanchep National Park Inn as a catering assistant, barmaid, doing home
duties in the motel and hotel facilities.
 Following Yanchep they moved to Kalbarri on the coast of Western
Australia 650 kilometres from Perth where they lived for four years and then
to Wallaroo 230 kilometres north of Perth. At Wallaroo Mrs Jeffs worked as
a pre-primary teacher’s aide and at the same time was caring for her husband
 In 1987 the family moved to Willyung National Park which is 50 kilometres
from the centre of the city. Mrs Jeffs worked for Target Australia as a front
end supervisor. This involved rostering employment, staff interviews,
 In 1990, Mrs Jeffs separated from her husband and moved to Leonora
720 kilometres east of Perth. During her six months at Leonora, Mrs Jeffs
worked at Harbourlights Mine as an accounts clerk. She formed a
relationship with her present husband, Peter John Jeffs. They married on
29 May 1993. On leaving Leonora, Mr and Mrs Jeffs moved to an
aboriginal community in the Sandy and Gibson Deserts of Western
Australia, about 1600 kilometres east of Perth. Mrs Jeffs was appointed as
the store manager. Mrs Jeffs described this like a mini K-Mart. She had
two girls working with her. She was responsible for ordering, filling
shelves, unloading trucks, working a forklift, wage preparation. Mr Jeffs
worked there as the community administrator. They were required to travel
 After a little over two years in this community, Mr and Mrs Jeffs moved in
1994 to Kununurra. Mrs Jeffs had part time employment as an accounts
clerk at the Kununurra Bakery. Her duties involved balancing the tills,
bookwork, ledger recording and banking. Mr Jeffs worked for ATSIC as a
project officer. They remained in Kununurra for 12 months.
 At the conclusion of this 12 month period, they moved south 206 kilometres
to Turkey Creek. Mrs Jeffs obtained employment at the local convent
school as a receptionist and part time at the community office as a book-
keeper. Mr Jeffs was the community administrator. They remained at
Turkey Creek community for 12 months. They were then given the position
of looking after the community roadhouse which is on the Great Northern
 Running the roadhouse included serving customers both motel and
backpackers, cleaning the swimming pool, booking tickets for buses. It
involved long hours working seven days a week.
 In May 1998, Mr and Mrs Jeffs applied for a position with the Arnhemland
Progress Association in Darwin as a husband and wife team, as relief
managers. Employment commenced in June 1998. Their duties involved
running the community store while the permanent managers were away.
They worked at Lake Evella, Elcho Island, Ramingining and Milingimbi.
They were offered a permanent position at Milingimbi Island to commence
on 15 December 1998. Mrs Jeffs was to receive a salary as an assistant
manager in the sum of $26,000 per annum. In addition to this, her terms and
conditions included a travel allowance of $2,500 per annum. They would be
provided with accommodation free of rent, a four bedroom airconditioned
home. Superannuation was to be paid in addition to her wage at 9 per cent.
They had a line rental free telephone. They had a 4WD vehicle for their
own personal use as well as the provision of fuel.
 Mrs Jeffs gave evidence that at that time Mr Jeffs was 59 years of age.
Mrs Jeffs was 13 years younger. They planned to work until Mr Jeffs turned
70, provided he was still in good health. Their plan was to stay at
Milingimbi for five years and then seek the community agreement to a
further five years in that position. These plans never eventuated. Mr and
Mrs Jeffs were both injured in the plane crash that occurred on 30 October
The Medical Evidence
 A number of medical reports were tendered in these proceedings. The Court
heard evidence from the following medical specialists called on behalf of
Dr Stephen Proud
 Dr Proud is a general adult psychiatrist. He has a special expertise in drug
and alcohol addiction, old age psychiatry and psychotherapy. He also has
broad experience in Post Traumatic Stress symptoms. Dr Proud prepared
two reports concerning Mrs Jeffs dated 21 April 2004 and 22 July 2005.
These reports were tendered and marked Exhibit P2. In his report dated
21 April 2004, Dr Proud relates Mrs Jeffs medical history noting that she
had not had any psychiatric problems prior to the plane crash in October
1998. He also noted that prior to October 1998, Mrs Jeffs’ work had
involved flying in light aircraft to and from remote communities. He
described her apprehension about flying since the date of the plane crash.
 Dr Proud stated that at the time of writing the report, Mrs Jeffs was
employed 25 to 36 hours per week in two positions. One position as a carer
for the elderly and another as a shop assistant. He described her current
symptoms and stated that it appeared anxiety was a major factor contributing
to her neck pain but that her neck pain probably also represented a
combination of soft tissue injuries from the plane crash, aggravated
 Dr Proud stated at pages 3 and 4 of his report:
“… She describes her mood as anxious and irritable and sad most of the time. She has not been happy since the plane crash. Since the crash, her concentration, short-term memory, libido, energy, motivation and enjoyment of life have remained low. Her appetite has increased and she has gained 10kg in weight. She has no thoughts of suicide. She has trouble falling asleep and staying asleep, from a combination of anxiety and pain. She experiences nightmares of the plane crash, but these are diminishing, and are currently occurring only once a month. However almost once a week she has a flashback to the crash and she frequently ruminates about the crash. Loud noises, real or virtual aeroplanes, real or virtual plane crashes, talking or thinking about the accident, causes her to become distressed. The smell of petrol and the sounds of heavy machinery also cause her anxiety. She feels more disconnected from the world around her, and she has a sense of foreboding.
Whenever she flies [and she has been forced to fly three times since the accident but nil in the last three years] she becomes very anxious. She has a daughter in the United Kingdom and friends in the USA but she is too afraid to fly and visit them.”
 Dr Proud stated at page 5: “Mrs Jeffs’ Post Traumatic Stress Disorder and
Major Depression are directly and solely related to the plane crash of
30th October 1998”. He described the counselling she has undertaken and
the medication that has been prescribed.
 Dr Proud described Mrs Jeffs’ degree and period of incapacity for work. He
stated that from a purely psychiatric point of view she had a partial
incapacity to work as a carer and shop assistant and for many other non-
specific occupations because of her ongoing major depression. He described
her as having a permanent and total incapacity for working in any position
that involved flying in aeroplanes and that this may extend to working with
heavy machinery or petroleum based fuel. Dr Proud described the
counselling and medication that Mrs Jeffs required.
 In his report dated 22 July 2005, Dr Proud noted that Mrs Jeffs no longer
worked as a carer because she could no longer cope with the pain in her
shoulder and hips. He noted she still works six hours as a support worker
for an 18 year old boy and that once a week she does a 300 kilometre round
trip driving to assist her husband. Dr Proud noted there had been no change
to her symptoms since the last report, as have been set out in par  of
 Dr Proud stated that Mrs Jeffs’ prognosis is poor. There will be some
improvement in her depression and Post Traumatic Stress Disorder but she
will be left with permanent symptoms of Post Traumatic Stress Disorder as
well as permanent residual chronic mild to moderate depressive symptoms.
He also noted the benefits from being in the workforce to her state of
 Under cross examination, Dr Proud agreed that he relied very much on the
history given to him by Mrs Jeffs. He stated his main focus was Mrs Jeffs’
psychiatric condition. He was not her treating doctor. He agreed that
coming to him for a medico legal report could cause anxiety and the
litigation process can exacerbate the symptoms and cause stress.
Improvement can be expected once those stresses are over. He confirmed
his statement in the report of April 2004 that in the previous three years
Mrs Jeffs had flown three times under sufferance and was anxious each time
 Dr Proud gave evidence that from a psychiatric point of view there was no
reason Mrs Jeffs could not continue to work 25 to 35 hours per week,
provided it was passive work. He stated that depression can limit the
number of hours work a person can do. He would encourage her to work as
long as she did not overdo it. From a psychiatric point of view, she could
have remained in the work she was doing and continue in this work. He
agreed that Mrs Jeffs had told him she only stopped work as a shop assistant
because the shop was sold. She was motivated to resume work, as it stops
her worrying and thinking about the crash. He stated Mrs Jeffs was
receiving counselling and medication for her psychiatric problems.
Dr Desmond Williams
 Dr Williams gave evidence he is an arthritis surgeon dealing in the upper
and lower limb. Dr Williams had prepared a total of four reports between
5 May 2004 and 2 September 2005 concerning Mrs Jeffs. These reports
 In his report dated 5 May 2004, Dr Williams noted that Mrs Jeffs current
problems were pain in the trochanteric area which is the boney prominence
at the hip joint area. He stated she had a poor sleep at night and lumbar pain
radiating to the right shin. She has odd sensations in her right hand fingers
and at the tips of the thumb, index and ring finger. Dr Williams states in
this report that Mrs Jeffs has significant ongoing anxiety and depression.
There was significant restriction in her right shoulder motion. There was
bursal bunching present. There was mild crepitus in her knees on motion,
calluses to her feet, tenderness in the area of her elbow and degenerative
disc space narrowing at C4/5 of her cervical spine. Dr Williams made
reference to the deep vein thrombosis in Mrs Jeffs’ left leg. He also referred
to reports he had received from other specialists including psychologists.
“The evidence is that her presentation of symptoms, both physical and psychological, are related to the aircraft accident of October 1998.”
 Dr Williams outlined matters that needed further investigation and
evaluation. He provided a list of percentage disabilities. This list of
percentage disabilities was set out in his report dated 20 June 2005 at
“In terms of assessment of permanent residual disability related to the accident, I would see residual disabilities as follows:
In the cervical spine she has a 15% permanent residual disability, expressed as a percentage disability of the whole functional spine.
In the right shoulder there is disability of the order of 15%, expressed as a percentage disability of the right upper limb at elbow and above.
In the left elbow there is a lesser disability then earlier assessed and I see it at 10%, expressed as a percentage disability of the left upper limb at elbow and below.
In the lumbar spine there is an annoying mild level of disability at 5%, expressed as a percentage disability of the whole functional spine.
In the pelvic and hip area there is a mild level of disability of the order of 5%, expressed as a percentage disability of the pelvis and hip.”
With regard to work, I have noted in the text of the report that she ceased employment as a carer but continues to work part-time in a newsagency and assists her husband in a courier business with her work being on average some 20 hours per week. She is maintaining those work capabilities.
This patient is permanently unfit for employment as a carer. A carer has tasks that involve stresses on her spine and upper limbs that are out of keeping with the capacities with which she presents. In a carer’s tasks there are sudden risk situations that the patient is exposed to that are unavoidable and therefore with her residual disabilities it becomes a dangerous work situation.
I believe she will cope with work as a newsagency assistant or courier driver’s business assistant and I see her fitness for part-time work activities and she is currently doing 20 hours a week which is basically a half week schedule and she will maintain that level of capacity. It is unlikely she will build up to fulltime work commitments and capacity.”
 Under cross examination, Dr Williams agreed that as people get older they
experience degenerative changes. Dr Williams gave evidence under cross
examination of the work that Mrs Jeffs was required to undertake as a carer
and as a shop assistant. He stated that he would describe her best work
situation as desk or bench work where she was not unduly stressing her
upper limbs with heavy lifting or repetitive activities. He stated he believed
Mrs Jeffs could work part time, that she had significant underlying
pathology and it was his belief long periods of work would see these
symptoms emerge. Dr Williams did not agree with the suggestion put to him
that Mrs Jeffs could be in full time employment. He stated he considered
Mrs Jeffs had significant pathology and that he saw her work path as part
time. He stated “She needs a part time position with a flexible workstation
within the functional limitations that she presents”. Dr Williams said he
accepted that Mrs Jeffs had major psychological issues.
Dr John Parry
 Dr Parry is a general practitioner practising in Narrogin, Western Australia.
Dr Parry prepared two reports concerning Mrs Jeffs. The first report is
dated 18 March 2002 and the second is dated 9 September 2005. The
reports are tendered and marked Exhibit P12.
 In the evidence to the Court, Dr Parry confirmed that the final paragraph of
his report dated 18 March 2002, which refers to both Mr and Mrs Jeffs,
should read: “This Post Traumatic Stress Disorder has gone on for a long
time and I strongly feel they can both be helped and cured.” He stated the
recommended charge for a long consultation with a general practitioner was
 In his report dated 9 September 2005, which refers solely to Mrs Jeffs,
“She has [been] seen 25 times since I met her. Mrs Jeffs has been severely affected by the incident and her life has been out of her
control. She cannot work, sleep or enjoy everyday life. Her Neurofatic pain will almost certainly be with her and she will need medication forever.”
 Dr Parry made reference, as have other doctors, to Mrs Jeffs weight
problems and the fact that she is affected by the worry of litigation.
Dr Parry further notes that Mrs Jeffs will need counselling and consultation
 Under cross examination Dr Parry confirmed that he considered both Mr and
Mrs Jeffs would benefit from cognitive assessment and treatment by a first
class psychiatrist. He recommended they see a Dr P Skerritt for Post
Traumatic Stress Disorder. He stated Dr Skerritt does visit Narrogin (which
is relatively close to Wagin). He gave evidence there is also a Mental
Health team at Narogin including a clinical psychologist in private practise.
Under cross examination, Dr Parry stated when referred to his report of
18 March 2002, that he meant that by referring Mr and Mrs Jeffs to a
psychiatrist they could be helped but he could not know how successful this
help would be. He agreed that once her case is settled there should be some
improvement but thought she would always need treatment. Dr Parry gave
evidence as to the future treatment that Mrs Jeffs would require and the
Dr Anthony Brownjohn
 Dr Brownjohn gave evidence he is a general practitioner practising in Parap
in the Northern Territory. He gave evidence that he examined and provided
treatment to Mrs Jeffs. Four medical notes, a report and a print out prepared
by Dr Brownjohn between 30 March 1999 and 22 August 2005 were
 In his notes dated 30 March 1999, Dr Brownjohn described the plane crash
and the injuries received by Mrs Jeffs as she related to him. Dr Brownjohn
referred Mrs Jeffs to a psychologist Dr Ian Isherwood-Hicks. In his report
dated 28 August 2000, Dr Brownjohn states that: “Mrs Jeffs suffers from
persistent post traumatic anxiety and symptoms suggestive of cervical and
 Under cross examination Dr Brownjohn agreed that in his letter dated
28 August 2000, he had stated that physically and psychologically, Mrs Jeffs
was gradually getting better. He was asked about Mrs Jeffs’ time sheets for
the periods she was working since 1999. He stated he thought Mrs Jeffs was
pushing herself as hard as she could, that she was a stoical sort of person.
He said he thought in the end that had a negative effect and her symptoms
were probably worse because her physical tolerance did not match what she
wanted to do. Dr Brownjohn agreed that the view he held was reliant on
what Mrs Jeffs had told him. He agreed that he had said in his report that it
was best psychologically and physically for Mrs Jeffs to be working in a
remote community with her husband. In his evidence, Dr Brownjohn said
the emphasis was on working with her husband.
 Dr Brownjohn agreed that over the period between May 1999 and April
2001, Mrs Jeffs was telling him that she was getting better, that although she
had some problems she was back working and she was improving.
Ms Lynette Mutton
 Ms Mutton gave evidence that she is a clinical psychologist with a general
practice. Ms Mutton prepared a report concerning Mrs Jeffs dated
31 August with a summary of treatment dates attached. This report is
marked Exhibit P17. In this report, Ms Mutton lists Mrs Jeffs psychological
symptomatology which she concluded in her report are symptoms
characteristic of chronic Post Traumatic Stress Disorder with concomitant
depression. Ms Mutton stated at page 5 of her report:
“Although the medical treatment for her physical injuries is completed, Mrs Jeffs still suffers continuous severe pain, which reaches acute levels if she tries to do anything physical. Even when sitting resting there is still a level of pain in her body, which is very exhausting and demoralizing. Prior to the plane crash Mr[s] Jeffs led a very active, fruitful life, gardening, mowing lawns, knitting, crotchet, sewing etc. The constancy and severity of her pain prevents her from enjoying any of these activities now. When traveling in a vehicle Mrs Jeffs feels every bump in the road and has to interrupt the journey a number of times to stretch and rest her body. Mrs Jeffs is determined to keep working as much as she can in spite of the pain. She has therefore found a number of jobs in Wagin, but the acute physical pain she suffers whilst working results in her ending each day feeling totally exhausted both physically and mentally. Mrs Jeffs tries to look for jobs with a limited physical component, but her ongoing pain still has a major impact on her. She is currently employed as a Carer to an Asperger Syndrome adult for 6 hrs per week. Mrs Jeffs has a particular interest and skill in this area of employment and prior to the plane crash had been doing further studies in this area. However since the crash she has found trying to study very difficult. The reason for this is the significant
deterioration in her cognitive functioning as detailed under symptomatology above.”
 Ms Mutton then stated the psychological treatment for Mrs Jeffs had been
complex and difficult covering a number of areas. Ms Mutton described the
treatment for Mrs Jeffs’ condition as being painful and exhausting and by
definition often impossible to completely resolve. She described Mrs Jeffs
as being completely tenacious in her commitment to treatment and that she
had made significant progress. Ms Mutton described in some detail
Mrs Jeffs’ fear of flying and stated that Mrs Jeffs is likely to suffer a
permanent and severe fear of flying. Ms Mutton details the anguish and
despair experienced by Mrs Jeffs in coming to terms with the significantly
different lifestyle she is now forced to accept. These include the affect on
her relationship with her husband, both physically and emotionally, her
permanently injured and damaged body, her loss of emotional strength and
capacity to help and support others, her impaired cognitive functioning
which prevents her from further study, her loss of employment options, her
loss of energy and interest in her many hobbies and activities and the need
to leave the Northern Territory, the pessimistic attitude of self criticism that
 Ms Mutton referred to the detrimental effect having to deal with pain had
upon Mrs Jeffs. In her report, Ms Mutton addresses Mrs Jeffs’ reduced
capacity for work as a consequence of her symptoms. There is a list of the
dates that Mrs Jeffs attended for treatment and the treatment sessions she
will require over a period of a further year.
 Under cross examination, Ms Mutton gave evidence she thought Mr and Mrs
Jeffs were the kind of people who would try to push themselves to cope with
any circumstances while they have the energy and motivation to do so. She
considered they both minimised and tried to ignore a lot of their physical
and emotional injuries. They were trying hard to get on with their lives.
Ms Mutton agreed in cross examination that there would be an improvement
in Mrs Jeffs’ condition once the compensation process had been completed.
When asked about Mrs Jeffs’ ability to work through her pain, Ms Mutton
“She has an incredibly strong personality, with a very positive outlook on life and they are the characteristics which probably allow her to tolerate levels of discomfort and pain that a lot of other people wouldn’t be able to do”
 In re-examination, Ms Mutton gave evidence that it was her opinion
Mrs Jeffs would be left permanently with symptoms of Post Traumatic
 In addition to the medical evidence presented for the plaintiff, the defendant
called two doctors to give evidence on behalf of the defendant.
 I accept the evidence given by all the doctors and clinical psychologist
Lynette Mutton, who were called on behalf of the plaintiff. The evidence
given by the specialists called for the plaintiff was substantially supported
by medical evidence given by specialists called for the defendants.
Medical evidence called by the defendant Dr Max Baumwol
 Dr Max Baumwol is a general and laparoscopic surgeon. Dr Baumwol
prepared a report dated 13 July 2004 concerning both Mr and Mrs Jeffs. The
report was tendered and marked Exhibit D14.
 In his report Dr Baumwol refers to the work of Mr and Mrs Jeffs at Palumpa
following the accident. He noted as follows:
“During their two years in Palumpa, all roads into the area were closed off during the wet season and Mrs Jeffs feared an evacuation by plane. During this time Mrs Jeffs would drive about 450 kilometres to Darwin once a month during the dry season for physiotherapy, psychological therapy and various Doctors appointments.
Eventually they quit their jobs and both drove back to Darwin and then they drove all the way back to Wagin where they currently live.”
 Dr Baumwol stated the results of his examination of Mrs Jeffs as follows:
“MRS JEFFS – weight 95 kilograms, normal abdomen and cardio vascular system for age. Good movements of neck, shoulders, arms, hips and knees. Straight leg raising to 80 degrees. Mrs Jeffs exhibited stiffness in her joints on movement, but once going she was more relaxed. There were no specific abnormalities other than a generalized muscular tenderness on palpation”.
 He noted that “most of the obvious injuries have healed”. Dr Baumwol
stated in his report that Mrs Jeffs was working four mornings a week in a
newsagency and two Saturdays every month as an aged carer.
 Dr Baumwol concluded Mrs Jeffs did not require any further surgery or any
other specific treatment and that settlement of her claim would go a long
 Dr Baumwol gave evidence that prior to preparing the report he had taken a
history from Mr and Mrs Jeffs. He identified the documents he had access
to prior to carrying out his examination. He gave evidence that Mrs Jeffs
was clearly angry and upset about the predicament she was in but she was
very calm about it. He did not consider there was a need for any specific
surgery. He stated his impression was that Mr and Mrs Jeffs were anxious
to have this matter behind them as they had been through a lengthy process.
 Under cross examination, Dr Baumwol gave evidence that when he
examined Mr and Mrs Jeffs there was no evidence of conscious or
unconscious exaggeration of symptoms. He agreed that given Mrs Jeffs
problems, about 20 hours per week of light work would be about her
 Under re-examination, Dr Baumwol gave evidence that what he meant when
he agreed Mrs Jeffs was capable of 20 hours per week light work was that he
did not think she was able to do what she could do prior to the accident. He
stated she was clearly making an effort to do what many people would not
make an effort to do. If she was working 20 hours a week plus and was
coping with that, then that is what she is obviously able to do.
Dr Sam Febbo
 Dr Febbo is a consultant psychiatrist. He prepared a report dated
8 November 2004 which was tendered Exhibit D19. Under the heading
“Summary and Opinion” at pages 5-6 of his report, Dr Febbo says:
“From the psychiatric perspective, Ms Jeffs reported a marked deterioration in her mental state that followed the accident and she reported having experienced a number of depressive and anxiety symptoms. By the time of my interview, however, there had been a significant improvement in Ms Jeffs’ mental state, although she continues to report some residual depressive and anxiety symptoms and these anxiety symptoms fall within the category of Post Traumatic Stress Disorder. Her psychiatric condition is now in partial remission.
In addition to the accident and associated physical symptoms, there is also significant stress related to the compensation litigation process and it appears that this process does have a significant negative impact on her mental state.”
 Dr Febbo indicated in his report that there had been significant improvement
in Mrs Jeffs’ mental state and he would expect this to continue. However,
he considered it likely there would be some residual symptoms of Post
Traumatic Stress Disorder in the medium to longer term.
 Dr Febbo considered Mrs Jeffs was capable of full time work from a
psychiatric perspective. In his report he says there is no evidence to suggest
any conscious or unconscious exaggeration of her symptoms or a deliberate
attempt to feign injury for personal gain.
 Under cross examination Dr Febbo agreed he accepted Mrs Jeffs as an
honest and reliable historian. He agreed he had diagnosed her as suffering
from Post Traumatic Stress Disorder and depression. Dr Febbo agreed that
given Mrs Jeffs’ pain and psychiatric symptoms it was reasonable that she
only work 20 hours per week in accordance with her disabilities and
restrictions. In re-examination, Dr Febbo expressed the view that based on
her psychiatric symptoms he did not feel that was hindering her from
Post accident employment in the Northern Territory
 Following her return to Darwin in March 1999, Arnhemland Progress
Association created a position for Mrs Jeffs at their office. Mrs Jeffs was
answering the telephones and working at the computer. Her hours of work
were 8.00 am to 4.00 pm. Mrs Jeffs remained in the Arnhemland Progress
Association office until 15 March 1999. The management at Arnhemland
Progress Association decided she should then accompany her husband to
Palumpa. Mr Jeffs was to take up a position as manager of the community.
Mr and Mrs Jeffs were flown to Palumpa in a Cessna 210. Mrs Jeffs
described being physically ill after the flight, having felt sick through the
whole journey. She remained at Palumpa for about two weeks. During this
time, Mrs Jeffs assisted her husband in the store within her limitations. She
did not do any lifting, packing of shelves or sweeping. Her duties included
driving people to the store to shop and driving them home. Mrs Jeffs gave
evidence that she was in pain, particularly in the neck, shoulders, hips and
 The return to Darwin was by plane. Mrs Jeffs found this scary. She
remained working in the Darwin office of Arnhemland Progress Association
until 22 May 1999. On that date she drove a 4WD to Palumpa. She
observed her husband working in the store while he was in a lot of pain.
Mrs Jeffs worked in the store for two hours in the morning and two hours in
the afternoon. She also worked two hours a day during week days at the
Health Clinic. Mr and Mrs Jeffs remained at Palumpa until 2001. Mrs Jeffs
stated she had difficulties in performing her job at Palumpa, she had to ask
for help to pick things up and place in the trolleys so she could put them on
the shelves. Mrs Jeffs stated she was suffering depression and lethargy.
 Mrs Jeffs gave evidence that during the wet season the only way in or out of
Palumpa is to fly. She tried to overcome her fear of flying but her attempts
did not work. She stated that she made a decision to leave Palumpa because
she wanted to be near her family, she needed to be away from the situation
at Palumpa and Mr Jeffs was not getting better with his pain.
 Mrs Jeffs gave evidence that she and her husband purchased a house in
Wagin near Perth in Western Australia and moved there to live.
 Mrs Jeffs was cross examined concerning her evidence about working in
Palumpa and her decision to leave and move back to Western Australia.
Under cross examination Mrs Jeffs gave evidence she and her husband went
to live in Wagin in May 2001 when they left Palumpa. They chose Wagin
because it was a family community and they did not want to live in the city.
In Wagin, employment was difficult to obtain. Mr Jeffs returned to the
Northern Territory for a few months to work at Batchelor for Arnhemland
Progress Association. Mrs Jeffs obtained a job at Waratah Age Care Hostel
 Mrs Jeffs stated that she went to Palumpa with a view to working. She was
keen to return to work and in fact commenced by doing some voluntary
work. It is Mrs Jeffs evidence that when she worked at the Palumpa store, it
was within certain limits as she could not lift anything.
 A number of attendance records noting hours worked by Mrs Jeffs were
tendered and marked Exhibits D8 and D9. These list hours worked by
Mrs Jeffs in certain weeks and verified by Mr Jeffs who was her supervisor.
 In the week of 12 October 1999, Mrs Jeffs had driven herself 490 kilometres
to Darwin. She stated at the time she wore a neck brace and a back support.
 Mrs Jeffs agreed that the attendance records during June, July and August
1999, state she was working eight hours a day during the week with two and
half hours on Saturday. She gave evidence this work involved pricing stock,
working on the cash register, driving customers home, office duties, putting
pies into the microwave, ordering and dusting shelves within her reach. She
stated that on the occasion she did fly she was under medication. Her
evidence is that for seven months of the year, the roads to Palumpa are not
open. She stated she left Palumpa because of a fear of being blocked in
during the wet season. She agreed there were a number of reasons for
leaving Palumpa including a desire to be closer to her family. She stated
there were no other Arnhemland Progress Association posts that were
available to them. They did not look for another position because they had
bought a home in Wagin. Mrs Jeffs stated that it was their aim to work in
aboriginal communities for up to five years and because of her husband’s
pain and loss of a brother-in-law, they had decided to move south.
 In re-examination, Mrs Jeffs gave evidence that the work that she was taking
eight hours to do could have been done in four to five hours before the
injuries from the plane crash. While working at Palumpa Mrs Jeffs felt very
depressed and sore. She took pain killers all the time to enable her to
Post accident employment in Western Australia
 Upon their arrival in Wagin, employment was difficult to obtain. They had
to apply for benefits and live on superannuation and Mrs Jeffs’ life
insurance. Mrs Jeffs obtained employment at Waratah Aged Care Centre.
She studied and obtained her Certificate 3 in aged care.
 Mrs Jeffs gave evidence that at the same time she was employed at the
Waratah Aged Care Centre, she also worked at the Wagin Newsagency. She
worked in the carer’s job until November 2004. In Mrs Jeffs employment at
the Newsagency, she earned $14.26 per hour. She worked between 15–20
hours per week at the Newsagency and earned an average of $200 per week.
This employment is no longer available to her. It is Mrs Jeffs’ evidence that
the Waratah Aged Care Centre expanded its rooms and also took in patients
requiring a higher level of care. Mrs Jeffs resigned as she was unable
physically to do the job which involved giving residents between four to six
showers a day. She now works six hours a week with a young man who has
Asperges, which is similar to autism. Mrs Jeffs’ role is to teach him life
skills. She takes him to the recreation centre and teaches him about birds
and flora, being subjects that are her own passion. Mrs Jeffs is paid $18.50
per hour for this employment. A job she continues to do.
 It is Mrs Jeffs evidence that after leaving Palumpa she never returned to
work as an assistant store manager because she could not do any lifting. She
 In June 2004, Mr Jeffs purchased a courier van business and is a courier
driver. Mr Jeffs is working about 60 hours a weeks doing a round trip of
300 kilometres on each run. Mrs Jeffs works on average 10 hours a week
 Under cross examination Mrs Jeffs gave evidence that she worked at the
Waratah Aged Care Centre 10 hours a week and at the Wagin Newsagency
15 to 20 hours a week. She agreed she sometimes worked 35 hours per
week. She also undertook a course of study but was not able to continue
that past her first assignment. Mrs Jeffs gave evidence as to a workplace
assessment that was carried out with respect to the work that she did at the
Waratah Aged Care Centre. She was able to perform such duties as
mopping, vacuuming and washing occasionally and with limitations.
 Mrs Jeffs gave evidence that when new owners took over the Wagin
Newsagency, there was no longer employment for her and she was forced to
 While she was still at the Wagin Newsagency, Mr Jeffs set up the courier
business. Mrs Jeffs drives one 300 kilometre trip for him once a week
which involves delivering small items. Mrs Jeffs stated she drove with pain
 Mrs Jeffs stated that at the present time she works six hours a week as a
carer and 10 hours a week in her husband’s business. It is her intention to
look for other employment. She stated she would have a go at any form of
work within her physical limitations. She agreed she had wide experience in
administration type skills, carer’s skills, running stores, as a barmaid, a
pharmacy assistant and school teachers aide. It is her intention to find
further work and she expects this will happen.
 In re-examination Mrs Jeffs stated that after driving her 5 hour shift for the
courier business she feels exhausted. There were times at the newsagency
that she could not work because of pain from the injuries she suffered in the
plane crash. This could occur twice a fortnight.
 It is Mrs Jeffs’ evidence that with her pain levels she would be limited to
Economic evidence Christopher John Edwards
 Mr Edwards is the Human Resources Manager for Arnhemland Progress
Association. When he commenced working with the Association in 1998,
the salary for the store manager was $39,000 per annum. The assistant
manager’s salary was $27,500 per annum. He gave evidence that the current
combined salary for a couple filling the position of manager and assistant
manager at Milingimbi Store is $80,000.00. The couple can then split the
 Arnhemland Progress Association currently have five of their own stores
plus eight consultancy stores, all except three of these have a husband and
wife as manager and assistant manager. There is a standard commencing
package, increases occur on average every two years.
 The superannuation component of the package is 9 percent. Managers in
remote communities are paid 2 percent above the legislative requirements.
The current budget for the rent to be paid is $120 a week. It was his
assumption that this amount had not changed.
 All applicants undergo pre-employment medical examinations to deem they
are fit to carry out their duties required. There is a certain amount of
reasonably heavy physical work required.
 Mr Edwards gave evidence that in his experience people generally stay in
store management jobs on average around five years. It is quite common for
people to stay longer. One couple retired after 17 years.
 Under cross examination Mr Edwards gave evidence that there are other
community centre stores that exist outside of his organisation. He estimated
these would be in excess of 200. Most of them employ a husband and wife
team in a similar way. He stated Arnhemland Progress Association also
have stores outside of the Northern Territory including in Western Australia.
Mr Edwards stated he could not recall any application from Mr and Mrs
Jeffs to go to some other place after they left Palumpa.
 Mr Edwards agreed that the legislation changed in 2003 increasing
superannuation to 9 percent. When the legislation changed Arnhemland
Progress Association increased their superannuation payment to 11 percent.
 Mr Edwards tendered a document titled “Employment Separation
Certificate” – Exhibit D21. This document is dated 1 November 2002. It
states Mr Peter Jeffs was employed on an end of season contract between
8 June 2002 and 21 October 2002. A letter of the Arnhemland Progress
Association dated 30 August 2004 was tendered and marked Exhibit P22.
This letter details the salary package offered to Mr and Mrs Jeffs had they
commenced work at the Milingimbi store in December 1998.
Ronald George Jones
 Mr Jones is the technical claims manager for Allianz. Mr Jones currently
has conduct of the recovery of workers compensation expenses in respect of
 The total figure to be recovered in respect of Elaine Jeffs in respect of
injuries received in the plane crash on 30 October 1998 is $79,168.13. This
includes a component for weekly payments of compensation.
 The total for Elaine Jeffs is $34,375.01 gross. Between 2 November 1998 to
15 July 1999, weekly payments were made at the rate of $528.25 gross.
From 16 July 1999 to 17 February 2000, weekly payments were made at the
 With respect to Peter Jeffs the total amount of compensation was
$33,776.80. This included weekly payments totalling $19,231.00 gross. All
of these payments were made between the period 2 November 1998 and
20 April 1999 at a gross weekly rate of $721.16 gross.
 The Court was advised that these are all agreed figures and that in addition
to agreeing to those figures further special damages were agreed in respect
of Mrs Jeffs in the sum of $1,711.55 and Mr Jeffs in the sum of $1,770.85.
Findings on the evidence
 I found Mrs Jeffs to be a credible and reliable witness. I accept her account
of the injuries she sustained in the plane crash on 30 October 1998.
 I accept that it was a very distressing experience which has had long term
physical and psychological consequences for her.
 All of the doctors who have given evidence have been satisfied that since
the accident Mrs Jeffs has done her best to minimise the effect of her
injuries, to continue in employment and to overcome the physical and
psychological effects of the plane crash. On the medical evidence there is
no conscious or unconscious exaggeration of her symptoms.
 I find that Mrs Jeffs has persevered through pain, discomfort and depression
to do what she can to rehabilitate herself back into the workforce and to
continue her pre-accident active life. This effort has been in circumstances
where many others would have given up altogether.
 With respect to the claim for pain and suffering, I take into account a
number of matters. Mrs Jeffs experienced a very terrifying accident as a
passenger in a Cessna 210 that crashed. She sustained the injuries as
outlined in her evidence. Since the date of the accident she has been in
continual pain. She has had to manage with pain killing drugs, and work
through her physical limitations which have been described by her in her
 In addition to the limits placed on her with respect to her work, the accident
has affected her ability to enjoy and participate in sports and hobbies she
previously enjoyed, such as badminton and bushwalking.
 I accept that Mrs Jeffs has suffered psychological effects in addition to her
physical injuries. I accept her evidence that she has feelings of being
disconnected from the world around her, she has suffered depression, lack of
ability to concentrate and an extreme fear of flying. Her concentration has
been affected. She was unable to complete a course of study that she
attempted after the accident. Her relationship with her husband has been
affected and her libido reduced. For these reasons, I would assess damages
Pain and suffering $100,000.00 Intereston past pain and suffering being 60% of
the total awarded i.e. $60,000 @ 4% for 7 years
16,800.00 Past Loss of Earnings
 Mr Rose SC, on behalf of the second defendant submits that the past
economic loss for Mrs Jeffs is limited to the pay back figure to the work
health insurer. Mr Rose SC disputes the plaintiff is entitled to damages for
past loss of earnings based on the difference between what she has earned
and what she could have earned if she had continued in employment with the
 Mr Rose SC points to the evidence that Mr and Mrs Jeffs did in fact work at
the Palumpa store. Mr Jeffs resumed employment 13 weeks after the plane
crash. Mrs Jeffs commenced work at the Palumpa store on 22 May 1999
following a two week trial period. Mr Rose SC referred to evidence given
by Mr Jeffs that he was doing the same job as before the accident. He and
Mrs Jeffs worked together at the store including during three wet seasons.
They finally left Palumpa community in May 2001.
 Mr Rose SC referred to the following evidence given by Mrs Jeffs when
asked about leaving the Palumpa community. (tp 37):
“And so why did you come to the decision to leave that community?---His contract had expired in April and we talked about the wet season and not being able to get out and he was very, very concerned for my well-being and my family. I was wanting my family, I was really missing them, by then because we didn’t have the contact and I just needed to be away from that situation and Peter wasn’t getting any better with his pain.”
 Mr Rose SC submitted that the decision to leave the Palumpa community
was largely on the basis of family and lifestyle reasons. Mr Rose SC
referred to evidence of Mr Jeffs when he agreed with the suggestion put to
him that leaving Palumpa was a lifestyle choice.
 It is the argument put forward on behalf of the second defendant that the
plaintiffs’ are still capable of the type of employment they had at the
Palumpa store. It is argued that for personal reasons they decided to change
their lifestyle and move to Wagin. It is submitted that because of the
economic situation in Wagin, Mr and Mrs Jeffs could only obtain
employment at a lower rate. Mr Rose SC argues this was a lifestyle decision
made by the plaintiff which does not entitle her to claim damages for
economic loss from the second defendant.
 It is submitted that it is inappropriate to look at Mrs Jeffs’ earnings when
employed by Arnhemland Progress Association, deduct her subsequent
earnings and claim the balance. Mr Rose SC argues this does not reflect her
capacity to work. Mr Rose SC maintains that such a method reflects a work
cover type situation of somebody who can no longer work in that type of
employment. It is submitted on behalf of the second defendant that is not
 I do not accept this argument. The evidence given by Mr and Mrs Jeffs and
referred to above needs to be taken in context.
 On all of the evidence, Mr and Mrs Jeffs have done their utmost to continue
in the workforce, to work to their fullest capacity and to minimise the
amount of their claim for economic loss.
 On all the medical evidence there is no conscious or unconscious
exaggeration of their symptoms by either of them. Doctors have variously
described them as persons with a strong work ethic and a stoic personality.
There is evidence that they have persevered with employment despite the
pain and discomfort from their various physical injuries and the
psychological effects the plane crash has had on each of them.
 Immediately after the response given by Mrs Jeffs in her evidence which has
been quoted above, she gave the following evidence (tp 38):
“What were your observations as to how he was coping with performing his duties?---It was taking him longer to do things. He was working with pain and whenever I asked if he was all right he’d say ‘I’m okay’. He would not take medication because he doesn’t believe, it’s the type of person he is. He just thinks that your body heals itself.”
 With respect to her own condition, Mrs Jeffs gave evidence that while she
worked at Palumpa she was in pain, she was limited in her ability to work in
the store because she could not do any lifting. It is her evidence that
although there were periods during which she worked eight hours a day, this
was work she could have done in four to five hours prior to receiving the
injuries she suffered in the plane crash.
 Mrs Jeffs gave extensive evidence about her fear of flying and her concerns
about having to leave Palumpa in a time of emergency during the wet season
when the roads were cut off by floodwaters and the only way in or out was
 Mr Jeffs also gave evidence about the level of pain he was suffering while
he worked at Palumpa. He suffered pain in his back, shoulder and right
knee. This was all from injuries sustained in the plane crash. Mr Jeffs had
stated that his pain levels made the work difficult and tiring. He did not
have staff capable of doing work such as unpacking stock when it arrived
and he had to do most of this work himself.
 Mrs Jeffs gave evidence that she was aware of the pain levels suffered by
her husband and the difficulties he had in coping with the work.
 Mr Jeffs gave evidence he was aware of his wife’s fear of flying and her
concerns about being cut off by floodwaters during the wet season. This
made him feel concerned for her well being.
 I found Mr and Mrs Jeffs to be credible and reliable witnesses. I accept
their evidence as to the injuries they sustained in the plane crash. I accept
their evidence as to the subsequent effect of these injuries upon them, the
physical pain and difficulty they have had and continue to endure and the
psychological effects from the accident. I accept the evidence of Mrs Jeffs
that her capacity for work is currently limited to 15 to 20 hours per week.
The evidence of Mr and Mrs Jeffs is substantially supported by the medical
evidence which I have summarised in the course of these reasons for
judgment. They have both been quite extraordinary in their determination to
continue in the workforce despite the physical limitations they each
experience as a consequence of the plane crash and the psychological
 On the evidence there were a number of reasons for coming to a decision to
leave Palumpa community in May 2001 and move to Western Australia. A
desire to be near family was one of the reasons. However, it is reasonable to
conclude that the desire to be near family was heightened by their own
physical and psychological problems resulting from the plane crash. On all
the evidence a desire to be near family was not the only reason or even the
primary reason for their leaving Palumpa. The more important reasons were
the difficulties each of them had in carrying out the work expected of them
because of the physical and psychological injuries they sustained in the
plane crash. Added to this, was the fear and apprehension of flying
 To these factual findings I apply the principle as expressed by the High
Court in Medlin v The State Government Insurance Commission (1995) 182
CLR 1, Deane, Dawson, Toohey and Gaudron JJ at 6 – 7:
“For the purposes of the law of negligence, the question whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience. And that remains so in a case such as the present where the question of the existence of the requisite causal connection is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage. In such a case, the "but for" test, while retaining an important role as a negative criterion which will commonly (but not always) exclude causation if not satisfied, is inadequate as a comprehensive positive test. If, in such a case, it can be seen that the necessary causal connection would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or
indirect contributing cause of the intervening act or decision. It will be seen that, on the plaintiff's evidence, the present was such a case.
Nor can the question of causation of damage in a negligence action be automatically answered by classification of operative causes as "pre-eminent" or "subsidiary". Regardless of such classification, two or more distinct causes, without any one of which the particular damage would not have been sustained, can each satisfy the law of negligence's common sense test of causation. This can be most obviously so in a case where a "subsidiary" cause operates both directly as a cause of the particular damage and indirectly as a contributing component of a "pre-eminent" cause. As will also be seen, the findings of the learned trial judge left open the likelihood that the present was such a case.”
 Mr Rose SC, on behalf of the second defendant further submitted that the
plaintiffs have given no explanation for why they did not apply to be
appointed to another community, of which there were some 200 throughout
the Northern Territory and Western Australia, instead of moving to Wagin
where obtaining employment was difficult.
 Mr Rose SC pointed to the fact that many of these communities could be
accessed by road during all seasons. One example he gave was Batchelor
where Mr Jeffs had worked for a period after they had decided to take up
 Mr Rose SC argues that Mr and Mrs Jeffs were able to work at the
community store at Palumpa for three years after the accident. There was
evidence from Mr Edwards that conditions and terms of employment were
the same in all communities where Arnhemland Progress Association
employed a store manager and assistant manager yet the plaintiffs had not
 On the evidence presented to the Court, there was nothing unreasonable
about the decision to move to Wagin. The pain factor that both Mr and Mrs
Jeffs were experiencing and the evidence as to the affect of their injuries on
their capacity to work, was a significant factor in their decision to leave
 The issue of burden of proof in these matters was raised in the High Court
decision of Watts v Rake (1960) 108 CLR 158, Dixon CJ at 159:
“… The law of course places upon a plaintiff who sues in tort for unliquidated damages the burden of satisfying the tribunal of fact of the damages he has suffered both special and general and of the quantification in money that should be adopted in the sum awarded. That is the legal burden of proof which rests upon him throughout. Only in one respect is the burden of proof upon the defendant and this is when he sets up matter in mitigation of damages. If it appears satisfactorily that damage in a particular form or to a particular degree has been suffered by the plaintiff as a result of the wrong but the defendant maintains that the plaintiff might have avoided or mitigated that consequence by adopting some course which it was reasonable for him to take, it seems clear enough that the law places upon the defendant the burden of proof upon the question whether by the course suggested the damage could have so been mitigated and upon the reasonableness of pursuing that course. Probably in claims for damages for personal injuries a question of the burden of proof in mitigation of damages is unlikely to arise often in any serious form. But it may do so; for example if the plaintiff declines to submit himself to some surgical procedure or medical treatment. But while the foregoing are the burdens of proof which the law places upon the parties, states of fact may be proved by the evidence as the case advances or may appear as inferences which the evidence supports and those states of fact may authorize or even demand findings in favour of a party unless and until some further or other state of fact is made to appear by evidence. There are, in other words, presumptions of fact as well as presumptions of law.”
 The second defendant has not proved on the balance of probabilities that the
course adopted by the plaintiffs was unreasonable or that it would have been
reasonable to pursue another course, namely, to seek employment in another
 Accordingly, I allow the claim for past loss of earnings, past loss of
superannuation benefit and past claim for loss of Arnhemland Progress
PAST LOSS OF EARNINGS 30/10/1998 to 30/06/2000 Less Actual Earnings 30/10/1998 - 30/06/1999
Nil. Plaintiff on full workers compensation as agreed between
01/07/1999 - 30/06/2000 gross total NET LOSS $ 19,716.30 01.07.2000 – 30.06.2002 Less actual earnings $ 15,170.60 01.07.2002 – 30.06.2004
Claim @ ALPA Earnings Rate Evidence Mr C Edwards gross p/a $ 31,500.00
Less actual earnings $ 8,818.34 01.07.2004 – 12.09.2005
Evidence Mr C Edwards gross p/a $ 34,500.00
Less actual earnings $ 2,870.60 Fox v Wood Payments
(Tax paid on gross weekly compensation payment)
30.10.1998 – 15.07.1999 16.07.1999 – 17.02.2000 18.02.2000 – 30.03.2000 $ 6,626.10 TOTAL PAST LOSS EARNINGS $ 53,201.20 (2) PAST OF LOSS OF SUPERANNUATION BENEFITS 30.10.1998 – 30.06.1999 01.07.1999 -30.06.2000 $ $ 2,981.52 01.07.2000 – 12.09.2005
$31,500 - $26,674 ITR83&84 2004 $ 4,826.00
$ 3,340.80 TOTAL LOSS OF SUPERANNUATION Benefits$ 6,322.32 (6) LOSS OF ALPA BENEFITS 30.10.1998 – 15.04.1999 21.04.2001
(Plaintiff leaves ALPA) – 12.09.2005
5 years x 46 weeks (deducting 6 weeks for
TOTAL PAST LOSS OF ALPA BENEFITS $ 37,002.40 TOTAL OF PAST LOSS BENEFITS 96,526.66 INTEREST ON PAST LOSS BENEFITS Summary of Past Losses $ 15,382.53 TOTAL INTEREST ON PAST LOSS BENEFITS 15,382.53 Future Loss of Earning Capacity
 With respect to future loss of earning capacity. I find on the evidence that
Mrs Jeffs has established a claim for four years future loss of earning
 Mrs Jeffs gave evidence that their intention in 1998 was to accept a five
year contract with Arnhemland Progress Association at an aboriginal
community. If they were accepted by the community, then they would take
a further five year contract. In 1999 Mr Jeffs undertook a two year contract
working for Arnhemland Progress Association at the Palumpa community.
Mrs Jeffs was also engaged to work at this community during this period.
They left this form of employment in May 2001.
 Their own work history indicates they did move location and employment a
number of times during their working lives. It does not fit the history of
their work pattern that Mr and Mrs Jeffs would remain in the one location
for 10 years. Between them they have a variety of skills which allows them
a range of employment in many parts of Australia.
 Mr and Mrs Jeffs had worked for Arnhemland Progress Association on a
relatively isolated aboriginal community for a few weeks prior to the plane
crash. It was a position which made them particularly reliant on their own
good health and capacity to cope with the work. Whilst I accept the
genuineness of their intent in 1998, the exigencies of life, which include
growing older, a desire to be near to family and increasing possibilities of
health problems, would make it unlikely that such employment did continue
for the intended 10 years. Mr Edwards gave evidence that people generally
stay in store management jobs on average around five years. I have
accepted Mr and Mrs Jeffs would have stayed seven years. I find that after
seven years they would no longer be employed by Arnhemland Progress
Association as they would have moved on and taken up employment in
 I find on the evidence of Mrs Jeffs that with her pain levels she would be
limited to working 15-20 hours per week. Her evidence on this aspect is
supported by the evidence of Dr Williams who considered she would be
unlikely to build up to full-time employment. I accept the evidence of
Dr Williams who found that because of the tasks involving stresses on
Mrs Jeffs’ spine and upper limits she is permanently unfit for work as a
carer. I also accept the evidence of Dr Williams that Mrs Jeffs is not
physically capable of full-time employment and that her future work path is
 In addition to the physical limitations suffered by Mrs Jeffs, there is
extensive medical evidence that she has suffered Post Traumatic Stress
Disorder. I find this has caused her to feel depressed, irritable, sad, lacking
in concentration, anxious and terrified of flying. Mrs Jeffs is continuing
with counselling and other treatment for her Post Traumatic Stress Disorder.
I accept the evidence from a number of doctors that the resolution of this
case will cause some improvement in her stress levels. However, I do not
accept that this is the complete answer to her current Post Traumatic Stress
Disorder. Dr Proud opines there will be some improvement in her condition
but that she will be left with permanent symptoms of Post Traumatic Stress
Disorder. Dr Parry gave evidence that there will be an improvement once
the case is settled but she will need ongoing psychiatric or psychological
counselling. Ms Mutton states there will be permanent symptoms of Post
Traumatic Stress Disorder and Dr Febbo considers there will be residual
symptoms of Post Traumatic Stress Disorder, although he thought her
mental state had improved and would continue to improve.
 I consider Mrs Jeffs has established a claim for future loss of wages for a
period of four years. That is approximately to the time she expected to
retire, which coincides with her husband turning 70 years of age. I have
calculated the figures on a 38 hour week at $16.50 per hour. I have arrived
at $16.50 per hour as an approximate figure between the $14.26 per hour she
earned at the newsagency and the $18.50 per hour as a carer for an 18 year
old boy. This is an amount of $627 per week. The sum of $627 x 208 (4
years) is $130,416. From the amount of $130,416 I deduct the amount
Mrs Jeffs is presently capable of working which is 20 hours per week. This
calculation is $16.50 x 20 which is $330 per week. The sum of $330 per
week for four years is $330 x 208 which equals $68,640.
 Accordingly, I deduct $68,640 from $130,416 to arrive at the amount
allowed for future loss of earning capacity which is $61,776.
Allowance for Future Loss Earning Capacity $ 61,776.00 Special Damages
Statutory repayment to Allianz Insurance
psychological and pharmaceutical expenses
Total for Special Damages $ 46,504.68 Voluntary and Other Services
 With respect to the claim for services provided by Mrs Jeffs’ sister Valerie
Lee, I accept the evidence given by both Mr and Mrs Jeffs as to the care and
attention provided to them during the period they resided with her between
17 November 1998 and 9 March 1999. There is evidence from both Mr and
Mrs Jeffs that this attention was more intense and for longer duration each
during the first six weeks and decreased as Mr and Mrs Jeffs improved and
were able to take on a greater role in their own care. This claim for
voluntary services is a separate claim to that previously made by Mrs Jeffs
on behalf of her sister, Valerie Lee. The previous claim, details of which
appear in Exhibit D7, was for items such as board at $150 per week, food
and other expenses such as telephone and car rental. It was not a claim for
the actual care and attention voluntarily performed by Valerie Lee.
 I adopt the calculations made by counsel for Mrs Jeffs with respect to the
voluntary services performed by Valerie Lee and Mrs Jeffs’ daughter.
$ 7,761.74 Voluntary services provided by Mr Jeffs
 The plaintiff has made a claim for voluntary services provided by her
husband between 22 May 2001 and 12 September 2005, four years and 16
 I am not persuaded that Mrs Jeffs is unable to carry out all household
chores. There is evidence she prepares the evening meals. I accept that she
cannot do any heavy lifting or bending. I accept that she cannot vacuum or
mop floors, clean windows or do any scrubbing or hanging out heavy
washing. However, there is no medical evidence to support a finding that
she is completely incapable of all housework. There are a number of
household duties, for example, but not limited to, tidying, dusting, a certain
amount of cleaning and some washing and ironing being tasks which are
relatively light work and within her physical capabilities.
 Mr Jeffs currently does the vacuuming and heavy cleaning work and work
that requires lifting or hard physical exertion, including the washing. I
consider that Mrs Jeffs is entitled to some allowance for these services
which she could not perform for herself. This must be offset by the
housework she is able to perform for herself and Mr Jeffs and by the fact
that the housework carried out by Mr Jeffs is also partly for his own benefit.
 For these reasons, I do not allow the four hours a day five days a week as
claimed. I consider the plaintiff has substantiated a claim for one hour five
Voluntary Services provided by Mr Jeffs:
Interest allowed on Past Voluntary Services provided
$85 per week x multiplier to death 919.1 = $78,123.50
$ 54,686.45 FUTURE MEDICAL AND OTHER EXPENSES
I have accepted the claim as articulated by counsel for the plaintiff.
 I summarise the damages awarded as follows:
$ 100,000.00 $ 16,800.00 $ 46,504.68
and sister Valerie Lee including interest
Total Past Loss of Earnings, Past Superannuation
$96,523.52 less benefits paid of $34,375.01
$ 15,382.53 $ 19,040.00 $ 3,684.24
$85 p/w x 919.1 (multiplier to death) = $78,123
$ 54,686.45 $ 61,776.00 $ 42,713.54 TOTAL AWARDED $ 464,875.84
 I enter judgment in favour of the plaintiff in the sum of four hundred and
sixty four thousand eight hundred and seventy five dollars and eighty four
 The parties are at liberty to apply on the questions of costs.
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