Andrews v Schaal - [2012] WADC 47

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ANDREWS -v- SCHAAL [2012] WADC 47

CORAM: EATON DCJ

HEARD: 16 MARCH 2012

DELIVERED : 30 MARCH 2012

FILE NO/S: CIV 3434 of 2010

BETWEEN: BRETT STEPHEN ANDREWS
Plaintiff
AND
PAUL WALTER SCHAAL
First Defendant
CHRISTOPHER LARK
Second Defendant

Catchwords:

Torts - Personal injury - Assessment of damages

Legislation:

Civil liability Act 2002

Result:

Damages of $48,188 awarded

Representation:

Counsel:

Plaintiff:     Mr D J Bayly
First Defendant             :     No appearance
Second Defendant         :     Mr P V Lansell

Solicitors:

Plaintiff:     Bradley Bayly
First Defendant             :     Not applicable
Second Defendant         :     Greenland Legal Pty Ltd

Case(s) referred to in judgment(s):

Nil

EATON DCJ: On 22 March 2010 the plaintiff was playing squash at squash courts known as 'The Squash Centre' at 144 Robinson Avenue, Belmont, Western Australia. On that day there was a very bad storm over the Perth metropolitan area with heavy rain and hail. In the course of the game, the plaintiff ran forward on the court to play a shot. As he did so, the roof of the squash courts collapsed and water poured in without warning. The plaintiff, running forward as this happened, slipped and collided with the front wall of the court. He immediately felt pain in his right knee and was unable to take weight on his right leg. He had suffered a transverse fracture of his right patella.
An ambulance was called and arrived at the squash centre. The plaintiff was taken to Royal Perth Hospital. There, having been admitted, he underwent x‑rays of the knee. He remained overnight and was discharged on the following day.
An orthopaedic registrar at the hospital referred him to Mr Greg Hogan, an orthopaedic surgeon. He saw the plaintiff at Mercy Hospital and on 24 March 2010, in surgery at that hospital, performed an open reduction internal fixation, using K wires and tension band wiring to fix the patella in position. The plaintiff was discharged on the following day and returned to his home to recover.
Part of the fixing mechanism was removed by Mr Hogan on 1 April 2010. The plaintiff was, at the time, required to keep the leg straight.
He was reviewed again by Mr Hogan on 4 May 2010. The surgeon was pleased with the plaintiff's recovery and was even more so following a review on 15 June 2010, noting then that the plaintiff had an excellent range of movement with a small amount of anterior knee pain. The fixing wires had not been removed. That occurred on 6 October 2010, following which the plaintiff resumed an exercise program and physiotherapy. The latter had begun in April 2010. Rehabilitation had commenced in August 2010. It continues to the present time. The plaintiff currently complains of an imbalance in the musculature as between his right and left legs. He has undertaken muscle specific weight training in a gymnasium in an attempt to correct that problem.
By writ of summons filed in this court on 10 November 2010 the plaintiff sued the first and second defendants, his endorsement of claim seeking damages for personal injury suffered at the squash courts on 22 March 2010, alleging that the injuries were caused by the negligence and breach of statutory duty of the defendants.
The second defendant filed a memorandum of appearance nine days later.
There being proof of service of the writ on the first defendant on 24 November 2010 and there being no appearance to it by him, the plaintiff obtained judgment against the first defendant for damages to be assessed together with interest and costs to be taxed.
On 24 March 2011 the plaintiff filed a statement of claim. On 11 April the second defendant filed a defence to that claim. He denied the liability in damages to the plaintiff.
On 21 November 2011, following a pre-trial conference, a deputy registrar ordered that there be an assessment of damages payable by the first defendant to the plaintiff, that the second defendant attend the assessment and be bound by the result, that the plaintiff's action against the second defendant be otherwise stayed until further order, that the costs of the conference and assessment be reserved to the trial judge and that the action be adjourned to a listing conference on 12 December 2011.
On that day, 12 December, the action was listed for trial on 16 March 2012. On 16 December 2011 the second defendant filed a notice of contribution against the first defendant.
It is common ground that the plaintiff's claim is subject to the provisions of the Civil Liability Act 2002. Part 2 of that Act applies to the awarding of damages in personal injury claims, subject to certain exceptions which need not concern me. By s 7 I may not award damages contrary to div 2 or div 3 of pt 2. The former relates to damages for non‑pecuniary loss and the latter relates to damages for pecuniary loss.
Section 10, part of div 2, makes reference to a sum of money referred to as Amount A and a different sum of money referred to as Amount C. It provides that, in financial years after that ending on 30 June 2003, the relevant amount is, in each case, to be determined according to s 4. It is common ground in this matter that, for the purposes of s 10(3), the relevant amounts are:
Amount A$17,500; and
Amount C$53,000.
Section 9 provides that if an amount of non‑pecuniary loss is assessed to be not more than Amount A for the year in which the amount is assessed, no damages are to be awarded for non‑pecuniary loss. It further provides that if an amount of non‑pecuniary loss is assessed to be more than Amount A but not more than Amount C for the year in which the amount is assessed, damages for non‑pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over Amount A.
In other words, if I assess the plaintiff's non‑pecuniary loss in an amount less than $17,500 I am to make no award under that head of damage. If, however, I assess his non‑pecuniary loss to be between $17,500 and $53,000 I am to make an award of the sum by which the assessed amount exceeds $17,500.
On 16 March 2012 there was no appearance for the first defendant. Mr Bayly, counsel for the plaintiff, informed me that the first defendant was aware of the proceedings and had been served with papers relating to it.
Counsel for the second defendant, Mr Lansell, pointed out that there was no judgment other than the default judgment obtained by the plaintiff against the first defendant. The second defendant, having been giving leave to attend the assessment of damages as against the first defendant, is to be bound by the assessment but makes no concession as to liability.
Deputy Registrar Kingsley, on 6 March 2012 directed that, at the hearing, the medical reports of the plaintiff's treating and reporting medical practitioners be tendered as the evidence of the authors of those reports without the need to call them. At the hearing, Mr Lansell, for the second defendant, indicated that he had no desire to cross-examine the authors of those reports. Accordingly, the plaintiff's book of documents filed 8 March 2012 became exhibit 1.1 and the plaintiff's book of further documents filed 9 March 2012 comprising the report of Mr Greg Hogan, orthopaedic surgeon, of that date became exhibit 1.2. Those reports, comprising exhibits 1.1 and 1.2, are before me as part of the plaintiff's case.
Deputy Registrar Kingsley also directed, on 6 March 2012, that the plaintiff file and serve a statement of his evidence and that it stand as his evidence‑in‑chief. At the hearing the plaintiff was the only person to give viva voce evidence. He identified his 12 page statement dated 9 March 2012, identified his signature and confirmed the truth of the content of the statement. It became exhibit 2.
Deputy Registrar Kingsley further ordered on 6 March 2012 that the plaintiff file and serve a book of special damages on or before 9 March 2012. In evidence‑in‑chief the plaintiff identified a book of special damages which became exhibit 3.
By way of further evidence‑in‑chief the plaintiff showed me a vertical scar, about 15 cm long on his right knee extending above and below the patella. It was the site of the incision made and used in surgery on two occasions.
Counsel for the second defendant did not cross-examine.
In summary, the evidence before me comprises exhibits 1.1, 1.2, 2 and 3 and the viewing of the scar on the knee.
As mentioned, there was no challenge by the second defendant to the medical reports tendered by the plaintiff. It is fair to say that there was a measure of consensus as between the plaintiff and the second defendant with respect to past economic loss and claimed special damages. Counsel for the second defendant, in closing submissions, mentioned both the claim for general damages and for future medical treatment.
Notwithstanding the degree of consensus and the limited nature of the challenge to the plaintiff's case by counsel for the second defendant it is the case that the plaintiff carries the onus of satisfying me on the balance of probabilities as to his entitlement to damages in the various heads of damage claimed. That is because, of course, he is seeking to recover the amount awarded from the first defendant by way of enforcement of his judgment.
The plaintiff seeks damages for past economic loss, for future medical treatment, for non‑pecuniary loss or general damages and for special damages in the form of expenses already incurred.

General damages

The plaintiff is 32 years old and, by occupation, general manager of a business trading as 'CTI Logistics' operating in the field of road transport. Prior to the injury on 22 March 2010 he was in good physical condition, historically enjoying fitness and health.
Having completed primary and secondary school he joined his father's transport business 'Super Fox Couriers' at the beginning of 1997. He worked as a courier driver in that employment for about three years. The business was sold at the end of 1999 and the plaintiff moved from the role of driver to an administrative position. He continued in that role for about six years.
In 2005 the plaintiff left that employer to work for a national transport company called 'Kings Transport'. Again he worked in administration. During 2007 he travelled for three or four months and returned to work with Fox Line, the company that had taken over his father's business in 1999. In April of 2009 Fox Line was taken over by CTI Logistics and in November of 2009 the plaintiff was appointed general manager.
In February 2011 the plaintiff began a masters degree in logistics at Curtin University. He continues with that study, having moved from time to time between full‑time and part‑time study. He is presently studying part‑time.
The plaintiff's work in the transport industry requires that he be both in an office and in a factory. Immediately following the injury in March 2010 he was required to take six days off work including the day of the surgery. He then returned on light duties on a part‑time basis, gradually returning to full‑time work. That was made difficult because he was initially in a wheelchair, later required crutches and was unable to drive for about three months. The limitations upon his mobility and work capacity were the source stress and frustration.
In October 2010 he was obliged to take a further four days off work to accommodate the further surgery and recovery from it. Thereafter he returned to full‑time work and was unrestricted in terms of his ability to carry out his job.
Prior to the injury the plaintiff was very much involved in physical and recreational activity, playing squash once a week and regularly attending a gymnasium, running and swimming. The injury curtailed those activities and for about eight weeks after the initial surgery he was unable to place any weight on the right knee or walk without crutches. In more general terms, so far as activity was concerned, he experienced restrictions for about four months following the injury and gradually increased the level of his physical activity. He returned to running in early 2011. He is, he says, yet to attain the physical capacity that he enjoyed prior to the injury although, it seems, he has made every effort to do so.
Prior to the injury the plaintiff was able to undertake numerous domestic chores and attend to gardening and outdoor maintenance. He was unable to perform those duties for about six months following the injury and, when he did resume such activities, he did so experiencing some reduced capacity. His partner, during that period, was able to render assistance and carry out tasks that he might otherwise have done. He is now able to undertake all the tasks that were undertaken by him prior to the injury but he does so with some caution. He expects to continue strength rehabilitation and, perhaps, physiotherapy from time to time.
In a report of 21 July 2010 Mr Greg Hogan, the orthopaedic surgeon, expressed the view that there was a small chance that the plaintiff may have degenerative arthritis in the knee remarking that it had 'come together very well'.
The plaintiff was reviewed by Mr B S Slinger, also an orthopaedic surgeon, on 20 December 2010, 8 June 2011 and 11 January 2012. In a report of 21 December 2010 he told the plaintiff's solicitors that the plaintiff had been left with mild residual disabilities and that his prognosis was one of anticipated further improvement. In a report of 13 June 2011 he told the plaintiff's solicitors that the plaintiff would not be restricted in carrying out his employment or in performing domestic activities. He said that it was unlikely that his condition would change in the medium and long term with the exception of a potential for degenerative changes. In assessing residual disability he suggested that there might be a 5% loss of function of the limb at or above the knee. The prognosis was for continued improvement.
In a final report of 11 January 2012 Mr Slinger noted that the knee was subject to swelling on occasions but the limitations on the plaintiff's capacity for work, recreation and domestic duties was very small. He suggested that the plaintiff had reached maximum medical improvement and that his condition would be unlikely to change in the medium to long term. So far as disability was concerned, he assessed a 10% loss of function at the limb at or above the knee. The prognosis, he said, was for continuing symptoms with the potential for increased pain and stiffness if there is progressive degenerative change. He emphasised that the latter was far from a forgone conclusion.
In passing I should note that there is no explanation for Mr Slinger's increased assessment of disability from 5% to 10% in the seven months from the review of 8 June 2011 to that of 11 January 2012. The impression that I have is that the plaintiff has worked hard to maximise his recovery and that, if anything, his disability over the period is likely to have been reduced rather than worsened.
I have a report from John Rosenthal, a physician in rehabilitation medicine, dated 18 January 2012. He concluded that the plaintiff suffered from persisting anterior knee pain and probable early mild post‑traumatic patellofemoral degenerative change. He suggested that, apart from minimal use of simple analgesics and anti‑inflammatories, there was no requirement for any future treatment. The cost of such of medication will be, he said, be nominal. There has been no reduction in capacity for work. The main impact upon the plaintiff has been his reduced capacity to physically train. He suggested a permanent impairment of 5% of loss of function of the upper limb at or above the knee joint and that the plaintiff would 'be slightly pre-disposed to accelerated patellofemoral degenerative change'.
Finally, Mr Hogan, the surgeon who conducted the surgery, saw and reported on the plaintiff by letter of 9 March 2012. He remarked that the plaintiff had recovered 'very well'. He was pleased with his work. There is some swelling and aching after running about 8 kms. The plaintiff retains an excellent range of motion. There is, he said, a risk of future arthritis, adding that it was impossible to determine when it might occur and how the plaintiff would be limited. It might, he said, require treatment in years to come.
In my view a fair assessment of the reports of the medical practitioners as to future problems is that there is a possibility of degenerative change and future arthritis resultant upon the injury. Mr Slinger suggests that, given that possibility, there might be a requirement, in the distant future, for surgical intervention. The costs, he said, of arthroscopic surgery would be in the order of $5,000 and in the unlikely event of a requirement of a total joint replacement there would be a cost of between $25,000 and $30,000.
Taking into account all of the factors mentioned including the scarring to the knee, I assess the plaintiff's non‑pecuniary loss in an amount of $47,500. Having regard to the provisions of the Civil Liability Act 2002 mentioned earlier I therefore award, under that head of damage, $30,000.

Past economic loss

Under this head of damage the plaintiff claims $2,262 net, reflecting his absence from his employment for approximately six days following the initial surgery and for a further four days following the more recent surgery. Counsel for the second defendant does not contest the claim. The amount claimed represents net lost income of $226.20 per day which I consider to be reasonable. I therefore award $2,262 under this head of damage.

Future medical treatment

This claim relates to the possibility of degenerative change consequent upon the injury and the further possibility that such change might, in the future, lead to surgical or medical intervention. The plaintiff submits that $10,000 is a reasonable allowance. Counsel for the second defendant submits that the claim is excessive. Having regard to the plaintiff's schedule of special damages which includes the expense associated with treatment in hospitals, attendance by medical practitioners, physiotherapy, rehabilitation, pharmaceutical expenses, travel expenses and sundry expenses in a total amount of less than $11,000 I do take the view that the amount claimed for future medical expenses given the remoteness and slim likelihood of such expenses being incurred is excessive. I therefore allow $5,000 for that head of damage.

Special damages

As mentioned, the plaintiff has provided a detailed schedule of special damages. In my view all of the expenses referred to there are expenses reasonably incurred. Counsel for the second defendant took no exception to the amount claimed, that being $10,926. The amounts claimed are, in large part, fully documented and are, as mentioned, in any event, reasonable in all the circumstances. I allow an amount of $10,926 under this head of damage.

Conclusion

Having regard to the forgoing I award damages in the amount of $48,188 made up as follows:
General damages   $30,000
Past economic loss                  $2,262
Future medical treatment         $5,000
Special damages   $10,926