Anthony Browne v Andrew Coghill
[2006] ACTSC 123
ANTHONY BROWNE v ANDREW COGHILL
[2006] ACTSC 123 (6 December 2006)
EX TEMPORE JUDGMENT
DAMAGES – personal injury – crushing injury to left elbow, hip and wrist - tears of scapho-lunate ligament and triangular fibro-cartilage complex – no issue of principle
No. SC 824 of 2005
Judge: Master Harper
Supreme Court of the ACT
Date: 6 December 2006
IN THE SUPREME COURT OF THE )
) No. SC 824 of 2005
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:ANTHONY BROWNE
Plaintiff
AND:ANDREW COGHILL
Defendant
ORDER
Judge: Master Harper
Date: 6 December 2006
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $459,518.
The defendant pay the plaintiff’s costs.
This action was heard on Monday, 4 December. The plaintiff claims damages for personal injury arising out of a motor vehicle collision on 23 November 2001 at the premises of Kennards Hire Pty Ltd at Phillip.
The plaintiff was at the time employed by Canberra Grammar School as a groundsman. He had driven a school vehicle to Kennards to collect a rotary hoe. The rotary hoe had been placed on the tray of the vehicle by a crane. The plaintiff was in the process of closing the rear gate of the vehicle when the defendant, who was driving another vehicle owned by Kennards, reversed into the plaintiff, pinning him between the back of the two vehicles.
The accident was reported to police, who recorded that the defendant was reversing a delivery truck and did not see the plaintiff behind him because of a blind spot. He reversed into the plaintiff, who was stuck between the two vehicles. The defendant has delivered a defence denying negligence and alleging that the plaintiff was guilty of contributory negligence, but the defence was not seriously pressed on hearing. I am satisfied that the accident was entirely due to the negligence of the defendant, and that there was no contributory negligence by the plaintiff.
The plaintiff was born on 5 November 1960. He was 41 years old at the date of the accident and he is now 46. He went to school in Canberra and left after Year 10 with his school certificate. He has generally since then, up to the accident, been in employment. In his early years he worked as a storeman, a gardener and a labourer. He was employed from 1985 until 1999 by the Department of Defence as a maintenance groundsman at the Royal Military College, Duntroon.
His employment with the department ceased following a decision to outsource the grounds maintenance work at Duntroon, causing the defendant and his fellow employees to become redundant. No doubt because of the nature of his work over the years leading up to the accident he had suffered some minor injuries, resulting in pain and at times restriction of movement in his shoulders and knees and low back. In 1999 he underwent surgery to the left knee. He had made a complete recovery from that surgery by the time of the motor accident.
In April 2001, about 7 months before the accident, he started work as a groundsman at Canberra Grammar School. In the accident he suffered a crushing injury to the left buttock, lacerations to his left elbow and a hyper-extension injury to the left wrist. In the early period after the accident the wrist did not appear to be his most significant injury, but as time went by it became clear that that was the injury causing him most difficulties. In the first month after the accident he had an infection of an open wound to the left elbow which was treated with antibiotics. He recovered and was able to return to work on light duties about two or three weeks after the accident.
In February 2003, about 15 months after the accident, he injured himself lifting a heavy bin at work, exacerbating the injuries he had suffered in the motor accident and, in particular, the injury to the left wrist. He went off work in April 2003, about two months after the bin lifting incident. Because both the motor accident and the bin incident occurred in the course of his employment, he was covered by workers’ compensation. The workers’ compensation insurer engaged a rehabilitation provider to assist with his recovery and return to work.
In July 2003 he commenced a graduated return to work on light duties. His recovery was impeded by an incident within about two weeks of his return, when the boot lid of a vehicle fell and struck his left wrist, aggravating the existing injury. He returned to full duties in October 2003, but needed further time off during the next month or so. He was back to light duties by late November 2003. In March 2004 he found himself unable to work because of left wrist pain. He did not return to work with Canberra Grammar School after that.
He moved in to live with his now fiancée Wendy Norris in June 2004. She has two children who live at home, a daughter who is now 18 and a son of 15. The plaintiff and Ms Norris propose to marry in March 2007. The plaintiff’s employment with Canberra Grammar School was formally terminated in February 2006, though he had not worked at the school for almost two years by then.
He attempted to work, operating a ride-on tractor lawnmower in October 2005, but this trial was unsuccessful. The plaintiff found that the work jarred his wrist. He also found that he was unable to cope with some of the ancillary duties, such as maintenance of the mower.
He went to the Canberra Hospital immediately after the accident, but was sent home after assessment and treatment in the Emergency Department. He thereafter came under the care of his general practitioner, Dr Susan Wareham, of Giralang. He was also treated over time by Dr Kellett, a sports physician, and by Dr Chris Roberts, an orthopaedic surgeon with particular expertise in hand and wrist injuries.
Dr Kellett first saw the plaintiff in September 2003, soon after the boot lid incident, and was able to give the plaintiff some relief with cortisone injections into the wrist joint. Dr Roberts saw the plaintiff for the first time in July 2004. He arranged a magnetic resonance imaging arthrogram, which showed a full thickness tear of the scapho-lunate ligament and a partial thickness tear of the triangular fibro cartilage complex in the wrist.
The plaintiff by that time had had the wrist X-rayed a number of times. He had also undergone ultrasound, CT and bone scans, but none of these had detected the tears which, for the first time, provided an explanation for the plaintiff’s symptoms. Dr Roberts advised the plaintiff that he could perform an operation which had a 50-50 chance of success. The plaintiff’s pain at that time was such that he decided to proceed with the surgery. The operation was carried out in November 2004. It is described as an arthroscopic debridement and wiring of the scapho-lunate ligament. After the surgery the plaintiff underwent a course of physiotherapy, which he described as a very painful experience. Over time it became clear that he had not had any improvement, and that the surgery had not achieved its purpose in that regard.
Dr Roberts has since advised the plaintiff of the availability of a further surgical procedure in the form of a fusion of the wrist. He has informed the plaintiff again that there is no guarantee that such an operation would leave the plaintiff free of his present pain. It would result in permanent and complete restriction of movement of the wrist joint. The plaintiff has so far not agreed to undergo that surgery. His evidence is that he may elect to do so in the future, although he is aware that again the operation may not be successful.
None of the doctors involved in the matter gave oral evidence. I had the benefit of reports by the treating doctors and also by two specialists who saw the plaintiff for medico-legal purposes, Dr Brooder, a neurologist who saw him at the request of his own solicitors, and Dr Meares, a plastic surgeon who saw the plaintiff initially at the request of the worker’s compensation insurer, and on a second occasion at the request of the solicitors for the defendant.
Dr Meares expressed the view in his first report in November 2005 that the plaintiff’s then capabilities and restrictions were not likely to improve, but rather were likely to remain unchanged. Dr Meares said that he did not think that the plaintiff was fit for his pre-injury duties, though he did believe that he was fit for office work. In his second report he revised that opinion slightly, and used the expression “fit for light office work”, though he still believed that the plaintiff was employable.
Dr Brooder saw the plaintiff in June 2006. He provided a detailed report, setting out the history of his findings on examination. He noted that in an X-ray of the left wrist undertaken in August 2005 degenerative change was present at the scaphoid multi-angular and first carpo-metacarpal joints. He accepted that the plaintiff remained subject to constant pain involving the left wrist, and was also aware of a constant dull ache in the left hip, associated with intermittent sharp pain on local stimulation over the lateral aspect of the left hip. He said that the plaintiff was subject to a continuing functional disability which had precluded him returning to his previous full and unrestricted level of day-to-day activity. He accepted that the plaintiff was unable to return to full-time employment at that time, and was limited to casual light employment.
By the time Dr Brooder saw him, the plaintiff was working in casual employment with the Australian National University as an invigilator, work which is available during examinations. Dr Brooder thought that in addition to the injury to the wrist the plaintiff had sustained an injury to the left hip which had led to subcutaneous bruising and a haematoma formation. In Dr Brooder’s view the plaintiff had developed a secondary bursitis, involving the underlying greater trochanteric bursa. He also thought it likely that the plaintiff in the motor accident had aggravated underlying degenerative changes in the lumbosacral spine.
He expressed the view that the plaintiff’s left wrist disabilities and the left hip disabilities were directly and totally attributable to the motor accident. With reference to the plaintiff’s intermittent low back pain, his view was that this had been aggravated by the motor accident and that the plaintiff’s intermittent low back pain was partially attributable to that accident, by way of aggravation. The plaintiff in his view was permanently restricted, in terms of employment, and would never be able to return to his previous work as a groundsman, or to any work of a heavy physical nature. He was unable to engage in activities that involve prolonged or repetitive use of the left arm, or prolonged or repetitive forward bending, or any kind of heavy lifting.
Dr Brooder agreed that the plaintiff might come to a further surgical procedure to the left wrist. He also thought that it was possible that the plaintiff might require surgery to the left hip at some stage in the future. He expressed the view that for the plaintiff to return to any form of long-term employment he would require a prolonged period of vocational training and rehabilitation.
He thought that the low back pain would continue to some degree indefinitely and he expressed the view that the plaintiff had evidence of early degenerative changes and osteoarthritis involving the left wrist. He thought it likely that the continuing left wrist pain was related to those changes and to the osteoarthritis. He thought that the plaintiff would remain subject to continuing symptoms in the left wrist, to some degree, indefinitely.
Dr Roberts, the treating orthopaedic surgeon, was less definite about arthritis in the wrist, simply saying that he had some concerns over the long-term function of the wrist, and that it was possible that arthritic degeneration would develop in the wrist.
The plaintiff is right-handed. The injury is not to his dominant wrist. Nevertheless, his evidence is that there are many tasks which he is unable to carry out at all, and many others which cause pain in the wrist, such as twisting activities, like using taps and opening jars. The point should be made that for most of those activities he would be expected to use his dominant hand.
Before the accident the plaintiff was a very physically active man who enjoyed and was very good at sport, particularly golf. His evidence was that he had played cricket and touch football but that golf was his main recreational activity. By the time of the accident he was playing A Grade golf competitively twice a week off a handicap of 10. As a result of the injuries he sustained in the motor accident he is effectively unable to play golf at all any more. Although he has attempted to play, and has played nine holes on a few occasions, he has found it too painful, particularly in relation to shots where the club head strikes the surface, such as bunker shots, which he has found have jarred his left wrist and caused an unacceptable level of pain.
I accept the plaintiff as a genuine and truthful witness. No submission to the contrary was made by counsel for the defendant. The injuries he sustained in the motor accident have had a very significant effect on his quality of life generally, and he is entitled to substantial damages. As to general damages, counsel for the plaintiff submitted that an award of at least $90,000 was called for. Counsel for the defendant, in submissions at my invitation, submitted that that figure was too high, but that a range of $75,000 to $80,000 would be justified.
It seems to me that an appropriate figure for general damages is $85,000 and I propose to award that amount. It is five years since the accident. The plaintiff is now 46 years old and has, statistically, many years to live. As against that, it can be expected that the worst effects of the injury are now behind him. I apportion $35,000 of the general damages to the past and allow interest on that amount of $4,000.
Past treatment expenses are agreed at $15,548. There is no claim for interest on that amount, as almost all of it has been paid by the worker’s compensation insurer.
For the future, I take account of the evidence that the plaintiff is presently spending only modest amounts on medication. However I also take account of the evidence that he may come to further surgery, both to the left wrist and to the left hip, though there is no evidence as to how far in the future that might be, if it happens at all. The evidence is that the direct costs of the available surgery to the wrist would be something of the order of $10,000. There is no specific evidence as to the cost of surgery to the left hip, but I can reasonably assume that it would be something of the same order. Without adopting any kind of a mathematical approach to the question, I am satisfied that it would be reasonable, as between the parties, to allow $15,000 for future treatment expenses.
As to loss of earning capacity, the plaintiff claims in respect of the past an amount of $81,624. The defendant does not make any submission in relation to that part of the claim. I allow that figure. No interest is claimed on it, as the plaintiff has been in receipt of worker’s compensation for most of the time since the accident, and has received a lump sum in redemption of his worker’s compensation claim.
The largest individual component of the claim is loss of earning capacity for the future, in respect of which senior counsel for the plaintiff claims an amount of $300,000, put as 75% of the full value of the plaintiff’s earning capacity to age 65, assuming net weekly earnings of $540. There is no argument about that as a base weekly figure, and the difference between counsel relates to the appropriate proportion of the full value figure to reflect the plaintiff’s lost capacity.
Counsel for the plaintiff submits that the plaintiff has lost 75% of his earning capacity. Counsel for the defendant submits that the actual loss likely to be reflected in loss of earnings over the years will be very much less than that. He draws attention to the plaintiff’s motivation to retrain and get back to some kind of employment, and to the plaintiff’s presentation in the witness box as an intelligent and articulate man. I have considerable sympathy with that submission. The plaintiff does not strike me as the sort of man who is likely to sit around and do nothing and live off his damages, but rather as someone who will continue to look for such work as is available and over time will take advantage of opportunities for training in other fields.
Counsel for the defendant submitted that a fair figure to both parties for loss of earning capacity would be $150,000. It seems to me that that is a figure which is perhaps a little too optimistic for the plaintiff, despite his motivation. I must take account of the fact that he is now a man of 46, with no formal qualifications other than in fields which are now closed to him. He will be competing with others who are younger and do not have the disadvantage of his physical disabilities. Again, this is not an area which I think can be approached mathematically. It seems to me that a figure which does justice between the parties for future loss of earning capacity would be $200,000, and I award that amount.
There is a claim for loss of superannuation benefits. It is sought on behalf of the plaintiff that the figures for past and future loss of superannuation benefits be calculated as 9% of the amounts awarded for past and future loss of earning capacity. Counsel for the defendant does not seriously submit otherwise, and I propose to adopt that approach. I award for the past $7,346, being 9% of $81,624. I award for the future 9% of $200,000, that is $18,000. Because the plaintiff has not yet incurred the notional past loss of superannuation benefits and would not in the normal course do so until retirement, I do not award any interest on that amount.
The Fox v Wood component, the tax paid on the worker’s compensation benefits received by the plaintiff, is agreed at $13,000; and I award that amount. There is a claim for the commercial value of the services provided to the plaintiff by his fiancée and, to some extent by her son and daughter, for the past and for the future. The parties accept the rate currently adopted by the court of $18 an hour for those services.
Evidence was given by the plaintiff and by Ms Norris as to his needs in that regard, and as to the tasks which she had carried out for him, such as helping him with showering and dressing, and also the tasks which he had been able to carry out around the house before the accident, tasks which he can no longer attend to. The amount claimed on behalf of the plaintiff for the past in this regard was $15,000 on a global basis. Counsel for the defendant again, without reference to detail, submitted that that sum was excessive and that I should allow a lesser amount. I think it is too high and for the past I allow $8,000 plus interest of $2,000. For the future I allow $10,000.
The individual components of the award are:
General damages $85,000.00 - interest thereon $4,000.00 treatment expenses - past $15,548.00 - future $15,000.00 loss of earning capacity - past $81,624.00 - future $200,000.00 Griffiths v Kerkemeyer - past $8,000.00 - interest thereon $2,000.00 - future $10,000.00 loss of superannuation benefits - past $7,346.00 - future $18,000.00 Fox v Wood $13,000.00 Total $459,518.00
I am satisfied that the total represents a proper reflection of the effect of the plaintiff’s injuries upon him. There will be judgment for the plaintiff for $459,518.
I order that the defendant pay the plaintiff’s costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 20 December 2006
Counsel for the plaintiff: Mr R L Crowe SC
Solicitors for the plaintiff: Baker Deane & Nutt
Counsel for the defendant: Mr F M G Parker
Solicitors for the defendant: Dibbs Abbott Stillman
Date of hearing: 4 December 2006
Date of judgment: 6 December 2006
1
0
0