Archer, Rohan David v Miller Paul
[1998] TASSC 156
•15 December 1998
156/1998
PARTIES: ARCHER, Rohan David
v
MILLER, Paul
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 357/1995
DELIVERED: 15 December 1998
HEARING DATE/S: 23 - 25 November 1998
JUDGMENT OF: Underwood J
CATCHWORDS:
Damages - Measure and remoteness of damages in actions for tort - Remoteness and causation - Proof of causation - Relationship between non-tortious degenerative condition and accident.
Damages - Particular awards of general damages - Tasmania - Damage to articular cartilage of the right knee - Defendant's conduct accelerated by 8 - 10 years disability that would have occurred in any event - Earning capacity virtually destroyed.
Aust Dig Damages [22], [61]
REPRESENTATION:
Counsel:
Plaintiff: T J Williams and M D Duvnjak
Defendant: R C Mackay and W M Beveridge
Solicitors:
Plaintiff: Gunson Pickard & Hann
Defendant: Dobson Mitchell & Allport
Judgment category classification:
Court Computer Code:
Judgment ID Number: 156/1998
Number of pages: 11
Serial No 156/1998
File No 357/1995
ROHAN DAVID ARCHER v PAUL MILLER
REASONS FOR JUDGMENT UNDERWOOD J
15 December 1998
The principal issue on this assessment of damages is whether the defendant's tortious conduct on 23 November 1989 caused the undoubted disability in the plaintiff's right knee.
The accidents
In about December 1986, the plaintiff, then aged about 17 or 18 years, suffered an accident. He was standing in front of, and facing, a stationary car. Immediately behind him was a dog trailer. The driver inadvertently started the car while it was in gear. The car jumped forward and pinned the plaintiff's right knee against the trailer ("the first accident"). The plaintiff went to the Royal Hobart Hospital. He was examined and sent home on crutches with advice to rest and attend for physiotherapy.
On 23 November 1989, the plaintiff was in the Northgate Shopping Centre. The defendant, a friend of his, offered him a lift. The plaintiff started to get in the back seat behind the driver. Facing the same direction as the driver, the plaintiff first put his left leg in the car and then his bottom on the seat, leaving his right foot on the ground outside the car and close to the rear driver's side wheel. The car began to roll forward and the wheel pinned the plaintiff's right ankle to the ground. When the car moved onto the plaintiff's right foot the plaintiff threw himself out of the car and onto the footpath. As he did so the wheel rolled over his ankle and the outside of his right calf. After the wheel had passed right over the plaintiff's leg the car stopped ("the second accident"). This time the plaintiff consulted his general practitioner who had rooms nearby. He sent the plaintiff off to the hospital. As before, he was examined, given crutches and sent home with advice to rest and attend for physiotherapy.
The sequelae of the first accident
In his evidence-in-chief, the plaintiff said that following the first accident there was pain and swelling in the right knee. He visited the physiotherapist four or five times. He said that his knee then healed. He said that after about twelve months he was only suffering from "some slight pain". He described this as "just generally a sore knee" and he "couldn't define a place where it was sore". He said that the slight pain continued for "probably about another six months". He was then asked by his counsel, and answered:
"MR WILLIAMS: And so after eighteen months was [sic] there any effects you were suffering from? … No, it was about right then."
The evidence-in-chief then turned to other matters. Thus far, the plaintiff's evidence was to the effect that his right knee was virtually symptom free by about mid-1988. There is some evidence in the records of his general practitioner, Dr Beltz, to support this for there was a consultation on 1 October 1988 when the plaintiff complained that he had hurt his ear falling off a water ski. There is also a note of an attendance on 1 September 1989 in connection with a "football injury" involving his left arm.
In September 1987, about a year before the first of those attendances, the plaintiff's general practitioner referred the plaintiff to Mr Bye, orthopaedic surgeon, who did an arthroscopy on the right knee. The plaintiff said in cross-examination that he could not recall why he went to see Dr Bye and had the arthroscopy, but he supposed that "it would be just for general soreness". On arthroscopic examination on 30 September 1987, Mr Bye saw some contusion of the lateral meniscus but no disruption and, accordingly, no surgery was undertaken. At that examination, Mr Bye noted that the articular cartilage of the right knee appeared to be in "pristine condition".
The plaintiff was cross-examined about his claim in evidence-in-chief that his knee was "about right" by mid-1988. Set out below is an extract from that cross-examination. It is set out in full because the transcript of this evidence was read by Mr Bye during the course of his cross-examination and, as will be seen shortly, it had a significant effect on the opinion he had previously expressed:
"I think you said to my learned friend that that pain and discomfort resolved about then? ... Yes.
That's not true is it Mr Archer? See, I suggest you continued to have trouble with your right knee right up until the time you had the accident in 1989, in November 1989? ... No. I had some trouble.
So you had some trouble? ... Mm.
So when you said to my learned friend that that trouble resolved 18 months after the 1986 accident that wasn't correct. You continued to have some trouble after that? ... Yes.
You had trouble getting in and out of vehicles? ... I think I might of, yes. And in fact the way you got into a vehicle was affected because of troubles you were still having with your right knee following that 1986 accident? ... Yes.
At the time of the 1989 accident you were getting into the passenger side behind the driver? ... Yes. I was getting in behind the driver, yes.
And the way you did it was to put your left leg in first? ... Yes.
And leave your right leg outside and then swing your right leg in? ... Yes.
And what you did was to get in the vehicle with your left leg, then sit, with your right leg still outside? ... Yes.
And then swing your right leg in? ... Yes.
And the reason you did it in that order was because of the problem you were having with your right knee at that time? ... Yes.
Did you have to pick up your right leg and swing it in or did you sit down and then - was it a stiff movement to get it in? ... No, I don't believe so.
You were still having some pain in your right knee in November '89 when you had this accident - before this accident but at the time of it? ... I'm not sure.
HIS HONOUR: I'm just having a little difficulty picturing how this happened. Could you just describe it to me again, how you got in the car. I'm just trying to -
WITNESS: It was like I was - you have your left leg in the car and then you sit your backside down while your other leg is outside the car and that's when the vehicle has rolled forward and pinned my leg.
HIS HONOUR: When you put your left leg in the car you're facing the rear of the car?
WITNESS: No I was facing the front. I was getting in behind the driver.
HIS HONOUR: Oh I see. So you're facing the same way as the driver, as it were?
WITNESS: Yes.
HIS HONOUR: You lift your left leg in and put in on the floor inside the car?
WITNESS: Yeah. You put your backside on the seat.
HIS HONOUR: You put your backside down.
WITNESS: With the leg still outside.
HIS HONOUR: And your right leg is still outside?
WITNESS: Yes.
HIS HONOUR: And then that was when this car, of course, ran forward.
But if it hadn't run forward what would you have done then?
WITNESS: I would have pulled my leg in the car.
HIS HONOUR: But bent or straight?
WITNESS: It probably would have been slightly bent because I was bringing it in to get it in behind the driver.
HIS HONOUR: All right thank you.
MR MACKAY: (resuming) If I can put it to you this way Mr Archer; is it correct to say that what you're describing is not a movement where you get into the car all in one action? ... Yes.
You're doing it bit by bit? ... Mmm.
And that's because of the problems you were experiencing in the right knee? ... Yes.
You say that prior to, or on the 23rd November 1989, but before this accident, you were experiencing at least slight pain and discomfort in your right knee? ... Yes.
And that had lasted since the accident in December 1986? ... Yes.
And that pain and discomfort had cleared up to the extent that some nine months after the accident you had an arthroscopy performed by Mr Bye in 1987? … Yes.
You played four games of football before you had this accident in 1989, between leaving school and -? ... Yes.
That was in the 1989 season? ... Yes.
You said the reason you didn't play, as I understand it, more than four games in that season was because of a clearance dispute with Glenorchy? ... No, a friend of mine was playing there and he asked me to come and join in if I wanted to, but before that, after high school, I never played because of that altercation with Glenorchy.
So, was the position that you thought you couldn't play anywhere unless you played at Glenorchy? ... Yes.
So how was it you were able to play at Franklin - play with Franklin? ... Don't need a clearance. Different associations.
You hadn't found that out before? ... Sorry?
You hadn't found that out before? ... I didn't have the time to play after that because I was working weekends and things like that.
Okay. So when you played your four games in 1989 you experienced some knee soreness whilst playing those games? ... Yes.
That's what you said to my learned friend. And your knee would ache after the games? ... Some games, yes. Not all of them.
And you had some pain on the inside of your knee, that's what you said to my learned friend? ... Yes.
This is prior to '89. And for the last four games of that season you played? ... Yes.
So that would be some time around September 1989? ... Yes.
About two months or so before the 1989 accident occurred? ... Yes.
So the position is that you have a disability in your right knee that requires you to get into the vehicle in the awkward way you've described? ... Yes.
You had some pain and discomfort in the right knee at that time? ... Yes.
And you experienced pain and discomfort, in particular after playing football, about two months prior to the 1989 accident? ... Yes."
The sequelae of the second accident
In evidence-in-chief, the plaintiff said that in the four or five months immediately following the second accident, he had pain and difficulty with ordinary day to day matters such as dressing himself and driving a car. He took Panadol from time to time. He said that on certain activities, his knee became more painful and occasionally swelled up. Activities such as kneeling or trying to kneel and squatting caused this to happen. However, the plaintiff felt he was able to resume playing football in 1990. He played both the 1990 and 1991 season but said that on a number of occasions after playing football, his right knee swelled up and was painful. Sometimes he had to put ice on it. In early 1992, the plaintiff commenced pre-season football training, but by this stage, his knee had become quite painful. On 5 March 1992, he consulted his general practitioner complaining of swelling in the right knee. He was referred to Mr Bye again. On 1 May 1992, Mr Bye inspected the right knee by arthroscopy and noted that significant changes had occurred since the last arthroscopy, done a little less than five years earlier. This time Mr Bye saw damage to the articular cartilage on the inner side of the knee. He said that there was a "divot" in the articular surface of the cartilage. He also said that the enamel on the inside of the kneecap was rough. He concluded:
"So in that intervening five years it had changed somewhat from going … from being a virtually a pristine knee to a knee that was in trouble."
On his written report tendered in evidence, Mr Bye opined:
"The history given by Rohan Archer is of significant trauma to his right knee. He did not initially have an arthroscopy at the time of the injury but rather in mid-1992. At that time, damage to the articular cartilage was found and more likely than not this relates to the motor vehicle accident, given the history of that motor vehicle accident. Clearly, however, it could relate to his general bodily habitus and his life-style." [emphasis added]
Mr Bye advised the plaintiff to stop playing football and the advice was accepted.
The conflict of medical opinion
Mr Bye's written opinion that the damage to the articular cartilage was more likely than not caused by the second accident was challenged by senior counsel for the defendant in cross-examination. Mr Bye said that his opinion was based partly upon what he saw upon two arthroscopies, and partly on the history given him by the plaintiff. The significant matters in that history were the absence of pain prior to the second accident and the trauma of the second accident. Mr Bye agreed that the damage to the articular cartilage could have been due to spontaneous degeneration, but considered this to be unlikely, having regard to the plaintiff's youth and the degree of degeneration that had occurred in the period of less than five years between the two arthroscopies.
Mr Bye then read that part of the plaintiff's cross-examination that I have set out and immediately changed his opinion. Mr Bye described the cross-examination that he had just read as a "very good history" of the joint wearing down. He said it was a clear indication that the plaintiff's right knee joint was breaking down prior to the second accident. Mr Bye described himself as being "devastated" by that "history". He said it was quite different from the history that he had obtained from the plaintiff. He said that the plaintiff must be a person predisposed to suffer arthritis and although it was extremely rare to find such a rapid development of damage to the articular surface in a man as young as the plaintiff, he opined that the damage was the result of a natural progression of a degenerative process, probably hastened along by two seasons of football. With respect to the role of the second accident in that process, Mr Bye said that it "may have influenced it and from the history given to me it certainly did", and "it might well have flared it up".
The next day, the plaintiff called another orthopaedic surgeon, Mr Clements, to give evidence on his behalf. The plaintiff first consulted Mr Clements in September 1993, following a fall at the service station where he worked. Mr Clements inspected the plaintiff's right knee by arthroscopic examination on 29 September 1993. The knee was then in much the same condition as it had been when Mr Bye last saw it, approximately sixteen months earlier. Mr Clement's debrided some of the irregular articular cartilage. The plaintiff returned to work on about 18 October 1993 although, as will be seen, the condition of his knee continued to deteriorate until he had to give up work altogether. In a letter to the plaintiff's solicitors dated 19 November 1998, Mr Clements opined that it was "likely" that the second accident "was significant in at least aggravating his overall condition and contributing to the current situation". It should be noted that at the time Mr Clements wrote that letter, he knew that Mr Bye had examined the plaintiff's knee arthroscopically in 1987, but he was unaware of the results of that examination. However, between the time Mr Bye left the witness box and the time Mr Clements was called to give evidence, Mr Clements:
became aware that in 1987 the articular cartilage of the plaintiff's right knee was seen by Mr Bye to be in "pristine condition";
read the transcript of the evidence given by Mr Bye;
read the material parts of the transcript of the evidence given by the plaintiff.
From all that material, and of course, from the observations and examinations he had made of the plaintiff, Mr Clements' considered opinion was that:
prior to the second accident, the plaintiff's right knee was undergoing degenerative change, but
the second accident accelerated that degenerative process.
Mr Clements described the plaintiff as a person predisposed to arthritis. He found radiological evidence of its presence in the plaintiff's left hip, although there were no complaints of symptoms from this area. Mr Clements placed much less reliance than did Mr Bye on the plaintiff's description given in cross-examination of how he got into a car before the occurrence of the second accident. Mr Clements said that the critical facts in his opinion were:
in 1987 the articular cartilage was in "pristine condition";
the plaintiff was then only 19 years old;
in the five years that followed until the 1992 arthroscopy, the articular surface had become very badly damaged;
the natural process of degeneration is a "slow process".
It was Mr Clements' considered opinion that the second accident was likely to have been responsible for hastening the process of degenerative change that would have occurred in the plaintiff's right knee in any event. Accordingly, the conflict between the evidence of Mr Bye and the evidence of Mr Clements was, in essence, one of degree. Both Mr Bye and Mr Clements agreed that the second accident probably had some effect on the process of degeneration in the plaintiff's knee. Mr Bye agreed with Mr Clements that it would be most unusual for a man in his early twenties to suffer, without trauma, the degree of degeneration that the plaintiff suffered between the first two arthroscopies even taking into account a predisposition to suffer arthritis. Nonetheless, Mr Bye said that the history provided by the plaintiff in cross-examination was so compelling that he found himself unable to express any opinion about the degree to which the second accident had hastened the process. However, Mr Clements thought it was likely that the second accident had hastened the process by "maybe 8 to 10 years".
The issue for the Court is whether the plaintiff has established that it is more probable than not that he suffered more than a transient injury to his right knee in the second accident. In this respect, I accept Mr Clements' opinion that the second accident caused the plaintiff to suffer from symptoms and disablement some eight to ten years earlier than he would have done had that accident not occurred. I do so because:
both orthopaedic surgeons agree that the second accident had some effect on the articular cartilage of the plaintiff's right knee;
notwithstanding a predisposition to arthritis, it would be most unusual for the plaintiff's right knee to have naturally degenerated to the extent it did between the ages of 19 and 24;
arthroscopies undertaken in May 1993 and again by Mr Clements in June 1994, showed "no further obvious progression involving the articular cartilage lesion on the medial femoral condyle", so the extent of change between 1987 and 1992 was much greater than that which occurred between 1992 and 1994;
the objective clinical evidence is more persuasive than the plaintiff's recall, given in cross-examination, of events that occurred about a decade ago.
To the above list, I would add that Mr Clements' opinion had the benefit of more mature reflection than did that given by Mr Bye which, perforce, was elicited spontaneously during the course of cross-examination.
Accordingly, the plaintiff's damages fall to be assessed upon the basis that although the plaintiff would have suffered pain and disablement in the right knee had the second accident not occurred, its onset would have been postponed for some eight to ten years. The symptoms which led him to consult Mr Bye and which led to the 1992 arthroscopy would not have occurred until about the year 2000. As will be seen shortly, the plaintiff ceased work in May 1996 because of disablement of his right knee. Leaving to one side for the moment the question of contingencies, I find that, but for the accident, the plaintiff would not have been disabled from working until about the year 2004 to 2006 and is entitled to recover damages for diminution of earning capacity for the past period between May 1996 and trial in November 1998, and for some six years or so into the future.
The plaintiff's pain and disablement
At the time of the second accident, the plaintiff was employed at KFC. Although playing football was important to the plaintiff, he was not playing at that time, partly because of the hours he had to work with KFC and partly because he could not join the team of his choice. However, a few months before the 1989 accident, the plaintiff stopped working at KFC and played the last four games for Franklin in the Huon Football Association in the 1989 season. Notwithstanding the intervention of the second accident in November 1989, the plaintiff played for Franklin during the 1990 and 1991 seasons. He was paid $50 per game.
The plaintiff said that he was put off work by KFC because he had reached the age when he had to be paid higher wages, at least for weekend work. About the middle of 1990, the plaintiff obtained work at the Government car pool. His duties there were of a general nature looking after the vehicles. The deterioration in his right knee continued to progress. Whilst working at the car pool, the plaintiff found that on occasions, the pain in his right knee made it difficult to kneel and squat. Sometimes it was swollen at the end of a day's work. During the time the plaintiff was working at the car pool, he also worked part time for about nine months as a security officer at a night club.
The plaintiff left his employment at the car pool in early 1992. He was unemployed for a short while and then, at the end of March 1992, obtained a job at the Ampol Service Station in Davey Street, Hobart, operated by Mr Lonergan. This was about the time the plaintiff had to give up playing football because of his sore knee. The plaintiff said, and I accept, that this "devastated" him.
The plaintiff was apparently a good employee and trusted by his employer. His duties included serving petrol and checking oil, water and air pressure. The plaintiff also served in the shop and did some limited mechanical work. He kept records of sales and of petrol purchases. If Mr Lonergan was not present, the plaintiff balanced the till at the end of the day. He was the only employee, not a member of Mr Lonergan's family, who had the keys to the safe.During the time the plaintiff worked at the service station, his knee gradually got worse. The plaintiff found that squatting down to check the air in tyres became more and more painful. Eventually he learnt to do this by holding the right leg straight out in front of him. The plaintiff found that standing on a ladder caused pain in his right knee. He often had to lie down to look under a car because squatting and kneeling to do this was painful. The plaintiff found that he had to lift heavy objects without bending his knees. After a day's work, his knee was often swollen. He occasionally took Panadol. Consultations with his general practitioner during the time he was working at the service station resulted in the periodic use of anti-inflammatory drugs.
On 20 September 1993, the plaintiff slipped on the wet driveway at the service station and twisted his right knee. He consulted Dr Beltz. He was treated with crepe bandage and crutches. As mentioned earlier, he was referred to Mr Clements after this fall. He was off work for some time. After the plaintiff returned to work, he said, and Mr Lonergan confirmed, that he was much slower carrying out his duties. By this time, the plaintiff found that just standing on the concrete driveway for any length of time caused pain in the right knee. Kneeling and squatting became increasingly difficult. The pain and disability affected the plaintiff's demeanour. He became ill-tempered with customers. The plaintiff stopped work on 20 May 1996 and has not worked since. Mr Lonergan, whose evidence I accept, said that the employment came to an end as a result of mutual agreement:
"Now when Rowan left work in June 1996 [sic] how did it come about that he departed from work? Was he fired or what was the situation? … No, he wasn’t fired. It was through several discussions that my wife had had with him regarding his performance. It was to a stage where it wasn't acceptable to the fact that he was complaining of his problems that he had. His work was suffering, customers were suffering because they weren't being serviced properly. And it was a mutual agreement that he leave."
The steady deterioration in the plaintiff's knee continued after he left work. To assist him, the plaintiff now wears a sturdy brace on his right knee. I accept the plaintiff's evidence about his pain and disability. It was not seriously challenged. The plaintiff said that there is a dull nagging pain inside his right knee. Two or three times a week it is such that he applies ice to the injured joint. He has adopted the practice of elevating his right leg whenever he sits down. He tries to avoid analgesics, but resorts to Panadol about twice a week. He has to walk up and down stairs one tread at a time. Walking more than three quarters of a kilometre makes the knee ache. He said, "I don't have any confidence in my right leg". The plaintiff cannot kneel or squat. He cannot stand on a ladder. Mowing the lawn causes pain in the right knee and makes it swell. The disability has made the plaintiff disgruntled and has adversely affected the relationship he previously enjoyed with his wife and young daughter. The plaintiff has been on unemployment benefits since he left the service station and said that he feels bad because he cannot support his family. The outlook is bleak, for the deterioration will continue, but, of course, not all that is due to the defendant's tortious conduct. I now turn to the various heads of damage.
Loss of earning capacity
The plaintiff attended Cosgrove High School. He left at the end of year 10 with passes in Level II subjects, except maths in which he gained a Level I credit. He has no employment skills other than those that he has picked up during his periods of employment to date. He is keen to get work but so far has been unsuccessful. He is willing to retrain and if he does, he may be able to extend his earning capacity a little and utilise it to generate income. However, manual labour is no longer open to the plaintiff. Interestingly, specialist occupational physician, Dr Stewart, wrote in a report on the plaintiff:
"Mr Archer's idea of obtaining computer skills with a view to obtaining employment may be unrealistic, although this would depend upon his intelligence. He appears to be of average intelligence, however few job opportunities on their own arise from being computer literate."
It now seems that computer literacy is no longer regarded as an occupational skill, but simply as a basic life skill as is reading and writing. Dr Stewart said that there were a few occupations that the plaintiff might be able to follow, notwithstanding his disability. They are mentioned in his report. However, the reality is that the competition for jobs in those occupations is, and will continue to be, fierce and the physically fit will always be preferred over the physically disabled. I find that the plaintiff's right knee disablement has virtually destroyed his earning capacity. It is possible that some time in the future he may be able to utilise his residual capacity to generate income, but that possibility is remote and best allowed for when making a deduction for contingencies.
The parties were able to agree wage rates for service station attendants and the taxation rates on earned income. On the basis of these agreed figures and on the assumption that had the second accident not occurred the plaintiff would have remained in continuous employment as a service station attendant until forced out of employment until May 2006, the plaintiff's damages for loss of earning capacity in the past amounts to $43,792.84, for the future, $107,548.60, a total of $151,341.44. (The plaintiff's calculations, based on agreed figures, commence from 17 May 1996, but the evidence showed that the plaintiff's last pay period ended on 20 May 1996. However, any small difference over the whole period which, in any event, is calculated to end on 17 May 2006 and not 20 May 2006, is insignificant.) The figure of $151,341.44 needs to be discounted for the following reasons:
the plaintiff's employment history prior to the second accident shows short periods of unemployment;
the finding that I have made is that the second accident accelerated the onset of the plaintiff's disablement not by ten years, but by eight to ten years;
there remains a very small capacity to generate income;
general contingencies.
I assess the plaintiff's damages for the inability to utilise his earning capacity to earn wages in the sum of $115,000.
With respect to his capacity to earn income from playing football, the plaintiff said that had he been able to do so, he would have continued playing football until aged 35 years. Having regard to his predisposition to arthritis and the high risk that the game of football poses to a person whose right knee joint is undergoing degenerative change, I cannot be satisfied that but for the second accident, the plaintiff would have continued playing football after the end of the 1998 season. From the gross sum of $50 earned for each game played must be deducted tax calculated at the rate appropriate for a person earning a service station attendant's wage, plus $50. Again, I am much assisted by the agreement reached between counsel. I make no deduction for general contingencies in view of the finding I have made with respect to the period of time the plaintiff would have continued to play, but I bear in mind that he may not have played every game every year because of injury. I assess the plaintiff's loss arising from his inability to play football in the sum of $4,000.
I assess the damages for the plaintiff's loss of earning capacity in the sum of $119,000.
Superannuation
The parties have reached an agreement that the plaintiff's superannuation entitlement, had he continued to work as a service station attendant until 65, was $33,553. However, there is no expert opinion evidence upon which I can assess the claim for lost superannuation upon the basis that the plaintiff's loss is confined to a period of eight to ten years commencing from the time he had to give up his employment. The particulars of the plaintiff's claim for damages set out the amounts that the employer would have contributed to the plaintiff's superannuation from the date he ceased employment until 23 November 1998. I accept those figures as correct as they are merely a calculation of the statutory percentage. The sum is in the order of $2,500. The period is two years. The plaintiff is entitled to recover the value of lost superannuation contributions for a further six to eight years into the future. Application of the statutory rate to what would have been the plaintiff's current wage had he remained in his employment produces a further figure in the order of $7,500. However, the plaintiff's entitlement is not to the loss of those sums of money, but to the loss of the anticipated benefits that those funds would have provided him upon retirement, by reason of their investment in an appropriate fund, discounted for early payment. I am unable to determine that sum without the benefit of expert opinion evidence. The only expert opinion evidence tendered on this issue was contained in a report of Mr Bendzulla. The opinion therein contained was based upon the proposition that the defendant was entitled to be compensated for lost superannuation benefits from 1996 until aged 65. The obligation is to assess damages as best I can in the light of the available evidence. Accordingly, I assess the plaintiff's damages for the value of lost superannuation benefits for a period of eight - ten years from May 1996 in the sum of $12,000.
Past and future needs
I accept the plaintiff's evidence of occasional use of Panadol in the past. I find that this will continue for about the next eight to ten years. I allow $200 for this.
The plaintiff gave evidence that he attends a gymnasium. Mr Clements' opinion, which I accept, was that it was desirable that he continue to do so indefinitely. To date, this expense has been met by the MAIB. The agreed initial joining fee at the gymnasium which the plaintiff presently attends (by arrangement with the MAIB and a physiotherapist) is $350. The monthly fee for the use of the gymnasium is $75 or $17.31 per week. There was no evidence of when the plaintiff's need to attend the gymnasium first arose. It must have been after he saw Mr Bye in 1992 and it was before Dockside gym moved to the Hobart Swimming Centre because the plaintiff said that he used to go to Dockside and only started at his present gym after Dockside moved. In particulars submitted in the closing address on behalf of the plaintiff, it was assumed that he first attended the gymnasium in 1996. No submissions were made on behalf of the defendant that I should not accept the plaintiff's assumption. It is generally in accordance with the evidence and, as the MAIB have paid all the costs to-date, I shall accept the assumption. This means that the plaintiff is entitled to recover for the costs of attending the gymnasium for the next six - eight years. The present value of $17.31 per week over the next seven years, discounted in accordance with the 7 per cent tables, is $5,037 which, together with the joining fee, adds up to $5,387.
With respect to future management of the knee, it was Mr Clements' opinion that the plaintiff would only need occasional supervisory care from a physiotherapist as and when the need arises. He also gave evidence that surgery may be necessary at some uncertain time in the future. The exact nature and cost of this surgery will depend on the condition of the knee at the time the need arises. Apart from surgery, Mr Clements could see no need for consultation with him, nor with a general practitioner, except very occasionally. I make no allowance for the cost of future surgery for I am not satisfied that any future need for it will be caused by the defendant's tort. The evidence clearly shows that the present risk that surgery will be needed is created by the degenerative condition of the knee. The second accident did not increase that risk. It did no more than bring forward by eight - ten years the date on which the risk would, in any event, have become a reality.
The agreed present cost of a visit to a physiotherapist is $39. Twelve visits a year produces a presently week cost of $9. Again there is no evidence of when the need for physiotheraphy arose. The particulars assumed the date to be 17 May 1996. There was evidence that attendance at the gymnasium and physiotheraphy coincided. In the absence of any submission to the contrary, I will accept the assumption. The present value of $9 per week over seven years, discounted in accordance with the 7 per cent tables, is $2,619. This sum should be rounded up to $3,000 to allow for the occasional visit to a general practitioner, replacement of knee brace and the like.
The plaintiff gave evidence that his house needed repainting and that he would have done this himself but for his disability. I accept that evidence. The parties were agreed that the reasonable cost of doing this work was $3,000. I allow $3,000 for the tortiously caused need to employ a painter to do work that the plaintiff, but for the accident, would have done himself. I allow no further sum because, by the time the need arises again, it would have arisen even had the second accident not intervened.
The plaintiff also gave evidence that he used to service his car, but can no longer do so. Mr Lonergan's evidence was that the service station charges $79 for this work. He said that it needed to be done every five thousand kilometres. The plaintiff is entitled to be compensated for the need to employ people to do that which he, but for the second accident, would have done himself. Of course, some part of the $79 includes materials which have to be bought in any event. Other than the need to drive to the gymnasium, there was no evidence to enable me to make a finding with respect to the plaintiff's probable future use of his motor vehicle. Also, there was no evidence of when the plaintiff ceased to be able to service his own car. In addition, the plaintiff gave evidence that he used to be able to do minor electrical repairs to his car, but can no longer do so. There was no evidence of the cost saved by him doing this work. Doing the best I can on the evidence available, I allow $750 with respect to this aspect of the plaintiff's claim.
The plaintiff made a claim for travelling expenses. They are claimed with respect to travelling between home and the gymnasium, the physiotherapist and the general practitioner. However, as I understand the evidence, the physiotherapist is consulted at the gymnasium. Further, upon the evidence of Mr Clements, there is not likely to be any need, except very occasionally, to attend the general practitioner. There was no evidence about whether past travelling expenses have been paid by the MAIB. I propose to assume that they have been paid, as there is a statutory obligation upon the Board to pay them. With respect to the gymnasium, the plaintiff's evidence was that the round trip is 32.4 kilometres. Assuming three visits per week, the distance to travel is in the order of 100 kilometres per week. The probability is that the plaintiff will not attend the gymnasium three times a week, fifty two weeks of the year, but on the other hand, there may be the occasional need to visit a general practitioner. Consequently it is reasonable to allow him the cost of travel for 100 kilometres per week. The agreed reasonable rate was thirty-five cents per kilometre. The present value of $35 per week for seven years, discounted in accordance with the 7 per cent discount tables, is $10,185. This figure will be rounded down to $10,000.
The factors that warranted a discount for contingencies on the claim for damages for lost earning capacity do not apply with equal force to the above claims. As the period is short and the assessment modest, no deduction will be made for contingencies. I assess a total sum of $22,337 to compensate the plaintiff for tortiously created needs.
General Damages
In assessing general damages it must be borne in mind that the pain and disability that the plaintiff has suffered was suffered at a time when he could have reasonably expected to have led an active life. Had the second accident not intervened, he would have been able to play football longer and enjoyed his daughter while she was young. However, the sum assessed under this head must of necessity be modest because the symptoms and disability would have occurred in any event. I allow $8,000 for general damages.
Summary
| Lost earning capacity | $119,000 |
| Superannuation | $12,000 |
| Past and future needs | $22,337 |
| General Damages | $8,000 |
| Total | $161,337 |
There will be judgment for the plaintiff against the defendant for $161,340.
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