Bartlett v LOKVANCIC - [1999] WADC 22

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BARTLETT -v- LOKVANCIC [1999] WADC 22

CORAM: YEATS DCJ

HEARD: 24-25 MAY 1999

DELIVERED : 5 AUGUST 1999

FILE NO/S: CIV 1888 of 1998

BETWEEN: NEVILLE GORDON BARTLETT
Plaintiff
AND
BELINDA LOKVANCIC
Defendant

Catchwords:

Damages - Personal injury - Assessment of damages - Injury to left ankle and knee - 54 year old plaintiff employed as a lawn mower man by Peedac - Chance of loss of current employment and loss of future income assessed - Future loss of earning capacity $35,000 - Superannuation $2,457 - Future medical expenses $2,966 - General damages $6,960.

Legislation:

Motor Vehicle (Third Party Insurance Act 1943)

Result:

Damages awarded

Representation:

Counsel:

Plaintiff: Mr G Stubbs
Defendant: Mr T Mason

Solicitors:

Plaintiff: Dwyer Durack
Defendant: Jackson McDonald

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

Malec v J C Hutton Pty Ltd (1990) 169 CLR 538
Wright v The Shire of Albany (1993) A Tort Rep ¶81-239
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Nil

YEATS DCJ: The plaintiff seeks damages for an injury to his left ankle and knee sustained when he was hit by a motor vehicle driven by the defendant on 24 September 1996. Liability is admitted and the matter comes to the court as an assessment of damages. Special damages have been agreed. There are three issues to be determined:
(1)General damages.
(2)Future loss of earning capacity.
(3)Future medical expenses.

History

The plaintiff is a 54 year old aboriginal man born in Three Springs on 26 November 1944. He left school half way through second year and is able to read and write quite well but has difficulty with spelling. He has worked most of his life at heavy physically demanding work. He worked as a farm labourer and then as a general bin attendant for CBH until coming to Perth in the mid‑1960's. Since then he spent one year as a roof tiler, one and a half years laying tracks from Morawa to a mine site and four years for CSBP Geraldton loading fertiliser onto trucks from ships. He worked two years for Chamberlain John Deere in a foundry factory and five months laying tracks out of Dampier. He worked as an SEC linesman for some six years before being put off that job. He also worked as a general maintenance worker for the Water Authority before being made redundant. In 1990 while he was unemployed the plaintiff attended TAFE full-time seeking a human services qualification which he hoped would bring employment. He successfully completed the first year of that course (a two year course) but he left his studies to take up a job with Western Power as a meter reader.
At the time of the accident the plaintiff was employed by Peedac, a CDEP programme with funding from ATSIC and he worked on a contract providing lawn mowing and garden maintenance services for Homeswest. The plaintiff was using a lawn mower on a verge when he was struck by the defendant's vehicle. The plaintiff was taken to Kwinana-Rockingham Hospital where an x‑ray revealed a fractured medial malleolus of the left ankle and an avulsion fracture of the medial tibial condyle of the left leg. He was treated at Fremantle Hospital with a plaster cast and put on crutches for seven weeks. The plaintiff suffered a good deal of swelling and pain initially but the ankle was progressing well until two weeks after the plaster was removed. At that time he missed his footing on steps at Harvey and refractured the ankle requiring a further period of four to six weeks in plaster and on crutches. Unfortunately the plaintiff again injured the ankle in March 1997 when he slipped and fell at the Midland Gate Shopping Centre but the ankle did not refracture on that occasion.
Before the accident the plaintiff worked on a team with Peedac. They visited about three or four work sites each day where heavy mowers and other equipment had to be lifted off the truck and a variety of grass cutting and gardening chores undertaken. Before the accident the plaintiff was able to lift mowers and machinery on and off the truck, able to lift 20 litre jerry cans of fuel and able to lift bales full of grass cuttings. After the accident he was unable to lift heavy items without assistance. After the accident he also had difficulty standing for long periods, walking over rough ground and climbing stairs or ladders.

Return to work

Reports before me indicate that the plaintiff worked at his physiotherapy exercises in an effort to strengthen his ankle. The evidence shows that he has worked to recover from his injury and to regain fitness for work. Nonetheless the plaintiff's recovery was quite slow. His initial attempt to return to work failed and he was referred to Excel Rehabilitation to arrange a work trial commencing in September 1997.
Initially the plaintiff worked from 8.00 am until 12 noon three mornings each week. His duties were restricted. Because of the ankle injury he was limited to using the blower, raking, weeding, using the whippersnipper, using the ride-on mower and light pruning duties. He was further restricted to 15 minutes on duties other than the ride-on mower and was required to alternate standing duties with sitting duties. He could do no digging, no loading or unloading of equipment and could manually handle only a maximum of 10 kilograms. He was unable to jump down from the van.
The plaintiff's employer Peedac cooperated in arranging light duties for the plaintiff by adding another person to the team. That was necessary because of the large amount of time spent loading and unloading heavy mowing equipment as the team moved from job to job. The mowers and other equipment had to be unloaded and reloaded at each job. The plaintiff's restrictions limited his involvement in those duties.
The director of Peedac, Ms Lynn May explained that much of the support for the plaintiff was a result of the culture then existing at Peedac. As aboriginal people they wanted to help each other even though it meant employing another person to do the plaintiff's work. Peedac kept him on the crew. The plaintiff also received respect from younger aboriginal people because of his age.
The plaintiff's work trial was successful. From 22 September 1997 he began working five half days a week on the restricted duties. Even so the plaintiff continued to suffer some localised ankle pain and swelling which was partially alleviated by the provision of elastic shoe laces and of shock absorbing inner sole work boots. From December 1997 the plaintiff began working full days on Tuesday and Thursday each week.
At the end of the work trial a worksite assessment was done. The plaintiff was found to be capable of performing his full normal duties except for manual handling. He required assistance with manual handling of items weighing more than 25 kilograms such as push mowers and bags of wet grass. In addition he needed to minimise his walking and to take care on uneven ground. With those restrictions the plaintiff was able to return to full‑time employment with Peedac.

The medical evidence

The plaintiff's general practitioner, Dr Ivan Treagus, said that the plaintiff requires Panadeine Forte and Emu oil. The Emu oil is less costly if provided on prescription. The plaintiff currently requires about three Panadeine Forte tablets per month. He currently visits Dr Treagus once every three months at a cost of $37.50 a visit. Dr Treagus diagnosed the plaintiff as suffering reflex sympathetic dystrophy and treated him for pain and on‑going symptoms.
Dr Stephen Dennis, an occupational physician with Health Services of Australia, reviewed the plaintiff on 5 August 1998. He found that the plaintiff was still experiencing on-going symptoms and restrictions because of his left lower limb injury and listed the restrictions on the plaintiff's work capacity as a mower man. Those restrictions included:
•Prolonged walking, particularly on rough, uneven or slippery surfaces.
•Heavy lifting would be restricted to approximately 20 kilograms assisted and 10 kilograms unassisted and may require assistance with lighter items if awkward or hazardous.
•Prolonged standing is restricted to about five minutes.
•Repetitive squatting or twisting of the ankle joint and lower limbs is restricted.
Dr Dennis considered the plaintiff was likely to be indefinitely unfit for the full duties of a mower man. In Dr Dennis' opinion the plaintiff has a permanent disability of the left leg below the knee which he estimated at 15 per cent loss of the use of the left lower limb below the knee. Dr Dennis said his assessment was consistent with the functional assessment of the plaintiff reported on by Ms Ruth Bell, the senior occupational therapist (Exhibit 5).
Ms Bell administered a Physical Work Performance Evaluation to the plaintiff in March 1999 testing dynamic strength, position tolerance, mobility, balance and endurance. The plaintiff was assessed as capable of working at a medium level of work but not for an eight hour day. His lifting and carrying capacity was limited to 10 kilograms unassisted.
Mr Anastas, orthopaedic surgeon, reviewed the plaintiff on two occasions - 6 April 1998 and 9 February 1999. Mr Anastas found no difference in the plaintiff on the two occasion. Mr Anastas' assessment differed from that of Dr Dennis. Mr Anastas found the plaintiff's current disability at 7.5 per cent loss of efficient use below his left knee and considered that the injury could predispose him to the early development of degenerative changes in his left ankle and left knee. Mr Anastas thought he had capacity for heavy lifting but must avoid carrying heavy items for long periods. Mr Anastas considered the plaintiff fit to work a full day as a mower man without restriction although he believed twisting and turning could cause difficulty with the plaintiff's left ankle. Mr Anastas did not accept that the plaintiff could not walk 100 metres without a break and believed he could walk 10 kilometres per day as had been required of him as a meter reader for the SEC. Mr Anastas believed the plaintiff could get by with simple analgesics and overall, did not think the plaintiff would be at any disadvantage in the open labour market. Mr Anastas considered the plaintiff fit for any work not involving the carrying of heavy weights for a prolonged period over uneven surfaces.

Future loss of earning capacity

It is necessary first to consider whether the plaintiff's injury has resulted in any loss of earning capacity. Mr Anastas disagrees with Dr Dennis and Ms Bell as to the extent of the plaintiff's disability. Mr Anastas found only a 7.5 per cent loss of efficient use below the plaintiff's left knee while Dr Dennis estimated a 15 per cent loss of use of that part of his limb. For the purpose of assessing the plaintiff's loss of earning capacity the most significant difference between Mr Anastas and Dr Dennis is their assessment of the plaintiff's limitations on heavy lifting. Mr Anastas found the plaintiff had a capacity for heavy lifting and was fit for any work not involving the carrying of heavy weights for a prolonged period over uneven surfaces. Both Dr Dennis and Ms Bell assessed the plaintiff as restricted in lifting heavy objects to 10 kilograms (20 kilograms assisted). Mr Anastas did not think the plaintiff would be at any disadvantage in the open labour market whereas Dr Dennis, Ms Bell and Ms Jacobs were all of the opinion that he would be disadvantaged in the open labour market.
The experts adopted different approaches to reaching their assessment. Mr Anastas, as an orthopaedic surgeon, based his opinion primarily on his examination of the plaintiff and did not use any form of functional capacity assessment. On the other hand Dr Dennis and Ms Bell relied on the functional capacity assessment. I was impressed by the thoroughness of the Physical Work Performance Evaluation and the care with which it was administered to the plaintiff. As an occupational physician Dr Dennis relied on that evaluation and his opinion was consistent with it.
The functional capacity assessment was consistent with the evidence of Ms Jacobs concerning the plaintiff's return to work during his work trial. The functional capacity assessment was also consistent with the plaintiff's evidence of the problems he experienced when he returned to work and the pain he suffered whenever he tried to lift heavy loads.
Taking account of all of the evidence I am satisfied on the balance of probabilities that the plaintiff has been left with ongoing symptoms and is no longer able to lift heavy machinery or bags of grass cuttings. I accept Dr Dennis' evidence that he can lift no more than 10 kilograms unassisted and 20 kilograms with assistance. Those incapacities are a direct result of the injury to his left leg suffered as a result of the defendant's negligence. I accept Dr Dennis' assessment of a 15 per cent loss of the use of the left lower limb. Added to that I accept the evidence that the plaintiff is likely to suffer early degenerative changes as a consequence of his left leg injury. Taking account of the requirements of the plaintiff's job as a mower man I assess his loss of earning capacity at 25 per cent.
That of course will have no immediate economic effect unless the plaintiff loses his subsidised employment with Peedac. Because of the supportive work environment at Peedac the plaintiff has been able to avoid any economic loss arising from his loss of earning capacity. Since the time he returned to work he has been doing restricted duties but has been paid at his pre‑accident rate. Peedac has put an extra person on the plaintiff's team to do the plaintiff's work and has kept the plaintiff on the crew. But Ms May gave evidence that this state of affairs was due to end in a few months when Peedac's Homeswest contract ends. At that time Peedac will have no work for the plaintiff. Ms May indicated that Peedac was coming under pressure to operate economically and on any new contracts the plaintiff will not be given work unless he can do the job.
As a result of his incapacities I accept the evidence of Dr Dennis, Ms May and Ms Jacobs that the plaintiff would be at considerable disadvantage if thrown on the open job market. In those circumstances he could well find himself unable to obtain any employment once he was unable to continue as a mower man with Peedac.
These circumstances are similar to the circumstances in Wright v The Shire of Albany (1993) A Tort Rep ¶81-239 at 62,472. In Wright's case by reason of the employer's sympathy and generosity the plaintiff was able to keep his job despite a back injury which resulted in him being fit only for light duties. In those circumstances Franklyn J said at 62,474:
"What the plaintiff has lost is his pre‑accident earning capacity and it is within that context that the chance should be viewed. There is an immediate loss of capacity which has not as yet resulted in a loss of income and what is to be compensated is the chance of loss of future income and the effect of the loss of capacity in relation to the possibilities of future employment."
The plaintiff in this case has suffered an immediate loss of earning capacity which has not yet resulted in any loss of income. I need to compensate the plaintiff for the chance of loss of future income and for the effect of the loss of capacity in relation to the possibility for any future employment.
Franklyn J then referred to the decision of the High Court in Malec v J C Hutton Pty Ltd (1990) 169 CLR 538 at 643 concerning the method for the court to assess the degree of the probability of an event which might occur and reflect that in the award of damages.
In assessing damages in Wright's case Franklyn J said this at 62,475-6:
"I would assess the value of the 50% loss of earning capacity … The resulting product is $139,356. From this I would deduct the 10% for contingencies as assessed by his Honour, accepting that allowance to cater for all the normal contingencies as he assessed them producing $125,420 for loss of 50% earning capacity over that period without significant allowance for the high probability of loss of future income through unemployment. I would then allow the sum of $50,000 for the contingency of loss of future income through unemployment. This produces a figure of $175,420 which is however the assessment of the assumed lost earning capacity over the period of 37 years whereas in fact what must be valued is the chance of loss of the appellant's current employment due to his accident caused disabilities and of the effect thereof on his future earnings. To that end I would discount the figure of $175,420 to $140,000 and would award that sum for loss of earning capacity."
Applying the method from Wright's case, in this case I accept the plaintiff's intention to work until age 65. The plaintiff's net weekly wage is $319.87 and the multiplier on a working life expectancy of 10.5 years is 409.6. Based on those figures a 25 per cent loss of earning capacity has an immediate value of $32,754. That sum needs to be reduced for the usual contingencies. There are many positive contingencies. First and foremost is the fact that the plaintiff continues to work for Peedac with no immediate loss of income consequent on his loss of earning capacity. Another positive contingency is the plaintiff's competence as an employee. Prior to the injury the plaintiff was described as one of Peedac's best employees and considered for promotion to a supervisory level (Exhibit 4, p13). Similarly, the plaintiff had done well in his studies at TAFE and might have found other less physically demanding employment, but there is no guarantee such would be as well paid. On the other hand working as a mower man is heavy physical labour and may well have caused the plaintiff other problems as he aged and continued to work to age 65. It is also clear that quite apart from the plaintiff's injury the circumstances of his employment at Peedac were changing with the loss of the Homeswest contract. He may have lost his employment in any event. Taking account of all contingencies both adverse and favourable I consider a 10 per cent reduction would be appropriate. That provides a figure of $29,479. Superannuation loss of $2,457 is awarded.
Next I need to consider compensation for the high probability of the plaintiff losing his employment with Peedac and the effect of that loss on his prospects for employment. I accept the evidence of Ms May that the Homeswest contract will end in a few months and without it the plaintiff's subsidised employment will end. Despite Mr Anastas' opinion I am satisfied that as a result of his lower left leg disability the plaintiff will be at a considerable disadvantage if he competes on the open job market. Ms Jacobs with Excel Rehabilitation, Ms Bell and Dr Dennis each gave evidence to that effect and I accept their evidence. The plaintiff's disadvantage will arise from his limited capacity to undertake any work involving heavy lifting, walking on uneven ground or climbing stairs or ladders. Those limitations place many jobs beyond his capacity. He will no longer be able to undertake employment as a mower man. He is not an educated man. I do however take account of his successful completion of the first year of his TAFE course. If he were to complete the course he may be able to gain a qualification enabling him to work in the human services field although I would consider his age to be against him.
To compensate the plaintiff for the high probability that he will lose his employment within a few months and will then be quite likely to become unemployed I award the sum of $9,000. That results in a sum of $38,479 for future loss of earning capacity. What must be valued however is the chance of loss of the plaintiff's current employment and of the effect thereof on his future earnings as a result of his accident caused disabilities (Wright's case at p62,476). To achieve that I discount the figure of $38,479 to $35,000. I award $35,000 for future loss of earning capacity.

General damages

The plaintiff has suffered considerable pain from his injury particularly during the two periods he had to spend in plaster and on crutches. That pain is continuing. It was apparent from the reports of his work trial that he continued to endure pain and swelling when he returned to work a year after his injury.
The injury has had a considerable impact on the plaintiff's quality of life. He is a man who had always loved bush walking. Before the accident I accept that he enjoyed going for four to five kilometre walks two or three times a week. Since the accident bush walking has been out of the question. The complainant can no longer walk any distance and can no longer walk on uneven ground. Besides this the plaintiff had been a fit person - he would jog and do a full circuit at the gym - but those activities are finished now. He is able to swim, sauna and use the spa but heavy exercise is no longer possible.
The plaintiff gave evidence that prior to the accident he played club darts in a weekly competition but he has given that up now. He said that standing and stepping forward put his weight on one leg and he was unable to compete any longer. But he does have a game of darts at home. Under cross‑examination he explained that he could not play competitive darts any more because he had to be careful with every step. I accept his explanation about that insofar as it applies to competitive dart playing.
The award of general damages must be determined in accordance with the provisions of the Motor Vehicle (Third Party Insurance) Act 1943 ("the Act"). I refer to Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997. "Amount A", the maximum amount that can be awarded is $212,000. "Amount B" is $10,000 and "amount C" is $30,000. In my opinion the nature and extent of the plaintiff's injuries are such as would fall within the lowest 10 per cent of the most extreme case but toward the upper part of that category. Applying the provisions of s3C(2) of the Act, the appropriate proportion of the maximum amount ($212,000) is 8 per cent of the maximum = $16,960. Being in excess of amount B but less than amount C the amount of damages to be awarded for non‑pecuniary loss is the excess of the amount so assessed over amount B = $6,960 (s3(5) of the Act).

Future medical expenses

I accept the plaintiff occasionally requires Panadeine Forte on prescription for pain and should not have to get by on simple over the counter analgesics. It also seems appropriate that he obtain Emu oil on prescription at reduced cost. I do not believe the plaintiff requires a general practitioner's visit every three months simply to renew those prescriptions but I do accept evidence that the plaintiff will be likely to suffer early degenerative changes because of his ankle injury and that will require more frequent visits to the general practitioner and a greater need for Panadeine Forte. Given all of those circumstances I consider the plaintiff reasonably requires Panadeine Forte at an annual cost of $19.20, Emu oil at an annual cost of $60 and four visits annually to the general practitioner at an annual cost of $150. That amounts to $229.20 per annum = $4.40 per week with a deferred value of $2,966.
I award $2,966 for future medical expenses.

Summary of award

Special damages (agreed)  $39,495.00
Future loss of earning capacity  $35,000.00
Superannuation $2,457.00
Future medical expenses $2,966.00
General damages $6,960.00
Total award  $86,878.00