Bragg v Henley & Grange RSL
[2008] SADC 130
•10 October 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BRAGG v HENLEY & GRANGE RSL
[2008] SADC 130
Judgment of His Honour Judge Kitchen
10 October 2008
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY - EXPENSE FLOWING FROM PLAINTIFF'S INABILITY TO WORK - GENERALLY
BRAGG v HENLEY & GRANGE RSL
[2008] SADC 130
On 7 December 2000 the plaintiff, a member of the defendant, was at the club premises of the defendant in North Street, Henley Beach. While at the premises he was assaulted by another member, Mr Tony Ravesi, an assault which the plaintiff claimed caused injury to, and further disability in, his lower back which had been the subject of earlier surgery. The plaintiff issued these proceedings against the defendant in the Magistrates Court in May 2002, claiming that the defendant had been negligent in failing to remove Mr Ravesi from the defendant’s premises when it knew or should have known that Mr Ravesi, by reason of being affected by alcohol or suffering from a psychiatric condition, was likely to cause physical injury to others on the premises.
The trial before the Magistrates Court proceeded first to determine the issue of the claimed negligence on the part of the defendant.
The learned Magistrate found that neither Mr Ravesi nor the plaintiff was affected by alcohol but that “Ravesi set upon (the plaintiff) without any warning and with no provocation whatsoever”. Mr Ravesi however was, and was known to the defendant to have been, suffering from a longstanding psychiatric disorder for which he was taking medication and regularly consulting a psychiatrist. The plaintiff’s claim was dismissed, the learned Magistrate finding that the defendant was not in breach of the duty of care it owed to the plaintiff.
The plaintiff appealed to a single judge of the Supreme Court against that decision. The appeal was allowed in July 2003, the court finding that the defendant was in breach of its duty of care to the plaintiff. The Magistrate’s decision was set aside, and the matter was remitted to the Magistrates Court for an assessment of the plaintiff’s damages.
The proceedings were transferred from the Magistrates Court to this court when the plaintiff amended his claim to seek damages in an amount greater than the jurisdiction of the Magistrates Court.
This action is therefore an assessment of damages.
Background
The plaintiff was born on 12 September 1955. His senior schooling was at the Thebarton Boys’ Technical School until, in third year when he was 16 years old (after two unsuccessful applications to join the Australian Navy as an apprentice), he left school to work in a succession of jobs as a roof tiler, kitchen hand, spray painter (which he gave up because of a reaction to paint fumes), a Council employee maintaining motor mowers, a butcher’s assistant employed by his father, an assembler of transportable homes on sites around the State and in the carpentry trade which included working on the construction of the Festival Centre. When he was about 20 years old the plaintiff went to live in Melbourne for approximately two years where he was employed as a second-fix carpenter. He then went to live in Perth working in the building industry as a form-worker, and at times as a carpenter, for about two years. The plaintiff was unemployed on occasions, but for no more than two months, including a period when he was “on the dole” when he lived in Perth.
The plaintiff met in 1977, and married in 1985, Heather, with whom he has two children, Jolie born in 1979 and Monique born in 1985. Between 1977 and 1980 the plaintiff worked as a fruit picker in the Riverland following which he and a friend were in partnership as roof tilers in Adelaide and in country areas. In November 1980 the plaintiff was hospitalised for six weeks when he suffered fractures to his hip, pelvis, right femur, fibula, tibia and foot and injuries to his liver and bladder in a motor car accident. He was incapacitated from work for approximately ten months, then returned to his job as a roof tiler; about two months later he had resumed playing football and cricket.
The roof tiling work “petered out” and, in the early months of 1982, the plaintiff went to Port Lincoln where, during the tuna fishing season, he worked for a period of about two years on a boat as a pole fisherman; his tasks, with others, included preparing the boat before the season began, and at the end of the season readying the boat to be laid up. These tasks occupied about five months of the year. Out of season the plaintiff worked bagging wheat for the overseas market. Concluding that he was not being properly paid as a tuna fisherman, the plaintiff obtained work as a carpenter in Port Lincoln at about the time he and his partner Heather were reunited after being separated for some years.
Until 1990 the plaintiff worked in various jobs in the building and construction industry in Port Lincoln and in Adelaide including erecting and dismantling temporary grandstands for the Grand Prix motor racing event and form-work or frame work for the Commonwealth Centre and the Convention Centre.
In 1990 the plaintiff returned to live in Port Lincoln. While employed laying brick paving for licensed premises at the Marina, he was asked if he wanted to join in a market garden venture. With a friend the plaintiff secured the use of about two acres of land, established an organically produced range of vegetables (other than potatoes and onions) growing, packaging and delivering them to supermarkets, clubs and hotels in the Port Lincoln area. Three months into the venture the plaintiff acquired his friend’s interest in the business, known as Proper Bay Vegetables. The business traded until in the year 1994. The plaintiff obtained his paid labour force, about four people successively, through the Centrelink Office which paid the workers the appropriate rate less $50 per week which the plaintiff paid to each worker.
Exhibit P1 contains the plaintiff’s income tax returns for the financial years 1990 to 2000 inclusive except 1991, a year in which no taxation return was lodged according to a letter dated 6 December 2005 from the Australian Tax Office to the plaintiff’s solicitors.
The first return of business income was in 1992. It appears to show that upon a total business income of $10,970 the plaintiff returned a loss of $1,397. In 1993 an income of $657 was returned on sales of $15,839. In 1994 there was a loss of $123 on sales of $16,717. In 1995 the loss was $2,694 on sales of $149. Without some explanation concerning the business it is impossible to conclude any more than that the venture was hardly a financial success, but it did give the plaintiff some experience in planning and implementing a business, producing, pricing and timely delivery of product and supervising paid help.
The plaintiff said that he terminated the business when his wife left him, his perception being that he had put so much time into the business he had neglected his family. The plaintiff sold the plant (a tractor and a rotary hoe) of the business to the owner of the land where the vegetable growing had been carried out. The plaintiff reacted angrily to the departure of his family and the closure of the business he had worked to build up for their future. He fell into a cycle of aggressive criminal assaults for which, in 1994, he was sentenced to thirteen months imprisonment for three such offences with a non-parole period of four months.
Released from prison the plaintiff returned to the tuna fishing industry working with the Seine net system and also acting as the cook. During that period of work, the plaintiff was again sentenced to a term of imprisonment, of two months, for assault. Upon his release the plaintiff continued working in the tuna fishing industry for some two months; he said that although he was earning about $30,000 a year it was for casual work and work of that description meant he could not obtain a loan to purchase a house, so he asked for full time work, but his employer refused.
Concerned about his recently widowed mother who lived in Adelaide, his only sibling being a serving soldier based in Perth, the plaintiff left Port Lincoln and came to Adelaide where he obtained work as a concreter with a labour hire group working for CSR Hume making up form-work for pre-cast concrete construction components. His plan was to work for up to 10 years to save enough for a large deposit to purchase a house in Port Lincoln.
On 4 March 1997 the plaintiff was injured in the course of his work. He described that wet concrete was wrongly placed on the structure on which he was standing to carry out the task of shovelling the concrete into the form-work as quickly as he could before the concrete began to set. Breaking off the task of shovelling to go to change his gloves, he felt a twinge in his back when he bent to resume the shovelling. He continued working, but the next day he experienced disabling pain and he was unable to resume working; the work place medical room sent the plaintiff to the Salisbury Work Health Clinic.
The plaintiff was unfit for work for about one month. He returned to work for two or three hours each day on light duties over about three months filling in small air cavities in the poured concrete items. The plaintiff said he had no x-rays and no treatment in relation to his back. The general practitioner certified the plaintiff fit for full time work; the plaintiff complained that there was something still wrong with his back. He had been laid off from his work about two weeks earlier. Some time later the plaintiff claimed and was paid workers compensation payments. X-rays were taken and he underwent a course of physical treatment and exercise. His lack of mobility without pain did not improve. The plaintiff was referred to a neurosurgeon and then to Professor Robert Fraser a spinal surgeon who on 9 March 1999 operated on the plaintiff’s lower back.
Exhibit P4 comprises five reports by Professor Fraser dated in the months of February, May and October 1999. A brief summary of the reports is that the plaintiff complained of pain principally at the lumbo-sacral level which was referred to the upper lumbar spine and into both buttocks, associated with mild paresthesia in the legs. From his examination of the plaintiff, an MRI scan and the results of a discography, Professor Fraser was of the opinion the plaintiff had disrupted and painful discs at L4-5 and L5-S1, caused by the concrete shovelling incident exaggerating a pre-existing condition. He advised the plaintiff that an interbody fusion with fixation at the L4-5 and L5-S1 level “would have a reasonable chance of giving him worthwhile relief of pain” and informed him of the potential risks, length of recovery time and likely outcome. The plaintiff accepted that advice and underwent the procedure of the two-level interbody fusion.
Upon reviewing the plaintiff in May 1999 Professor Fraser noted that the plaintiff’s pre-operative symptoms had been relieved; “He does have some discomfort in his back, with increased walking and other activities, but otherwise is virtually pain free”. In his opinion the plaintiff would continue to have an impairment of his lower back and lumbar spine which would limit the range of work he could engage in.
By October 1999 Professor Fraser reported that x-rays:
… demonstrated the fusion to be well consolidated at L5-S1, but there was still a lucent line in the mid substance of the graft within the cage at L4-5, either representing a delayed union or possible (sic) a pseudarthrosis.
He considered there was a prospect of further improvement in the plaintiff’s condition in the following six months, by steadily increasing his activity, avoiding twisting or jarring strains to his back, with in the longer term a return to work of a light to medium physical nature, but he would not be suited to heavy physical work. At that time Professor Fraser judged the plaintiff was not fit for work other than of a very light nature, such as in a supervisory capacity which did not involve repetitive lifting, twisting, jolting or jarring.
The plaintiff said that he was instructed by Professor Fraser to practice tightening his abdominal muscles, in an exercise demonstrated to him, which would give support to his spine, and to undertake walking. About twelve months after the operation the plaintiff saw Professor Fraser who agreed to him “rubbing back and respraying” the body work of an old motor car as an activity in his rehabilitation program. He undertook that activity over a period of some three months.
In April 2000 the plaintiff concluded negotiations, which had extended over some three months, with his pre-injury employer for the redemption of the employer’s future liability to him under the Workers Rehabilitation and Compensation Act 1986 for income maintenance. By agreement on 13 April 2000 (Exhibit D3) he received $79,500 and thereby released the employer from further liability to him under the Act. The plaintiff purchased for $75,000 a flat on the foreshore of Henley Beach, paying $20,000 and giving a mortgage for the balance. He took up playing competitive club snooker at the RSL, swimming off the beach and later started to run in soft sand as part of his rehabilitation project so that, he said, about fifteen months after the fusion operation, his condition had improved including his capacity to engage again in sexual intercourse which to that point, he had avoided since his accident because he was too sore.
The plaintiff said that in mid 2000 he was motivated to pursue courses in alcohol and anger management, programmes which, as I understood him, had been stipulated by a court at some earlier time on the occasion of one of his convictions. On the completion of the courses he had ceased to indulge in episodes of alcoholic binge drinking and confined himself to soft drinks. In cross-examination the plaintiff agreed that he was convicted for an offence of assault committed in 1999. He also agreed that after the assault in December 2000 he had got into trouble “possibly a few times” as a result of drinking alcohol; it was then he undertook the courses, in 2001 I infer.
A consequence of the plaintiff agreeing to take the lump sum in redemption of his former employer’s future liability to him under the Workers Compensation and Rehabilitation Act, as he understood, was that he was excluded from obtaining unemployment or disability benefits for two years. Effectively required to live on his own resources for that period, so making inroads into the remaining balance of his lump sum payment, the plaintiff thought to investigate purchasing some sort of business such as a service station in a country area.
A friend in Port Lincoln told the plaintiff that a business called the Snack Shack Deli, the nature of which he was familiar with as a customer when he had worked in Port Lincoln, was on the market for sale. Both of the plaintiff’s daughters lived in Port Lincoln. The business comprised a shop where delicatessen type goods were sold, and two vans which were sent to work sites and other places in the town as mobile canteens. There was a kitchen, laundry, a bedroom and a toilet within the building housing the shop which the plaintiff considered would be suitable accommodation for him, and he contemplated he could probably lease out his flat at Henley Beach so that it would be available for his mother should she in the future wish to go there. The plaintiff spoke to his two daughters from whom he had been effectively estranged for some time after he and his wife separated; they both expressed interest in working with the plaintiff were he to acquire the business. The plaintiff planned that his eldest daughter, Jolie, would work fulltime manning a van, his daughter, Monique, would work after school and at weekends, he would employ another person to man the second van, and he would employ a person to assist him in the shop during “the rush hour”.
The plaintiff went to see the proprietors of the Snack Shack, Mr and Mrs Thompson and their two sons. The business had been on the market for sale for some years. There were a number of meetings and discussions. The proprietors, as the plaintiff understood, were prepared to consider three options; first a sale of the business and a lease of the premises for five years at a cost of $90,000, second the sale of the premises and the business, excluding the vans, for the price of about $100,000, and third the sale of the premises, the business, stock in trade, and the vans for the price of $135,000.
The plaintiff approached the ANZ Banking Group and discussed with Mr Grancarz, a business banking manager with the bank, borrowing $140,000 to purchase the business. He gave to Mr Grancarz the written information provided to him by Mrs Thompson. The plaintiff’s evidence is that he understood the bank was prepared to lend him the amount he was seeking.
It was at this point in the course of events that the plaintiff was assaulted by Mr Ravesi at the defendant’s premises on 7 December 2000.
The Assault
The plaintiff described that on the day of the assault he arrived at the defendant’s club premises at about 6.30 pm to participate in a raffle. On his way to the bar a friend, sitting at an outside table, told him that Mr Ravesi “was going off inside, issuing challenges”. Waiting at the bar for his drink to be served, the plaintiff was approached by Ravesi, who in the context of some event concerning Ravesi’s son, asked the plaintiff to take him to Sydney. The plaintiff replied he could not. Ravesi responded “F off”, the plaintiff collected his drink from the bar, went to an outside covered area furnished with tables and chairs and sat down with others at one of the tables.
He described that at a later point Ravesi came into the outside area, walked to where the plaintiff was sitting, the plaintiff asked him if everything was OK but “(Ravesi) started to go off. I realised there was going to be trouble so I stood up”. There was some conversation on the plaintiff’s part, which I infer to have been his endeavour to placate Ravesi. The plaintiff said that, running out of things to say, he was distracted by the sound of laughter coming from inside the club and turned his head to look in that direction, whereupon Ravesi, a taller and heavier man than the plaintiff, seized the plaintiff by the shoulders and forcefully pushed him down.
The plaintiff struck his adjacent chair, breaking it as he saw later, causing him to hit his buttocks with “full force” on to the bitumen surface. He said he felt pain in the area of his coccyx. Ravesi fell upon the plaintiff grappling with and pressing him down. The plaintiff, his back against a wall, grasped Ravesi and after a few minutes using the purchase of the wall, got his weight onto his knees, pushed against Ravesi and was able to get to his feet trying to force Ravesi away. He said Ravesi suddenly went limp, his shorts fell down and he (the plaintiff) was able to move to a chair to sit down while Ravesi was lead away. He said he felt sore, his knees were bleeding profusely, there was a very warm sensation in his lower back “and it felt like there was something horribly wrong”. Exhibit P2 comprises two photographs showing the appearance of the plaintiff’s knees a few days after he was assaulted.
The plaintiff said that after some ten minutes, nobody having come to his aid, he limped to the doorway leading into the club from the outside area. He saw patrons talking among themselves. He became emotionally upset. Attempts were made to usher him out of the club, but he insisted on going in and asking for help. One of the patrons called the police, who came but the plaintiff said they refused his request for an ambulance. Subsequently he was taken to The Queen Elizabeth Hospital where he was seen by a doctor, his knees were “patched up” and he was sent home by taxi.
The plaintiff said that on the day after the assault he awoke feeling sore in his back and his knees, particularly his back, and he could only hobble with the aid of a walking stick. He went to see his general practitioner, Dr Lynton Bentley whom he had first consulted in 1999 at the Work Health Clinic, Mile End, after he had seen Professor Fraser on the first occasion.
Dr Bentley left the Mile End Health Clinic in February 2001 to practice in Prospect. The plaintiff remained a patient at the Mile End Clinic until July 2002 when he again became Dr Bentley’s patient.
On examining the plaintiff on 8 December 2000, Dr Bentley noted that both the plaintiff’s knees were grazed and he complained of pain in his spine at L4-5 and L5-S1. Dr Bentley’s memory is that he did not conduct the McMurray test, bending the knee to try to elicit a click from the cartilage to identify if there was any meniscule damage. He arranged for x‑rays of the plaintiff’s lower lumbar spine to be taken.
The plaintiff said that in the early part of 2001 his back and his knees deteriorated – his knees were very sore restricting his walking to a return trip to shops near his flat, a round trip of about 500 metres, compared with his ability to walk five or six kilometres every day before the assault, and his back was becoming more and more sore. He said he dwelt upon his “dream” of owning a shop and working with his daughters and became upset. He was hoping that the injury to his back was just a bad sprain, but feared it was something worse. He was referred to Professor Fraser from whom he understood he should continue to mobilise by walking as much as he could because it was good for his back, but he found that it aggravated his back, he had to frequently pause to rest and he thought walking was not helping his condition so he took to “basically just sit out the front of my flat and watch the world go by”.
The plaintiff said that during 2001 he ended a relationship he had formed with a female acquaintance because he found sexual intercourse too painful. He moved his bed into the lounge room, thus avoiding having to clean the bedroom, and with some help from his mother which included dealing with the bathroom and other wet areas, he was able to clean and tidy his flat to a reasonable state. With the aid of a shopping trolley, the plaintiff was able to make use of a nearby laundrette to do his washing.
In July 2001 Professor Fraser reported that the plaintiff’s back symptoms were varied in that at times he was comfortable but at other times the pain was a major problem generally brought on by “some minor incident such as getting in and out of a car or when twisting to the left when playing snooker”. He recommended that the plaintiff undergo an MRI scan to investigate the lumbo‑sacral area.
When reporting on the MRI scan in August 2001, Professor Fraser wrote that the plaintiff “continues to have bouts of back pain which are generally brought on by some unprotected strain or stress on his back. He has continued to try to be active, working on his car”. Referring to the MRI scan he concluded the plaintiff’s symptoms were related to the L4-5 level, and pain in the upper lumbar area was probably associated with upper lumbar degenerative changes; contemplating that the plaintiff would be trying harder to better use his muscles to protect his spine, Professor Fraser suggested that if no satisfactory outcome were achieved there should be an assessment by discography with a view to a possible further fusion procedure at L4-5.
In about 2002 the plaintiff applied for and was granted unemployment benefits which were subsequently supplanted by a disability pension following a medical review. During 2002, the plaintiff said, his right knee “would give way on me” throwing his weight on to his walking stick, breaking the handle of the stick. He made up a steel version and used that until he came upon a substantial wooden stick of the type he now uses.
The plaintiff commenced these proceedings in May 2002. After the determination of his appeal in his favour in July 2003, he immediately sought to consult Professor Fraser who reviewed him in August 2003 and concluded that the plaintiff’s ongoing symptoms of pain extending from the lower back area to the coccyx, and marked restriction of back movements, “were due most likely to a straining of the pseudarthrosis at L4-5 as a result of the (assault on 7 December 2000)”; he advised that the plaintiff could be managed by a further posterio‑lateral fusion at L4-5. In January 2004 Professor Fraser’s opinion was that but for the worsening symptoms attributable to the assault, the plaintiff “should have been able to resume work of a sedentary, supervisory or light physical nature” and that after the further surgery it was probable “(the plaintiff’s) condition would improve to the same level it was prior to (the assault)” so he would be able to take on work of that nature.
The plaintiff said that during 2003 and into 2004 he was virtually restricted to his bed, changing from sitting in a chair in a slumped position to avoid strain on his back to lying in bed flat on his back, until a friend gave him a “recliner” chair and he was then able to utilise that. He said he was ingesting about four Panadeine Forte tablets each day.
The further fusion was carried out by Professor Fraser on 30 March 2004. The plaintiff was discharged from hospital after two days and returned to live in his flat. For two or three weeks he was sore in his lower back and unable to do very much to care for himself; his mother came each day for a few hours to bring meals for him, to assist with house cleaning, to keep him company and shop for his food and other requirements. While resting to recuperate, the plaintiff said he did not experience much pain but when he started to mobilise his pain increased, the Panodeine Forte no longer provided effective relief and he was prescribed Tramil by Dr Bentley which he took for about a year four times per day. He described he was “100% better” than before the further fusion but was still restricted in his ability to do things including walking; he persisted, trying to stretch himself to walk to his mother’s house but he found it caused him pain and he needed to frequently pause to rest. He consulted Professor Fraser about twelve months after the fusion operation, proposing that fixing up his car might help in getting back his strength; he said Professor Fraser agreed and also advised him to keep up the exercises to strengthen the abdominal muscles. For a period of months the plaintiff scraped the bodywork in the engine bay of the car avoiding applying too much effort but he said towards the end of the task he realised his back “was not up to it”.
The plaintiff said that at sometime before the fusion operation in March 2004 he found that his right knee had started to “dip”, that is to give way; after the further fusion he said his knee became worse once he started mobilising. He consulted Dr Bentley who referred him to Mr Anthony Menz an orthopaedic surgeon whom he saw in May 2004.
In his report dated 18 November 2005 (part of Exhibit P9) Mr Menz described that on examination of the plaintiff’s knees he found them to be essentially quite normal. Mr Menz reported that the plaintiff complained that more recently in the few months before he had consulted Mr Menz his right knee had been giving way and his left knee was also painful. Mr Menz arranged for an MRI and a bone scan, following which on 7 February 2005 he arthroscoped both knees finding some chondral damage in the medial femoral condyle in the right knee “and a chondroplasty was undertaken there. There was some multiple chondral loose bodies and these were removed”. Arthroscopy of the left knee revealed a tear of the lateral meniscus for which a partial meniscectomy was performed and there was some chondral damage on the lateral tibial plateau and patella and both these areas required a chondroplasty.
The plaintiff said he had to fund the cost of the arthroscopies and the ancillary investigations and treatment; he sold his flat and used part of the proceeds to meet those expenses.
The plaintiff related that after the arthroscopy there was improvement in his knees for “a little while” but the vehicle he was driving had a manual clutch and he found that operating the clutch and the brake pedals affected his knees and his back and he experienced pain when working to assist in rubbing down the car he was restoring. He said his knees were getting worse, he was experiencing more “dipping” and he disposed of the manual car when the restored car was brought to a roadworthy condition.
Upon a review of the plaintiff in January 2006, Mr Menz noted that the plaintiff complained of “intermittent pain and giving way of both knees”. An MRI scan showed there was no significant change in the left knee since the scan in 2004, but the scan of the right knee disclosed a large full thickness chondral defect which appeared to have progressed since the scan in 2004; whether there was such a progression could only be confirmed by and a prognosis given after, arthroscopic surgery. Mr Menz thought the plaintiff’s injuries had probably not stabilised.
In October 2006 Professor Fraser expressed the opinion that the plaintiff had improved following the second fusion to the extent that he was able to “carry out similar physical activities to those that he was able to perform following the first fusion operation”, which he considered to be not heavy physical work or work involving an excessive amount of bending, lifting, twisting, jolting or jarring, but “whatever light physical activities he could perform comfortably and safely with the use of his back and abdominal muscles to support his spine”.
In early 2006, the plaintiff decided to go to live in Port Lincoln where, he judged, there would be less need to drive. He lived there until March 2007. He had noted an improvement in his condition. He went to speak with Mr and Mrs Thompson and told them that it was the assault and its consequences which resulted in him not earlier communicating with them.
The plaintiff bought a boat and a motor home at the beginning of 2007. He said he can launch and operate the boat (he has done so on two occasions) the way he has had it equipped and it has a cabin with a bunk so that he can lie down when he feels he should because of his back. He uses the boat to indulge his hobby of fishing, sometimes taking friends with him, but on half the occasions he returns from a fishing trip he feels sore.
The plaintiff described that he went touring for some months in his motor home. In Katherine, the vehicle caught on fire causing considerable smoke damage which the plaintiff said he spent two weeks scrubbing to remove, an activity that caused pain in his back, “everything, everyday” and his right knee was giving way “virtually every second step” when he tried to walk.
Asked to contrast his physical abilities immediately before the assault with his abilities at trial, he said that working on restoring his car and having started to swim and run, he was getting stronger before the assault, but having set out to do the same things after the assault, and the second fusion, he experiences pain and soreness; his legs “sink” and his back becomes sore when he tries to swim, and he can walk only the distance of “a block”. He said he was unable, without experiencing pain in his back and soreness in his legs, to clean and vacuum or attend to the garden of the house in which he lived in Port Lincoln and he now lives in his mobile home. He said he uses cannabis (a habit he has indulged in since he was twenty years old) to manage his painful episodes and presently takes Tramil twice a day which helps him to sleep. He described that his back, at the level of the waist, on the right and left sides feels like “a Chinese burn … and like someone has got a knee in your backside and they are pulling your hip”. Activity which stresses his back produces increased pain and requires him to increase the number of tablets to reduce his painful symptoms.
He said that in 2007 he stayed in his mother’s house to care for her dog while she was away in New Zealand; he tried to give the dog its usual regular walk but he had to curtail the outings because they caused an increase in his symptoms.
The plaintiff’s view is that since his second fusion he could not take any employment unless there is a bed which he could lie on during the course of the day. He said that there was a period in 2006 when he became subject to episodes of anger and feelings of hatred toward others because of his plight and he was losing weight. He consulted Dr Bentley, tablets (for “depression” as he understood), were prescribed but using them caused bad headaches and he discontinued taking the tablets.
It emerged in cross-examination that the plaintiff’s market garden venture in Port Lincoln was given up by him when he was imprisoned in 1994; no one attended the garden during his incarceration and when he was released he had no interest in continuing the business.
It also emerged in cross-examination that in addition to convictions for offences of assault, the plaintiff was disqualified in 1997 from holding or obtaining a driver’s licence for eight months, and there have been other periods of disqualification, but he was unable to recall when he suffered the most recent of those. Excessive alcohol consumption, the plaintiff said, has been followed by an inability to remember events when he was inebriated and it was this experience, as well as to avoid the “numbing” effect of alcohol on his back, which prevented him from being conscious of the state of his back, that led him to undertake the alcohol management course suggested by a sentencing magistrate.
He rejected the suggestion that his daily habit of cannabis use, both before and after the December 2000 assault, affects his memory.
The plaintiff agreed he told Professor Fraser to the effect that in May 1999, he twisted his back and he had increased pain when a shopping trolley he was using “went out of control”, but he could not remember telling Professor Fraser in March 2000 that he was having problems when doing anything more than light, physical activities. He said he was recovering well from the first fusion and did not recall “having any negatives about the first operation at all”. In particular, he said he was not told by Professor Fraser of a possibility the surgery in March 1999 had not completely united his joints, and he had no memory of the phrase “false joint” being used in relation to his back at about the time he agreed to a lump sum payment by his employer in April 2000.
The plaintiff agreed he did not attempt to look for employment after the redemption agreement in April 2000, and said that any work he did on his car would have been “repairing it here and there”, considerably less activity than he expended on the car after the assault.
The plaintiff related that by in about November 2000 he still had to guard against straining or stressing his back by avoiding movements such as bending and twisting, and he had been told he could not return to work as a carpenter, or to tuna fishing or to market gardening, but said he was getting stronger “with rubbing down my car” and he was not experiencing any symptoms in his back (and had not since about July) apart from “little twangs and pangs”, so he was not taking any prescription or proprietary medication for pain relief; he said he was very happy with the way his rehabilitation was going.
The plaintiff was taxed about his thoughts when he was assaulted:
Q.You told his Honour yesterday when you were asked how you felt when Mr Ravesi assaulted you, you said that you ‘felt everything turned to shit’. What did you mean by that.
A.Well, I was on the ground getting squashed into it and I could just feel the warming sensation in the base of my spine and it just didn’t feel too good even though I was still struggling to get him up, I virtually knew straight away that something was drastically wrong. So, naturally, being to where I was and to this final thing, I wasn’t feeling too good at all.
Q.Weren’t you hoping that you had just had a heavy sprain.
A.It’s not that I was hoping, I was just fooling myself type of thing, I was crossing my fingers that it was everything but what it felt like, but I don’t think I was ever kidding myself to think that there was no problem though.
Q.But you didn’t know immediately how serious the problem was, you didn’t know immediately after you had been assault by Mr Ravesi, did you.
A.I think I did, yes.
Q.Did you give up hope of returning to work at that instant, the instant that Mr Ravesi assaulted you.
A.I think everything was dashed at that moment, it’s probably one of the worst days of my life.
Q.Were you thinking straight away ‘I might have to have another fusion’.
A.I didn’t think of that at all, I was thinking ‘My back is knackered, my life is - ’ well, I think you know the answer to that one.
Q.It crossed your mind pretty well straight away that you might have to have another operation on your back, didn’t it.
A.It crossed my mind that my back was smashed down onto the footpath and that it was very sore and my life was in a mess, right from the word go, right from when I sat myself back up on the table. I was just sitting there nonplussed just wondering what the hell has happened. I just felt like my life was ruined. (Transcript 168/169)
Concerning his knees, the plaintiff said that in January 2001, he had no symptoms in his knees; by January 2002, “they were sore ... (but) … my back overrode everything”, he was utilising a walking stick spasmodically when his knees hurt, then more regularly when he found that mounting a step would jar his back, or tripping on a pavement irregularity would cause him to loose his balance unless he used the stick.
The plaintiff rejected the suggestion that the first time his right knee gave way was early in 2004, a question no doubt prompted by Mr Menz’s report on 18 November 2005 that the plaintiff told him that his right knee had been giving way “more recently in the few months” before the consultation with Mr Menz on 11 May 2004.
Q.Do you agree the first time your right knee started giving way on you was at some stage in early 2004.
A.I would say that would be right, because I had the operation in 2003, March - maybe - I would say it was 2003 that I started noticing my knees actually.
Q.That might be right. But my proposition to you is that the first time that your right knee ever gave way on you was in early 2004.
A.No; that’s not right at all, because before my operation, as I explained, I could hardly walk, I could go to the shop with monumental effort and that’s only a matter of 400 metres, and it was very, very hard to do and my knee was giving then. And actually, I thought the operation cured it because I come out of the operation pretty good after it took me a few months to get my strength back and walk a little bit. There were no signs that I had any problems and it wasn’t until I started to do more walking that my knees started giving again, giving problem.
Q.After you had the MRI scan on your knee you were referred to Mr Menz, an orthopaedic surgeon.
A.A knee doctor.
Q.Is this right: that the first time you saw that doctor, think about that date, the right knee had first given way on you just a few months before you saw Mr Menz.
A.What date was that, that I saw Mr Menz.
Q.May 2004.
A.May 2004, a few months before, sounds about right. I think that’s what I said to him to give him an indication of what was happening.
Q.It was not your left knee that was worrying you, only your right.
A.Yes. (Transcript 177/178)
However, in his evidence Mr Menz said his note of the history when he saw the plaintiff for the first time in May 2004 was “injuring his knees in 2000 in assault, he said they had been getting gradually worse and in more recent times his right knees started to give way on him”. Mr Menz said the reference to “few months” in his report was probably his conclusion and not what the plaintiff said.
Mrs Maureen Bragg is the plaintiff’s mother who, in the later years of her working life, was for many years the head chef at a city hotel.
Mrs Bragg described that the plaintiff was “moving around all his life”, but he was in contact with and would visit her.
Mrs Bragg’s husband, the plaintiff’s father, died in July 1996. The plaintiff came from Port Lincoln and went to live with her for a time. In 1997, Mrs Bragg learned that the plaintiff had hurt his back at work and thereafter he complained about his back and that physiotherapy was not helping.
After the plaintiff underwent the first fusion operation, Mrs Bragg insisted that he stay with her. It is not clear how long the plaintiff stayed at Mrs Bragg’s house, but thereafter she would visit him at the flat in Henley Beach which he had rented (and subsequently bought) and, on occasion, he would spend a couple of nights at her house. She described that gradually the plaintiff appeared brighter, as though he were not in pain any more; she walked on the beach with him, and saw him bend to pick up seashells and swim in the sea.
On about three occasions she had a meal with the plaintiff at the RSL club and saw him and the plaintiff’s daughters playing snooker and apparently enjoying the company of other people at the club.
Mrs Bragg said that the plaintiff spoke to her about buying the business called the Snack Shack in Port Lincoln and his plans for that; she said he was happy, enthusiastic and excited about the prospect.
Then one night the plaintiff arrived at her house; he was in tears, bent over, holding his knees and she saw that there was blood on him and the floor. He told her that something had happened to him at the RSL, involving Tony. Mrs Bragg insisted the plaintiff lie down and stay the night. She took a photograph of the plaintiff’s knees at his request. The next morning, the plaintiff left the house saying he was going to see a doctor. She described that he walked like an old man; she went to a neighbour and borrowed a walking stick for him.
Mrs Bragg said that for the first week after the assault, she visited the plaintiff every day to help dress him, prepare a meal, shop for him, tidy his flat and provide other assistance to him. She said that the plaintiff became more mobile and for the next six to eight months she and the plaintiff would meet three or four times a week either at her house or the plaintiff’s flat for up to one and a half hours, talking together, or walking to the beach when the plaintiff felt able to do so, or helping by tidying the plaintiff’s flat.
During February 2001, Mrs Bragg judged that the plaintiff was walking very carefully, bent and with a stick; it appeared to her he was in pain all the time and he rubbed or massaged his knees. Mrs Bragg said that throughout 2001, the plaintiff did not appear to be getting any better - he was dejected and completely different from his appearance and demeanour before the assault.
Mrs Bragg described that in 2002, the plaintiff “was like an old man, bent over and leaning on his stick” and when sitting he “virtually had to lie back” in a lounge chair. To her observation, these appearances continued to the time of the plaintiff’s second fusion in March 2004.
Mrs Bragg related that the plaintiff came to her house immediately after the second fusion and told her he wanted to go to his flat rather than stay with her. For about one month, until the plaintiff was able to stand and to do things for himself, Mrs Bragg shopped for his food and other provisions, did his laundry and assisted him, she said, in much the same fashion she had following the plaintiff’s first fusion. She assessed that the plaintiff seemed to pick up a fair bit, his demeanour was softer and he was happier in himself. She said that he walked with a straight-back, a very upright posture “holding in his stomach muscles”.
Mrs Bragg said that leading up to the operation on the plaintiff’s knees in February 2005, she observed the plaintiff appeared to be sore in the legs, that he rubbed his knees and, when at her house, would lie on a lounge instead of sitting in a chair. After the knee operation, the plaintiff lived in his flat. Mrs Bragg said she observed that “it was alright for a while”, but in the last two years before trial, she noted that the plaintiff walked very slowly, carefully and with a stick and that outside his immediate family, he has become a recluse.
Ms Jolie Bragg is the plaintiff’s eldest daughter. When her parents separated while living in Port Lincoln, she and her sister resided with their mother. She left school in 1997 and undertook a certificate course in children’s services and was then employed in child care centres.
Ms Bragg described that in the year 2000, before the plaintiff was assaulted, the plaintiff would visit Port Lincoln and she and he would go fishing, boating and four‑wheel driving - “he didn’t have any limitations that I was aware of”. Ms Bragg said she was working only one day a week. The plaintiff spoke to her about the Snack Shack business, which she had often visited as a customer. She described the plaintiff to be happy, vibrant and excited about the prospect of running the business in which she would be involved full time, initially as a driver of the vans, learning the shop business and perhaps, later, taking a more senior position when her sister was old enough to work as a van driver.
Ms Bragg learned of the assault upon her father, and met him about Christmas time in 2000. She described the plaintiff had a walking stick, he appeared like an old grandpa, he walked very slowly and his left knee was constantly giving way. She understood from the plaintiff that the purchase of the Snack Shack was “off”. Ms Bragg said that since the assault, the plaintiff exhibits anger and grumpiness, and he ambulates very slowly with an appearance of instability because of, as she described it, a wobbly knee.
Ms Bragg said that when the plaintiff lived in Port Lincoln for some time, beginning in 2006, she visited him at his house. On occasions she or her boyfriend would assist the plaintiff to move awkward or heavy objects which the plaintiff had deferred moving until one or other of them came to the house.
I think Ms Bragg’s memory of her father as being, she described, a sporting, outdoors boating type before the assault was, to an extent, coloured by her recollections of him while he worked in the market garden as being very fit and strong; that detracts from her evidence that before the assault she saw the plaintiff as being able to do most things a man in his forties could do.
Mrs Coral Thompson, her husband and two sons were the proprietors of the Snack Shack in Port Lincoln which they set up as a new venture in 1992 when they bought the premises of a shop that had been closed for a number of years.
Mrs Thompson said that at the time the plaintiff came to see her in 2000 as a potential buyer of the Snack Shack business, the proprietors had been trying to sell it for six years. She said there were a number of discussions with the plaintiff, information about the business was provided to him, and a point was reached where Mrs Thompson was very hopeful the plaintiff would buy the business; she said that she and her husband had worked in delicatessens for too long and they wanted to “get out”.
Mrs Thompson described that the plaintiff appeared to “drop off the planet”; he did not contact her. She was told the plaintiff was in Adelaide and that he had suffered an accident. It was not until in 2003, Mrs Thompson said, that the plaintiff came to see her at the new premises of their business in Port Lincoln and explained what had happened; she described “he walked in with two walking sticks and generally a sad frame of a man to what he had been” on the last occasion she had seen him in 2000.
In the event, Mrs Thompson and her partners dissolved the partnership in June 2001, the shop premises were sold and Mr & Mrs Thompson were then in partnership in a business confined to stocking and sending out vans as mobile canteens.
The defendant does not dispute that the assault adversely aggravated the condition of the plaintiff’s back and that more likely than not the result of that meant that the plaintiff was unfit for work from the date of the assault for a period of up to two years after March 2004 when the second fusion was carried out by Professor Fraser. The defendant contends that the extent of the disability the plaintiff claims to still be present is exaggerated and not supported by the evidence, particularly of the medical witnesses.
Professor Fraser described the first fusion conducted upon the plaintiff involved the removal of the discs at L4-5 and L5-S1, replacement of the discs by packing bone, taken from the plaintiff’s pelvis, into a carbon fibre device matched to the size of the removed disc, grafting a bone over the joint and the placement of screws. In the healing process blood vessels grow from each vertebra into the site of the device packed with bone which over time is converted into solid bone, the bone graft and screws having been placed to meanwhile hold the site of the fusion in as rigid a position as possible. The object of the fusion is to reduce pain, but it is at the expense of mobility in the spine.
Following such an operation, twisting or bending or any action which could cause movement at the site of the operation, is to be avoided so that the spine is kept rigid to aid a successful fusion; rehabilitation is directed at encouraging the patient to increase the strength of the trunk and back muscles to protect the site of the fusion during healing and also to minimise the development of symptoms of over-straining at other levels of the spine.
Referred to the plaintiff’s evidence that in 2000, about sixteen months after the fusion operation, the plaintiff was feeling more confident and able to engage in more activities, Professor Fraser said that was consistent with his assessment of the plaintiff in March 2000 that he was making satisfactory progress. He said that, from x-rays, the fusion at L5-S1 appeared to be extremely strong but there was doubt whether the fusion at L4-L5 was complete – there may well have been a pseudarthrosis “where instead of the bone joining all the way through there is a little gap and a bit of fibrous tissue which would still allow some movement at that level”.
Professor Fraser’s opinion is that a solid fusion is unlikely to be achieved in less than one year after a fusion procedure, it may take two years or longer, and in the case of a double site fusion such as that which the plaintiff underwent in March 1999 there is a 70% prospect of a satisfactory solid fusion rather than 90% where only a single site fusion is performed. He spoke of there being conflicting evidence and a difference in medical opinion whether there is an association between a pseudarthrosis in clinical result and improvement, as there have been some cases where a patient has strained a pseudarthrosis, a further fusion is done to repair it and strengthen it and the patient improves.
Professor Fraser said, as I understand, that the plaintiff after he was reviewed in March 2000 was at risk of hurting his back by simply bending over to pick up a piece of paper if the muscles were not used correctly, requiring that he have the presence of mind to do things in a controlled co-ordinated way rather than “a lackadaisical way without using the muscles in the right way”. He considered that provided the plaintiff maintained fitness, avoiding lifting or stacking objects like cartons and crates and was disciplined enough to do things the right way, there was no reason why he could not have engaged in the Snack Shack business where, as owner, he would be able to rest or recline if he felt the need, and to in effect pace himself and avoid stresses and strains on his back.
When Professor Fraser examined the plaintiff in February 2001, he judged he was more disabled than when he had last seen him in March 2000. The plaintiff reported marked restriction of back movements which Professor Fraser said indicated pain, or muscle-tightening protecting movements to avoid pain, the main thrust for the treatment of which lay in encouraging improvement of fitness and improved use of muscles to protect the back. Only if that did not result in the plaintiff being able cope with his condition would a further fusion be considered.
Professor Fraser in August 2003 advised the plaintiff concerning a further fusion at L4-5 and the plaintiff decided to undergo that procedure.
Professor Fraser reviewed the plaintiff in November 2005, some eighteen months after the second fusion operation, and reported that x-rays demonstrated the fusion to have consolidated. He noted that the plaintiff was able to move around easily “although he did relay (sic) on the use of a walking stick which, he said, was for protection against the occasional unexpected giving way of his right leg.” He assessed that the plaintiff was fit “to continue” with work of a light to medium nature “but that he was not fit for heavy physical work or work which involved repetitive bending, lifting, twisting, and jilting or jarring beyond that which he could carry out comfortably and safely by using his back and abdominal muscles to protect his spine”. Except for occasional physiotherapy from time to time, mainly for guidance about the use of muscles to support his spine, Professor Fraser considered it unlikely that future surgical treatment will be necessary or that the plaintiff’s condition will significantly alter in the future.
On 22February 2007, notes were made of Professor Fraser’s observations and opinions on a number of matters concerning the plaintiff’s condition (drawn from, inter alia, his review of the plaintiff in that month) in which he stated that the plaintiff’s “collapsing knee is a behavioural sign .... (the plaintiff) now walks with an ‘exaggerated’ gait which is putting more stress on his back” and “the plaintiff’s ‘exaggerated’ gait ... adds to his level of impairment.” In his evidence Professor Fraser explained that a fusion will limit some of the natural serpentine movement of a normal spine in the activity of walking and if in addition there is “an uneven gait either by one leg being shorter than the other or a knee that buckles or a sway, it just transfers the forces and there is a much greater likelihood of having back pain associated with that”. The way he observed the plaintiff to be walking, said Professor Fraser, “it’s easy to see how his gait is placing excessive abnormal stress on his spine”. He said if the plaintiff complained of low back pain it is more likely the pain is not coming from the site of the fusion but “from some minor wear and tear change at other levels and that’s, in my view, partly exacerbated by his knee problem”; also prolonged lack of activity brought about by the consequence of the injury in the assault and recuperating from the second fusion “is likely to have an effect” on the plaintiff’s current state. In Professor Fraser’s view “inactivity is one of the worst things in terms of recovering from a spinal surgery”.
In cross-examination Professor Fraser said that when reviewing the plaintiff after the first fusion operation, as part of his usual practice, he would have shown the plaintiff the x-rays of the fused site. He would not have used the description pseudarthrosis or false joint in discussing the appearance at L4-L5, and would likely have told the plaintiff the fusion at that site had not completely joined but there was no good evidence that the plaintiff would not do as well and indeed a small amount of movement there may protect the levels next to the fusion. I find that whatever Professor Fraser told the plaintiff about the result of the first fusion when he reviewed the plaintiff in March 2000, he did not convey anything other than that the plaintiff was making a satisfactory recovery.
Professor Fraser’s opinion as to the plaintiff’s capacities in employment, at the date of the trial and since a point two years after the second fusion, is that “as far as his back is concerned but I haven’t made an assessment of his knee, and, as I said, there are other factors as well, but purely from his back point of view, the back fusion is sound and provided he had a necessary level of fitness, then there is no reason why he would not be able to do work of a light to medium nature”.
Taken to his observations concerning “behavioural signs” in relation to the plaintiff, Professor Fraser explained that phrase to be “the current term for what are often described as non-organic signs or functional signs”. He said the manner in which the plaintiff walked and the knee was collapsing “appeared to be exaggerated and exaggeration is one behavioural sign. So although that wasn’t a behavioural sign distinctly as far as the back, on the basis it could be from the knee, still the gait and presentation itself was evidence of exaggeration, as a behavioural sign”. He pointed out that after a spinal fusion it is not uncommon for knee pain to occur because of an extra load placed on the knees by the patient seeking to protect the back which could result in a tendency for a knee to give way at times, but if, as I understood him to say he noted in the plaintiff’s case, the knee “gives way with every step in a very exaggerated fashion that tends to imply that it’s either controlled or there is something else behind it .... it is not the sort of gait one would expect in a patient with a knee problem and a fusion to the extent to which (the plaintiff) displays it”. His view is that if the plaintiff has a genuine problem with his knee and as a consequence the plaintiff is putting additional stresses on his back in an uncontrolled way that would likely produce pain in the joints above the fusion and so lessen his capacities for physical activities including, it seems clear, to take work.
Professor Fraser assessed the plaintiff to be “an unusual character” but seemingly straightforward in his responses to questions and in the information he provided. That accords with my own view of the plaintiff – there were some examples of changes in content or emphasis in cross-examination from the evidence he gave but he was recalling and recounting events some of which happened many years ago, and since the occurrence of his accident in 1997 he has been contending with greater or less pain, disability and incapacity. I accept the substance of the plaintiff’s history of events, his state of mind from time to time and his experiences of pain or discomfort.
Mr Menz specialises in lower limb surgery, particularly knee surgery. In his report dated 18th November 2005, following a review of the plaintiff on 21st February 2005 when he judged that that the plaintiff’s knees had “settled well from the surgery” earlier in the month, and the plaintiff was feeling a lot more comfortable, Mr Menz’s opinion was that the prognosis for both the plaintiff’s knees was “excellent for normal function and ability to undertake any activity he wishes”, the disability in the knee was minor and would not interfere with the plaintiff’s ability to undertake ‘his normal work’ activity”. Those opinions were expressed with the introduction that Mr Menz had not seen the plaintiff since February 2005 “and so I would assume that he is having very few, if any, symptoms with no restriction or any significant disability”.
Mr Menz examined the plaintiff again on 24January 2006; the plaintiff “was continuing to complain of intermittent pain and giving way of both knees. I indicated to him that he would probably need to rehabilitate his legs better and increase his muscle strength, but he was not prepared to except (sic) that, so I subsequently sent him for an MRI scan”. That is the scan which indicated a defect in the medial femoral condyle of the right knee had apparently progressed.
In his evidence Mr Menz said that what he found when he arthroscoped the plaintiff’s knees in February 2005 was, as to the right knee, articular damage on the femoral condyle and not much more, and as to the left knee a meniscal tear which looked relatively acute and which Mr Menz considered could have been caused by the plaintiff using his knees in the action the plaintiff described in the course of the assault, and then stressfully aggravating that injury by walking and more so if he were walking with an unnatural gait to protect his back; he said “I see it all the time. People who have bad knees, poor gait, it does affect their back, their spine”.
Mr Menz last saw the plaintiff in August 2007 who complained to him he was still having pain with walking and exercising, but it was not too bad. The state of the plaintiff’s knees viewed in isolation, Mr Menz said, amounted to a “fairly minimal residual disability” but he was not prepared to comment on the effect the back would have on the knees in the interplay between the two.
Mr Menz’s opinion is that the abrasions to the plaintiff’s knees as seen in the photograph exhibit P2 indicated “quite a severe trauma to his knee joint” with quite a high chance of damage occurring to the inside of the joints. In his view the complaints of pain or discomfort in the joints, with the pathology in the plaintiff’s knees, would be variable.
Mr Menz ‘s assessment is that having regard only to the plaintiff’s knee joint “excluding everything else, I believe he should be able to walk with a normal gait”. However he said that if it be the case that there is interplay between the conditions in the plaintiff’s back and his knees causing symptoms in both, the plaintiff will probably need to undergo further arthroscopic procedures in both knees, but Mr Menz found it impossible to say whether such a procedure might be required more than once.
Mr Robert Atkinson is an orthopaedic surgeon who at the defendant’s request provided a report containing his opinion after reading the plaintiff’s statement of claim, the affidavit of loss, various reports of Dr Bentley, the two reports of Mr Menz and a report by Dr G McCulloch dated 31January 2007. He did not examine the plaintiff. His report is exhibit D7 dated 28March 2007.
Mr Atkinson concluded in his report that there is no relationship (or the link is so tenuous that it can be discounted) between the aggravation of the plaintiff’s spinal problem and a right knee injury in the assault in December 2000. In reaching that conclusion Mr Atkinson relied upon a description of the events of the assault contained in Dr McCulloch’s report. Asked to assume the events of the assault were as described by the plaintiff in his evidence, particularly the plaintiff taking his weight on his knees in the course of forcing Ravesi away, and to have regard to the photographs exhibit P2, Mr Atkinson said his opinion remained unchanged. He considered the injuries to the plaintiff’s knees to be of a scraping nature, more apparent on the left knee, rather than a direct blow or a “twisting” injury and there was no appearance in the photographs of staining or bruising or significant swelling at a point four days after the injury which he would have expected to see if there had been a more significant injury to the knees. In Mr Atkinson’s view the appearance of the plaintiff’s knees in the arthroscopy photographs made on 7 February 2005 was consistent with degenerative processes in a man of the plaintiff’s age who had led an active life.
In cross-examination Mr Atkinson said it would be fundamental to concluding a diagnosis for the appearance in the arthroscopic photographs that a full history be taken from the plaintiff and, as I understood him, it was central to his opinion that he understood the plaintiff had made no complaint of knee problem for some four years after the assault in December 2000. He said that until the day he gave evidence he was not aware the plaintiff suffered injuries to his knees of the nature of those shown in the photograph exhibit P2.
Mr Atkinson agreed the injuries of the kind shown in the photograph were consistent with them having occurred in the assault incident described by the plaintiff and were potentially a causative (although a very low) factor contributing to degenerative pathology and painful symptoms in the knees. It was therefore, he said, important to know the plaintiff’s history including the assault incident and his experience with pain in order to come to a view of the aetiology of the degenerative appearances in the plaintiff’s knee. So, Mr Atkinson also said, is the effect of a spinal fusion upon the patient’s gait – quite apart from the potential for a direct injury to a knee to aggravate degenerative changes within the knee, injury to the site of a fusion in the lumbar spine making the patient concerned about the state of his back can lead to the patient bending the back less and using the knees more in a gait which aggravates the degenerative changes, in the context of which the patient may experience a knee giving way, although Mr Atkinson said he would want to explore that phenomenon to find out why it was occurring. The prospect of a patient who has undergone spinal fusion adopting a gait to the detriment, or further detriment, of knees affected by degenerative changes is a possibility but as I infer from Mr Atkinson’s evidence an injury to the site of the fusion may well produce in the patient the response of a greater use of the knees and therefore further aggravation of degenerative changes.
Mr Atkinson agreed that if the plaintiff injured both his spine and his knees in the assault, but his primary concern was with the effect on and the symptoms in his spine, then the plaintiff may well not mention so much the pain or discomfort in his knees.
Dr Bentley’s evidence is that the plaintiff was more concerned with the damage which may have been caused to his back in the assault rather than to his knees. Dr Bentley’s evidence, in effect, is that except that the plaintiff on 8 December 2000 reported he had hurt his knees in the course of the assault, and Dr Bentley noted the grazing, Dr Bentley has no note and I infer no memory of the plaintiff making any complaint about his knees at a consultation in February 2001, or on some twelve consultations later between August 2003 and 26 March 2004; the last consultation was when the plaintiff did complain of pain in his knees, Dr Bentley arranged for X-rays to be taken and then referred the plaintiff to Mr Menz.
Dr Bentley said there were occasions in the period of his consultations with the plaintiff after the assault when the plaintiff expressed or exhibited increased pain, anxiety, anger and frustration concerning the progress of his proceedings against the defendant to obtain a determination of the defendant’s liability to him, and the delay in being able to undergo the second fusion. In December 2005 Dr Bentley considered that the plaintiff did not have any specific “psychological issues” related to the assault.
The plaintiff has been examined by three psychiatrists, Dr Patrick Flynn in February 2006 and Dr Warwick Blakemore in June 2007 both at the request of the plaintiff’s solicitors, and Professor Robert Goldney in November 2006 at the request of the defendant’s solicitors.
Dr Patrick Flynn’s opinion is that the plaintiff’s overall mood stability significantly shifted after the assault. “His psychiatric symptomatology and the changes in his usual repertoire of social and interpersonal functioning are consistent with the psychiatric illness diagnosis of an Adjustment Disorder with Depressed Mood. This is of mild severity. His ongoing depressive symptoms have been driven by his physical restrictions and by the drawn out circumstances of his legal action that do not enable him to exert a positive influence over his life course … I expect a significant improvement in Mr Bragg’s psychological well-being once his legal claim has been completely dealt with. His persisting pain and physical disability is likely to mean that his future work prospects will be restricted. It is more likely than not that Mr Bragg’s mood state will vary over time. Some of Mr Bragg’s mood difficulties are character-logically driven.” Dr Flynn considered that no psychoactive medication was warranted and he doubted whether other means of support or education would assist the plaintiff self management, or that vigorous psychiatric or psychological treatment would “greatly change the course of (the plaintiff’s) psychiatric condition”.
Professor Goldney’s opinion is that the plaintiff “is very angry about his perception of what occurred”; he thought that there may well be some degree of depression secondary to the plaintiff’s physical symptomatology and agreed with Dr Flynn there may be an adjustment disorder with depressed mood of mild severity. He assessed that the plaintiff’s major emotion was “one of anger which is more probably than not of a long-standing nature, albeit exacerbated by his perception of events”, and no psychiatric treatment was indicated.
Dr Blakemore concluded that the plaintiff, while sometimes experiencing times of depression and stress as a result of pain and incapacity he suffers from his back and knee injuries, did not have a psychiatric illness disability or impairment; in particular Dr Blakemore’s opinion is that neither the plaintiff’s history nor his presentation indicated the plaintiff was suffering any psychiatric illness causing symptoms in his knees and “the tendency of the right knee to give way unexpectedly … necessitating his use of a walking stick”.
Concerning the plaintiff’s psychological or psychiatric reactions, the plaintiff both in evidence and to his medical examiners spoke in terms of being, variously, angry or disconsolate about his lot since the assault, a component of which has been the course of the litigation to date. Dr Blakemore is the most recent of the psychiatric reporters. He appears to have taken a fairly detailed history of the plaintiff’s mental and emotional state from time to time and in the context of the reported history contained in his report stated the history was given “matter of factly, amiably, and generally succinctly … and although naturally concerned about his condition with the pain and incapacity he experiences and experiencing some depression at times” and concluded that the plaintiff does not have a psychiatric illness. This is consistent with Dr Bradley’s assessment, and in the broad it appears to me to be reconcilable with the thrust of the opinions of the other two psychiatric practitioners. I conclude the plaintiff is not suffering from a psychiatric illness and in particular, there is no such affliction which produces or overlays the plaintiff’s symptoms concerning his knees or his back.
Prior to the injury caused to the plaintiff’s back by the shovelling incident in March 1997 the plaintiff had mostly engaged in occupations which involved heavy physical work, and except for a period of about ten months when he was recuperating from severe injuries he sustained in the motor vehicle accident and an occasion he strained his spine at a level above his belt line during his employment on a tuna boat in 1996 causing him to be absent from work for four or five days, he worked consistently (putting aside the occasions he was incarcerated for offences of assault). From a time soon after the injury in March 1997 when the plaintiff was about 42 and half years old the plaintiff has not worked.
The injury to the lumbar and sacral levels of his spine in March 1997 was operatively treated in March 1999 by fusions at L4-L5 and L5-S1 joints. I find that as a consequence the plaintiff was left with a lower spine which made him unsuited for heavy physical work, but with an expectation expressed by Professor Fraser in October 1999 that in the longer term the plaintiff should be able to resume work of a light to medium physical nature. The fusion at L4-S1 was solid, but that at L4-L5 was not, showing the presence of a pseudarthrosis which as I understand the evidence posed a risk of movement and therefore strain upon the soft tissues of the spine. By March 2000 the plaintiff as he told Professor Fraser “was still having problems doing much more than light physical activity”.
I accept the plaintiff’s evidence that between seeing Professor Fraser in March 2000 and the day of the assault his physical capacities improved. I find that by the latter date the plaintiff had probably reached a point in his recovery where he would have been fit enough to seek out work of a light to medium physical nature. Precisely what occupation such a description encompasses was not canvassed in the evidence; I infer it would include any tasks the plaintiff felt he could comfortably engage in by using his back and abdominal muscles to support his spine and which did not involve an excessive amount of bending, lifting, twisting, jolting or jarring, all observations which were made by Professor Fraser in his report exhibit P7. The plaintiff said that by December 2000 he was carrying out light weeding, garden bed maintenance and hedge trimming in “small bursts”, but maintaining everything as minimally “as possible so I wouldn’t overstrain, stress my back, just under the guidance of Professor Fraser and Dr Bentley but mainly Professor Fraser”.
At the time of the assault it is likely that the plaintiff had degenerative changes in his knees and in areas of his spine other than the level of the fused joints, but I accept the plaintiff’s evidence that the former were symptomless and as to the latter they were I find susceptible to causing symptoms were they subjected to strains generated by reason of the fused joints.
I find that in the assault the plaintiff suffered injury to his lower spine and to his knees. The former was in the nature of a sprain or strain to the L4-L5 fusion site given rise to painful symptoms to which the plaintiff reacted with a degree of fearful apprehension.
It emerged from Dr Bentley’s evidence that he was told by the plaintiff of incidents of activity during or after the Christmas period immediately before he consulted Dr Bentley on 12 February 2001 – lifting a crate containing bottles and also painting, as to both of which the plaintiff said he experienced pain in his left leg, and working on his car during which he felt pain “which led him to lay down”. The defendant submits that these events are inconsistent with the plaintiff’s evidence and that of Mrs Bragg, as to his condition during the weeks following the assault. Mrs Bragg said that the plaintiff became more mobile after about a week following the assault. The plaintiff told Professor Fraser, in March 2001 I infer, that his symptoms varied from being comfortable to being a major problem, the latter generally being brought about by minor incidents of twisting when getting into or out of a car or while playing snooker, the pain at times affecting his groin but mainly his lower back. In my assessment there is nothing of sufficient substance in the material identified that causes me to treat the plaintiff’s evidence generally with caution. The plaintiff’s evidence, in substance, described less assistance or help being provided by Mrs Bragg during his recuperation than Mrs Bragg described; I consider the plaintiff’s memory of those particular events is less reliable than his evidence as a whole and I accordingly prefer the substance of Mrs Bragg’s evidence on the topic.
Upon the evidence I find that in the assault the plaintiff suffered abrasion injuries to both his knees and likely suffered a traumatic injury to the inside of his left knee, but once the soreness of the lacerations to the knees had abated the plaintiff experienced no or minimal discomfort in his knees until in early 2002. The injury to the plaintiff’s lumbar spine however, caused the plaintiff progressive discomfort or pain, beginning after the assault, resulting in the plaintiff exhibiting the degree of disability assessed by Professor Fraser in February 2001. The plaintiff, I find, was greatly concerned about the injury which may have been caused to his back in the assault and likely became protective, avoiding placing stress or strain upon his back and progressively putting strain upon his knees to the point where his knees after a year or thereabouts produced discomfort and later the phenomenon of giving way in the case of one of his knees prior to the plaintiff undergoing the further fusion at L4-L5 in March 2004. The fusion was a reasonable and necessary procedure, and a consequence of the assault.
Following the fusion in March 2004, the plaintiff was not able to return to the disciplined ideal use of his trunk and back muscles to support his back, and in consequence he continued to place greater strain on his knees which led to the arthroscopy performed by Mr Menz in February 2005. Both Professor Fraser and Mr Atkinson described how there can be interplay between the condition of the plaintiff’s back and his knees. On the balance of probabilities it is more likely than not that following the assault the function of the plaintiff’s knees degenerated over time to cause painful symptoms brought about by the strain the plaintiff placed on his knees to compensate for reduced movement in his spine to guard against generating or exacerbating pain in his spine as a consequence of the injury to it caused in the assault.
It appears to be the case, and I so find, that the plaintiff since the arthroscopies has not been able to focus (as he did in relation to his back following his first fusion and before the assault) upon a fitness regime to develop and maintain muscular strength to support his back and his knees, the achievement of which would likely reduce painful symptoms experienced upon unguarded or unsupported movement and avoid, or at least minimise, adopting the gait which in Professor Fraser’s view is aggravating the plaintiff’s symptoms.
In the past the plaintiff has displayed determination and resolve to surmount or better cope with the consequences of events which adversely affected his life. The latest of the incidents causing injury to his back has resulted in many years of no doubt stressful and distracting immersion in the pursuit of a remedy against the defendant and treatment for his physical symptoms. Dr Flynn’s view is that the plaintiff’s inability to control his life is a powerful factor in his depression, pessimism and poor stress tolerance; Dr Flynn expects “a significant improvement in (the plaintiff’s) psychological wellbeing once his legal claim has been completely dealt with” from which I infer the plaintiff will be mentally better equipped to act on the advice of Professor Fraser and Mr Menz concerning muscular fitness, with the prospect of increasing his capacity to or near to the level he had, or would likely have attained, but for the assault, but due allowance being made for the need for the plaintiff to manage the changes in his knees.
Subject to the constraints advised by Professor Fraser concerning activities and movements to be avoided, the plaintiff, very likely, could have physically coped with the business of the Snack Shack, the purchase of which he was investigating. Mr Grancarz, the bank manager whom the plaintiff had approached concerning a loan to purchase the Snack Shack business, had no records about the plaintiff’s approach to him. There were notes or other records but they would have been destroyed when the plaintiff did not proceed with the application. Mr Grancarz did, however, have a memory of meeting with the plaintiff about the business, a particular aspect of which, that it was in Port Lincoln and included two vans, he clearly remembered. I accept the plaintiff’s evidence that at some point in his dealings with Mr Grancarz and it may have been a few weeks after the assault he was informed that any loan the bank was prepared to make must be drawn down within three months. Mr Grancarz’s evidence is that the bank’s procedures required that he seek approval to any loan he considered was appropriate upon the information he had obtained from an applicant such as the plaintiff; once the making of the loan was approved the applicant was informed that it must be drawn down within three months. Mr Grancarz could not remember how far the plaintiff’s application had progressed but he agreed that if the plaintiff had been informed of a three month draw down window, it implied the requisite approval had been obtained. I conclude that there was every prospect that the plaintiff would have been successful in purchasing the Snack Shack business with borrowed funds for a price in the order of $140,000 including various transfer and incidental costs.
I will return to the topic of the Snack Shack business later in these reasons when dealing with the plaintiff’s claim for economic impairment.
The plaintiff’s special damages are itemised in Exhibit P21. The defendant admits its liability for the amount of $22,372.17 relating to the plaintiff’s back, and the quantum of $2,625.95 relating to the plaintiff’s knees but not its liability for those latter expenses. I have earlier determined that the plaintiff’s knees were injured, either directly in the assault or progressively as a consequence of the injury to the back caused in the assault. The special damages will be allowed in full. That is a total of $24,998.12, $822.65 of which has not been paid by the plaintiff. I will therefore assess interest on the balance of $24,175.47 which I allow in a lump sum of $4,530 inclusive of interest. The special damages are allowed in the sum of $29,528.12, inclusive of interest.
The plaintiff’s evidence is that following the assault he might have stayed at his mother’s house for a couple of days – “She put me to bed and helped me”. By in February 2001 the plaintiff, as he told Dr Bentley, had experienced some increased pain or discomfort in his back in incidents of lifting and painting and by in July 2001, minor incidents such as getting into and out of a motor car or when playing snooker, caused his condition to change from being quite comfortable to episodes of pain; these incidents indicate that the plaintiff was persevering with activities but finding them to be productive of pain in his back. These experiences continued to the time of the second fusion in March 2004. That was followed in February 2005 by the arthroscopy procedures carried out by Mr Menz. By in March 2006 the plaintiff moved to live in Port Lincoln and during the approximately one year he lived there he noticed improvement in his condition, to such an extent, it would appear, that he purchased a boat and a mobile home and thereafter made use of both. Providing he avoids incidents of high stress on his back such as (I infer) changing a wheel on his motor vehicle which he told Dr Blakemore caused him great pain because he failed to use a hammer to loosen the wheel nuts, the plaintiff can be active within the limitation imposed by his back. Professor Fraser assessed the plaintiff to have a 35% impairment of his lower back and lumbar spine, 66% of which is to be attributed to the condition which pre-existed the assault. That cannot be applied in any meaningful arithmetic way, but it is in my view of assistance in arriving at the appropriate quantum of damages.
As I observed earlier in these reasons, if the plaintiff can improve the muscle strength in his trunk and back the incidence of pain-producing movement will reduce. That improvement will likely occur once these proceedings have concluded and the plaintiff is able to focus upon what is necessary to improve his musculature. As Professor Fraser stated, “if (the plaintiff) feels happy in himself then he is more likely to use his muscles properly”.
The plaintiff may have to undergo one or perhaps more arthroscopy operations on his knees. That is far from certain but I will allow something on that account for future pain, suffering and loss of amenities and a sum for the cost of the procedure.
For the period to the date of judgment there have been closed periods of a relatively short time on the occasion when the plaintiff was recovering from the immediate aftermath of the assault and the occasions the plaintiff underwent the second fusion and the knee arthroscopies when he was effectively completely immobilised. Aside from those periods the plaintiff’s condition has varied in its impact upon his physical capacities, his pain or discomfort, as they have affected his enjoyment of life. I remind myself it is the additional consequences wrought by the assault which is to be compensated. In that regard the plaintiff, absent though the assault, had faced a future where his enjoyment of life was impaired by the consequences of his first spinal injury. Since the assault he has been and will continue to be afflicted by the injurious consequences flowing from the assault, including the opportunity to engage in any remunerative employment.
I accept that the plaintiff has been wholly incapacitated for any remunerative work since the assault. For the future there will likely be improvement in his psychological state and therefore in his ability to improve his musculature to support his back and his knees thus reducing the pain and discomfort caused by the interplay between both; that will open up again some opportunities to undertake remunerative work, but the additional more than seven years absence from the workforce as a consequence of the assault and that he is now 53 years old must, it seems, create obstacles in the way of his capacity to compete for work, to which must be added that he now has injuries to his knees which have to be managed.
For pain, suffering and loss of amenities I assess:
For past $30,000
For future $45,000
For the past component I fix $4,650 as a lump sum in lieu of interest.
I return to the Snack Shack business which the plaintiff was looking to purchase at about the time he was assaulted.
The plaintiff submits that being precluded by the consequence of the injuries he suffered in the assault from proceeding with his plan to purchase the Snack Shack business, a measure of his economic loss can be assessed by considering what he would have had the opportunity to earn were he to have completed that purchase. The submission is that the operating profit derived by each of the proprietors in the financial year ending 2000 was $15,000, and although there are no relevant financial statements for the whole business for the financial year ending 2001, if it is assumed the return to each proprietor was comparable, ie $15,000, then the plaintiff were he to have purchased and gone into possession of the business so that he enjoyed six months trading, would have derived $7,500 to 30 June 2001. The submission proceeds then to assume that the plaintiff would have followed what, in fact, happened to the business - in effect it was contracted to operate only the canteen service with vans.
Exhibit P14 comprises financial statements of the Snack Shack and what is referred to as a the Form 2, for the three financial years to 30 June 2000. In June 2001 the proprietors closed the shop premises, the partnership was dissolved and Mr and Mrs Thompson went into a business, in partnership, confined to stocking and operating the two vans as mobile canteens which had been part of the business the plaintiff was looking to purchase. The financial statements for the business which solely operated the vans are also contained in P14.
The Snack Shack operated seven days a week from 7am to 9pm except it closed at 8.30pm on Sundays. All four of the proprietors worked in the business full time except Mr Thompson who generally worked there in the afternoon and evenings and shared with his two sons the weekend work. In addition to the proprietors, who shared the trading profit equally between them, the business in the year 2000 employed and paid two or three staff.
Mrs Thompson described that the shop premises were opened at 6am each day to receive deliveries (including crates of bottled milk and trays of pies and pasties and the like which would likely involve man-handling by lifting and stacking) and work began on preparing food for breakfast to be served from 7am, and to stock the two vans which were dispatched on their runs beginning at 8am. The vans returned to the shop at about 11am, they were re-stocked and sent off to serve the lunch-time trade, returning at about 1pm. It was not plainly stated but I infer that the vans, being used to supply food at various employment sites, were not in use on Sundays. Mrs Thomspon said that she and whoever was working with her in the shop had, by experience, learned to quickly clear up after the day’s work and she was able to quit the premises five minutes after closing time at 9pm.
It appears that the business under the management of the Thompson family required up to seven persons to run it effectively. It was not made clear how many hours each proprietor devoted to the business on a daily basis, or how many hours per day the paid staff worked. However, it seems likely that the plaintiff would have needed to employ and pay up to four staff in addition to his two daughters; to what extent the plaintiff’s ongoing incapacities might have required that he engage paid help in addition to that number is not quantifiable on the evidence before the court.
In the financial year ended 30 June 2000 the Snack Shack operating profit was $55,381 yielding $13,845 to each of the proprietors. In 1997 it was $57,327; in 1998 $55,891 and in 1999 $53,318. The financial year ending 2000 profit was arrived at after, inter alia, wages and wage overheads totalling $40,616 and interest of $5,724. On the assumption that the wages were paid for three staff (an average of $13,538 each) then if the plaintiff were to employ six staff, he as the sole proprietor would have had a wages bill of $81,230. He was also intending to borrow up to $140,000 to purchase the business which even at a nominal rate of 10% interest per annum would require $14,000 to service the interest debt each year; those two items alone totalled an additional expense to the plaintiff of $48,890 and reduced the operating profit to $6,491 for the full year 2000/2001 assuming the figures to have been the same as those in the year 2000.
If that were the prospective outcome were the plaintiff to have purchased the business, it would have been unwise, if not foolish, for the plaintiff to proceed with the purchase. The plaintiff, of course, may have reduced his expenditure by selling his flat and using the proceeds to finance the purchase of the business. There may have been other savings to have been made in running the business; I note that the profit and loss account included expenses (totalling some $8,000) for two vehicles in addition to the two vans and, possibly, the significant items for bank charges and borrowing expenses (totalling some $6,500), may not have been ongoing payments under the plaintiff’s proprietorship. So the financial picture may not have been so grim and the business might have been capable of yielding something between $6,500 and $15,000, the latter being the sum urged by the plaintiff and the sum which each of the partners drew in the financial year ended June 2000, although that resulted in the Thompsons incurring a nett operating loss of $4,619. Assuming the yield to the plaintiff as proprietor would have been $10,000 (two thirds of the yield to a Thompson partner) the plaintiff lost the opportunity to earn $5,000 to 30 June 2001.
The business conducted by Mr and Mrs Thompson in rented premises from 1 July 2001 comprised food preparation to stock two vans to go out as mobile canteens. The normal trading hours were 4.30am to 3.30pm Monday to Friday inclusive; there was no trade on Saturday or Sunday. Mr and Mrs Thompson worked full time in the business and employed two persons to man the two vans. By in the year 2003 an additional van (and driver) was added to the fleet and in successive years the fleet was increased to five vans by mid 2007 and a driver was employed for each of them. From the profit and loss accounts for the year ended 30 June 2002 the operating profit was $30,412; to 30 June 2003 it was $39,677; to 30 June 2004 it was $27,959 and to 30 June 2005 (the last year of financial statements in Exhibit P14) it was $55,593. The wages paid and interest paid in each of those respective years were:
148 Year 149 Wages 150 Interest 151 2002 152 31,926 153 2,565 154 2003 155 31,376 156 3,147 157 2004 158 44,299 159 4,783 160 2005 161 51,350 162 5,444
Assuming all other expenses, and sales would have been the same under the plaintiff’s sole proprietorship, the plaintiff would have had to employ one more person than the Thompsons employed. His interest charges would have been greater than the Thompsons incurred and the return to the plaintiff would have been less. For example, in the year 2001/2002 the wages paid were $34,610 for two employees, an average of $17,305. The additional interest the plaintiff would have incurred (assuming he sold the shop premises and rented premises of the kind rented by Mr and Mrs Thompson) is not identifiable, but assuming $7,000 per annum (10% on his initial borrowings of $140,000 less the proceeds of sale of the shop premises at say $70,000) and an additional employee at $17,305, the plaintiff’s nett profit would have been $8,672. The plaintiff may have been able to reduce his expenditure to some extent but I do not accept that, as the plaintiff submitted, it is appropriate to simply identify one half of the nett profit derived by a Thompson partner as a reliable indicator of the plaintiff’s economic impairment by reason of his lost opportunity to acquire the Snack Shack business in its original form. I note that in the trading statement for the year ending 30 June 2006 (Exhibit P14 page 30) the trading profit reduced by $11,700 compared to the year ended June 2005; although profit from sales had increased by some $52,000 there had been substantial increases in costs and depreciation.
While I accept that the plaintiff would probably have acquired the Snack Shack business in its original form (it provided him with small, simple living accommodation within the shop premises and the ability to pace himself and rest as necessary) and he, as the defendant concedes, would probably have been able to run the business, whether the plaintiff would have embarked on changing the business in the way it evolved in the hands of Mr and Mrs Thompson after the shop premises were sold, is unclear. He would certainly have been motivated to increase the return on his investment as a working proprietor, however, the hours though shorter were more unfriendly and the plaintiff would not have been living in his place of work, unless he retained the shop but, as I understand Mrs Thompson’s evidence, the increasing success of the mobile canteen service, was due in part to the different premises from which the business was conducted.
If as it appears to me to be the case, the business of the Snack Shack in its original form would have yielded to the plaintiff about two thirds of the amount derived by a Thompson partner, then that proportion could be applied to the business conducted by Mr and Mrs Thompson after July 2001 to arrive at a basis for assessing the plaintiff’s past and future economic impairment. From the profit and loss statements in Exhibit P14, the nett profit derived by each of Mr and Mrs Thompson from 1 July 2001 to 30 June 2005 was $76,821. Exhibit P14 page 30 indicates the nett profit to 30 June 2006 would have been of the order of $24,616 for each partner; if that is projected for each of the following years, then to judgment, the total is $133,206, two thirds of which is $89,248. Adding $5,000 to include the period January to June 2001 inclusive produces $94,248. After tax at 25%, the figure is $70,686.
Two thirds of $24,600 (the nett profit to each Thompson partner for the year ended 30 June 2006) is $16,492; deducting tax of approximately 25% produces $12,369 or $237.87 per week. The plaintiff’s multiplier to the age of 65 years is $546. The calculation for future economic impairment is $129,877.
The plaintiff alternatively relies on the average weekly earnings in South Australia paid to males for ordinary time (as published by the Australia Bureau of Statistics, Exhibit P16) to submit that economic impairment past and future can be assessed using the detail in that exhibit. The plaintiff’s history since his injury in 1997 is of no gainful employment. Before the assault he was looking only at acquiring a small business where he could be usefully and profitably employed. As to what other paid work would have been open to him, within his limited physical capacities as described by Professor Fraser, and at what remuneration, there is no evidence. I accept that the plaintiff had a residual capacity for work and he wanted to exercise it. Clearly, in my view, the plaintiff’s ongoing limitations precluded him in December 2000 and would have continued to preclude him from virtually all of the occupations he had previously followed.
Counsel for the plaintiff handed up a table showing information as to average weekly earnings extracted from Exhibit P16. I have not checked the accuracy of the table, but as counsel for the defendant raised no questions concerning it, I shall rely on it.
Exhibit P16 shows that the average weekly earnings for an adult male for ordinary time in November 1999 were $745.30. The plaintiff’s booklet, Exhibit P1, contains copies of his tax returns. It shows that for the financial year to June 1996 the plaintiff’s gross income was $26,014 or $500 per week; for the year to June 1997 it was $18,840 or $362 per week but that was the year in which the plaintiff injured his back in the shovelling incident. The plaintiff implied he earned a very good wage as a fisherman. That was the source of his income in 1996. In that case the plaintiff’s highest pay for his skills, at $500 per week, is substantially less than the average weekly earnings of $745.30 ($39,015 per annum) shown in Exhibit P16. I know of no reason which would inflate $500 in 1996 into $745 (almost a 50% increase) in November 1999, which indicates that put to their best use, the plaintiff’s skills when he was fully able-bodied would not have earned him the average weekly wage. Average weekly earnings increased from $745 to $851 over the period November 1999 to November 2002, approximately 14.22%. If that approximated the increase between 1996 and 1999, $500 would inflate to $571 or about 23.5% less than $745. Further the plaintiff had been out of the workforce for nearly four years, he was partly incapacitated which restricted him to jobs where opportunities were possibly limited and at a wage very likely less than he could have earned as a fisherman, factors which in my view could reduce by a further up to 33% the wage the plaintiff might have earned. Upon that approach the past economic impairment to trial would be $144,965 less 25% tax to produce $108,723 to which the benefit of superannuation contributions (at 11%) would be added to bring up $120,683.
Counsel for the plaintiff suggested that by reason of the plaintiff’s ongoing incapacities pre-existing the assault, the plaintiff may have had the capacity to work only part time. Having regard to the evidence that was a probability, and was one perhaps recognised by the plaintiff in seeking to purchase a business where he could be protective of his movements and be able to pace himself. If “part-time” were to translate into half-time, the past economic loss would be approximately $60,000 which is less than the pre-trial economic loss arrived at by considering the plaintiff’s lost opportunity to purchase the Snack Shack.
Applying the same assumptions to the future, would produce approximately $118,613.
In my view this is all too speculative and an unsound basis to assess damages for economic impairment where the court has before it information concerning the business of the Snack Shack and the plaintiff’s intentions concerning that before he was assaulted in December 2000.
I conclude that the assessment of the plaintiff’s past and future economic impairment should be by reference to his lost opportunity to purchase and work in his own business, best represented by the Snack Shack.
The plaintiff might have continued the Snack Shack business beyond the age of 65 years. Conversely, the natural progression in the degenerative changes in his spine and his knees may have forced him to retire before he reached 65 years of age. These contingencies are probably equally balanced. There are, of course, commercial and other risks which can bring about crippling losses to a business; on the other hand there may be opportunities to expand or otherwise increase its profitability. There are a number of assumptions made concerning the receipts, expenditure and other matters in considering the Snack Shack business on the issue of the plaintiff’s damages. On balance I think the figures I have arrived at are a fair assessment between positive and negative contingencies.
Dr Bentley has continuously managed the plaintiff’s treatment since 1999, except in the period from February 2001 until July 2002; he considered the plaintiff’s chance of obtaining meaningful employment to be “quite low”. The plaintiff is at risk of degenerative changes being exacerbated by the consequences of the assault causing further incapacity affecting his employability. As a consequence of the injuries in the assault, in my view the prospects of the plaintiff re-entering the workforce as an employee or in business on his own account are so small that they can be ignored.
I assess the plaintiff’s economic impairment, as a consequence of the assault, to be:
For the past $70,700
For the future $129,900
to which a lump sum of $18,300
is added in lieu of interest on the past loss.
The total is $218,900
I turn to the issue of voluntary services provided to the plaintiff in the past and the extent of services he may need in the future.
Except for some assistance provided to the plaintiff by his daughter, Ms Jolie Bragg, and her boyfriend, principally to help the plaintiff to move or carry heavy or awkward items of domestic equipment when he lived in Port Lincoln, Mrs Bragg voluntarily provided her services to the plaintiff for a period following the assault upon the plaintiff and for a period to assist him to recuperate from the second fusion operation on his spine.
Mrs Bragg visited the plaintiff at his flat everyday for a week after he was assaulted; she made meals for him, swept and tidied his flat and went to purchase small items for him from nearby shops. After the first week the plaintiff was recovering and able to move around; for about the next six to eight months Mrs Bragg and the plaintiff met three or four times a week either at her house or at his flat. As I understand Mrs Bragg, on the occasions she went to the plaintiff’s flat she was there for approximately one to one and a half hours, sometimes walking to the beach with the plaintiff, or talking with him and “looking after him – sweep, I always have a broom in my hand”, and, until the plaintiff started to visit a laundrette, on occasions washing his clothes and bed linen. For about one month after the plaintiff returned to his flat after undergoing the second fusion, and until he could stand and do things for himself, Mrs Bragg, daily for the first five days and then about three times each week, brought food to the plaintiff, shopped for him or laundered his clothes; she said she did “as much as he would let me”. Then Mrs Bragg for some further period (she could not say whether it is one, or two or three months, but in cross-examination said it must have been three or four months) until the plaintiff was able to shop for himself, she would walk to the shops and purchase things for him. Mrs Bragg’s evidence is that when the plaintiff returned to his flat after the arthroscopy upon his knees in February 2005, she did not provide any assistance to him.
Mrs Bragg had not kept any note of the times she assisted the plaintiff and because of the passage of time her memory was not, as she readily volunteered, very clear. The defendant was critical of Mrs Bragg’s evidence as to the period of time over which she assisted in the care of the plaintiff, submitting that her estimated time periods expanded when taxed about them in cross-examination, particularly in respect of the period after the second fusion operation; that is the period of reduced assistance as to which Mrs Bragg was unsure whether it was one, two or three months.
In a written submission on the issue of voluntary services provided for the plaintiff it is put that Mrs Bragg provided each day for the first seven days after the assault, eight hours of care for the plaintiff. That is not substantiated by Mrs Bragg’s evidence. Mrs Bragg said she went to the plaintiff’s flat everyday to take a meal to him, make tea for him, shop for him, wash dishes, sweep, tidy up and make his bed comfortable (Transcript 334). She did not state how long she took to accomplish those tasks and neither did she say that she carried out each of them everyday.
For the care provided by Mrs Bragg for a period after the assault the defendant submitted that some thirty to forty hours were involved. I assess that each day of the first week, at 1½ hours per day, aggregates approximately 10½ hours. Thereafter, over a period of about six months the plaintiff and Mrs Bragg met three or four times a week either at his flat or her house. Assuming that on one half of those occasions Mrs Bragg went to the plaintiff’s flat, for about 1½ hours on each occasion, indicates about 58 or 78 hours; the average is 68 hours, adding the time for the first week (10½ hours), the total is 78½ hours.
For the second period of care, the defendant submitted that no more than about 10 hours were involved. I assess there was a week (of five days) when Mrs Bragg provided care on each day for about 1½ hours per day (7½ hours), then for two months gave the plaintiff care for about 1½ hours per day for three days per week (36 hours), a total of 43½ hours.
In September 2006, when the plaintiff was living in Port Lincoln, Ms Meagan Coull, an occupational therapist, visited the plaintiff over a period of four hours for the purpose of assessing what level of assistance the plaintiff reasonably required (because of the ongoing effects of his back and knee injuries) concerning household, domestic and home maintenance activities. Ms Coull’s report is dated 28 September 2006 (Exhibit P10). Ms Coull gave evidence.
In her report Ms Coull assessed that the plaintiff needed:
·Occasional assistance with heavy scrubbing/mopping of floors and scrubbing and cleaning in the bathroom and other wet areas, at intervals of eight weeks for about 4 hours;
·Assistance with home maintenance tasks such as cleaning gutters and changing light globes at intervals of 3 months for about 4 hours;
·Assistance with light gardening tasks, such as weeding, garden bed maintenance and hedge trimming at intervals of 3 months for 4 hours.
Ms Coull also recommended that some aids, identified in her report, were needed by the plaintiff – installation of grab rails, acquisition of a long-handled dust pan and broom, a micro fibre mop and a shoulder height clothes line.
Ms Coull reviewed the plaintiff in August 2007 (Exhibit P11), concluding that there had been very little change in the plaintiff’s functional state.
In the written submission by the plaintiff’s counsel concerning voluntary services it is submitted that an allowance for voluntary services should be awarded in relation to periods after those which were the subject of Mrs Bragg’s evidence, that is post the six to eight months following the assault and post the three or four months after the second fusion; the services are submitted to be for heavy cleaning at intervals of 8 weeks for 4 hours, that is 2 hours per month. Heavy cleaning identifies the activities of scrubbing and cleaning which Ms Coull reported were matters for which the plaintiff reasonably needed assistance; they are those I summarised earlier. In my opinion there is no, or insufficient, evidence that Mrs Bragg or any other person provided such services for the plaintiff voluntarily or otherwise in the periods claimed. Ms Jolie Bragg or her boyfriend, did assist the plaintiff to move heavy or awkward items when he was living in Port Lincoln, but the detail of that evidence is insufficient to sensibly assess damages on that account.
The appropriate commercial rates from time to time for services of the nature of those provided to the plaintiff are set out in Exhibit P17 and are agreed.
For past voluntary services, which I find were reasonably needed by the plaintiff, I assess:
One week of active assistance in the month of December 2000
totalling 10.5 hours at $22.22 per hour $233.31
One week of active assistance in about the month of March 2004
totalling 7.5 hours at $27.94 per hour $209.55
68 hours of cleaning assistance in the period of January 2001
to July 2001 (approximately) at $20.02 per hour $1,361.36
36 hours of cleaning assistance in the period over two months
commencing in about March 2004 at $27.94 per hour $1,005.84
Total $2,810.06
To which I add in lieu of interest $1,089.00
Total $3,899.00
For the future I accept the plaintiff presently needs the limited services described by Ms Coull but there is the prospect of the plaintiff’s condition improving once the proceedings are finalised and he can focus upon the exercises identified by Professor Fraser and Mr Menz. If the plaintiff achieves greater muscular fitness, his need for future services will likely be less, or return to a level of need dictated by his pre-assault capacities. Ms Coull’s opinion is that the services she assessed the plaintiff needed would realistically have become necessary in any event by the time the plaintiff reached 60 years of age. The plaintiff does not concede Ms Coull’s opinion that the future services of the kind described by her should extend only until the plaintiff is 60 years old. The opinion is essentially unchallenged. I accept Ms Coull’s opinion. To age 60 years the plaintiff’s multiplier is $364 (Exhibit P15). The periods and the intervals for the performance of the services and the rate aggregate $1,820 in a full year or $35 per week. The present value of such an amount is $12,740. I reduce that by 1/3rd to allow for the contingency that the plaintiff will be less incapacitated once he can focus upon increasing his muscular fitness. I allow $8,535.
Items which in Ms Coull’s opinion the plaintiff needs (namely a long-handled dust pan and broom, a dust microfibre mop and a shoulder height clothes line) have a total cost of $254. I accept the plaintiff’s present need for those devices. I allow $254. The remaining aids are the installation of standard grab rails in a toilet, shower and “at front/back doors” which would require renewal at intervals of ten years. The location of the grab rail “at front/back doors” and the need for or benefits of it were not explained in Ms Coull’s report as far as I can find; I exclude it. The other two grab rails, the plaintiff submits, at the cost (30 cents per week) and replaced at the intervals set out in Ms Coull’s report produces a figure of $314.70 as the present value. I allow $314.70. The total for the future needs of the plaintiff is $9,103.
The plaintiff is likely to undergo an arthroscopy upon his knees or certainly his right knee. The cost of a bilateral arthroscopy in 2005 appears (Exhibit D21) to be $2,079. Whether any further such treatment will ever be required is not clear – it is not a probability. I allow the sum of $2,000.
The plaintiff now regularly takes medication for his pain and discomfort, and he will require occasional physiotherapy mainly to reinforce the need for him to obtain and retain optimum strength in the muscles of his trunk and back. The need for medication may reduce were the plaintiff to succeed in achieving greater strength in his musculature. There is no arithmetical way to arrive at a sum, given these uncertainties. If I assume $5 per week for life, a figure of $5,098 is produced. I will allow $2,000.
Summary
Pain, suffering and loss of amenities
Past $34,650, including interest
Future $45,000
Economic impairment
Past $89,000, including interest
Future $129,900
Voluntary services (including aids)
Past $3,899, including interest
Future $9,103
Special damages
Past $29,528.12, including interest
Future $4,000
There will be judgment for the plaintiff against the defendant in the sum of $345,080.12. I will hear the parties upon the question of costs.
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