Caminada v Bartles
[1987] TASSC 126
•23 December 1987
Serial No B56/1987
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Caminada v Bartles [1987] TASSC 126; B56/1987
PARTIES: CAMINADA, Werner
v
BARTELS, Robert James
FILE NO/S: 547/1985
DELIVERED ON: 23 December 1987
JUDGMENT OF: Underwood J
Judgment Number: B56/1987
Number of paragraphs: 62
Serial No B56/1987
List "B"
File No 547/1985
WERNER CAMINADA v ROBERT JAMES BARTELS
REASONS FOR JUDGMENT UNDERWOOD J
23 December 1987
This is an assessment of damages. On 30th August 1984, whilst walking across the road at the intersection of York and Wellington Streets Launceston, the plaintiff was hit by a car. He suffered the following injuries:–
1A simple fracture of the mid shaft of the right femur.
2A fractured right tibia and fibula just below the knee joint with the articular surface largely intact.
3A fracture of the left tibial plateau with some depression and comminution of the bone.
4A closed head injury.
5A soft tissue injury to the left arm.
6Extensive bruising.
At the time of the accident, the plaintiff was 61 years of age. He was born in Switzerland on the 21st February 1923, and came to Tasmania in 1952. Shortly after his arrival in this State, he commenced his own business as a reinforcing contractor. A reinforcing contractor cuts, welds and positions reinforcing steel in accordance with engineering drawings, for concrete beams, slabs, trusses and the like. The plaintiff specialized in major works, such as the silos at Comalco, the wharves for the Port of Launceston Authority and the Batman Bridge. The work requires a high degree of precision and care.
Some time before the accident, the plaintiff had retired from his business. The evidence was not sufficiently precise to permit a finding of when the plaintiff retired, but it followed the completion of a major contract for the Hydro Electric Commission at the Pieman River and was not less than 8 months before the accident. The plaintiff retired because he suffered from gout, the symptoms of which became so severe that he was forced to give up work. Dr McIntyre gave the following general description of gout and its symptoms:–
"It's an inability to deal with the metabolism or burning up of nuclear protein..... the protein that you get in offal mainly; brains and red meat and that sort of thing. Some people, genetically, have an inability to cope with this, and therefore they are pre–disposed towards attacks of gout. What happens is that you get crystals of uric acid, which is a breakdown product of this, deposited in and around the joint. This at times, can be incredibly painful and it gets hot and red and swollen. In a very severe attack, they object to the cat walking into the room. It really is a very painful procedure and if you have enough of those attacks it can materially damage the joint lining to produce an osteo–arthritis secondary to gout............. of course, gout can be controlled for long periods of time with therapy and quite successfully."
By reason of his gout, the plaintiff was, at the time of his accident, in receipt of a Commonwealth Invalid Pension. The plaintiff said that he had been consulting doctors about his gout for approximately 6 to 8 years before the accident. He used to suffer short attacks of symptoms. Prescribed drugs helped to alleviate the pain. However, his condition gradually got to a stage when he felt he could work no longer and he applied for and obtained an invalid pension. Approximately 3 or 4 months before the accident, he started taking a new drug which brought the symptoms under control. The plaintiff said that the tablets he took effected a cure, but I prefer the general evidence of Dr McIntyre to the plaintiff's uninformed prognosis, and find that about 3 months before the accident, the drug the plaintiff was taking kept his symptoms under control but the probabilities were that, from time to time, he would be subject to further attacks of gout.
About the time the plaintiff's condition improved he was offered a major steel reinforcing contract by the Port of Launceston Authority which was then about to build an extension to its wharf at Bell Bay. The plaintiff was uncertain about the permanency of his "cure" and in the events which I shall refer to later, the work was offered to his son on condition the plaintiff supervised the work. The plaintiff spent a few weeks working for his son on an unpaid trial basis. The plaintiff said that just before the accident, he decided he was well enough to resume full employment and it was agreed between him and his son that he would be paid a gross weekly wage of $600.00. On the day of the accident, the plaintiff was on his way to the Department of Social Security to advise them he was returning to work, but because of the accident, he did not get there. On this basis, the plaintiff claimed damages for actual loss, both past and future, arising out of a diminution of his earning capacity. This claim was the principal matter of dispute upon the assessment.
After making allowances for a tendency to exaggerate and dramatize, I accept the evidence of the plaintiff. Notwithstanding the fact that he has lived in Australia for over 30 years, the plaintiff's command of the English language is not as good as might be expected. Initially, the plaintiff did not impress as a truthful and accurate witness. He was over–talkative, made assertions in terms that were prima facie, hard to accept as true and frequently failed to respond directly to questions put to him. However, other witnesses, whose evidence I am able to accept without hesitation, corroborated almost every aspect of the plaintiff's evidence. As the trial progressed, it became clear that the initial impression of the plaintiff's evidence was erroneous. It was created by his failure to proffer rational explanations when they apparently existed and his oblique and confusing responses to questions concerning simple matters of fact.
Pain, suffering and loss of amenities of life
After the accident, the plaintiff was taken to the Launceston General Hospital. The fractured right femur was fixed with a Kuntscher nail. That fracture, and the fractured tibia and fibular in the same leg, were managed by encasing the whole of the leg in Plaster of Paris.
The left leg was placed in a Zimmer splint but mobilized fairly quickly. The plaintiff's initial admission to hospital was from 30th August 1984 until 2nd October 1984. It was a painful and uncomfortable time for him.
He was discharged home into the care of his wife with his right leg still fully encased in plaster. At home, he was wholly dependent on his wife for care. He spent his days stretched out on a sofa, or sitting up on one chair with his right leg propped up on another. For mobility, he was limited to a wheel–chair and required assistance to get in and out of it. The wheel–chair had an extension which could be fitted to the front, on which the plaintiff rested his extended and plastered right leg. It was an awkward and cumbersome mode of transport. The wheel–chair would not fit into the toilet so a toilet chair had to be placed in the bedroom for the plaintiff's use. He was fed, washed and dressed by his wife. His injuries were painful and uncomfortable as well as demeaning for a man who used to be independent and was described by his wife, as "a workaholic". During this period, he slept little and when he did, he was plagued by "nightmares". These nightmares still persist but with less frequency than was the case in the months immediately following the accident.
By November 1984, the plaster had been removed from the right leg and the plaintiff was re–admitted to hospital for 17 days of intensive physiotherapy directed towards the restoration of mobility in the right knee joint. The right femur united with a 15 degree external rotation deformity. The fractures in the lower leg healed, but with a 15 degree valgus deformation. The two bony deformities cause unusual stress to knee joint which predisposes the plaintiff to arthritic changes. The physiotherapy, which involved the use of a machine to bend the knee, was a painful process.
The plaintiff was discharged from hospital on crutches, and although this gave him greater mobility, he still required a considerable amount of assistance from his wife. The plaintiff continued with physiotherapy at the hospital, Cosgrove Park, and at his own initiative, at home. Notwithstanding his efforts, the right knee regressed and he was re–admitted to the Launceston General Hospital on the 16th January 1985 when his knee was manipulated under general anaesthetic. He remained in hospital for 15 days for further intensive physiotherapy. Again, this was a painful process for the plaintiff.
On his discharge from hospital, the plaintiff returned home and resumed physiotherapy at Cosgrove Park. The movement in the right knee showed improvement and gradually, the plaintiff regained mobility. He discarded his crutches, initially for a walking frame and then two sticks and lastly, one stick which the plaintiff is now able to do without except when walking on uneven surfaces.
The head of the Kuntscher nail, near the plaintiff's right buttock, became a source of pain and the plaintiff was admitted to hospital for the last time on the 3rd July 1985 when the rod was removed. He was discharged two days later.
Physiotherapy at Cosgrove Park terminated in late November or early December 1985. Since then, the plaintiff has kept up his own exercises and visits Theogenes Health Studios for swimming, spa baths and sauna treatment, which Dr McIntyre says will not improve his physical condition, but no doubt gives him some relief from his symptoms.
The plaintiff's injuries have now stabilized. He complains of the following residual disabilities all of which, in the opinion of Dr McIntyre, are consistent with the injuries sustained and likely to be permanent.
The plaintiff walks with a limp. The right knee lacks the last few degrees of extension. As a consequence, there is an inability to lock the joint into position with the right leg fully extended. This results in a lack of stability in the right leg. Flexion of the right leg is limited to 110 degrees which inhibits bending and squatting. Direct pressure on the right patella is painful. The site of the head of the Kuntscher nail is a source of discomfort. Movements of the left foot and ankle are slightly restricted. There is some loss of mobility and stability in the left ankle, which Dr McIntyre attributes to soft tissue damage. The disabilities in both lower limbs prevent the plaintiff walking on uneven ground or climbing ladders. He is no longer able to work as a reinforcing contractor except in an advisory or managerial capacity. His recreational activities of gardening and lake fishing are much curtailed. He ascends and descends stairs one tread at a time.
The plaintiff complains of pain and stiffness in the right knee joint and lower limb. Each morning, the joint is so stiff that he is compelled to exercise it before "he can get moving". He also suffers from muscle cramps in this limb. If he sits or stands for very long, the muscles in the right leg go into spasm; a painful state of affairs. In order to avoid muscle spasm, the plaintiff continually moves about so that his right limb does not remain in one position for very long.
The plaintiff says that there is some loss of strength in the left upper limb. Dr McIntyre noted signs of pre–accident osteo–arthritis in the area which he thought may have become symptomatic as a result of the accident. The plaintiff also complains that the finger nails on his left hand are no longer growing properly. Dr McIntyre cannot account for this but in any event, in the total picture, it is of no consequence.
The plaintiff complains of pain about the area of his left ear if he lies down with the left side of his head against the pillow. Dr McIntyre cannot explain this complaint but accepts, as I do, that the extensive trauma suffered by the plaintiff in the accident is, in some inexplicable way, the cause of this problem.
The plaintiff and his wife both said that since the accident the plaintiff has lost his desire for sexual relations, is intermittently and unreasonably irritable and his powers of concentration have diminished. The plaintiff has a scar of no significance in the centre of his forehead.
Although the plaintiff was liable to suffer from disabling attacks of gout before the accident, I find that generally he was an energetic, confident and physically fit man. His flower and vegetable garden was a particular source of pleasure to him. He took pride in maintaining his house in first class condition. Now, his enjoyment of these activities is substantially reduced by reason of his physical disabilities and pain. Although his advancing years and attacks of gout would have led to a gradual restriction of his physical capacity, the accident has severely curtailed the plaintiff's enjoyment of the amenities of life for the rest of his years. Under this head of damage, I award the plaintiff $15,000.
Diminution of Earning Capacity
With respect to the claim for damages for diminution of earning capacity, I accept the evidence of the plaintiff's son and a witness from the Port of Launceston Authority and make the following findings.
The plaintiff's business had not always been financially successful, but he always took a great deal of pride in his work and the buildings which he helped to construct. It was always the plaintiff's wish that his son, Franz, would carry on the business when he retired. However, Franz Caminada had other ideas and qualified as a carpenter. A man of industry and competence, he was at the time of the accident, carrying on his own business manufacturing prefabricated garages and sheds.
Although the plaintiff had retired from his business some time before the accident, and thereafter, was in receipt of an invalid pension, by July 1984 he had been free of symptoms of gout for quite some time. It was at this time he was approached by the Port of Launceston Authority with the request that he provide the reinforcing for the proposed extensions to the wharf at Bell Bay. Unsure of the permanency of his recovery from gout and, wishing to start his son into his business, he suggested to both his son and the Port of Launceston Authority that Franz Caminada take on the work. The proposal put by the plaintiff to his son was that he would work on an unpaid basis for a few weeks and teach his son and his employees how to do the work. His son would provide all the necessary finance and take the profit. Knowing that the business had not always been financially successful, Franz Caminada was initially somewhat dubious about the proposal but in the end, agreed to it. He said he thought he could make money out of it and upon that basis was willing to give the proposal a try. Franz Caminada said, "Oh well I think ever since I've been a kid, he (the plaintiff), expected me to take over in his footsteps and do it."
The Port of Launceston Authority was concerned that Franz Caminada may not have the requisite skills to do the work but agreed that he could have the reinforcing for the construction of concrete slabs for the decking of the wharf. These slabs were made in the pile yard of the Authority. The reinforcing required for the beams on the wharf was a more complex operation so an agreement was reached that Franz Caminada would provide the reinforcing for two of the beams under the close supervision of the plaintiff on a trial basis. If the two beams proved satisfactory then the Authority would let the whole of the contract to Franz Caminada.
In early July 1984, the first concrete slab was completed. The plaintiff positioned the reinforcing for this slab and then made a jig so that the reinforcing for all the other slabs could very easily be placed in the correct position. The plaintiff instructed his son's employees how to do this work. The plaintiff worked at the pile yard for about 5 weeks. How much physical work he did on this job is difficult to ascertain but I am satisfied that he was present at the pile yard for the substantial part of this time and did a considerable amount of physical work as well as give instruction and supervision. At the same time, the plaintiff taught his son how to read engineering drawings and how to tender for reinforcing contracts.
On the 14th August 1984, the plaintiff started work at the Bell Bay wharf on the construction of the first of the two test beams. For two weeks he was engaged in this work. He took a full active part and instructed his son's employees how to do this precision work. When the first two beams were finished, they were inspected by the Port of Launceston Authority and passed as satisfactory. The Authority let the contract for the whole job to Franz Caminada on condition his father was there to supervise the work.
At that stage, being only two days before the accident, work on the beams at the wharf was suspended to enable the pile driver to drive more piles. It was anticipated that this work would take about a week so the plaintiff decided that he would paint the eaves of his house during the break.
Towards the end of the trial period the plaintiff felt confident about his "recovery" from gout. He and his son agreed that if the Port of Launceston Authority approved the two test beams and let the whole of the contract to the son, the plaintiff would work for his son on a full time basis for the duration of the contract. Until this time, the plaintiff had worked for nothing, both in the pile yard and on the wharf but, the two of them agreed that when work on the beams resumed, the plaintiff would be paid a gross weekly wage of $600.00. On the day of his accident, the plaintiff was going to notify the Department of Social Security that in a week, he would be returning to full time work.
Franz Caminada is still a reinforcing contractor although he has other building interests as well. He has been continuously engaged in the business of a reinforcing contractor since his father's accident. As the accident prevented the plaintiff returning to work, the Authority required Franz Caminada to cut and position the reinforcing for one more beam to ensure that he was able to do the work without his father's supervision before it was prepared to let him continue with the contract. Franz Caminada proved to the satisfaction of the Authority that his work was up to standard and he duly completed the contract which occupied approximately 8 months fixing the reinforcing for the slabs in the pile yard and about 14 or 15 months fixing the reinforcing for the beams on the wharf. Since completion of that work, Franz Caminada has provided the reinforcing for other major construction jobs such as the Sheraton Hotel in Hobart.
The plaintiff's claim for damages for economic loss is for $600.00 per week (agreed to be $445.37 after tax) from the 30th August 1984 until he reaches the age of 65 years on the 21st February 1988. This is based on the proposition that the plaintiff would have worked continuously for his son for the whole period at the stated wage. The proposition is not a true reflection of the picture created by the evidence of the plaintiff and his son.
I find that the plaintiff saw the offer of work by the Port of Launceston Authority, as an opportunity to persuade his son to go into a business that had provided him with a great deal of job satisfaction over the years. Franz Caminada said:–
"He's been wanting me to go on steel fixing for years and I never really wanted to. I suppose it was probably he tried to lever me around to doing it in the end by coming down there and showing me what to do."
The plaintiff decided that he could test his physical capacity to resume work and at the same time, pass on the skills necessary for the trade. Gradually, the plaintiff would have been able to retire from work, secure in the knowledge that he had successfully passed on the family business to the next generation. Liability to disabling bouts of gout was an unknown factor, but the effect on the business of any such attacks would be minimised with the passage of time and the transmission of knowledge and skills to the son and his employees.
Franz Caminada was unsure about his future as a reinforcing contractor. He was engaged in a successful business which was turning over between $300,000 and $500,000 per year. However, he was and still is, willing to go into any new venture which appears likely to return a profit and the Port of Launceston Authority contract, with his father's supervision and instruction, seemed to be just such a venture. When he took it on, Franz Caminada decided that he would wait and see how profitable the contract turned out to be before making any decision about his future as a steel fixer.
On the balance of probabilities, I find that the plaintiff would have worked for his son for the whole of the 14 or 15 months the Port of Launceston Authority job took to complete but, by reason of his accident and the resultant diminution in his earning capacity, he has been deprived of that income. At the conclusion of the Port of Launceston Authority contract, the probabilities are that the plaintiff would have taken a less physically demanding role in his son's business and largely confined himself to management and supervision. It is probable that, in consequence, the plaintiff and his son would have agreed on a lesser wage for such work. As the years went by and Franz Caminada's business progressed, I find that the plaintiff would have done less and less work, thus, earning less and less income and gradually would have eased himself into retirement, a process which would have been complete by about February next year.
It is clear that on–site physical work is no longer open to the plaintiff, but he is still able to provide management advice. However, his physical recovery took over a year and by the end of that time, his son was well established and experienced. By then he no longer needed his father's advice and thus the plaintiff's residual skills have not been and are not likely to be productive of much, if any, income. There was a risk that the plaintiff may not have been able to work for periods of time because of attacks of gout. Curiously, there is very little evidence concerning this risk and none at all as to whether, in fact, the plaintiff has suffered an attack since the accident. I take this matter into account as a very small contingency along with other contingencies which may have reduced the plaintiff's earnings had the accident not occurred. The loss for the period until completion of the Port of Launceston Authority contract I assess at $27,000. The loss for the period thereafter I assess at $16,000 making a total award for damages for diminution of earning capacity $43,000.
Griffiths v Kerkemeyer
The plaintiff is entitled to recover damages in accordance with the principle set down by the High Court in Griffiths v Kerkemeyer (1977) 139 CLR 161, in respect of the need for post hospital care which was in fact, provided by his wife. Counsel were agreed that a reasonable weekly rate for the provision of such services was $60.00.
When the plaintiff was first discharged from hospital on the 2nd October 1984, with his right leg in a full plaster, he was totally dependent upon his wife. During the ensuing 12 months, (excluding periods in hospital) the need for his wife's services gradually diminished to nothing as the plaintiff regained his mobility. I accept that until his discharge from hospital following manipulation of the right knee joint under anaesthetic, the plaintiff was wholly or almost wholly dependent upon his wife for his daily needs and accordingly, for that period, is entitled to recover $900.00 under this head of damages. For the 7 or 8 months that remain, I allow the sum of $1000.00 making a total of $1,900.00.
In addition to the need for services akin to nursing services, the defendant's tort created a need for the provision of other services and some goods. The fulfilment of this need has been, and in some cases will continue to be, productive of financial loss. The plaintiff claimed damages under this head by way of 23 itemized particulars. This claim is substantially based upon the proposition that the plaintiff's injuries have prevented him doing certain work in and about his home, thereby creating a need to employ others to do this work. I shall set out each claim and deal with it seriatim.
Taxi fares for physiotherapy and hydrotherapy 11.1.85 – 30.6.86; 72 weeks at $30.00 per week
The plaintiff's taxi fares for travelling to and from physiotherapy were paid by the Motor Accidents Insurance Board until the 10th December 1985. The plaintiff gave evidence that this claim related to the period after the Board stopped payment of taxi fares and was for a twice weekly visit to Theogenes Health Studio and one weekly visit into town. He said that although he had a car, he was too nervous to drive it until the end of March 1987. By the end of 1985, the plaintiff was getting about with only the occasional use of a walking stick. Public transport was readily available to him and I am not satisfied that there was any need to use taxis after December 1985 and I disallow the whole of this claim.
Hospital apparel.
This claim was not disputed and I allow $50.00.
Cost of lawn mowing 17 times per year for a period of 3 hours per time over a period of ten years calculated at the rate of $6.00 per hour.
Cost of employing a handyman at approximately 10 week intervals to keep the plaintiff's garden and yard clean and maintained at the rate of $20.00 per visit.
Claims itemized in paragraphs (3) and (4) fall to be considered together. The plaintiff said that since the accident he has engaged a handyman about 20 times a year to mow his lawns and a few times a year to dig his garden and do heavy outside chores. I accept that for 12 months after the accident the plaintiff was completely unable to do this work himself. A rate of $6.00 per hour was agreed as being reasonable and I allow $450.00 for the provision of these services up to the end of 1985. Since the beginning of 1986, until the date of trial, I find that the plaintiff still needed the services of the handyman, but to a lesser degree, as he was able to do some of the work himself, albeit with difficulty. For this period, I allow a further $500.00. With respect to the future, I assess that by reason of his injuries, the plaintiff will continue to require the services of a handyman at an annual cost of $250.00. This sum should be allowed for a period of 5 years by which time the plaintiff will have reached an age when he would have needed the handyman's assistance even if he had not been injured or, as is quite likely, by the time he is 70, the plaintiff and his wife will have moved to a smaller house. Applying the appropriate discount, I allow $1200 (rounded off) for future loss under these two items.
Cost of clearing land at Salisbury Crescent owned by the plaintiff at the rate of $120.00 per year.
The plaintiff owns a vacant block of land next–door to his home. Until the accident, the plaintiff cleared this land once a year with a whipper–snipper so it would not become a fire hazard. Since the accident, he has had to pay $120.00 per year for a man to do this work. I am satisfied that this task is heavy work on uneven ground and now beyond the plaintiff. It was conceded that $120.00 per year was a reasonable sum and I allow the total sum of $920.00 as claimed under this item for both past and future services calculated for the same period and on the same basis as is referred to under items (3) and (4).
Cost of excess firewood burnt whilst plaintiff incapacitated; 14 tonnes at the rate of $32.00 per tonne.
The plaintiff claimed that following the accident, because he was confined to the house and cold, he kept the fire burning every day and thereby consumed an extra 10 tonnes of firewood. I accept that some extra firewood was burnt for the reason given, but conclude that the quantity claimed is an exaggeration. I allow $120.00 for this item.
Cost of purchasing firewood formerly cut by the plaintiff.
The plaintiff said that before the accident he cut, and carted in on his trailer, all his firewood requirements, being an estimated annual amount of 14 or 15 tonnes. I have some reservations about the assertion that all the firewood used by the plaintiff was cut and carted by him but do accept that he can no longer get his own wood to the extent that he used to. It was agreed that the reasonable cost of firewood is presently $32.00 per tonne. With respect to the future, I adopt the same period of 5 years as previously referred to, and as a matter of judgment, for the past and future, allow $1800.00 for this item.
Cost of purchase of vegetables whilst unable to garden whilst incapacitated after the accident calculated at $5.00 per week for a period of 52 weeks.
Before the accident, the plaintiff tended his vegetable garden and kept the family supplied with vegetables. For a year after the accident this garden produced nothing and vegetables had to be bought. The evidence of the cost of buying these vegetables was very vague but doing the best I can I allow $100.00 for this item.
Cost of cleaning windows at Salisbury Crescent twice per year at a cost of $50.00 per time.
Because of the slope of the land on which the plaintiff's house is built, a ladder is required to clean the front windows. Since the accident the plaintiff has been unable to climb a ladder. He said that since the accident, he has paid window cleaners to clean the outside windows twice a year. No evidence was given of the cost of engaging this labour. $100 per year is the amount claimed and in my view is reasonable. Upon the same basis as referred to previously, I allow the sum of $767.00 for this item.
The replacement cost of 44.45 square metres of carpet in the lounge, entrance hall and passage of the plaintiff's home which carpet was damaged as a result of the plaintiff being required to use a wheel–chair inside the house.
The plaintiff said that repeated manoeuvring of the wheel–chair in about ten spots throughout the house resulted in the carpet being worn out in ten different places. He sought to recover $4,312.00 being the agreed cost of replacing 44.45 square metres of carpet in the lounge, entrance hall and passage. I substantially reject this claim. The initial appearance of wear and tear would have been readily apparent and the plaintiff could have easily mitigated his loss by placing plastic covers over those areas of carpet on which the wheel–chair was frequently manoeuvred. His failure to do so, was a failure to take reasonable steps to mitigate his loss and I allow only $200.00 for this item.
Cost of repairing fly screen door, replacing existing shower screen with new screen (one panel on the shower screen has been fractured and cannot be matched with existing screen) and replacement of damaged vanity basin; cost of repairing bath.
Whilst confined to his wheel–chair, the plaintiff damaged the fly screen door when trying to open it with his walking stick. He damaged the vanity basin when a jar slipped from his grasp as he was stretching from his seated position in the wheel–chair to reach it in a cupboard over the basin. I think that damage of this kind was reasonably foreseeable and caused by the tortious act of the defendant. The plaintiff also said that he damaged the bath whilst sitting in it when an object slipped from his grasp and fell into the bath damaging the enamel. On another occasion, he fell in the shower and cracked the glass shower screen. With respect to these last two matters, the evidence fails to satisfy me that the plaintiff's physical disabilities were causative of the loss and I make no allowance for them. A lump sum of $600.00 was agreed to be the reasonable cost of repairing the door, the vanity basin and the shower screen. Doing the best I can, in the light of my findings and the agreement reached by counsel, I allow $300.00 for this item.
Repainting all interior painted surfaces and varnished areas including painting where necessary to match – ceiling, walls, cupboards, door, architraves and skirtings and repair and re–stain damaged door panels and architraves, all damage occasioned as a result of the use by the plaintiff of a wheel–chair inside the house.
I accept the plaintiff's evidence that he maintained both the interior and the exterior of his home in immaculate condition. He said, and I accept, that moving the wheel–chair through doorways and in confined spaces chipped and damaged the painted surfaces. He also said that the walls were badly marked by the passage of his hands over them but I formed the impression that he was exaggerating this aspect of his claim. It was agreed that $2925.00 was the reasonable cost of carrying out the work claimed. I am satisfied that there is some need for repainting caused by the use of the wheel–chair and that such cost is recoverable. As a matter of judgment, I allow $1200.00 for this claim.
Cost of replacing vinyl in the kitchen and bathroom areas, damaged as a result of the use by the plaintiff of crutches over an extended period.
The plaintiff's evidence was that the rubber tips on the ends of his crutches wore out and the unprotected ends caused damage to the vinyl floors in the kitchen and bathroom. Why the plaintiff did not take the reasonable step of mitigating his loss by replacing the rubber tips is inexplicable and as the cost of doing so would have been negligible, I disallow the whole of this item.
Cost of new settee damaged by wheel–chair and leg plaster.
Cost of two chairs damaged by wheel–chair and leg plaster plus a third which cannot be matched.
The plaintiff's wife confirmed the plaintiff's evidence that 3 or 4 months before the accident, they bought a new settee and two matching chairs for $600.00. While his leg was in plaster the plaintiff spent a considerable amount of time lying on this settee and being assisted on to and off it. As a result, the covering of the settee was substantially damaged and the springs so badly affected that a board had to be placed underneath to provide support. When not sitting on the settee or in his wheel–chair, the plaintiff sat on an upright chair with his plastered leg propped up on another. He claimed that the chair he sat on "collapsed" and the other one was badly damaged. No evidence was given of the purchase price or value of these chairs and the plaintiff's wife said that they had been in their possession for "quite a while". I accept that the loss occasioned by the damage is recoverable. Taking into account the value of the settee and chairs before the accident, I allow $250.00 for these two items.
Cost of painting the plaintiff's house at Salisbury Crescent.
The plaintiff's evidence, which I have accepted, is that on the day of his accident he was planning to spend a week painting the eaves of his house. The occurrence of the accident prevented this work being done and the whole of the exterior of the house is now overdue for painting. It was agreed that the reasonable cost of doing this work (excluding materials) was $2555.00. Insofar as most of this work will require the use of ladders, the plaintiff is now obliged to employ labour to do the painting. In addition to a present need for painting, the plaintiff said that the exterior of the house will need to be wholly re–painted within 5 years. Applying a discount of 3% to the agreed present day cost of doing this work, he sought to recover a further sum of $2203.94. I do not accept his evidence that the house will need re–painting at the end of 5 years and in any event, by that time the plaintiff will be 70 and will have either sold his house or be in need of labour by reason of his age and not solely by reason of his injuries. Accordingly, I only allow the sum of $2555.00 for this item.
Two pairs of trousers damaged by leg plaster.
One pair of slippers.
Three sheets damaged by leg plaster.
Notwithstanding a considerable amount of cross–examination with respect to these minor claims I am satisfied that they are all reasonable. The evidence with respect to the value or cost of replacing them was vague but again, doing the best I can, I allow a total of $100.00 for the three items.
Exercise bike.
This item cost $90.00 and was used by the plaintiff in his home for physiotherapy. Having regard to the medical evidence, I am satisfied that this item should be allowed as claimed.
Two pairs of thermal leg warmers.
I allow this item as claimed in the sum of $56.00.
Cost of changing to an automatic car.
The plaintiff claimed that the injuries to his legs made the use of a clutch in a manual car difficult. After the accident he sold his motor vehicle and was for a time without one at all. When he bought another car he paid an extra $225.00 for one with an automatic transmission. I am unpersuaded that, after the beginning of 1986, the plaintiff's injuries prevented him properly using a clutch although I accept, he probably experienced some nervousness about doing so. On balance, I do not consider the plaintiff is entitled to recover anything under this item.
Subscription to Theogenes Health Studio for balance of life expectancy of approximately 14 years.
As referred to earlier, the plaintiff gets relief from his symptoms by going to Theogenes Health Studio at least twice a week.
In view of Dr McIntyre's evidence, I consider that some allowance should be made for the cost of the plaintiff making these visits for the next 10 years of his agreed life expectancy of 14 years. It was agreed that the cost of a subscription to Theogenes Health Studios for the full period of 14 years was $2646.00 and I think it reasonable to allow the plaintiff $1800.00 for this item.
The total award of damages for the matters itemized above is $12,458.00.
The plaintiff's special damages, which have been paid by the Motor Accidents Insurance Board, were agreed in the sum of $18,478.30. In summary therefore, I assess the plaintiff's total damages as follows:–
Pain, suffering and the loss of the
amenities of life. $15,000.00
Diminution of earning capacity $43,000.00
The need for services in fact
provided by his wife $ 1,900.00
The need for services and goods
itemized above $12,458.00
Special damages $18,478.30
Total: $90,836.30
It was agreed that any judgment should be reduced by one third by reason of the plaintiff's contributory negligence so that, in the end result, there will be judgment for the plaintiff against the defendant for $60,557.54 This judgment has been satisfied to the extent of $18,478.30 by the payment of the special damages.
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