Carter v BOWYER - [2004] WADC 93

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CARTER -v- BOWYER [2004] WADC 93

CORAM: YEATS DCJ

HEARD: 23-27 FEBRUARY 2004

DELIVERED : 14 MAY 2004

FILE NO/S: CIV 1143 of 2003

BETWEEN: TERRENCE ERNEST CARTER
Plaintiff
AND
MICHAEL JOSEPH BOWYER
Defendant

Catchwords:

Motor vehicle accident - Assessment of damages - Comminuted fracture of right elbow - Degenerative condition Whether plaintiff retained any earning capacity - Plaintiff preaccident earning capacity - Total award of $572,261

Legislation:

Law Reform (Miscellaneous Provisions) Act 1944, s 55(1)

Motor Vehicle (Third Party Insurance) Act 1943, s 53C, s 53D

Result:

Judgment for the plaintiff in the amount of $572,261

Representation:

Counsel:

Plaintiff: Mr J G Staude
Defendant: Mr B J H Goetze

Solicitors:

Plaintiff: Maughan & Leach
Defendant: Minter Ellison

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

Giorginis v Kastrati & Anor (1989) A Tort Rep 80-233
Graham v Baker (1961) 106 CLR 340
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hendrie v Rusli [2000] WASCA 249
Husher v Husher (1999) 197 CLR 138
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Mallett v McMonagle [1970] AC 166
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Thomas v O'Shea (1989) A Tort Rep 80‑851
Van Gervan v Fenton (1992) 175 CLR 327
Wylde v Aristondo‑'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Ascic v Westel Cooperative Limited; unreported; FCt SCt of WA; Library No 920132; 11 March 1992
Bowen v Tutte (1990) A Tort Rep 81043
Gardner Brothers & Perrott (WA) Pty Ltd v Seat, unreported; FCt SCt of WA; Library No 7318; 13 October 1988
Hodges v Frost; Frost v Hodges (1984) A Tort Rep 80-303
Kars v Kars (1996) 187 CLR 354
Todorovic v Waller (1981) 150 CLR 402
Watts v Turpin [1999] WASCA 216

YEATS DCJ: The plaintiff claims damages for injuries he suffered in a motor vehicle accident on 14 September 2000. Liability is admitted. In assessing damages the principal issues in contention between the parties are:
1.Whether there is any retained earning capacity.
2.The plaintiff's pre‑accident earning capacity.
3.Non‑pecuniary loss.

History

The plaintiff is a highly qualified ceiling fixer born in England on 26 May 1955. He was 45 years old at the time of this accident and is now almost 49 years old. The plaintiff did not begin his working life as a ceiling fixer. From 1970 he trained as a turner and grinder and he worked at that trade in the United Kingdom and Germany until 1980 when he turned to the building trade. Initially he was employed in a range of work in the building trade. During that time he decided he liked ceiling work so he did an Artex course. Artex is a slow setting plaster which allows a ceiling fixer to pattern and decorate ceilings. From the end of 1988 the plaintiff started up his own business "Hi‑Tack Ceilings". He did his ceiling work on stilts. Exhibit 1 is a video showing his expertise as a ceiling fixer on stilts using Artex to decorate the ceilings. The video was made in the United Kingdom in the early 1990's.
In 1988 the plaintiff applied to come to Australia; he migrated to Perth in 1993. He had three tons of Artex, tools and columns shipped to Perth intending to set himself up in business here. He found that business was done differently in Australia so he initially did a three months small business course. To support himself the plaintiff went back to work in his previous trade as a turner and grinder and was employed in various engineering workshops until, at the end of 1997, he again returned to the building trade as a brickies labourer for eight months.
The plaintiff then worked for Mr Evans, a ceiling fixer, for about a year. He did further training in suspended ceilings. The plaintiff worked three or four days a week for Mr Evans earning $120 per day as a casual rate. On 2 February 2000 the plaintiff registered his business "Hi‑Tack Ceilings" and went into business on his own, advertising in local papers. He met David Nelson on a job during March 2000 and the two of them decided to start up a partnership as ceiling fixers commencing on 1 July 2000.
The plaintiff and Mr Nelson used the plaintiff's Econovan as the office for the partnership and kept their paperwork stacked in an Esky in the van. Through community newspapers they obtained ceiling work in private homes. They also worked for a builder on new homes. In September 2000 they worked for Big Ben Homes on a double storey house in Fremantle. They had worked three days on that job when the accident happened. Both the plaintiff and Mr Nelson were in the van on the way to work when the accident occurred. Both were seriously injured.

The accident

The accident took place at 7.20 am on 14 September 2000 as the plaintiff and Mr Nelson were driving on the Canning Highway through the lights at South Terrace on their way to work to the Big Ben Homes job in Fremantle. A utility turned into the path of their Econovan. Mr Nelson was driving. The plaintiff described the impact of the crash and how his side of the vehicle exploded outwards. He and Mr Nelson had to be cut from the wreckage of the Econovan. He was taken by ambulance to Royal Perth Hospital where he was under the care of Cameron B Thrum, an orthopaedic surgeon. Mr Thrum surgically treated the comminuted fracture of his right elbow. The plaintiff also fractured several teeth in the accident, suffered soft tissue damage to his right shoulder and soft tissue damage to his right foot and ankle. But the severe fracture of his right elbow has been his dominant injury. The elbow was so badly fractured that it could not be completely restored.

Treatment and recovery

The plaintiff was released from hospital after five days. His comminuted elbow fracture had been repaired with screws, K‑wires and tension bands. He had his right arm in a sling for six weeks with a cage around it. Following that his shoulder was frozen. He suffered considerable elbow, shoulder and ankle pain as well as pain from his fractured teeth.
As his right arm improved the plaintiff started doing some physiotherapy but found that did not help. Mr David Gill, orthopaedic surgeon, diagnosed post‑traumatic osteoarthritis of his right elbow and treated him with an arthroscopy, capular release and excision of osteophytes from the right elbow on 15 April 2003. The plaintiff experienced some immediate pain relief from the procedure but he developed further recurrent symptoms and did not make the advances Mr Gill had hoped for. Because of scarring he is unable to achieve full range of movement in his right elbow.
Mr Gill described the plaintiff's condition as degenerative – that his elbow will deteriorate until he needs a total elbow replacement. In the meantime Mr Gill anticipates he will require at least one further arthroscopy. Mr Gill advised that it is best to put off the total elbow replacement as long as possible. He will certainly need it in seven years.
The plaintiff has been left with a permanent right elbow disability with limited range of movement. He cannot fully extend his arm. Nor can he raise his arm above his head or put pressure on it. All experts concur that he is unable to ever return to his work as a ceiling fixer. His disability prevents him from doing a range of activities. He cannot use a whipper snipper because the vibrations are too painful. He cannot lift even light items repetitively without severe pain. He cannot hammer or push on a screwdriver or do any digging. At home he has managed to do the washing and he stands on a step‑up to reach the washing line to hang it out. He cannot do the ironing. He can drive using his left hand but any lengthy periods driving cause aching in his right arm to become worse and worse. He does manage to do most of the cooking at home but chopping vegetables irritates his elbow. He is unable to do any decorating, maintenance or gardening chores. He and his wife have exchanged roles in household duties. She now copes with the manual chores such as gardening while he does the cooking and laundry.

Does the plaintiff have any retained earning capacity?

The experts agree that the plaintiff is permanently incapacitated from doing any work as a ceiling fixer. The law in this area is clear:
"The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre‑accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings. … a defendant who seeks to show that the complainant can still do 'light work' or follow a 'sedentary' occupation must adduce evidence that the plaintiff is able to do such work and to obtain it and what the earnings from it would be."
Thomas v O'Shea (1989) A Tort Rep 80‑851 per Malcolm CJ and Wallace J at 68,701.
The defendant suggests that the onus of proof has not shifted. The defendant concedes that the plaintiff has lost his pre‑accident earning capacity but contends that the plaintiff has not shown that he has been unable to find alternative employment. The defendant contends that the plaintiff has not made his best endeavours to find alternative employment. The defendant relies particularly on the plaintiff's failure to return to the Commonwealth Rehabilitation Service after his arthroscopy on his right elbow in 2003 and that the plaintiff's efforts to find employment have so far not been extensive enough for the burden of proof to shift to the defendant.
The plaintiff impressed me as a man who genuinely wants to recover and wants to return to the workforce. He retains a very positive attitude considering the pain that he endures. His evidence showed his willingness to have a go at any employment opportunity or possibility that was brought to his attention. Through the CRS he was assessed in December 2002 by an occupational therapist (Exhibit 9) to determine whether he could work as a driving instructor. His driving skills were adequate but because of his impaired right upper limb he would not have been able to take control of the vehicle in an emergency situation as is occasionally required on the part of a driving instructor. So such a job would not be suitable for him.
There was a dispute between the experts on whether he could work on a minesite as a Haulpak driver. Dr Andrew Marsden, specialist in occupational medicine, gave evidence the plaintiff could do such work despite his impaired right upper limb. Dr Marsden said he regularly attends minesites. In his opinion driving a Haulpak involves mere fingertip control. As far as climbing up onto the Haulpak is concerned, Dr Marsden said that they had electronic staircases that dropped down and only required a two point holding for safe ascent and descent. Dr Marsden said he had placed a disabled man with "uncanny similarity" to the plaintiff driving a Haulpak at a minesite with no problems. Under cross‑examination, however, Dr Marsden admitted that the other disabled man had 20 years' experience driving trucks prior to his injury and was taken back by his employer. In the case of this plaintiff with no experience driving trucks or working on a minesite, Dr Marsden conceded the plaintiff will have definite trouble being competitive in the workforce.
Dr Michael Beinart, a specialist in occupational medicine, disagreed with Dr Marsden about the plaintiff's capacity to work as a Haulpak driver. Dr Beinart said the plaintiff would have to have three point contact ‑ two hands and a foot – to get onto the rungs of the ladder on the Haulpak. He would also need to adduct his right shoulder above 90 degrees which, in Dr Beinart's assessment, the plaintiff is not able to do.
Anthony Ellis from Westrain, whose business is training people who want to work in the mining industry, was approached by the plaintiff who was trying to gain employment in the mining industry following Dr Marsden's suggestion. The plaintiff visited Mr Ellis to be assessed for training. Mr Ellis said in evidence that it was immediately obvious to him that the plaintiff could not work on machinery in the mining industry. He could not climb up on to the trucks. Mr Ellis said he had worked for years in the mining industry and he had never seen any ladder that would lift the worker right up to the catwalk. In Mr Ellis' opinion the mining industry would not even contemplate taking the plaintiff on with his disabled upper right limb.
The preponderance of evidence satisfies me on the balance of probabilities that the plaintiff's disability makes him unfit for work driving a Haulpak on a minesite.
There was also some dispute in the evidence about the plaintiff's capacity to work as a courier. Dr Chris Hammersley, a consultant occupational physician, initially assessed the plaintiff as having some retained work capacity at the lighter end of the courier market, and said he may be able to work as a health care courier. But Dr Hammersley did not stand by that opinion in his evidence at trial. Dr Hammersley did not consider the plaintiff would be competitive for such work. He would have problems with timeliness and not being able to have two hands on the wheel would pose a safety issue for an employer. Although technically he might be capable of driving and handling light parcels (5 kilograms or less), Dr Hammersley did not believe the plaintiff was an employment prospect as a light courier.
Dr Beinart said that health care couriers at his surgery have to carry parcels heavier than 5 kilograms. Dr John Ker, consultant in rehabilitation medicine, considered that even light courier work would be difficult for the plaintiff because of the pain he experienced with repetitive tasks such as steering a motor vehicle.
Denis O'Keefe, a rehabilitation counsellor, conceded that it was possible the plaintiff could do light courier work but said he may have difficulty in repetitively handling parcels. Mr O'Keefe went on to say that in his experience couriers work in a self‑employment situation and do not get to pick and choose what articles they handle. Couriers tend to work flat‑out for long hours to make a decent living. Mr O'Keefe believed the plaintiff could have difficulties with courier work.
The plaintiff applied and participated in two interviews for courier jobs. He said he was asked how much he could lift and was told he could not do those jobs. In his evidence Conrad Linder, the manager of Courier Australia, said his agency had written to the plaintiff telling him he was not suitable for urgent courier work because of the limitations on lifting. But in his evidence Mr Linder said there was some courier work doing set runs for banks which involved picking up cheques in parcels of 2 kilograms. Mr Linder believed the plaintiff was suitable for that courier job despite his disability. It is apparent, however, from Mr Linder's evidence under cross‑examination that a courier must work a full day and needs to do a large number of runs for the banks to make any sort of a living.
I am satisfied, taking account of all of the evidence, that a courier's job, even a set run with light parcels, is not a realistic prospect for this plaintiff who must work and drive using virtually one arm. There are safety matters that could be a problem for him. Repetitive driving and steering could cause him pain and repetitive lifting could cause him pain. I do not believe that he could work "flat‑out" as this sort of job requires.
A good deal of cross‑examination focused on the plaintiff's capacity to work as an estimator for other ceiling fixers relying on his experience in that field. It was suggested he could go out and give quotes on ceiling jobs. Overall I found this line of cross‑examination unhelpful. The plaintiff may well be able physically to do such work, and he would be eager to take it up if such a job were available. But that seems to me to be the problem. There is no evidence such jobs exist. The people who want ceiling work done, people like renovators and private customers generally want to meet the person who will do the job as Dr Hammersley said and would not want to have "some bloke with a gimpy arm turning up" to give them a quote. It is also clear the plaintiff does not have the skills to be an estimator for a large firm of builders. Such work requires computer skills and clerical skills that he simply does not have. For these reasons I am satisfied on the whole of this evidence that there is no employment reasonably available for the plaintiff in this field.
In cross‑examination many menial jobs were suggested to the plaintiff, often jobs of the kind usually done by teenagers in part‑time work such as pizza delivery jobs. I agree with counsel for the plaintiff that suggesting that kind of work for a 48‑year‑old man is simply inappropriate. For these reasons I do not accept the defendant's submissions. I am satisfied the plaintiff has genuinely sought any work he thought he could do. There was ample evidence of that during the trial.
The plaintiff has attended the Commonwealth Rehabilitation Service and has undergone vocational assessment but his injury and pain levels precluded him from taking any jobs considered suitable. In March of 2003 CRS closed his vocational rehabilitation file "as it is unlikely that Mr Carter would obtain substantial gain from continuing with a vocational programme" (Exhibit 8). Since then the plaintiff has had an arthroscopy on his elbow and his knee (the knee is not accident related). But he remained at the time of trial with ongoing elbow pain and the prospect of continuing deterioration in the elbow.
Mr O'Keefe from Denis O'Keefe & Associates said this in his report on the plaintiff's capacity to obtain employment (Exhibit 6):
"Mr Carter presented in an honest and forthright manner and there was no question of exaggeration of his situation nor did he adopt a pessimistic outlook. There may well be in theory a number of jobs that Mr Carter could apply for, however I feel there would be no job where he would be a competitive applicant, due to his physical condition, his lack of transferable skills and his educational limitation. In this regard it should be stressed that when Mr Carter attended school in England, students were assessed into one of two streams depending upon the examination called the '11 plus' which streamed students into either a grammar school for those who are relatively intellectually gifted, or to a 'lower stream', a comprehensive school, for those who were less intellectually gifted. Mr Carter was in the latter category.
I feel that Mr Carter's only hope of future employment may be with a benevolent employer who is willing to accommodate his physical and skill limitations. He also would have difficulty when competing for employment as most employers require prospective employees to fill out a form stating the applicant has been subject to any prior injuries. Given the increased litigiousness in society generally, I feel that any prospective employee, who completes this form and states previous injuries suffered to the extent of Mr Carter's injuries, would automatically not be considered by the prospective employer as there would be the perception from the prospective employer that there may be increased risk for future workers compensation claims or similar actions. Although it is difficult to suggest that this is happening, as discrimination on the grounds of physical status in itself is not permitted, it has been my experience in discussing these matters with various employers, that this practice is common. Hence, given your client's current physical and vocational status, I feel that he is not competitive on the open employment market."

I entirely concur with Mr O'Keefe's assessment. It is not simply a question of bare physical capacity to theoretically undertake the physical requirements of a job. An earning capacity depends on an ability to compete on the open market for employment. I am satisfied the plaintiff's injuries to his right elbow preclude him from that.
In these circumstances I am satisfied the plaintiff lost his pre‑accident earning capacity and has been unable to find alternative employment. The defendant has not satisfied me that alternative employment opportunities are realistically open to Mr Carter. For these reasons I am satisfied the plaintiff has no retained earning capacity.

Findings on credibility

The plaintiff impressed me as a truthful witness who has done his best to recover from his injuries and has retained a positive outlook despite considerable pain and difficulty. I accept that he is genuine in his efforts to return to the workforce. Overall I found the plaintiff to be a truthful and credible witness.
There was one aspect of the evidence of David Nelson, the plaintiff's former partner, that I found to be unreliable. Mr Nelson's tax returns for fiscal years ending 1997, 1998, 1999 and 2000 were tendered as Exhibit 7. In FY 1997 and 1998 working full‑time as a ceiling fixer, Mr Nelson filed returns showing net earnings of $28,011 and $21,804. Yet his tax returns for FY 1999 and 2000 showed net earnings of $70,623 and $69,698. There was no change in Mr Nelson's work which could explain the double earnings in those two later years. Under cross‑examination Mr Nelson admitted he lodged the 1999 and 2000 returns on the same day in May 2001 at a time well after the accident. I do not accept that those 1999 and 2000 returns truly represent Mr Nelson's earnings during those years. I do not accept his evidence about that.

Past loss of earning capacity

In Australia a plaintiff is compensated for loss of earning capacity, not loss of earnings. An injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss (Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 16; Graham v Baker (1961) 106 CLR 340 at 347). Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value (Medlin's case at 16). It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he would have been in if injury had not been sustained (Husher v Husher (1999) 197 CLR 138 at 143).
The plaintiff's net earnings prior to the accident before he went into the partnership with Mr Nelson can be found in his tax returns Exhibit 3. His net weekly income was as follows:
FY 1996$526
FY 1997$468
FY 1998$453
FY 1999$273
FY 2000$306
The plaintiff worked for 10 weeks in FY 2001 before the accident ended his employment. His tax return for that period indicates that during those 10 weeks he had net earnings of $528 per week. The plaintiff gave evidence, however, that he thought he was earning in the order of $900 per week during that short period. The only explanation the plaintiff and his wife have for the discrepancy is that all of their paperwork for the business was in an Esky in the Econovan at the time of the accident. Papers were soaked in plaster and water and were unsalvageable. In particular the partnership's cash receipt book was not recovered.
The plaintiff gave evidence that he and Mr Nelson planned to earn $1,000 per week each in the partnership and that they quoted on that basis. The plaintiff also relied on evidence of previous employers such as Mr Benjamin Heah of Big Ben Homes who said he was paying the plaintiff $35 per hour including GST (although he now pays $35 plus GST). It is submitted on behalf of the plaintiff that even at $30 per hour the plaintiff would earn $240 per day gross. Thomas Lydon, the managing director of Lydon Constructions, said he paid ceiling fixers $250 to $300 gross per day. From that they had to pay the normal business overheads. Wayne McGrath, the managing director of McGrath Homes, said ceiling fixers were in heavy demand and could gross $450 to $500 per day.
The plaintiff submits that as the plaintiff and Mr Nelson were just starting out in business at the time of the accident and as there has been no shortage of work in the building industry in the meantime that the Court cannot simply look at historical records but should find that the plaintiff would have been earning $1,200 gross per week within a short time on which net earnings of $871 per week are calculated.
Though damages are claimed for loss of earning capacity the plaintiff must prove the extent of this pre‑accident earning capacity. If records are lost or destroyed the plaintiff must seek evidence from other sources to fill in the gaps (Giorginis v Kastrati & Anor (1989) A Tort Rep 80-233 per von Doussa J at p 68, 464). That has not been done in this case.
I accept that all of the evidence shows that the plaintiff and Mr Nelson were good tradesmen. I accept they would have been in full employment as ceiling fixers. But I do not accept the plaintiff's method of calculating his net earnings. I accept the defendant's careful calculations based on the plaintiff's fiscal year 2001 tax return (Exhibit 3, p 21) and the profit and loss statement for the partnership (Exhibit 3, p 26). This careful, and what I consider more sound basis of calculation, leads to a finding of the plaintiff's net weekly income of $683.79. The defendant in its calculations has taken proper account of business overheads.
The period of past weekly earnings from 14 September 2000 to 14 May 2004 is 191 weeks so that the loss to date equals $130,603.89 less $74,000 previously advanced equals $56,603.89. Interest at 6 per cent per annum equals $6,367.94.

Future loss of earning capacity

While the past may provide important evidence about the plaintiff's future earning capacity I accept that there can be occasions or reasons why his past work history provides no assistance. That can be the case where a person is young and still at school when injured for example. That being so, important as evidence of past events may be, that evidence is not always determinative of an issue about loss of future earning capacity (Husher's case at 143). In this case, however, it seems to me that the amount of $683.79 net per week is quite generous when compared with the plaintiff's actual net earnings prior to the accident. I am satisfied that he will be properly compensated if I retain that same figure when assessing future loss of earning capacity.
The plaintiff was born on 26 May 1955 and is nearly 49 years old. Working on stilts as a ceiling fixer is very physical work. Despite the plaintiff's excellent work ethic I doubt he would have continued in full‑time employment as a ceiling fixer after age 65. That is a period of 17 years, the multiplier is 563 and the calculation $683.79 x 563 = $384,973.77.
I am prepared to reduce that by 5 per cent to allow for the ordinary vicissitudes of life. Despite the plaintiff's positive outlook and his genuine interest in finding alternative employment I am not minded to allow any further reduction for any theoretical retained earning capacity. Therefore I assess compensation for future loss of earning capacity at $365,725.

Future medical expenses

Mr David Gill, orthopaedic surgeon, performed an arthroscopy, capsular release and excision of osteophytes from the plaintiff's right elbow on 15 April 2003. But the plaintiff's elbow did not make the advances in extension Mr Gill hoped for and another arthroscopy is needed within a year. Mr Gill expects the plaintiff will require arthroplasty (total elbow replacement) within seven years. It is possible the plaintiff will require a second arthroscopy before the total elbow replacement. The initial elbow replacement should last for about 10 years. Then the plaintiff will need another arthroplasty.
Mr Cameron Thrum, orthopaedic surgeon, called by the defendant, gave evidence that he had no trouble accepting Mr Gill's prognosis for the plaintiff.
In looking to the plaintiff's future medical expenses the assessment of damages depends on my view as to what will happen in the future. I must make an estimate of what are the chances that a particular event will happen and reflect those chances in the damages award (Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 640: Mallett v McMonagle [1970] AC 166 at 176).
In this case I accept the evidence of both orthopaedic surgeons that there is no question the plaintiff will require an arthroscopy within a year and it is certain the plaintiff will require a total elbow replacement in about seven years. On the evidence I consider only 50/50 that the plaintiff will require a second arthroscopy within seven years. It seems about 90 per cent certain that after a further 10 years the plaintiff will require a second total elbow replacement.
I accept the plaintiff's figures based on Mr Gill's evidence of the cost of these various procedures and I discount each amount at the prescribed rate of 6 per cent as required by s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1944. For these surgical procedures I allow:
$4,529 for the first arthroscopy
$1,901.50 for the second arthroscopy in three years (50 per cent chance)
$8,475 for arthroplasty in seven years
$4,258.80 for 90 per cent chance of a second arthroplasty in 17 years.
Total:$19,164.30.
Along with these costs for surgical procedures the plaintiff will incur other expenses such as visits to his general practitioner and x‑rays. I allow $10,000 to cover those expenses. The parties have agreed that I award $1,000 for future medications and $1,000 for future travelling expenses. Total future medical expenses are therefore assessed in the amount of $31,164.30.

Past and future gratuitous services

Since Griffiths v Kerkemeyer (1977) 139 CLR 161 injured plaintiffs have been entitled to recover damages with respect to care or services provided gratuitously. The real loss for which damages are awarded is the loss which gives rise to the need for care and services. Compensation for that need must be calculated by reference to the value of the services concerned (Van Gervan v Fenton (1992) 175 CLR 327 per Gaudron J at 347. In this case the plaintiff's loss of the use of his right arm as a result of injuries he received in the motor vehicle accident has given rise to his need for services and assistance provided gratuitously by his wife.
The plaintiff's wife had to do everything for her husband during the first six to eight weeks after he left hospital following the motor vehicle accident. She assisted him with showering, dressing and, besides doing all the cooking and gardening, she had to cut up his food to enable him to eat. When the wires were removed from his elbow he was again unable to do anything for himself for a month and his wife again did it all. That happened again in 2003 when the plaintiff had his arthroscopy but he was only dependent on his wife for a week or so after that procedure. For past gratuitous services the plaintiff claims 10 weeks at two hours per day at $15 per hour totalling $2,100. An allowance for interest of $63 would bring that figure to $2,163.
Since his motor vehicle accident the plaintiff and his wife have reversed their household roles. She now does the physical labour in the garden and the ironing while the plaintiff does the cooking and the laundry. That exchange of roles does not in my opinion give rise to a compensable loss so far as the plaintiff is concerned. In exchange for his cooking and laundry he is receiving ironing and gardening services. No award should be made.
In the future, because of the many surgical procedures necessary for his elbow, the plaintiff will again be entirely dependent on his wife for a week or so after each possible arthroscopy. I have received no evidence of the amount of time the plaintiff will require services of care from his wife when he undergoes total elbow replacement in seven years and when he probably will require a further elbow replacement in 17 years.
The plaintiff asked me to allow a further $5,000 for this future care, noting that with a life expectancy of 31 years (multiplier 748) this represents less than $7 per week. The difficulty with that submission is that the plaintiff does not require regular care from his wife. Care will only be occasional when the plaintiff undergoes surgery. $7 per week over 31 years is too high a figure in my opinion.
Ten days care at $30 per day after each arthroscopy equals $300. But the second arthroscopy must be discounted by 50 per cent equals $150 and discounted on the 6 per cent table for three years (.840) equals $126.
Six weeks care after each total elbow replacement (42 days x $30) equals $1,260 discounted on the 6 per cent table for seven years (.665) equals $837.90. For the second elbow replacement the $1,260 must be discounted by 10 per cent equals $1,134 and discounted on the 6 per cent table for 17 years (.371) equals $420.71. Calculated in this way, total future gratuitous services to be provided by the plaintiff's wife amounts to $1,684.61.
Section 3D of the Motor Vehicle (Third Party Insurance) Act 1943 limits the damages that can be awarded for the value of gratuitous services of a domestic nature provided by a member of the same household. If the amount of damages that may be awarded is $5,000 or less then no damages for such gratuitous services can be awarded. In this case, past and future gratuitous services provided by the plaintiff's wife amounts to only $3,847.61. The plaintiff's claim does not exceed the threshold and no damages can be awarded for gratuitous services.
There was evidence of the plaintiff's need to hire workmen for home decoration and maintenance on his home and his rental property. These are jobs he would normally have undertaken himself and his injury now prevents him from doing so. These jobs fall outside the lawnmowing and gardening which his wife undertakes in exchange for him undertaking cooking and laundry chores. I accept the plaintiff's submission that it would be reasonable to allow one eight hour day per month at $15 per hour for 25 years (687). I allow $19,025 for the plaintiff's need of employing people to provide household maintenance services.

Non‑pecuniary loss

During the motor vehicle accident the plaintiff suffered injuries to his teeth, his right shoulder, his right foot and ankle, as well as to his right elbow. His dental injuries were serious in themselves. The upper left lateral incisor was fractured exposing the nerve. Two other central incisors were fractured. In order to treat him it was necessary to extract a tooth, crown the fractured teeth, and insert a bridge which involved six teeth.
While the plaintiff suffered only soft tissue injuries to his right shoulder those have proved to be serious and to interact with the problems with his right elbow. I note that he did suffer the pain of a frozen shoulder and had to undergo the pain of therapy to restore movement after his initial repair of his elbow.
Fortunately the plaintiff has recovered from his foot and ankle injuries but I accept that they were both painful and disabling.
It is the plaintiff's severe right elbow injury that has caused him the greatest pain and now disabled him. He has undergone very painful surgery and will continue to undergo surgery in one, maybe three, seven and 17 years. The development of post‑traumatic osteoarthritis in his right elbow with all of the pain that causes and will cause the plaintiff and his prognosis of progressive degeneration in that elbow undoubtedly leading to further pain are matters that must be taken into account in considering the award for general damages.
The plaintiff is a positive person and presents a positive image but it was apparent during his evidence at trial that he suffers ongoing elbow pain. Even now, more than 3½ years after his injury, the plaintiff regularly must wear protection on the elbow to safeguard himself from the excruciating pain he experiences if he accidentally bumps it.
The plaintiff's injuries have affected every aspect of his life. He had previously played "A" Grade darts in Western Australia at the Sandringham Hotel three nights a week from 7.45 pm to 10.00 pm. Now he plays what he calls "F" Grade darts. He loves playing the game but just cannot do it anymore. His dart playing was a substantial part of his life and his enjoyment of life and it has been taken from him.
I also accept that in his case the loss of his trade as a ceiling fixer results in non‑pecuniary as well as economic loss. He clearly enjoyed his Artex work, he enjoyed working. It was obviously creative and satisfying to him. As a result of his injuries in the motor vehicle accident he has lost the enjoyment and fulfilment of his work.
Section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 requires that I award damages for non‑pecuniary loss determined according to the severity of that loss as a proportion of the maximum amount, presently $249,000 (Hendrie v Rusli [2000] WASCA 249 per Murray J at par 18: Wylde v Aristondo‑'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997, per Franklin J).
In this case it is my opinion that the nature and extent of the injuries suffered by the plaintiff, the extensive pain and suffering he has gone through and his continuing pain and suffering together with the other matters I have discussed above, are such as to fall into the middle of the third quartile as a proportion of the most serious case. That would be 37.5 per cent of a most extreme case and I award damages for non‑pecuniary loss of $93,375.

Summary of damages award

Past loss of earning capacity  $ 56,604.00
Interest at 6 per cent  $    6,368.00
Future loss of earning capacity  $365,725.00
Future medical expenses  $ 31,164.00
Household maintenance services                   $ 19,025.00
Non‑pecuniary loss  $ 93,375.00
Total award  $572,261.00