Claybrook v Robertson - [2002] WADC 172

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CLAYBROOK -v- ROBERTSON [2002] WADC 172

CORAM: MACKNAY DCJ

HEARD: 30 & 31 JULY 2002

DELIVERED : 9 AUGUST 2002

FILE NO/S: CIV 110 of 2001

BETWEEN: GLENN JOHN CLAYBROOK
Plaintiff
AND
WILLIAM SCOTT ROBERTSON
Defendant

Catchwords:

Damage - Assessment - Plaintiff 42 year old labourer at time of accident - Multiple soft tissue injuries, and injury to left knee - Total award of damages $154,071

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 3C

Result:

Plaintiff entitled to judgment for $154,071

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: Simon Walters
Defendant: Talbot & Olivier

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

Kandic v Kandic, unreported; DCt of WA; Library No 5208; 20 December 1996
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Purkess v Crittenden (1965) 114 CLR 164

Case(s) also cited:

Nil

MACKNAY DCJ:

Introduction

The plaintiff is aged 46 years, having been born on 6 February 1956.
On 30 May 1998 the plaintiff was the rider of a motorcycle which was involved in a collision with a motor vehicle then being driven by the defendant.
The plaintiff alleges that the accident was caused by the negligence of the defendant and that as a consequence of it he sustained soft tissue injuries to the lumbar spine, left shoulder and both knees, lacerations to both knees, torn ligaments in the left knee, and abrasions to the left hand and elbow, and claims damages.
The defendant admits that he was negligent but denies that the plaintiff was injured or is entitled to damages as claimed or at all.
Notwithstanding that denial the defendant then pleads that the plaintiff's claimed injuries and loss "were contributed to by injuries which the plaintiff sustained to his left knee in a motorcycle accident".

Plaintiff

The plaintiff was brought up in Perth and attended school until the end of Year 10, achieving his Junior certificate, he said.
He then commenced an apprenticeship in auto electrics and worked in that field for four of the necessary five years, the plaintiff said, the last part of it in Darwin.
The plaintiff said that he then left that field so as to work as a labourer in the building industry in Darwin, there being plentiful work of that kind after cyclone Tracy.
He said that he then went down to Wyndham and worked on extensions to the jetty there, prior to returning to Perth for a period so as to assist his mother with a milk round.
The plaintiff said that he then went to Broome where he was engaged in various jobs involving exploration.
In 1981 the plaintiff said that the motorcycle he was riding struck a kerb after he had swerved to avoid a pedestrian, and as a result he injured his left knee which resulted in the knee being placed in a cast for about four months, a curette being carried out on the knee in Derby and the plaintiff travelling to Perth so as to receive treatment including physiotherapy, at the Shenton Park rehabilitation centre.
The plaintiff said that he then returned to Broome where he was again engaged in exploration work, and in particular seismic work.
Although he initially had trouble with the knee the plaintiff said that it eventually "came good" and he did not have any need for treatment or medication.
Apart from the exploration work the plaintiff said that at that time during the wet season he would obtain employment of the trades assistant kind in town and that work done by him at various times included work as a truck driver, machinery operator, and labourer, whilst he had "tickets" for work on a forklift, heavy truck and front end loader.
The plaintiff said that in 1990 he obtained employment with Paspaley Pearls Ltd on a pearl farm as a shell cleaner, and remained in that employment until 1995, during which period he obtained a "skipper's" ticket for vessels up to 11 metres in length, so that the work in which he was engaged changed to operation of a vessel, with a crew under him, carrying out maintenance, the repositioning of anchors and lines and the cleaning of shells.
At about that time TAFE initiated an aquaculture course, the plaintiff said, so that he decided to take a year off and attend that, duly undertaking a one year introductory course and obtaining the relevant certificate, and achieving good marks in the course of it.
Following the completion of the course the plaintiff said that he travelled to Thailand to attend seminars in aquaculture for a few weeks, and on his return to the north, and towards the end of 1996, obtained temporary work at a barramundi farm at Lake Argyle, where he remained for a few weeks.
The plaintiff said there was at that time a shortage of work in Broome so that he then returned to Perth, where a friend had acquired a business which involved the fabrication and erection of sound proofing, known as Coote Industrial Acoustics.
The plaintiff agreed that he could have been unemployed for lengthy periods during this period, and the taxation returns tendered on his behalf to reveal following the completion of the plaintiff's aquaculture course at the end of 1995, the only work carried out by him in the following two years was that at Lake Argyle and some apparently short term work with Coote in the middle of 1997.
The plaintiff said that the work with Coote involved work on specific contracts and that he was involved with two such contracts but was not able to work on a third.
The reason for that was, the plaintiff said, that on 30 May 1998 he was riding a motorcycle when another motor vehicle pulled out in front of him so as to cause a collision, following which the plaintiff fell on to the road and injured his left knee again, being immediately aware that had occurred.
Following the accident the plaintiff said that he was taken by ambulance to Fremantle Hospital, where his left knee was strapped and he was given a knee cast.
Other injuries suffered by him included, the plaintiff said, a sore shoulder and scratches and abrasions.
In the aftermath of the accident the plaintiff went out on some jobs with Coote but was not able to work, he said, and required "quite a bit" of physiotherapy, including treatment of that kind in Broome after his return there, the plaintiff undergoing constant physiotherapy as he had a need to return to work.
The plaintiff then obtained, he said, employment with Hampton Transport in Broome as a truck driver on a casual basis.
That work involved, the plaintiff said, making deliveries around town whilst driving a 3 tonne truck.
The plaintiff said that the work seemed to suit him but he still had pain in his left knee once or twice per week, particularly brought on by standing, and as a result saw an orthopaedic surgeon, Mr M Tiller, who advised him to have an arthroscopy.
The plaintiff said that he informed his employer that he was to have a knee operation and was told that there was "no more work" for him, the employment then coming to an end on 15 August 1999.
Two days later the plaintiff underwent the arthroscopy of the left knee, which he said required him to weight bear on crutches for about six weeks, whilst he also suffered significant pain after the operation, with the knee swollen and a need to wear a pressure bandage, and a relationship in which he was then engaged breaking down.
Although he would not at the time have been able to carry out the necessary work the plaintiff said that he went back to see Hampton Transport "to see what the position was", but was unable to obtain his job back.
He did not otherwise seek work because he would not have been able to carry it out at that time, the plaintiff said, but he eventually did obtain part‑time casual work, with B & J Building Pty Ltd, as a storeman, on 15 November 1999.
The plaintiff said that he was not then able to carry out full‑time work, was not able to do lifting and simply did what he could, having sought out lighter work.
The plaintiff said that he left that employment and worked as an assistant to a cabinet maker for about two months, whilst a job lasted, during which time his knee was in constant pain, and became swollen and he was unable to put weight on it.
In May 2000 the plaintiff said that he then gained employment with WA Country Bakers in Broome as a general hand, his work involving the loading of bread on trays, but his knee continued to swell so that he left that employment.
At various times between August 2000 and April 2001 the plaintiff said that he then did work for Mermaid Marine vessel operations, the University of Notre Dame in Broome, and Grace Brothers, the latter involving the moving of furniture which he should not have "tackled" as to do so was "ridiculous", given his left knee.
The work with Mermaid Marine had involved the plaintiff operating a forklift and checking things in and out, he said, whilst that with the University was as a yardman.
The plaintiff said that in May 2001 he then commenced employment with Walcott Auto Repairs in Broome on a full‑time basis as a trades assistant, that employment being ongoing.
The work with Walcott was still "light duties", the plaintiff said, but involved some mechanical work and he had learned some skills as a result.
The plaintiff has attended Dr Harpreet Singh in Broome.
He said that as a result of his left knee many activities in which he had previously engaged were now difficult, including fishing, surfing, riding trail bikes, camping and dancing, and he also felt a need to rest at weekends rather than to engage in activity.
The plaintiff said that his knee was "not bad" at present, there being swelling and pain about once every fortnight, whilst he also felt his right knee as he tended to keep weight off his left knee.
The plaintiff did take medication but tried to avoid it as he had experienced an ulcer in the past from that medication, he said.
In recent months the plaintiff said that he had been working with a personal trainer and as a result his knee was becoming stronger and he was now able to do things that he had not been able to do 12 months ago.
He now wanted employment that he was both capable of and that would not stress the knee, the plaintiff said, and in relation to a return to aquaculture he said that he would have trouble working on a boat, particularly in rough weather, whilst he would not be able to drive a truck with a heavy clutch.
The plaintiff said that he probably could have carried out the work at Hampton Transport after his recovery from the arthroscopy, had the work been available, and that he had been able to operate a forklift, which did not have a clutch.
The plaintiff further said that he wished to retrain so as to do an easier job, and work in aquaculture on the "hatchery side" was one possibility, there being a three year diploma course, but although that would pay better than the wage he had received with Hampton Transport there was not a lot of work on offer.
The plaintiff said that he felt he needed some direction as to what he should do.
He intended, he said, to put off the need for a further arthroscopy for as long as he could and it was for that reason that he had engaged a personal trainer and had commenced to attend a gymnasium six months ago.

Medical

Mr Tiller said in a report of October 1999 that he had carried out:
"… an Arthroscopy Assessment on his left knee at St John of God Hospital, Subiaco on the 17^th August, 1999 finding at times evidence of attenuation of his anterior cruciate ligament and the presence of a large bony eminence involving the anterior aspect of the tibial plateau in the midline. It was also noted that he had damage to the anterior horn of the left medial meniscus, which is a little unusual. I did take the opportunity at the time to carry out Partial Medial and Lateral Meniscectomies to repair damage present in his knee and also took the opportunity to burr some of the bone mass present to diminish its volume."
In evidence he said:
"… I thought that from what I saw in his arthroscopy that his anterior cruciate ligament had been stretched and force had been placed on that and that he probably damaged the menisci as well and there's where I felt was the main damage seen at the time and with that we had some minor degenerative changes in the knee."
Mr Tiller said that the potential for a knee joint that had been damaged was that with the passage of time if the damage involved some of the bearing structures then there was a high chance of such going on to osteoarthritic change, but in the plaintiff's case he could not see any need for a knee replacement in the near future, although there was a possibility of that when the plaintiff was much older.
The plaintiff's gymnasium work would make the knee more comfortable, but would not make it physically any better, Mr Tiller said.
The plaintiff would need further arthroscopic debridement of the knee from time to time, Mr Tiller said, that amounting to a washing out of debris in the knee and a general tidy up.
Arthroscopy had a limited utility in that after it was done a number of times positive results were not obtained, Mr Tiller said, and then it was necessary to look for something more substantial.
Further in relation to the question of degeneration, in cross‑examination Mr Tiller was asked:
"Mr Tiller, we know that Mr Claybrook has had two injuries to his knee. One in 1981 and this more recent one in 1998. In your last report of 7 June you talk about the potential for future degeneration in the left knee. Are you able to say whether or not the degeneration was causative or caused by the injury sustained in the first or the second accident?---I think a large amount of the degenerate changes will be the second accident where I have the impression from seeing his anterior cruciate ligament that it was now attenuated. An attenuated cruciate allows the knee to be more unstable and the more unstable it is the more it can become damaged and also when you do injure an anterior cruciate ligament you get a fair amount of bone bruising or changes underneath the bearing which in the past we've never appreciated although we thought something went on. Now with an MRI we can actually see the changes. So I would suggest that the second injury will produce ongoing changes in his knee."
Mr Tiller also said that the plaintiff had some residual disability from the 1981 accident, and may have damaged his anterior cruciate then as well, but "not a great deal of change had occurred" over the intervening 20 years, although there was still potential for change.
In regard to the plaintiff's work capacity Mr Tiller stated in his report of May 2002 that he thought that would remain although he would be restricted to more sedentary forms of employment, such as the present employment, with a restriction on heavy lifting.
The plaintiff's future work capacity had been compromised as the plaintiff had not been able to fully straighten his left knee, whilst there was no doubt that he was developing degenerative changes which would become progressive, Mr Tiller said.
The plaintiff would have difficulty with heavy labouring and certainly with squatting, but "otherwise as he is presently occupied, can cope with forms of employment such as a mechanic without excessive lifting", Mr Tiller said.
Mr Tiller stated that he would suggest that the plaintiff had a permanent residual disability as a result of the 1998 accident in the region of 10 per cent dysfunction of the left lower limb above the knee, and he would classify the plaintiff's injuries as being moderate in severity.
As to future treatment, Mr Tiller stated that the plaintiff may require intermittent review by his general practitioner or an orthopaedic surgeon, and such would probably be associated with times when there was an exacerbation of symptoms, at which times the plaintiff would probably require the use of analgesic and anti‑inflammatory medication for periods of 2/3 weeks.
The plaintiff would possibly need to see an orthopaedic surgeon on a yearly basis, Mr Tiller said.
Arthroscopic assessment or debridement of the plaintiff's knee would possibly be necessary once every four to five years, Mr Tiller said.
Dr Singh did not give evidence but a number of his reports were admitted by consent, as was a report of Dr M Murray, a colleague of his, and reports from Kimberley Physiotherapy and the Fremantle Hospital and Health Service.
In the last it was reported:
"(The plaintiff) attended the Emergency Department at 1448 hours on 30 May, 1998 following an alleged motor cycle accident. He was complaining of a painful left shoulder, lower back, and knees. There was no reported loss of consciousness.
On examination (the plaintiff) was alert and orientated. Vital signs were normal. No abnormality was detected on examination of the head, central nervous system, chest, left shoulder and arm, abdomen, back or hips. There was as full range of neck movement. (The plaintiff) had sustained an abrasion to his left elbow, and a superficial abrasion to the volar aspect of his left hand. Examination of the right knee revealed a superficial abrasion medially, but a full range of movement and no instability. Examination of the left knee revealed tenderness, a puncture wound, a superficial abrasion, and mild effusion."
The author of the report further stated that following x‑ray the plaintiff was given pain relief, the abrasions to his left elbow and right knee were cleaned and dressed, the medial left puncture wound was explored under local anaesthetic which revealed medial tissue degloving but no capsule perforation, a splint was applied and the plaintiff was discharged home.
The plaintiff was subsequently reviewed in the orthopaedic outpatient clinic, it was also reported.
Dr Singh stated in his last report of July 2002 that the plaintiff had been seen on four occasions over the last 12 or so months, and in the doctor's view would require four visits a year to a general practitioner in the future, together with occasional medication and intermittent physiotherapy, which the doctor estimated at probably $30 to $100 per month depending on the plaintiff's symptoms.

Damage

I accept the evidence of the plaintiff, as counsel for the defendant in effect invited me to do, in closing.
I would also rely on the evidence and views of Mr Tiller, an experienced orthopaedic surgeon, and the plaintiff's treating doctor in relation to his left knee, whose evidence was consistent with that of the plaintiff, not disturbed in cross‑examination, and in the absence of any suggestion that I ought not do so.
As appears above, there is an issue on the pleadings as to whether, and if so to what extent, the plaintiff's claimed injuries and loss were contributed to by the plaintiff's 1981 accident and injury to the left knee.
The defendant raises the allegation, and therefore bears the onus of proof in relation to it.
The task of a defendant in that position was described in Purkess v Crittenden (1965) 114 CLR 164, 168 as follows:
"… where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre‑existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre‑existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre‑existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v Rake (1960) 108 CLR 158 was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre‑existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre‑existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross‑examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre‑existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence."

Hypothetical and possible future events are of course ultimately matters of contingency: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
It follows from my acceptance of the evidence of the plaintiff, and of the views of Mr Tiller, that the plaintiff was asymptomatic in his left knee at the time of the 1998 accident, and had been so for many years, whilst the degeneration found in the left knee at arthroscopy in August 1999 was minor, the main damage in the knee being due to the 1998 accident.
Further, although it is highly likely that there will be further degeneration in the left knee in the future, that will be largely due to the 1998 accident.
Mr Tiller did not suggest that the 1981 accident would have been likely, in the event that there had been no further trauma to the knee, to have caused significant disability in the future, merely acknowledging that there was a potential for further degeneration.
In those circumstances it seems to me the plaintiff's loss ought be assessed on the basis that the 1998 accident is responsible, and that there ought be a relatively modest deduction from any allowance for future loss, to reflect the contingent possibility arising from the existence of minor degeneration for there to be some progression of that, and for that to have occurred in any event.
As to the calculation of any loss under a particular head, following discussion counsel for the plaintiff produced a schedule of damages, based on the plaintiff's taxation returns, and counsel for the defendant largely refrained from any criticism of the accuracy of the calculations or assumptions underlying the same, and where unchallenged I rely on the same, except where otherwise indicated.
There do remain some issues as to particular matters.
The heads of damage which have relevance, and my assessment in respect of each and other particular findings are then as follows:

Non‑pecuniary loss

The maximum amount that might be allowed under this head is at present $240,000.
The loss must be assessed in accordance with the Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 3C.
I set out my understanding of the correct approach to such an assessment in Kandic v Kandic, unreported; DCt of WA; Library No 5208; 20 December 1996 and would adopt that method here.
The plaintiff's position is that approximately four years after the accident he has a left knee which restricts him in many aspects of his daily life, and is periodically painful.
He has required surgical intervention, will have a need of further such intervention, possibly every four to five years, and will be likely to suffer deterioration of the knee notwithstanding any such assistance.
There is a possibility that had the 1998 accident not occurred the plaintiff would still have experienced problems in his left knee in the future, although that is not great.
In all the circumstances I would assess the sum of $31,200 as the appropriate proportion of the maximum amount.
After making the obligatory deduction from that sum I allow $19,200.

Past loss of economic capacity

The claim under this head for the period from when the plaintiff left Hampton Transport to the present is based on a disparity between the net wage earned there and that earned in the various other occupations in which the plaintiff has been engaged.
I accept that approach, it following from the plaintiff's evidence that the loss of the employment was due to the need to take time off for the arthroscopy, whilst it is clear the decision to have that treatment was reasonable.
However, there is a question as to whether the plaintiff would have remained in that employment to the present, given his pre‑accident employment history, and it was really common ground, and I would find anyway, that there is a possibility the plaintiff would, for one reason or another, have ceased that employment, and earned less elsewhere. Contingencies, and in particular that, ought be taken into account by a deduction of 15 per cent from that part.
The allowance under this head is then $39,088.

Interest on past loss of economic capacity

Apart from a small loss immediately after the accident, the loss extends for a period of about three years to the present.
Two interest calculations ought therefore be made, the first at a full rate of 6 per cent on that first loss of $1,368, from the mid‑point of the time thereof, which gives a period of approximately four years and one month, and produces a sum of $335.
The second calculation, on the adjusted loss of $37,720 ($31,830 + $5,890) at a half rate of 3 per cent for a period of three years, provides a sum of $3,395.
The allowance for interest on the past loss is then $3,730.

Past loss of superannuation

At the proposed rate of 7.5 per cent, with a deduction of 30 per cent for fund expenses and the like, and on the gross loss as claimed apart from the adjustment for contingencies, I allow $3,012.
I do not allow interest thereon, as the plaintiff would not have received this money in any event prior to this time.

Future loss of earning capacity

Counsel for each party submitted that a relatively broad approach had to be taken in relation to any assessment under this head, and ultimately each also submitted that an approach which included an allowance for a period of retraining of up to two years would be appropriate.
Counsel for the defendant raised the question of the need for a contingent deduction from that, but also conceded that in addition to any such allowance there had to be a further allowance for lost capacity, whilst on behalf of the plaintiff reference was also made to a likely need for several further arthroscopies, which would cause both loss of wages and disruption to employment.
Any assessment ought bear in mind the matters referred to, and other possible contingencies, both personal and general.
In the circumstances I consider that an assessment ought be broad.
Doing the best I can I allow $75,000.

Future medical treatment

The plaintiff has as life expectancy of 33 years.
The claim for further arthroscopic debridement of $6,000 is I consider reasonable, and I would allow that, apart from a deduction of 10 per cent for contingencies, so as to derive a sum of $5,400.
Dr Singh's record of general practitioner visits would appear more reliable than the plaintiff's unprepared for attempt at unaided recollection, and given that doctor's view as to the future I would adopt as a primary basis for assessment four general practitioner visits per annum at a total cost of $168.
Mr Tiller suggested at an annual visit to an orthopaedic surgeon would be necessary, at a cost of $107, and I adopt that.
I should add that in my view the relevant enquiry is as to the extent of any need resulting from an accident caused injury, as opposed to a consideration of the question whether or not a plaintiff would actually spend an award in accordance with the allowances in an assessment, although consideration of a plaintiff's subjective intention would often be relevant providing an indication of the extent of his/her symptoms.
A claim was also made for medication and physiotherapy, alternatively gymnasium fees, at a cost of $600 per annum.
Dr Singh's statement as to the extent of the need for the former is not precise, whilst I would accept the defendant's criticism that to allow the latter for the balance of the plaintiff's life would be quite unreal.
No precise calculation in relation to this item is reasonably possible in my view, and the best that can be done is to take a figure that appears reasonable, having regard to the evidence referred to, including and the plaintiff's evidence as to his present needs and condition generally.
I would then adopt $400 per annum as a reasonable allowance.
The total annual allowance is then $675 or $13 per week. The use of the whole of life multiplier of 730 produces, after a deduction for contingencies of 10 per cent, a sum of $9,015.
The allowance under this head is then $13,941.
In summary:
Non‑pecuniary loss  $ 19,200.00
Past loss of economic capacity                 $ 39,088.00
Interest on past loss of economic capacity $    3,730.00
Past loss of superannuation  $    3,112.00
Future loss of economic capacity             $ 75,000.00
Future medical expenses  $ 13,941.00
$154,071.00
The plaintiff is entitled to judgment in the sum of $154,071.