David James William Morewood v Jane EDQUIST
[2004] ACTSC 88
DAVID JAMES WILLIAM MOREWOOD v JANE EDQUIST
[2004] ACTSC 88 (17 September 2004)
DAMAGES – personal injury – shoulder injury – type II SLAP lesion – plaintiff marathon runner and iron man triathlete – no issue of principle.
Griffiths v Kerkemeyer (1977) 139 CLR 161
Malec v J C Hutton Pty Limited (1990) 169 CLR 638
No. SC 149 of 2004
Judge: Master Harper
Supreme Court of the ACT
Date: 17 September 2004
IN THE SUPREME COURT OF THE )
) No. SC 149 of 2004
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:DAVID JAMES WILLIAM MOREWOOD
Plaintiff
AND:JANE EDQUIST
Defendant
ORDER
Judge: Master Harper
Date: 17 September 2004
Place: Canberra
THE COURT ORDERS:
Judgment be entered for the plaintiff in the sum of $84,278.30.
The plaintiff is a medical practitioner in private practice as a radiologist. He is 49 years of age and is married with two children. On 26 September 2002, he was riding his Harley Davidson motorcycle east on Canberra Avenue, Griffith. The defendant was driving her car south in Eyre Street. She stopped at a give way sign at the intersection, and then pulled out into the plaintiff’s path, apparently without looking. The motorcycle and car collided within the intersection, and the plaintiff was thrown to the road. His immediate recall is of severe chest pain, which he attributed to a possible fractured sternum, though this proved not to be the case. His trousers were shredded and he had significant lacerations and abrasions to his legs, which bled profusely. He was helped by onlookers to the side of the road. The plaintiff determined that his injuries were not life-threatening and he declined ambulance transport to hospital. He was driven home, and his wife took him to the family general practitioner, Dr Joanne Campbell at Manuka. She cleaned and explored his wounds, and sent him for x-rays of the chest, right upper leg and right wrist. These detected no fractures or other abnormalities.
He had three major lacerations to the right leg, one at the front of the knee, one at the mid-shin level and another lower on the front of the shin. One of these was particularly deep and caused the plaintiff some concern that the underlying bone might be exposed. The lacerations were later treated at John James Memorial Hospital. They have healed without disability, but leaving three permanent scars, each about the size of a ten-cent piece. The plaintiff says that the scarring causes him some embarrassment when wearing shorts. I had the opportunity to view the scars which are darkened and obvious.
The plaintiff had chest symptoms which caused him to think that he may have fractured a rib on the left side, and perhaps also a costal cartilage, though no fractures were objectively established. About two days after the accident he began to cough up blood. A chest x-ray revealed a mild left-sided haemothorax. His breathing was restricted for a time, and coughing was extremely painful. These symptoms settled after a few days.
Other injuries included chipping of upper and lower incisors, and a cut to the inside of his upper lip. He also developed numbness in a circular region about six centimetres in diameter on the outer aspect of his left thigh, consistent with damage to the cutaneous nerve. This numbness has persisted and is now thought likely to be permanent.
The major injuries were to the shoulders, caused by the force of the collision being transmitted up the plaintiff’s arms from the handlebars of his motorcycle, compressing the rotator cuff muscles of both shoulders between the humeral heads and the acromion processes. The injury to the right shoulder was much more serious than to the left, although symptoms in both have persisted. An ultrasound of the right shoulder in October 2002 suggested sub-deltoid bursitis and focal tendinosis in the supraspinatus tendon with a possible haemorrhage in the acromio-clavicular joint. MRI scans of both shoulders were carried out in May 2003. A small tear was found in the lateral sub-scapularis tendon of the right shoulder, and the scan confirmed a type two SLAP (superior labral anterio-posterior) lesion extending into the anterior labrum. The scan of the left shoulder showed mild tendinopathy of the supraspinatus accompanied by some post-traumatic synovitis and effusion in the acromio-clavicular joint.
The plaintiff was on leave at the time of the collision. He rested at home for two weeks, and then returned to work. There is no claim for loss of earnings. It seems that much of his treatment was provided by staff at John James Memorial Hospital, where his rooms are located, without charge, and his past treatment expenses are limited to $278.30.
The right shoulder remains painful, and interferes with the plaintiff’s sleep on occasions. His natural sleeping position is on his right side, and this can trigger pain. Much more significantly, the plaintiff experiences severe and sharp pain if he attempts to use his right hand at or above shoulder height, particularly for the purpose of lifting, for example, a book from a bookcase.
The plaintiff has been informed that surgical treatment is available for the right shoulder, in the form of decompression of the rotator cuff and repair of the SLAP lesion. The plaintiff is in general terms not attracted to this. He has some fears about the likely outcome and the risks involved. As a medical practitioner he has seen, over the years, unsatisfactory surgical outcomes. He says that he will have the surgery only if it becomes absolutely necessary. His belief is that if the surgery is successful, the right shoulder problem will be resolved and all will be well. This is not necessarily the view of the specialists who provided reports for the purposes of the case. Dr W J Coyle, orthopaedic surgeon, who was qualified by the solicitors for the plaintiff, thought that the prognosis would remain guarded even with apparently successful SLAP lesion repair, and that the plaintiff might be left with some painful restriction of right shoulder movement permanently. Dr Nicholas Burke, a consultant occupational physician, qualified for the defendant, takes a similar view, and sees it as possible that the plaintiff will “have continuing restrictions with regard to activities of his right shoulder following such surgery”.
The plaintiff’s oral evidence was that he would prefer not to be subjected to surgery, but that he was becoming frustrated with the lack of improvement in the right shoulder, and that he might decide to have the operation even though he does not really want to. I accept that the cost of surgery and consequent physiotherapy would be of the order of $4000 to $4,500, and that during the recovery period the plaintiff would require some assistance compensable by reference to Griffiths v Kerkemeyer (1977) 139 CLR 161, generating damages of the order of $500 or $600. It will be necessary for me to reflect in the plaintiff’s damages the degree of probability that the plaintiff will elect to undergo the suggested surgery, as explained by Deane, Gaudron and McHugh JJ in Malec v J C Hutton Pty Limited (1990) 169 CLR 638 at 643, though not necessarily with mathematical precision: Malec at 640 per Brennan and Dawson JJ. The allowance will also need some adjustment to take account of the lapse of time from judgment until surgery.
It is well known that the same injuries may affect individuals very differently. The injuries in the present case have had a devastating impact on the plaintiff’s enjoyment of life. As a young man, he had been a long-distance runner. He took up running again some years before the accident, initially through accompanying his son on school orienteering events. He began training, and ran in ten-kilometre fun runs. He had always had an ambition to run a marathon, though he had not previously done so. He completed his first marathon in 1998 in a time of 3 hours and 45 minutes. This required a substantial investment in running and other training. Between 1998 and the motor accident in 2002, the plaintiff ran many more marathons, perhaps as many as thirty. His best time was 2 hours 57 minutes in a marathon at Bathurst in which he was third across the line and first in his age group.
He found that swimming was beneficial after a run, and commenced swimming with a masters’ swimming club at Tuggeranong. He began to compete in triathlons, which combine running, swimming and cycling, and over time built up his distance capacity until he was able to compete in an iron man triathlon in England in 1999. This consists of swimming 3.8 kilometres, cycling 180 kilometres and running the traditional marathon distance of 42.2 kilometres, in succession. The plaintiff completed his first iron man triathlon in 10 hours 44 minutes. In 2000 and 2001 he completed both the New Zealand and the Australian iron man events. By this time he aspired to qualify for the world iron man championship held in October each year in Hawaii. He won an Australian award as triathlon champion in his age group in 2000–2001. He came third in a marathon in the 2000 national veteran championships, and in the same year ran third in his age group in a mountain running race over fourteen kilometres in the Brindabellas, beating a number of entrants who were much younger. In February 2002, he completed the Sri Chinmoy triathlon in Canberra. By the time of the accident, he had completed the Canberra Times Fun Run for each of the previous five years, his best time being 36 minutes 45 seconds. He was an entrant in the 2002 run but was prevented from competing by his injuries.
By the time of the motor accident, the plaintiff’s normal pattern of life included a gruelling training schedule. Typically, he would rise at 5.30 each week morning and join others for a two-hour bicycle ride, covering 60 or 70 kilometres. At lunchtime he would run, typically, seven to ten kilometres. In the evenings he would swim, covering some three kilometres in about one and a half hours. The precise sporting activities varied a little from day to day but the time spent did not. The plaintiff fitted these activities around his normal working day as a consultant radiologist. On a typical Saturday he might participate in a 100 to 150 kilometre bicycle ride, and on Sunday he would generally run at least 20 kilometres and on occasions up to 34 kilometres. Most of these activities were carried out in company with fellow members of the Bilbies Triathlon Club. For his age, the plaintiff could justifiably be described as an elite athlete, at the peak of his chosen sport nationally, and probably close to the peak at international level.
The injuries have brought all of this to an end, notwithstanding that the plaintiff remains capable of running and cycling to an extent which is well beyond most men of his age. He is able to ride his bicycle twenty to thirty kilometres around Lake Burley Griffin though not at high speed. He is able to run what he describes as short distances, up to ten kilometres, but is unable to run fast. He intends to compete in the Canberra Times ten-kilometre Fun Runs in the future, and expects a time of the order of 46 minutes, some nine or ten minutes outside his pre-accident best. He can swim slowly but his right shoulder begins to ache if he attempts to accelerate. He has done little swimming since the accident.
This is an unusual case. The injuries the plaintiff suffered would have been extremely serious for anyone, but he has generally made a good recovery. The impact of identical injuries would be very much less on a man of similar age and occupation whose chosen leisure pursuits were more sedate. Significantly, the plaintiff has missed virtually no time from his medical practice by reason of the accident, and there is no claim for impairment of earning capacity, past or future.
Despite this, the injuries have completely changed the plaintiff’s life. He has lost the capacity to engage in activities which were of great importance and enjoyment for him. The effect of the injuries on the plaintiff’s enjoyment of life has been and will continue to be immense, and must sound in a very much greater award of damages than would normally be associated with the injuries he suffered.
It seems to me that an appropriate figure to compensate the plaintiff for pain and suffering and loss of enjoyment of life is $80,000.00. Most of the plaintiff’s pain and suffering took place in the weeks immediately following the motor accident; the interference with his enjoyment of life is permanent and will extend for many years into the future. It seems to me reasonable to apportion the general damages equally between past and future. By way of interest on the past component, I award $2,000.00. The treatment expenses are agreed at $278.30.
For the prospect that the plaintiff will have the surgery which has been suggested, and will be put to expense for hospital, medical and physiotherapy treatment, and will suffer notional loss associated with his need for assistance from his family during the recovery period, I allow $2,000.00.
The total of the individual components is as follows:
General damages $80,000.00
Interest $2,000.00
Treatment expenses $278.30
Allowance for future surgery $2,000.00
$84,278.30
That total appears to me reasonably proportional to the effect of the injuries on the plaintiff. There will be judgment for the plaintiff for that amount. I shall hear the parties as to costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 17 September 2004
Counsel for the plaintiff: Mr R J Mildren
Solicitor for the plaintiff: Vandenberg Reid
Counsel for the defendant: Mr M A McDonogh
Solicitor for the defendant: Phillips Fox
Date of hearing: 2 September 2004
Date of judgment: 17 September 2004
0
2
0