De Gois v Insurance Commission of Western Australia
[2015] WADC 9
•30 JANUARY 2015
DE GOIS -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2015] WADC 9
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 9 | |
| Case No: | CIV:1836/2013 | 15-17 DECEMBER 2014 | |
| Coram: | GOETZE DCJ | 30/01/15 | |
| PERTH | |||
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiff in the sum of $93,663.37 | ||
| PDF Version |
| Parties: | PATRICK BRIAN DE GOIS INSURANCE COMMISSION OF WESTERN AUSTRALIA |
Catchwords: | Claim for damages for bodily injury arising out of motor vehicle crash Section 7(3) Motor Vehicle (Third Party Insurance) Act 1943 Liability and quantum in issue Turns on own facts |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1943 |
Case References: | Bowen v Tutte (1990) Aust Torts Reports 81-043 Dessent v Commonwealth of Australia (1977) 13 ALR 437 Medlin v State Government Insurance Commission (1995) 182 CLR 1 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant
Catchwords:
Claim for damages for bodily injury arising out of motor vehicle crash - Section 7(3) Motor Vehicle (Third Party Insurance) Act 1943 - Liability and quantum in issue - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Judgment for the plaintiff in the sum of $93,663.37
Representation:
Counsel:
Plaintiff : Mr D R Clyne
Defendant : Mr D R Sands
Solicitors:
Plaintiff : Simon Walters
Defendant : Spark Helmore Lawyers
Case(s) referred to in judgment(s):
Bowen v Tutte (1990) Aust Torts Reports 81-043
Dessent v Commonwealth of Australia (1977) 13 ALR 437
Medlin v State Government Insurance Commission (1995) 182 CLR 1
- GOETZE DCJ:
Introduction
1 On 17 September 2012, the plaintiff, Patrick Brian De Gois, was the driver of a motor scooter involved in an incident with a motor car on Balcatta Road, near the intersection of Kenhelm Street, Balcatta.
2 Mr De Gois alleges that the driver of the car drove in a negligent manner, thereby causing a collision between the two vehicles which, in turn, caused Mr De Gois to suffer injuries, loss and damage.
3 Mr De Gois alleges that the car did not stop after the incident and that it was immediately driven away from the scene. The car and its driver have never been located and identified.
4 The Motor Vehicle (Third Party Insurance) Act 1943 relevantly provides by s 7(3) thereof, that, in circumstances in which the driver of a motor vehicle has caused bodily injury by negligence arising out the use of a motor vehicle and where the identity of the vehicle cannot be ascertained, any person who could have obtained a judgment in respect of that bodily injury against the driver of that vehicle may obtain, by action against the Insurance Commission of Western Australia, that judgment which, in the circumstances, he could have recovered against the driver of the vehicle, provided certain conditions have been met.
5 The defendant Insurance Commission admits:
(1) the fact of the collision between Mr De Gois on his scooter and a motor vehicle;
(2) that the identity of that vehicle cannot now be ascertained;
(3) that the identity of the driver of that vehicle is unknown; and
(4) that Mr De Gois sustained injuries.
6 The Insurance Commission does not admit that the collision was caused by the negligence of the unknown driver. It denies that it is liable to Mr De Gois by reason of the provisions of s 7(3) of the Act.
7 Further, the Insurance Commission denies the extent of Mr De Gois' injuries and the loss and damage allegedly suffered by him.
8 This action therefore requires determination of the negligence of the unknown driver of the unknown vehicle, the liability of the Insurance Commission and the extent of the injuries, loss and damage suffered by Mr De Gois.
Mr De Gois
9 Mr De Gois was born on 1 March 1948 in Burma. He obtained a General Certificate of Education and came to Australia on 17 April 1967. Two days later, he obtained employment as a junior storeman. He has lived and worked in Perth thereafter.
10 Mr De Gois was aged 64 years at the time of the collision. He was apparently in reasonable health and condition at that time. He was then employed as the driver of a concrete truck. He retired from work on 18 July 2013.
Liability
11 Mr De Gois, and an independent witness, Mr Michael Panodich, gave evidence as to the circumstances of the collision.
Mr De Gois
12 Mr De Gois' evidence was that at approximately 4.00 pm on 17 September 2012, he was riding his motor scooter home from work along Balcatta Road, near the intersection of Kenhelm Street, Balcatta.
13 At the point where the collision occurred, Balcatta Road runs in an approximate east/west direction. It is a dual carriageway separated by a median strip, with two lanes of traffic running in each direction.
14 Mr De Gois gave evidence that he was riding his motor scooter in the left hand lane and a truck was to his right in the right hand lane. That truck slowed down, apparently for the purpose of executing a U-turn through a gap in the median strip. At the same time, a white motor car being driven in the right lane behind the truck, changed lanes into the same lane in which Mr De Gois was riding his motor scooter and in doing so, that car nudged the right hand side handlebar of Mr De Gois' motor scooter, thereby knocking him and the scooter to the ground. Mr De Gois did not have time to take evasive action.
15 Mr De Gois' evidence was that he and his scooter slid along the roadway, finishing up at the corner of Balcatta Road and Kenhelm Street. He held onto the handlebars stretched out in front of him. The car did not stop. Mr Panodich came to his aid.
16 The cross-examination of Mr De Gois as to liability was mainly limited to the following:
All right. Now, Mr De Gois I want to go back to the – to the accident itself. Your description is that the white truck I think – white car I should say - - -?---All I saw was a white car.
Just let – yes, just let me finish the question.
What you've said is that the white car that was in the right-hand lane swerved in front of you because the truck in front of it slowed to do a turn into the median strip?---He – he didn't swerve, he – he changed lane right next to me - - -
Okay. This is the white - - - ?--- - - - and he did - - -
This is the white car?---White car - - -
Yes --- - - - that's all I saw. The start of the white car and he hit me and all I know was the next thing I was - - -
Yes. Where – where did - where did the white car hit you?---On my right-hand side, on my handlebar on my side.
It struck the handlebar of - - -?---In the side of my – yeah, like that, hit my – my right handlebar. Then I went like that - - -
Did it – did it - - -?--- - - - and I was holding on like - - -
Did it actually hit you; did the white car actually hit you or just - - -?---No, it hit - - -
- - - the handlebar?---Hit – hit my handlebar and I went just sprawling .
Did you have time to take any evasive action before the car hit your handlebar?---No.
17 Mr De Gois was also cross-examined about holding the handlebars of his scooter after he fell.
18 Three or four days later, Mr De Gois returned to the scene and attended at the nearby Caltex Service Station on Balcatta Road to inquire if anyone there had witnessed the collision, but he was advised that nobody had. He later gave notice of his intention to claim damages against the Insurance Commission.
Mr Michael Panodich
19 Mr Panodich works opposite the scene at which the collision occurred. He was then 30 - 40 m away from it, looking out onto Balcatta Road. He did not observe the collision. However, he gave evidence that his attention was drawn to the sound of Mr De Gois' scooter scraping along the ground. He then saw a truck and a car, the latter of which accelerated away from the scene, at speed. He saw Mr De Gois and his scooter on the ground. Mr Panodich was
not quite sure if the car hit [Mr De Gois] or maybe swerved into – I'm pretty sure to avoid stopping down – stopping behind the van I think he swerved into the left hand lane – because it's a two way lane, and he just took off … I don't know if he hit [Mr De Gois] or swerved and [Mr De Gois] went to swerve but he did fall off his bike.
20 Mr Panodich was not able to describe any feature of the car apart from the fact that it was a car. It 'took off' after impact. He presumed that the car had been behind the truck, but he did not know.
21 In cross-examination, Mr Panodich said that he could not now remember whether, immediately following the collision, Mr De Gois had said to him that the unknown car actually struck Mr De Gois on his scooter or whether Mr De Gois had swerved to avoid the collision. However, he acknowledged that in his statement made on 30 October 2012 to an investigator from the Insurance Commission, he had indicated that Mr De Gois had said to him:
A car that was travelling behind the truck in the right lane swerved to the left lane and in doing so pulled out in front of [Mr De Gois].
[Mr De Gois] then said that he swerved to avoid the car and as a result had come off his bike.
Findings on liability
22 The Insurance Commission has put Mr De Gois to proof on the issue of negligence.
23 Mr De Gois can be accepted as an honest witness. The pre-trial statement of Mr Panodich does not impact upon the credibility of Mr De Gois, who was not cross-examined as to whether or not he had ever told Mr Panodich that the unknown driver had swerved his vehicle into the left lane thereby causing Mr De Gois to fall from his scooter. That may not be surprising given the pleadings by which the fact of the collision is admitted. However, Mr Panodich was cross-examined about what Mr De Gois had alleged as the factual matrix when Mr Panodich first attended him. Save for the inability at trial of Mr Panodich to recall what Mr De Gois said to him following the collision, his evidence was not disputed.
24 In any event, it matters not whether the car struck Mr De Gois on his scooter or whether he swerved to avoid a collision with it following that car changing lanes. It was a negligent act by the driver of the car to drive the car so as to either collide with Mr De Gois' scooter or to force Mr De Gois to swerve to avoid a collision and thereby fall from his scooter.
25 On the evidence, it is more probable than not that the driver of the unknown vehicle so drove that vehicle such that it nudged the handlebar of Mr De Gois' scooter thereby knocking him and the scooter to the ground. The collision is admitted in the defence. It was a negligent act by the unknown driver to collide with Mr De Gois' motor scooter.
26 It is not alleged that there was any contributory negligence on the part of Mr De Gois.
27 It is also not disputed that, apart from attending at the Caltex Service Station looking for potential witnesses, Mr De Gois has not made any further search and inquiry to ascertain the identity of the unknown vehicle and its driver. Further, it is not disputed that he gave to the Insurance Commission notice in writing of his intention to claim and a short statement of the grounds thereof.
28 The Insurance Commission was able to investigate the collision for itself. Hence, it obtained a statement from Mr Panodich. It has not been suggested by evidence that any other steps were open to Mr De Gois to ascertain the identity of the unknown vehicle and driver.
29 In any event, by s 29A of the Act, Mr De Gois can be relieved of any failure to comply with s 7(3) if the Insurance Commission has not been materially prejudiced in its defence or otherwise by the failure or defect in making due search and inquiry for the unknown vehicle and driver. There is no evidence of any prejudice to the Insurance Commission.
30 In these circumstances, due search and inquiry has been made seeking to establish the identity of the unknown vehicle and driver. The required notice was given to the Insurance Commission. Alternatively, there being no prejudice to the Insurance Commission, it is appropriate to relieve Mr De Gois of any failure to comply with s 7(3) and to proceed to assess his injuries, loss and damage for which the Insurance Commission is liable.
Nature of injuries
31 Following the collision, Mr De Gois was taken to Royal Perth Hospital where his obvious injuries were treated. Those injuries consisted of pain and swelling with abrasions over the dorsum of the right hand and a deep laceration over the anterior aspect of the right knee.
32 The hand injuries were cleaned and dressed. The knee injury was debrided, sutured and bandaged. Mr De Gois also received a tetanus injection in the right knee. He was then discharged with analgesia and a course of antibiotics. He was advised to attend his general medical practitioner.
33 Mr De Gois first consulted his general medical practitioner, Dr A C Ng, on 24 September 2012. Confirmation was made of the injuries ascertained at Royal Perth Hospital.
34 Dr Ng provided a course of antibiotics by reason that the right knee had become infected and on 26 September 2012, he again dressed the right knee wound. Two courses of antibiotics were required before the infection resolved.
35 On 10 October 2012, Dr Ng ordered an MRI of the right knee, which showed a small knee joint effusion.
36 Mr De Gois received six physiotherapy treatments consisting of ultrasound massage and exercise up to 7 December 2012. This resulted in improvement in knee pain, although he still had trouble with numbness on the scar and exercising.
37 Mr De Gois did not receive any further medical treatment for his collision caused injuries. However, he attended two medical specialists for medico-legal review at the request of his legal advisors. They are Professor F L Mastaglia, consultant neurologist, and Mr D Williams, orthopaedic surgeon.
38 Mr De Gois alleges that he also suffered injuries which were not immediately obvious following the collision, namely a bruise to the right side of his jaw and a right shoulder injury. He gave evidence that he first noticed right shoulder problems some six to seven weeks after the collision. The shoulder injury was the subject of controversy at trial.
39 On 28 May 2013, Mr De Gois consulted Professor Mastaglia who reported that as a result of the collision, Mr De Gois still had the following collision caused difficulties, which were not disputed at trial:
(a) pain in the right knee, which was mainly on the inner side and brought on by squatting, kneeling or standing for long periods with pain levels of up to 4 – 5 out of 10 in severity. He further had a sensation of numbness over the front of the right knee; and
(b) scarring on the back of the right little finger, with pain and increased sensitivity to touch or when he knocked the finger or gripped something with his right hand.
40 At the time Mr De Gois first attended Professor Mastaglia, he also reported that the visor of his helmet was damaged and scraped in the collision. He suffered pain over the right mandible where he was struck by his visor and further, he had pain in his right shoulder. Mr De Gois allegedly suffers aching and stiffness in the right shoulder when lifting items or attempting to elevate his right arm, with a restricted range of movement in the shoulder.
41 Mr De Gois reported that he was restricted with lifestyle activities including servicing his car and scooter, performing domestic maintenance, playing with his grandchildren and playing tennis, particularly with serving. He was required to wear a knee brace to play tennis. He also had difficulty at night sleeping on his right shoulder by reason of pain.
42 Professor Mastaglia reported that Mr De Gois had not had any prior history of any injury to the shoulder, knee or hand. Prior to the collision, he had been quite fit and active and did not have any medical problems.
43 It should be observed here, that, given the mechanics of the collision, Professor Mastaglia accepted, without question, that the shoulder, knee and hand injuries were caused by the collision and its aftermath with Mr De Gois striking the road and sliding along it holding onto his motor scooter. Professor Mastaglia did not probe Mr De Gois as to the date of the onset of his shoulder pain.
44 Professor Mastaglia did not articulate the cause of Mr De Gois' shoulder pain following his first consultation.
45 Professor Mastaglia found a restricted range of movement in Mr De Gois' right shoulder with associated pain. Adduction and elevation of the right arm was restricted to approximately 135 degrees beyond which Mr De Gois experienced pain. Adduction and internal and external rotation were also restricted and painful and there was antalgic inhibition of muscle strength of the right shoulder.
46 Professor Mastaglia also observed scarring over the proximal interphalangeal joint and back of the distal phalanx of the right hand with tenderness to pressure in these areas.
47 The right knee suffered a 2 – 3 cm oblique scar over the patella from the laceration thereto, with a surrounding area of numbness and sensory loss to light touch and pinprick. There was some discomfort. Passive movement of the knee and flexion was mildly restricted in range. It was tight at the end range of movement. On palpation, there was tenderness over the medial margin of the knee joint as well as at the site of the laceration. Mr De Gois was unable to squat fully on the right leg.
48 Mr De Gois reported to Professor Mastaglia that he was restricted to some extent at work in handling chutes on his concrete truck by reason of shoulder and knee injuries. Professor Mastaglia anticipated that that partial restriction would remain for the foreseeable future and for more physically demanding work.
49 Professor Mastaglia also reported that Mr De Gois had ceased driving a 5 cubic metre concrete truck because of his diminished work capacity, but he was able to manage with a 1.2 cubic metre concrete truck. The consequence of the injuries was that Mr De Gois would remain restricted in this way for the foreseeable future and he was moderately restricted in his ability to compete in the open work force.
50 Professor Mastaglia assessed Mr De Gois' residual disabilities attributable to the collision as being 15% of the right shoulder, 10% of the right knee and 2.5% of the right hand. His shoulder and knee injuries were of moderate severity and his hand injury was described as being of mild severity.
51 At the time of this review, it was considered that Mr De Gois may need further analgesic and/or anti-inflammatory medications. Further courses of physiotherapy for the right shoulder and knee injuries might also be required.
52 The Insurance Commission referred Mr De Gois to Dr Joel Silbert, occupational physician, who reviewed Mr De Gois on 9 October 2013 and 8 July 2014.
53 Dr Silbert gave evidence that, on 9 October 2013, there was a full range of pain free right shoulder movement. This was contrary to the findings of Professor Mastaglia on 28 May 2013, Dr Silbert's later finding on 8 July 2014 and Mr Williams' findings on 14 August 2014 and 5 September 2014.
54 At examination on 8 July 2014, Dr Silbert found discomfort at the extremes of full adduction in the right shoulder, such that there was then subacromial impingement. That diagnosis was later confirmed by Professor Mastaglia and Mr Williams after x-rays and an ultrasound examination of the shoulder. Previously in October 2013, Dr Silbert had only been able to find equivocal evidence of subacromial impingement, whereas in July 2014 it was unequivocal, because it was only then possible to elicit a confirmed and repeatable positive response. By reason that such confirmed and repeatable positive response had not been ascertained on 9 October 2013, Dr Silbert was of the view that the cause of the impingement was something which occurred later in time than the collision and, it would follow, after his initial examination of Mr De Gois on 9 October 2013.
55 Dr Silbert explained this further by saying that the development of subacromial impingement carries symptoms following a clear pattern. In October 2013, Mr De Gois did not report an index of suspicion of subacromial impingement. Mr De Gois had periods of three or four pain-free days. He was able to play tennis, which Dr Silbert thought would aggravate subacromial impingement. There was no report of tennis aggravating that condition. He could not reconcile tennis with subacromial impingement.
56 Dr Silbert thought that climbing a ladder on concrete trucks did not necessitate reaching above the shoulder, so that there would only be a small amount of adduction to preclude engagement of the subacromial space and cause pain.
57 In his evidence, Dr Silbert thought that the difference between the results of his examination on internal rotation in October 2013 and those of Professor Mastaglia in May 2013 was that Mr De Gois could have recovered between May 2013 and October 2013 and then had a worsened condition by July 2014 when he re-examined him for some unknown reason for which he was unable to account. Another explanation offered by Dr Silbert was that Professor Mastaglia might have been wrong. Dr Silbert did not believe that his assessment was incorrect because he had formally trained as an occupational physician, but he then went on to say that he was trained by orthopaedic surgeons and he acknowledged that Mr Williams is so qualified.
58 Mr Williams reviewed Mr De Gois on 14 August 2014 and 5 September 2014.
59 Mr De Gois informed Mr Williams that he had difficulty coping with squatting. He could not cope with stairs and ladders. His range of walking was limited to 20 minutes and although he could jog to a limited degree, he could not run.
60 X-rays on 27 August 2014 showed some minimal degeneration in the right knee. There was no evidence of joint effusion. There was no intra-articular ossified loose body. There was a restriction of movement in the right knee with mild crepitus on knee motion.
61 Mr Williams was of the view that there was an element of acute patellofemoral traumatic chondromalacia in the right knee. This was evidenced by the oedema present in the MRI study. There was pre-existing patellofemoral chondral degenerative change. There was also mild pre-existing medial compartment degenerative change in the right knee.
62 Mr Williams thought the asymptomatic knee injury required a water based exercise programme, rather than mere walking. Such programme might be achieved over a 6 to 12 month period. Only after such exercise could the need for specific surgical intervention be determined.
63 The right hand showed some scarring over the radial aspect of the right forefinger.
64 Mr De Gois' right shoulder had soreness and he was limited in his above-shoulder activities, including activities in which he reaches out with his right arm. Right shoulder movements were restricted.
65 An x-ray of the right shoulder showed some mild to moderate degenerative changes in the glenohumeral joint, some minimal degenerative change in the acromioclavicular joint and some very small antero-inferior subacromial spur was evident. There was no rotator cuff calcification. The supraspinatus, infraspinatus and subscapularis tendons were normal, as was the long head of the biceps tendon. There was mild bursal impingement during adduction and this was in keeping with Mr De Gois' end range restriction in adduction and internal rotation.
66 Mr Williams thought the right shoulder subacromial bursitis with end range restriction was the result of the collision, but there was an element of osteoarthritic change in the acromioclavicular and glenohumeral joints as to which, there had been an exacerbation of symptoms. Like Professor Mastaglia, Mr Williams thought that the shoulder injury was collision caused by reason of the mechanics of that collision and he did not question Mr De Gois as to the timing of the onset of his shoulder complaint.
67 Mr Williams thought that injections of steroid and Marcaine with ultrasound guidance would resolve the right shoulder bursitis and function without the limitations of end of range restriction.
68 Mr Williams also reviewed the report of Dr Silbert, dated 14 October 2013. He agreed with Dr Silbert that there was pre-existing degeneration in the right shoulder and right knee. Mr Williams went on to say that notwithstanding such knee degeneration at the time of the collision, Mr De Gois was then coping with his work without symptoms, such that he had not sought medical advice with respect thereto.
69 Mr Williams however, disagreed with Dr Silbert that Mr De Gois was fit for full-time work by reason of the need to enter and exit a cab and to climb a steel ladder to the top of the agitator as part of the duties of a concrete truck driver. This was not based solely on Mr De Gois' advice but, also by reason of the MRI study identifying right knee pathology which alone prevented such work. The shoulder injury also prevented such work. However, with rehabilitation, Mr De Gois should have the capacity for a return to light driving activities.
70 Mr Williams believed Mr De Gois to have a 15% disability in the right upper limb at the elbow and above. With a successful injection programme, that could be reduced to 10%. Mr De Gois also had a 10 - 15% disability in the right lower limb at knee level and above. Mr De Gois' injuries were then moderate, with the potential to achieve a mild residual disability with appropriate further rehabilitation.
71 On 31 October 2014, Professor Mastaglia again reviewed Mr De Gois for trial purposes. Mr De Gois indicated that there had not been any notable change in the right knee and shoulder injuries since the previous consultation in May 2013, but the right hand was a little better.
72 The areas of scarring over the right little finger were unchanged and there was increased sensitivity in the affected areas.
73 Mr De Gois described intermittent right knee pain, particularly associated with activities such as squatting, kneeling or standing for long periods. It was a dull pain of up to 4 – 5 out of 10 in severity, as well as being sharp and stabbing on the medial aspect of the joint from time to time.
74 The findings in the right knee were also essentially unchanged from May 2013, with a mild restriction in the range of passive movement with associated discomfort and moderate tenderness to pressure particularly over the medial border of the knee joint. Mr De Gois was unable to squat fully with the right leg or to kneel.
75 X-rays of the right knee on 27 August 2014 showed some degenerative changes in the medial and patellofemoral compartments without any significant joint space narrowing or joint effusion.
76 The right shoulder still caused pain and soreness particularly with elevation or when lifting heavy objects, especially above shoulder level.
77 The ultrasound and x-rays of the right shoulder performed on 27 August 2014 showed an intact rotator cuff with mild subacromial/subdeltoid bursal impingement during adduction.
78 Professor Mastaglia found restricted right shoulder movement. There was also antalgic inhibition of muscle strength at the shoulder.
79 Professor Mastaglia concluded that there was no real change since he had last seen Mr De Gois. However, Mr De Gois indicated that he had given up work in mid-2013 by reason that he found that work too difficult. Professor Mastaglia thought it was a reasonable decision for Mr De Gois to cease work. He found Mr De Gois to be a genuine patient.
Findings on medical evidence
80 Two issues arise from the medical evidence. First, whether Mr De Gois' right shoulder injury is collision caused and secondly, whether the collision injuries, with or without the right shoulder injury, prevented Mr De Gois from continuing with his pre-collision employment as a concrete truck driver.
81 It is common ground that Mr De Gois attended the emergency department of the Royal Perth Hospital immediately following the collision. He reported right knee and right hand wounds which were treated and he then attended Dr Ng, his family general practitioner, between 24 September 2012 and 30 January 2013. By 7 December 2012, he had received six sessions of ultrasound massage and exercise advice from a physiotherapist. His condition was improving, but he had ongoing numbness over the knee scar and trouble kneeling.
82 When Mr De Gois last consulted Dr Ng, he was referred to Dr K Kozak, orthopaedic surgeon, but he did not consult Dr Kozak by reason of cost. Presumably this referral was with respect to the right knee injury, but the clinical notes are not clear. Further, the physiotherapist recommended that Mr De Gois attend a gym for exercises, but he declined that advice on the basis that he would simply walk for free in Kings Park.
83 It is was not disputed that the facial visor of Mr De Gois' helmet was damaged in the collision in the location of the right jaw area and at trial, he was not challenged with his evidence that he suffered a minor bruise in the right jaw. Such a bruise would be of little consequence.
84 However, an issue which took up considerable time at trial, and which seems to be a major dispute between the parties, concerns the alleged injury to Mr De Gois' right shoulder. The records do not reveal any reference to such injury when he attended Royal Perth Hospital, Dr Ng or the physiotherapist.
85 The evidence of Mr De Gois was that his right shoulder pain came on six to seven weeks after the collision. This evidence, which was given in chief, was necessarily accepted by Mr De Gois' counsel. However, it also suited the purpose of defence counsel to not probe further. Had Mr De Gois been so probed, then the reliability of his evidence of six to seven weeks, given at trial some two years after the collision, may well have been called into question. As will be seen later, Mr De Gois is not a good historian when it comes to matters of time.
86 Professor Mastaglia and Mr Williams both accepted, without question, the fact that Mr De Gois' right shoulder injury was consistent with the mechanics of his fall from the scooter. They therefore assumed, without further questioning, that the right shoulder injury had been present since the collision.
87 In May 2013, Professor Mastaglia found a restricted range of movement in the right shoulder associated with pain.
88 Mr De Gois complained of right shoulder symptoms when examined by Dr Silbert on 9 October 2013. On direct questioning from Dr Silbert, he said that they developed immediately following the collision. Mr De Gois reported an overall 70% recovery in the nature and extent of those symptoms and functional capabilities to October 2013. He then enjoyed periods of three or four days of remaining entirely pain free but, he had episodic sharp pains to a maximum of 4 or 5/10 in severity. He reported symptoms variously coming and going. Mr De Gois denied any specific, particular, or reproducible precipitating or aggravating features for his right shoulder symptoms. He reported a complete recovery of symptoms with the use of massage, a heat rub or with time.
89 This immediate development of shoulder symptoms after the collision was not challenged by Dr Silbert in his report. Indeed, Dr Silbert found that Mr De Gois suffered a mechanical trauma to his right shoulder in the collision. He reported:
In my opinion, there is no evidence of any inconsistencies, identified between the objective examination findings and the description as provided by Mr De Gois at the consultation on 9 October 2013.
…
In my opinion, Mr De Gois is considered to present with manifestations of an acute mechanical trauma to the right shoulder, right knee, as well as widespread abrasions and arising from a reported fall from a scooter on 17 September 2012. There was no evidence of any pre-existing, intercurrent or other factors contributing significantly or adversely to the nature and extent of injuries identified at the consultation of 9 October 2013.
90 Dr Silbert reported a full range of pain-free movement in the right shoulder, but at that time, there was only equivocal evidence of subacromial impingement. Notwithstanding Mr De Gois' claim to have not fully recovered, Dr Silbert found the shoulder injury to have resolved by October 2013.
91 Mr De Gois reported shoulder pain, with improvement, in October 2013 when he saw Dr Silbert. The fact of mechanical trauma to the right shoulder in the collision was not disputed by Dr Silbert in October 2013 and it can be accepted. It is consistent with Mr De Gois' reports to all three specialist doctors at other times and their findings. Dr Silbert's equivocal finding of acromial impingement in October 2013 is not inconsistent with Mr De Gois' claim of only improvement in his right shoulder condition to that date.
92 Professor Mastaglia thought that situations like this often come down to the type of individual concerned and his or her threshold for pain and the tolerability thereof. Professor Mastaglia did not think that the fact that there was no mention of shoulder pain until the consultation in May 2013 with him meant that Mr De Gois did not have shoulder pain. He said that Mr De Gois was the sort of man who would attempt to shrug it off. He described Mr De Gois as a stoical person who held things back, such that information had to be dragged out of him. Professor Mastaglia has seen many former patients who do not complain of pain in one particular area by reason that there are other areas of pain of greater concern. He did not have any doubt that the shoulder injury was existent at the time of his examinations in May 2013 and October 2014.
93 Dr Silbert was asked in evidence whether Mr De Gois had given to him an indication of when the shoulder pain commenced. He checked his notes and could only say that he did not recall whether or not he was provided with that information. He said it was not in his notes.
94 However, Dr Silbert was not referred to page 5 of his report dated 14 October 2013, from which Dr Silbert reported as follows:
Questions
With regard to the questions that you raise in your request of 22 July 2013:
1. Details of Mr De Gois' presenting complaints and/or symptoms. Please ask Mr De Gois for details when he first noticed his right shoulder symptoms.
The nature and extent of complaints and symptoms reported by Mr De Gois at the consultation on 9 October 2013 has been documented above. He recalls the development of right shoulder symptoms immediately following his reported motor vehicle accident on 17 September 2012.
96 In July 2014, Dr Silbert found a restricted range of movement in the right shoulder as had Professor Mastaglia in May 2013 and as Mr Williams also did in August and September 2014.
97 However, on this occasion, Dr Silbert found clinical evidence of subacromial impingement. Otherwise, the remainder of the examination of the right shoulder was normal.
98 Dr Silbert considered the right shoulder subacromial impingement to have arisen subsequent to, and be entirely unrelated to, any manifestations of the collision.
99 On 14 August 2014, Mr Williams found a restricted range of movement in the right shoulder, but a better range than had previously been identified by Professor Mastaglia. An ultrasound showed mild bursal impingement during adduction and this was in keeping with the end range restriction in adduction and internal rotation.
100 Mr Williams found a consequence of the collision to be right shoulder subacromial bursitis with end range restriction. There was also an element of osteoarthritic change in the acromioclavicular and glenohumeral joints in that there had been an exacerbation of symptoms related to pre-existing pathology.
101 Mr Williams was able to more specifically diagnose evidence of subacromial bursitis, with impingement problems present noting the restriction in internal rotation confirming the pathology, by reason that he had the advantage of the ultrasound examination.
102 In evidence, Mr Williams said that the bursal impingement contributes to pain and restriction of motion range. It was not associated with any other progressive changes in the shoulder. It was simply irritable and catching. It was found clinically. The ultrasound findings were consistent with clinical findings of end range restriction.
103 In cross-examination, it was pointed out to Mr Williams that Mr De Gois had given evidence that the shoulder symptoms first became apparent some six to seven weeks after the collision. Previously, Mr Williams had simply accepted that the injury was a consequence of the collision. He said he would have expected a comment from Mr De Gois about this injury within 7 – 10 days of the collision, but not necessarily, because other injuries may then have been the major focus for Mr De Gois. Weeks later, he may have said that the shoulder was a concern. Mr Williams would not have been worried about this if the shoulder injury was apparent 'a few weeks later', but he would have been if it was only apparent 'months later'. That said, he considered that the onset of pain at six or seven weeks after the collision is not consistent with the shoulder injury coming on as a consequence of the collision.
104 Mr Williams then went on to comment that some medicos do not note a complaint of 'soreness'. He said some medicos simply dismiss that and it is only later, when soreness persists, that it is followed up. The presentation of Mr De Gois to Mr Williams was not inconsistent with advice of later soreness. In fact, Mr Williams documented soreness, not pain and restriction.
105 Further, Professor Mastaglia would not have been surprised if reference to shoulder pain had been omitted from medical records.
106 Dr Silbert also acknowledged that for a patient to simply acknowledge that a particular part of the body feels sore does not carry any medical weight in isolation. In October 2013, he referred only to Mr De Gois' 'right shoulder symptoms', which he then particularized as 'episodic sharp pains within the right shoulder to a maximum of 4 or 5/10 in severity'. He required something consistent with subacromial impingement to support the diagnosis and in this case, it was unable to be supported as at October 2013. He said there is:
No evidence to support any direct causal, temporal, or other relationship between the identified clinical finding at the time of his assessment on 9 October 2013 and the motor vehicle accident of 17 September 2012 and being in excess of one year prior.
107 However, there is evidence to support the causal relationship between the subacromial impingement and the collision and that concerns the mechanics of the collision, including the resultant fall from the scooter. Those mechanics have not been challenged. Further, Dr Silbert reported on Mr De Gois' claim of shoulder pain in October 2013 and there is no evidence of any other event between the collision and the onset of symptoms estimated at six to seven weeks after the collision or at any time thereafter.
108 Dr Silbert justified his pain free assessment in October 2013 saying that it may have been that Mr De Gois saw him on a pain-free day although such pain-free days are not consistent with subacromial impingement. Further, Mr De Gois may have taken medications which he had not declared to Dr Silbert. It is not known what Professor Mastaglia and Mr Williams would have said about Mr De Gois having pain-free days and to have taken medication as these matters were not put to them in cross-examination. They were simply something raised by Dr Silbert in his evidence, after Professor Mastaglia and Mr Williams had concluded their evidence. Mr De Gois was not cross-examined about pain free days, medications not declared to Dr Silbert and massage or heat rub or time which also resolved his symptoms.
109 Given the finding by Dr Silbert of mechanical trauma to Mr De Gois' right shoulder arising from the collision, the findings of right shoulder pain by all medicos except for Dr Silbert in October 2013, and Mr De Gois' reports to Dr Silbert, of only an improved pain state in October 2013, and the lack of evidence of any intervening event, it is more probable than not that Mr De Gois did have shoulder symptoms in October 2013, rather than Professor Mastaglia being simply wrong on his May 2013 assessment and Mr De Gois having recovered between May and October 2013 only to worsen again by July 2014. That was all speculation by Dr Silbert without any evidentiary basis.
110 Dr Silbert said:
There is no corroborating evidence other than the comment that the man made that he has pain in his shoulder and I can't ascribe that to anything on the basis of what has been presented to me in so far as all the evidence that's been presented to me at the moment at the time of this assessment in 9 October 2013 has been baseless with regards to concluding a diagnosis of subacromial impingement and in the absence of even the diagnosis – sorry, notwithstanding the diagnosis there's been no evidence that's been presented to me through the cause – sorry, through the – the period from the time of alleged cause until the time that I assessed the person that fits – fits a picture consistent with subacromial impingement. So the assertion that there's subacromial impingement in October 2013 in my view is baseless. It's not until we get to July 2014 that he now reports symptoms and there's an examination finding that's now positive.
111 This overlooks the positive finding made by Professor Mastaglia in May 2013 of restricted right shoulder movement, even if that problem was not noticeable by Mr De Gois or remembered by him, as he said in his evidence, until six or seven weeks after the collision. It also overlooks Dr Silbert's own observations and probing of Mr De Gois as detailed at [94] above.
112 Dr Silbert also said:
A history of subacromial impingement from a trauma, aka a motor vehicle accident, would present symptoms almost immediately but otherwise measured in days to weeks. It doesn't – it – it's – it's not medically plausible for a condition of impingement to develop months after the fact and in the absence of any symptoms to support that assertion that the – the impingement has been – has developed. And furthermore, the significant negatives here is that this man has played tennis on a weekly basis and returned to his normal activities and undertaken a normal life and not reported any restriction with those for a period of weeks or months between the alleged cause from the motor vehicle accident and at least the first time he was assessed in October 2013.
113 The ultrasound from 27 August 2014, even though performed after Dr Silbert's review in October 2013, supports the clinical finding of subacromial impingement. Its results are consistent with the clinical findings of Professor Mastaglia in May 2013 and October 2014, Dr Silbert in July 2014 and Mr Williams in August and September 2014. Dr Silbert's findings in October 2013 were equivocal. Even he then reported acute mechanical trauma and non-specific soft tissue trauma of the right shoulder which had resolved. The only issue as to the subacromial impingement is as to the date of its onset.
114 The question has been raised as to whether the shoulder injury was caused by an intervening event after the collision, such as tennis. Professor Mastaglia expressed some surprise that Mr De Gois had not had some symptoms in the shoulder during the first six weeks following the collision. He said that if Mr De Gois had been more fully probed then, different information may have been obtained as to of the onset of that pain. Although a little surprised by the time delay before Mr De Gois' stated onset, Professor Mastaglia was not overly concerned with it given the mechanics of the collision, including Mr De Gois' fall, and this was even with knowledge of Mr De Gois' continuation with tennis.
115 Mr De Gois had not told Mr Williams that he continued to play tennis after the collision. Mr Williams thought that would have been of interest. The soreness reported to Mr Williams was not consistent with regular tennis or if it was, then Mr De Gois was playing tennis with a very modified capacity.
116 Mr Williams was of the view that the mechanics of the injury were consistent with the reporting made by Professor Mastaglia and the improvement to the time Mr De Gois saw Mr Williams, although tennis was possibly the cause of the shoulder pain. Further, in Mr Williams' opinion, the shoulder was the least threatening to Mr De Gois' work. He only had a bursitis with impingement. He did not have thickening of the bursa and he did not have a rotator cuff problem. One or two injections could have resolved the bursitis. The work limitations suffered by Mr De Gois were more related to his knee. Mr Williams would have suggested the cessation of tennis in respect of the knee injury.
117 As noted, Dr Silbert was of the view that the shoulder symptoms were caused by something subsequent to the collision. However, that something has not been identified. Mr De Gois rejected the concept that tennis caused his shoulder concerns. There is no reason to reject this evidence. It also impacted on his work but, it was the knee injury which largely caused him problems at work.
118 The shoulder injury has not been a major concern. Professor Mastaglia reported that the shoulder injury 'did not prevent [Mr De Gois] from doing things which need to be done'. This included 'social tennis for short periods from time to time'. On any view, Mr De Gois plays a low standard of tennis. He plays tennis in a modified capacity. As Professor Mastaglia said, Mr De Gois is the sort of man who would simply attempt to shrug off his pain. Information had to be dragged out of him. He is stoical. By way of example, he declined to be kept in overnight at Royal Perth Hospital because he believed that a patient more deserving of care might require the bed.
119 None of the medicos suggested that Mr De Gois was fabricating his right shoulder injury.
120 Mr De Gois was an honest witness, but he was not reliable when it came to matters of time. Mr De Gois was not sure if he had two or three weeks off work, but he returned because he had bills to pay. In fact, he returned to work two weeks after the collision. He said that he only returned to work for four or five months, whereas it was in fact 10 months.
121 Mr De Gois reported shoulder symptoms to Dr Silbert and said they began immediately following the collision. This is inconsistent with his evidence of a six to seven week onset of shoulder symptoms. Counsel for Mr De Gois could not cross-examine him about such prior inconsistent out of court statement. Counsel for the Insurance Commission, Mr D R Sands, may have had his own forensic reasons for not doing so but, it forms part of the report of Dr Silbert which was tendered into evidence by consent even if the six to seven week onset is hearsay evidence from Dr Silbert. The fact that Mr De Gois said it is not hearsay. It may be more accurate than Mr De Gois' evidence, given that it was made one year after the collision, whereas his evidence was given two years thereafter and he is a bad historian given the above examples.
122 Professor Mastaglia and Mr Williams explained reasons for delayed complaints of pain. As Professor Mastaglia said, had Mr De Gois been more fully probed about this, then a more precise time frame may have been elicited.
123 It can be further said that Mr De Gois did not complain of any injury to his right mandible to either Royal Perth Hospital or Dr Ng, but this evidence was not disputed and it is a logical consequence of the mechanics of the collision and Mr De Gois' fall from his scooter.
124 There is probably no record of complaint of a shoulder injury because of Mr De Gois being stoical, making no complaint of it given his other more obvious injuries. But it persisted, and he ultimately reported it to Professor Mastaglia before retiring from work. It affected him at work and in his tennis, for which he seems to have modified his serve. Subacromial impingement has been confirmed by an ultrasound.
125 The source of the pain reported by Mr De Gois has not changed. Nor has there been any change in the clinical findings of symptoms, save for an easing of these symptoms. From Mr De Gois' point of view, the shoulder injury is the same shoulder injury which has troubled him since the collision. There has not been resolution of one injury and then another injury having commenced.
126 In October 2013, Dr Silbert did not find any inconsistences between his examination of Mr De Gois and the description given by Mr De Gois of his injuries. Dr Silbert even found mechanical trauma to the right shoulder from the collision, which he said had resolved fully by October 2013. His own report reveals that Mr De Gois only assessed a 70% improvement at that time. Otherwise, all doctors found the existence of right shoulder symptoms between May 2013 and October 2014. There is no evidence of an intervening event.
127 For the above reasons, it is more probable than not that the subacromial impingement shoulder problems are collision caused.
128 In my view, an appropriate award for the physical injuries suffered by Mr De Gois, together with his pain and suffering and loss of enjoyment of life, is 12.5% of a most extreme case, being $29,250. In the event that the shoulder injury is not collision caused, the assessment would be 10% of a most extreme case.
Future medical treatment
129 Mr Williams believed that Mr De Gois requires 6 to 12 months pool based exercise in order to treat his right knee symptoms. He should also undergo an injection programme dealing with the right shoulder pathology, being two or three injections of steroid and Marcaine with ultrasound guidance spaced at 6 to 8 week intervals to fully resolve the bursitis and restore right shoulder function without the limitations of end range restriction. This will aid his functional capacities and reduce any limitations in terms of the physical rehabilitation efforts required.
130 There will be some need for general practitioner reviews and also the provision of simple low grade anti-inflammatory and pain relief medication under the direction of a treating general practitioner.
131 There is no evidence as to these costs. Some provision should be made for these costs, say $2,500.
Economic loss
132 Mr De Gois was off work for two weeks following the collision. He then returned to work and continued working until 18 July 2013, when he retired aged 65 years.
133 Mr De Gois also claims total loss of income from the date of his retirement to the present and ongoing to age 67 years on 1 March 2015.
134 Economic loss is usually dealt with by way of past and future loss. However, in this case, economic loss can be broken down into two periods. First, for the two week period following the collision when Mr De Gois did not work and secondly, for the period subsequent to retirement on 18 July 2013 until Mr De Gois turns 67 years of age on 1 March 2015.
135 Counsel for Mr De Gois, Mr D R Clyne, submitted that Mr De Gois' work as a concrete truck driver required the ascent and descent of truck ladders as well as climbing into the truck cab and unloading chutes from his truck, connecting and disconnecting them and then reloading chutes back onto his concrete truck. These chutes are used in concrete pours to transport concrete from his truck, across a building site, to the place where the concrete is to be poured. Lifting and carrying them caused knee and shoulder pain, such that Mr De Gois was unable to continue with his work and in consequence thereof, he resigned.
136 Mr Clyne submitted that the issue of causation should be determined by a common sense approach and asking whether it was reasonable, in the circumstances, for Mr De Gois to retire, rather than to endure ongoing pain. Mr Clyne referred to Medlin v State Government Insurance Commission (1995) 182 CLR 1 as follows:
The necessary causation between the defendant's negligence in determination of a plaintiff's employment, in the sense that the termination of the employment is the product or an accident-caused loss of earning capacity, can exist notwithstanding the fact that the immediate trigger of the termination of the employment was the plaintiff's own decision to retire prematurely. If, for example, it appears that a plaintiff's decision to retire prematurely would not have been made were it not for the fact that the effect of accident-caused injuries is that continuation in employment would subject him or her to constant pain and serious risk of further injury, it may well be that commonsense dictates the conclusion that the plaintiff's decision to retire prematurely was a natural step in the chain of causation which suffices to designate, for the purposes of the law of negligence, the termination of the employment as a product of those injuries.
137 Mr Williams, in his evidence, referred to the difficulties Mr De Gois had with respect to his concrete truck work. He accepted those difficulties. One reason was the difficulty in getting into and out of the cab. Another, of particular importance, was the difficulty in climbing and descending vertical ladders on concrete trucks. This was by reason of the patellofemoral chondromalacia and the bursitis with end range restriction. The limitations were more related to the knee which was asymptomatic at the time of the collision. There was pre-existing degeneration within the patellofemoral compartment of the knee. Mr Williams could not estimate when it would have become symptomatic absent the collision. It would have been a guess at 1, 2, 5 years or longer.
138 Mr Williams rejected the notion that Mr De Gois was capable of full-time concrete driving duties notwithstanding that Mr De Gois had told him that he returned to work only for four or five months, whereas in fact it was 10 months, and because Mr De Gois said that he had returned to work on smaller trucks, whereas his evidence was that he had returned to work on larger trucks. These matters did not cause Mr Williams to change his opinion.
139 Mr Williams said he had a greater capacity to understand the work issues than Dr Silbert because, as an orthopaedic surgeon, he had a greater understanding of the pathology and the functional effects of that pathology. He believed that an orthopaedic surgeon had superior qualifications to that of an occupational physician whose specialty was the assessment of capacity to drive a concrete agitator truck. He recognised injury and injury consequences. He had a greater understanding of the treatment needs of pathology.
140 For Mr Williams, Mr De Gois' capacity to work as a concrete driver was not based on his observations of concrete trucks, but on the pathology Mr De Gois had in his knee and how that affected his function, whether as a concrete truck driver or in any other work activity. Mr Williams knew the basic requirements of a concrete agitator truck driver.
141 Professor Mastaglia's evidence supports the views expressed by Mr Williams.
142 However, Dr Silbert was of the view that Mr De Gois was capable at all times of working as a concrete truck driver. In cross-examination, Dr Silbert was queried about his findings and he accepted that, in terms of musculoskeletal assessment, occupational physicians are trained by orthopaedic surgeons, in addition to other disciplines. This adds to the weight of Mr Williams' opinion. His evidence should be accepted in preference to that of Dr Silbert.
143 Compensation is only provided because the loss of earning capacity or the diminution in that capacity is, or may be, productive of financial loss. Mr De Gois retired because of his inability to perform his work functions to a satisfactory level without pain, at least in the right knee. He is entitled to be compensated for his loss of earning capacity, rather than an actual loss of earnings – Medlin.
144 However, Mr De Gois had, and still has, a retained capacity. Each of Professor Mastaglia, Mr Williams and Dr Silbert agreed with that proposition. However, Mr De Gois has not sought to exercise that retained capacity. The Insurance Commission did not seek to prove by evidence that he failed to mitigate his loss – Bowen v Tutte (1990) Aust Torts Reports 81-043. Nonetheless, it might have been difficult for Mr De Gois to obtain alternative employment given his age and lack of full working capacity.
145 The evidentiary onus rests on the Insurance Commission to adduce evidence of what Mr De Gois is or was capable of performing and what jobs have been, and were, open to him with his residual capacity. Even without evidence of what Mr De Gois could have earnt in his given situation, an award for his lost earning capacity can be determined following Dessent v Commonwealth of Australia (1977) 13 ALR 437, 447. In this scenario, the actual loss to the plaintiff must be valued, or as counsel for Mr De Gois put it, it is necessary 'to apply commonsense to this issue … to an otherwise fit man, who had no intention to retire'.
146 On the evidence, Mr De Gois began work two days after arrival in Australia and he worked continuously thereafter up to and beyond the collision. He did not have any plans to retire but, it could be expected that he would have retired by about the age of 67 years. In this case, Mr De Gois was 64 at the time of the collision. He retired at 65 years.
147 It seems that his wife retired a few months after he did. It is not known whether she would have retired had he not done so but, it was Mr De Gois who asked his wife to retire.
148 Mr De Gois' past annual and weekly net earnings history is as follows:
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149 Mr De Gois retired on 18 July 2013. It can be seen, that, he had an average weekly income prior to 1 July 2013 of $741.90.
150 Mr De Gois has suffered two weeks past loss of earnings. He said that each year he received a bonus at Christmas, being a cash payment for unused sick leave. He was paid his usual pay for the two weeks off work, but in turn, he lost his usual sick leave bonus at Christmas 2012. This evidence was not challenged and he is therefore entitled to two weeks sick leave, claimed at $741.90 per week, being $1,483.80, plus interest at the rate of 6% per annum, being $89.03 per annum for 865 days to 30 January 2015, thus making a total of $1,694.78.
151 In terms of past superannuation, the claim is that Mr De Gois was paid 10% of his gross earnings by way of superannuation. He earned $49,759 gross in the 2011 year. Thus, for the period after the collision, he lost $95.69 gross per week or $191.38 in total and in addition to that, interest can be allowed at 6% per annum, being $11.48 per annum for 865 days, being $27.21, to make a total superannuation loss of $218.59.
152 Past economic loss for the two weeks after the collision can be allowed at $1,913.37.
153 The second aspect of loss of earning capacity post-retirement is premised on the earnings of Mr De Gois prior to the collision at the rate of $741.90 net per week from the date of his retirement on 18 July 2013 through to what is said to be an arbitrary proposed retirement age of 67 years on 1 March 2015. This is a period of approximately 90 weeks.
154 Thus, the following can be determined mathematically:
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÷ 365 x 627 days to 30 January 2015, being $10.97 per day |
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÷ 52 x 90 |
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÷ 365 x 627 days to 30 January 2015, being $1.415 per day |
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155 Further, the loss of earning capacity from 30 January 2015 to 1 March 2015 ie, 4 weeks at $741.90 and the provision for superannuation need to be duly discounted to reflect a future loss.
156 Finally, these figures do not provide for any increase in pay levels from the 2012 financial year, as to which, evidence was not led. There then needs to be a reduction for contingencies and Mr De Gois' retained capacity which he has not sought to exercise. He has not sought alternative employment.
157 I will provide $60,000 for this second aspect of loss of earning capacity to age 67 years on a global basis so as to allow for Mr De Gois' retained capacity and contingencies, including his possible retirement absent the collision prior to age 67. Total economic loss is therefore the sum of $61,913.37.
158 In this case, the economic loss suffered by Mr De Gois arises by reason of the knee injury alone. The shoulder injury merely serves to strengthen this aspect of the claim.
Summary
159 Mr De Gois' damages can be calculated as follows:
Loss of enjoyment of life $29,250.00
- Future medical expenses $ 2,500.00
Economic loss and superannuation
benefits (with interest) $61,913.37
Total $93,663.37
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