Holmes v Campbell
[1990] TASSC 82
•19 February 1990
Serial No B5/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Holmes v Campbell [1990] TASSC 82; B5/1990
PARTIES: HOLMES
v
CAMPBELL
FILE NO/S: 182/1986
DELIVERED ON: 19 February 1990
JUDGMENT OF: Nettlefold J
Judgment Number: B5/1990
Number of paragraphs: 113
Serial No B5/1990
List "B"
File No182/1986
HOLMES v CAMPBELL
REASONS FOR JUDGMENT NETTLEFOLD J
19 February 1990
Action by the plaintiff for damages for personal injuries suffered in a collision on 28 June 1985 between the plaintiff's Harley Davidson motor cycle, on which he was riding alone, and a Valiant Charger motor vehicle being driven by the defendant. The collision occurred in the early afternoon at the intersection of the Brooker Highway and Elwick Road, Glenorchy. At the time the plaintiff was travelling in a northerly direction and the defendant was endeavouring to make a right hand turn from the Brooker Highway into Elwick Road.
The evidence establishes clearly that the defendant was guilty of negligence. He was guilty of negligence in two respects, namely:
(1) when endeavouring to turn right he failed to yield right of way to the plaintiff, and
(2) he failed to keep a proper lookout.
This is an irresistible inference from the proven circumstances. Immediately before he commenced the right turn he had an opportunity to check carefully the road to the south for some considerable distance. The inevitable inference is that he must have failed to do so.
The issues of contributory negligence and apportionment of blame are the questions which took most of the time on the liability aspect of the case. The essential allegations against the plaintiff boil down to these:
(1) that he was riding a motor cycle which did not have any brake operating on the front wheel,
(2) he approached the intersection at a speed which was excessive in all the circumstances,
(3) he failed to keep a proper lookout.
It is common ground that the front wheel of the motor cycle did not have any brake attached to it. The explanation for that is that the plaintiff was effecting some repairs to the motor cycle and was waiting for the delivery of some parts. There is a dispute concerning the degree to which the absence of a front brake reduced the braking efficiency of the unit. The defendant's counsel contended that because of the absence of the front brake, the plaintiff had lost more than half the braking power of the unit. It is not necessary to attempt to quantify with accuracy the precise degree of the loss. The plaintiff's counsel contended that the degree of loss was best indicated by the evidence of the plaintiff's expert engineer, Dr Foster. The precise piece of evidence given by Dr Foster on which counsel for the plaintiff relies is the following: emergency stop at speed 70 kilometres per hour, with brakes on both front and rear wheels the braking distance would be 25 metres, but without the front brake it would be 41 metres. That evidence, of course, indicates a very substantial loss of braking power and I am content to proceed on the basis of that piece of evidence.
The clear inference is that both the other allegations have been made out. The plaintiff did approach the intersection at a speed which was excessive having regard to all the circumstances and he did fail to keep a proper lookout. A clear view of the turning van was available to the plaintiff while he travelled over a substantial distance. A reasonable motor cyclist in his circumstances could not assume that the van was the only vehicle attempting a right hand turn at the intersection at the critical time. Had he paid attention to the critical area of the road as he rode from the Goodwood Road junction to the place where this accident occurred, and had he maintained a reasonable speed over that journey, the inference is that it is more probable than not that he would have been able to avoid the collision. He failed to pay adequate attention to the risk which in fact materialised, namely, that there was another vehicle following the van and making a right hand turn across the road. That area of the road required the plaintiff's close attention during his journey from the Goodwood Road junction to the place where the collision occurred. That area of the road should have been given priority and particularly, should have been given priority over the area of the Elwick Road exit on to the Brooker Highway which was to the north of the place where the collision occurred and to the plaintiff's left.
Counsel for the plaintiff contended that there should not be a finding of contributory negligence against the plaintiff because, even assuming the plaintiff was careless in the respects indicated above, the defendant had not proved that any carelessness of the plaintiff caused or contributed to the injuries suffered by the plaintiff. I reject that argument for the following reasons:
(1)the argument fails to give due weight to the proposition that the proof required is proof on a balance of probabilities, not proof to the point of certain demonstration, and
(2)the argument gives excessive weight to the situation the plaintiff actually found himself in when, finally, he attempted avoiding action and too little weight to the situation which probably would have existed had the plaintiff travelled at a speed which was reasonable in the circumstances, kept a proper lookout and used a motor cycle equipped with reasonably efficient brakes.
In considering the problem of apportionment of blame one must have regard to what is just and reasonable having regard to all the circumstances of the case. Particular attention should be given to the degree to which the conduct of each driver fell short of what should be expected of a reasonable driver in the circumstances and the degree to which the conduct of each driver caused or contributed to the damage suffered by the plaintiff. Giving due weight to all the relevant circumstances, in particular, the aspects of culpability and causation, the apportionment should be weighted quite heavily against the defendant. The primary cause of the accident undoubtedly was that the defendant was in breach of a basic rule of the road. And the defendant's driving was of a distinctly poor standard. The passage in the evidence which illustrates that best is the following passage in the evidence of Mr Woods (transcript pages 224–225 – a summary only):
"The traffic waiting to turn right consisted of a Mitsubishi van and a green Charger. As I approached the Elwick Road junction the van proceeded to turn right into Elwick Road across the front of all the traffic and the green Charger followed. The Charger seemed to take off and then sort of hesitate and then speed up a bit more again and then seemed to hesitate again. Well he seemed to rev up fast to follow the van and then slowed down again as well".
Later (page 227) Mr Woods said:
"Well the Charger when it hit the motor cycle had stopped about a quarter of the way in my lane, and there was a lady in the Commodore alongside me. I just sorta used evasive action to try and get around the Charger without hitting the Commodore alongside me. Well, I swerved over to my right hoping that the lady in the Commodore would move over so that I could get past the Charger without hitting it and the other car as well. ... I had nowhere to go but to the right otherwise I would have hit the Charger myself".
A further aspect of the apportionment issue is that the relevant breaches of duty for which the plaintiff is responsible are breaches of a "self regarding duty".
Having regard to all the circumstances the appropriate result is that the plaintiff's damages should be reduced by twenty per cent.
On the liability aspect of the case I do not find it necessary to make lengthy detailed findings of fact. However, it is necessary to make a number of comments.
The plaintiff is an honest witness. But, on important matters bearing on the liability aspect of the case, his recollection is unreliable. He suffered a dreadful injury which has adversely affected his recollection of his journey from Goodwood Road junction to the accident. I am satisfied that a good deal of his "evidence" about that journey is speculation based on reconstruction.
The tortuous exercise engaged in by a distinguished engineer for each side purporting to show the speed of the plaintiff's cycle after impact, or at impact (the claim varied) was of no value at all. In each case it was an attempt to weight scientifically a series of connected conjectures of necessarily unascertained value. In addition in the context of this case it was of no value because it cannot give a result which is as specific as the evidence of the eye–witnesses. All it does is point to a wide range of speeds, so wide that it does nothing to resolve the real conflict. It merely points out that conflict.
There is some significant error in the evidence of each of the eye–witnesses. I find the evidence of Mr Woods and Mrs Symmons the most helpful but there is something to be gained from the evidence of Mr Sainsbury and Mr Price but both Mr Sainsbury and Mr Price were very young at the time, there are conflicts between them and their evidence should be approached critically and with restraint.
I propose to note a few additional observations about the eye–witnesses.
Mrs Symmons was a front seat passenger in a vehicle travelling north along the Brooker Highway through the Goodwood Road junction and towards the Elwick Road junction. Her vehicle was in the lane next to the median strip. It was travelling slowly with no traffic ahead of it in that lane between it and the Elwick Road junction. There was another vehicle (Mr Wood's vehicle) in the centre lane and slightly ahead of Mrs Symmons' vehicle as they drove towards Elwick Road junction. At some point between the Goodwood Road lights and Elwick Road Mrs Symmons heard the plaintiff's motor cycle travelling over to her left.
Mr Woods travelled in the centre lane through the lights at Goodwood Road. Mr Woods clearly saw the Mitsubishi van and the defendant's vehicle waiting to turn right into Elwick Road. Mr Woods noticed the plaintiff in the left lane. He heard the noise of the plaintiff's motor cycle at about the time he travelled through the Goodwood Road junction. Mr Wood's best estimate of his own speed approaching Elwick Road – it is really an impression of speed not being based on any speedometer reading – is 50 – 55 kmh. As Mr Woods headed towards Elwick Road, still in the centre lane, the plaintiff passed his vehicle and approached the intersection just in front of his vehicle. Then, in an apparent attempt to avoid hitting the defendant's vehicle the plaintiff sped up, leaned his cycle to the left, and tried to go around the Charger.
The cross–examination of Mr Woods made it clear that Mr Woods had a good view of the Elwick Road intersection and the traffic at that intersection and there is no reason why the plaintiff did not have available to him just as good a view in time to adjust his conduct so as to take an appropriate "defensive driving approach" to the task of driving through the Elwick Road junction. Mr Woods said that he continued towards Elwick Road at a constant speed and the plaintiff "was gradually increasing the distance between us".
Mr Woods said that, when the Mitsubishi van was turning across his path, he was approximately half way to the intersection and had no difficulty avoiding the van.
Mr Sainsbury's impression was that the plaintiff's cycle was travelling at a speed within the range 60 – 80 kmh when it was at a point fairly close to the Goodwood Road junction.
Mr Price's rough impression was that, near the Goodwood Road lights, when the plaintiff's cycle passed, the plaintiff's cycle was travelling at, roughly, 65 – 70 kmh. And he said, "when he went passed he was accelerating but not too quickly I watched the black motor cycle (the plaintiff's motor cycle) after it passed me. It was constant acceleration but not very fast acceleration, constant slow acceleration". Mr Price said that later the plaintiff attempted to avoid the collision and accelerated further.
The essence of the plaintiff's evidence on the question of speed was that he could not state accurately his speed as he passed from the Goodwood Road junction towards the Elwick Road junction but his best estimate of that speed was between 60 and 80 kmh. He said that that range of 60 – 80 kmh applied before he dropped a gear and accelerated in an attempt to avoid the collision.
On the whole of the relevant evidence the probability is that, immediately before the plaintiff accelerated and swung left in an endeavour to avoid the collision he was travelling at a speed not less than 70 kmh. Bearing in mind that, to his knowledge, there was no brake on the front wheel of the motor cycle that was a speed which in the circumstances was excessive.
DAMAGES
The plaintiff was born on 30 October 1950.
In the accident the plaintiff suffered a traumatic amputation of his right leg approximately 7cms below the knee and a dislocated right hip. He experienced great pain immediately after the accident. He was taken to the Royal Hobart Hospital. He remembers signing a paper there but then he remembers nothing further until some days later.
On 28 June 1985 an operation was performed in which there was an excision of dead and contaminated tissue, reduction of the hip and the insertion of a steinman pin. On 30 June 1985 a laceration of the upper right thigh was sutured and there was further debridement of the stump. On 2 July 1985 there was further debridement and closure and screws were put in the upper fibula. On 6 July 1985 there was further revision. On 7 July 1985 there was further debridement, change of dressings and removal of the steinman pin. On 9 July 1985 there was a change of dressings and debridement. On 10 July 1985 debridement and revision were undertaken. The following day there was further debridement and a change of dressings. On 14 July 1985 the procedure involved change of dressings, and suturing. On 15 July 1985 there was revision and suturing of the muscle layer of the stump. On 17 July 1985 the dressings were changed. On 22 July 1985 there was a change of dressings and harvesting of skin from the left thigh. On 24 July 1985 a split skin graft was applied to the stump. All of that treatment was received during the period of the plaintiff's first admission to the Royal Hobart Hospital from 28 June 1985 to 9 August 1985.
The plaintiff spent a further period in the Royal Hobart Hospital from 13 September 1985 to 23 September 1985. On the day of that admission there was a procedure involving debridement of the stump and a split skin graft from the left thigh.
The plaintiff was a patient at the Royal Hobart Hospital again during the period 27 September 1985 to 7 October 1985. During that period, on 30 September 1985, there was further debridement of the stump and the epiphyseal bone was underscored and closed.
The plaintiff was admitted to the Royal Hobart Hospital again on 14 January 1986 and remained there until 22 January 1986. On 16 January 1986 there was an excision of infected sinus and osteomyelitic head of the right fibula. The wound was closed on 17 January 1986.
The plaintiff's fifth admission to the Royal Hobart Hospital was on 21 May 1986. He remained there until 6 June 1986. On 22 May 1986 a split skin graft from the left thigh was applied to the stump.
The next admission to that hospital was on 24 June 1986 he being discharged on 26 June 1986. During that period a femoral angiogram was done the idea being to show up the blood vessels of the stump.
The plaintiff was in that hospital again on 22 September 1986 until 7 October 1986. On 24 September 1986 a free left forearm flap was applied to the stump and a split skin graft from the left leg applied to the forearm.
On 2 December 1987 an excision of neuroma was performed at St Helens Hospital. The plaintiff was in that hospital again on 23 November 1988 to 24 November 1988 for excision of stump neuroma.
On 31 January 1989 to 2nd February 1989 the plaintiff was a patient at St Johns Hospital for the trial of a TENS machine.
On 7 April 1989 a right lumbar sympathetic block was performed by Dr Jackson at Calvary Hospital.
On 25 May 1989 to 27 May 1989 the plaintiff was in the Royal Hobart Hospital for scar revision of the right stump.
After the plaintiff's discharge from the Royal Hobart Hospital on the first occasion he became an in–patient at the Douglas Parker Rehabilitation Centre. At that stage he was using a wheel chair. On the day before he went to that Centre he was taught to use crutches.
At the beginning of his first period in the Royal Hobart Hospital he was receiving an injection every four hours. After some time he refused to have them because "I hate people who use needles". After that he was given tablets instead of the injections. It was more painful after refusing the injections.
On admission to the Douglas Parker Centre he was still taking the tablets and the leg felt painful. At that stage he lived at the Centre for some weeks.
The first artificial leg which he received was a slip socket leg. Since then three more prostheses have been prescribed for him. He still has these three but not the original slip socket one. He is now wearing the third conventional artificial limb. He finds that the stump is not comfortable, it aches and is not the shape of the prosthesis. He is waiting for a new prosthesis to be built. He changed to the present prosthesis six weeks ago. At the present time at most he can wear it for half an hour four times per day. When he is not wearing it he uses crutches or "hops". He uses a walking stick with the prosthesis when the leg is hurting enough to warrant it and, lately, that is nearly all the time.
He suffers phantom pains which he describes as feeling as if the foot which is not there is being torn off. Lately he gets that type of pain once or twice per week, sometimes once per fortnight. Bad attacks of this type of pain last 5 to 10 minutes and at other times it is just a stabbing pain and then it is gone.
He takes pain killers when the pain is "real bad", about four pain killers per week.
Dr Jackson has introduced him to the TENS machine in the hope of helping him with the pain. He uses it only for phantom pain and estimates he uses it 2 – 3 times per month.
He does not have any trouble from the dislocated hip.
The plaintiff is a single man who lives alone. He has a daughter aged 4 years who lives with her mother in Moonah. He sees her once or twice per week. In the early stages he could not pick up the child. Now he complains that he cannot go for long walks with her because the leg aches.
Before the accident the plaintiff was a dedicated motor cycle enthusiast. Other pastimes were fishing, shooting and dancing. Since the accident he has not been able to ride a motor cycle. He has not been fishing since the accident. Before the accident he went fishing once per month. He went to "out of the way places" to fish. He feels that now he could not negotiate the rough country to get to the fishing spots. He has not been shooting since the accident. Before the accident he went shooting once every couple of months. Again he does not feel that he could cope with the rough ground. He has tried dancing twice since the accident but it proved to be painful. He will try dancing again if the leg improves. Before the accident he would do some dancing once per week for about an hour.
For transport he uses an automatic car. He cannot use a car which is not automatic.
The plaintiff left school when 16 or 17 years. He was attending school in Papua New Guinea at that time and obtained a certificate which was the equivalent of the Schools' Certificate. His first job was as a sales assistant in a hardware store in Rabaul. He held that position for about 12 months. Then he became a carpenter's labourer in Rabaul. That job lasted 6 – 12 months. Then he got a job as a sales assistant in a hardware shop in Brisbane for 3 – 4 months. Then he went to the Department of Works, Darwin where he worked as a carpenter for 1 – 2 years. Then he rode around Australia and, during that time, he did some work as a carpenter's labourer and as a general labourer. Then he came to Tasmania and spent 18 months doing national service training. He performed cooking duties in that period. On discharge he worked as a cook for about 4 – 6 months at the Launceston General Hospital. Then he worked as a carpenter for KJ and D Wood of Hobart for 12 – 18 months. Then he went to Keith Hewett Constructions doing concrete boxing work at the Zinc Works. That lasted only 1 – 2 months. The remaining work can be listed as follows:
KP Smith as a carpenter about 3 months; Renison Bell Zeehan – house maintenance about 12 months; G & H Builders house and store renovations 6 months; Heckler–Rowe (Melbourne) maintenance carpenter about 8 – 12 months after national service; Kings Towbars and Trailers carpenter – four years and still there at the date of the accident.
In his last job before the accident he was designing and building caravans and transportable homes. At the time of the accident he was a leading hand. In the slack periods he supervised two carpenters and three or four labourers and at other times he supervised up to four carpenters and about six labourers. At the time of the accident he had been a leading hand for about eight months. Of course he has not been able to return to that work.
At the time of the accident he was building a campervan for his own use. He has not touched it since the accident.
The plaintiff has not served an apprenticeship as a carpenter. Despite that the plaintiff's employer said there was a likelihood of the plaintiff being a foreman. The plaintiff intended to stay on at Kings for a few years and, if he had enough capital then, he intended to start his own business building and repairing caravans.
Now, with his disability, his ambition is to set up a business building motor cycles with three wheels and selling and repairing motor cycles. He feels he would need lifting equipment and retractable leads. He would need to get help to test ride the motor cycles and help with accountancy. There is no doubt that motor cycles are his great interest. Since the accident he has taken some steps to further that interest. He enrolled in an Adult Education course for fitting and turning. It was a ten week course one night per week. He could not attend the last two nights of the course as his leg was too sore.
Because of the distress of the accident he drank to excess over a period of two years but that is not a problem now.
Following the accident his sex life decreased severely due to loss of interest and embarrassment from the disfigurement. However the evidence does not show that that problem persists. His only complaint about that subject which relates to the present time is a complaint about feeling embarrassed about the condition of the leg.
The orthopaedic surgeon Mr Bye was involved in the plaintiff's early treatment. He explained the great difficulty which has been experienced in treating the stump. He explained that the plaintiff had a jagged, dirty crushed type of amputation which devitalised the tissues. Unfortunately the amputation was very near the knee joint and the surgeons were desperately anxious to preserve that joint. That is part of the reason why it took so long and is still taking so long to get adequate soft tissue cover.
In February 1987 an examination of the right hip by Mr Bye showed a normal range of pain free movement. The knee joint was stable and normal and did not disclose any problem.
Mr Bye explained that as the crush amputation was very near the knee it was unsafe to remove much of the bone of the tibia because it may cause trouble with gripping a prosthesis. There is not much room to work with the soft tissues and the bone is so short. Consequently a lot of pressure is being exerted on those soft tissues overlying the bone so when he wears a prosthesis there is unreasonable pressure on that soft tissue causing it to break down.
X–rays of the hip area showed that the dislocation was soundly reduced. There was no problem with the femoral head. As to the ball and socket in the hip joint the ball was good but the outer edge of the socket is where some bone had been knocked off but that was settling well although it showed a little bit of irregularity.
Mr Bye said that the surgeons could not get good skin closure there being too much crush and too much dirty tissue. In an attempt to get more space and take some of the tension off the soft tissues and because of persistent discharge from the plaintiff's leg the smaller bone in the leg, the fibula, was amputated to create more space, so that there would be the removal of a septic focus and also to allow space for the soft tissue to be brought together to enable it to heal.
On examination of the plaintiff on 10 November 1989 Mr Bye found that the plaintiff has one quarter of his tibia left. That does not give a prosthesis much room to work.
Mr Bye said that there are many difficulties with a stump of this length and the plaintiff is exhibiting some of them. There is so little room for the attachment of the artificial leg that it can move and cause rubbing and ulceration. There is such a small volume of tissue below the knee there is too much pressure on it which could cause ulceration. If he is fitted successfully with an artificial leg a lot of stresses could be placed on the knee which could quite easily produce a mechanical problem in the knee itself.
Mr Bye said that he had a lot of optimism for the plaintiff in him being able eventually to get going with a good below knee prosthesis. Mr Bye feels that, if you can preserve the knee joint of an amputee, he can have an extremely good quality of life and ambulation. In view of that, if the plaintiff developed infection in the tibia itself it would be an "absolute calamity" for him because that would probably end up with a through knee or above knee amputation. But there does not appear to be any evidence of such infection at the present time. Mr Bye feels that it is more likely than not that such infection will not happen.
But Mr Bye would not be surprised if the plaintiff will need some minor revision. He is experiencing some aches and pains and Mr Bye can see one small area which he thinks may need to be excised in the next few months. If that minor surgery is not successful he may need another free flap where some soft tissue is taken from another part of the body to achieve a good bulk of soft tissue. That procedure is quite a significant one.
Mr Bye expressed himself as remaining optimistic that eventually the soft tissue will be stabilised. He said he could well imagine the plaintiff will be able eventually to perform light manual duties for eight hours per day, maybe ten hours per day.
Mr Bye feels that the probability is that the present level of phantom pain will continue.
Mr Bye says that the plaintiff should not do work involving the use of ladders or scaffolds. He can imagine the plaintiff having some difficulty, even when he does get his ideal stump, if he has to be on his legs all the time. But Mr Bye's perception of the plaintiff is that he is a trier with the right approach and he will find himself something to do once the stump stabilises. However, Mr Bye cannot imagine that the plaintiff would be able to put in an employable eight hours per day, five days per week at cabinet making, furniture making or joinery. The shortness of the stump must be kept in mind when considering his capacity for work of that kind. He feels the plaintiff could do light work as a sales assistant particularly if he could arrange to have some stools around so he could rest from time to time.
The surgeon Mr Heddle is of the opinion that the plaintiff's stump will be adequate for normal use. He said that, sometimes, stumps give so much trouble that above knee amputation is necessary but he does not think that is likely in this case. Mr Heddle's advice is that the plaintiff will need a new prosthesis every 2 – 3 years. Mr Heddle feels that if the stump–cover can be corrected the plaintiff should be able to wear his leg quite satisfactorily. But because of the nature of the stump Mr Heddle has a certain amount of reservation on the question whether the plaintiff will have further trouble. If he does strike further trouble it will be treatment for painful neuromita and he might need plastic surgery if the skin or the scars give trouble. Only actual functioning will tell us whether this treatment will be required.
Mr Heddle advised that the plaintiff had surgery by Mr Pohl as recently as May 1989. The problem then was that there was a shark's mouth scar on the stump causing discomfort when wearing the limb. The scar was excised. Mr Heddle said that in the short time he has seen the plaintiff since the operation it appears that it was successful but it will not be possible to tell whether it was successful until he is fitted with a new limb and there has been a proper functional trial.
Mr Heddle finds that the plaintiff is a very resilient person with a good morale with a very positive attitude to his injury and keen to get back to as normal a life as possible.
An experienced neurosurgeon, Mr Duffy, expressed the view that if the plaintiff still has phantom limb type pain the likelihood is that it will continue more or less at the same level as it is now. Pain killers are not particularly effective in treating that type of pain.
Mr Duffy said that the plaintiff could develop further stump neuromita which could be excised if the symptoms warranted it. Such a procedure would involve a day or two in hospital. The plaintiff would not be able to wear his artificial limb for about one month after the surgery and Mr Duffy feels that there will always be the possibility of stump neuromita developing. There is a possibility of infection causing pain. Skin abrasion from the artificial limb might also produce pain.
Dr Jackson, an anaesthetist with extensive experience in managing chronic pain, gave evidence that patients who have actually developed phantom limb pain and still have it after a number of years do not appear to get any significant relief from any therapy. Dr Jackson is not aware of any treatment for phantom limb pain which would be appropriate for Mr Holmes other than the use of the TENS machine. Dr Jackson feels that it is likely that the plaintiff will continue to suffer from phantom limb pain for the rest of his life with the severity of it remaining the same as it is now.
Dr Jackson feels that on the basis of the relief which the plaintiff has had from the TENS machine he will require the on going use of it for the rest of his life on the basis of it being a non–drug method of pain relief. It has to an extent afforded him some relief. Dr Jackson said that the gist of it appeared to be that the machine appeared to reduce the frequency of the attacks of this type of pain rather than reduce the severity of the pain when an attack occurs.
The orthopaedic surgeon called by the defendant, Mr Patrick Browne expressed the opinion that, if the plaintiff perseveres he will find himself a reasonably satisfactory prosthesis. Mr Browne thought that it will be about 18 months before the plaintiff settled into a satisfactory prosthesis. Mr Browne feels that there will be revisions of the prosthesis for the rest of the plaintiff's life but, as time goes by, the revisions will be less frequent.
Mr Browne expressed the view that the plaintiff would not be able to return to the work he did before he was injured. Mr Browne felt that, in due course, the plaintiff would be fit for bench work or a sedentary occupation. Mr Brown's term "bench work" embraced mainly sitting or standing for just short periods and doing light engineering work, small motor mechanic type work. He felt that the plaintiff could probably operate a motor bike shop. He felt the plaintiff would be better off being self employed so that he could adapt his work to his symptoms. Mr Browne felt that the plaintiff could drive a cab but he would find it difficult to stick to a precise time table. He felt the plaintiff could also drive a light delivery van but he would find difficulty in loading and unloading.
During cross–examination Mr Browne was asked about the possibility of a re–amputation through the knee proving necessary. Mr Browne replied that it was difficult to answer the question because there are so many factors involved. He said that the plaintiff has a rather scared below knee stump "and if you're asking me in the next 25 years how likely that is, I would say there's probably about – there may well be somewhere between a thirty to fifty per cent chance. ... You know as people get older so they're more likely to get arteriosclerosis in their lower limbs and that is liable to happen with Mr Holmes and I think he might get problems with that as the years go by I'm saying sort of a thirty to fifty per cent chance".
Mr Browne thought that there was a fair chance of the plaintiff having trouble with his right hip in the future. He is liable to get osteoarthritis. This might occur in 15 – 20 years. Mr Browne thought that the osteoarthritis would incapacitate the plaintiff in much the same way as an ordinary patient. But, particularly if he lost his knee joint, he would be less able to accommodate his prosthesis on his lower leg because of the limitation in the hip movement. Probably the pain he would suffer when he wore a prosthesis would be greater and what would probably happen is that, if he needed a total hip replacement, it would probably be performed earlier than would be the case with a normal patient. Once he actually had his hip replacement it would not make much difference.
Mr Browne noted from x–ray report that the shape of the injured hip was not normal and this was secondary to the dislocation of the hip.
Mr Browne explained that the plaintiff has trouble kneeling because his range of knee movement is only 10 to 100 degrees. Full knee bend is about 150 degrees. Because of that limitation if the plaintiff wanted to squat down, he would pretty well have to squat down like a cossack dancer with one leg straight.
The old saying that each case turns on its own facts should be kept steadily in mind when considering an appropriate assessment of damages for this plaintiff. There is a great temptation to give excessive weight to the well known circumstance that a lot of amputees with below knee amputations do very well. To equate this plaintiff's condition with some notion concerning the assumed condition of some average below knee amputee is to do an injustice to the plaintiff by failing to recognise that there are two unusual and serious features of his injury. The first such feature is that the amputation was not effected in an operating theatre by a skilled surgeon having some room to choose the precise level at which amputation is to be effected and producing only the one scar. This is a traumatic amputation the nasty nature of which has been described above. As a result of this traumatic amputation there was a lot of scarring. And the level of the amputation is, as previously mentioned, very close to the knee. Consequently there has been great difficulty in preparing the stump adequately to accommodate a prosthesis which will prove to be compatible.
Those features of this amputation make this a very serious injury. The pain, suffering, frustration and inconvenience which the plaintiff has experienced up to the present time has been outlined sufficiently and need not be repeated.
It is clear from, in particular, the evidence of Mr Bye and Mr Browne that the plaintiff will need further revision work throughout his life, the frequency of treatment decreasing as the years go by. At the time of trial the probability was the plaintiff, in the course of the following few months would need to have the small area excised which was causing trouble, and which was specifically referred to by Mr Bye. If that procedure was unsuccessful there was a risk that the plaintiff would need the "free flap" grafting procedure which Mr Bye described as quite a significant procedure.
Over four years after the accident the plaintiff has no certain assurance that he will get a satisfactory prosthesis. The medical experts are agreed that it is more probable than not that eventually, he will obtain a satisfactory prosthesis. But, at the time of the trial, as already mentioned, he was relying on the third conventional prosthesis which he could use to only a limited extent as it caused aching and discomfort.
The medical evidence concerning the phantom limb pain is all to the same effect, namely, that he will continue to experience that type of pain at the present level for the rest of his life. He will need to continue with the TENS machine for the rest of his life.
On the whole of the relevant evidence it is more probable than not that the plaintiff will avoid an amputation through or above the knee. But Mr Browne's answer during cross–examination concerning the risk he saw of such an amputation occurring must be given weight. That answer by Mr Browne grounds the conclusion that there is a significant risk amounting to a substantial possibility that the plaintiff will suffer such a calamity late in his life.
On the evidence of Mr Bye one must conclude that there is a possibility that the artificial limb could put sufficient stress on the knee to produce a mechanical problem in the knee. One must not overlook the reduced degree of flexion in the knee producing the problem with squatting and kneeling already mentioned.
The medical evidence outlined above shows that there are some abnormalities in the hip. On the evidence of Mr Bye there is a little bit of irregularity arising from the fact that there is some bone knocked off the outer edge of the socket. The defendant's surgeon Mr Browne accepts that there is a fair chance of osteoarthritis developing in the hip and that this might occur in 15 – 20 years. The likely consequences of the development of the osteoarthritis are those set out in the above summary of the evidence of Mr Browne.
This is a type of injury which will prove a continuing disadvantage to the plaintiff throughout his life. His experience on stairs exemplifies that point.
One should now recall the main elements in the loss of amenities outlined in the above review of the evidence. He is a great motor cycle enthusiast who cannot ride now. There are the problems with his fishing, shooting and dancing activities. When he gets a satisfactory prosthesis, he should be able to resume those activities but, of course, in a more restricted way. The sexual problem requires no further discussion. His car driving is restricted to automatic vehicles. And it is recalled that he has not been able to go on long walks with his daughter. With a satisfactory prosthesis, of course, he will be more mobile and experience less pain and discomfort.
The scars on the donor sites, particularly the unsightly scars on the left forearm, and the operation scar on the hip must be given weight.
At the time of the accident the plaintiff had a good work record. He had a lot of experience doing the work of a carpenter. He was at a disadvantage, however, in that he had not done an apprenticeship. He appears to have learnt on the job. He had held the job he had at the time of the accident for four years and had been paid as a leading hand for eight months. On the evidence the plaintiff had some chance of advancement to the rank of foreman in the employment he held at the time of the accident. He impressed as a person with a good personality and, consequently, his ambition to set up his own business building and repairing caravans was a realistic one.
It is agreed that if the plaintiff had continued with his pre–accident employment with King Trailer Industries Pty Ltd as a leading hand carpenter in charge of from two to five other employees at the time of the trial he would have been earning $361.01 per week, after deductions for income tax and the Medicare levy.
In considering the degree of impairment of the plaintiff's income earning capacity it should be kept steadily in mind that the plaintiff would be acting unwisely if he subjected the small amount of tissue which he has below the knee to excessive stress. He must be careful to do all he reasonably can to avoid the risk of a through the knee or an above the knee amputation an outcome which Mr Bye described as a calamity. He should work comfortably within his limited physical capacity. On the evidence the reasonable conclusion is that he has lost his trade. He could not reasonably expect to make a living as a carpenter, or a joiner or a cabinet maker or furniture maker.
His capacity for work will be extremely limited until he settles into a satisfactory prosthesis, which on the evidence will be in about 18 months.
The reasonable conclusion is that he should not attempt to cope with employment which would involve him being on his feet all day. I call attention again to the limited bulk of tissue below the knee and the vulnerable nature of the stump.
The essence of the medical evidence is that, always assuming that he can obtain and retain a satisfactory prosthesis, he should be able to do light manual work provided there are adequate opportunities to rest the leg.
He has the physical capacity to perform sedentary work. But he does not have the necessary training for clerical work with the consequence that his chances of obtaining a sedentary job are very limited.
The evidence suggests that he has a considerable knowledge of motor cycles. The probability is that he could prove to be a valuable employee in a motor cycle shop, selling and advising about motor cycles. But, of course, the amount of time he would spend standing would need to be limited.
He should be able to work as a taxi driver provided he can persuade the authorities to grant him a public vehicles licence. The evidence does not enable one to predict the likely outcome of an application by him for a public vehicles licence. Obviously he would have difficulty with some aspects of a taxi driver's duties, for example, handling luggage other than light luggage and helping elderly and disabled passengers. There is medical evidence that he would have difficulty keeping to a time table as a taxi driver.
He could also drive a light delivery van but subject to obvious restrictions in relation to loading and unloading.
As Sir Ninian Stephen once observed the obvious and strong tendency is for people as disadvantaged as this to find that each time some able bodied person is given preference over them. And all you gain from running second in a race with one prize is further frustration.
The plaintiff has a better chance of getting small part time and odd job type work. In that area he could still make some use of his skills as a carpenter.
As one of the medical witnesses observed, if it could be arranged, the plaintiff would be better off self employed because he could more readily adapt his activities to his symptoms. With a substantial lump sum for damages his chance of functioning in a self employed capacity is increased. And he has the necessary personality resources to function in that way.
On this aspect of the case one should not confine the discussion to the plaintiff's own plans for the future. For one must assess his residual capacity, the scope of which is not confined by his own plans. There is no doubt what he plans to do. He has given thought to that proposal but there has not been any market research done nor any feasibility study. While that remains the position the project is a gamble. If he goes ahead with that there are several obvious difficulties. He will be a slow worker, he will need special equipment which will prove costly to obtain, maintain and replace, he will need time off occasionally for treatment, he cannot do test rides on cycles and he has no business or book–keeping experience.
The less favourable scenario for this gravely injured plaintiff is that he will not obtain or retain a satisfactory prosthesis and will require a through knee or above knee amputation. Those possibilities must not be denied weight.
Counsel are agreed that table 3 in Luntz: Assessment of Damages 2nd ed p544 may be used. That discloses that based on the Australian Life Tables 1975–77 3.0 per cent the value of a regular income of $1 per week to a male aged 39 years ceasing at 65 years is $883. On the same basis the value for an income of $361.01 per week is $318,771.83. The question then arises of what allowance is to be made for adverse contingencies. Having regard to the plaintiff's prospects of advancement at the time of the accident, contingencies are allowed for sufficiently if the figure of $318,771.83 is reduced to a round figure of $300,000.00. My overall assessment of the evidence which has been outlined at length is that a fair, reasonable and just estimate of his loss of income earning capacity would be gained if he were treated as retaining an income earning capacity which is 40 – 45 per cent of pre–accident capacity and if he were allowed 55 – 60 per cent of the above figure or, in other words, a figure within the range $165,000 to $180,000.
There is no doubt that an award for pain, suffering and loss of amenities is a largely conventional figure reflecting the practice of members of the court in assessing damages for personal injuries. That is made clear by the decision in Chenery v Cole No 34/1984. In assessing a figure under this head some amount should be added to cover the cost of possible future surgery which, on the evidence, cannot be quantified with any accuracy. The items adverted to are scar revision contemplated by Mr Bye with its possible alternative of free flap plastic surgery, through knee amputation and possible surgical work following development of osteoarthritis in the hip. The figure to be added in should only be small because, scar revision apart, we are dealing with mere possibilities remote in time. An appropriate figure under this head is within the range $65,000 – $75,000.
There is a memorandum of agreed facts which shows that the following amounts must also be awarded:
Loss of wages to 241189. $72,379.47
Special damages. $40,284.18
Damages for services gratuitously
rendered by others (Griffiths v.
Kerkemeyer). $861.90Cost of TENS machine, battery
charger and battery to be purchased
by the plaintiff. $485.00
Cost of patches to be purchased by
the plaintiff over the rest of his
life for use in connection with the
TENS machine. $963.00
Future medication expenses. $2,140.00
$117,113.55
Reference must now be made to the hand written memorandum prepared by Mr Blow. The following amounts should be allowed in accordance with his calculations:
Prostheses, repairs thereof and socks
therefor. $ 15,363.24
Zippers. $ 3,005.60
Walking sticks, ferrules for walking
sticks, crutches and ferrules for
crutches. $ 843.88
$ 19,212.72
It was submitted that there should be some discount of that figure of $19,212.72 for contingencies. Broadly for the reasons given by Windeyer J in Bresatz v Przibilla (1962) 108 CLR 541 at p.546 I do not propose to allow any discount.
The final step is to consider whether the total final figure thus arrived at is a just and reasonable one and to choose a figure from the range for each main head of damages.
For these reasons the plaintiff's damages are assessed in the sum of $371,326.27 made up as follows:
Impairment of income earning capacity. $165,000.00
Pain, suffering, loss of amenities. $ 70,000.00
Special damages as listed in memorandum
of agreed facts. $117,113.55
Special damages from hand written memo. $ 19,212.72
We shall need an up to date figure for scheduled benefits paid to the plaintiff before entering final judgment.
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