Jones v Cumming

[1991] TASSC 182

Serial No B68/1991
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Jones v Cumming [1991] TASSC 182; B68/1991

PARTIES:  JONES, Leon Charles
  v
  CUMMING, Barry

FILE NO:  247/1990
DELIVERED ON:  20 November 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  B68/1991
Number of paragraphs:  9

Serial No B68/1991
File No 247/1990

LEON CHARLES JONES v BARRY CUMMING

REASONS FOR JUDGMENT  ZEEMAN J

20 November 1991

1. The plaintiff was a passenger in a motor vehicle being driven by the defendant at Ridgley on 3 October 1987. That vehicle was involved in a collision, apparently with a power pole, as a result of which the plaintiff suffered various injuries to his left arm. The plaintiff claimed that he suffered his injuries as a result of the negligence of the defendant. The defendant admitted liability, and on 13 August 1991 by consent interlocutory judgment was entered against the defendant for damages to be assessed. It is my task to assess those damages.

1. The plaintiff is aged 29 and qualified as a bricklayer. Notwithstanding that qualification he has been engaged in a wide variety of work, much of it unrelated to bricklaying. At the time of his accident he was employed by the Municipality of Wynyard. He had been in its employ since 5 February 1981. Prior to commencing that employment the plainitff had completed his apprenticeship in bricklaying with the Victorian Housing Commission. Following that he had had short periods of unemployment and had worked for four months as a pipe layer and labourer. When the plaintiff commenced employment with the Wynyard Municipality it was as a casual concrete worker and labourer. After eighteen months he became a permanent employee. Although the plaintiff said that he then "went full time" I infer that he meant that his employment then became permanent. After several years his skills as a bricklayer were utilized on those occasions when his employer required bricklaying work to be performed. That position continued to prevail up until the time of the plaintiff's accident (and indeed afterwards) although at the time of the accident the plaintiff's employer was engaged in a particular project requiring the performance of a substantial amount of bricklaying. As a result the plaintiff was spending up to 4–6 hours per day in bricklaying at that time. Unless otherwise indicated I accept the plaintiff's account of the effects of his injuries. He was not seriously challenged in cross–examination.

1. Shortly after his accident the plaintiff presented himself at the casualty department of the North Western General Hospital at Burnie. His upper left arm was swollen and there was a severe restriction of movement. He had suffered a fracture of the distal third of the humerus left arm. In addition, some pieces of glass had penetrated his left elbow. A plaster of Paris was applied to the upper left arm and the plaintiff was provided with a sling. The plaintiff was admitted as an in–patient and remained in hospital for two days. He was then discharged and attended at the fracture clinic of the Launceston General Hospital. It appears that there he was seen by a doctor who considered that no immediate intervention was required and that the plaintiff should continue with his arm in plaster and in a sling. The plaintiff said that during the initial period after his accident his arm was extremely painful. As the level of swelling reduced, the plaster tended to slip and had to be replaced. The plaintiff may well have been mistaken as to the number of occasions upon which the plaster was replaced as the hospital records do not entirely bear out his account. On 15 October 1987 the plaintiff attended at the North Western General Hospital, he having earlier removed his plaster. At the hospital a plaster was reapplied. The same occurred on 22 October 1987 when an x–ray was taken which showed a wide gap between the two fragments. As a result, on 26 October 1987, the plaintiff was admitted to the Mersey General Hospital at Latrobe for open reduction and plating of the fractured humerus. He remained in hospital for three days. The various procedures occasioned pain and discomfort to the plaintiff. Some of the pain was relieved by physiotherapy. On discharge from the Mersey General Hospital the plaintiff's upper arm was again in plaster and his arm was in a sling. The sutures were taken out and the plaster removed on 5 November 1987. At that time the wound appeared to have healed well. A dressing was applied. The plaintiff underwent a regime of physiotherapy involving manipulation of the arm in an attempt to straighten it and get the muscles working. On the advice of the physiotherapist, the plaintiff performed various exercises at home. He found both the physiotherapy and the exercises to be painful. In January 1988 the plaintiff returned to work, although not performing the full range of duties which he had formerly performed. By this time the glass which had entered the elbow had been expelled from his body, although he has been left with some residual scarring in the area of the elbow where the glass entered his body and through which it was expelled. That scarring constitutes some cosmetic disability but it is relatively minor.

1. Although the wound on the plaintiff's upper left arm initially gave all indications of healing well, that situation did not persist. After some time, an unstable patch of scar at the distal end of his left biceps had a tendency to break down intermittently. The immediate effects of the fracture and secondary median nerve lesion resolved satisfactorily but the unstable area of scarring was a continuing problem. The plaintiff described it as a weeping in the elbow joint causing a rash on the lower arm. He found that the wound tended to heal slowly, producing a tightness in the skin. Then it would break down again. Late in 1988 the plaintiff consulted Mr Pohl, a plastic surgeon. On examination Mr Pohl found that the plaintiff had a scar, measuring 14cm x 3cm at its maximal dimension, which was pink, hypertrophic and had a small breakdown ulcer at the upper pole measuring 1cm square. He considered that the scar would be improved by scar revision which could be done at the same time as plate removal, although the latter has not, in fact, occurred. Mr Pohl reviewed the plaintiff again on 9 March 1990 when he expressed the view that the only way to cure the unstable patch of scar was to excise the scar and resurface it with a skin graft. This procedure was performed by Mr Pohl at the St. Helen's Private Hospital on 21 May 1990. That operation was a success, but it has left the plaintiff with an obvious skin graft and scar area. The donor site of the skin was in the left upper inner arm. The plaintiff suffered some discomfort in that area.

1. The plaintiff's present position is that he has a well healed scar and skin grafted area which has not broken down for a considerable period of time and is unlikely to break down in the future unless some other trauma intervenes. In such event the area would be likely to heal much more slowly than normal. Insofar as the fracture itself is concerned, it has left the plaintiff with some residual disabilities. The shoulder area is now more prone to arthritis, but not significantly so. Mr Bye did not consider it as being a significant clinical problem. I accept Mr Bye's view that the plaintiff is now able, and probably will continue to be able, to continue to engage in heavy work of the nature in which he has engaged in the past, although by the end of a heavy week he might suffer some discomfort which he would not have suffered had it not been for his accident. Mr Bye said that the plaintiff should be able to perform most jobs, except that he might experience some difficulty in performing constant heavy work. The plaintiff's employment history since his accident has borne this out. Leaving aside periods of hospitalisation and convalescence, the plaintiff largely has been able to do the work which he would have done had it not been for his accident. The plaintiff does not submit otherwise.

1. In assessing the plaintiff's damages for non–economic loss, I take the following factors into account. The plaintiff suffered a serious injury requiring uncomfortable and painful periods of hospitalisation and treatment. The injury has otherwise been productive of pain and will continue to have that effect intermittently. The scar area gave rise to problems over a period of several years when it continued to break down, resulting in bleeding and rashes. The residual scarring with which the plaintiff is left is a significant cosmetic defect. The scarring has caused the plaintiff some embarrassment and will continue to do so. The use which the plaintiff is able to make of his left arm in the course of leisure time pursuits, particularly hunting, has been reduced. As a result the plaintiff has been less inclined to engage in them. The effects of any future injury in the upper left arm would be magnified.

1. The plaintiff's loss of past earning capacity has been agreed by the parties in the sum of $3,266.69. It is not submitted that any significant amount should be allowed for the loss of future earning capacity. The likelihood is that the plaintiff's earnings in the future will not be adversely affected by his injuries. He is only slightly disadvantaged on the labour market. Although a qualified bricklayer, he has, both before his accident and since, engaged in a wide variety of heavy manual work, including bricklaying. Should bricklaying be the only work available to him he may have difficulty doing this on a full time basis. The plaintiff will have some future need for analgesics, and there is a possibility that the plate in his arm may need to be removed, although Mr Bye's evidence suggests that it is a remote possibility.

1. Taking all these factors into account, I assess the plaintiff's general damages for both economic and non–economic loss at $30,000.00. No special damages are claimed. I have been asked to ignore payments made by the Motor Accidents Insurance Board as liability has been admitted, so that allowing sums already paid by the Board by way of damages and then deducting them from the total award can have no effect upon the ultimate amount recovered by the plaintiff.

1. Accordingly there will be judgment for the plaintiff for $30,000.00.