Keen v Mackay
[1999] WASCA 193
•8 OCTOBER 1999
KEEN -v- MACKAY [1999] WASCA 193
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 193 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:86/1998 | 7 APRIL 1999 | |
| Coram: | KENNEDY J OWEN J WHITE J | 8/10/99 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowedDamages for future economic loss increased to $155,000 before apportionment | ||
| PDF Version |
| Parties: | KENNETH JOHN KEEN JACK GEORGE MACKAY |
Catchwords: | Damages Negligence Plaintiff sustaining severe injury to left wrist Naturally right handed Disability assessed at 15 to 17.5 per cent loss of use of left arm below the elbow Award of $30,000 for general damages less required deduction of $10,000 pursuant to Motor Vehicle (Third Party Insurance) Act 1943, s3C Award of $140,000 damages for future economic loss Whether deduction for contingencies excessive Turns on own facts |
Legislation: | Nil |
Case References: | Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997 Thomas v O'Shea (1989) Aust Torts Rep 80-251 Black v Motor Vehicle Insurance Trust [1986] WAR 32 Bowen v Tutte (1990) Aust Torts Rep 81-043 Gamser v Nominal Defendant (1977) 136 CLR 145 Geldenhuys v Ah Lek Soo, unreported; FCt SCt of WA; Library No 990147; 23 March 1999 Morris v Zanki (1997) 18 WAR 260 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 Wright v Shire of Albany (1993) Aust Torts Rep 81-237 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : KEEN -v- MACKAY [1999] WASCA 193 CORAM : KENNEDY J
- OWEN J
WHITE J
- Appellant (Plaintiff)
AND
JACK GEORGE MACKAY
Respondent (Defendant)
Catchwords:
Damages - Negligence - Plaintiff sustaining severe injury to left wrist - Naturally right handed - Disability assessed at 15 to 17.5 per cent loss of use of left arm below the elbow - Award of $30,000 for general damages less required deduction of $10,000 pursuant to Motor Vehicle (Third Party Insurance) Act 1943, s 3C - Award of $140,000 damages for future economic loss - Whether deduction for contingencies excessive - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Damages for future economic loss increased to $155,000 before apportionment
Representation:
Counsel:
Appellant (Plaintiff) : Mr T P Heard
Respondent (Defendant) : Mr J P T Olivier
Solicitors:
Appellant (Plaintiff) : Bradford & Co
Respondent (Defendant) : Talbot & Olivier
Case(s) referred to in judgment(s):
Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997
Thomas v O'Shea (1989) Aust Torts Rep 80-251
Case(s) also cited:
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) Aust Torts Rep 81-043
Gamser v Nominal Defendant (1977) 136 CLR 145
Geldenhuys v Ah Lek Soo, unreported; FCt SCt of WA; Library No 990147; 23 March 1999
Morris v Zanki (1997) 18 WAR 260
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Wright v Shire of Albany (1993) Aust Torts Rep 81-237
(Page 3)
1 KENNEDY J: The appellant, who was born on 10 March 1965, sustained injuries when he fell from the rear of a truck which was being driven by the respondent. The appellant, who is naturally right handed, suffered a comminuted intra-articular fracture of the left distal radius.
2 The appellant brought an action for damages for negligence against the respondent in the District Court of Western Australia. The parties agreed that the respondent had been negligent, and that the appellant had contributed to his injuries by his own negligence to the extent of 20 per cent. The learned trial Judge assessed the appellant's damages, before any reduction for his contributory negligence, at the sum of $254,550.63, made up as follows -
General damages (less the sum of $10,000 pursuant
to the Motor Vehicle (Third Party Insurance) Act
1943, s 3C) $20,000.00
Past loss of earnings $62,478.00
Future loss of earnings $140,000.00
Special damages $15,462.40
Future medical expenses $2,000.00
Income tax paid on workers' compensation payments $12,742.23
Interest $1,868.00
$254,550.63
- Having taken into account the appellant's contributory negligence, judgment was entered against the respondent in the sum of $203,640.51.
3 The appellant has appealed against this assessment, contending that the amounts awarded for general damages and for future loss of earnings were grossly inadequate and well below the bounds of a sound discretionary judgment.
4 The learned trial Judge found the appellant to be a satisfactory witness, and he indicated that he accepted the appellant's evidence generally. His Honour summarised the facts very briefly and it is desirable, for the purposes of this appeal, to consider them more fully.
(Page 4)
5 Until the age of five or six years, the appellant lived in Shackleton, south of Kellerberrin. His family then moved to Belmont. He attended the Cloverdale Primary School and subsequently the Belmont Senior High School. He left school after having completed the first term of Year 11. While at school, he worked at Kentucky Fried Chicken for between 9 and 12 months as a kitchenhand. On leaving school, he sought to be apprenticed to a cabinetmaker but, after a four week trial, he was unsuccessful in securing an apprenticeship. Thereafter he went back to the country and worked on a property clearing paddocks of "coffee" rock. At the age of 17 or 18, he returned to the metropolitan area and commenced working with Auto Guard as a rust proofer. After four months in that job, he started to undertake some window tinting. Having been window tinting for some eight months, he became a full time tinter. Then, at the age of 18, with a fellow employee from Auto Guard, he started up in business on his own account as Carlisle Automotive Tint. That business survived for only four months, at the end of which his partner left because he wanted to earn more money. The appellant closed the business because it was not producing sufficient income and he secured a position with Tint-A-Car in Fremantle.
6 The appellant's work as a window tinter was interspersed with seasonal farm work in the country for three to four months at a time. He spent the five years between 1982 and 1987 in this way before obtaining a job with Scotchline in Balcatta. As he described it, "At Scotchline I did sign writing. I never actually worked on computers cutting out the signs. I used to fit the signs to vehicles, fleet marketing, mark all the vehicles, put all their signs on it, building signs and tinting as well. I used to do the whole lot." After four years, he was made redundant, because the company was approaching insolvency.
7 After leaving Scotchline, the appellant "had a few months off". He said he had made a lot of money doing window tinting and signwriting and, accordingly, had funds available to him. He went onto unemployment relief for a short period and was then approached by Magic Nissan to do all its window tinting on a contract basis. He also undertook what he described as "graphics", which involved dressing up cars by placing stripes or "flashes" on them. In 1994, he started his own business again, under the name of Keen On Signs. He did all the signs for Magic Nissan and Magic Rentals on the front of their buildings as well as undertaking work for other nearby companies. He outlayed approximately $20,000 in setting up this business, which involved the purchase of a computer to run a "plotter" which cut out vinyl signs and lettering. He raised these funds from the sale of a motor vehicle and from
(Page 5)
- borrowing. He continued doing contract work for Magic Nissan for some time. When he finished with Magic Nissan, he was approached by one of the managers at "Comet", who offered him a job doing signs for that company. This was on the basis that he could still run his own business. Apart from making signs, the appellant's duties with Comet included working as a dockhand, loading and unloading vehicles, delivering freight and driving trucks and forklifts. He described the work as being very heavy. It was while he was employed by Comet that the accident took place.
8 The accident occurred at 7 o'clock in the morning. The appellant was conveyed to a general practitioner's surgery. He was given Pethidine, a splint was placed on his wrist and he was then taken to Royal Perth Hospital. In the casualty department he was given more Pethidine and he was operated on by an orthopaedic surgeon, Mr G C Janes, that afternoon.
9 On assessment pre-operatively, it appeared to Mr Janes that there had been some compromise of the appellant's ulnar nerve in his left arm, in that he had distinct paraesthesia in the distribution of the nerve. It was, however, a little difficult to assess the damage due to the pain emanating from the displaced fracture. X-rays revealed a comminuted intra-articular fracture of the distal left radius which essentially was "dye punch" in nature. Mr Janes performed a closed reduction under image intensification controls. Reasonable reduction of the joint was obtained and it was held with multiple K wires, principally through the radial styloid process and the application of an external fixater frame. At the same time, Mr Janes performed a decompression of the ulnar nerve through Guyon's canal, and he also decompressed the carpal tunnel through the floor of Guyon's canal. Post-operatively, the appellant exhibited some motor function in the ulnar nerve and the sensation appeared to be returning to his little and ring fingers, although he still had some paraesthesia. He was discharged home two days later.
10 It was said on behalf of the appellant that the learned trial Judge appeared not to have had regard to the very significant surgical procedures which were performed upon him and to various other factors to which counsel referred. Whilst his Honour's reasons were relatively brief, there is nothing in them which suggests to me that he has overlooked, or that he has misunderstood, any of the facts of this case, other than the possible consequence of an arthrodesis of the appellant's wrist on his future earning capacity.
(Page 6)
11 Two weeks after the operation, a minor infection developed, which was associated with the external fixater frame. This infection was successfully treated with antibiotics. After two months, the fixater was removed, and mobilisation commenced with a physiotherapist. In March 1996, despite the fact that the fracture had healed, the appellant was still having significant discomfort and it appeared that he was getting some arthritic features in his wrist. In March 1996, Mr Janes suggested that, given that the appellant was a heavy manual labourer and the fact that it was his non dominant arm which was involved, he might be looking at a radio-carpal arthrodesis. The appellant was further reviewed by Mr Janes in April 1996, some five months after the accident. He still had significant pain and discomfort, but although his pain had improved only minimally, the range of movement of his wrist had improved quite considerably, there then being about 40 degrees of extension and about 45 degrees of Palmar flexion. He had full pronation and supination. A decision on a radio-carpal arthrodesis was therefore postponed at that time.
12 A further review in June 1996 revealed that the appellant still had significant post-operative pain, which Mr Janes regarded as being consistent with post-traumatic osteoarthritis. A change of physiotherapist was said by the appellant to have resulted in his getting significantly more benefit in respect of mobilisation in his wrist. He now felt freer and able to do more things with his wrist. His volar flexion was still approximately 45 degrees, but his dorsi flexion was then approximately 60 degrees. Pronation and supination were still full. However, whenever mechanical stress was placed upon the appellant's wrist to any significant degree, it resulted in inflammatory changes in the wrist, giving rise to pain, swelling and some loss of movement and function.
13 In a report dated 7 January 1997, Mr Janes noted:
"In terms of his work he previously had to lift a lot of heavy objects on and off trucks and other transport vehicles. This now is difficult for him as it results in an acute exacerbation of his pain which is limiting and debilitating and I therefore think that it is unlikely that he will return to his normal pre-accident activities. At the same time however, I do not think that his symptoms are severe enough to warrant a total wrist arthrodesis.
I therefore feel it is unlikely that he will be able to perform his pre accident occupation and that either an alteration in his job or retraining is probably required as I do not believe he will ever
(Page 7)
- be fit to lift heavy weights either now or in the medium to long term. This restriction [a]side, I would not place any limitation on the hours that he works.
I believe the current cause of his discomfort is post-traumatic changes in the radiocarpal joint and it is possible that this may continue to deteriorate over time although the usual course of events is for it to plateau at its current state. It is considered that if his symptoms were to deteriorate then arthrodesis may have to be considered.
I think that it is [likely] that he has suffered a permanent loss of function and I believe that he has a 10 per cent disability rating below the level of the elbow and as mentioned above, I do believe that rehabilitation is indicated."
14 Arthrodesis (or fusion) is a substantial measure and, as described by Mr Janes, it presents a point of no return because it obliterates all flexion and extension of the wrist. Its principal purpose is to remove pain. Mr Janes has had a number of discussions with the appellant regarding the possibility of an arthrodesis, but to date the appellant has determined to postpone any decision. He had been given a plastic splint so that he might appreciate what it would be like to have a wrist arthrodesis and so help him in his decision-making process. He found the use of the splint to be awkward and difficult. Mr Janes' opinion was that the appellant's decision not to have an arthrodesis at this stage was reasonable.
15 Although the effect upon the appellant of an arthrodesis would be to improve his ability to do heavy manual labouring type work, it would reduce his dexterity, particularly for fine motor movements, and it would be likely to reduce his capacity to work efficiently, in the sense that he would have to re-learn how to perform certain activities because he would have to adapt to his not having wrist flexion or extension by using movements from his elbow and his shoulder. With a successful arthrodesis, he could expect to have little pain and virtually an unrestricted work capacity as far as his wrist was concerned in terms of lifting weights. Signwriting would, however, be difficult if he has to carry around heavy signs, or if he has to climb up to billboards or support his weight or carry paint tins. Although he could still do these things, it would be troublesome for the appellant. So far as window tinting is concerned, even with an arthrodesis it would be difficult for him to carry out that work in restricted areas. With a successful arthrodesis, on
(Page 8)
- Mr Janes' assessment, the appellant would be likely to have about a 30 per cent disability of his left arm below the elbow.
16 There is some risk associated with an arthrodesis. It was explained that there are general risks with any operation involving an anaesthetic, although they may be remote. There may be specific local complications, such as the failure of the arthrodesis to take, infection, failure of the metalwork and possible nerve damage. It is necessary to harvest a bone graft from the patient's pelvis and there are some risks in harvesting the bone graft, although they would be small. Two separate operations are involved, the second being for the removal of a plate of internal fixation. The plate is required to remain in place until the arthrodesis is soundly united and mature. This could take anywhere from 6 to 12 months, but it would be unlikely for the appellant to be completely unfit beyond the first six months. He would need to take a couple of weeks off work in order to have the plate taken out. On the evidence, although the general risks associated with an arthrodesis are remote, the local risks are of the order of 5 to 10 per cent. That risk rate could be improved on subsequently undertaking additional remedial procedures. Mr Janes described the risk of nerve damage as being remote. The risk of infection he assessed at about 1 to 2 per cent.
17 Mr Janes indicated that the appellant had the dexterity to undertake clerical work. With an arthrodesis successfully performed, he said the appellant would be able to do virtually all forms of work, other than those involving fine movements of his left hand and wrist. If he does not undergo an arthrodesis, the work which he will not be able to do is work involving much use of his non-dominant arm and lifting weights and "things of that nature". He is likely to continue having pain by reason of the damage to the lining of the joint, the extent of the pain depending on what he does with his wrist.
18 According to Mr G J Wright, an orthopaedic surgeon who examined the appellant at the request of the respondent, the appellant is fit for clerical and sales type work, provided that the work does not involve moving heavy boxes, and for a caretaker's job, subject to that not requiring a lot of sweeping or maintenance work. Mr Wright's assessment was a 15 per cent disability below the left elbow, rising perhaps to 25 per cent in time.
19 The appellant's own evidence was that he can lift up to 20 kilos but that anything over that weight is just too painful. If he uses his wrist continually for a few hours, it swells up and becomes painful, even while
(Page 9)
- he is sitting. If he is endeavouring to lift a fairly big box, he cannot obtain a grip on it. He has tried signwriting with the wrist splint, but although it was satisfactory for small jobs, when it came to the jobs in which he had to climb, because he needs to grasp a ladder, it is unsafe. He cannot move metal sheets because they have to be lifted in order to fix them to a wall, and a good grip is required. He cannot seem to manipulate his wrist sufficiently for this purpose. So far as window tinting is concerned, he needs both hands and the mobility of both wrists for using a squeegee and for trimming the tint.
20 The appellant was given a position at Comet on a gradual return to work basis some three months after the accident. He moved to full time work as a dock checker, checking on lost freight or the non-receipt of freight. This involved labelling and despatching goods, and it required the moving of cartons. This produced "a bit of pain" in his wrist and he also complained that he suffered from a virus in his wrist and was in and out of hospital on three occasions. There is no indication that his hospitalisation related to his wrist injury. After Christmas 1996, he was told by Comet that his services were no longer needed.
21 The appellant subsequently undertook a work trial with Tint-A-Car at Osborne Park for five weeks, doing window tinting. He then experienced a lot of pain.
22 In the meantime, the appellant's brother-in-law had been working in the appellant's business with his wife, who was operating the computer. The business has since ceased because the brother-in-law was not making sufficient money out of it and he returned to work for Tint-A-Car in Osborne Park on a full time basis.
23 The appellant has been seeking other jobs in the tinting business, but he has been unsuccessful, because he cannot undertake full time tinting. He attempted one job as a salesman, but there was a lot of lifting, involving the stocking of shelves and the unloading of freight, so it was unacceptable. He claimed to have made between 40 and 50 job applications in writing. He would like to do sales work, but he said he has been unable to secure a position in this field by reason of the need for experience. He discovered a month before the trial, however, that TAFE actually run 16 week courses on selling.
24 The appellant's average take home pay from Comet before the accident was $500 to $600. His plans for the future, prior to the accident, had been to work at Comet until his own business became strong enough
(Page 10)
- to enable him to leave that company and, with his wife, to run his own business. If the business had not worked out, he would simply have stayed with Comet. He indicated that once the trial was over, he would endeavour to retrain for a job which he could do. He said he hated sitting around and not doing any work, and that it was his "full intention" to attempt to undertake the sales course at TAFE. He claimed that he had no idea how much income sales people actually make. He also indicated his willingness to obtain clerical work. He said he could comfortably do the job which he had been doing at Comet after his accident.
25 The appellant expressed his confident belief that he could obtain a job as a salesman and, indeed, that he would be able to get back into the workforce, whether it be in the area of sales or otherwise. He expressed the opinion that he could go for 10 years or more without an arthrodesis. It would depend, he said, upon what type of job he was doing. The pain at the time of the trial did not worry him unduly. Indeed, he said there was no problem at all with it, just an occasional tingle from a nerve. The pain had, however, been "bad" until about July 1996.
26 In relation to the appeal regarding the award of general damages, his Honour acknowledged that the appellant has suffered a significant and painful injury which has left him with a loss of between 15 and 17.5 per cent of the use of his left arm below the elbow. It appears to have been accepted that, at some time in the future, the appellant will require an arthrodesis of his wrist.
27 There is a surprising lack of evidence as to the extent to which the appellant's injury has affected his daily life. Indeed, the only evidence proffered in this regard was his inability to continue to play baseball and golf and his giving up the playing of indoor cricket, none of which sports, apart from baseball, which was his main pre-accident recreation, appearing to have loomed particularly large in his life.
28 In his grounds of appeal, the appellant contended that counsel for the respondent had conceded that the appellant's injury amounted to 15 to 17.5 per cent of a most extreme case within the meaning of s 3C(2) and s 3C(3) of the Motor Vehicle (Third Party Insurance) Act. On the face of it, the learned trial Judge does not appear to have approached the assessment on the basis of the disability representing a particular percentage of a "most extreme case" and he did not regard counsel for the respondent as having done so. The percentage to which his Honour referred was a percentage of the loss of use of the appellant's arm below the left elbow. Be that as it may, his Honour's starting point of $30,000
(Page 11)
- for general damages equated to 14.35 per cent of the appropriate award for a most extreme case. Counsel for the appellant submitted that a more appropriate assessment would have been 15 to 20 per cent. That is to say, his minimum figure was less than $1,400 greater than his Honour's assessment of $30,000. In the circumstances, I can see no justification for interfering with his Honour's assessment, and I would decline to do so. The assessment might be considered to be low, but it nevertheless, in my view, fell within a sound discretionary range.
29 In relation to the assessment of the appellant's future economic loss, the trial Judge also faced some difficulties. The appellant demonstrated his apparent enthusiasm for seeking work, particularly with respect to a possible sales position, and he expressed confidence in his obtaining work. It had, however, only been in the period immediately prior to the trial that the appellant had taken positive steps to seek retraining in this new field through TAFE and to consider seeking an extension of rehabilitation through WorkCover.
30 The evidence does not justify a finding that the appellant would have been able to achieve a higher income in his own window tinting business than he would have achieved as an employee in that trade, or as a contractor hiring out his labour. Of his two attempts to set himself up in business, the first was short-lived, although he was, at the time, very young and inexperienced. The second attempt, despite an outlay of $20,000, did not produce a profit over and above the wages paid to the appellant's brother-in-law, which were themselves less than he could earn from Tint-A-Car. In my view, the learned trial Judge was correct in taking, as his starting point, the net income which he would have been earning from Comet, that is to say, $550 net per week.
31 I am also of the view that his Honour took the only reasonable course available to him in proceeding upon the basis that the appellant's future work would be as a general clerk or as a sales assistant. On the basis of the Australian Bureau of Statistics figures, the average earnings of persons in those occupations are respectively $413 and $500 net per week. This compares with an award rate for those occupations of approximately $340 net per week. His Honour took the retained earning capacity of the appellant as being $400 per week. His Honour's calculations were based upon the allowance of a period of approximately 18 months to enable the appellant to train for and to find work as a clerk or sales person and to have, and recover from, an arthrodesis. The figure arrived at by his Honour for this allowance was the sum of $42,900. The remaining 31 years to the age of 65 attracted a multiplier of 739.6 which, applied to
(Page 12)
- the differential of $150, produced a figure of $110,940 and a total of $153,840 for future loss of earnings.
32 The appellant objected to the admission into evidence of the Australian Bureau of Statistics figures for general clerks and sales assistants. In my opinion, that objection was misplaced. In fact, they provided the only figures which the learned trial Judge had to work on, and his Honour was entitled to have regard to them as he did. Contrary to the submissions of counsel for the appellant, this was not a case such as Thomas v O'Shea (1989) Aust Torts Rep 80-251, a decision which appears frequently to have been misunderstood. As was pointed out by Parker J in Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997, the legal onus of proof of loss of earning capacity rests upon the plaintiff. Thomas v O'Shea raises the possibility of an evidentiary onus being imposed upon the defendant. No such onus was, in my view, imposed upon the respondent in this case. The evidence of the appellant was that he would be pursuing employment as a sales person. It was not a case of the respondent pointing to such an occupation as being one which the appellant could undertake. It was not, therefore, as the appellant contended, for the respondent to adduce satisfactory evidence as to the state of the labour market and the present day rates of earnings applicable to such employment. It was not a case in which the appellant had proved that he had lost his pre-accident earning capacity and that he had been unable to find alternative employment or that his condition prevented him from finding alternative employment.
33 His Honour having arrived at a figure of $153,800, then had regard to contingencies favourable to and adverse to the appellant, which included the prospect that the appellant might earn more than his notional retained earning capacity. His Honour pointed out that the appellant was at an age when he could adapt himself to employment as a clerk or sales person and earn the average wage in those occupations. He added that, following an arthrodesis, there was a likelihood that he would be fit for his pre-accident work and suffer no future economic loss. He said the appellant would then be fit for heavy physical work. With respect, however, this observation is contrary to the evidence of the two orthopaedic sugeons already referred to, insofar as the appellant's pre-accident work is concerned. This is partly borne out by his Honour's subsequent observation that, although the appellant could manage signwriting for small jobs with a wrist splint, he did not take this kind of work as being within the appellant's capabilities when competing in the labour market.
(Page 13)
34 Having regard to the normal vicissitudes of employment such as absences due to sickness, redundancy and changes of employment, his Honour expressed the view that the appellant may not have worked to the age of 65. Taking into account the considerations referred to, he awarded the appellant $140,000, representing a discount from his initial figure of approximately 10 per cent.
35 In all the circumstances and, in particular, having regard to what appears to me to be his Honour's oversight in relation to the appellant having any likelihood of being fit for his pre-accident work after an arthrodesis, I do not consider that there should have been any discount. There were many imponderables in this case, some possibly favourable to the appellant and some adverse. It is not possible to assert with any degree of confidence that the favourable contingencies were likely to outweigh the adverse contingencies.
36 In accordance with the foregoing, I would allow this appeal, but only to the extent of increasing the award for future loss of earnings by the sum of $15,000, subject, however, to a deduction of 20 per cent on account of the appellant's contributory negligence. The sum of $15,000 is arrived at by rounding off to $155,000 the sum of $153,840 adopted by his Honour before he made a deduction for contingencies, less his assessment of $140,000.
37 OWEN J: I have read the reasons to be published by Kennedy J. I agree with them and his Honour's conclusions. I have nothing further to add.
38 WHITE J: I have had the advantage of reading in draft the reasons of Kennedy J. I agree with those reasons and have nothing further to add.
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