McCarthy v Hoopert

[2005] QDC 106

DISTRICT COURT OF QUEENSLAND

CITATION:

McCarthy v. Hoopert & Anor [2005] QDC 106

PARTIES:

COURTNEY SKYE McCARTHY, an infant by her litigation guardian, Rowena McCarthy

Plaintiff

JANE COURTNEY HOOPERT

First Defendant

ALLIANZ AUSTRALIA INSURANCE LIMITED

Second Defendant

FILE NO/S:

BD4490 of 2002

DIVISION:

PROCEEDING:

ORIGINATING COURT:

DELIVERED ON:

12 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

26 April 2005

JUDGE:

Samios DCJ

ORDER:

Judgment for the plaintiff against the second defendant for $34,969.08

CATCHWORDS:

DAMAGES – personal injuries – fracture tibia – quantum

Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 CON

Ross v Suncorp Metway Insurance Ltd (2002) QCA 93 CON

COUNSEL:

Mr Diehm for the Plaintiff

Ms Treston for the First and Second Defendants.

SOLICITORS:

John–Paul Mould for the Plaintiff

McInnes Wilson for the First and Second Defendants.

1. The plaintiff was born on 9 January 1997.

1. On 31 March 2001 as the plaintiff was crossing a road with her mother and others, the plaintiff was struck by a motor vehicle (the collision) which caused her some left sided facial bruising and a closed oblique fracture of the mid shaft of the left tibia.

1. Liability for the collision is admitted.  Quantum of the plaintiff’s damages is to be assessed.

1. Following the collision the plaintiff was taken by ambulance to the Caboolture Hospital and was then transferred to the Redcliffe base hospital.  On 1 April 2001 the tibial fracture was manipulated under general anaesthetic and a long leg cast was applied.  She remained an inpatient until approximately 3 May 2001.  She attended fracture clinics at the Redcliffe hospital on 10 April 2001, 17 April 2001 and 29 May 2001.  Some eight weeks after she had sustained her fracture the cast was removed and she was instructed to gradually begin weight bearing.

1. The plaintiff therefore was 4 years of age when she suffered her injuries and is now 8 years of age.

1. Dr Tuffley an orthopaedic surgeon assessed the plaintiff on 28 June 2001.  In his report he states at that time he noticed she had a mild limp.  Her facial bruising had resolved and was asymptomatic.  At that time in his opinion facture union had occurred.  However, she had not fully recovered from her injury.  He thought over the next six months bone remodelling would occur and the muscles of the lower limb would resume normal function.  Within six months, he expected her to have normal function in the left leg.  In the long term he did not expect the plaintiff to have any functional deficit as a result of her fracture.  In his opinion although the plaintiff had partial impairment in the function of her left limb since the collision, the level of impairment had been slowly decreasing and over the next six to nine months the level of impairment would decrease to the point where it would be zero percent.  In his opinion her injuries would not predispose her to any premature degenerative change in the joints of her left lower limb.  At that time her condition had not entirely become stable to confirm that she had made a complete recovery.  Reassessment of the plaintiff was required in approximately nine months time.

1. Dr Tuffley saw the plaintiff again on 8 March 2002.  In his further report he states he observed no uneven shoe wear.  She walked with a normal gait.  She was able to run, jump and hop on either leg without discomfort.  As assessed with a tape measure, there was no wasting of the left thigh or left leg below the knee and tibial lengths were equal.  The rotational alignment of the lower limbs was normal.  He reviewed recent radiographs taken on 29 October 2001.  He states there was minor varus in the left tibia of approximately 3º.  The fracture was solidly united and in the process of remodelling.  The appearance of the proximal and distal growth plates of the left tibia and left fibula were normal in appearance.  In his opinion it is consistent that the plaintiff who was then aged 5 years and two months sustained a short oblique fracture of the mid shaft of the left tibia, and some bowing of her left fibula in the collision.  The treatment provided has been entirely appropriate for the injury.  Fracture union is well established, and the left tibia is in the process of remodelling.  There has been a full functional recovery from her injury and there is neither shortening nor overgrowth in the left leg below the knee.  In his opinion the plaintiff had recovered from her left tibial fracture and at that time there was no impairment in the function of her left lower limb as a result of her fracture.  He did not expect her to develop any impairment in the future.  The injuries had not predisposed her to develop any premature degenerative changes in the joints of her left lower limb.

1. The plaintiff has also been examined by Dr Meibusch an orthopaedic surgeon.  He saw the plaintiff on 23 August 2002.  In his report he states the history was given to him by the plaintiff’s mother.  The plaintiff complained of some discomfort at night if she has been very active during the day but had no pain during the day.  She rides a bike and runs without difficulty.  She is at preschool and there has been no problems relayed by her preschool teacher.  There is no obvious deformity and no obvious joint stiffness.  When he clinically examined the plaintiff he found leg lengths and leg diameters equal, there was no obvious deformity.  Hip, knee, ankle and foot have a normal range of movement without discomfort.  There was no longer any significant callus palpable at the fracture site in the mid shaft of the left tibia.  In his opinion the plaintiff had been treated adequately in plaster in a conservative manner.  The fracture had united.  The measured varus deformity of 3º on x-ray is not clinically significant and is not obvious to see.  There are normal joints in the limb, leg length is equal.  Overall, there was no impairment of function.  He thought as the alignment was good and there was no evidence of any joint damage, there was no likelihood that this fracture will predispose the plaintiff to earlier than natural degenerative changes.  In his opinion it should not interfere in her life in any specific way.

1. Finally, the plaintiff was examined by Dr Pentis an orthopaedic surgeon on 25 February 2003.  In his report he states it was reported to him by the plaintiff’s mother that the plaintiff was having difficulty walking distances and tiring.  Further, she could run, jump and jog but tires with time.   She can squat and kneel and negotiate stairs.  The plaintiff’s mother said it tends to hurt at times and she complains of it aching.  There was some slight swelling and there was no gross deformity in leg length evident.   Dr Pentis’s examination revealed good leg length but no gross wasting. He found difficulty fully squatting on that side.  He found good range of movement of the ankle and knee.  Ligaments were normal with no gross wasting.  Dr Pentis states in his report:-

“At this stage she is doing quite well and there is no discrepancy in leg length but she is quite young and sometimes the fractures cause increase length in the leg, sometimes decreased length in the leg.  Time will tell as to what.  If there is a gross discrepancy then further treatment may be required at a later stage. 
If it heals without leg length discrepancy then common sense, gentle exercises is all that is required.
It will be somewhat weaker than the opposite leg due to scarring in the musculature and I would assume in someone of this age where it is hard to apportion an incapacity that it would be somewhere in the vicinity of a 5% loss of the efficient function of the limb on the affected side due to the fracture and subsequent scarring. 
I don’t envisage that operative treatment will be required unless there are problems with leg length developing.”

1. Drs Tuffley, Meibusch and Pentis were called to give evidence at the trial and each adhered to their opinions.  When the plaintiff gave evidence she stated sometimes her leg hurts when she is walking a long time. 

1. The plaintiff’s mother said she stayed with the plaintiff in hospital following the accident.  The plaintiff’s leg remained in plaster until the end of May.  To manage the plaintiff she had to put her in a wheelchair and later in a pram.  She said the plaintiff slowly mobilized taking probably about three months to reach the point that she was able to walk as well as she is able to today.  As far as the current position is concerned she states the plaintiff still complains of discomfort as well as pain if they have done a fair amount of walking or anything.  She said while the plaintiff was in plaster it was quite a bit of discomfort at the time.  The plaintiff’s mother stated that the plaintiff has presently a limp and she is not as energetic as she was before the collision.  Although the plaintiff has improved since she came out of plaster the plaintiff’s mother said there was not much difference to how she was when she came out of plaster and started walking around to how she is at the present time.  She said it depends on how much exercise the plaintiff has had.  When the plaintiff gave evidence the sight of the pain was roughly indicated by her to be behind her knee.  When the plaintiff’s mother gave evidence she said while this pain was behind the knee it also was in the calf.  She said ice gel was rubbed into this area to relieve the plaintiff’s symptoms.  This occurred frequently.  She also said that she administered medication to the plaintiff such as Nurofen and Dymadon tablets.  A packet of Nurofen was used probably once a week to every fortnight and a packet of Dymadon was used probably each fortnight.  When cross examined the plaintiff’s mother agreed that she had not taken the plaintiff to be seen by anyone for her symptoms particularly as the plaintiff’s mother administered medication to the extent she said she did in her evidence.

1. The plaintiff submits I would assess the plaintiff’s damages on the basis that there has been a continuation of symptoms since the collision and that there is a chance the plaintiff will have a permanent impairment sometime in the future.

1. The defendants submit I would assess the plaintiff’s damages on the basis the plaintiff’s symptoms since the collision have diminished and at present there is no impairment and the chance of impairment in the future is negligible.

1. In my opinion, Drs Tuffley and Meibusch accepted that one cannot exclude the possibility that a child who suffers a fracture of the tibia may suffer some functional impairment.  Dr Meibusch described the prospects of that occurring as remote and very, very, unlikely.  Dr Tuffley said it was correct to say one could not be certain until the plaintiff stopped growing that she would have leg length discrepancy.  Further, Dr Tuffley said pain in the plaintiff’s leg could be related to scarring in the calf from the fractured tibia. 

1. In my opinion it is that part of Dr Pentis’ report I set out earlier that is the point of disagreement between Dr Pentis on the one hand and Drs Tuffley and Meibusch on the other hand.  Dr Pentis is stating there is a chance of some permanent impairment occurring in the future whereas Drs Tuffley and Meibusch consider that chance can be disregarded in all the circumstances.

1. Regarding the plaintiff’s mother’s evidence, I am in the circumstances cautious about her evidence.  I consider when she gave evidence about the plaintiff’s recent condition she did so by drawing on her memory of how the plaintiff was in the twelve months following the collision.  I do not accept the plaintiff’s condition has been as severe as the plaintiff’s mother related it to be after the twelve months following the collision.

1. I accept the majority of the plaintiff’s symptoms occurred in the first four months following the collision. Thereafter, over a period of about twelve months her symptoms diminished in frequency and became infrequent.

1. I accept the assessment of the plaintiff’s damages should include a component for the chance she may develop some minor functional impairment as a consequence of the collision.  I assess the chance of that occurring in all the circumstances at 5%.

1. However, there is no evidence to justify a conclusion that there is a chance this minor functional impairment may cause the plaintiff monetary loss.  In any event I assess the chance that this minor functional impairment may cause the plaintiff monetary loss at less than one percent.  I do not accept Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 requires some token assessment to be made for this chance (see Ross v Suncorp Metway Insurance Ltd (2002) QCA 93).

1. Therefore, I assess the plaintiff’s damages for pain, suffering and loss of amenities of life in the sum of $16,000.00.

1. I allow the plaintiff interest on the sum of $15,000.00 at the rate of 2% per annum for 4.11 years which is the sum of $1,233.00.

1. I allow the plaintiff past out of pocket expenses in the sum of $510.65.

1. I allow interest on the sum of $405.00 of the past out of pocket expenses at the rate of 5% per annum for 4.11 years $83.22.

1. I am satisfied the plaintiff required gratuitous services which were necessary and the need for which arose out of the personal injuries suffered by her in the collision.  I am satisfied those services were provided by her mother and were not of the same kind as were provided before the collision.  I am satisfied those services were provided over a period of about 15 months for more than 6 hours per week.  I am satisfied there was no offsetting benefit to the plaintiff’s mother by providing the services to the plaintiff.

1. I allow the plaintiff for past Griffiths v Kerkemeyer  damages  the sum of $14,220.00.  I have calculated this on the basis of about 27 days at 6.5 hours  per day at $15.00 per hour which is $2,632.50.  Added to this is two to three months say 75 days at 3 hours per day at $15.00 per hour which is the sum of $3,375.00.  Further, I have added to this 365 days for 1.5 hours per day by $15.00 per hour which is $8,212.50.

1. I allow interest on the sum of $14,220.00 at the rate of 5% per annum for 4.11 years which is a sum of $2,922.21.

1. Therefore, this is a total sum of $34,969.08.

1. I give judgment for the plaintiff against the second defendant for the sum of $34,969.08.

1. I will hear the parties on the question of public trustee charges and costs.