Moore v Hughes
[1991] TASSC 183
•20 November 1991
Serial No B69/1991
List “B”
COURT: SUPREME COURT OF TASMANIA
CITATION: Moore v Hughes [1991] TASSC 183; B69/1991
PARTIES: MOORE, Reginald William
v
HUGHES, Millicent
FILE NO: 134/1989
DELIVERED ON: 20 November 1991
JUDGMENT OF: Zeeman J
Judgment Number: B69/1991
Number of paragraphs: 38
Serial No B69/1991
File No 134/1989
REGINALD WILLIAM MOORE v MILLICENT HUGHES
REASONS FOR JUDGMENT ZEEMAN J
20 November 1991
On 14 May 1989 a motor cycle being ridden by the plaintiff came into collision with a motor car being driven by the defendant. At the relevant time both vehicles had been proceeding in a general westerly direction on the Bass Highway near Claytons Rivulet which is located between Ulverstone and Turners Beach. The defendant was driving to her home in Ulverstone, having spent the afternoon in Devonport. The plaintiff also was riding home to Ulverstone, he and several companions having participated as instructors at a motor cycle training day at Symmons Plains. The sun was low on the horizon. Each party has alleged that the collision was caused by the negligence of the other. The plaintiff claims damages for personal injury and property damage. The defendant has counterclaimed for the damage occasioned to her motor car.
All relevant portions of the Bass Highway consist of a dual carriageway with two lanes for west bound traffic and two lanes for east bound traffic. As the highway passes Turners Beach it is straight. Travelling west the highway then gently sweeps to the right as it approaches Claytons Rivulet. The plan which is in evidence suggests that the distance from the point where the sweeping bend commences to Claytons Rivulet is a little in excess of 400 metres. It is agreed between the parties that the physical features of the highway at the time of trial were unchanged from the date of the accident. At the request of the parties I took a view of the area. The parties are agreed that what I saw upon the view is to be treated as evidence.
At about 5pm the plaintiff was riding his Honda 750cc. motor cycle in the southern–most lane along that portion of the highway known as the Turners Beach straight at a speed of about 80 kmh in compliance with a speed restriction sign. There was other traffic travelling west in the plaintiff's lane. Not far ahead of the plaintiff two motor cars were being driven and further ahead was the defendant's motor car, a yellow Toyota. Following the plaintiff was the motor cycle being ridden by one of the plaintiff's companions, Mr Brumby, and following that was the motor cycle being ridden by the other of his companions, Mr Wheatland. The plaintiff reached a speed derestriction sign. At about that point he indicated his intention to move to the right and in fact rode his motor cycle into the other of the west bound lanes. He passed the two cars which had been ahead of him. The plaintiff then moved his motor cycle back into the left hand lane. In the meantime, Mr Brumby and Mr Wheatland, who also had overtaken the two cars, continued to ride their motor cycles in the right hand lane, slowly catching up to the plaintiff. So far, there is no real dispute as to the facts. As to what happened after the plaintiff moved back into the left hand lane is the subject of very substantial dispute, and it is necessary to summarise the evidence of the various witnesses.
The plaintiff said that his motor cycle reached a speed of about 90 kmh whilst overtaking the two cars. He slowed his motor cycle when he re–entered the left hand lane to a speed similar to that of the car being driven by the defendant, which was then immediately in front of him in the left hand lane. He said that he came to within about three car lengths of this car at a point which was about 200 metres before the Claytons Rivulet overpass. He said that at that time his motor cycle was travelling at about 80 kmh, as was the Toyota. The plaintiff said that at a point about 25 metres from an Armco railing situated at the edge of the highway at the place where it passes over Claytons Rivulet the Toyota suddenly moved to the far left hand side of the roadway, moving across a white line marking the southernmost edge of the highway. The plaintiff said that he then steered his motor cycle to the right of the lane in which he was travelling, being worried about the possibility of the Toyota throwing up gravel. He said that as the Toyota came abreast of the Armco fence it remained over the white line when suddenly, and without warning, it veered straight across the road at an angle of about 450 . The plaintiff said that he immediately applied the brakes very heavily and continued to move to the right. Whilst he did not recall a collision, it is clear that his motor cycle collided with the Toyota. The plaintiff said that his last memory prior to impact was that his motor cycle was at a point approximately on the intermittent white line between the two western bound lanes, and that he could see that his motor cycle was about to collide with the driver's side of the Toyota at a point just behind the rear wheel and in front of the mudguard.
Mr Brumby was called by the plaintiff. His evidence confirmed the evidence of the plaintiff as to the movements of the plaintiff's motor cycle up until the time that it moved back into the left hand lane in a position behind the defendant's vehicle. He said that he kept his motor cycle in the right hand lane, noticing that the Toyota car was some four car lengths in front of the plaintiff's motor cycle. At that time his motor cycle was travelling at about 85 kmh and gaining on the plaintiff. Mr Brumby noticed that the plaintiff followed the car for some distance. As the car approached the Claytons Rivulet overpass it moved slightly to the left hand side of the road. Mr Brumby said that when the car first moved to the left it was still in what he described as its proper position, but that "as it moved it got closer to the Armco fence" and "over the verge (I infer the white line at the edge of the road) of the road". At that time he was overtaking Mr Moore's motor cycle. The next event recalled by Mr Brumby, which he described as happening in a split second, was that the car did "a virtual type of "U" turn", coming across in front of Mr Brumby's motor cycle in the right hand lane. At that time Mr Brumby's motor cycle had moved ahead of the plaintiff's motor cycle. Mr Brumby said that he decelerated and braked. He slewed his motor cycle hard right in order to avoid a collision. That attempt was unsuccessful and his motor cycle collided with the front right mudguard of the defendant's vehicle.
The defendant gave quite a different version of the collisions. At no time was she conscious of the presence of any of the motor cycles on the road prior to the collision. She said that as she left the Turners Beach straight, she moved into what she described as a slight right hand bend, driving in the left hand lane at a speed of 79 kmh. She said that whilst travelling properly within her lane, she felt an impact at the rear of the car which forced her over to the right. She then saw something dark flash past her, whereupon her car was hit in the front on the right hand side. She said that she slowed her car and then brought it to a stop. In cross–examination she denied making the manoeuvre to the left of the road as described by the plaintiff, and to some extent corroborated by Mr Brumby, she denied that her car at any time moved into the right hand lane, and she denied making any manoeuvre of the type described by the plaintiff and Mr Brumby by way of proceeding into the right hand lane at an angle.
The defendant called a Mr Tuxworth, whom I find to have been driving the car first overtaken by the plaintiff and the other motor cyclists. After the motor cyclists had overtaken his car, he in turn overtook the car travelling in front of him. To do so he moved his car into the right hand lane. He said that as his car entered the sweeping bend, it was still in the right hand lane and he saw a yellow car (which I find to have been the defendant's car) some distance ahead in a position which he described as being "well off to the left hand side of the road." He noticed that one of the motor cycles (which I find to be the motor cycle ridden by the plaintiff) also moved into the left hand lane and followed the car for some distance. Mr Tuxworth said that some seconds later the sun got into his eyes as a result of which he took his foot off the throttle. He then saw "dust and bits and pieces going everywhere", so that he brought his vehicle to a stop as quickly as possible. Before doing so, his vehicle collided with one of the motor cyclists whom he described as "a bloke on a bike, off a bike rolling along the road".
It will be seen that there were two diametrically opposed versions of the events which led to the plaintiff's motor cycle colliding with the defendant's motor car. On the defendant's version, she was driving her motor car quite properly within her lane when the defendant's motor cycle collided with the rear of it. On the plaintiff's version, the defendant made an unusual, dangerous and quite unexpected manoeuvre across two lanes of traffic causing both the plaintiff's motor cycle and Mr Brumby's motor cycle to collide with the car. There was extensive cross–examination of the plaintiff and Mr Brumby suggesting that on previous occasions they had given versions of the relevant events which were at variance with those given by them in evidence. I do not consider that any such divergences were significant. I do not consider them to affect their credit. I attach no significance to varying estimates of distances having been given at various times. The defendant was cross–examined extensively, particularly as to relevant road signs, and she gave conflicting answers on some matters. I do not consider those matters to have adversely affected her credit beyond demonstrating that she was a little prone to becoming confused. I am satisfied that all the witnesses to whom I have so far referred attempted to give an honest version of their perceptions of the relevant events. Plainly, at least some of those perceptions must have been wrong. It may be that the plaintiff was wrong to some extent. He may have exaggerated slightly, albeit unconsciously, as to the extent to which the plaintiff moved her car to the left.
The defendant tendered photographs depicting the damage to the defendant's vehicle resulting from the impacts. Those photographs establish that the plaintiff's motor cycle did not collide with the rear of the driver's side of the car. The photographs depict substantial damage to the driver's side rear of the defendant's vehicle. I am satisfied that that damage was caused by the plaintiff's motor cycle coming into collision with the defendant's motor car. On the defendant's version of the facts, at the time that that damage occurred she was driving her motor car properly within her lane. The evidence of Mr Tuxworth satisfies me that for some time prior to the collision the plaintiff had been riding his motor cycle behind the defendant's motor car and in that same lane. Counsel for the defendant submitted that on the evidence I should infer that the plaintiff was riding his motor cycle at an excessive speed and drove it into the back of the defendant's motor car. If that is what occurred, then the point of impact indicated by the damage was such that it could only have had the effect of pushing the defendant's motor car to the left. In fact, there is no disagreement between the witnesses about the proposition that it moved to the right. The defendant did not suggest that she steered it to the right. On the other hand, if the defendant's vehicle was at an angle approximating the angle of 450 described by the plaintiff, the damage to the defendant's motor car is quite consistent with the plaintiff's motor cycle striking it whilst it was in that position, it having moved fractionally from the time when the defendant saw the area of the car with which he apprehended that his motor cycle was about to collide. If the plaintiff's motor cycle collided with the defendant's motor car whilst the latter was at such an angle, the impact would have had the result of moving the defendant's motor car further to the right. The position of the defendant's motor car then would have tended to have been corrected by the subsequent impact when Mr Brumby's motor cycle collided with the front hand driver's side of the car. That would explain the ultimate position of the defendant's vehicle in the southern most lane, facing west. I am satisfied that the collision between the plaintiff's motor cycle and the defendant's motor car occurred in the circumstances described by the plaintiff and I reject the defendant's version. Counsel for the defendant complained that the plaintiff had not put to the defendant, or otherwise suggested, any reason why she should have made the unusual manoeuvres observed by the plaintiff and Mr Brumby. I consider that complaint to be without foundation. It was not incumbent upon the plaintiff to do either. Nevertheless, it may have been that the defendant, who was aged 79 at the time of the accident, became somewhat disorientated by the sun which led her to move to the edge of the road. Having done so she suddenly may have become aware of the presence of the Armco railing, which she then sought to avoid by moving sharply to the right at a time when she was quite oblivious to the presence of any of the motor cycles. It might equally be said that there was no reasonable explanation for the plaintiff driving his motor cycle into the rear of the defendant's motor car if the latter was being driven properly, the plaintiff being a very experienced and competent motor cyclist. I find the defendant to have been negligent. I do not find any of the particulars of contributory negligence alleged against the plaintiff to have been made out. In particular, I find that at the relevant time the plaintiff was riding his motor cycle at a speed of about 80 kmh and that that was not an excessive speed. I am not satisfied that there were any precautions which the plaintiff ought reasonably to have taken which, had he taken them, would have avoided the collision.
As a result of the collision, the plaintiff suffered a number of injuries being bi–malleoli fractures of the left ankle, crush fractures of the lumbar spine, lacerations and bruising to the right hip, lacerations to the left knee and shin, lacerations to the left elbow, some internal injuries causing him to pass blood in the urine for some seven days, and bruising of the toes on the right foot. The plaintiff quickly recovered from some of his injuries which have not resulted in any long term disabilities. That is not so with other of his injuries. Of particular significance are the fractures of the left ankle. The other injuries having on–going significance are the crush fractures of the lumbar spine and the injury to the small toe on the right foot.
The plaintiff was taken by ambulance from the scene of the accident to the Mersey General Hospital. The diagnosis there made (in the course of which painful procedures were carried out) was that the plaintiff had suffered serious fractures to his left ankle and he was later that day transferred by ambulance to the Launceston General Hospital. The plaintiff remained an in–patient at the Launceston General Hospital for twelve days, during the course of which period surgery was performed on the left ankle. This involved an open reduction and internal fixation with plates, wires and screws of both the medial and lateral malleoli. Following surgery, a below–knee plaster of Paris was applied to the left leg. X–rays of the spine revealed crush fractures. Whilst the plaintiff remained as a in–patient, he was confined to bed, being required to lay flat on his back with his left leg elevated. The plaintiff experienced constant severe pain in that leg. In order to ease the pain he was given regular injections of Methadone for a period of some seven days, and he also ingested analgesics in tablet form. On 24 May 1989 a back brace was applied and the plaintiff then was allowed out of bed for the first time. He made use of crutches to ambulate.
Later on 24 May the plaintiff was discharged from hospital and returned by private motor car to his home in Ulverstone. The journey was particularly uncomfortable. Upon his return home the plaintiff was confined to bed for several weeks. He suffered from constant pain and took Panadol to provide some measure of relief. After two weeks, the plaintiff ceased to be confined to bed, but spent most of his time in the lounge room, either on a couch or lying on the floor. The plaintiff continued to wear the back brace. He suffered from severe swelling in the left foot whenever he stood. In June 1989 the plaintiff suffered a dizzy spell for which Stemitil was prescribed after which the plaintiff found that he could not balance on his crutches for some five days. In July 1989 the plaster cast was removed and replaced by a fibreglass cast. The plaintiff gradually recovered to the extent that he was able to go outside to the letter box. He first did this some four to six weeks after returning home. The plaintiff continued to use the back brace, although with decreasing frequency. Initially he found that without the brace he had no back strength, although it appears that by December 1989 he did not find its further use necessary. On 10 September 1989, the plaintiff was admitted to St Luke's Hospital in Launceston where his treating orthopaedic surgeon, Mr Morgan, removed protruding medial wires in the left ankle. The plaintiff was discharged on 12 September, but found that there was then a deterioration in the state of the ankle. He said that it "just seemed to fall apart". He consulted Mr Morgan on several occasions and eventually was re–admitted to St Luke's Hospital on 29 October 1989, it having been found that a deformity had developed in the ankle due to a delayed union of the fracture of the medial malleolus. The plaintiff underwent a bone graft, bone being taken from his left hip. He remained an inpatient for ten days, during which time he was either totally confined to bed or able to ambulate only with the assistance of crutches or a wheelchair. The graft donor site was productive of some pain for about six months.
Gradually the plaintiff resumed some of his former pursuits. He started to carry out some small tasks in his workshop. He made use of an exercise bike. He rode about on a 3 wheeled pedal cycle. The plaintiff resumed driving a motor car in about January 1990 but found that he could drive for short distances only due to swelling in the foot. Driving long distances still causes him discomfort. On 31 May 1990 an arthroscopy of the left ankle confirmed that there had been some deterioration and reinforced the likelihood of the plaintiff requiring an arthrodesis of the ankle at some time in the future. By July 1990 the plaintiff had recovered to a sufficient degree to go on holidays with his wife and friends. The holiday involved spending some days in Sydney and then travelling on a cruise ship to Fiji and New Caledonia. At that time the plaintiff was still using crutches but no longer had any form of cast on his leg. The plaintiff partook of a scuba diving course on board ship. He still found that he suffered from considerable pain and swelling in the ankle and that he needed to elevate his left leg frequently in order to obtain some relief. He was disinclined to engage in many of the social activities available on board so that whilst his wife and friends participated, he went to bed.
The plaintiff has been left with a significant disability as a result of his ankle fractures and back injury. Both are productive of ongoing pain and discomfort. Both have severely restricted his lifestyle and his ability to perform the duties of his employment. The left foot is unsightly and subject to frequent swelling. Whilst Mr Morgan tended to regard the swelling as being relatively minor (which he did after again examining the plaintiff's foot in the course of giving evidence) my inspection of the foot indicated that the swelling was very noticeable by comparison with the plaintiff's other foot.
On 3 December 1990 the plaintiff was again admitted to St Luke's Hospital in order that a minor fracture at the base of the little toe of the left foot might be corrected. The surgery was performed by Mr Morgan, who excised the base of the proximal phalanx, trimmed the fifth metatarsal head and fitted a plastic joint to the big toe of the right foot. As a result of the surgery, the plaintiff's little toe hangs limply which causes some difficulties. It tends to get caught up whilst the plaintiff is putting on socks or trousers. It is a nuisance in bed as it gets caught up in the bed sheets.
Early in 1991 the plaintiff consulted a podiatrist, Sue McTurk, and he has continued to consult her on a regular basis. She has provided the plaintiff with corrective foot orthoses which are worn by the plaintiff for most of the time whilst standing or walking. The plaintiff has found the orthoses to be of considerable assistance whilst walking, particularly on slopes. When Mrs McTurk last reviewed him on 2 October 1991 the plaintiff appeared to be walking well with good heel to toe gait and without an obvious limp. She found that there was a measurable improvement in forefoot alignment and ankle flexibility, and considered that the plaintiff would remain relatively comfortable with the use of suitable footwear and corrective foot orthoses provided that he adheres to sensible activity levels.
The extent of the plaintiff's disabilities and his undergoing the various surgical procedures to which I have referred resulted in him not being fit to resume work until early in 1991. The plaintiff, who is now aged 43, has been employed by Telecom for 27 years. Prior to his accident, he had held the position of senior lines officer for the 004 telephone district. Some ten other officers were under his direct supervision or control. The plaintiff's duties involved a significant degree of office work, but for about 40% of his working time he was engaged in field work which required considerable walking and driving. Prior to his return to work, the plaintiff had been reclassified as communications officer grade 6. The duties attaching to that position were the same duties as had attached to the plaintiff's former position, the designation having been changed due to a restructuring of Telecom's operations. The responsibilities of the plaintiff's present position are to control, lead, plan and co–ordinate the activities of a significant component of the external plant office based activity of the Burnie branch of Telecom.
When the plaintiff initially returned to work it was on a part time basis only. After a period of about a month, he resumed full time duties. The number of officers under his control had been reduced to six. During the plaintiff's absence from work, significant changes had been made in work practices, and in particular the use of computers had been introduced. The plaintiff has had some difficulty in coping with the new procedures. As a result of medical advice, the plaintiff virtually has ceased doing other than office work.
The plaintiff's medical situation at the time of trial was that it substantially affected his general amenity of life and limited the functions which he was able to perform in the course of his employment. I am quite satisfied that prior to his accident the plaintiff was a very active, fit man who enjoyed life to the full. He engaged in a variety of leisure time pursuits, many of a sporting nature. To a greater or lesser degree, he was involved in kayaking, yachting, trail bike riding, enduro bike riding, water skiing, snow skiing, jogging, bush walking, camping and fishing. His ability to engage in such activities has been substantially reduced by his injuries. He attempted kayaking on one occasion after his accident. He found that the weight transmitted from the paddles caused severe pain to his back and that he experienced pain in putting his feet into the kayak. Prior to his accident the plaintiff sailed his yacht extensively. He now does so to a much lesser extent and for shorter distances. His ankle condition results in him being unstable on the deck and he experiences pain in the back when dealing with the anchor or sails. He has tried trail bike riding since his accident, but was fearful of falling off the motor cycle and further fracturing his ankle. He has tried water skiing on one occasion since his accident, but found that he could not control his left foot. He used to jog twice a week but since the accident he has found that he cannot run. Prior to his accident he went bush walking occasionally, but has done so on only one occasion since his accident, when he did not enjoy the experience, finding that he was unsteady on his feet and in constant fear of slipping and further fracturing his ankle. Prior to his accident the plaintiff, from time to time, fished from his boat, but he now finds that he cannot pull up lines in the course of shark fishing because of the pain which he experiences in his back.
Prior to his accident, the plaintiff enjoyed a full social life and liked to dance. Since his accident he has had a much reduced social life and has danced only occasionally. Dancing is productive of pain in his foot. In recent years, the plaintiff and his wife have made a practice of taking holidays interstate and overseas. Prior to his accident the plaintiff enjoyed such holidays to the full. Particularly he liked to set out on foot exploring strange places, especially those which normally might not be seen by a tourist. Whilst he has had such holidays since his accident, his ability to enjoy them in this way has been much reduced. Insofar as his employment is concerned, the plaintiff cannot now do field work and that is confirmed by Mr Morgan's opinion. Mr Morgan expressed the opinion, which I accept, that the plaintiff's description of the way in which he is now handicapped in his ability to pursue the leisure time pursuits which he had pursued prior to his accident was consistent with the ankle injury. Mr Morgan was present in court whilst the plaintiff gave that evidence. Insofar as fishing, kayaking and yachting are concerned, the plaintiff's evidence was not only that his ability to enjoy those pursuits was affected by his ankle injury, but also that it was productive of pain in his back. Mr Morgan was not asked to express any opinion about that, but I accept the plaintiff's evidence.
I accept Mr Morgan's evidence that if the plaintiff were to undergo a successful arthrodesis of the left ankle it would result in the ankle being free from pain and the plaintiff once again being able to perform field work and pursue all his former leisure time pursuits (with the possible exception of snow skiing) despite his ankle injury. However, it is implicit that those activities which are productive of pain to the back (which pain is causally related to the back injury) would continue to be unavailable to the plaintiff if he wishes to avoid pain.
In evidence, the plaintiff appeared to accept the inevitability that sooner or later he would decide to undergo an arthrodesis but he had not yet determined that he would undergo that procedure. Mr Morgan expressed some surprise that the plaintiff had not yet decided that he would have an arthrodesis. Whilst the plaintiff appeared to accept the inevitability of ultimately undergoing an arthrodesis, I formed the impression that he was most reluctant to do so. The general principle is that the plaintiff is to be placed, as far as money can do it, in the same position as if he had not been injured by the tortious activity of the defendant, but that principle is qualified by another which requires the plaintiff to take all reasonable steps to mitigate his loss. That further principle debars him from claiming any damage occasioned to him by his neglect to take such reasonable steps. In particular it requires him to undergo surgery in appropriate circumstances or at least excludes him from recovering damages which would not be suffered by him in the event that he underwent such surgery. The defendant carries the onus of establishing that having regard to the chance of alleviation of the plaintiff's disabling condition by an arthrodesis, it would be unreasonable for the plaintiff not to undergo that procedure (Plenty v Argus [1975] WAR 155). The evidence of Mr Morgan satisfies me that if a successful arthrodesis were to be performed upon the plaintiff's left ankle, then it would largely alleviate the disabling effect of the ankle injury, although leaving the plaintiff with a stiff ankle. That evidence also satisfies me that an arthrodesis is likely to be successful. The relevant test has been formulated in a number of different ways. In Karabotsos v Plastex Industries Pty Ltd [1981] VR 675 at p680 Kaye J approved the test formulated by Gobbo J in Glavonjic v Foster [1979] VR 536, at p540 as being "whether a reasonable man in the circumstances as they existed for the plaintiff and subject to the various factors such as difficulty of understanding, the plaintiff's medical history and conditions as they existed for him, would have refused treatment". In Lorca v Holts' Corrosion Control Pty Ltd [1981] Qd R 261, at p270, Kneipp J (with whom the other members of the court agreed) formulated the test as being "Having regard to all the circumstances of the case, including matters subjective to the plaintiff, is it reasonable to hold the plaintiff responsible for the consequences of his refusing treatment which might improve his situation?" Whilst those tests differ as to whether or not it is appropriate to speak of "a reasonable man", in the circumstances of this case the application of either test leads to the same result.
The defendant was cross–examined about the possibility of undergoing an arthrodesis as follows:
"QDo you acknowledge that if you have the arthrodesis performed that you would be capable of performing your pre–accident work related activities? Do you accept that?
ANo, I don't.
QSo Doctor – Mr Morgan's proof is – sorry, his evidence – you do not accept his evidence?
AAh, actually there was a lot of things that Morgan said yesterday that I wasn't even aware of. He hadn't fully discussed with me you know, what an arthrodesis was about. I spoke to my GP about it and he has indicated that he has known of successful ones and unsuccessful ones and has advised me to leave it as long as possible. I have to make the decision in my mind whether I can put up with the discomfort or whether I have my ankle fixed solid.
QWell if your ankle was, as you put it, fixed solid, do you accept that you would be able to perform all of your pre–accident work related activities?
AIf the operation was successful there is a possibility – I'm only assuming. I can only go on the best advice and what I've also read about arthrodesis. I believe they affect your hip movements quite significantly and cause problems in that area.
QDid you discuss that with Mr Morgan?
ANo.
QHas not Mr Morgan told you that if you had the arthrodesis it would relieve pain?
AI don't knew whether he said it would actually relieve pain so much as it would – . Well I know it would certainly make the ankle rigid. It wouldn't move.
QYou heard him give evidence yesterday didn't you?
AYes.
QWhen he said that if you had the arthrodesis after the initial convalescent period you would not in his opinion need analgesics? Did you hear him?
AYeah. Well – .
QBut you just haven't discussed it with him?
ANo. He has mentioned to me that, you know, that's probably the preferred way to go, but that was eight or nine months ago I think last time I saw him. And he's passed the information on to the GP and – .
QDid he not tell you that the arthrodesis procedure is quite simple? The main requirement being your immobilisation for a significant period? In other words you've got to keep the joint still for a number of months? That's what he told you wasn't it?
AOh well, I don't see that you could move it anyway when your ankle's fixed solid.
QWhat I'm putting to you Mr Moore is, Mr Morgan has I suggest told you that the operation to fuse the joint is quite a simple matter from a surgical point of view, that the most important thing is that the joint is kept rigid by
you for a period of months to allow the fusion to take place? That's what he's told you isn't it?
AOh I don't recall him saying that."
Part of Mr Morgan's evidence was in the form of a written proof which contained the following:
"I reviewed Mr Moore ... on July 16, 1990.
...
I suggested that he try the ankle and see how it went. If it continued to improve and he was able to tolerate the situation I advised him that the ankle should be left alone. However if significant symptoms persisted I advised him to consider strongly having an ankle arthrodesis.
...
When I reviewed Mr Moore in July 1990 I was of the view that he would be wise to consider an arthrodesis which would give him a functional and comfortable, though stiff joint. I remain of that view and although acknowledging that it is a subjective decision to be made by Mr Moore, I consider there is a 50% chance that he will require an arthrodesis in approximately 3 to 4 years time.
The decision is subjective in that Mr Moore will have to choose between pain on the one hand and restriction of movement on the other. An ankle arthrodesis is the only realistic surgical option and if the stage is reached where Mr Moore is unable to tolerate the pain in his foot, then the arthrodesis will be required. If the arthrodesis was to be performed Mr Moore would be hospitalised for probably about a week in the first instance and then back in for a further day later on to have some pins removed. He would be in plaster for three months."
By those passages, Mr Morgan was not purporting to say that he gave any firm advice to the plaintiff in accordance with the opinions held by him as to the desirability of the plaintiff undergoing an arthrodesis of the left ankle. There was no evidence that he had given such advice. The plaintiff also called his general practitioner, Dr Emmett. He gave evidence that he had discussed with the plaintiff the possibility of the plaintiff undergoing an arthrodesis of the left ankle. That discussion occurred in August 1990. Dr Emmett discussed with the plaintiff the nature of an arthrodesis, the fact that it required the administration of an anaesthetic, the purpose of an arthrodesis and the complications which might be suffered if the operation was not successful. He told the plaintiff that the surgery might not be successful and that it might not rid the plaintiff of his pain. He also told the plaintiff that he would have decreased mobility once an arthrodesis had been performed. Dr Emmett was a relatively inexperienced general practitioner who has had only two patients who have undergone an arthrodesis. In one case it was successful and in the other case it was not, in the sense that the patient continued to have pain on moderate to mild exertion, and therefore continued to need to take analgesics.
I am not persuaded that the plaintiff has acted in any way unreasonably in not having had an arthrodesis performed prior to trial. The burden of proof is upon the defendant to establish a matter in mitigation of damages. There is no evidence that Mr Morgan gave any advice to the plaintiff upon the basis of which it could be said that it was unreasonable for the plaintiff not to have undergone an arthrodesis. The advice given by Dr Emmett fell far short of constituting firm advice to the plaintiff that he ought to undergo an arthrodesis. Insofar as the future is concerned, the position is somewhat different. The views of Mr Morgan have now been clearly communicated to the plaintiff. The preponderance of the evidence is that an arthrodesis, if performed, is very likely to be successful, and if successful will relieve the plaintiff of the pain in the ankle which is a very major component of his present disabilities. I propose to assess the plaintiff's damages upon the basis that within the fairly near future he will undergo an arthrodesis. Whether he does so is a matter for him, but it would be unreasonable for him not to undergo it. The plaintiff is debarred from recovering damages which flow from a failure to undergo an arthrodesis within the near future. Insofar as the plaintiff's non–economic loss is concerned, that means that the plaintiff is entitled to be compensated for his disabilities upon the basis that within a fairly short period, the effect of those disabilities will have significantly ameliorated insofar as pain to the ankle is concerned. At the same time, an arthrodesis will result in permanent stiffness to the ankle for which the plaintiff is entitled to be compensated. There is a risk, albeit small, that the procedure will not be a success and the plaintiff is entitled to be compensated for that risk. If an arthrodesis fails it can be rectified by a second operation. Complications, by way of deep vein thrombosis or wound infection, are possible but rare. A permanent stiffness of the ankle is not to be regarded as an insignificant injury, particularly to a person such as the plaintiff, who has led a very active life. The plaintiff's back injury will continue to be productive of pain. The plaintiff suffers from a dull ache above the hips which is present most of the time. Lifting aggravates the pain. In July 1991 the plaintiff lifted a manhole cover which resulted in very severe back pain. As a consequence the plaintiff was absent from work for a week. I accept Dr Emmett's evidence that the extent of that pain in the future will be affected by various extraneous factors, but nevertheless it will recur from time to time. Taking all those factors into account, I tentatively attribute the sum of $30,000.00 to the plaintiff's non–economic loss.
The plaintiff claims to have suffered a loss of earning capacity both past and future.
Whilst Mr Morgan expressed some surprise that the plaintiff had not returned to work somewhat earlier than in fact he did, I am satisfied that the plaintiff's loss of past earning capacity ought to be assessed upon the basis that the whole of the period of time during which he was absent from work was a period during which he was not able to perform the duties of his employment by reason of his accident–caused injuries. The defendant is liable for the whole of the loss of salary suffered by the plaintiff as a result of his absence from work, that economic loss representing his lost earning capacity. The parties were agreed on a number of facts relevant to the assessment of that economic loss. Had the plaintiff been at work for the whole of the relevant period, he would have received gross salary totalling $67,011.00. For some part of that time, the plaintiff was on sick leave without pay, although receiving a disability allowance from the Motor Accidents Insurance Board. For present purposes, that disability allowance is to be ignored. For other parts of that period, the plaintiff was on sick leave with full pay. The total salary paid to him in respect of the periods of paid sick leave was $13,215.60. Accordingly, the plaintiff lost gross salary of $53,795.40. Whilst there was no direct evidence on the point, I infer that the plaintiff was paid whilst on sick leave pursuant to an entitlement conferred by some term of his contract of employment, to be found in an award or elsewhere. It is most unlikely that a statutory corporation such as Telecom would allow paid sick leave on any other basis. Even if I were to be wrong in drawing that inference, I would still take the view that the defendant should have the benefit of the fact that the plaintiff had paid sick leave, although there have been some conflicting expressions of judicial opinion. The receipt of salary in respect of periods of sick leave must be set off against the plaintiff's claim for loss of earning capacity (Graham v Baker (1961) 106 CLR 340). The plaintiff submitted that he should be compensated for having suffered some potential loss by reason of having taken the periods of paid sick leave. In an appropriate case, that may be so, such as where there is an entitlement to receive a payment by reason of paid sick leave not having been taken or where the taking of paid sick leave affects the right to take paid sick leave in the future. I do not make any allowance for this factor because no sufficient foundation to do so appears in the evidence. Certainly there is no evidence of the plaintiff having lost any entitlement to receive a sum of money, being an entitlement which he would have had had paid sick leave not been taken. I have no evidence as to how the paid sick leave which has been taken might be capable of affecting the plaintiff's right to future paid sick leave, if at all. If such a future right has been affected then the likelihood that the plaintiff's present employment will be terminated in the near future suggests that an actual financial loss is unlikely. On the other side of the coin I consider that had it not been for the accident it would have been virtually inevitable that the plaintiff would have earned the salary of which he was deprived by reason of his accident. Accordingly, I tentatively attribute the whole of the sum of $53,795.40 to the plaintiff's loss of past earning capacity. I take the gross figure upon the basis referred to in Van Gervan v Fenton No 10/1991 and Goss v Mount Lyell Mining & Railway Co Ltd No 94/1991.
If the plaintiff remains in his employment with Telecom in his present position, then it is unlikely that the plaintiff will do otherwise than continue to be capable to earn income as if he had not suffered his injuries. There are some qualifications to that. If the plaintiff undergoes an arthrodesis, it will require him to have a period off work to undergo surgery and for the purpose of convalescing. The plaintiff may require to take some further sick leave by reason of incidents such as that involving the lifting of the manhole cover. Mr Morgan gave evidence, which I accept, that if an arthrodesis was to be performed on the plaintiff, he could expect to be in hospital for about a week, and on a later occasion for a day to have pins removed. He said that the plaintiff could expect to be in plaster for some three months. No one asked Mr Morgan as to the period of time for which he would expect the plaintiff then to be unfit for work, although I infer that at least it would be for part of the period of three months. A number of imponderables are relevant to compensating the plaintiff for loss of earnings during such period off work. If he is then still in the employ of Telecom he may well have a contractual entitlement to be paid sick pay leave, so that he suffers no loss. For the reasons to which I advert shortly, he might not then be in employment and would not have been in employment even if the accident had not occurred.
The plaintiff's tenure of employment with Telecom is quite insecure and would have been quite insecure even had the accident not occurred. I heard evidence relevant to that from Mr Traill, the human resources officer for the Tasmanian country region of Telecom. His duties encompass a variety of personnel matters. I accept Mr Traill's evidence. In December 1989 Telecom carried out what was described as a restructuring of the external plant area of Telecom, being the area in which the plaintiff is and has been employed. That restructuring resulted in the plaintiff being re–classified as a communications officer. Whilst the plaintiff was re–classified as a communications officer class 6, the substantive position held by him has effectively been down graded in that it requires an officer of the rank of communications officer class 5. The plaintiff has been employed and paid at the rank held by him, although filling a position requiring the employment of an officer of lower rank. Currently Telecom is undertaking a review of the functions of the section of Telecom in which the plaintiff is employed. Mr Traill's evidence satisfies me that there is a strong likelihood that some time next year that section will cease to exist and its functions performed by an equivalent section based in Launceston. The effect of that, if it comes about, will be that the position currently held by the plaintiff will be abolished. In that event the plaintiff either will be redeployed into another suitable position or he may be paid a redundancy payment and have his employment with Telecom terminated. Currently the latter can only occur with the consent of the relevant employee, but Telecom is considering invoking involuntary redundancy provisions. I infer that if the re–organisation occurs and the plaintiff cannot be redeployed to another position with Telecom, then he will cease to be employed by Telecom and receive a redundancy payment. The chances of the plaintiff being redeployed into another position with Telecom are slim. His medical condition has not improved his chances. Whilst that condition (at least for so long as the plaintiff does not undergo an arthrodesis) may make him unfit to perform the duties of some possible positions (which I am satisfied would be at a lower rate of pay) the evidence leads me to conclude that it would be unlikely that another position would be found for the plaintiff even if he were to be completely fit. The abolition of the section in which the plaintiff is employed, and with it the plaintiff's position, is in no way related to the plaintiff's present condition. The plaintiff would be in precisely the same position had he not been injured except that he would then be available on the labour market as a potential employee not suffering from any condition affecting his fitness for work and would have a slightly better chance of being redeployed by Telecom. At the same time it ought to be said that if the plaintiff undergoes a successful arthrodesis, his fitness for work generally would be considerably improved. Nevertheless he would be left with a back condition, disabling to a lesser degree than the present condition of the ankle, but precluding him from heavy lifting, and with a stiff ankle and thereby with a limp.
If the plaintiff were to cease to be in the employ of Telecom by reason of redundancy, he would receive some financial benefits which would amount to about one year's pay (at current rates about $36,700.00) and he would receive the benefit of a lump sum superannuation payment of some $180,000.00. At the same time he would lose the benefit of participating in the Telecom Superannuation Fund. If the plaintiff were to roll over that lump sum superannuation payment, he could purchase an annuity commencing at age 60 of $17,200.00 in to–day's values. I heard no evidence as to what superannuation benefits the plaintiff would be entitled to were he to continue in his employment with Telecom until his intended retiring age of 60. The plaintiff's contribution is at the rate of 5% of salary. Counsel for the plaintiff abandoned a submission that the plaintiff would lose the benefit of a further 3% employer contribution. The state of the evidence leads me to the conclusion that I cannot infer that the plaintiff will have a loss of superannuation benefits should he cease to be employed by Telecom as a result of accepting a redundancy payment beyond inferring that Telecom would cease making some contribution so that the plaintiff would be worse off to some degree. Nevertheless the payment which would be made on termination might go a long way to redressing the balance. The state of the evidence is such that I can make no specific findings as to that.
I consider the relevance of the likely termination of the plaintiff's employment by Telecom to be two–fold. Firstly, the plaintiff's chances of being redeployed within Telecom have been slightly reduced as a result of his condition, even were he to undergo an arthrodesis, although in that case his chances would be reduced to a very slight degree indeed. Secondly, if the plaintiff ceases to be employed by Telecom, he will be disadvantaged on the labour market.
The first factor should be given little weight because of the slight impact of the plaintiff's injuries upon the likelihood or otherwise of the plaintiff continuing to have employment with Telecom available to him. It follows that loss of salary and superannuation benefits flowing from the loss by the plaintiff of his employment by Telecom ought to make little impact on the quantum of his damages for loss of future earning capacity. As to the second factor, the plaintiff ought to be looked at upon the basis that it is likely that he will be a person who has undergone a successful arthrodesis but suffering from a disabling back condition. His personality and versatility would be factors which would advantage him as against other males of his age on the labour market. His physical disabilities would somewhat disadvantage him, particularly if he were otherwise minded to take up employment involving significant physical exertion. The plaintiff expressed the view that had it not been for the accident he would have been inclined to leave the employ of Telecom in any event and embark upon a building enterprise with his son who has recently qualified as a carpenter. His ability to engage in building work has been adversely affected by his back condition. Whether in fact the plaintiff would have engaged in such an enterprise, and if so, whether it would have been profitable to any degree, are matters of conjecture. Nevertheless the plaintiff's past history suggests that he might well have made a success of it. The factors to which I have referred make it obvious that this is a case where the plaintiff's loss of future earning capacity cannot be calculated by reference to some particular weekly loss over a particular period. The broad brush approach is appropriate. It ought to reflect the fact that the plaintiff's future earning capacity very materially has been affected but that he is far from being unemployable. He has technical skills. He is keen to employ his talents. Taking that approach, I tentatively attribute the sum of $75,000.00 to the plaintiff's loss of future earning capacity.
The plaintiff will incur some future hospital, medical, paramedical and pharmaceutical expenses. It is highly likely that he will undergo an arthrodesis. On the basis of Mr Morgan's evidence as to the period of hospitalisation, the quantum of hospital and theatre fees, surgeon's and anaesthetist's fees, I conclude that the cost to the plaintiff of that procedure would be $5,000.00. He may suffer loss of income by reason of undergoing an arthrodesis but I have allowed for that contingency in assessing the plaintiff's loss of future earning capacity.
The plaintiff will continue to require Orudis and Panadeine Forte, the agreed cost per packet of which medications are $20.87 and $9.41 respectively. Currently the plaintiff uses about 2 packets of each per annum. A successful arthrodesis would reduce his need to take such medications, although I am satisfied that to some minor degree he will continue to require them in relation to back pain. A sum of about $200.00 would be appropriate.
I accept Mrs McTurk's evidence that the plaintiff will need to wear some form of orthotic device in his shoes for the rest of his life, and will require regular podiatric care and revision. I accept her evidence as to the needs for particular items and consultations and the cost thereof. That evidence was not precise but upon the basis of it and some relevant agreed facts I find that the annual cost will be $400.00. Applying the 7% tables and upon the basis that the plaintiff is currently aged 43, an allowance of some $5,000.00 is appropriate. To that ought to be added the sum of $305.00 for a second set of dress orthoses now required and the sum of $32.00 for an initial consultation to formulate an exercise programme.
In addition to salary, the plaintiff received some employment–related benefits of which he was deprived as the result of not being at work. The defendant admits that the plaintiff is entitled to be compensated therefor in the sum of $260.33. Those benefits have now ceased to be provided for reasons unconnected with the plaintiff's accident.
A summary of the items relevant to the assessment of general damages and the sums which I have tentatively attributed thereto are as a follows:
Non economic loss $30,000.00
Loss of past earning capacity 53,795.40
Loss of future earning capacity 75,000.00
Future medical treatment 5,000.00
Future medication 200.00
Future podiatric expenses 5,337.00
Loss of employment related benefits 260.33
$169,592.73
Rounding that off, I assess the plaintiff's general damages at $170,000.00. Special damages of $19,705.50 in respect of the plaintiff's personal injuries are agreed and in fact they have all been paid by the Motor Accidents Insurance Board. That amount and the periodic disability allowance of $35,258.00 previously paid to the plaintiff are to be deducted from the assessed damages. Special damages in respect of the damage to the plaintiff's motor cycle are agreed in the sum of $3,500.00. In the result the plaintiff is entitled to the following:
General damages $170,000.00
Special damages for personal injuries $19,705.50
Special damages for property damage 3,500.00
$193,205.50
Less scheduled benefits paid 54,963.50
$138,242.00
Accordingly, there will be judgment for the plaintiff for $138,242.00. There will also be judgment for the plaintiff on the counterclaim. For the purposes of s14 of the Motor Accidents (Liabilities and Compensation) Act 1973 I record that of the damages awarded, the sum of $134,742.00 has been awarded in respect of bodily injury to the plaintiff.
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