Parker v Hill - [1999] WADC 59

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PARKER -v- HILL [1999] WADC 59

CORAM: HH JACKSON DCJ

HEARD: 28-30 APRIL 1999

DELIVERED : 20 SEPTEMBER 1999

FILE NO/S: CIV 1861 of 1994

BETWEEN: SHANE ELLIOTT PARKER
Plaintiff
AND
LINDA JOAN HILL
Defendant

Catchwords:

Motor Vehicle Accident - Assessment of damages only - Leg and Hand injuries.

Legislation:

Nil

Result:

Damages assessed in the sum of $588,554.85 of which repayable worker's compensation and statutory allowances amount to $188,185.35

Representation:

Counsel:

Plaintiff: Mr T H Offer
Defendant: Mr K N Allan

Solicitors:

Plaintiff: Evangel Taylor
Defendant: K N Allan

Case(s) referred to in judgment(s):

Jongen v CSR Ltd (1992) A Tort Rep 81-192
Newman v Nugent (1995) 12 WAR 119
Wilson v McLeay (1961) 106 CLR 523

Case(s) also cited:

Griffiths v Kerkemeyer (1977) 139 CLR 161
Kars v Kars (1996-1997) 187 CLR 354
Liffen v Watson [1940] 1 KB 556
Mutual Acceptance Co Ltd v Federal Commissioner of Taxation (1944) 69 CLR 389
Van Gervan v Fenton [1992] 109 ALR 283

HH JACKSON DCJ:
Background

The plaintiff was born on 1 March 1960. On 22 July 1992 he was the rider of a Suzuki motor cycle travelling along Millstream Road, Dampier (West). The defendant was the driver of a Toyota Hi-Lux vehicle. The defendant's vehicle pulled out in front of the plaintiff whilst attempting to turn right into Millstream Road, thereby causing a collision between the motor cycle and the Toyota. The defendant admits liability for the resulting injuries and damages which come before me for assessment.
The plaintiff had attended High School to Year 12 and then undertaken an apprenticeship as an instrument fitter. In late 1983 he obtained work as a trades assistant in Kwinana. He travelled overseas for some months in 1985 and then performed various employment until May 1986 when he worked as a technical officer in Victoria. The plaintiff married in 1983 and has three children. Between December 1987 and March 1989 he worked as an instrument technician in Perth. On 29 March 1989 he commenced work in Karratha as a leading hand instrument maker and electrician. His employment involved maintenance of the Hamersley Iron rail line and equipment, both in a workshop and by driving a utility along the line in about equal proportions.
The work was quite physical and involved electronics, electrochemical, hydraulic and other types of work, often in dirty, hot conditions.
In opening, Mr Offer for the plaintiff, set out the major issues as being the effect of certain allowances being received by the plaintiff as part of his employment prior to the accident on his claim for past economic loss. They included power, water, rent and holiday allowances, which took his base salary of about $42,000 per annum gross to something in the order of $48,000 or $49,000 per annum gross; the claim for future economic loss, which includes an assessment of retained earning capacity in addition to the loss of these various allowances; the effect of the plaintiff's decision to move his family to Walpole in the south-west of the State as part of those assessments, as well as its effect on the question of mitigation of loss, and of course, the assessment of general damages.

Accident and Plaintiff's Evidence.

In the collision the plaintiff was knocked off his motorcycle, landing on the bitumen roadway, suffering a severe injury to the left leg. His left middle finger was entirely severed at the middle joint. The left arm and hand were badly injured. He was taken by air to Royal Perth Hospital for about 10 weeks until 1 October 1992. Photographs of him taken there are Exhibit 12. The trip down was very uncomfortable and painful. He was confined to bed for about three weeks in traction at first. Later he was able to get out of bed and hobble on crutches.
The day following the accident his wife and children came to Perth to be with him.
After discharge from Royal Perth Hospital the plaintiff resided with relatives in Perth for about a week then returned home to Karratha, using crutches to walk. His wife looked after him domestically, giving up her part-time employment for that purpose. She did all the housework and driving and helped him bathe.
He could no longer help around the house and garden, maintain their car or help with the children, then about six years and younger.
The plaintiff estimated the extra time devoted to his needs by his wife at that time as two to three hours per day. In addition, some extra expenditures were incurred on servicing their two vehicles for work he would otherwise have done himself, and which his wife could not do.
In March 1993 he returned to St John of God Hospital, Subiaco, for a bone graft operation. About a week later, the leg having become infected burst open. He was in pain for a time and uncomfortable. Again his wife and children came to Perth to be with him. An Iliazaroff frame was placed on his left leg. He had regular medical consultations, both in Dampier and flying to and from Perth. The frame required twice daily cleaning, with which his wife assisted, and which was painful. A bundle of photographs are Exhibit 14.
The frame was removed in December 1993. He again was in great discomfort with high body temperatures countered by antibiotics. The frame was put back on in May 1994, at which time he was hospitalised for a further 20 days or thereabouts. The frame was next removed in October 1994. In December 1994 he underwent further surgery to obtain greater mobility in the left leg by removing certain scar matter, which was then followed by a manipulation under anaesthetic.
In June 1995 an Iliazaroff frame was put on to the left leg for a third time in order to lengthen the leg. The plaintiff was again hospitalised for about 20 days. It was removed in October 1996. Four photographs of the plaintiff's left leg scarring prior to the operation in late 1996 are Exhibit 16A-D.
In April 1997 the plaintiff underwent an arthroscopy and quadroplasty on the right knee, which had exhibited symptoms of pain and a grinding sensation.
He had another arthroscopy only two or three weeks before trial.
Photographs were tendered showing the present scarring of the plaintiff's left leg: Exhibit 17A-C. I viewed the plaintiff's scarring during the trial, both on the left leg which is very badly scarred in a number of places, and unsightly above the knee with significant lumpiness of shape and with minor scarring below the knee, and on the left hand which has minor scarring but which does not close properly into a fist because of the sewing back of the middle finger. Mr Witherow's evidence is that the cosmetic situation will remain.
At the time of the accident the plaintiff was living in subsidised rental accommodation and receiving both the salary income together with overtime and the benefit of the various employment allowances. Alternatively, if the plaintiff found private accommodation the company would pay $260 per week towards rental, airconditioning, power and water costs.
For a period after the accident he remained in the accommodation receiving worker's compensation benefits but no overtime or employment allowances other than power and water subsidies. In February 1995 he was given three months notice to vacate the accommodation. This meant the loss of the power and water subsidies also. The family moved to Perth, renting in Yangebup, as he still required medical attention.
The plaintiff says he dislikes the metropolitan area and always intended to live in a rural environment. He would have remained in Karratha,
"… probably until retirement; either retirement or we would have probably looked at changes of circumstances as they arose. Possibly after the kids were off our hands, we would have looked at shifting on then maybe.
By kids being off your hands, did you have any idea as to what you were looking at there? ‑‑‑ It was too far away to even think about at the time. They were just so young. They still are fairly young - probably when they're at university. We were taking the situation on its merit.
Perhaps I can ask you another question. Did you have plans to leave Karratha at that time? ‑‑‑ No."
The retirement age in his Karratha employ was, he understood, 60.
He explained that the reasons he had moved to Karratha originally were economic. He wanted his children to study at university, which would prolong their dependence and his needs economically.
They had, in April 1993, purchased some 55 hectares of rural land close to Walpole. There were no buildings on it other than an open-sided shed. The rent on accommodation at Yangebup and payments on the land at Walpole led the plaintiff to decide to borrow money and build a small bungalow on the Walpole land. They remained at Yangebup for about 12 months before moving to Walpole.
The plaintiff said the economic effects and loss of security had unsettled and depressed his wife and strained their relationship.
The Commonwealth Rehabilitation Service and Centrelink later offered rehabilitation. He applied for employment in local businesses and at Bunbury and Perth and elsewhere. He trained for bar work and business management and found casual work as a bar manager in a local club, working 20 hours per week.
At trial he was earning $11 per hour. For about three or four weeks he also worked at a herb farm for about 30 hours per week, earning $12.46 per hour gross.
Bending to pick up and stack heavy objects is a problem because he can no longer squat adequately and has to use his back, which causes low back pain. He suffers work induced pain every second or third day. He suffers similar problems working on his property. He also suffers aching in the knees from standing for lengthy periods. The shifts at the club are four to six hours long. In addition, he occasionally falls when his left knee fails to "lock up" when walking, especially on rough ground. His wife assists with firewood and other matters, which would cause difficulty for him, for about an hour each day.
Until shortly before trial the plaintiff leased the Walpole land to a third party to run cattle. At trial the plaintiff was using the property himself, running two cows with calves. He hoped to run about 20 cattle and to grow olives, possibly using mechanical picking to reduce the physical work, and possibly producing olive oil. He also planned to produce marron and possibly to grow tamarillos. His evidence is that he had thought about acquiring such a property well before the accident, although his plans as to the use of the property depended on family and financial matters. The accident had probably sped the matter up somewhat. Obviously also, however, time, capital and labour will need to be invested before the plaintiff reaps income from any of these initiatives and then ultimate profitability is quite unproven. The plaintiff's evidence in effect is that but for the accident, such ventures would probably have been deferred until his retirement.
The plaintiff's wife gave evidence essentially confirming that prior to the accident the plaintiff had helped bathe the children, wash the dishes, do the gardening and service their motor vehicles, and that she had worked part-time. She had given up that employment after the accident to provide additional care for the plaintiff. She and the children had come to Perth to be with him, staying with her family and visiting the hospital, at first by public transport, then after having their car brought to Perth, by car. They again came to Perth in March 1993 for the same purpose. A bundle of receipts, Exhibit 21, verifies a number of such expenditures. After the plaintiff's return to Karratha she had helped him bathe, changed his dressings, driven him to and from medical appointments and any other appointments or visits, and attended to his other physical needs, such as massaging his knees, collected wood and attended to the garden. She estimated her additional time spent attending to these things as two hours per day, reduced to one hour after the Iliazaroff frame was removed.
Mrs Parker also spent some time and money making clothes suitable for the plaintiff's needs when the frame was in place. The frame also destroyed "a few sets of bed sheets".
Cross-examined, Mrs Parker confirmed they had planted about half an acre of olive trees, grape vines and other fruit trees around their house at Walpole and installed a water tank: see Exhibit 2. She denied they were commenced on a commercial level. The plaintiff had started work at the club before Christmas and permanently in mid-March 1999.

Medical Evidence

Mr G E Witherow, orthopaedic surgeon specialising in knee and ankle surgery, has treated the plaintiff since 1992. His reports are Exhibit 18.
In May 1993 he described the plaintiff's injuries, Exhibit 18B:
"The injuries he sustained were open fracture of the left supracondylar region of the femur with an area of skin loss and laceration of approximately 20cms extending from the level of the knee joint proximally to mid femur. There was an area of muscle loss in the same region and a comminuted supracondylar fracture with the condyle and patella fractured longitudinally. The comminuted fracture of 1 inch of the femur with butterfly fragments of 10cms in size involving the femoral shaft was also present. The wound was grossly contaminated and at that stage had been open for approximately 12 hours. There was no neurovascular injury to the leg at that stage however there was a laceration on the pretibial area of approximately 3cms. He had sustained a graze overlying his right knee which was only superficial and no injury to the knee joint itself. Both limbs were neurovascularly stable at the time of examination and there were no head, chest or abdominal injuries. He had sustained an injury to his left hand which consisted of multiple metacarpal fractures as well as a fracture of the radial styloid and some of the phalanges."
In January 1998 Mr Witherow reported further on the right knee:
"I have reviewed Shane today, principally in relation to his right knee. As you are aware all the previous treatment for his motor vehicle accident some six years ago has been devoted to his left knee, however, he has symptoms in his right knee that are principally patellofemoral. He has a scar overlying his right patella which almost certainly, given the balance of probability, occurred at the same time that he had his major motor vehicle accident and injured his left leg.
I have explained to him that I think this is an articular cartilage injury which is minor at present and doesn't warrant any further treatment at this point, but may do so in the future."
In November 1998, after various further surgery, Mr Witherow reported, Exhibit 18R:
"I have only seen Mr Parker on one occasion since my last report of the 30th of January 1998 and that was on the 2nd of October 1998. At that point he had made a good recovery from his massive left knee injury and his more minor right knee injury which had resulted from the motor vehicle accident of the 22nd of July 1992.
His right knee is uncomfortable and his symptoms are principally patellofemoral. Investigations of this knee have not previously shown any significant bony injury but his patellofemoral symptoms continue. It is possible that he may require an arthroscopy to investigate this in the future. It is not my impression that an arthroscopy is warranted at the present time.
In relation to his left knee he continues to do remarkably well despite the extent of his injury. He has had a complete patellectomy as well as a fracture of his distal femur which was infected. This is now united and uninfected. He has a range of motion which is slightly short of his normal extension and he flexes to approximately 85°. He is able to stand and walk for reasonable periods of time without significant discomfort, however, he is unable to do any work that is any heavier than this. Certainly he is unable to do any significant climbing, squatting, kneeling or carrying of any weights.
At this point in time the only treatment that he is undergoing is stretching/strengthening type of work and he has not required any further surgery.
He has a significant permanent disability in relation to his left leg which I would assess as 25% of that limb above the knee. He has a 5% disability in relation to his right limb above the knee.
The work that he is restricted to doing is very light work, or completely sedentary work. This will be permanent and if anything it is likely in the medium to long term that his ability to do standing and walking work will deteriorate.
It is highly likely, in relation to his left knee, that he will require further treatment. This knee injury will certainly predispose him to early osteoarthritis and he may well require a total knee replacement. I would envisage this happening within the next ten to fifteen years and it may well be a difficult and complicated procedure given his previous soft tissue injuries and recurrent infections. He is likely to require revision of this procedure some ten to fifteen years after the initial procedure and possibly a further revision of that."
In April 1999, he reported, Exhibit 18U:
I performed an arthroscopy on Shane's right knee at the Mercy Hospital on the 9th of April 1999. At that stage there was partial thickness articular cartilage injury to both the medial femoral condyle and the patella with a normal lateral compartment. He had normal medial and lateral menisci and therefore a chondroplasty of both his femoral condylic and his patella was performed.
I believe he has an injury to his right knee which I would assess as 10% of that limb above the of the knee. I do not believe he is going to need treatment for his right knee with surgery or therapy in the short to medium term. I think he has an increased chance of developing a degenerative change in his right knee directly related to his accident and the trauma that his right knee sustained at that time. I think because of the restriction he has in relation to his left side that his right knee is unlikely to be the limiting factor in relation to the amount of or sort of work that he can do. I believe therefore that it is his overall work capacity is directly related to the more severe injury that he has on the left side rather than the right and that the right is an associated injury but it is unlikely to be the controlling factor in relation to his work capacity or the longevity of the time that he works for. I think his right knee essentially will settle to be of a mild discomfort which should not require any further treatment over the next 15-20 years. I do believe at this stage that his condition has stabilized sufficiently that his claim could be finalised."
His present summary of the position was:
"The combination of the accident plus the infection ensuing following his accident, his original surgery on the inside of his knee, is that he has deteriorating articular cartilage and it is fairly severely deteriorated, the consequence of which will be he will have post-traumatic osteoarthritis in a reasonably short period of time.
By reasonably short period of time what are we talking ? --- 5 to 10 years.
Will it stabilise after that 5 to 10-year period or will it continue? --- I suspect he will end up having a knee replacement.
What sort of period of time are we looking at for that? --- In around 10 years from now would be my estimate.
What's the approximate cost of having a knee replacement? --- Currently approximately $15,000.
Does that knee replacement last indefinitely? --- It lasts depending on the way in which it is used, from a period of 5 years up to approximately 20 years."
Given the plaintiff's age and activity requirements he estimated 12 years. Subsequent replacements at about 10 yearly intervals were likely. This would involve about 10 days in hospital, three to four months on restricted duties and return to full duties after six months. The cost depended on whether the whole (about $20,000) or only the plastic sections (about $5,000) required replacement. After about eight years there is an annual consultation and x-ray at a cost of about $120.

The reports of Mr D G Sneddon, orthopaedic surgeon, are Exhibit 23A-DD. On 3 November 1998 he reported, Exhibit 23DD:
"When seen on the 29 September 1998 Mr Parker told me that he experienced an intermittent aching pain in his left knee, which was activity related and did not seem to be related to the cold weather. He said that standing in one position was limited to about an hour and a half at a time, either by pain coming on later that day in his knee, or perhaps in the evening. He said he remained unable to squat and could not kneel on his left side. He experiences difficulty climbing ladders. Has difficulty gardening because of loss of knee bend. When lifting heavy weights, he is unable to do so keeping his back straight and bending his knees because of loss of movement in his knees, and has to lift instead heavy weights by bending his back, which is not mechanically ideal as far as back problems are concerned. Although he can jog, he cannot run.
On physical examination, he has a range of knee movement from 5-90 degrees of flexion. He has a good range of pain free hip movement on the left side.
…
Mr Parker will sustain a permanent residual disability in relation to his left knee that I have expressed as being 10% of the whole of the left lower limb. That disability is purely in relation to loss of knee movement. He also has considerable scarring and cosmetic disability in his lower limb which I, as an Orthopaedic Surgeon, am not able to assess, and this should be done by a plastic or Cosmetic Surgeon.
Mr Parker told me that he was unable to return to his previous job as he felt that he would now be unable to climb up machinery with a tool box in hand, although he felt that he would be able to do the work of an electrical or instrument fitter if the work was purely confined to bench work. Usually, in this line of work, bench work is only a very small component of an overall job in the industry.
After discussing the matter with Mr Parker, it would seem that if Mr Parker could be provided with bench work as an electrical instrument fitter, he would be able to perform such duties, or alternatively, I feel the only form of work that he would be able to return to would be in a sedentary nature.
At this time it is not anticipated that he will require any future treatment in relation to his left lower limb."
On 24 November 1998, Mr Alister Turner, plastic and reconstructive surgeon, reported, Exhibit 3C:
"He sustained extensive injuries to the left hand with multiple fractures and severe soft tissue injury. He also had a very major injury to his left leg which almost necessitated amputation of the leg.
Reconstruction and skin grafting was carried out at the time and he has had numerous operations since then both on the hand and more especially on the left thigh and knee to try and restore function. He is now managing reasonably well and although he has considerable permanent disability and disfigurement no further surgery is planned.
…
On examination the patient has a very ugly deformity of the left leg especially in regard to skin grafting over the left thigh and bulging muscle in the upper part of thigh and a very swollen stiff knee. The patient can't kneel nor run and sustains discomfort, aching and tingling in the leg as a whole. From time to time the left knee locks and causes the patient to fall without warning. There is at best only ninety degrees of flexion in the left knee and this will not improve.
I would suggest that there is at least a forty percent disability in the left leg as a whole and the disfigurement amounts to severe bodily scarring on the limb as a whole. The skin grafts have been taken from the right thigh where there is an area of white disfigurement with some discomfort and liability to sunburn but this is a minimal disability. He also has an area of skin grafting on the left forearm which would be sensitive to sun exposure and needs continual careful treatment.
The other major injury is to the left hand where there is stiffness in that the left middle finger falls two centimetres short of the palm in making a fist. There is numbness over the dorsum of the left middle finger and the whole hand aches in cold weather and has a very poor grip. The patient finds that he drops things and sustains wounds very easily over the dorsum of the hand. Fine movements are difficult and the hand is clumsy. I would assess the permanent disability in the left hand as a whole as being a loss of function of approximately thirty percent.
Finally a bone graft has been taken from the left iliac crest where there is scarring, numbness and discomfort. This however is minor in comparison to the severity of his injuries."
Mr J K Ker, a specialist in rehabilitation medicine, saw the plaintiff in November 1998. His two reports are Exhibits 20A and 20B. He reported on 20 April 1999:
"At my clinical examination I found Mr Parker to be entirely oriented. He walks favouring the left lower limb.
Clinical examination of the left hand demonstrates that he has a modest restriction of wrist dorsi-flexion and palmar flexion on the left as compared to the right. There is sound union of the previously fractured metacarpals, however he has residual stiffness in both the metacarpo-phalangeal joints of all four fingers of the left hand and in the distal interphalangeal joints of the left middle and ring fingers. The distal, middle and ring fingers have some modest sensory impairment associated with previous lacerations to those fingers.
In the right lower limb he has some modest anterior joint line discomfort in the knee joint. He has a full range of knee joint movements but these are accompanied by patello-femoral crepitus although there is no direct peripatella tenderness. The right knee is stable.
On the left leg there is a severely scarred distal thigh and knee region. The scarring is contributed to both by the previous split skin graft and an area of keloid formation beneath that scar. There are also multiple scars from the previous pin sites of the Ilizarov frames that have been connected to that leg in the past. I noted additionally over the left iliac crest - the site of previous graft removal that he has an area of sensory impairment adjacent to that operative scar. He has an area of scarring but without other complaint over the lateral aspect of the right thigh - the source of his previous split skin grafts.
Mr Parker is able to fully extend the left leg and I measured his flexion to 78 degrees at my examination. He is tender on firm palpation over the anterior aspect of the knee - the femoral condyles. There was no evidence of any cruciate or collateral ligament instability in the left knee. I believe there to be formal wasting of the muscle bulk in the left thigh - circumferential measurement was not undertaken due to the deformity of the soft tissues on the left side.
I found an unrestricted range of bilateral hip and ankle movements. There is no current limb length in equality - this having previously been corrected. I was unable to determine any neurological disturbance distal to the facture site.
Mr Parker is an instrument fitter and prior to his accident had extensive experience in the fitting and maintenance of complex measurement tools used particularly in rail track maintenance. In order to undertake these tasks he would often have to walk over rough terrain and in particular railway ballast and was obliged to carry with him significant quantities of tools. I believe that this man's disability in the left lower limb prevents him from undertaking these forms of outdoor work.
At the time of my consultation I learned that he was now living in and around Denmark and undertaking limited part-time work. It would be my belief that such limited work is within his capacity but clearly any tasks that required him to walk distances of substance or over rough terrain, bend, squat or kneel are beyond his capacity. In addition his ability to undertake work tasks in a competitive fashion is reduced and towards this end he wishes to examine opportunities for self employment.
I believe that at present there appears to be reasonably preserved articular cartilage within this man's knee. However, in view of the extent of the original injury, the resultant patelectomy and the associated bone infection that he has had he is at increased risk of developing osteoarthritis in the left knee which in time might require some form of joint replacement surgery.
With respect to ongoing rehabilitation, I believe that in physical terms this man has made a satisfactory recovery from a series of severe injuries. I accept that he cannot return to his preaccident employment and although he is not actively involved in active rehabilitation at this time he is attempting in various self-employment ventures to develop a future career."
During oral evidence Mr Ker indicated that lifting weights 20 to 25 kilogrammes or more from ground level would be "actually quite difficult" for the plaintiff given his problems with grip and knee extension and, repetitively, back symptoms.
Various medical reports were admitted into evidence by consent. They are those of Dr Jumeaux dated 11 January 1993 and 1 September 1993: Exhibit 1A and 1B; the report of Dr W Beresford of Royal Perth Hospital dated 22 March 1993: Exhibit 2; the reports of Dr A Turner dated 4 May, 18 June 1993 and 24 November 1998: Exhibits 3A to 3C; the report of Dr C Lee dated 1 November 1994: Exhibit 4; the report of Dr J. Lagerberg of St Anne's Mercy Hospital dated 29 June 1995: Exhibit 5; the report of Mr J Ecker dated 20 July 1995: Exhibit 6; the reports of Dr R Dalrymple of Sprague Kam Glancy & Partners, dated 14 August 1995 and 22 August 1995: Exhibits 7A and 7B; the report of Dr J Glancy of Mercy Hospital dated 9 July 1996: Exhibit 8; the two reports of Dr T Rajah of St Anne's Mercy Hospital both dated 3 October 1996: Exhibit 9A and 9B; and the report of Mr D Johns of Perth Imaging dated 9 October 1997: Exhibit 10.

General Damages

I find the plaintiff to be an honest and accurate witness, a somewhat stoical man and a person doing his best by himself and his family to find and carry out well paid work.
He has suffered severe hand and leg injuries with significant ongoing disabilities, a considerable amount of hospitalisation and pain and suffering and cosmetic damage. No legislation limits assessment of general damages.
I assess general damages in the sum of $75,000.

Past Economic Loss

The plaintiff had at the time of the accident been in receipt of an annual salary of about $42,000 gross or about $29,400 net. However, in addition he received subsidised housing or rental accommodation. He was paying $37 per week rent. He also received free, or later subsidised, power and water, free transport to and from work and three free economy return airfares to Perth each year. These latter could be converted to cash.
The plaintiff claims loss of wages at the net weekly rate of $566.07 from 22 July 1992, together with a pay rise of $7.30 net per week from 26 July 1994, a further rise of $6.17 net per week from 4 April 1995 and another of $34.27 net per week from 26 March 1996. Worker's compensation and statutory allowances paid are dealt with below.
In addition, he claims loss of rental and utilities subsidies from April 1995, loss of employer superannuation contributions and loss of interest.
A bundle of the plaintiff's taxation records for the years ending 30 June from 1989 to 1998 is Exhibit 11A to K.
For the years ended 30 June 1989 to 30 June 1998 the plaintiff's gross and net incomes, ignoring tax rebates, seem to have been -
Y.E.     30.06.89   90      91       92    93      94      95      96      97       98
Gross $   31,903    42,389 41,950 39,449 26,468 25,345 46,299 27,259 30,315 14,289
Net    $   22,742    29,280 29,434 28,772 21,197 20,636 33,140 21,969 23,471 12,511
or thereabouts.
Mr R D Davies, the project manager, confirmed that for about 25 years the track maintenance project for the Hamersley Iron railway had been held by Civil Mechanical Maintenance. The contract is negotiated every two years. It now employs two instrument fitters of the plaintiff's type, together with an electrical supervisor. Conditions of employment had not changed markedly since 1992. Present economy return airfares are valued at $825. Subsidies for employees living in private accommodation are paid at $265.70 per week.
The evidence of Mr Davies is that since 1992 the nature of the work and continuity of employment are unchanged.
The defendant's position is that there is no evidence of overtime earnings and that the plaintiff's income tax returns show inconsistent incomes. For example, the return for the year ending 30 June 1992 includes a capital gain of $5,542. In the year 1995 the plaintiff received lump sum termination benefits of $11,664.
Mr Allan argues then that the tax credit amount for zone allowance or rebate needs to be allowed for. No evidence was led about that. Mr Allan also argues that for these reasons there is no basis on which to allow for past economic loss by averaging the plaintiff's pre-accident earnings over several years and that the basis of comparison should therefore be the plaintiff's net income (other than from capital gains) for the year ending 30 June 1992. I disagree about those matters. I consider an averaging of say the last three years net income prior to the accident a fair way of dealing with quantification of overtime and similar issues.
Mr Allan argues that the starting point in assessing the loss to the plaintiff of the value of the allowances and subsidies provided in his employment at Karratha is whether that loss is productive of a financial loss in the need for its replacement, citing Jongen v CSR Ltd (1992) A Tort Rep 81-192 at 61,706.
He accepts that for the 12 months during which the plaintiff lived in rented accommodation at Yangebup the plaintiff suffered such loss at a rate of $112.60 per week (being the difference between the rental at Yangebup and that at Karratha) which amounts to $5,855.20 plus interest thereon.
Loss of rental subsidy, other than for 12 months when the plaintiff rented accommodation at Yangebup, Mr Allan argues, should not be the subject of any award because the plaintiff has moved to alternative accommodation which is not productive of loss. There is, in addition, in any event, no evidence of comparative housing costs as between Karratha and elsewhere. No inference can be drawn that the cost to the plaintiff of his housing in Karratha was less than the cost to him of his present housing.
The cost to the plaintiff of loss of subsidy of the cost of water likewise is not the subject of evidence adequate to found any assessment. Water is both more expensive and more required in Karratha but beyond that no calculation can be made.
Electricity consumption for air conditioning purposes is likely to be much greater in Karratha and Mr Allan concedes a loss of $790 per annum by reason of the loss of the subsidy. Four years cost, $3,160, plus interest, is conceded. It is agreed that electricity rates in the metropolitan area are the same as those in Karratha. I agree with Mr Allan on those items.
Mr Allan argues that the three economy return airfares to Perth to which the plaintiff was entitled in his Karratha employment should not be the subject of any award since the plaintiff is no longer living and working in Karratha and therefore no longer needs the rest and recreation represented thereby (or the cash value to which it could be converted). I do not accept that no allowance should be made. The airfares were a form of subsidised holiday allowance convertible to cash. However, I think the value should be discounted given the plaintiff's move to Walpole. I allow $500 per annum for seven years.
Allowing a net income at the time of the accident on 22 July 1992 after making allowance for the capital gain of $5,500 in 1992, averaged over three years, produced a net annual figure of $25,350, or $487.50 per week for 105 weeks, $51,187. For the next 36 weeks the weekly rate increases to $495, a total of $17,820. For the following 51 weeks the rate increases to $501, a total of $25,551. Then the net weekly rate increases to $535 for 161 weeks, $86,135. This produces a total of $180,693. To this I add proved loss of housing and power subsidies $9,000, and an amount for loss of airfares, $3,500. That produces a total to trial of $193,193. The plaintiff's net income over the period to trial was approximately $123,000. I allow the difference, $70,000.
I allow loss of superannuation benefits at 6 per cent, less 30 per cent for taxation and benefits, administrative costs for 6.8 years on an average gross income of say $43,000 to trial of $12,300.
I also allow loss of interest at 4 per cent on $82,300 for 6.8 years, $22,400.
I allow a total of $104,700 under this heading. I do not think any more exact calculation can be made.
Between the accident and 14 November 1997 the plaintiff had received by way of worker's compensation payments of $157,292.17 together with statutory allowances of $30,893.18, a total of $188,185.35. That amount is repayable. It is, I understand, a gross figure and Mr Allan is content that I include it in the judgment.

Future Economic Loss.

The plaintiff's evidence about his intended length of stay in Karratha, his intended retirement date and his plans to live on a rural property is not surprisingly somewhat imprecise. The plaintiff bases his claim on remaining in Karratha for a further 12 years after trial, by which time his youngest child would have finished tertiary education. During that time he claims the loss of the subsidies as well as of his income. Thereafter, he claims loss of income only to age 65. He claims loss of superannuation benefits throughout at nine per cent. He concedes retained earning capacity of 20 hours per week at $11 per hour, that being his current paid employment and a discount for contingencies.
The defendant takes issue with a number of these propositions. Mr Allan denies claims to subsidies on the same basis as that relating to past economic loss. He says that the plaintiff would probably have left Karratha at age 50 or thereabouts. He also argues that the plaintiff has the capacity to work a 38 hour week and a wider range of employment such as service station attendant, clerk, driver, sales representative and bar attendant. Wage rates for those occupations are set out in Exhibit 24.
It is agreed that the present award rate, without overtime, for instrument fitters is $605.60 gross per week.
A summary of agreed salary and wage award rates is Exhibit 24.
Mr Allan concedes that a global assessment should be made for some loss of economic capacity at a time after the plaintiff would have left Karratha.
In relation to loss of future superannuation benefits, a 30 per cent deduction should be made consistent with the decision in Jongen v CSR Ltd. Mr Allan concedes that loss of superannuation benefits can be assessed on a basis of an average six per cent per annum contribution on past economic loss.
Assuming the plaintiff would have remained in Karratha for 12 years in continual employment and that he had at the time of trial a net weekly wage of $535, and allowing for loss of electricity subsidy and the discounted value of airfares of $10 per week, I apply a multiplier of 450.5 to $545, $245,500
Assuming a working life to age 65, I allow 13 further years at $535 per week net. A multiplier of 698.7 less 450.5, that is 248.2, produces a further loss of $132,800, a total of $378,300.
I allow a retained earning capacity greater than that produced by the plaintiff's present income. He is capable of working longer hours and may also produce a farm income. I allow $300 net per week to age 65, a multiplier of 698.7, $209,600, a loss of $153,700.
I do not allow more than five per cent for contingencies. That reduces the figure to $146,015. I allow loss of superannuation benefits thereon of nine per cent, discounted by 30 per cent, $9,200. That produces a total of $155,215.

Past Gratuitous Services

Mr Allan makes the point that gratuitous services do not arise as a head of claim whilst the plaintiff was hospitalised. Patient needs are met by the staff and dealt with as a head of special damages.
After discharge from hospital in so far as the family merely rearranges its domestic affairs, no claim in gratuitous services arrises: Newman v Nugent (1995) 12 WAR 119.
Under this heading the parties put forward assessments which do not greatly differ, however.
It is agreed that gratuitous services are to be valued at $12 per hour.
On the basis of Mrs Parker's evidence I assess an award for past gratuitous services based on two hours per day until 8 October 1996 and thereafter one hour per day until trial, a sum of $48,000.

Future Gratuitous Services

The plaintiff seeks a global allowance of $10,000. The defendant argues that no award other than a modest global one should be made under this head, there being no evidence supporting a claim for ongoing and future need. I agree. There is every probability that on future occasions the plaintiff will again need knee replacement surgery after which he will probably, for a period, require services in the nature of gratuitous services from his family claimable in damages. I assume a starting point at $12 per hour, two hours per day. I allow $2,000 given the need to discount such an amount because surgery is unlikely within 10 years or so.

Special Damages

Special damages were agreed to amount to $454.50 for travel by the plaintiff. Other special damages have already been paid or will be paid by the defendant to, or on behalf of, the plaintiff.
Other items including air fares between Karratha and Perth for the plaintiff's wife and children, hospital television and telephone rental charges, and fuel and parking expenses for the plaintiff's wife during visits to Perth while the plaintiff was in Royal Perth Hospital and car freight charges are in dispute.
As Mr Allan says, these claims are not of the usual nature of special damages claims. Mr Allan argued that the decision in Wilson v McLeay (1961) 106 CLR 523 which predated claims for the value of gratuitous services rendered is now merged therein. In my view that is a matter for decision elsewhere. The two types of claims involved are distinguishable.
In any event, however, the claims made by the plaintiff relating to visits to Perth both for air fares, car freight and travel in Perth, do not, in seems to me, fall within the rationale in Wilson v McLeay at least so far as the evidence before me goes. The plaintiff, Mr Allan says, is a stoic, mature man who dealt with his injuries at the time and that there is no evidence of any therapeutic value in his family's visits to Perth to be with him. I agree. I do not think these claims are recoverable either under the doctrine in Wilson v McLeay or as special damages.
The receipts for television rental at Royal Perth Hospital are Exhibit 13. They total $170. I do not think the amount is recoverable from the defendant. Another bundle relating to hospital television and telephone charges amount to $79.50 incurred in December 1993, Exhibit 15, I treat similarly.
The receipts for telephone rental are Exhibit 19. I do not allow those either.

Future Medical Expenses

The plaintiff claims the cost of a knee replacement in 12 years time and further replacements each 10 years thereafter. Discounted appropriately, the costs amount to almost $10,000. He also claims annual orthopaedic reviews, allowances for travel, accommodation and incidental expenses involved therein, and an allowance for adverse contingencies in the form of a total knee replacement, greater vulnerability back injury and the possibility of a knee fusion. In principle, the defendant essentially concedes these items. I allow $15,000.

Conclusions

For the foregoing reasons, I assess damages as follows:

General Damages

Past Economic Loss including loss of Superannuation benefits and interest

Worker's Compensation and Statutory Allowances

Future economic loss including loss of superannuation benefits

Past gratuitous services

Future gratuitous services

Special Damages

Future medical expenses

Total

$75,000.00

$104,700.00

$188,185.35

$155,215.00

$48,000.00

$2,000.00

$454.50

$15,000.00

$588,554.85

Of that amount $188,185.35 is repayable to the worker's compensation insurer, leaving a balance of $400,369.50.