Parsons v Mccorquodale No. DCCIV-95-301 Judgment No. D3564

[1997] SADC 3564

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Taylor

Hearing

09/12/96 to 11/12/96, 18/12/96.

Catchwords

ASSESSMENT OF DAMAGESIndustrial Accident - knees; Past Economic Loss $78,000; Future Economic Loss $140,000; Future Medical Expenses $3,000; Wrongs Act Scale 27; Non-Economic Loss $36,990; Total Assessment $257,990.00. 21 year old male security guard; Wrongs Act scale 27; Past economic loss $78,000.00; Future economic loss $140,000.00; Non-economic loss $36,900.00; Future special loss $3,000.00; Total assessment $257,990.00

Representation

Plaintiff DAVID JOHN PARSONS:
Counsel: MR G BRITTON - Solicitors: KNOX &; HARGRAVE

Defendant JOHN McCORQUODALE:
Counsel: MR J PEARCE - Solicitors: FINLAYSONS

DCCIV-95-301

Judgment No. D3564

4 March 1997

(Civil)

PARSONS V McCORQUODALE

Civil

Judge Taylor

ACCIDENT AND INJURY

On the 27 March 1992, then aged almost 22 years, the plaintiff was working as a security guard for Wormald Security and was placed as a security guard at the Queen Elizabeth Hospital.

He was informed of an intruder in the kitchen area and went to investigate, the person ran off and went into a car and drove towards the plaintiff and pursuers.

The plaintiff jumped out of the way and in so doing he landed awkwardly on the concrete medium strip.He landed on his knees, his hands and his shoulder.

He suffered a number of injuries in the fall especially to both knees but much more severely to his left knee.

These proceedings are a claim for damages to be assessed for those injuries; liability is admitted.

HISTORY BEFORE ACCIDENT

It is important to look at the history of the plaintiff to see what experience he had in his life prior to the accident.

He was born on the 29th March 1970 and was 26 years of age at the date of these proceedings.

He was educated at Peterborough to the end of year ten and competed in sports including at state title level for the 800 metre sprint.

He participated in other sports at school including football, basketball, swimming and tennis.

In 1984 he injured his left leg while playing football and he describes that as follows:-

"Q. That was when you were 14 years old.

A. 13 or 14, yes.

Q. Did you have treatment for that from an orthopaedic surgeon, Dr Kevin Angel.

A. Yes.

Q. That was in Adelaide.

A. Yes.

Q. Was there a time when your knee was in plaster.

A. Yes.

Q. What became of that knee problem that you had.Did it stay the same or improve.

A. I got it dislocated and I was in plaster for about six weeks and had physio at Peterborough Hospital and then after I believe I made a full recovery, I continued to play sports and everything else again, I played basketball, I think it was about nine months later for the Hawks."

In 1986 he moved to Adelaide and lived with his mother in a caravan park at Windsor GardensCaravan Park and attended Goodwood Boys Technical School for six months.He then obtained an apprenticeship with Veneer Panels as a wood machinist.He stayed there for about two and a half years and explained his leaving as follows:-

"A. There was inadequate training and I approached the Apprenticeship Board and brung it to their attention and I was basically the union delegate for the apprentices because I thought somebody has got to stick up for what's right and management didn't appreciate that and ended up getting a black ban against them anyway through inadequate training for apprentices.

HIS HONOUR

Q. What is this black ban.

A. They weren't allowed to have apprentices for three or four years, it was some period where they just weren't allowed to employ any apprentices.

Q. Did you leave after that.

A. I was requested to leave.I left on common ground."

At the time he was riding a bike and did not have any problems with his left knee.

At the caravan park he met Kerrie (the second plaintiff) who later became his wife.

After leaving Veneer he started at Kelvinator on the 5th July 1989 and was there for about six or seven weeks.In August 1989 he had a motor vehicle accident, he being stationary at the time.

He saw his general practitioner Dr Oaten for a bad neck.

"Q. You have mentioned getting some treatment for your neck.What was the problem with your neck.

A. I got headaches and my neck was very stiff and I found it hard to turn left and right very quickly, so I went and seen Dr Oaten and seen what could be done about it and he come up with the diagnosis of some whiplash.

Q. What happened with your neck condition.

A. In time?It has got better although every now and then I do have to click it into place but it is definitely better than what it was beforewhen I initially had the accident."

He was then retrenched from Kelvinator.

In November 1989 he obtained work as a security officer with 'Venue Services' as a doorman in nightclubs; this work only lasted a few months.

He then obtained work with 'Codesign' a machining company was a wood machinist i.e. similar to the work he had done with 'Veneer'.

On the 15th December 1989 he had a further motor vehicle accident.

"Q. Is that a company called Codesign.

A. Codesign was a machining company.

Q. Did you only work for Venue Services for a number of weeks.

A. Off the top of my head I can't remember, it was a few months I think.

Q. Did you have another accident, this time when you were riding a motorcycle.

A. Yes.

Q. Do you recall that being on 15 December 1989.

A. It was very close to Christmas.

Q. Did that occur when you were on your way to work.

A. Yes.

Q. What happened in that accident.

A. I was on my way to work and I was turning a right hand corner and the motor bike slipped off me, it was very dewey the night before and I slipped on one of the white lines and fell off and fractured my left hand and had an operation on that.

Q. Did you miss some time off work after that.

A. Yes, I did.

HIS HONOUR

Q. Off work from where.

A. Codesign.

XN

Q. This is where you were working as a wood machinist.

A. Wood machinist.

Q. How long off work were you.

A. About three months.

Q. Did you go back to your normal duties as a wood machinist.

A. Yes, I did.

Q. What became of that employment.

A. I was retrenched along with about 15 other guys.

Q. Do you remember when you were retrenched from that employment.

A. No, not off the top of my head."

He then worked for a short time as a shop assistant at Target but left as he had problems with his neck and his wrist working in the gardening section.

On the 18th December 1990 he had treatment at the Blackwood Hospital by Professor Dennis Smith for neck manipulation.

He left Target as working in the gardening section caused his neck to seize up.

In January 1991 he obtained casual work with Wormald, a Security Company, and was sent to the Adelaide Airport as a security officer; that work lasted for about three weeks but he was later re-employed by Wormald as a patrol officer and he described his work as follows:-

"A. In patrols you drive around in a company vehicle, you have to check different premises, three, maybe eight times a night.Attend alarms, attend banks, pick up cash, jumping in and out the vehicle, it can be up to 16 hour shifts, and just driving around all night, jumping in and out and checking premises."

He enjoyed that work and stated that none of his earlier injuries interfered with that work.

At the same time he continued with some of his sports e.g. martial arts, shadow boxing, Thai boxing.

During that work he received a considerable number of demerit points for speeding offences and he was therefore shifted to guard work which he describes as follows:-

"A. I wasn't really sure what was available.I was just employed as a patrolman and that's what I done, and then when I got my letter in the mail from the government saying I had only one or two points left, I just wanted something else.I just wanted a job still.

Q. Did you commence doing guard work.

A. Yes.

Q. During the time you were working at Wormald, either as a patrolman or as a guard, did you work whenever work was available for you.

A. Yes.

Q. Did you have any time off work.

A. I had time off when I got married.

Q. Did you have any time off as a result of any injury that you had.

A. No."

He commenced guard work duties in about December 1991 and he was married on the 15th February 1992.

Shortly after his marriage Wormald sent him for guard duties to the QEH which he describes as follows:-

"Q. What did you have to do at QEH.

A. Walk around - hang around the emergency area.Make sure that no nurses were going to be harassed or anything else and just make sure the place was secure and sound.

Q. Is that typical of guard work that you undertook with Wormald.

A. Like I said it does vary job to job, for that specific job, that was all that was required."

It was whilst there he suffered the subject accident.

MEDICAL TREATMENT

The plaintiff was eventually referred to the Orthopaedic Surgeon Dr Greg Keene.After his examination it was necessary for him to operate on his knee and he reported as follows:-

"He said thathe first injured this knee in 1984 when he suffered a football injury damaging a ligament.He subsequently had an arthroscopy and lateral release for kneecap problems.

On March 27, 1992 he re-injured the knee when he attempted to jump out of the way of a vehicle landing awkwardly hurting the knee.There was subsequent swelling and pain particularly the following day.Examination revealed a very mobile kneecap with a positive apprehension sign and tenderness laterally.

There was pain on resisted extension and marked patello femoral crepitus.

Examination of the right knee (which had also been injured in the accident) revealed similar physical findings but to a lesser degree.

Bilateral arthroscopic surgery was performed on April 9, 1992 and a copy of the operation note and diagram is enclosed.

Postoperatively he had considerable problems with recurrent effusion requiring a number of aspirations.A further arthroscopy to the left knee was performed on June 11, 1992 and a copy of that operation note and diagram is also enclosed.This procedure was performed due to recurrent effusions in this knee.

Ongoing and severe patello femoral pain in the left knee required a pain clinic assessment for a suspected diagnosis of reflex sympathetic dystrophy and this was performed in September 1992 but the result indicated that Mr Parsons did not in fact have reflex sympathetic dystrophy.

Due to the presence of an extremely hot bone scan in the left knee and continuing symptoms unresponsive to conservative management, it was decided to perform a patellectomy in the left knee.This was performed on December 23, 1992 and a copy of that operative record is also enclosed.Unfortunately postoperatively he continued to have further problems with swelling and bleeding requiring a further lavage (March 8, 1993) and a further arthroscopy and synovectomy (April 7, 1993).

Continuing symptoms and continuing conservative management did not improve his knee and further investigations (CT scan) revealed that the quadriceps patella tendon junction (the junction formed by the removal of the patella) continued to be laterally placed and this was consistent with his symptoms of a sensation of something slipping laterally.Accordingly, a distal patella tendon transfer and medial plication was performed on June 8, 1993 and he is currently recovering from this surgery.

Although there seemed to be a significant improvement from this surgery, when last reviewed on September 6, 1993 he stated that the knee had "gone backwards" with respect to pain.Examination revealed a range of motion of 0-130 degrees with no quadriceps lag and minimal quadriceps wasting.There was no effusion. Accordingly (and despite his continuing symptoms) he was advised to return to work on light duties.He is due to be reviewed again soon."

On the 5th January 1996 Dr Keene reported as follows:-

"I saw David today for a further review of his most difficult left knee.

I have clearly explained to David that I do not think that there is any further surgery that could be offered to him apart from a complete knee fusion and I do not think that this is a very good procedure at all.He agrees.

Although David has some misgivings about his ability to work in a sedentary job, I have informed him that I do think that he should be able to cope with a sedentary job which did not require any lifting or prolonged walking.

I understand that there is currently a dispute over his ongoing employment with Wormald and that a meeting of the various parties is to be organised in the near future."

On the 21st November 1996 he wrote as follows:-

"Thank you for your letter of August 1 1996 concerning David.I saw him for the purpose of this review today.As you probably know his knee remains unchanged and he is now working eight hours a day but is limited to sedentary work in a control room.He is unable to do patrol work.

In regard to my previous comments concerning a fusion I wish to offer the following clarification.

A knee fusion (arthrodesis) is a procedure whereby all movement from a painful joint is eliminated by fusing the joint surfaces together.This is a procedure which was in use prior to the advent of artificial knee joints as a last resort procedure for handling severe joint pain.It is not a good procedure because it creates considerable disability (with a stiff joint) and throws stresses on the joint either side of the fused joint.I offer these comments to clarify that my comment that a knee fusion is 'not a good procedure'.This was discussed with David and he agreed that he did not wish to proceed with that procedure.

On the other hand I am able to suggest to you that David may need (probably will need) a knee replacement operation at some stage later in life.This procedure at today's costs would be in the region of $10,000.00."

The following is a list of the operations he as had to his knees:-

Right and Left Knee

1. 9/2/92

Bi-lateral arthroscopic surgery [lateral retinacular division ('lateral release") and chrondoplasty]

Left Knee

2. 11/6/92Arthroscopy

3. Sept '92 Referral to Pain Clinic (suspected reflex sympathetic dystrophy)

4. 23/12/92 Patellectomy

5. 8/3/93 Lavage (irrigation) following development of a haemarthrosis

6. 7/4/93 Arthroscopy and synovectomy

7. 8/6/93 Distal patella tendon transfer and medial plication

8. July '94 Tightening of ligament

9. Dec '94 Tightening of ligaments.

The plaintiff was examined by Dr Fraser, Orthopaedic Surgeon, and his evidence and written opinion did not differ in any marked degree to that of Dr Keene. The written opinion of Dr Fraser of10th July 1995 is as follows:-

"RIGHT KNEE

He complains of intermittent anterior aching of nuisance level.He has no significant swelling but experiences very occasional sensations of giving way. He noticed some occasional grinding noises within the joint.He is unable to kneel on it and feels that the right knee overall is "not too bad".

LEFT KNEE

He continues to experience frequent and painful snapping and clunking on the lateral aspect of the joint.This can occur while walking and particularly while sitting with his legs abducted.He experiences some minor intermittent swelling which is aggravated by walking for any length of time.He is not aware of any particular untoward noises within the joint but is unable to kneel on the knee or squat due to discomfort.He does not experience any significant giving way and also experiences some aching at night.

PHYSICAL EXAMINATION

There was no particular over-reaction to any of the routine manoeuvres of the examination.

The patient was tall with a mild valgus configuration to both legs.

Examination of the right knee confirmed a full range of movement without any effusion.There was no pain at full flexion and no palpable crepitus. Quadriceps bulk and power was good.There was no significant joint-line tenderness or evidence of significant meniscal pathology.All ligaments were stable.The patello-femoral joint was markedly hyper-mobile but with only very minimal discomfort on patello-femoral compression.The apprehension test was negative.

Examination of the left knee confirmed that it had been multiply operated. There was a long mid-line surgical scar and a shorter postero-lateral scar. There was no effusion within the joint.There was a full range of movement with pain on full flexion.The patella was absent.There was joint-line tenderness both medial and lateral with minor discomfort on McMurray testing but no evidence of significant meniscal pathology as such.The collateral ligaments were intact.There was marked anterior cruciate laxity assessed at 2+.There was quadriceps wasting of approximately 1.5 cm.

The patient was able to demonstrate a loud snapping and clunking sensation which was not easily localized but was in the lateral aspect of the joint.He was able to demonstrate this at will while sitting by abducting his leg and then deviating it medially with some valgus stress on the joint.

INVESTIGATIONS

I reviewed multiple x-rays which were of little help.Plain films of both knees taken on 30 March, 1992, before any surgical procedures, revealed a bilateral tendency to subluxation of the patellae with early patello-femoral degenerative change visible on the left.The tibio-femoral joints were relatively well-preserved with the lateral tibial plateaus appearing to be somewhat more dished or concave than usual.

Further plain films taken on 22 March, 1994 confirm that the patella had been removed and that a distal patellar re-alignment had been performed with 2 screws in situ.There were now some early degenerative changes in the lateral tibio-femoral compartment.

An MRI scan performed on 24 May, 1994 confirmed that the menisci were normal. A CT scan on 28 April, 1993 was not particularly helpful.

OPINION

The diagnosis in this patient appears to have been one of an aggravation of pre-existing patellar instability in the left knee (secondary to a prior traumatic patellar dislocation occurring in 1984).In addition he appears to have sustained an aggravation of a subluxing patella in the right knee based on a genetic tendency to ligamentous laxity and hyper-mobility.

His right knee has received only minor surgery and causes some nuisance type symptoms but is quite acceptable to the patient.

His left knee has been multiply operated with little long lasting improvement (at least according to the patient's own assessment) after any or all of the operations performed.

In my opinion the patient must accept the current status of his left knee and should not under any circumstances undergo further surgery.Eight operative procedures on the knee have not improved him significantly to any degree and it is extremely unlikely that the ninth, tenth or eleventh will make the slightest difference.

He should be encouraged to continue to rebuild his left quadriceps and participate in non-stressful activities such as swimming and level cycling.

He is currently fit to perform the work ofa security guard providing he does not have to walk excessively, perform excessive bent knee activities or participate in active running.

He currently has a permanent physical impairment which is assessed at 35%of function of the left lower limb at or above the knee.This is due to a combination of his original injury in 1984, his work-related aggravation in 1992 resulting in multiple surgical procedures, as outlined above.I would attribute two-thirds of this total disability to the most recent work-related aggravation and its sequelae.

The patient further has a permanent physical impairment assessed at 5% of function of the LEFT lower limb at or above the knee.This is due to his largely inherent patellar instability and I would attribute one-half of this disability to the work-related incident described."

And on the 16th October 1996gave his final opinion as follows:-

"PHYSICAL EXAMINATION

This is essentially unchanged from that described in my medical report of 10th July 1995.He was generally somewhat jumpy to examination of the joint.The range of movement was close to full with some discomfort at the extremes of full flexion and considerable irritability of the joint.There was generalised tenderness particularly over the lateral femoral condyle and the lateral compartment.There was no effusion.Quadriceps power was decreased and there was considerable wasting.The patella was absent.There was a 2-3+ anterior cruciate laxity with stable collaterals.

Examination of the right knee confirmed that this joint was nonirritable with a good range of movement, good quadriceps bulk and some minor constitutional cruciate laxity.

INVESTIGATIONS

I have remarked on these in previous medical reports and will confine my comments to more recent investigations.

Plain x-rays of the left knee taken on the 8th December 1995 confirm moderate deterioration in the status of the lateral femoral condyle with significant and moderately severe degenerative change.The single view available of the right knee confirms that this is better preserved.

MRI Scanning of the left knee performed on the 4th December 1995 confirms the significant degenerative arthritis in the lateral compartment with bone marrow changes and it has been commented that this is significantly worse than 18 months previously.

OPINION

Left Knee

The diagnosis is now essentially one of moderately severe lateral compartment arthritis of the left knee together with cruciate attenuation in a patellectomised knee.This in my opinion has largely stemmed from his patellar dislocation before and during the subject work related injury and also the multiple surgical procedures which he has undergone.

My assessment of permanent physical impairment (35% of function of the left lower limb at or above the knee) remains appropriate.I would add however that it seems that the degenerative arthritis in the knee joint is likely to progress at a somewhat more rapid rate than I initially expected and I believe it highly likely that total knee replacement will be required at a relatively young age in this patient.I believe that this is likely within the next 10 years.Such surgery is not desirable in a patient who will then be only 35 years old and will in itself carry with it attendant possible complications such as early loosening and wear.I believe that this should be taken into consideration in the settlement of any claim.

I would now also attribute four-fifths rather than two-thirds of the total impairment to the work related injury and the sequence of events following as I believe that the sequence of events has contributed somewhat more to the deterioration in his knee than I would normally expect.

RIGHT KNEE

The assessment made in my previous medical report (5% of function of the right lower limb at or above the knee) remains appropriate.I continue to believe that one half of the total impairment is related to the subject incident.

In my opinion the patient remains fit for sedentary work.I have read the job descriptions outlined by Mr David Worth in the Job Analysis Report of the 4th June 1996 and agree that the job of Control Room Operator is eminently suitable for this patient.The patient is not fit for and will not be in the future fit for any work which involves prolonged walking, repetitive kneeling or squatting etc. Etc.

I would regard the patient's current condition as being stable, with the exception of the inevitability of further surgical treatment in the future as outlined above."

Evidence was also given and other reports tendered by a number of other medical specialists; Dr M J Harris, Dr Jones & Partners, Dr W B Blakemore, Monica Ciccocioppo, Dr David Worth.

After his injury he went back to work for Wormald from time to time but he found it too difficult to continue particularly getting in and out of the car or walking on other security functions.

In August 1996 Wormald provided him with employment in their control room.

He was given assistance in obtaining this work by a number of authorities and persons who he described as Commonwealth Rehabilitation Service, Workcover and David Worth, Physiotherapist.

He describedthe work he was able to accomplish in the control room but described difficulties in some matters of handing out weapons from a bottom safe and from problems with his chair and moving his leg.

He also described in his evidence the various restrictions which they experimented with and in the end he was limited to shorter rosters than were able to be worked by other employees.

Having regard to the evidence of Mr Shippey of Wormald I accept that future overtime would be very limited.

I find that his limitations for sport and social functions and for work capacity are as deposed by Drs Keene and Fraser.Where their evidence differs from the plaintiff I prefer and accept the evidence of the two orthopaedic specialists.

FUTURE EMPLOYMENT PROSPECTS

Having regard to all of the evidence concerning his present employment, I find that that is provided to him as a present obligation imposed by a number of authorities, but I am satisfied that it can not be regarded as such a long term arrangement as to substantially answer any claim for his loss of working earning capacity.

PAST EMPLOYMENT HISTORY

It is not unusual for a person of his limited education and in his early years to change employment as frequently as he has.That factor does not necessarily mean he would not have settled into steady permanent employment e.g. the security industry, nevertheless it is a factor I must have regard to.

PAST ECONOMIC LOSS

I assess his loss of income from the date of the accident, that is the 27th March 1992 to the date of trial.

I have been provided with a number of schedules particularly exhibits P3 and P10 to assist in that calculation and I have regard to those and also to the whole of the evidence to arrive at a sum which I assess at $78,000.

FUTURE ECONOMIC LOSS; LOSS OF EARNING CAPACITY

There are many mattersto consider under this topic, they include:-

1. The evidence of Drs Keene and Fraser as to the part played by the plaintiff's pre-existing injury to his left knee and the part that plays on the possible onset of arthritic change.

2. The fact of his present employment and how long it may continue.

3. His present limited education and qualifications.

4. The evidence of Dr Keene of the type of work he may perform.

5. The possibility of increasing his skills i.e. computer experience.

6. Time off work for probable future treatment e.g. knee replacement.

I have not set out all of the considerations to effect this matter and I have had regard to the whole of the evidence and particularly to all of the schedules

produced.

Taking everything into consideration I assess his Future Economic Loss earning capacity to $140,000.

FUTURE MEDICAL EXPENSES

I note the actuarial calculations but having regard to the evidence of Dr Keene ofhis pre-existing condition and also to his requirement for future medication he may need, I fix the sum of $3,000.

NON-ECONOMIC LOSS;WRONGS ACT SCALE

The plaintiff has suffered much pain and suffering by the number of procedures he has had to his knees and also his other injuries.

I accept that he prided himself on his fitness so that he could enjoy many sports and I accept that these have been curtailed.

The evidence is that he should persist with various types of work as described in the evidence of particularly Dr Keene and also that he should persist with some sports particularly walking, bike riding and swimming although this may cause him some discomfort.

I fix the scale at 27; the multiplier is 1370, I therefore award under this head the sum of $36,990.

BECK AND FARRELLY

The evidence I have heard has not convinced me that I should make any assessment under that head.

There will therefore be judgment for the first plaintiff for the sum of $257,990.

I will hear the parties as to interest and costs.

IN COURT ONWEDNESDAY 26TH MARCH 1997

His Honour Orders -

Plaintiff to have costs either as agreed or taxed.

No order as to interest.

Leave for both parties to apply for an order for special damages if not agreed before hand.

IN COURT ON WEDNESDAY 4TH JUNE 1997

Order amending the Judgment to include the sum of $48,080.84 as Special Damages.

Judgment for the Plaintiff (first plaintiff) for the sum of $306,070.84.

Plaintiff to have costs either as agreed or taxed.

No order as to interest.