Pearce v Riddell
[1992] TASSC 98
•5 June 1992
COURT: SUPREME COURT OF TASMANIA
CITATION: Pearce v Riddell [1992] TASSC 98; B19/1992
PARTIES: PEARCE, Gregory Damien
v
RIDDELL, Archibald Somerville
FILE NO/S: 1711/1985
DELIVERED ON: 5 June 1992
JUDGMENT OF: Cox J
Judgment Number: B19/1992
Number of paragraphs: 49
Serial No B19/1992
List "B"
File No 1711/1985
GREGORY DAMIEN PEARCE v. ARCHIBALD SOMERVILLE RIDDELL
REASONS FOR JUDGMENT COX J
5 June 1992
Assessment of Damages.
On 25 November 1983 the plaintiff suffered injury when thrown from his motor cycle in an accident caused by the admitted negligence of the defendant. He was aged 17 years 4 months at the time. He was admitted to the North West Regional Hospital at Burnie in an unconscious state with a fractured middle third of the face, multiple fractures of the mandible, fractured left humerus, fractured right and left scapula, lung contusion which developed into a pneumothorax, fractured skull, fractures of the 3rd and 9th ribs and right wrist, deep lacerations to the left thigh and lacerations to the left great toe and second toe. He remained unconscious for ten days, was in the intensive care unit for sixteen days and was discharged from hospital after one month wearing an "aeroplane" splint. The optic nerve was so damaged that he suffered permanent and total blindness in the right eye. At the time of the accident he had been working for about four months at the hospital as an electrical apprentice. In March 1984 he was sufficiently recovered to resume his apprenticeship, spending some two weeks of technical training at the Burnie TAFE College, and in April 1984 he resumed practical work at the hospital.
Dr John Carney, plastic surgeon, first examined the plaintiff in December 1985 and then observed the following disabilities:
"(1) – Left Arm. There is considerable weakness of the triceps with loss of grip power in his hand. The manipulative power of the hand is also diminished and this is borne out by the diminished function in the interosseous muscles (intrinsic muscles of the hand). He finds difficulty in doing up buttons, shoelaces and this is usually compensated for by the normal right hand. There is diminished sensation in the distribution of the first thoracic nerve dermatome and I would suspect that interosseous muscle abnormality is associated with damage to this part of the brachial plexus. The radial nerve was probably damaged by direct violence though this has largely recovered in the distal forearm though the triceps muscle remains considerably weaker than the left.
(2) – Face. Examination of the photographs that he brought with him shows that his right eye was always at a level different from that on the left. There is however considerable deformity of the nose which is widened with loss of bridge support distally. It certainly could be improved by a rhinoplasty introducing a bone graft into the bridge of his nose and narrowing the base.
Examination of his jaw shows no overt evidence of deformity in its external appearance though he has difficulty with teeth occlusion and is required to wear an anterior dental prosthesis in the upper jaw. Although Gregory thinks that there is considerable difference between his jaw appearance now and prior to the accident I cannot detect this from the photography. His present appearance I am sure is quite satisfactory and requires no surgical intervention.
(3) – Leg. The left thigh bears a longitudinal well healed but widened scar, measuring some 18cm in length, which ends just above the knee–cap. Immediately below the knee–cap and extending on to the lateral side of the knee there is a similar 17cm widened scar. Both of these are obvious by virtue of their smooth surface and loss of normal brown pigmentation. Both could be improved by surgical revision though the knee scar would again widen though probably not to the same extent as presently.
(4) – Tracheostomy scar. The anterior aspect of his neck bears a noticeable reddened scar just above the sternal notch which was the site of his tracheostomy. At the central part it is noticeably deformed to form a small pit but this could be improved by surgical revision. The remainder of the scar should fade into the surrounding skin as the reddened pigmentation disappears.
(5) – Eye. The appearance of his eyes is not normal. This is due to the asymmetry of his pupillary size. There also appears to be some degree of lack of coordination of the eyes, probably due to lack of fixation of the right eye which lacks vision. An opthalmologist could contribute more information in this area."
He reviewed him in August 1991 and reported that:
"My examination confirms that at the time of the original consultation his situation was static. There has been no significant change in either his appearance or functional disability since that time.
The left arm remains weaker than the right. As an electrician he is unable to carry out his usual job because of weakness in the arm and his ability to maintain a hand in anything other than a dependent position for any length of time.
The manipulative ability of the hand is impaired by virtue of loss of the power in the small muscles in the hand (intrinsic muscles).
The area of anaesthesia on the arm however has improved in that there is now no longer evidence of anaesthesia distally though at a more proximal level and in particular in the outer aspect of the arm there is significant diminished sensation.
The weakness in the triceps muscle remains."
In oral evidence Dr Carney said that he noted that the plaintiff's manipulative grip was more severely affected than the power grip. In relation to his ability to carry out work as an electrician, Dr Carney received a complaint from the plaintiff that he found it difficult when working above his head to hold the left arm above his shoulder for any length of time. Dr Carney found this consistent with weakness in the triceps group of muscles but said he should have no difficulty working below shoulder height provided he was not required to adopt an awkward position. He described the plaintiff's fractured nose as a "boxer's nose" and said that the abnormality could be corrected by an elective surgical procedure known as a rhinoplasty.
Mr Howard Bye, an orthopaedic surgeon, examined the plaintiff in December 1989 and found he had a lot of difficulty keeping his left hand and arm above his head because of a lack of power in the shoulder muscles which showed obvious wasting. The plaintiff complained that his left arm was uncomfortable, which Mr Bye found consistent with his diagnosis. He found a bony lump on the lower end of the right radius and evidence of some disruption to the ligaments around the site of the fracture, but there was no complaint of pain. Although there was some tenderness and subluxing, Mr Bye did not regard it as a gross problem. He could find no structural abnormality of the left knee and thigh but accepted the reasonableness of the plaintiff's complaint that his left leg was not as strong as it used to be.
X–rays showed a united fracture of the left humerus and that the collarbone which had been dislocated was now slightly higher. Mr Bye thought the plaintiff's main problem was a brachial plexus lesion. He said:
"Very little one can do about it surgically and the problem with that sort of injury is some fibres recover, some fibres are intact, some fibres are injured and it could be one beside the other where one is good, one is bad. In his case I think it's sort of a patchy problem. It's no particular nerve has gone. It's just a patchy problem to the arm itself so that various muscles won't work as well. Sensation mightn't work as well. Some will, some won't. ... The muscle problem I think stems directly from his nerve problem. I think that's where his main problem with that left arm is. The problem with that is that the muscles the nerves have been disfunctioned in an irregular way such that the muscles which control his shoulder girdle don't work. Some of the nerves which provide innovation to the muscles of the hand don't work and it's a patchy sort of difference all the way down so that he can't lift his arm above his shoulder because those muscles are weak. He can't grip as strongly as he should because some of those muscles are weak."
This would lead to lack of co–ordination and slowness.
With respect to future treatment, Mr Bye thought it unlikely (less than a 1% chance) that surgical intervention would be required to the plaintiff's knee. He thought the wobbliness of the wrist might prove to be a nuisance and that he might need to use a splint. An arthroscopy and wrist arthrodesis were remote possibilities. As to the shoulder, Mr Bye said he would not be surprised if the achromia clavicular joint caused difficulties and he developed pains in the area where the collarbone meets the shoulder blade and that minor surgery might be required to ease it. The shoulder joint proper was at risk of injury because the lack of power in the muscles to hold the arm up put strain on the joint by failing to counter the weight of the arm pulling against it. There is a risk that the arm will slide out of the joint. Should that occur (and Mr Bye described that contingency as remote) an arthroscopy might be necessary, and even more remotely, an operation to repair damaged tendons required. Those procedures would cost, in present day terms, $1,500.00 in money and in time an overnight stay in hospital for the former, and for the latter about $3,500.00 in money, and in time 4–5 days' hospitalisation and several weeks' immobilisation of the arm in a sling and 20–25 visits to a physiotherapist.
The plaintiff suffered bilateral fractures to the mandible causing considerable damage to his dentition. After his discharge from hospital in Burnie, he was brought by his father to Dr G. M. Hall, a dental surgeon of Hobart. On 6 February 1984 Dr Hall observed that the plaintiff had a "gagged" bite due to foreshortening of the rami of the mandible associated with fractures. He found a fracture of the left body of the mandible and a premolar tooth displaced into the fracture line. Several teeth were completely missing and there were numerous other fractured teeth. He was admitted to the Royal Hobart Hospital on 14 February 1984 and the remains of seven teeth were surgically removed, including the tooth in the fracture site. He was discharged to his local dentist on 16 February 1984 with a good prognosis for healing, but a poor prognosis for normal mandibular function, a residual deformity being expected. Dr Hall recommended the construction of upper and lower partial dentures. An upper denture was fitted in 1984 and the plaintiff has had no further treatment. However, further work on his dentures has been recommended and I find it reasonable that it should be undertaken. Dr P. C. Pullinger gave evidence as to the work required and examined him in November 1989. He noticed a marked clicking and crepitus in the plaintiff's left temporo–mandibular joint and found the state of his dentition quite abnormal. The plaintiff had a single denture replacing the six missing upper teeth, while nothing replaced the gaps created by the loss of his five lower teeth. He recommended twelve units of fixed bridge work in the upper arch, and on the lower arch one tooth would require a pinned amalgam core followed by a porcelain fused gold crown over the top of it, plus a cast chrome cobalt partial denture. The present cost of these procedures would be $7,830.00.
Dr Gordon Wise gave evidence about the plaintiff's vision. He confirmed the total blindness of his right eye and found no evidence of damage to the left eye. The plaintiff complained of sensitivity to glare, black spots in his left eye on occasions, and tiredness. Dr Wise found these symptoms reasonable sequelae in the circumstances. The black spot, he said, was a vitreous floater which had no great significance and is present in 90% of the population. He considered that his sight would not deteriorate in the future. To counter the glare, the plaintiff wears spectacles with photochromatic lenses.
I move now to the question of brain damage and remind myself of some observations of Nettlefold J in Martin v Howard [1983] Tas R 188 which represent, with respect, wise words of guidance in this kind of case. He said (at 200):
"A critical aspect of any case involving an assessment of damages in respect of brain damage is the degree of brain damage shown to have been caused. It is much more difficult to get an adequate appreciation of the precise degree of damage to the brain than it is to get an appreciation of the extent of damage, say, to a limb. It is important, when judging the degree of damage shown to have been caused, to pay very close attention to the details of the evidence concerning the person's performance before and after the injury. That supplies an important guide to the actual degree of damage. And the finding as to the actual degree of damage can have a very great effect on the amount of the appropriate award. Depending on the person's situation in life, serious brain damage can have a grave effect on income earning capacity and enjoyment of life. But, a somewhat lesser degree of damage may not produce serious adverse effects. Therefore, the precise degree of damage must be considered and assessed with great care."
It appears from the nature of his facial injuries that the plaintiff's face and head struck the ground with considerable force in the accident and he was admitted to hospital in a deeply unconscious state in which he remained for about ten days. The x–ray report on the skull reads:
"Both maxillary antra are opaque. The nasal cavity and the left frontal sinus is also opaque. The anterior posterior views shows a radiolucent shadow in the lateral part of the left occipital region. ? Due to a fracture line. ? One of the sutures. It has some appearance as a suture. The OM view shows irregularity in the right malar bone. ? Fracture."
There are some other entries for the next few days in the hospital records which indicated the possibility of a leakage of cerebrospinal fluid into the mouth, but a pathology report of 29 November 1983 contains the conclusion that the fluid was digestive in origin and not cerebrospinal fluid. On discharge the consultant, Mr Kille, summarised the skull injury in these terms:
"Clinical fractures of the frontal and middle fossa of the skull with opacification of both axillary antra and left front sinus."
He also noted:
"It is now evident that there was an injury and damage to the right optic nerve. Initial reflexes have now disappeared and it is clear that the eye is totally blind, and recovery is not anticipated."
And:
"Mentally he seems to have suffered no deterioration."
No evidence in the nature of a CT scan was adduced. From the documentary material placed before me it appears that the late neurosurgeon, Mr Duffy, examined the plaintiff at some stage but no attempt was made to adduce evidence of Mr Duffy's observations or opinion.
Mr John Liddell, neurosurgeon, examined the plaintiff in May 1991. He elicited complaints of non–specific numbness in the lateral aspect of his left arm, together with a significant degree of weakness primarily around his shoulder which caused him to experience difficulty with his arm above his head. The plaintiff also claims that he may have had some short term memory problems. He also complained of minor discomfort in the region of the right wrist, left thigh and left big toe. Mr Liddell said that the plaintiff did not appear to have had any seizure activity at any stage. He appeared to be generally well. His right eye tended to deviate out. He had some obvious muscle wasting around the left shoulder and a number of well healed but extensive lacerations around his left thigh and knee. His cervical spine movements were full and pain free and he had no specific spinal tenderness. His right eye was blind but the remainder of the examination of his cranial nerves was unremarkable. He had some non–specific numbness affecting a relatively large area around the lateral aspect of his shoulder and upper arm on the left. The remainder of his neurological examination was unremarkable. Mr Liddell said that the plaintiff had not suffered from post traumatic epilepsy and that although he had had a significant concussive brain injury, he appeared to have made a full recovery from this. Asked if he had formed any views about a history of social disinhibition given by the plaintiff, he said he was unable to comment as to whether he had some social disinhibition that could on occasions cause embarrassment, but that the type of injury sustained "is not infrequently associated with a degree of social disinhibition". He expanded:
"A Social disinhibition is something that normally relates to the frontal lobes of the brain. The frontal lobes of the brain really control the highest functioning of the brain in terms of social equilibrium and where there is any disturbance of the frontal lobes of the brain the sufferer can become disinhibited so he may for instance become garrulous and behave in a less restrained way than one would have expected his premorbid personality to lead him to behave.
Q Was the type of injury that he sustained on the history that you received at least such that such disinhibition could have, if it existed, been related to that injury?
A I felt that was quite likely. Yes."
Dr C L Williams, a psychologist, examined the plaintiff in June 1988 and in March 1989. He conducted a number of tests and advanced as a possibility the proposition that as a result of trauma to the frontal lobes the plaintiff has deficits in his psycho–social functioning and has sustained changes in aspects of his personality. Citing from a study entitled Chronic Emotional Social and Physical Changes After Brain Injury by Lezak & O'Brien, research and clinical neuro–psychologists, he referred to the proposition that it is likely that people with traumatic brain injury are much more seriously handicapped by the emotional, personal and psycho–social disturbance than by their residual cognitive and physical disabilities, and said that his impression of the plaintiff raised his "suspicion that these changes have taken place". This kind of syndrome is one in which although the intellectual functions are essentially intact, the patient has problematic personality characteristics and engages in social behaviour which disrupt the individual's life and capacity to achieve effectively at his IQ level. While there can be degrees of change in personality and social functioning depending on the severity of the damage, the signs would be impulsiveness and lack of capacity to inhibit one's behaviour. Such patients are aware of what the rules are but are unable to inhibit their behaviour or control it. There can be a mild euphoria. There is often at times diminished anxiety and they are not so concerned about consequences of actions in the future.
"Their lives become less productive and they will decide that they are going to undertake rehabilitation of part of their life one week but then after trying it for a while they will go on to another track so that they are not as systematised in their functioning and in their quality of life as before the accident. They, and this is of some significance, often evidence diminished social judgment and a lack of social tact so that they behave in ways that are socially inappropriate and they may not be aware or concerned of any distress or discomfort their behaviour has on other people. ... They have diminished insight into the consequences of their behaviour."
I shall return to Dr Williams' evidence and the conclusions which may be drawn from it, but as these depend largely upon findings of the plaintiff's condition prior to and after the accident, it is first necessary to recount and assess some of the evidence from himself, members of his family and former employers.
The plaintiff, now aged 25, is the sixth in a family of nine children. His father and mother are still alive and live at the farming property formerly worked by the father. The third son, Simon, aged 29, now runs the property in conjunction with his business as a electrician and the plaintiff's father spends his time as a bee keeper. The eldest sibling, John, is a self–employed landscape gardener; the second, James, a fitter and turner and part–time trade teacher; the fourth, Marcus, aged 28, is a police officer who is the officer–in–charge of the Ballistic Section of the Tasmanian Police Force; the fifth, Quentin, a farming contractor who harvests crops, mainly of onions and potatoes; the seventh, Anne, is married to a farmer and before her marriage worked for the Royal Automobile Club of Tasmania; the eighth, Ruth, is a real estate agent; and the youngest, Roger, aged 21, is a heat and ventilation plumber.
Prior to the accident the plaintiff exhibited a high degree of sporting ability. He excelled at athletics, especially cross–country running, and at the age of fourteen took up pistol shooting. He won Tasmanian championships as a junior and represented the State in national championships in 1982 and 1983 in Brisbane and Adelaide respectively, winning two bronzes in 1982 and coming second in the junior match of 1983. He was selected to attend seminars in pistol shooting at the Institute of Sport in Canberra in late 1982. He attended the Boat Harbour Primary School, Wynyard High School to Grade 10, and Hellyer College for his last year of school in 1982. The previous year he obtained a School Certificate being awarded five passes in English, Mathematics, Social Sciences, Technical Drawing and Woodwork and two higher passes in Metalwork and Science. All were studied at Level II. In his last year he received a Higher School Certificate with two passes in Mathematics and Health and Recreation and two lower passes in Social Psychology and English. Again, all were studied at Level II. His school reference from the Wynyard High School at the end of 1981 described his conduct as "well behaved, sensible and courteous"; his attitude as "very determined, does his best always"; his application to school work "well motivated"; and his participation in school activities as "first class competitor in athletics". General comments were:
"Greg has made an excellent contribution to the school during his four years. He is a mature boy with ability to work unsupervised and to show common sense and initiative. He co–operates readily with adults and enjoys good relationships with his peer group. Highly recommended."
Earlier reports had not been quite so flattering. In Grade 8 (December 1979) the principal commented:
"Greg's academic performance and attitude fluctuates too much to be passed over. He could bring more determination and show more interest in some of the academic subjects. Next year is important in the development of motive and purpose. We hope Greg gives more to all his subjects."
In May 1980 there is the comment:
"Although Greg achieved the top mark in Science 9B, I believe he would readily achieve a credit if he gave his full attention to his studies during class. In Commerce, if he is willing to make a concentrated effort, he should achieve a pass award."
Three months later, the comment was:
"Greg has relaxed his efforts in Science this term both in the classroom and in test preparation. He is occasionally a distracting influence on the classmates he associates with. Greg's marks have drastically dropped as a result of this less academic approach to his studies. I look forward to a more conscientious approach to his lesson work and home studies in the final term. It is pleasing to see the improvement made in Technical Drawing and Commerce."
In December 1980 his teacher noted improvement.
"Greg has displayed a more settled approach to Science this term and as a result has almost regained the higher award he is capable of. This more mature approach has also enabled Greg to further improve in other subjects too. I look forward to the steady approach being still evident in 1981."
In May 1981 the following comment was made:
"A pleasant student not working to the best of his ability. He is inclined to waste time and not give of his best in this important year of his school career. An active participant in many sporting fields."
The last report in evidence is August 1981. It reads:
"Although he appears to have a good attitude he is not working at his best all of the time. A concerted effort is necessary in the next few weeks in all areas."
Upon leaving school in late 1982 the plaintiff decided he wished to join the Police Force and approached a sergeant at Burnie. He was told the Force was not accepting recruits at that time. He was unemployed until July 1983 when, with the encouragement of his brother Simon, he began work at the North West General Hospital as an electrical apprentice. It appears he was not formally apprenticed until later, but this is of no significance. In the following four months which preceded the accident, he was under the supervision of Mr John Gibson, the hospital's assistant engineer. He had a workforce of about thirty of mixed trades. He had known the plaintiff's brother, Simon, who had earlier completed his electrical apprenticeship at the hospital, and being impressed by him, had willingly accepted the plaintiff as an apprentice. His assessment of him in those four months was that he was suitable for the job, that he was quiet and reserved, "an honest hardworking sort of kid", and in regular demand as offsider to the other tradesmen.
Three of his brothers gave evidence of the plaintiff's personality and attitude prior to the accident. Marcus, some three years older, left home in 1980 to join the Police Force when the plaintiff was 14. He described him as:
"A very successful and determined athlete. He would train at his running and pistol shooting religiously and was a very determined goal–oriented sort of person who invariably achieved what he set out to do. He did not need pushing to get his homework or family chores done. He was a fairly reserved person who kept his affairs in order. He would polish his motor cycle every day and get it warmed up before setting off."
Quentin shared a bedroom with the plaintiff as a boy. He described him as follows:
"He kept to himself. He was shy. He was always very, very thorough in what he did with his basic maintenance of his motor cycle and with his sporting achievements. He was all go forth with his pistol shooting and he was just training late at night and working of a day and then he was just really really thorough in what he did and everything he did."
Simon described him in the following terms:
"Gregory was a fellow that was very – was very good at his approach to going about matters of whether it was to do with sport or whether it's to do with just his general neat and tidiness in his bedroom which I used to remember because he used to sleep in the same bedroom as my other brothers and he was very neat and tidy and had a very good outlook on life where he had set himself goals to achieve and was going about ways of achieving those goals."
After his return to work at the hospital in March/April 1984 the plaintiff continued with his apprenticeship. He passed all the academic requirements assessed by the Technical College and completed his apprenticeship in November 1987 when, in accordance with the hospital's usual practice, his employment was terminated. His employment history thereafter has been spasmodic. For the following eleven months he had no regular full time employment. He had a few weeks' casual work at the hospital and Burnie Technical College and some odd jobs for his brother Simon. In October/November 1988 he worked for five weeks for an electrical contractor, Geoff Cooper, but resigned. A week later he was employed as a electrician at an onion packing factory operated by Vecon Pty. Ltd. and stayed there until April 1989, again resigning on the eve of his marriage. A month later he took employment with an electrical firm, Thorpe's Electrical, in Burnie and remained there until the end of August 1989, when yet again he resigned. He then worked for five months until the end of February 1990 with a retail camera shop in Burnie (Rettke's). He did a little electrical work for the proprietor "on the side" but was employed as a salesman, a job he did quite successfully and happily. After a misunderstanding concerning the removal by him of a camera which he wished to borrow, but which it seems the proprietor thought he was planning to steal, he was dismissed and has had no regular employment since. From time to time he has helped his brother Simon out and picked up odd bits of work, but for the most part he has been on social welfare benefits of one form or another.
The loss of sight in his right eye seriously diminished his pistol shooting prowess. Despite his other injuries, however, he has managed to engage in a considerable number of sporting activities, although no doubt had it not been for the accident he would have done so with greater skill and enjoyment. Nevertheless, he participates in long distance running races, he took up bush walking and has, without significant difficulty, undertaken walks carrying a 20kg pack over several days. He became a boundary umpire for the North West Football Union in senior matches for the 1984 season but gave that up at the beginning of the finals because he disapproved of the attitude and behaviour of some of the other umpires vying for selection as umpires for the finals. He took up Tae Kwon Do and progressed through several grades. He plays tennis. Prior to his marriage he was involved in the scouting movement and since his marriage he has done work requiring some physical effort like building fences and constructing a barbeque at his home.
On the plaintiff's return to work at the North West General Hospital Mr Gibson said he was at first welcomed by the tradesmen working there and they were anxious to use him as an offsider, but it was his impression that their enthusiasm soon waned and that the plaintiff's usefulness as an offsider had deteriorated. He was limited in certain jobs electricians had to do like working on stepladders and holding up fluorescent lights. His attitude seemed to change. From being a shy lad he became "a little bit too happy–go–lucky for my liking". Frequently he would sing and make noise in the hospital corridors, thereby bringing the wrath of the senior nursing authorities upon Mr Gibson. The plaintiff would not undertake the work allotted him in the order of priority laid down by Mr Gibson, but would often bypass the normal requisition system and obligingly comply with informal requests for maintenance work by whoever happened to waylay him. Often, instead of doing electrical work, he would be found assisting one of the other tradesmen or carrying out work normally done by an unskilled handyman. At times he was over–familiar with some of the professional staff, and on one occasion when a security guard was leaving the hospital's employ and was about to receive his last pay, the plaintiff unselfconsciously engaged in an inappropriate little ceremony in which he presented the startled guard with a light bulb, which he happened to have in his hand, as a farewell gift. Mr Gibson left the hospital about sixteen months before the end of the plaintiff's apprenticeship. He felt that prior to his departure the plaintiff was not being involved in enough of the electrical work and not given responsibility by the two qualified electricians at the hospital. Instead, he tended to be the handyman's offsider. Mr Gibson's assessment of him as at the time he left was that the plaintiff would not complete his apprenticeship with the level of competence that an A–grade licence demands and he was somewhat regretful that he had allowed the plaintiff to complete his apprenticeship.
The plaintiff completed his indentures in November 1987. He worked casually for his brother Simon before receiving his A–grade licence in February 1988. On one occasion he worked for a Mr French fitting out a shed with fluorescent lights. He found it very strenuous work and had to come back the next day to complete it because he was too tired to do it all on the one day. He also found it hard to man–handle the step ladder to the 20ft. high ceiling. He remembered having difficulty on another job at the time getting himself through a manhole. His next full time job was with Cooper's in October 1988 as an A–grade electrician. He worked at first with another qualified tradesman and was then sent on his own to wire a house. As he had not done this kind of work before, he did not understand the instructions given him and did not do the job properly. He thereafter worked on a big refrigeration unit in Launceston and then went to Smithton to wire a new supermarket built as an extension to an existing shop. He had to fit rows of lights, power points, refrigeration gear and fans, and to work on the switchboard. One day when he was feeling unwell another electrician asked him to hook up a circuit. He put the new cable on the old board and shorted it out. It blew the main fuses at the road and shut down the power throughout the entire complex, including the old shop which was still open to the public. A week later, while working on the same switchboard with an apprentice, he let go of a cable which struck the board, causing another short circuit blacking out the complex again. It appears he was so embarrassed at these two incidents that he decided to leave and gave his notice. He did not assert in his evidence that any physical disability had interfered with the proper performance of his work at Cooper's or had caused pain or discomfort.
About one week later he got the job at Vecon Pty. Ltd. The onions had not yet come in and he assisted another electrician putting new circuits in and running out cables. When the onions came in, he wired up the fan containers in which the onions were shipped away. In his evidence–in–chief he said little about the nature of this work and made no complaint about pain or physical inability to do it properly. He resigned the following May, saying in evidence "the strain of travelling was the main reason why I decided I couldn't continue". He was then living at Burnie and travelling to Forth, which meant that he travelled in the morning East towards the sun and returned home with the sun facing him. The black spot of which Dr Wise has spoken troubled him and it is quite understandable that the travelling did cause a problem. It appears that he carried out his work quite satisfactorily because his immediate superior tried to talk him out of leaving and urged him to move to Devonport where the travelling problem would have been eliminated. He was on the point of being married and had accommodation available in Burnie, which was his wife's home town, and he was not prepared to make the move.
In cross–examination the following exchange occurred:
"Q. It was a perfectly good job, wasn't it? You did switchboard, you did cables, you did Delta starter motors, you did switchboard repairs, you did switchboard maintenance, you went down on the boats and worked on the containers, you worked doing fluorescent here and there, switchboards, lights, the whole lot, and you were doing it alright, weren't you, and you knocked it all back?
A. No it's not like that. No it wasn't as simple as that.
His Honour: Well there are two questions there. 'Doing it alright' was the first one. The second one was 'and you knocked it all back'. What do you say to the first proposition that you were doing it alright?
A. No I wasn't. The circuitory and – not only did I have to – that was the first, but it became digital electronics – electronics came into it and that's even harder still. I had to work out the circuitory. That's mainly what it consists of and that's led on to some electronics that controlled some of the circuitory so that just seemed too daunting and it still does."
I think this is significant for two reasons. First there is no suggestion that his physical disabilities handicapped him, and second there seems to be an underlying lack of confidence on the plaintiff's part in his ability to learn new techniques beyond the basics which he had acquired during his apprenticeship. He shunned responsibility.
Shortly after leaving Vecon Pty Ltd he was married and within a month had started working for Thorpe's Electrical. This firm was run by the widow of its first proprietor. It specialised in relatively uncomplicated electrical work of a domestic nature and had an electrical maintenance contract with the Housing Department. The depot was only a five minute walk away from the home of the plaintiff and his wife. The plaintiff worked with a fourth year apprentice and they got on well together. He resigned from this job after about three months, giving in evidence his reasons the facts that through absent–mindedness he was frequently misplacing tools and equipment, that he made a number of silly errors like fitting a light outside a door in a position where the matching flywire screen door opened out and struck it, and that the physical effort was too much for him. This consisted mainly of using a brace and bit under low lying flooring which he said he was called upon to do with increasing frequency in the latter half of his time at Thorpe's. Notwithstanding that Mrs. Thorpe "begged" him to stay and offered him assistance from other staff in doing the physical work which he found difficult, he resigned. She gave evidence and said that as far as she was concerned he would still be in her employ had he not resigned.
The plaintiff kept quite detailed diaries over the years and recorded many of his activities at work. While, with due respect, they are somewhat unsophisticated in content and style, it is significant how little they record in respect of physical pain or discomfort, particularly in respect of his work. I find that his physical disabilities, while they would prevent him from adequately and comfortably carrying out a number of activities involving work above his shoulder level, have not been such as to significantly affect his ability to procure and retain gainful employment as an electrician. Those activities above shoulder height can be kept to a minimum, and with the sensible utilisation of apprentices or offsiders which he could reasonably expect to find available to him in most employment situations, he could avoid them almost completely.
The plaintiff's wife gave evidence that while he was at Vecon Pty Ltd he would come home at night very tired and sore in the arm, and that she would massage his arm. He was always "very cranky, very tired sort of". Since he gave up work as an electrician he has been a lot happier and only complains of soreness occasionally if he has been chopping wood or helping his father or his brother Simon. She said that when he was working at Cooper's he would come home very tired and a bit grumpy. He seemed mentally tired from having to concentrate on what he was doing. He gave her as his main reason for leaving Vecon Pty. Ltd. the fact that he was finding the work difficult. "They wanted him to do something – I can't remember – I think it was something to do with the constructing of a – yes I know, the sort of things they transport the onions on in the main shed, the conveyor belts and things. They wanted him to work shift I think and he couldn't handle it. He knew himself that if the machines broke down he didn't think he would be able to fix them because he wasn't sure how." While he was at Thorpe's he would come home "still tired, still grumpy". She said she was not surprised at his resignation "because I suppose after a while he complained about the work, the actual work itself, and he wasn't – he was finding things difficult, that he was doing things wrong. He wasn't sure exactly what he was doing." He also complained about some of the Housing Department sites, saying "he wasn't comfortable with the places that he went to because some places were pretty unclean and he had to get up in the roofs and crawl around in there and things like that". She gave evidence of a number of instances of absent–mindedness by her husband forgetting dates and appointments or mislaying keys and the like. She also spoke of his apparent indifference to the concerns of others by practising pistol shooting inside the house while their infant child was crawling around and she was in bed but might, without his knowledge because he was wearing ear muffs, enter the room. Equally he was oblivious to the concerns of others by practising on targets in the back yard where it adjoined other properties. Other witnesses spoke of him causing embarrassment at family functions by taking out his denture and making a scene at a wedding reception when he was not provided with a bread roll, while he admitted to Dr Williams that he danced over–exuberantly.
I think it is clear from his wife's evidence, and I accept her as a truthful witness, that although there were times when due to the injury sustained in the accident he suffered from physical over–exertion at his work (which, as I say, might have been avoided), his primary reason for leaving all three places of employment as an electrician was his lack of confidence in his own competence in this calling.
After giving up work on a regular basis as an electrician, he worked quite successfully as a camera salesman for five months, although this involved a reduction in his salary. His general credit was attacked with suggestions that dishonesty had led to his dismissal. I have previously referred to this as a misunderstanding by his employer, and without pausing to review the details of that evidence, it suffices to say that I am not prepared to make a finding that he did intend to steal it and that my characterisation of Mr Rettke's perception of it as a misunderstanding is a fair one.
On the basis of Dr Williams' evidence, the "before and after" evidence of his brothers and Mr Gibson, I am quite unpersuaded that the accident caused the plaintiff psychological and personality damage which interfered with his capacity to absorb and apply knowledge and occupational skills, or has, subject to a qualification to be hereafter mentioned, caused any diminution in his income earning capacity. The brothers, while I do not question their honesty, are somewhat partisan, but in any event shed little light on the plaintiff's pre–accident capacity to apply himself assiduously to an electrical apprenticeship. The interference which his physical injuries had upon his sporting prowess no doubt explains a change in the standard of his application in practising those skills, but any loss of enthusiasm in this regard does not support the proposition that he had lost an interest in gaining trade skills or a proficiency in them which, but for the accident, he would have had. I accept Mr Gibson as an honest and impartial witness, but I feel unable to place much reliance on his assessment of the plaintiff's performance in the four months before his accident in 1983. To some extent Mr Gibson's expectations then were conditioned by his experience of the plaintiff's elder brother Simon, and being the supervisor of a large group of workers, he did not have the same opportunity for detailed observation a fellow worker would have had. I accept that he noticed a change in the plaintiff's personality from one of shyness to one of extroversion, and in the years following the accident before Mr Gibson's departure, he had ample opportunity to assess the plaintiff's then performance; but in those early days when the plaintiff was new to the job, I think Mr Gibson had little opportunity to do more than gain a fairly superficial impression of the plaintiff's attitude and aptitude.
An electrical apprenticeship was not the plaintiff's first choice. He had wanted to join the Police Force, but that career being then denied him, he took on the apprenticeship after about six months' unemployment. The school reports and examination results do not of themselves show that the plaintiff had any particular promise for such a career. Dr Williams' tests showed no deterioration in cognitive functioning or memory, and although I accept that there has been some change in personality manifested at times by social disinhibition, I am unable to conclude on the balance of probabilities that any deficiencies in the plaintiff's work skills, self–confidence, memory or ability to concentrate have been occasioned by the injury sustained in the accident.
Despite the absence of clinical evidence of organic brain injury, having regard to the evidence of social disinhibition and the Austen Maze test conducted by Dr Williams, I think it is probable that some frontal lobe damage occurred and has resulted in some degree of change in his personality. This, on occasions, causes disappointment and embarrassment to those who knew and were close to him prior to the accident. It does not appear to trouble him. Indeed it manifests itself in mild euphoria. Conceivably it might restrict his employability in positions (such as within hospitals) where there is a greater need for social tact and consideration, but equally there are many other situations where it would not constitute a handicap at all. It did not affect his ability as a salesman and was in no way related to the loss of his job at the camera shop. He has a friendly personality and seems to have quite a talent for salesmanship.
The plaintiff suffered severe injuries, from many of which he has made a substantial recovery. His time in hospital after recovering consciousness must have been very painful and the loss of the sight of his eye is a permanent and severe disability. He has suffered a diminution in the quality of his life and the enjoyment of those sporting skills which gave him pleasure and self–esteem. He has some cosmetic deficits, particularly the flattened nose and tracheostomy scar which cause some embarrassment to him, although the remaining scars are not likely to prove a very significant cause of hurt to him. He will continue to suffer some discomfort in the region of his shoulder and left arm and the weakness in those muscles will remain and will restrict his ability to undertake work above shoulder height. There is some possibility of future surgical exploration and even intervention in his shoulder and right wrist. He suffered painful injuries to his mouth requiring substantial past and future dental treatment, and he is entitled to be compensated for the assault on his integrity which the change in his personality represents. For his pain and suffering and loss of the amenities and enjoyment of life I think an allowance of general damages in the range of $40,000.00 to $45,000.00 is appropriate.
His parents supplied services and assisted in the course of his recovery by their visits to him in hospital. He was home for about 2½ months between his discharge from hospital and his return to work, and his mother assisted him in dressing and putting on his splint. Much of his food had to be mashed because of his dental injuries. His father drove him to Wynyard twice a week for physiotherapy, brought him to Hobart to see Dr Hall and transported him to a number of other dental and medical appointments in Launceston and on the North West Coast. A claim for $210.00 was made for travelling expenses and I estimate that each parent contributed the equivalent of about 40 hours' time in voluntary services. In addition, the plaintiff's wife periodically massages the plaintiff's shoulder. I will allow a total of $750.00 for damages under the principles in Griffiths v Kerkemeyer (1977) 139 CLR 161 and Wilson v McLeay (1961) 106 CLR 523.
The likelihood of surgical exploration of and intervention to the plaintiff's shoulder and wrist is not great but some allowance for it should be made for the contingent cost and loss of work during convalescence. I allow $2,500.00. An allowance must also be made for further dental treatment which is clearly presently required. I allow the amount claimed of $7,830.00.
Some uncontroversial special damages consisting of a brace for running amounting to $30.00, fees of $363.50 for optometrist's services and $240.00 for three pairs, to date, of Rayban sunglasses will be allowed. I also allow a further $200.00 for the cost of replacement glasses in the future. There is little or no evidence on this point but the defence conceded that some figure should be allowed. Those special damages amount to $833.50.
The plaintiff is entitled to compensation for diminished working capacity. The reduction of his ability to work above shoulder height and in some closely confined and awkward positions represents an impairment of his capacity which may be productive of some economic loss. To date it has not been established, in my opinion, that it has caused him loss in the calling of an electrician or kept him from any other gainful employment and I reject the suggestion that it in any significant way led to his resignation from any position held by him. As I have said, there is a potential, with the use of apprentices and offsiders, to minimize the need to engage in that type of activity, but not every area of employment open to an electrician may provide him with such assistants. The loss of sight in one eye and the diminution in his grip and manipulative skills may also limit his capacity for certain kinds of work and his psycho–social disinhibition may also render employment in some quarters harder to get or retain. As, on the evidence, I have been unable to reach the conclusion that his shortcomings in competence as an electrician and his consequent lack of self–confidence in that field are attributable to the injuries sustained by him, I must consider to what extent his physical disabilities and the change in personality which are so attributable may diminish the earning capacity of the plaintiff, taking him as he would have been but for the accident. But for that he would have been a person with some basic skills in electrical work but not sufficiently competent to be engaged as a full time A–grade electrician capable of adapting to new techniques and operating without supervision on jobs of any complexity. He would have had the potential for work as a handyman in a variety of establishments including schools, factories and hospitals. Because he was in good health and was physically strong, he would have had the capacity for hard labouring work both rural and industrial. He also had the capacity to drive vehicles for a living and to operate heavy equipment, and in addition, he has shown skills as a salesman, particularly of cameras. The accident caused deficits which would have little effect on his potential as a salesman but which do impact upon some other areas which might have been open to him. His physical handicaps might limit his opportunities as a handyman, while his personality change might render him unsuitable for employment at hospitals or other establishments requiring restraints on noise and jollity. Although he can drive a car, the blindness of his right eye would restrict his chances of gainful employment in the transport industry. The evidence of his limitations since the accident in helping with harvesting on farms owned by members of his family showed that he was slow and that his personality made him a distracting influence on other workers. His pre–accident capacity to derive income from such a source has been reduced by his injuries. Given that he was, in any event, as the defence submits, a person with some limitations notwithstanding his formal trade qualifications, the accident has, in my view, rendered him less employable in areas which would otherwise have been realistically open to him. This is not a case in which the use of mathematical formulae will achieve an appropriate assessment. It is not possible to postulate some percentage diminution in his earning capacity. It requires an intuitive judgment as to a sum of money which will compensate the plaintiff for the contingency that by reason of the disabilities resultant upon the accident he will not from time to time throughout his ordinary working life be able to work and earn to the full level of his pre–accident potential. In my view, a sum in the order of $100,000.00 now paid would compensate him for that contingency. This is a case in which, in my view, it would be inappropriate to differentiate between past and future economic loss but to award a lump sum for the diminution of his economic capacity since the accident.
I assess damages in the sum of $151,913.50, made up as follows:
Pain and suffering and loss of amenities
and enjoyment of life – say $40,000.00
Impaired economic capacity – say 100,000.00
Dental reconstruction 7,830.00
Allowance for future orthopaedic
surgery, etc. 2,500.00
Special damages 833.50
Griffiths & Kerkemeyer award 750.00
$151,913.50
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