| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : PERKINS -v- THOMAS [2003] WADC 233 CORAM : O'SULLIVAN DCJ HEARD : 28 & 29 JULY 2003 DELIVERED : 31 OCTOBER 2003 FILE NO/S : CIV 19 of 2003 BETWEEN : MICHAEL JOHN PERKINS Plaintiff
AND
STEPHEN MICHAEL THOMAS
Defendant
Catchwords: Damages - Personal injuries - 42yearold boilermaker/welder - Injury to achilles tendon - Unable to engage in preaccident occupation - Past and future economic loss
Legislation: Nil
Result: Plaintiff awarded damages of $219,837.10
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Representation:
Counsel:
Plaintiff : Mr T N Cullity
Defendant : Mr P R Momber
Solicitors:
Plaintiff : D'Angelo & Partners
Defendant : Peter Momber
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 O'SULLIVAN DCJ: The plaintiff who was born on 10 October 1961 and is a boilermaker/welder by trade, was injured in an accident on 21 May 1998 when the motorcycle he was riding collided with a truck being driven by the defendant. He has brought a claim for damages in respect of his injuries and liability is not in dispute. The matter is before me for purposes of assessment.
The accident 2 The accident occurred at about 5.45 am in Stott Road, Welshpool when the plaintiff was on his way to work. It was still dark and lightly raining. The plaintiff rode his motorcycle over the crest of a hill and was confronted by the defendant's truck which was in the process of making a turn across the road. The plaintiff said that when he saw that a collision was inevitable he caused his machine to slide under the vehicle. In so doing he collided with the inside of the rear right wheel of the truck.
Investigation of injuries and treatment 3 At the time of the accident the plaintiff was wearing a helmet and leathers. He was able to get out from under the truck and stand up but was shaken and sore. He was only 100 metres or so from his place of work and after speaking with the driver he made his way there and was subsequently taken home. 4 The plaintiff was then driven by his wife to the Armadale Kelmscott Hospital where he was examined and assessed. Emergency department notes from the hospital were tendered and they indicate that he was seen by a Dr Pasta-Hodgkinson. Injuries to the right hip, right knee and skin loss over the right knee were noted and the plaintiff said that he was advised to go home and rest and to see his general practitioner. 5 The following day the plaintiff attended upon Dr Joanna Teh of the Huntingdale Family Medical Practice. The plaintiff had not seen her before and he gave evidence that he told her what had happened and was examined. According to the plaintiff he told her that overnight his left achilles tendon had become very sore and that a lump over it had increased significantly in size. The plaintiff said that Dr Teh said that this complaint was not something in her field of expertise and that he should see a specialist. Accordingly he was referred to Mr Leslie Stagg, a general surgeon.
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6 The plaintiff was seen by Mr Stagg on 4 June 1998 who referred him to Mr J L Johnston, orthopaedic surgeon. Mr Johnston saw him for the first time on 24 June of that year and made a clinical diagnosis of a partial rupture of the left achilles tendon. After subsequent investigations the plaintiff underwent a surgical exploration and decompression of the area on 29 September 1998.
7 The plaintiff returned to see Mr Johnston on a number of occasions but continued to suffer from pain and discomfort although he returned to work at first on light duties and later on the shop floor. Eventually, after further reviews, Mr Johnston noted on 23 June 2000 that the plaintiff continued to have pain and arranged for an MRI to be done to assess further the structure and function of the tendon and investigate whether there was any residual inflammation. The MRI showed some residual scarring but, in Mr Johnston's opinion, not sufficient to require more surgery. However, as the plaintiff was not improving and it was unlikely that he would be able to resume work as a welder, he decided to consult with a colleague, Mr Peter Annear, to see whether anything more could be done. 8 It was Mr Annear's view expressed in a report of 10 August 2000 that decompressive surgery was necessary and he and Mr Johnston performed it on 20 December 2000.
Injury to left achilles tendon 9 The main issue between the parties is whether the plaintiff suffered any injury to his left achilles tendon as a result of the accident. It was his evidence that when his motorcycle slid under the truck his left foot, which was uppermost, came into contact with the inside of the right rear wheel of the vehicle. He said: 10 The defendant does not accept that the partial rupture of the left achilles tendon was caused by the accident.
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11 It is the defendant's submission that the plaintiff's medical history casts significant doubt upon his claim and I therefore turn to examine the evidence in some detail.
12 The plaintiff was born with a congenital deformity of the feet and underwent corrective surgery at between 12 and 18 months of age. The operation involved lengthening the achilles tendons of both legs. Evidence was led that it was completely successful. The plaintiff and both of his parents gave evidence to the effect that he was very active as a child and suffered no pain nor any problems of mobility. He had a successful sporting career playing, among other sports basketball and first grade football and tennis. He played country football in South Australia until the age of 35. 13 The plaintiff said that when he first saw Dr Teh he told her "that his left achilles tendon had become very, very sore" since the accident. He said: "I pointed out the soreness that I had there and she had a look and noticed straightaway the scar tissue that I've got on the back of my left foot which I then went on to explain to her that I had that scar on both feet due to an operation I had when I was about 1 to 18 months old." 14 The plaintiff was asked whether there was any discussion about lumps over the achilles tendon and he said: "She asked me about it … and what I did say was, due to scar tissue on the back of my feet, that it wasn't like a normal ligament anymore and the only or the best way that I could deem to reference it was to say that if you ran your finger up and down the back of the scar tissue its actually not smooth like normal skin. It's like lumpy." 15 The plaintiff also said that in the two or three months before the accident he had had no pain and no swelling whatsoever over the left achilles tendon. There was a small lump the size of a 5 cent piece ("maybe a bit bigger") but that particular one had only appeared after the accident. 16 When Dr Teh referred the plaintiff to Mr Stagg she wrote a note dated 22 May 1998 as follows:
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17 As can be seen Dr Teh made no note of the motor vehicle accident when she wrote the above letter. 18 Mr Stagg, who gave evidence, said that when he saw the plaintiff he took a history from him and there was no mention of the motor vehicle accident. He wrote in a report to the Insurance Commission of Western Australia dated 19 June 1998: "Dear Sir Re: Mr Michael John PERKINS – DOB: 10/10/61 The abovenamed consulted me on 4/6/1998 with a letter of referral from Dr Johanna Teh, Spencer Road Medical Centre, Suite 1, Cnr Spencer & Warton Roads, Huntingdale. He had a problem related to his left achilles tendon and as far as I understand and according to his history, there was no relationship between the development of the problem which had been progressive for the previous three months and the motor vehicle accident to which you refer in your letter of June 18th, 1998. I have advised him of my opinion as to this fact and he has been referred to Mr J L Johnston, C/- of the Mount Hospital Medical Centre, Mounts Bay Road, Perth for a further opinion concerning the cause and management of the problem that existed prior to the motor vehicle accident to which you refer. …" 19 It was the plaintiff's evidence that he did discuss the motor vehicle accident with Mr Stagg when he attended on him on 4 June 1998. The plaintiff said that he told him that he had had a lump on the back of his leg
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which had grown significantly in size after the accident. According to the plaintiff Mr Stagg said that Dr Teh had written in her note of referral that the lump had been there two months before the accident and the plaintiff replied that that was not so and that he would see Dr Teh to clarify the position. 20 The plaintiff said that he telephoned Dr Teh and then saw her. He said: "I actually made a phone call to Dr Teh and tried to clear up why she'd said that I had said that the lump was there 2 months prior to the accident. She was referring to her notes and what she wrote and she said as far as she thought that that's what I had said. I found it very hard to understand her. I kept having to repeat myself, even at the initial consult. She didn't actually seem to comprehend what I was trying to explain to her and I had to keep repeating myself …" 21 On 9 July 1998 Dr Teh wrote to the Insurance Commission of Western Australia reporting that she had seen the plaintiff on only one occasion on 22 May 1998 but she did confirm speaking to him on the telephone. She wrote: "When I reviewed him on the 22nd May 1998 he stated that he was feeling better. However, he was still complaining of some soreness on his right lateral abdomen. During the same consultation, he also complained that there is a painful lump over his right (sic) achilles tendon. The tender lump has been there for about two months and enlarging. He complained that the lump was slightly more tender on the day that I examined him compared to the other days. He has a past medical history of bilateral talipes which was corrected when he was an infant. On examination on 22nd May 1998, there was mild bruising on his right lateral abdomen. Limb examinations were all normal. A tender firm lump about 2cm in diameter overlying the left achilles tendon. I referred Mr Perkins to Mr Leslie Stagg for further treatment. On a subsequent telephone conversation at the end of June Mr Perkins stated that the accident has aggravated the pain in the lump overlying the (L) achilles tendon.
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Mr Michael Perkins only consulted me once for the above sustained injury. With regard to the lump over his left achilles tendon, he was followed up by Mr Leslie Stagg of Suite 11, 19 Mills St, Bentley, 6102. To answer the remaining part of your enquiry, the following are – point form. 1. The prognosis to the likelihood of any permanent disability is slim. 2. The two months history of tender lump over his left achilles tendon may have been aggravated by the motor vehicle accident. 3. This claim is capable of finalisation. 4. I have not referred the patient for physiotherapy." 22 The reference to right Achilles tendon in the second paragraph of this report is clearly a mistake. 23 In the meantime on 26 June 1998 Mr Johnston, to whom the plaintiff had been referred by Mr Stagg wrote to the State Government Insurance Commission ("SGIC") as follows: "Dear Sir/Madam Re: Mr Michael PERKINS – DOB 10/10/61
66 Bottlebrush Drive, Thornlie 6108
Your Ref: 301235-BO SGL I reviewed Mr Michael Perkins on 24th June 1998. He had been involved in a motorcycle accident and struck his achilles tendon during the course of the accident and has had pain and swelling since. Clinically he had a large fusiform swelling over the mid portion of the achilles tendon and I think almost certainly has a partial rupture. His pain is increasing and he has been unable to mobilise comfortably and I think he needs exploration and decompression of this area.
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24 It is clear that the SGIC contacted Mr Johnston to advise him of the existence of a tender lump over the tendon two months before the accident. 25 On 28 July 1998 Mr Johnston wrote to the SGIC stating as follows: "If Mr Perkins had indeed had the tender lump on his right (sic) achilles tendon for 2 months prior to his motor vehicle accident, then it is unlikely that the need for exploration of this lump is related to his accident." 26 Again, the reference to the right Achilles tendon in this report appears to have been a mistake. 27 On 21 August 1998 Dr Teh wrote to Mr Johnston (and I set it out hereunder complete with spelling and grammatical errors): "Dear Mr Johnston Re: Michael Perkins DOB: 10/10/61 Thank you for seeing Mr Perkins again. Unfortunately during the 1st consultation he fail to emphasise that the lump has increase significant after the motorbike. Although he stated that there was a palpable lump over his left achilles tendon prior to the accident it was small and non tender. Since the motorbike accident, the lump has enlarge and has become increasing painful. He is a boilermaker by profession and is on his feet all day. He is finding difficulty standing on his feet towards the end of his shift.
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28 On 28 August Mr Johnston replied to Dr Teh stating: "Thank you for your letter about Michael Perkins whom I reviewed today. He still has a painful lump on his achilles tendon. The ultrasound shows that he has had a partial rupture of the Achilles. He has a longstanding lump in his achilles related to previous surgery which was present prior to his accident, but he says it was not tender and was only small and since the accident the lump has become markedly enlarged and painful. It is possible that if that was the case then his current swelling and pain is related to his injury with a partial rupture of the achilles, in which case he needs decompression." 29 Unfortunately, neither Mr Johnston nor Dr Teh gave evidence. However, in the light of this report it is clear that Mr Johnston was of the view, based upon the history given by the plaintiff, that the motor vehicle accident could have precipitated the partial rupture of the Achilles tendon. 30 Counsel for the defendant submitted that the accuracy of the history given by the plaintiff should not be accepted. He pointed out that the notes made in the emergency department of the Armadale Kelmscott Hospital contained no reference to any complaint made by the plaintiff concerning his left leg and he argued that an examination of the evidence of a number of medical practitioners who saw him betrayed an inconsistency in the plaintiff's account of how the injury occurred. 31 Mr Gerard Hardisty is an orthopaedic surgeon who examined the plaintiff on 17 November 1998 and reported to the Insurance Commission of Western Australia on that date. He stated: "The history as related to me is that he is a 37 year old boiler maker/welder who had an accident on the 21 May 1998. He was riding a motor cycle and a truck pulled out in front of him and he skidded underneath it. He maintains he injured both his right and left ankle but was able to walk. … Within a month he noticed a lump forming in the posterior aspect of his left ankle which he said was the size of a golf ball."
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32 Mr Johnston wrote on 8 December 1999:
"I initially saw Michael Perkins in June 1998 some 4 weeks after he had been involved in a motor vehicle accident and he had been struck over his achilles tendon on the left side. He developed pain and swelling of the mid portion of the tendon due to a partial rupture." 33 Dr Roger Goucke, consultant in pain medicine, saw the plaintiff and wrote on 28 February 2002: "I note that his motor bike accident in May 1998 when his foot appeared to be twisted and I assumed bruised when he came into contact with the wheel of a truck. …" 34 In the defendant's submission it was only Dr Chris Hammersley, a consultant specialist in occupational health, who described the mechanism of the injury as given to him by the plaintiff in terms consistent with his evidence at trial. Dr Hammersley only saw the plaintiff in May 2002, long after the accident. He wrote in a report of 20 May of that year: "Mr Perkins told me that he had been riding his motor bike to work on 21 May 1998. As his bike crested a rise, he found a long truck parked diagonally across the road. He dropped the bike to its right side and slid under the tray of the truck. The sole of his left foot impacted a tyre on the far side of the truck, forcefully dorsi-flexing it (top of foot moved towards shin). There was immediate pain at the back and sides of the ankle." 35 Against this background the defendant argues that the plaintiff's complaint has evolved as it were over time and that he was already suffering from achilles tendon problems before the accident no doubt as a result of wear and tear after a lengthy sporting career. In short, the defendant submits that the plaintiff has seized the opportunity presented by the accident to invent a claim in relation to his achilles tendon problem. 36 The medical evidence makes it clear that a partial rupture of the achilles tendon can occur spontaneously or as a result of a blow. As Mr Anastas, an orthopaedic surgeon called by the defendant, said the surgery which the plaintiff had as a child would have left some weakness in the tendon and it would not have required any great force to cause a partial rupture.
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37 Moreover it is also quite clear that a rupture of the tendon will not necessarily have an immediate effect. As Mr Annear said:
"If there's a partial tear, initially it may look normal and then the process of recurrent microtears, healing, partial healing microtears makes the tendon bigger which is that lump, so when we see the acute event and if it is the accident, often you won't see a lump. It's only in the fullness of time with - and it sets up a cycle of recurrent tears that leads to the pain and the lump, and that might be over a 3 to 6-month period." 38 The accuracy of the history given by the plaintiff is therefore a crucial consideration in determining the role of the accident as a cause of his complaint. 39 I have already noted the evidence of the plaintiff and his parents to the effect that he had had no problem over his achilles tendon before the accident notwithstanding a long sporting career in childhood and as an adult. 40 The plaintiff's wife also gave evidence that her husband was untroubled before the accident. She has known him for some 16 years and after his retirement as a footballer was aware of his activities on the golf course and playing indoor cricket as well as working around the house and in the garden. She was certain that her husband had never had any problem with his achilles tendons in the time she had known him. 41 Evidence that the plaintiff had had no problems prior to the accident was also led from Mr Antony Beaumont, a former workmate. Mr Beaumont is a qualifed boilermaker/welder who worked alongside the plaintiff. Some of the work he and the plaintiff did involved climbing and required considerable mobility and agility and a worker had to be on his feet for most of a shift which might last nine or 10 hours per day. Mr Beaumont had never known the plaintiff to have any problems with his legs prior to the accident. 42 In my view in the light of all the evidence it should be accepted that the plaintiff's injury to his left achilles tendon was caused by the accident. It does not seem to me that the reports of each of the medical practitioners as to the account given by the plaintiff is in the end of great significance and if there was confusion in the plaintiff's mind as to the precise mechanism of the injury that would not have been surprising given the nature of the accident, its sudden onset and the other injuries which he received and which were immediately painful.
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43 I accept the plaintiff's evidence that he did tell Dr Teh that a lump over the tendon had become swollen and tender overnight and I think it more likely than not that Dr Teh was confused by his instructions. I also accept the evidence of the plaintiff, his wife and Mr Beaumont that he had had no trouble with the achilles tendon prior to the accident.
Quantum 44 Following the surgery performed by Mr Johnston on 29 September 1998 the plaintiff said that he remained in a great deal of pain in the left leg. He described it as "… a continuing aching, throbbing pain. Not severe as like a twisted ankle, sharp, but a deep 24 hour a day throbbing pain." 45 The plaintiff returned to work after about three months on normal duties as a boilermaker/welder but found it very difficult even though the leading hands would try to give him lighter jobs allowing him to sit rather than squat and to avoid heavy manual work. 46 Mr Johnston advised the plaintiff to allow more time for the benefits of the surgery to be felt but the aching and throbbing did not diminish and eventually he was referred to Mr Annear who performed a debridement and lengthening of the tendon on 20 March 2000 at the Mount hospital. This surgery required him to be away from work entirely until June of 2001 and thereafter he returned on light duties from time to time until 9 October of that year when he resumed full time work as a boilermaker/welder. However he soon found it very hard to carry out the work required of him. He could not stand on his toes nor squat without pain and eventually consulted Dr C Roger Goucke on 27 February 2002. 47 Dr Goucke wrote in a report dated 28 February: "During 2001 he was able to return to his work which is a boiler-maker. He got back to 38 hours per week and he is doing that at the moment, although he is struggling. Because he is on his feet all day he feels that his ankle swells. He is limited by the amount of Panadeine Forte he can take because of drowsiness and he has a constant aching sensation which is made worse by standing. Even off his feet and in bed at night he has an aching sensation in the foot and calf." 48 Dr Goucke prescribed medication for the plaintiff in the form of Tramadol and Amitriptyline but although they helped with his pain he
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became concerned because they made him drowsy at work and he found it difficult to concentrate. 49 Eventually the plaintiff came to the view that he could no longer continue as a boilermaker/welder and after speaking with his employer obtained a position first as an archivist in the office and then as a purchasing expediter. He continues to work as a purchasing expediter today.
Capacity for work 50 Although Mr Anastas is of the contrary view I accept the opinion of Mr Annear and Dr Hammersley that the plaintiff is unfit to continue in his pre-accident occupation of a boilermaker/welder. As Mr Annear pointed out in his evidence, while the surgery was approached with a degree of optimism the outcome has probably not come as a surprise and Mr Anastas himself conceded that the plaintiff's complaints of being unable to stand on his toes, walk up steps and squat and stand for long periods of time without pain could all be reasonable ones. 51 In my view the plaintiff has lost the capacity to work in his pre-accident occupation. He has however been fortunate to obtain sedentary work of a permanent nature with the same employer. His economic loss falls to be assessed by comparing what he now has with his pre-accident capabilities.
Past economic loss 52 The plaintiff commenced work with his present employer as a boilermaker/welder on 9 December 1997 and at the time of the accident was earning $673.37 net per week. 282 weeks have elapsed since the accident which gives a figure of $189,890.34, being the total amount of net earnings the plaintiff would have received but for the accident. He has in fact received $130,410.76 and the difference is $59,479.58. The plaintiff should have this amount for past economic loss less any sum which he has received which I understand to be $36,534.90.
Interest on past economic loss 53 I would allow interest on past economic loss assessed at the rate of 3 per cent per annum from the date of the accident until the date of
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judgment. In calculating interest account will of course have to be taken of the amount that the plaintiff has already received.
Future loss 54 I am satisfied that but for the accident the plaintiff would have continued to work as a boilermaker/welder and would presently be earning $18.35 gross per hour for a 38 hour week. 55 Evidence was led which I accept that overtime would also have been available to the plaintiff from time to time. I bear in mind of course that although times appear to be buoyant at the moment that will not always be so and doing the best I can it seems to me to be appropriate to proceed upon the basis that but for the accident the plaintiff would now be earning a net wage as a boilermaker/welder of $800 per week. 56 The plaintiff presently earns $574.38 net per week and his net weekly loss is therefore $225.62. He has a working life ahead of him of 23 years and using the appropriate multiplier the result is $149,157.38. 57 I would discount this sum by 20 per cent to allow for adverse contingencies including the possibility of periodic unemployment. I also bear in mind that while the plaintiff's present wage is less than he would have earned as a tradesman, his position with the company is, perhaps, more secure and there may be prospects for advancement. 58 In the result I allow the sum of $119,325.90 for future economic loss.
Future medical expenses 59 I allow the sum of $8,206.62 for future medical expenses.
Non-economic loss 60 I have already set out in some detail the lengthy medical investigations and treatment the plaintiff has been forced to undergo. As a result of the accident and his injuries he continues to suffer pain in the left leg which has not diminished despite surgery. He obtains some relief from regular medication but his physical capacity to enjoy life has been restricted. He cannot squat, climb ladders, walk long distances or stand on his toes and his lack of mobility interferes with recreational activities which he used to enjoy, such as fishing and golf as well as his ability to work around the home.
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61 In all the circumstances I consider that the plaintiff's claim for non-economic loss should be assessed at 17.5 per cent of a most extreme case. It follows that after deducting the statutory allowance the plaintiff should receive the sum of $32,825.
Special damages 62 I understand that special damages are agreed in the sum of $350.
Conclusion 63 The plaintiff should have damages in the sum of $219,837.10 made up as follows: Past economic loss $59,479.58 Future loss $119,325.90 Future medical expenses $8,206.62 Non-economic loss $32,825.00
64 The plaintiff should also have interest at the rate of 3 per cent per annum on any past economic loss for which he has not already been compensated.
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