Petrovic by his next friend Dragan Petrovic v Frost
[1999] WADC 20
•27 MAY 1999
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PETROVIC by his next friend DRAGAN PETROVIC -v- FROST [1999] WADC 20
CORAM: YEATS DCJ
HEARD: 26-27 MAY 1999
DELIVERED : Delivered Extemporaneously on 27 MAY 1999 typed from tape and edited by Trial Judge.
FILE NO/S: CIV 621 of 1998
BETWEEN: BRANISLAV BRIAN PETROVIC by his next friend DRAGAN PETROVIC
Plaintiff
AND
PETER GARY FROST
Defendant
Catchwords:
Damages - Personal injuries - Liability admitted - Motor vehicle accident - 15 yr old plaintiff suffered residual scarring from head wound, pain in right forearm, post traumatic stress disorder - Special damages $17.90 - Past loss of earning capacity $522 - Interest $55 - Future loss of earning capacity $25,000 - General damages $21,800.
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Damages awarded
Representation:
Counsel:
Plaintiff: Mr G Droppert
Defendant: Mr M McAuliffe
Solicitors:
Plaintiff: James McManus & Associates
Defendant: McAuliffe Schwikkard
Case(s) referred to in judgment(s):
Desmond v Lockwood (1966) WAR 3
Gowling v Mercantile Mutual Insurance Company Ltd (1980) 24 SASR 321
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Nil
YEATS DCJ: This is an assessment of damages on behalf of the plaintiff by his next friend as a result of injuries suffered in a motor vehicle accident near Kalgoorlie on 16 July 1997. Liability is admitted. Special damages of $17.90 have been agreed. There is no claim for future medical expenses. The issues for assessment are, first, the loss of earning capacity and second, general damages.
The Accident
The history of the matter is that the plaintiff is 17 years old. His date of birth is 17 January 1982. The motor vehicle accident took place when he was 15 years old and midway through year 10 at Morley Senior High School. The plaintiff had gone to Kalgoorlie during the school holidays to visit a mine operated by his godfather. The defendant was driving along an unpaved road with the plaintiff in the passenger seat when the accident occurred. The vehicle was travelling at high speed, began fishtailing on rough ground and rolled over a number of times before coming to rest on its side.
The Injuries
The plaintiff suffered a severe laceration to his forehead, a crush injury to his right arm and a fracture of the index finger of his left hand. He was taken to Kalgoorlie Regional Hospital where his head injury was cleaned and stitched under local anaesthetic, a very painful procedure for the plaintiff. Physiotherapy and a compression pump and application of ice packs were used to treat his right arm and left hand. He was released after three days and returned to Perth.
There he came under the care of Dr Janes who noticed pieces of glass and gravel in the healing head wound. Dr Van Beem, a plastic surgeon, reopened the wound, removed foreign bodies and revised the scar. The procedure was done under general anaesthetic at the Mount Hospital. The plaintiff continued to undergo physiotherapy for his arm and finger. He experienced and continues to experience pain in his right forearm. The arm becomes painful with any heavy lifting or repetitive activities. Eventually at the end of 1998 Dr Janes referred the plaintiff to Mr Honey, an orthopaedic surgeon. He advised that problems with the arm are consistent with compartment syndrome but advised against any surgical intervention.
Residual Disabilities
The plaintiff is left with the following residual disabilities. A large scar commences at the plaintiff's hairline at the top of the forehead and runs back and around in a large circle towards the crown. The plaintiff is very conscious of the scar and as a consequence tries to wear a hat when he can. To the casual observer the scar is not readily apparent but once sighted, it is visible and can be seen under his hair. There is also a noticeable bulge in the plaintiff's right forearm which is readily apparent when the arm is extended forward palm upward. The plaintiff continues to experience pain in his right forearm when he lifts heavy items or engages in repetitive activities. The left forefinger is not painful, but the plaintiff is unable to fully bend the finger when making a fist.
Post‑traumatic Stress Disorder
The severity of the accident was such that the plaintiff experiences symptoms of post-traumatic stress disorder. When driving or at school he experiences ongoing re-dramatisations of the accident in his mind which are very vivid and cause him distress. He experiences inappropriate fright when driving at speed or when brakes are applied. He also has difficulty concentrating at school and has found that the accident keeps going through his head.
Past Loss of Earning Capacity
At the time of the accident the plaintiff had been employed part-time at Coles working about four hours per week. He was available for more hours but Coles had cut back on staff and reduced his hours. The plaintiff was off work for 18 weeks as a result of his injuries. When he returned to work he had to take it easy because of the pain from his arm injury. However he managed to continue in that job.
Prior to the accident the plaintiff had also worked assisting his father in a contract cleaning business. That job involved lifting 20-litre buckets of detergent and lifting Sulo bins to empty them. The plaintiff returned to help his father after the accident but experienced pain whenever he was required to do heavy lifting. His father, in his evidence, said that the plaintiff could not do the lifting, but I accept that it was the case that his father did not give him heavy lifting jobs because of the pain he saw that it caused to the plaintiff.
Turning to the assessment, the plaintiff seeks compensation for a past loss of earning capacity based on an average of $29 per week earned at Coles over the 7 months prior to the accident. The defendant suggests that the figure $29 is too high and that the figure should be closer to $25.64 per week, which is the amount the plaintiff earned if he worked only four hours.
At the time of the accident his hours had been reduced to four hours per week although I note that he worked seven hours for a stock-take during the week of 13 July 1997 immediately prior to the accident. I accept the plaintiff's calculation. The plaintiff was available for extra hours if required and I note that when he returned to work at Coles after the accident on two occasions he did work for more than 4 hours.
I consider $29 per week a reasonable estimate and therefore past loss of earning capacity is awarded in the amount of $522.
Future Loss of Earning Capacity
For future loss of earning capacity the plaintiff seeks a modest but not nominal global award. There is no means whereby any future loss of earning capacity can be directly calculated.
The plaintiff is now in year 12 at Morley Senior High School where he is studying maths, science, English, media studies and art and design. He hopes to continue his education at TAFE next year and he aims to become a sound technician. The plaintiff has had the advantage of involvement in work experience with a theatre company. He described the duties of a sound technician as collecting equipment such as microphones, projectors and PA systems, transporting the equipment to venues and the setting up and testing of equipment.
The plaintiff said he worked with the company for two weeks before the start of school this year and that he has worked over a weekend in Albany. He said he was able to do all the jobs they gave him and that he is learning to work the electronic board. The plaintiff said he experienced pain in his right forearm when lifting heavy objects but he admitted that he was able to do the required lifting.
If the plaintiff does well enough in his exams this year so as to qualify to enter TAFE and if he successfully completes the TAFE course and if he gains and retains employment as a sound technician, it may well be that he will not suffer any economic loss as a result of his lost earning capacity and no award would need to be made.
It is clear from the evidence that he is able to do the work of a sound technician despite the pain he may suffer in his right arm as a result of any heavy lifting involved in that employment. Life, however, does not always develop according to plans and hopes. I accept Mr Honey's assessment that the plaintiff has been left with a 10 per cent loss of function in his lower right arm. I accept Mr Honey's evidence that the plaintiff would have problems with a full-time labouring job or with heavy clerical work.
Dr Janes also gave evidence that people don't adapt to pain very well and he confirmed that the right arm injury will limit what work the plaintiff can do. If the plaintiff were forced on to the open employment market, parts of that market, I believe, are now foreclosed to him. His injury weighs more heavily on him because he is not academically orientated. The restriction on full-time labouring jobs could well have economic consequences for him.
Taking account of all these factors and appreciating that the assessment of future loss of earning capacity in the case of children is necessarily speculative (Desmond v Lockwood(1966) WAR 3 and to Gowling v Mercantile Mutual Insurance Company Ltd (1980) 24 SASR 321), I award the sum of $25,000 for future loss of earning capacity.
Pain, suffering and loss of amenity
Turning then to pain, suffering and loss of amenity, the plaintiff has suffered a very violent and shocking road accident. Finding himself covered in blood, in severe pain and unable to assist the injured driver has obviously been very traumatic for him. This is evidenced by his reliving the events from time to time. He experienced considerable pain in the hospital at Kalgoorlie when his head was sewn up under local anaesthetic only to have to have the wound reopened and cleaned and resutured again by the plastic surgeon in Perth.
The injury to the plaintiff's arm has caused him considerable pain and suffering. The prognosis is that he will experience pain in his right arm whenever he engages in heavy lifting or repetitive arm movements such as those involving a keyboard. If he is successful in becoming a sound technician the parts of that job requiring the lifting and positioning of heavy equipment or stage settings will result in pain for him.
Besides the pain the right arm injury has ended his involvement in soccer, a sport in which he had some prowess and a good deal of enjoyment before the accident. The plaintiff gave evidence that he is still able to play a few other sports besides soccer. He has some trouble gripping a golf club and a tennis racquet but he is able to play those sports. He can play basketball but he says his arm gets sore when he does.
The plaintiff is also left with a permanent scar in his head. That scar is not prominent in his hair and can be hidden under a hat but will always be with him. His father's baldheadedness does not bode well for the plaintiff's future.
The defendant suggests there is evidence the plaintiff does not style his hair so as to camouflage the scar. I have viewed the scar; it is quite large. I accept the plaintiff's evidence that the only way he could try to hide it under his hair would be to comb his hair forward. His present hairstyle certainly does not emphasise the scar; nonetheless I do accept it is not a particularly prominent scar nor a particularly ugly scar.
The plaintiff impressed me as a positive person, well motivated who will do his best to live with his disabilities and make the most of his opportunities. Nonetheless he is left with permanent susceptibility to pain in his right arm and permanent limitations on his sporting life and a permanent scar.
The amount of the award of general damages for pain, suffering and loss of amenity must be determined in accordance with the provisions of the Motor Vehicle Third Party Insurance Act 1943. The maximum amount (a) is $212,000, amount (b) is $10,000 and amount (c) is $30,000. I first put the nature and extent of the injuries sustained by the plaintiff into a category. It is my opinion that they are such as would fall at 15 per cent of a most extreme case.
The appropriate proportion of the maximum amount that may be awarded pursuant to the provisions of section 3C, determined having regard to the pain, suffering and loss of amenity suffered by the plaintiff, is in my opinion 15 per cent of $212,000 which amounts to $31,800. The adjusted amount, taking account of amounts (b) and (c) in the act is $21,800. I refer to Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997. Therefore I award damages for pain, suffering and loss of amenity in the amount of $21,800.
Summary of Award
The summary of the award is this:
Special damages $17.90
Past loss of earning capacity $522.00
Interest at 6 per cent for 1¾ years
on past loss $55.00
Future loss of earning capacity $25,000.00
General damages for pain, suffering
and loss of amenity $21,800.00
Total award $47,394.90
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