Phillips v Butcher and Ridge No. DCCIV-94-1249 Judgment No. D3534

[1997] SADC 3534

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Taylor

Hearing

12/02/96 to 14/02/96.

Catchwords

PERSONAL INJURY - ASSESSMENT OF DAMAGES Closed fracture of his left clavicle and neck of femur and laceration over left knee - male aged 22 years - pre-existing injuries; Wrongs Act Scale 12; Past economic loss $12,000.00; Future economic loss $70,000.00; Non-economic loss $15,720.00; Interest $4,000. 22 year old male driver; Permanent disability; Permanent occupational restriction; Wrongs Act scale 12; Past economic loss $12,000.00; Future economic loss $70,000.00; Non-economic loss $15,720.00; Interest $4,000.00

Representation

Plaintiff PAUL DAVID PHILLIPS:
Counsel: MR G HOLLAND - Solicitors: CONDON &; CO

Defendant TODD CHARLES BUTCHER:
Counsel: MR B KRUPKA - Solicitors: FINLAYSONS

Defendant GRANT RIDGE:
Counsel: MR B KRUPKA - Solicitors: FINLAYSONS

DCCIV-94-1249

Judgment No. D3534

19 March 1997

(Civil)

PHILLIPS v BUTCHER AND RIDGE

Civil

Judge Taylor

Paul David Phillips was born on the 16th July, 1969.

On the 13th October, 1991 when he was aged 22 years he was with friends on an overnight fishing trip and in the evening he was crouched in front of a camp fire and one of his friends went to the back of a car that was parked nearby, disengaged its gear and or its brake and the car rolled down and over Phillips.

Phillips was jammed under the car on top of a log of wood that was adjacent to where he was sitting by the fire.

He spent about four hours pinned under the car until an ambulance was able to come and extricate him.He was then transferred to the Flinders Medical Centre and arrived there at about 6.30 in the morning, the accident having occurred at about midnight.

The plaintiff did not lose consciousness and examination showed that he had a fracture of his left femur and left clavicle and a laceration over his left knee.

On the day of admission he was taken to theatre and under general anaesthetic a Grosse and Kempf nail was inserted into the left femurThis nail was locked both proximal and distal to the fracture.The fracture of the left clavicle was treated conservatively with a figure of 8 type bandage.

Dr Henningsen, Visiting Orthopaedic Surgeon at the Flinders Medical Centre explained his condition as follows:-

"Following this procedure he was treated in the general ward until he became more comfortable and he began mobilising with the physiotherapist weight bearing as tolerated through the left leg.He was discharged home on the 24th October 1991 mobilising on crutches.He was reviewed in the outpatients department on the 25th November 1991 at which time he was mobilising comfortably with a stick.He had poor pulse control in the left leg and the range of motion in the left knee from 90 degrees.The fractured clavicle remained minimally tender and he had a good range of motion in the left shoulder joint.The incision over the left trochanter had healed well and also the laceration over the left knee which had been sutured primarily after debridement and irrigation at the time of insertion of the Gosse and Kempf nail was pristine.

X-rays were obtained on the day which showed good evidence of healing bone at the femoral fracture site and the appearances of the left clavicle were one of a united fracture.He was referred for physiotherapy to his left knee in particular and discharged for further review.I reviewed him on the 6th January 1992 at which time he was walking with a single gutter crutch and had improved range of motion in his knee and greater comfort with all activities of daily living.He was reviewed subsequently on the 25th May 1992 at which time I arranged for him to be admitted to the hospital on the 23rd June 1992 to have the distal screws removed from the left femoral Grosse and Kempf nail.This was performed under general anaesthetic on the 24th June 1992 and he was discharged the following day.Subsequent review on the 27th July 1992 revealed that his left knee was much more comfortable following this procedure and review was arranged for six months hence with x-rays upon arrival.

In summary, this young man has sustained a closed fracture of his left clavicle and neck of femur and a laceration over the left knee.The clavicle fracture was treated conservatively and the femoral fracture required closed reduction and internal fixation.The laceration has been treated by debridement and primary closure.He has had a subsequent surgical procedure to remove the distal screws from the left femoral nail and ultimately the femoral nail itself will require removal but this is not usually done until about 18 months has elapsed since the initial fracture.Once the nail is removed and some months have elapsed it will be possible to give a final report concerning his residual disabilities but this would not be for another nine months approximately."

Phillips was placed on a waiting list for removal of the Grosse and Kempf femoral nail but Dr Henningsen was subsequently advised that the nail had been removed by another orthopaedic surgeon at The Vales Hospital.

The plaintiff left school at the end ofyear eleven and even before then he had become very interested in motocross motorcycle riding, in fact from when he was about nine and a half years of age he first began practising and subsequently became very involved in motocross sport.

The plaintiff explains that this is a very physically demanding sport and

said:-

"It's a motorbike without lights, no registration and you ride around a track as fast as you can go travelling over a lot of jumps".

He explains that on occasions when riding the sport you are airborne over the jumps and you land quite heavily from time to time.Over a number of years he rode in international championships and continued to ride over a period of about seven years during which time he had a number of falls and incurred injuries including "a couple of fractures to the wrists".

Whilst he was still at school he did for a time work at a motorcycle shop.

Eventually he gave up the sport as he was having too many injuries not only to both arms but also a back injury.

When he first left school he found a job landscaping for Woolcocks Industrial Builders and clearing their sites and assisting with other builders labourers work.He also explained that when carrying out that work he suffered a wrist injury from picking into bitumen with a pick probably in about July 1989.

He also believed that he also hurt his back during that employment.

Whilst he continued to work with Woolcock Engineering he learnt to drive a roller and a bobcat and he had the responsibility to maintain that equipment.

He left that employment in 1991 after a disagreement with the foreman having been away from work with a back problem, although his prime reason for leaving he said was his dispute with the foreman.

He was then offered an employment at Lonsdale Sand and Metal but he did not takeup that position and in fact he did not work again until the date of his accident.

He says that:-

"Like I said I was reasonably fussy with places that I wanted.I wanted a large earthmoving company which is pretty hard to get into, only because I really wanted to work on big machinery."

It seems that he was unemployed from about November 1989.

When he was discharged from the Flinders Medical Centre on the 24th October 1991 he later had two further surgical procedures.

"The distal locking screws, that is just above the knee, were removed from his left leg on 23/6/92 at Flinders Medical Centre.These were irritating the soft tissues over his knee.On 19/5/94 at The Vales Hospital Dr Steele Scott removed the rest of the metal, the intramedullary nail, etc from his femur."

He has not done any work since his recovery from his injuries and he complains of the following matters to Dr Jose, an Orthopaedic Surgeon:-

"Left Clavicular area may have the occasional aching and it does click with movements at times on the top of his shoulder but other than that he had no complaints.

Lower Back

He has had some lower back symptoms.It has been alleged that the injured left leg is now a little longer than his right and he was given a raise to the right heel because of this.He wore this and the back pain went but then he had the surgery to remove the nail and since then he has not been wearing the raise and he does not complain of back pain.

Left Hip

He told me his left hip is 'fine' but any long period of standing or sitting does cause an aching feeling in the outer left hip.He occasionally takes Mersyndol to sleep because of aches in his left leg.He had no complaint about movement of the hip.The leg symptoms had evidently improved since he has had the removal of the metal.Dr Steele Scott may have further comments regarding that as he has seen him more often.

Left Knee

This occasionally has given way coming down stairs for example.The last time it did this was 2 months ago.He finds it very tender to kneel on this knee even on carpet and he does not believe he could kneel on concrete.His knee clicks behind the knee cap and most of his symptoms are in the knee cap area and the patella tendon area where it attaches to the knee cap."

On the 2nd December 1994 Dr Geoffrey Jose, Orthopaedic Surgeon reported as follows:-

"Comment and Opinion

I was later able to examine x-rays of his left femur and left hip area.These were dated 12/5/94 before he had removal of the metal.The hip joint appears radiologically quite normal.Above the top end of the GK nail is some degree of heterotopic bone, there is one fairly sharp triangular portion which may have been giving him some symptoms due to irritation of the gluteal muscle and tendons.He has felt better since its removal and I presume that some of that extraneous bone and probably bursal tissue was removed at the time although I have seen no post-operative films.Sometimes these spicules of bone reform after removal due to ossification in the haematoma.The fracture has united quite soundly and it has involved the upper femur.

I do not believe there is any residual disability in his left shoulder region and nor would it seem there is any functional disability in his lower back.

I have not seen x-rays of his lower back but there has been no recent complaint of back symptoms and I think the injury here was more of some skin abrasion rather than any major joint injury.

The left hip is radiologically normal and although he may have some discomfort over the left hip this should not be a major disability.The prognosis for his hip joint should be good.

In his left knee there is evidence of some patello-femoral pain which I believe will improve as the strength improves in his quadriceps muscles.He has quite reasonable power in these muscles at present but I think it will improve further with further exercising.There was no instability noted in his knee and no evidence of any joint reaction.If that is a major point then obviously Dr Steele Scott may elect to perform an arthroscopic examination of his knee which would decide the matter but this seemed to be a soft tissue injury to his knee although probably was contaminated from the account of Dr Henningsen.

Apart from these minor residual complaints I could find no major reason why he should not be able to drive a Bob-cat as before should he so wish it but it is one of those situations where he would have to try it and see.

I believe the prognosis is good.He has had no major joint injury that I can ascertain and hence the possibility of arthritic change is not an issue.

The question of leg length has been referred to and although he may be very marginally longer in his left leg according to my clinical examination it is very marginal and not likely to cause symptoms.Accurate confirmation of this can be done by performing radiological measurements of his real leg length.

This leaves the question of his left knee joint and I have referred to that. If that continues to trouble him then it may be necessary to arthroscope his knee but I rather doubted that this would be necessary.

I should be interested to read Dr Steele Scott's final comments."

The plaintiff had had a history of accidents and injuries and in 1981 he bruised his left patella and medial femoral condyle and on the 17th September 1983 he fractured the radius and ulna of his left forearm.

In February 1984 he fractured his collar bone and in 1985 he had a left knee injury and a further fracture of his left radius and ulna and there are various occasions when in the past he has complained of back problems.

Before the accident he was clearly a very talented motor bike rider and interested in physical activities.He chose when to and when not to work and for some time had difficulties with drugs.

There is no doubt that the accident was painful and terrifying to him being held in the position under the car for such a time and the operations with the nail being installed and removed would have caused him some pain.

He continues to be concerned about the stability of his knee but the medical reports say that this is not strictly a medical problem and it is an apprehension he has which is not justified.

He has had a number of accidents in his history but has sufficiently recovered from them to continue with his motocross sport and or some of his employment and it seems that the main problem he now has is some effect of the thigh break which will cause him some disadvantage.As to that I prefer the evidence of Dr Jose being consistent with my opinion of the plaintiff rather than the other medical experts.

He has some continuing difficulty with kneeling and putting pressure on his knee but as to that I accept the evidence of Dr Jose that that will not be of major concern.

There is some problem in this matter in determining economic loss up to the date of the accident as he had been unemployed for some twenty one months and in any event a considerable factor in his not obtaining work since the accident may not be because of his injury alone but because of his pre-accident history of work.

I acknowledge that he was unable to seek employment until he had the Grosse and Kempf nail removed and although the work available to him in the future is not seriously diminished there is some diminution in his capacity and some probable continuing degree of pain.

I find that he has not a great ability to be trained for something in the service industry and in the past his employment ability has been within a narrow range of employment.

I accept the evidence of Dr Jose that the plaintiff could not do heavy manual labouring work but he could do the work that he did before, that is driving the bob cat.

When he did try some work with his uncle he put unnecessary limitations on what sort of work he could do and I find that he has not mitigated his loss as he should have done since he has been able to do the sort of work that Dr Jose says he is able to perform.

I find that before the accident he was not motivated to find employment and he remains of the same mind at the present time all be it with the additional problems relating to the accident, but I find that they are not such as would avoid him taking on the sort of employment which he was doing some twenty one months before the accident.

Of course this matter comes on before me for assessment of damage only.The plaintiff has made a claim under the Beck and Farelly concept.

There is no doubt that his mother helped look after him for a period but having regard to her evidence I find that there was nothing greater involved beyond which you would normally expect in the circumstances.

The plaintiff himself says that he hopes in the future to take up commercial fishing and he does not perceive on his own evidence any great physical problem in taking up that venture.

With the findings that I have made as to his capacity for employment at various times and the pain he has suffered and will continue to suffer I make the following assessments.

As to his non-economic loss I assess him on the scale of 12 and at the relevant time totals an amount of $15,720.As to past economic loss I take into account that he was not in employment at the time but the probabilities that he would have obtained employment and I think it is fair to allow him an amount of $12,000 up to the date of trial.As to his future economic loss I rely on the evidence of Dr Jose and there are two factors there to take into account.He is young which means that he will recover to a greater extent than an older injured person but it also means that any disadvantage which he has he will carry with him for his whole working life.

I find that he will suffer some diminution with his capacity on the labour market and under that head I allow the sum of $70,000.

In lieu of interest I allow him the sum of $4,000.

There will be judgment for the plaintiff in the sum of $101,720 plus special damages to be agreed or proved.

I will hear from the parties as to any special damages still outstanding.

IN COURT ON THURSDAY 19TH DECEMBER 1996

H.H. ORDERS:

Judgment for the plaintiff in the sum of $101,720.

The plaintiff will have any special damages which are agreed or proved.

Parties have formal liberty to apply to that.

The defendant will pay costs.

If special damages can't be agreed, I give leave to apply.