Robert John Waters v Elaine Dalli
[2009] ACTSC 158
•4 December 2009
ROBERT JOHN WATERS v ELAINE DALLI
[2009] ACTSC 158 (4 December 2009)
DAMAGES – personal injury – man aged 61 – fractures to right femur, tibia and fibula – ankle dislocation – skin grafting – severe disabilities – total loss of earning capacity – no issue of principle
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
No. SC 141 of 2006
Judge: Master Harper
Supreme Court of the ACT
Date: 4 December 2009
IN THE SUPREME COURT OF THE )
) No. SC 141 of 2006
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:ROBERT JOHN WATERS
Plaintiff
AND:ELAINE DALLI
Defendant
ORDER
Judge: Master Harper
Date: 4 December 2009
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff in the sum of $1,103,965.00.
This is an assessment of damages for personal injury. The plaintiff was born in June 1944 at Maryborough in Queensland and is now sixty-five years old. He was seriously injured on 17 May 2005 when the defendant’s car collided with his motorcycle at the junction of Mugga Way and Flinders Way, Red Hill.
The plaintiff’s background
The plaintiff was educated to the equivalent of the intermediate certificate. After leaving school he moved to Melbourne where he worked for two years as a clerk with the Postmaster-General’s Department. At seventeen he joined the Royal Australian Air Force, where he spent six years, being discharged as a corporal. He married in Melbourne at age twenty. In 1967 he came to the Australian Capital Territory and worked at the Honeysuckle Creek communications facility for about ten years. A son was born in 1969 and a daughter in 1971.
In 1976 the family moved to Termeil where the plaintiff and his wife spent three years running a general store. Thereafter the plaintiff spent a further three years working at Milton, Ulladulla and Wollongong, generally as a maintenance officer. In 1982 he found work with a car dealer at Wollongong. Thereafter he worked as a car salesman, with different dealerships in the Wollongong area and the Sutherland area of Sydney. In 1995 he and his wife separated. They were divorced the following year. In 2000 the plaintiff moved to Townsville where he worked as assistant manager at a Mitsubishi dealership.
In early 2004 he came to Canberra for his brother’s wedding, and met his present wife. She is twelve years younger than he is. They were married in November 2004 and the plaintiff moved to Canberra. He did a course and obtained a licence as a security officer, and took a position as a guard at an office building at Woden occupied by a Commonwealth department.
His wife at the time worked as a public servant during normal working hours, and in addition held a position as housemother at a boarding house at Canberra Grammar School. The position provided accommodation, where the plaintiff and his wife lived. She had Thursday and Friday evenings off but was otherwise on duty at the school other than during her public service working hours.
The plaintiff had been a recreational motorcyclist for many years. He had belonged to motorcycle clubs, and had undertaken long tours including, in 2001, a ride from Adelaide to Darwin and thence to Townsville.
The plaintiff was offered a sales position with a Canberra car dealer at the end of 2004 but decided not to accept it because it involved Saturday work. His evidence was that he decided to work as a security officer until the end of 2005, when his wife intended to leave her position at the school. His intention was to get back into a car sales position at that time.
At the end of 2004 the plaintiff and his wife bought a house at Hervey Bay, on the Queensland coast near Maryborough. They renovated the house extensively.
They also bought a house at Scullin, with the intention of demolishing it and building two houses on the site. They obtained planning approval for the redevelopment prior to the plaintiff’s injury.
The plaintiff enjoyed golf and tennis. His golf handicap was twelve and he had earlier been an A grade tennis player and a tennis coach.
The accident
The plaintiff was on his way home from work at the time of his accident. He has no memory of the impact itself, regaining consciousness to find that he was lying on the road and that his wife and a number of other people, including ambulance officers, were attending to him. He was cold and in pain.
In addition to a head injury which caused loss of consciousness for a short time, the plaintiff suffered multiple fractures of the right femur, tibia and fibula and bones in the right foot. He also suffered a degloving injury to the right foot and toes. He injured both knees and his left ankle, and fractured his left scapula. He also fractured his left tenth and eleventh ribs, each lumbar vertebra from L2 to L5, and his coccyx.
He was taken by ambulance to the Canberra Hospital where his orthopaedic injuries were treated by Dr Katherine Gordiev, orthopaedic surgeon. His fractured right femur and tibia were externally fixated with pins, and a fracture dislocation of his right foot was stabilised with K-wires through the first, second and third metatarsals. Two days later Dr Gordiev performed further surgery in the form of open reduction and internal fixation of the right femur with a distal locking plate. In the course of the same operation she carried out an internal fixation of the fracture to the right tibia, and an open reduction and internal fixation of the dislocation of the right foot. A backslab was applied to his right leg below the knee. The screws and wires were removed from his right foot in March 2006.
The plaintiff remained an inpatient at the Canberra Hospital from the date of the accident until 9 August 2005, when he was admitted to a rehabilitation independent living unit within the hospital grounds. On 12 September 2005 he went home for the first time, attending the rehabilitation unit as a day-patient until 28 October 2005. Thereafter he attended physiotherapy and a gymnasium, where he used a hydropool, two or three days a week.
In June 2006 Dr Gordiev referred the plaintiff to Dr David McNicol, orthopaedic surgeon. Dr McNicol was unsure whether further surgery was likely to help the plaintiff but recommended a referral to Dr Timothy O’Carrigan in Sydney, an orthopaedic surgeon with particular experience in treating injuries of the kind suffered by the plaintiff.
The plaintiff saw Dr O’Carrigan for the first time in September 2006. He was admitted to the Sydney South-West Hospital at Liverpool in January 2007 where Dr O’Carrigan operated, performing a bone graft to the right femur and a release of the Achilles tendon. The plaintiff spent about twelve weeks in bed after this, unable to bear weight on the right leg. It was not until April 2007 that he was able to attend to his own toileting. He used a wheelchair, and crutches, and continued with his physiotherapy and gymnasium visits. During the whole of the period since the accident he has taken strong painkillers including Oxycontin and Endone.
In March 2008, at the Sydney South-West Hospital, Dr O’Carrigan operated in conjunction with a plastic surgeon, Dr Fernandes, to remove the femoral plate and undertake skin grafting. Following this surgery the plaintiff required a morphine pump to control his pain. Dr O’Carrigan and Dr Fernandes operated again on 4 April 2008 (debridement under anaesthetic) following which the plaintiff was confined to bed for six weeks on painkilling medication.
In November 2008, at the same hospital, Dr O’Carrigan carried out a tibial tubercle osteotomy and a patello-femoral joint replacement with quadriceps plasty.
The hearing
The hearing of the action commenced on 16 September 2009, occupying two days. It was necessary to adjourn the hearing until 16 November 2009 to conclude the hearing over a further two days. Meanwhile, on 8 October 2009 the plaintiff underwent further surgery, performed by Dr O’Carrigan, in the form of arthroscopic repair of the meniscus in his left knee. By the time of the hearing, the plaintiff was walking slowly and awkwardly with the aid of a Canadian crutch. He was continuing to take a small dose of Oxycontin to help sleep at night, and he was taking Endone occasionally. He was taking another prescription medication, Norflex, a muscle relaxant. He had to apply Vaseline to the skin graft areas every night. He had joined a conventional gymnasium and was attending three times a week, doing upper body exercises. He was due to resume hydrotherapy during October 2009.
I observed the scarring to his legs, which is very noticeable. His evidence was that people stare at him when he is at the beach or wearing shorts, causing some embarrassment.
Having been married only a few months before the accident, the plaintiff and his wife had had an active sex life but since his injuries this has ceased entirely. He requires a full-length body pillow in bed, for comfort, and wears a brace on the right leg to hold the ankle at a right angle. He continues to have problems with his left shoulder. He has suffered from neck pain since the accident, and has soreness and pains in both hands which he attributes to use of crutches.
He is able to drive an automatic car, modified by the installation of a left-hand accelerator. He has very limited movement in the right ankle. His shoes need to be modified by inserting a heel raiser. He finds walking down a slope extremely difficult. Much of the surface of the lower right leg and foot is permanently numb.
In addition to the plaintiff, evidence was given by his wife, by way of corroboration of his complaints about his disabilities, and also in relation to services he required which she had provided and continues to provide to him.
Oral evidence was given by telephone by Dr O’Carrigan and by Professor John Carter. The latter gave evidence on behalf of the defendant as to the likely impact of the fact that the plaintiff had been diagnosed in 2003 with type 2 diabetes mellitus on his life expectancy. Professor Carter, who did not have the benefit of examining the plaintiff, took the view on the information that he had been provided that his life expectancy would be of the order of eight to twelve years, based on United Kingdom research. He conceded in cross-examination that other factors might be relevant and that there might be individuals who would fall outside his range.
A number of medical reports were tendered on both sides, without cross-examination. These included reports by Dr P. Endrey-Walder, a general and trauma surgeon, who had examined the plaintiff at the request of his own solicitors, Dr Virginia Pascall, occupational physician, and Dr Paul Nicholls, dental surgeon, both of whom were qualified by the solicitors for the defendant.
The plaintiff was extensively cross-examined. It is sufficient for me to say that I found him an honest and credible witness. It is, I think, human nature for a plaintiff in a personal injury case to put his best foot forward in the witness box, focusing on matters favourable to his case and perhaps playing down those which are less so. The plaintiff in this case was fairly typical in that way, but I generally accept his evidence.
I formed the same impression of his wife. One can scarcely expect people in their position to be objective, and some subjectivity in focus is to be expected and taken into account.
A major dispute between the parties relates to loss of earnings, past and future. The plaintiff’s case is that within about six months of the accident, he would have found work as a car salesman, and would have worked on to age seventy or perhaps even seventy-two. He had been a very successful car salesman and car sales assistant manager in Queensland, and would have become a high earner in the field in Canberra.
The defendant’s case is that the plaintiff would have found it difficult to get work, and that his earnings would have been much more modest. Further, he would probably not have continued working in the field beyond age sixty-five. (He was not quite sixty-one at the date of the accident).
Each side called an expert in labour market analysis and placement. Both gave evidence by telephone. Both are from Sydney. Their evidence was helpful by way of background but not of a great deal of assistance to my task in assessing damages for loss of earning capacity for this particular plaintiff.
It seems to me on the whole of the evidence that the plaintiff was reasonably likely, if it had not been for the accident, to have found employment as a car salesman in Canberra. I think he probably would have been reasonably successful and would have worked on beyond age sixty-five although perhaps not to the age of seventy.
Each side also called a car dealer principal – for the plaintiff, the proprietor of the dealership where the plaintiff worked in Townsville, and for the defendant, the proprietor of a Subaru dealership at Phillip. The former gave evidence that the plaintiff was outstanding in the field; the latter that he would be unwilling to employ the plaintiff and that he could in any event expect much lower earnings than he seemed to expect.
Damages
I invited submission from counsel as to an appropriate range for general damages. In considering the ranges put forward, I must take account of the fact that they are not predicated on acceptance of precisely the same findings of fact. Counsel for the plaintiff put a range of $200,000.00 to $220,000.00 whilst counsel for the defendant suggested $125,000.00 to $150,000.00. The ranges put by counsel for both parties reflect the seriousness of the plaintiff’s injuries and their devastating effect on a man who had recently married and was enjoying life, and who appeared to have his diabetes well under control.
I propose to allow $180,000.00 for general damages. Counsel for the defendant suggested that I should apportion 75% of the award for general damages to the past, and counsel for the plaintiff did not take issue with the submission. Accordingly I apportion $135,000.00 to the past. That sum attracts interest at the rate of 4% per annum, with the resulting figure halved to take account of the fact that the effects of the accident have continued from its occurrence to the date of judgment, though perhaps somewhat increased to reflect the fact that the plaintiff had a worse time of it in the months immediately after the accident. I allow $13,500.00 for interest on the past component of the general damages.
The plaintiff’s treatment expenses to date have been paid by his employer’s insurer in the sum of $289,200.00.
The plaintiff will be put to expense in the future for medication and general practitioner attendances. He requires dental work but there is a real issue as to whether the accident has been a contributor to this. There is no doubt that his teeth are in very poor condition. Dr Nichols thinks that their condition is basically unrelated to the injury, although the condition of two of his teeth may have been aggravated by the injury. Nevertheless his fractured teeth would have fractured in any event. I am not satisfied on the balance of probabilities that the plaintiff has established that his need for dental treatment in the future is related to his motorcycle accident.
He may need a total right knee replacement operation in the future. Other specialist treatment is also possible.
Counsel for the plaintiff, properly pitching this component of the case at its highest, has asked for $92,000.00 for future treatment expenses. The component is not one which is capable of mathematical calculation. I propose to allow $40,000.00 for future treatment and other expenses.
As to past loss of earnings, the plaintiff seeks a figure of just on $277,000.00. The defendant submits that something of the order of $160,000.00 to $170,000.00 would be appropriate. Again, the assessment of a figure for this component must take account of many imponderables. Doing the best I can in the circumstances I propose to allow $220,000.00.
The employer’s insurer has paid $138,802.22 gross to the plaintiff (up to 17 November 2009) which the plaintiff will have to repay. He is entitled to interest only on the difference between those two figures, which is about $80,000.00, although that interest is to be calculated at the prescribed commercial rate of 9% per annum, with the resulting figure halved to reflect the fact that the loss has continued over the period since the accident. A slight adjustment needs to be made to take account of the fact that the plaintiff would have remained in security work until the end of 2005. I allow $15,000.00 for interest.
The plaintiff received his workers’ compensation net of tax but is required to refund the gross amount to the insurer. He is entitled to the difference (the Fox v Wood component) which is agreed at $24,265.00.
For future economic loss, the plaintiff claims, on the basis that he would have worked for another five years and earned an average of $1385.00 per week, $285,000.00. This sum takes account of the conventional 15% reduction for the vicissitudes of life.
Counsel for the defendant submits that this is much too high, and that an allowance should be made for future economic loss within a range of $60,000.00 to $80,000.00.
As with the calculation for past economic loss in this case, I am required to take the approach outlined in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. Rather than predicting, on the balance of probabilities, what was likely to have happened since the accident, and what is likely to happen in the future, I am required to evaluate the degree of probability of events occurring and to take that chance into account. Adopting this approach, I propose to award, to compensate the plaintiff for the impairment of his earning capacity to the extent that this will probably be reflected in future lost earnings, $180,000.00.
The plaintiff makes a claim for the value of services which have been provided to him by his wife without charge. It is clear from the evidence that at times the plaintiff has required almost constant care, whilst at other times he has been largely able to look after himself. He still needs help with some aspects of his life. Additionally, there are tasks the plaintiff was in the habit of undertaking before he was injured, which a husband would reasonable undertake around his house, which are now beyond him and which his wife must deal with. I propose to allow $40,000.00 for the past Griffiths v Kerkemeyer component, plus interest of $8,000.00. I allow $50,000.00 for the future.
The plaintiff is entitled to damages for the loss of the superannuation benefits, past and future, he would have become entitled to had he not been injured. I accept that the conventional approach to the calculation of this aspect is to allow 11% of the amount allowed for past economic loss, and 11% of the future allowance. Because the past allowance would not have resulted in an actual loss to the plaintiff until retirement, it does not attract interest. I allow $24,000.00 as a reasonable figure to compensate the plaintiff for loss of superannuation benefits related to his loss of earnings to date, and $20,000.00 for the future.
The individual components of the awarded damages are accordingly:
General damages $180,000.00 Interest on past component $13,500.00 Past treatment expenses $289,200.00 Future treatment expenses $40,000.00 Past economic loss $220,000.00 - interest thereon $15,000.00 Future economic loss $180,000.00 Fox v Wood $24,265.00 Griffiths v Kerkemeyer - past $40,000.00 - interest thereon $8,000.00 - future $50,000.00 Superannuation - past $24,000.00 - future $20,000.00 $1,103,965.00
I am satisfied on consideration that the total properly reflects in money terms the impact of the injuries suffered by the plaintiff due to the defendant’s admitted negligence. There will be judgment for the plaintiff for $1,103,965.00. I shall hear the parties as to costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 4 December 2009
Counsel for the plaintiff: Mr FJ Purnell SC & Mr JR Sainty
Solicitors for the plaintiff: Blumers Personal Injury Lawyers
Counsel for the defendant: Mr SM Whybrow
Solicitors for the defendant: Moray & Agnew
Date of hearing: 16 & 17 September, 16 & 17 November 2009
Date of judgment: 4 December 2009
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