Seekamp v The Nominal Defendant - [2008] SADC 24

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SEEKAMP v THE NOMINAL DEFENDANT
[2008] SADC 24
Judgment of Her Honour Judge McIntyre
7 March 2008
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE - EVIDENCE - ONUS OF PROOF AND SUFFICIENCY OF EVIDENCE
The plaintiff claims damages for personal injury he claims to have sustained as a pedestrian hit by an unidentified vehicle - Nominal Defendant - s115 Motor Vehicles Act 1959 (as amended). Did the motor vehicle accident occur - if it did has the plaintiff established negligence and if so should there be a finding of contributory negligence. Approach to evidence in Nominal Defendant matters - consideration of expert medical evidence - assessment of damages.
Held: The plaintiff's injury could not have occurred in the manner described by the plaintiff - the plaintiff's claim fails - accordingly negligence and contributory negligence not considered. Damages assessed in the sum of $187,826.53
Motor Vehicles Act 1959 s115; Wrongs Act 1936 s24(B), s24(B)(i); Civil Liability Act 1936 s55, referred to.
Millar v Miller [1940] SASR 185; Hofer v Miller [1957] SASR 41, applied.
Murray v Dawson (1996) 24 MVR 244, considered.

SEEKAMP v THE NOMINAL DEFENDANT
[2008] SADC 24

The plaintiff claims damages for personal injuries he says that he sustained whilst attempting to cross Lower North East Road at Campbelltown on 19 December 2003. The plaintiff claims that the driver of an unidentified vehicle he believes to be a white Holden Commodore travelling in an approximately northeasterly direction along Lower North East Road collided with him.
As a result of the collision the plaintiff claims that he suffered a comminuted split depression fracture of the left lateral tibial plateau, and, an avulsion injury of the medial ligament of the left knee.
The plaintiff proceeds against the Nominal Defendant under s115 of the Motor Vehicles Act 1959 (as amended). The defendant has agreed that the plaintiff has provided notice and has undertaken due search and inquiry as required under s115 (3) of the Act.
The key issue is whether the plaintiff was involved in a motor vehicle accident as alleged. The issue arises because the plaintiff initially indicated that he injured his leg in a fall.
The plaintiff’s case relies upon the evidence of himself, his brother and his mother. The plaintiff further relies upon the evidence of three Orthopaedic Surgeons - Drs Montgomery, von der Borch and Atkinson. The defendant did not call oral evidence but tendered some material. The documents tendered by the parties include the Royal Adelaide Hospital notes, the plaintiff’s general practitioners’ notes, Glenside Hospital notes, a statement of the plaintiff’s brother taken shortly after the accident. In addition, the court conducted a view.
The plaintiff gave evidence that he and his brother had been at a friend’s house at Wensleydale Avenue, Hectorville from about 5.30 – 6.00 pm on 19 December 2003. Present were the plaintiff, his brother Justin Seekamp and two friends Tyrone and Arlo. They drank a carton of beer that was split equally. The plaintiff said he had 6 full strength stubbies of beer. His brother drank a similar amount. They also smoked some pot, maybe one or two cones. The plaintiff did not consider his brother or himself to be affected by alcohol or drugs. The plaintiff and his brother then left the friend’s house. The time of their departure is somewhat controversial and I will return to this point later.
The plaintiff says he wanted to purchase some cigarettes and his brother selected a route home that would take them past the Caltex service station on Lower North East Road. They missed the turn-off to the service station and accordingly, the plaintiff’s brother stopped his car opposite the service station. The plaintiff says that he got out of the car and walked towards the back of the car where he stepped onto the road. He took two steps behind the car and was in line with the back right tail lights. He then looked both ways several times before taking a step onto the road. Whilst taking this step he says that he was hit by a car and thrown back behind his brother’s car. He was in excruciating pain and called for his brother.
His brother assisted him to get into the car and drove him home. They did not call the police at this or any stage to report the accident.
At home, the plaintiff needed to be assisted out of the car and was unable to proceed further than the gas meter in the front garden. His mother heard the commotion and came to investigate.
The plaintiff told his mother that he had injured his leg in a fall and that he was unable to walk to the house. His mother called an ambulance. The plaintiff advised the attending ambulance officers that he had caught his foot in drainage causing his leg to twist and that he had heard “two cracks”. Upon arriving at the Royal Adelaide Hospital the plaintiff provided a similar history to the attending medical officer that was recorded in the hospital notes as follows:
01.00 this morning leaving friends house when caught L foot in gutter. Twisted knee and fell to ground. Heard click. Tried to weight bear. Knee gave way + severe knee pain. Also swelling +++.
Subsequently the plaintiff revised this history of injury and told his mother and his general practitioner that the injury occurred in a motor vehicle accident as outlined above. He says that the reason he initially told his mother that he sustained the injury in a fall was to save her concern. His mother suffers from multiple sclerosis and he did not wish to precipitate a relapse of her condition.
Issues
·The first issue is to determine whether the motor vehicle accident occurred at all.
·If the motor vehicle accident did occur, has the plaintiff established negligence and if the plaintiff has established negligence, should there be a finding of contributory negligence?
·What is the proper basis upon which to assess the plaintiff’s claim for damages under the various heads of loss available to him?
Did the accident occur at all?
The Court conducted a view of the alleged scene of the accident. The plaintiff identified the place where his brother stopped their vehicle as being just north of a bus stop sign opposite a Caltex service station. He says that he commenced to cross the road in between the bus stop sign and the car.
At this point, Lower North East Road runs roughly north south. The vehicle in which the plaintiff was a passenger stopped on the western side of the road. The service station was on the eastern side of the road. There are four lanes of traffic divided by a wide central median strip. The road is bound on each side by concrete kerbing and, at the point identified by the plaintiff as the place his brother parked the car, the kerbing comprised a driveway type entry to the St Bernard’s Recreation Park.
The only evidence concerning the accident is that of the plaintiff and his brother. In addition the three orthopaedic surgeons have given evidence concerning the mechanism of injury.
I found the evidence of the plaintiff and his brother concerning the circumstances of the accident and subsequent events to be vague, internally inconsistent and in many respects at odds with each other’s evidence. There were a number of areas in which their evidence was unsatisfactory leading me to a conclusion that it was unreliable. A few examples will suffice.
In evidence, the plaintiff said he and his brother left his friend’s house at about 11.45 pm[1] and that it took about 10 minutes to reach the Caltex service station. He said that the accident occurred at about midnight.[2] It was put to him that when he placed an advertisement in the local newspaper seeking witnesses to the accident, he stated the time of the accident was 11.00 pm and that the statement of claim filed in this action indicated that the accident occurred at 11.30 pm. The plaintiff said that these times were wrong and explained this by saying[3]: -
…..It wasn’t like I got hit by the car and then looked at my watch to see what the time was. I was basically guessing from the word go until, as in such times that I saw the ambulance report and had found out what time they had actually been rung was when it all came and fitted together.
[1] Transcript [84]
[2] Transcript [84 – 85]
[3] Transcript [86]
In effect, his evidence was that he did not know what the time of the accident was, and thus, guessed the time when he placed his advertisements and presumably when he instructed his solicitor. The reason for the half hour difference between those times was not explained.
The evidence the plaintiff gave in Court was said to be a reconstruction based upon what he had since discovered about the time the ambulance service was called. He did not qualify his evidence in that manner until subject to cross-examination. The ambulance records indicate that the ambulance service was contacted at 12.47 am. Even this amended time frame was not entirely satisfactory. The scene of the accident was only a five to ten minute drive to his home.[4] The plaintiff agreed that he got home by about five or ten past midnight. He was unable to explain why the ambulance was not called until 12.47 am when his evidence, and that of his mother, was that she called the ambulance only a short time after he arrived home.[5]
[4] Transcript [29]
[5] Transcript [87]
The plaintiff’s brother, Justin Seekamp, was equally uncertain of the time of the accident. In examination-in-chief he said that he thought they left the friend’s house “probably roughly 11.00 or 12.00”.[6] In cross-examination he said they left at 12 o’clock and that it took five or ten minutes to get to the service station.[7] In evidence, he described the accident as happening shortly after they stopped. However, in a statement provided to an investigator acting on behalf of the defendant on 19 January 2004, Justin Seekamp could not remember where he and his brother had been prior to the accident and stated that the time of the accident was about “11 o’clock I think, or 12”. He further described the accident as happening some time after they stopped – an issue I will return to shortly.
[6] Transcript [224]
[7] Transcript [241]
The plaintiff’s mother, Lynette Seekamp gave evidence that her sons arrived home at about quarter to one or around one o’clock[8]. She called the ambulance shortly after their arrival home.
[8] Transcript [281]
The plaintiff conceded that he had lied to Dr von der Borch when he told him that he was hit by a vehicle that had emerged from a side street and which appeared to be “purposely fishtailing for some reason”.[9] He said he did not see the vehicle at all before it hit him despite looking to his right on more than one occasion. He said he told Dr von der Borch this because he wanted to “put the car in some kind of perspective”. This is not a compelling reason.
[9] Transcript [92]
Neither brother was clear about the occasion on which they discussed the circumstances of the accident if at all. This seems somewhat surprising. Even more surprising is the evidence that both gave concerning the version of events given to their mother on arrival home. Both say that there was no discussion of this prior to arriving home. The plaintiff says he told his mother that he put his foot into a drain and twisted his leg because he did not want to cause his mother concern. His mother suffers from multiple sclerosis of a remitting and relapsing type. He did not wish to cause a relapse by telling her he had been injured in a motor vehicle accident. His explanation as to why this would be more likely to cause a relapse than the information he provided was not entirely clear.
Justin says he heard his brother tell his mother that he fell over in the gutter but did not comment upon this apparent untruth because “I knew he was trying to save her the stress, from freaking out”. It is unclear how he formed this view given his evidence that he at no stage prior to the untruth, or indeed after it, discussed this issue with his brother.
It was put to him that his brother was in significant pain at the time, and that his mother was focussing upon the injury rather than its cause. He stated that “a near death experience” is different from tripping over in a gutter. It is unclear why he considered that his brother had a “near death” experience given his evidence that he did not see the accident. He further said: -
AJust because of a near death experience, it’s nowhere near as bad as just tripping over a gutter.
QBut again would your mum really have cared about how it happened?
AShe does, yes.
QShe might later but on that night when she comes out at 1 o’clock in the morning or thereabouts and he’s on the floor, you know your mum, her focus, her attention, her interest is on how Ashley is and that he’s hurt and needs to be fixed. She wouldn’t have really cared less at that stage about how it happened, would she?
AShe would have, yes.
QYou think she would have?
AYes.
QFor some reason, although you and Ashley hadn’t talked about it, you understood that when he said he’d fallen it was because somehow he wanted to look after her?
AYes
QSomehow he thought that the motor vehicle accident would stress her more than to describe it as a fall?
AYes, that’s right[10]
[10] Transcript [265 - 266]
Both the plaintiff and his brother were cross-examined at some length concerning the plaintiff’s reasons for telling an apparent lie to his mother. I found those reasons unconvincing, particularly in view of Mrs Seekamp’s evidence that she was not concerned about the cause of her son’s injury, rather her main focus was upon assisting him to get appropriate medical treatment.[11] I also find it unconvincing that the plaintiff would not, if he had determined to take this course of action, discuss it with his brother in the car prior to the information being provided to his mother or at least speak to his brother at the first available opportunity to ensure that he maintained the apparent fiction. Both the plaintiff and his brother say that they did not discuss this issue at all.
[11] Transcript [298]
Justin Seekamp’s evidence concerning the circumstances of the accident was also somewhat unimpressive. Justin gave evidence that his brother got out of the left side of the car and ran around the back of the car. He heard a screech and a bang and he looked around for his brother. He could not see him then he heard him screaming and got out of the car. He said he looked down the road and saw a light or white coloured Commodore going down the left hand side of the road so he presumed “that was the one that got him”[12].
[12] Transcript [226 – 227]
In cross-examination he agreed that the accident happened very quickly after his brother got out of the car. He gave similar evidence as to the screech and bang but added that he saw the car flash past prior to getting out to see his brother. He did not explain why he did not mention this when he gave his evidence-in- chief.
In a statement given to the defendant’s investigator on 19 January 2004 he told the investigator: -
AYeah, left the car running – as he got out and then I was wondering what took him so long to get back and heard some noise and had a look and there he was.
QDid you hear him get hit
ANo. All I heard was someone put their brakes on quickly and that was it – that’s when I looked around
Later in the interview he was asked:
QDid you hear anything?
AYeah yeah I think I heard the car a little bit but that was about it. I didn’t hear any wham or crash or whatever
Then the following questions were put to him by the investigator:
QDid you hear him get hit?
AAs I said I heard someone hit the brakes quickly and that’s (sic) was it.
QDid you look up when you heard that?
AYeah yeah looked around.
QDid you see anything?
ANo didn’t see anything.
QYou heard the screech of brakes?
AYeah – I heard that but I was wondering why he was taking so long and I thought something might have happened to him.
QDid you see a car at all?
ANo.
This is quite a different version of the events compared to what Mr Seekamp gave in evidence. He was unable to offer any reasonable explanation for this variance.
Also, of interest in the interview is the use by Mr Justin Seekamp of the phrase “I was wondering why he was taking so long to get back”. Similar words were used, unprompted, on three occasions during the interview. His evidence in court was that the accident didn’t take any time at all to happen, rather that it happened very soon after his brother exited the car. He was unable to offer any explanation as to why he used the expression “I was wondering why he was taking so long to get back” which suggested that the accident occurred some considerable time after they stopped[13].
[13] Transcript [252]
Another significant aspect of the evidence is the inconsistency between the accident as described by the plaintiff and his brother and the injury sustained by the plaintiff. The plaintiff described standing at the rear of his brother’s car in order to check that it was safe to proceed across the road to the service station. He said that he looked left and right on two occasions. He saw nothing. He was performing his first step past Justin’s car onto the road when he was hit. He described the process as follows[14]:
[14] Transcript [27]
QWhen you say you were hit, can you describe what you mean by that?
AI wasn’t actually hit front-on by the car, I was swiped by the car.
QWhen you say you were swiped by a car, can you recall what part of the car you were swiped by?
AThe back left wheel arch.
QWhat then happened?
AI was thrown back behind my brother’s car.
QDid you go down?
AI was definitely on the ground, yes.
QWhen you went down on the ground where did you go in relation to your brother’s car.
ADirectly behind it.
The plaintiff was cross-examined about the circumstances of the accident at some length. He maintained that his left knee was struck by the wheel arch or some part of the wheel arch of the vehicle. He did not think that it was any other part of the vehicle such as mud flaps or guards[15]:
QYour recollection is that it was sideswiped, there was contact between your knee and the rear of the wheel arch of this vehicle that was driving past.
AThat’s correct, yes.
QAnd can you tell her Honour the, sort of the nature of that contact. Was it just barely touching, hardly anything at all or do you have a – is it your evidence that the contact between your knee and this vehicle was actually quite significant.
AWell it threw me back behind my brother’s car so I’m just guessing that yes, it was pretty severe with the contact because for that to actually throw me back, yes.
[15] Transcript [100 – 101]
He agreed that he was not suggesting that he jumped back out of the way to avoid the vehicle. His evidence was very clearly that he was thrown back because the vehicle hit his knee.
It was common ground that the plaintiff suffered a significant knee injury. The injury was a fracture of the left tibial plateau involving the top of the tibia. Dr Montgomery described the injury as “a high-energy injury”. He did not consider that the type of injury was consistent with a trip in a person of the plaintiff’s age. He further gave evidence as follows[16]:
QWas this type of injury or has it been known as what is called a bumper bar injury.
AYes, it’s the sort of injury that’s consistent with being struck from the left side and being struck on the lateral aspect of the left knee.
[16] Transcript [171]

In cross-examination Dr Montgomery indicated that he made no assumptions as to whether there was any direct impact on the knee. He did not think that the plaintiff’s knee was necessarily struck. He agreed that the hospital records did not indicate any external damage, which might be expected if there was direct contact between a motor vehicle and knee as described by the plaintiff[17].
[17] Transcript [188]
Dr von der Borch gave evidence that if there had been a direct blow to the plaintiff’s knee he would have expected there to be a record of bruising, abrasions or some sort of indication of external damage to the knee area consistent with contact. The absence of such information in the Royal Adelaide Hospital notes made it “less likely” that the plaintiff’s knee was struck in the manner described.[18] He further indicated that if the plaintiff did suffer a direct blow, causing the fracture evident on the plaintiff’s radiological examinations, the blow would be on the lateral side of the knee. In other words, a blow from the left to the right of the knee.
[18] Transcript [212]
Dr Atkinson agreed with Dr von der Borch and Dr Montgomery that, if the plaintiff’s injury was caused by a direct blow, the blow was to the outside or lateral side of the knee pushing across to the right hand side of the knee. Dr Atkinson did not however think that the injury was caused by a direct blow to the knee having examined the Royal Adelaide Hospital notes, which gave no indication of any external damage to the knee[19].
[19] Transcript [306-307]
The doctors have some difference of opinion on whether the plaintiff’s injury could have been caused by a fall as described to the Ambulance officers and the Royal Adelaide Hospital. Dr Montgomery was of the view that a fall was unlikely to have caused an injury of the severity suffered by the plaintiff unless it was from some height, whereas Drs von der Borch and Atkinson considered it could have occurred, under certain circumstances in a tripping incident involving some velocity. They are unanimous in giving evidence that there was no objective evidence of a direct blow to the knee. They were further unanimous that if there were a direct blow to the knee then that blow must have occurred from left to right. This is completely inconsistent with the plaintiff’s description of the circumstances of the accident. The accident the plaintiff has described, supported by his brother, would necessarily have involved a blow to the knee from right to left as he was sideswiped by a vehicle travelling from his right hand side.
In summary, therefore, I found the evidence of the plaintiff and his brother unreliable and unsatisfactory. I further found it to be inconsistent with the evidence of the orthopaedic surgeons, which I accept, concerning the lack of evidence of a direct blow to the knee and the left to right direction of any such blow if it occurred. I find that the injury could not have occurred in the manner described by the plaintiff. In making this finding, I am mindful of the critical and cautious approach that is required to be taken in respect of evidence in nominal defendant matters[20]. It is unnecessary for me to attempt to determine the manner in which the plaintiff did injure his leg. It is sufficient to determine that he has not established, on the balance of probabilities, that he suffered his injury in a motor vehicle accident as pleaded and described by him. Accordingly the plaintiff’s claim fails.
[20] Millar v Miller [1940] SASR 185 and Hofer v Miller [1957] SASR 41
In view of this finding I need not consider the issue of negligence or contributory negligence.
Notwithstanding this finding on liability, I will proceed to assess the plaintiff’s damages.
Damages
Preliminary
The plaintiff is a young man born on 30 October 1981 presently aged 26. He has suffered a significant injury to his left knee namely a fractured left tibial plateau. He underwent open reduction and internal fixation together with bone grafting at the Royal Adelaide Hospital. The fracture healed over a lengthy period of time. He required the use of walking aids, crutches and a gopher. He underwent physiotherapy. He is left with permanent impairment and symptoms including a scar on the lateral side of his left patella, intermittent discomfort in the left leg, difficulty with squatting and an inability to kneel.
There is likely to be deterioration over the years as a result of age, activity, further injury, genetics and other factors. It is possible, though not likely that he may require an osteotomy. More likely was the prospect that the plaintiff would require joint replacement surgery in middle age. Dr von der Borch thought that the plaintiff had a 60/40 chance of requiring such surgery.
Whilst I found the plaintiff’s evidence concerning the circumstances of his injury to be unconvincing, and I do not accept his evidence on that issue, I thought that he described the disabilities that he suffered and the impact upon his usual domestic, recreational and employment activities in a stoic even understated manner. His complaints were in line with the medical evidence and I accept his evidence concerning the effect of the knee injury upon his activities.
General damages for pain and suffering and loss of amenities
The plaintiff suffered a very painful injury to his left knee that would have caused considerable pain and discomfort for a period of time. He was hospitalised for 5 days, required the use of crutches for approximately three months and a walking stick for a period of one month. He also required the use of pain medication.
He appears to have suffered increased symptoms in early 2005 resulting in a referral to Dr Montgomery who removed some bony fragments from the left knee on 23 May 2005. This was day surgery and totally incapacitated the plaintiff for some two weeks.
He retains a significant loss of function which has a permanent impact upon his life. He continues to experience symptoms of pain and “locking” of the knee.
It is likely that his condition will deteriorate over time. Prior to the accident his past times included cycling, skateboarding and water skiing. He has given evidence that he can no longer undertake these activities. This is in line with the medical evidence.
He wished to pursue a career as a baker and enjoys cooking and baking as a hobby. The doctors agreed that he would not be able to continue in this employment because of the heavy lifting, squatting and standing. It is submitted that this is an occupation that he would have found personally rewarding and I accept this.
The defendant contends that the allowance for non-economic loss should reflect a serious initial injury and considerable incapacity for the first year but then good recovery leaving modest levels of incapacity and discomfort. It is my view that this understates the plaintiff’s injury and its effect.
The plaintiff’s entitlement to non-economic loss is governed by s24B of the Wrongs Act 1936. The plaintiff’s ability to lead a normal life was significantly impaired by the injury for a period of at least 7 days as required under s24(B)(i). I assign the numerical value 17 to the plaintiff’s total non-economic loss. The injury having occurred in 2003 this equates to an award of $27,600.
Loss of earning capacity (past and future economic loss and superannuation)
The plaintiff was totally incapacitated for work for a period of some four to five months following his injury. He was also totally incapacitated for some two weeks following the arthroscopy in May 2005.
Accordingly, the plaintiff has a past loss of earning capacity related to the left knee injury with some periods of complete incapacity for work and, at all other times, a partial incapacity for work. The question is whether that incapacity was productive of financial loss in the past and, if so, how that loss should be quantified.
The plaintiff was not working at the time of his injury. He was recovering from a psychotic episode that had caused him to be admitted to Glenside Hospital for a period of time in 2003. He was still recovering from his illness, and the underlying substance abuse problem that had caused his illness, at the time of the injury.
The state of the evidence is such that it is challenging to ascertain when the plaintiff would have sought and obtained employment leaving aside his left knee injury. What is clear is that he was unable to seek employment in the only fields for which he was trained namely that of baking and hospitality. It is further clear that he was delayed in his ability to seek employment by reason of his injury.
There is a medical note indicating the plaintiff may have secured some employment with Stratco shortly prior to the accident. However, both the plaintiff and his mother denied that this was the case.
The plaintiff appears to have received some assistance through Centrelink and the Commonwealth Rehabilitation Service to retrain, gain work experience and obtain employment. The dates of this assistance are unclear. He also appears to have acted, and been paid as, a carer for his mother at some stage following his injury. There is no information concerning the period over which this occurred, whether it was a full time or part time endeavour or the amount that the plaintiff was paid. In any event, the plaintiff eventually secured full time employment by his own endeavours as a courier driver from 1 December 2006. He remains in that form of employment albeit with a different employer. It appears, on the medical evidence, to be suitable employment.
The plaintiff did not file taxation returns for the financial years ended 30 June 2003, 2004, 2005 and 2006 as he did not undertake any paid work during those periods. His income prior to that, and in his present employment, is in the order of $500 per week net. It seems to be agreed between the parties that this is not an unreasonable basis upon which to assess past economic loss. I agree.
Taking all of the evidence into account I consider that the plaintiff should receive an amount equivalent to 12 months loss of income for past loss of earning capacity. That equates to $26,000.00. Given the manner in which I have dealt with this issue I do not consider it appropriate to award interest in addition to this amount.
Future economic loss is also somewhat problematic. The plaintiff has a significant on-going incapacity affecting his earning capacity. It is likely to deteriorate over time. He may require some form of knee surgery when he reaches middle age. In addition, he had a pre-existing right knee condition that, whilst it did not prevent him working as a baker, caused him to exercise caution.
The plaintiff’s current employment as a courier appears as remunerative as his pre-injury employment as a baker based on the limited information available. If however he was to be precluded from this by reason of a deterioration of his knee condition or some other reason, he would experience difficulty in obtaining alternative suitable employment. According to a Cognitive Evaluation assessment by the Commonwealth Rehabilitation Service, he is a man with restricted employment options due to intellectual limitations. These options are now more limited by reason of his left knee condition.
Given the lack of available information, this is a necessarily rough and ready calculation.[21] As with the past economic loss calculation, I will base this calculation upon a net loss of $500 per week.
[21] Murray v Dawson (1996) 24 MVR 244
The plaintiff is presently 26 years of age. Having regard to the tables appearing in Luntz “Assessment of Damages” 4^th ed., this shows that for a discount rate of 5% the multiplier applicable to the plaintiff to age 65 is 886.80.[22] Applying the multiplier to a net loss of $500 per week yields a total amount of $443,400. I must then consider what percentage reduction the plaintiff’s disability will cause in relation to his earning capacity. There is again limited information concerning this issue. I find that it would be reasonable to attribute a 20% diminution in earning capacity to the plaintiff’s left knee condition. This yields an amount of $88,680.
[22] Discount rate in accordance with section 55 Civil Liability Act 1936 (as amended)
This calculation does not reflect a loss of superannuation. Rather than performing a direct arithmetical calculation of this, I will round up the calculation to $100,000 to include superannuation.
Voluntary services (past and future)
There is little, if any, evidence of ongoing regular or substantial assistance given to the plaintiff by his family. Given the nature of his injury and the fact that he was living at home with his mother and brother, I find it is likely that some assistance was provided to the plaintiff in the past. I also consider it likely that the plaintiff may require some assistance in the future in the event that he undergoes surgery for the left knee condition. I award $3,000. for voluntary services both past and future.
Past medical treatment
This has been agreed in the sum of $6,226.53.
Future medical treatment
The medical evidence is that the plaintiff may require future surgery if his knee condition worsens over time. There are two possibilities – osteotomy and total knee reconstruction. In addition, Dr Montgomery suggested that the plaintiff may require arthroscopic procedures from time to time to lessen symptoms over time.
The evidence as to the likelihood and cost of further procedures can be summarised as follows:
Dr Montgomery thought that a knee replacement “would border on the inevitable”[23]. The surgical fee would be in the order of $2,500. The standard knee prosthesis costs in the order of $10,000. He could not estimate the other costs associated with this surgery. He indicated that the surgical fee for an arthroscopy would be in the order of $1,300.
[23] Transcript [174]
Dr von der Borch thought that osteotomy was “somewhat unlikely”[24] but that there was a 60% chance he might need a total knee replacement[25]. The total cost of that surgery was in the order of $30 - $40,000. He did not express a view about the possibility of arthroscopies.
[24] Transcript [201]
[25] Transcript [215]
Dr Atkinson was not asked to express a view on these issues other than to comment upon what was involved in an osteotomy. In his report he indicated his opinion was that the plaintiff would remain with little degenerative progress for ten to twenty years although he understood the possibility of osteotomy. He thought joint replacement surgery “may be possible as well”. He did not indicate a likelihood of arthroscopy nor did he provide costing for the various forms of treatment.
Given the nature of the plaintiff’s condition it is also likely that he will require occasional medical review by his general practitioner and treating specialist together with radiological examinations, medication and physiotherapy.
In all the circumstances I assess the plaintiff’s damages for future medical expenses as $25,000.
Summary
General Damages for pain & suffering & loss of amenities     $ 27,600.00
Past economic loss inclusive of interest  $ 26,000.00
Future economic loss inclusive of superannuation          $100,000.00
Voluntary assistance past and future  $    3,000.00
Past Special Damages  $    6,226.53
Future medical treatment  $ 25,000.00
Total of award  $187,826.53
I will hear the parties as to costs