Smith v O'Brien
[1988] TASSC 108
•10 November 1988
Serial No B40/1988
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Smith v O'Brien [1988] TASSC 108; B40/1988
PARTIES: SMITH, Murray Robert
v
O'BRIEN, Leon Rex
FILE NO/S: 2858/1981
DELIVERED ON: 10 November 1988
JUDGMENT OF: Wright J
Judgment Number: B40/1988
Number of paragraphs: 38
Serial No B40/1988
List "B"
File No 2858/1981
MURRAY ROBERT SMITH v LEON REX O'BRIEN
REASONS FOR JUDGMENT WRIGHT J
10 November 1988
The plaintiff, who was a front seat passenger in a motor vehicle which ran off the Grass Tree Hill Road on the 7 December 1980, alleges that the accident was caused by the negligent driving of the defendant and claims damages for injuries which he sustained. There was little or no explanation for the fact that the case has taken nearly eight years to come to court, and it was fortunate indeed that the issue of liability resolved itself into little more than a formality by the conclusion of the trial.
The accident occurred on a Saturday at approximately 6.00 pm. During the course of the day the plaintiff, the defendant, a number of fellow employees, their employer Mr King and Mr Tilley and employees of his business firm attended a social cricket match at Campania. During the match and at lunch time liquor was consumed, but there is no evidence that the plaintiff was significantly affected by liquor. However the defendant, unlike the plaintiff, did not participate in the game, although he was in attendance at the ground during at least the latter part of the day. There is no direct evidence that he was showing the effects of alcohol at the cricket ground but, having regard to the way in which he drove his vehicle from the Campania oval to the point at which the collision occurred, there is little doubt in my mind that he was under the influence of liquor to some degree. The accident occurred when the defendant's Holden vehicle failed to take a sharp right hand corner about 12 kilometres from Campania. Before this he had been driving fast and had failed to heed requests by the plaintiff to slow down. His vehicle left the road and collided with a large tree growing by the side of the road near the apex of the corner. No other vehicle was involved in the accident and it is plain that, in the absence of conduct disentitling the plaintiff to succeed, his allegation that the defendant was driving negligently must be sustained.
The defence alleged that the plaintiff was guilty of contributory negligence in riding in a vehicle being driven by the defendant who was to the plaintiff's knowledge under the influence of intoxicating liquor, and whose ability to control the motor vehicle was impaired by intoxicating liquor. Alternatively, it was alleged that the plaintiff had allowed or permitted his judgment to be affected by alcohol prior to the collision so that he could not judge whether the defendant was fit to drive the vehicle or not.
On a similar basis the plea of volenti non fit injuria was raised, but there is no need to deal with these pleas in detail because they were not pursued except in cross–examination of the plaintiff and other witnesses called by him who were present at the cricket match. Such cross–examination completely failed to elicit any material which could sustain these pleas and I accordingly reject them.
The defence also raised the plea that the accident was caused by circumstances beyond the reasonable control of the defendant in that the collision occurred despite the use of all reasonable care on his behalf and was not caused by his negligence. As further and better particulars disclosed this plea was based on the proposition that the defendant lost control of his vehicle as a result of the presence of gravel and pebbles on the roadway a short distance from where the collision occurred. Presumably these particulars were intended to support the proposition that the vehicle skidded from the road, despite the exercise of due care by the defendant. The defendant did not give evidence and there is nothing in the case to suggest that there was any genuine substance to this plea; indeed it was formally abandoned by defence counsel.
The clear inference from the plaintiff's case is that the defendant was affected by liquor and, as a consequence, he drove at an excessive speed and otherwise failed to manage or control his motor vehicle so as to keep it on the road. It may also be inferred that he failed to brake or slow down in time to avoid a collision. In such circumstances a finding of negligence against the defendant is inevitable and one which I make without hesitation. I turn now to the question of damages.
The plaintiff was born on 9 October 1960 and was 28 years of age at the date of trial. He attended school to the age of 15 and thereafter worked in numerous jobs. For some years immediately before the accident he was employed by King Towbars and Trailers at Moonah. He was a keen and active sportsman who participated in ball games such as football and cricket and he had, prior to the accident, developed an interest in motor cycle sport.
The plaintiff gave evidence that during the course of his employment at King Towbars and Trailers his work entailed the lifting and assembling of heavy metal components used in the fabrication of horse floats, boat trailers, box trailers and the like. From time to time he also had to position and assemble heavy fibreglass mouldings. The plaintiff had no formal qualifications as a welder, but from experience he had developed into a competent tradesman and the salary paid to him reflected an allowance for this acquired skill. He played football socially, but his principal interest was centred around motor bikes. He raced competitively with his brother for one season in a motor cycle and side car and the plaintiff himself owned an off–road bike which he used from time to time for endurance races. Shortly prior to the accident he had paid a deposit to a local motor cycle dealer with a view to acquiring a road racing machine but, following the accident, this project was wisely abandoned and the deposit returned. In conjunction with this interest in motor cycles the plaintiff had developed mechanical skills. In addition he played squash, tennis and cricket on an irregular social basis. A fair inference from the evidence is that he had a natural sporting talent and showed above average ability in those activities which attracted his participation.
As a consequence of the accident the plaintiff sustained a severe crush fracture of his left ankle involving the articular surface of the joint and a fracture of the right ankle. In addition he had a fracture of the odontoid process of the neck, a fractured nose, damaged teeth and facial and bodily lacerations. Following lengthy convalescence and rehabilitation the plaintiff returned to work at King Towbars and Trailers, but he left there (in circumstances which will be discussed later) approximately 18 months ago and is now unemployed.
The plaintiff was not rendered unconscious by the accident and recalls being trapped in O'Brien's car with blood filling his eyes from a ragged laceration on his forehead. He was unable to move his feet and was in a substantial amount of pain. He was taken to hospital by ambulance approximately a hour and a quarter to an hour and a half after the accident. A number of photographs were taken of the plaintiff whilst he was in hospital and these very usefully illustrate some of the injuries from which he suffered. He had a long semi–circular laceration extending from just below the hairline on the right hand side down the forehead and into the right eye lid. This laceration has healed well but was still quite evident at the time of the trial. No evidence was called to suggest that it could be further cosmetically improved. In addition the plaintiff had two nearly parallel vertical lacerations over the left side of the forehead. The longer of these was in the shape of an inverted Y, extending from the left eye lid to the hair line. These scars are still apparent but not as obvious as the one on the right hand side. The photos also show a laceration just above the bridge of the nose between the eyebrows, but I did not observe residual scarring from this at the time of the trial. The lacerations on the forehead were sutured and apparently the plaintiff's recovery from these injuries was uneventful. There was no claim that his visual capacities were in any way affected.
It was originally suspected that he had sustained only a whiplash injury to the soft tissue of the neck, but after about ten days in hospital, during which the plaintiff was suffering from quite severe pain in the neck, further x–rays were done and a fracture of the odontoid process was discovered. As a consequence of this, holes were drilled on either side of the plaintiff's skull just above the ears and he was placed in a wishbone shaped calliper with weights attached to it to maintain his neck in traction. This procedure was undertaken with a local anaesthetic only and, not surprisingly, caused the plaintiff a substantial amount of apprehension and concern. To keep the plaintiff immobile while the fracture re–united he was kept on a rotor bed which was rotated from time to time to allow him to eat. He had to be assisted in attending to ablutions and in the performance of all toilet functions. The day after the accident his injured ankles were operated on and then immobilised in plaster for three months, during which time he had a measure of pain in the ankles which gradually subsided.
His damaged teeth were not treated until May 1981 when it was found that he had sustained fractures of four posterior teeth, viz. the upper left first and second permanent molars, lower left second bicuspid and lower right first permanent molar. In addition the upper left central and lateral incisors sustained root fractures within the bone. The four posterior teeth were restored with amalgam fillings and the upper left lateral incisor was replaced initially by a partial denture and later on by a fixed bridge. The fractured central incisor has been retained and has been trouble free until now, although there is some doubt as to its future viability.
The plaintiff remained on his rotor bed in hospital for a period of approximately six weeks. During this time he contracted a staph infection and to prevent his infecting other patients he was removed to an isolation ward. When he eventually left the rotor bed, because of the continuing risk of staph infection he was not permitted to go to the plaster room and instead a plaster jacket encasing his head, neck, shoulders and torso was fitted in his hospital room. This "Minerva" jacket as it is known remained in place for six to seven weeks and the plaintiff found it exquisitely uncomfortable. It was very hot, it smelt because obviously the plaintiff could not wash underneath it and his hair which was regrowing beneath it became very scaly and itchy. The plaintiff found it extremely difficult to get about, particularly as his ankles were also still encased in plaster and he was hampered in his toileting requirements. He was released from hospital wearing the "Minerva" jacket and with a pair of crutches. The plaster was not removed from the plaintiff's ankles until about three months after the accident and for the next two months whilst he was regaining mobility and the capacity to bear weight again on his ankles he found that they were very painful indeed. He said "It was bad pain. It was very hard. ..... when I started out it had me crying it was hurting that much." During this time the plaintiff was attending the Douglas Parker Centre for physiotherapy, which included swimming. When the plaintiff's "Minerva" plaster was removed his neck was placed in a hard collar. He wore this for approximately six weeks and it was then replaced with a series of soft collars. The hard collar had been worn on all occasions except whilst he was asleep.
In June or July 1981 the plaintiff was certified fit to return to work. When he resumed his employment, perhaps not surprisingly, the plaintiff said that he felt very insecure as a result of the combined effect of the neck and leg injuries. He experienced pain down the back of the neck and, as a result of complaints to the foreman, he was referred again for medical examination after a few days. As a result of x–ray investigations then undertaken it was found that the odontoid process had not re–united and in effect the neck was still broken. The plaintiff was re–admitted to the Royal Hobart Hospital and Mr Turner, an orthopaedic surgeon, performed a procedure to fuse the damaged bone. As part of this procedure bone was removed from the plaintiff's lower pelvic region and fused into the neck. The plaintiff retains a scar on the nape of his neck and at the base of his spine from these two associated operations. Once again the plaintiff was unfortunate enough to contract a staph infection and as a result ended up staying in hospital for six weeks. When he was released he had to wear a series of collars to keep his neck stable during convalescence. During his stay in hospital he was catheterised which in itself was a painful procedure. He also experienced pain extending over several days from the bone donor site.
The plaintiff returned to the Douglas Parker Centre for further physiotherapy and he was there "off and on" for about two months. During this time he experienced pain in the neck as he exercised to get the muscles mobile again. He also experienced headaches. These diminished over a period of about six months, but at first they were quite severe. The plaintiff estimates that he has now regained close to 70% of movement in his neck and he does not claim that any present headaches arise from the accident.
As confirmed by the evidence of Mr Howard Bye, the fracture of the plaintiff's neck was a serious injury which could have proved fatal and, not surprisingly, as a result of the original mis–diagnosis and initial treatment during which the neck failed to re–unite followed by the subsequent operative procedures the plaintiff was, and I think still is, very apprehensive about occasioning any further injury to this part of his body.
The plaintiff returned to work again at King Towbars and Trailers in January 1982. At first he returned to normal duties, but almost immediately encountered trouble. He found he was unable to lift heavy components as he had before. Such tasks tended to hurt his ankles, particularly his left ankle and this problem tended to be magnified if he was walking on uneven ground. Sometimes the ankle would "give way on me". He spoke to Mr Ralph King, his employer, about this problem and Mr King agreed that someone else should do this part of the plaintiff's job. Nonetheless the plaintiff felt that he was not pulling his weight and rather than improving he found that his left ankle continued to become more troublesome. He also found that if required to work overhead whilst underneath vehicles, for example in fitting tow bars, his neck injury caused difficulty and pain. The pain radiated down the back of the neck and into the shoulders. This problem has persisted to the present day. The pain can be alleviated by the plaintiff ceasing the job, standing up and rubbing his neck. To accommodate the plaintiff's persisting problems he was put on to the task of building campervans which are constructed of much lighter material, including plywood and aluminium. Thereafter, apart from tasks involving work underneath such units he was able to cope with his job quite satisfactorily.
In July of 1982 he had a brief sojourn at St Helen's Hospital when pins were removed from his ankle. He was in hospital for three or four days and off work for a period of two or three weeks altogether.
The plaintiff is somewhat embarrassed by the scars on his face and neck and gets as he says "a little bit sick" of people asking him about them. He also says that the scars on the forehead tend to redden in really cold weather. He finds that he has crepitus in the neck when he turns his head and he finds that he has a natural guarding stance against turning the neck excessively. The plaintiff has commenced playing indoor cricket and is a member of a team participating in a roster. From the description given this is obviously a game requiring intermittent strenuous activity. Although the plaintiff obviously enjoys the game he finds that he pays for his participation by pain in the back of the neck from time to time. However this pain is not of long duration.
Whilst convalescing in hospital immediately after the accident, the plaintiff lost about a stone in weight but has now regained his normal weight of about 8½ stone. The plaintiff still has surgical scars on the ankles, but these are no longer very obvious. As far as his right ankle is concerned pain is sometimes induced in the joint by pushing his foot forward and putting excessive weight on the forward part of the foot. This however is neither frequent nor severe. His main source of difficulty is the left ankle. Walking even moderate distances will cause nagging pain in the ankle joint. This is particularly evident when walking over uneven ground. He also finds that the ankle itself requires "forcing" to make it move freely. The plaintiff said "The pain in the ankle itself can be very bad. It's pain that is hard to put up with sometimes." He has discussed with Mr Howard Bye the possibility of an arthrodesis of the ankle joint to alleviate the pain, but has made no firm decision to undertake the procedure. Following resumption of work at King Towbars and Trailers after the removal of the pins the plaintiff still found trouble with heavy work. He said that he found "It was just hard to work. It was different. Hard because it was hurting me. It was hurting my ankles. In some cases it was hurting my neck. In other cases it wasn't enjoyable to work." He said the ankle feels unstable and feels like giving way and still aches when walking on uneven ground.
The plaintiff said that in addition to the sporting activities already described he used to go shooting prior to the accident about once per month in the Bothwell area. He has been once or twice since, but he has not found it very enjoyable because of the trouble experienced with his ankles. He no longer rides motor cycles competitively as he does not feel comfortable and, wisely it seems to me, he is not prepared to incur the added risk of injury whilst he suffers from his present disabilities. He has tried to play squash again on one occasion about two years ago but found that it hurt his ankles too much. He has also found that kicking a football places excessive strain upon the ankles.
He estimates that whilst working with King Towbars and Trailers after the accident he was probably working to about three quarters his previous capacity. He said, however, that he had intended staying at King's for as long as he could, but claims that his employment was terminated when he was sacked following an argument with Mr King. This argument was in no way related to his injuries, but arose over a specific job that he had done in relation to a campervan. Mr King told the story of this incident somewhat differently from the plaintiff but on either version it appears that the argument had nothing to do with the plaintiff's physical capacities, and his dismissal stemmed from offensive language that the plaintiff used to Mr King in the course of the altercation. Whether he was actually dismissed or voluntarily resigned is of little consequence in the overall picture. However, as a consequence of that incident he has not worked with King's or indeed anywhere else, except on rare and isolated occasions, since 6 August 1986. He says that he has tried to get other employment since leaving King's, but without success and although, it is plain from Mr King's attitude both before and since that altercation, that he would re–engage the plaintiff if he chose to come back to work, the plaintiff has made a conscious decision not to seek re–employment with Mr King. This is a factor which weighs heavily with me in my calculation of the plaintiff's future economic loss because, although I am quite satisfied that he is now restricted in the employment he can undertake as a result of his disabilities, principally those arising from his left ankle injury, I am quite satisfied that he could resume employment with Mr King, at least during the period that Mr King remains in charge of that business, at a wage comparable with the wage which he would have been receiving had he not sustained the injuries.
Apart from working a couple of days with a friend assisting him to fix plaster sheeting and assisting his brother to paint the underside of a boat the plaintiff has had no employment since August 1986. He gave details of other work that he had been looking for and these efforts appear to have been both genuine and unproductive, although perhaps somewhat perfunctory. He has not looked for heavy labouring work, nor is it reasonable to think that he should do so. Whilst he could do welding work it is noteworthy that he is not a qualified tradesman, although, as I understand it, he could secure a certificate of proficiency which would possibly assist him in searching for work in this area. In June of 1988 the plaintiff went to the Wilson Training Centre at Sandy Bay where he undertook a course, the exact nature of which was not fully described but which I infer involved rehabilitative therapy to improve the use and function of both ankles. The plaintiff expressed the hope that he may be able to do general gardening and landscaping work, but the evidence he gave did not suggest to me that he had acquired any specific skills in this area or that his hopes of employment were likely to meet with outstanding success.
During the course of cross–examination it was put to the plaintiff that he had been coping well with his job over the 4½ years following the accident whilst he was re–employed at King Towbars and Trailers. The plaintiff suggested that he was simply putting up with the job, but I infer that he really was coping quite satisfactorily until his altercation with Mr. King. That is not to say that he was not affected by pain or that his productivity was as good as before. The plaintiff was also challenged as to his claim that he would like to get work as a driver. He agreed that he had lost his licence on several occasions for drink driving offences and driving while disqualified. I do not intend to review those offences in detail, but it is plain that with his driving record he would not be an attractive prospect to an employer and I think it unrealistic for him to expect work in this area. The plaintiff was also shown a video tape which depicted him working vigorously mowing the lawn on a piece of sloping ground at Lumeah Street, Lenah Valley, in November 1983. The plaintiff was moving without apparent impairment mowing a moderate sized lawn. He did not claim to remember the specific incident, but said that he had mowed lawns several times since the accident and whilst he was not prevented from doing so by his disabilities he suffered pain in the ankles after any such exertion. The plaintiff agreed with defence counsel that the injuries he had sustained in the accident were not the reason for his failure to get work over the last 18 months, but that this was due essentially to the strong competition from other job seekers in this type of employment.
The plaintiff claimed that since the accident he has needed to wear high lace up boots to give his ankles proper support and that these were more expensive than ordinary slip on type boots. He claims as an item of damage the difference in cost between these different types of footwear, but there is really no basis upon which I can make a comparison of the cost, either in terms of the initial purchase price or the longevity of the two types of boot.
Katrina Goward, the plaintiff's de facto wife, gave evidence that she has known the plaintiff since they were children together. They started living together as man and wife in 1983. She gave evidence confirming the nature and extent of the plaintiff's current disabilities. In particular she said that he limps from time to time, that he rubs his ankles a lot and that they have a tendency to bruise on the application of minor trauma. She also said that his feet were sensitive to touch and that he is also wary of trauma to his neck. The plaintiff's father and mother also gave evidence confirming his evidence regarding his time in hospital and subsequent convalescence. They also confirmed his pre–accident interests and activities and his disabilities thereafter. They also suggested that the plaintiff has become more irritable since the accident, but their evidence did not go so far as to suggest that he has suffered any severe personality change as a consequence.
Mr Turner who had performed the orthopaedic surgical procedures upon the plaintiff, both at the Royal Hobart Hospital and St Helen's Hospital, was not called to give evidence on his former patient's behalf. However, evidence was given by Mr Howard Bye who examined the plaintiff at the request of his solicitors in October 1983. Mr Bye said that at that time the plaintiff appeared to have recovered well from his injuries and was walking and at work and "behaving like a normal human being". The plaintiff's main complaint was in relation to the left ankle. He noticed that the plaintiff lacked confidence in his neck, but that he had about three quarters of the normal range of movement in the neck. He demonstrated pain in the left back part of the head when the head was turned to the left. He found the right ankle had virtually normal movements. As to the left ankle he found evidence of surgical scars and also a traumatic scar which had apparently resulted from a compound fracture at the time of the accident. Mr Bye found roughness or crepitus when moving the left ankle and the range of movement was about 75% of normal, producing pain at the extremities of movement. He said that the x–rays showed that the enamel articular cartilage overlying the bones forming the ankle joint had been damaged or roughened in some way as a consequence of the injury. Although the fractures of the ankle were well healed, there was some mal–alignment in the joint leading to unequal weight distribution as he walked.
Mr Bye said that taking into account the nature of the plaintiff's job as he understood it and the plaintiff's size and weight he thought at that time that he should have been able to cope with that work. He said that if the plaintiff were to put on more weight or he were to carry heavy loads he would expect extra stresses on the left ankle to create additional problem. He explained the giving way of the ankle, complained of by the plaintiff, on the basis that if he walks somewhat awkwardly, within the joint itself the two rough surfaces rub against each other and produce pain. This pain is registered by the muscles which respond by giving way. Mr. Bye assessed the plaintiff's degree of impairment of the left leg as 15%. He also considered the possibility of an arthrodesis, but did not regard that as probable at that stage. He assessed the plaintiff as being well capable of performing the sort of work that he was employed to do at King Towbars and Trailers.
Mr Bye saw him again on the 9 May 1985. The plaintiff complained of an episode of increased pain in his left ankle and, although Mr Bye was disappointed that his progress had not been better, he did not see any need for additional treatment at that stage but did recommend that the plaintiff wear high lace up boots. He questioned the plaintiff about his neck and he said the plaintiff was "delighted with it". He said that the plaintiff was generally very happy with his neck and neither the neck nor the right ankle were a bother to him. His prognosis for both the neck and the ankle were good. On this occasion, when testing the left ankle, he found that he had 90% of normal movement but there was still a crepitus or grinding within the joint and discomfort at the extremes of movement. Mr Bye saw him yet again in June 1988 and re–examined the left ankle. On this occasion he said "I found that he had only about half the range of movement then with slightly more of the grinding than I noticed earlier". He also said "Previously I thought that arthrodesis was a possibility, I would feel that now arthrodesis is more likely a probability". Mr Bye regarded the prospect of arthrodesis quite favourably, saying:
"I would feel that functionally it is one of those operations that I regard fairly warmly in that I don't like doing the operation. It's a big – it's a bloody operation. It's not aesthetically pleasing but functionally most patients have it done for the right reasons and are very happy with it because they have lost the pain and they have a good power. So I would feel that his job opportunities, if he were able to get past the bias of an employer, his job opportunities would probably be better if he had an ankle arthrodesis because he'd be stronger and be able to do a bit more."
He also said:
"I think he will have far more opportunity for heavier work than he has at the moment and it wouldn't surprise me if he were able to do just about anything if the ankle arthrodesis went well. Good position, healed up, some 18 months after that. It wouldn't surprise me to hear that he is working in the bush or working as a private plumber's labourer. I mean that is – I feel that way about an ankle arthrodesis."
I asked Mr Bye whether or not an arthrodesis would produce a limp and he said "You would have a discernable limp. Perhaps the lay person wouldn't recognise it as a deformity limp, whereas perhaps an orthopaedic surgeon might. But it would be a very minor limp which I don't think would place extra stresses on other parts of the body." He also said that following an arthrodesis running would be quite difficult but not impossible, although the running gait would be ungainly. He said also that he would not like to think of anyone with an arthrodesis constantly working on ladders, although a certain amount of ladder climbing should not be beyond his capability. No other medical evidence was called in the course of the trial and I accept and rely upon the opinions and prognostications pronounced by Mr Bye and reproduced in the foregoing passages.
The plaintiff's former employer, Mr Ralph King, also gave evidence and it is fair and appropriate to say at the outset that he impressed me as a considerate and kindly employer who had initially taken the plaintiff into his employment because of his long standing friendship with the plaintiff's father, and also partly because he was able to perceive the plaintiff's suitability for the sort of work required in that occupation. Mr King has conducted his present business for some 33 years. His organisation employs a substantial number of men and he is obviously used to dealing with and assessing the capacity of his employees. Whilst he was plainly disposed to assist the plaintiff's case if he could, I do not think that his evidence was consciously distorted as a consequence and I am also of opinion that he was able to present me with a shrewd assessment of the plaintiff's capacities and character, both before and since the accident. Speaking of the period before the accident he said:
"Murray was a very good employee. He was a bright and intelligent young fellow in that with every job we gave him he was able to do and he got on very well, very willingly. Murray is quite a pleasure to have around and always had been of course too. ...... He was doing all the same sort of work that the tradesmen would have done and quite often was showing people how to do the job, he was pretty much of a leader both in his private life and at the works. The other tradesmen would ask Murray about various aspects of the job. He had good leadership qualities."
Mr King said that he had found that people who had worked for a long time in his factory had better leadership potential than others and, although it would have been necessary to wait for a few years before placing the plaintiff in any leadership role, he had expectations that the plaintiff would have worked himself up to leading hand status in time. He said that the plaintiff was a quick and enthusiastic worker.
Mr King recalled the plaintiff coming back to work before the neck operation in 1981 and again the following year once he had recuperated from that procedure. Mr. King confirmed that he had then put him in the caravan division because the work was lighter than in the engineering shop. He found that the plaintiff had continuing difficulty with the job, particularly descending ladders or stairs. He said "Murray would get around the place a bit like a robot because his legs and neck just weren't the way they ought to be. There were some days he was considerably worse than others." He said that he was "not the bright young fellow" that he had been in the past and he was obviously having problems and aches and pains and he was not as approachable as he had been in previous years. He said, further, that the plaintiff was "nowhere near as good as he'd been earlier on. I suppose his effectiveness was probably about 70%. Something like that you know." He said that he noticed that he stayed away from work frequently in cold weather and, if he did come to work on cold days, he observed that he moved around very poorly – he was "hobbling" and very slow. The plaintiff's wages were not affected however and he was paid just a little below a tradesman's rate. Mr King said "He did the job of a tradesman but you can't pay the same rate because of pecking order in factories. The tradesmen would resent someone without a ticket getting the same figures but he wasn't far below."
Mr King was asked as to his intention regarding the plaintiff's continued employment with the company after the accident. He said "Well that would have had some reflection on what Murray wanted to do I suppose but we couldn't have continued to keep him on for ever in the carpentry side of things. And in fact at one stage there we did in fact phase that down. There was only one man in that area." He said that the plaintiff did not appear to be getting better and had he not improved he would not have been able to keep him on.
In light of the plaintiff's prior employment history and Mr King's general attitude I find this a very difficult assessment to accept. My firm belief is that so long as the plaintiff continued doing the work allocated to him to the best of his ability and did not seriously decline in his work capacity, and provided also that he demonstrated a continuing respect for his employer's position, his job would have been available to him indefinitely. On the other hand I accept that because of his change in temperament and reduced physical capacity the plaintiff would not have been regarded any longer by Mr King as leading hand material.
I have reviewed in some detail the evidence bearing upon the plaintiff's claim for damages. In relation to pain and suffering it is quite plain that he had a protracted and uncomfortable convalescence following the accident. It is also clear that the injuries themselves, particularly the neck injury, were a source of substantial anxiety and concern to the plaintiff. The neck and ankle injuries combined to almost totally incapacitate him for several months. He had to undergo subsequent operative procedures to stabilise the neck and to remove metal fastenings from the injured left ankle. I am satisfied that the plaintiff did not seek to exaggerate the pain or the related disabilities flowing from his injuries. He will probably undergo an arthrodesis operation in future and this in turn will alleviate the greater part of the residual pain in the left ankle. On the other hand his ankle will be immobilised and it will be incapacitated in a mechanical sense to a somewhat greater extent than it is at the moment. Unfortunately the plaintiff was not examined in detail as to his own attitude towards the arthrodesis, nor was he asked if and when he is likely to have it carried out. In these circumstances it is somewhat speculative to foretell when it is likely to be performed and for this reason the whole estimated cost of the procedure and the plaintiff's disablement for a period of 18 months thereafter should not be allowed as though they were absolute certainties and thus capable of precise arithmetical calculation. Future costs must always be discounted for present payment – see Hill v Temple, FC, 4188, p7. A similar comment may be made in respect of future dental expenses claimed by the plaintiff at $2,205. These expenses may or may not be incurred depending upon the possible deterioration of the plaintiff's present dental work.
In my opinion the plaintiff's future economic loss attributable to the accident cannot properly be assessed by a process of mathematical calculation. The plaintiff is far from totally and permanently disabled. His welding skills and capacities are not impaired. There is much work that he can still do and he is likely to improve further if and when the arthrodesis is done. Calculations were presented to me comparing his expected earnings at King's with his potential earnings as a landscape gardener extrapolated over a period representing the remainder of the plaintiff's working life. Helpful though these figures are, I think they tend to understate the plaintiff's position to some extent. In my opinion this is a case where a broad brush approach should be adopted. There are a number of contingencies and variables that must be borne in mind. Some of these are favourable to the plaintiff and some are unfavourable. I have adverted to most of these in the course of these reasons. I assess the plaintiff's damages as follows:
1Griffiths v Kerkemeyer component
(admitted) $1,000.00
220% of wages whilst initially
incapacitated (admitted) 1,482.75
3 Pain, suffering and loss of amenities 30,000.00
4Allowance for possible future dental
expenses and arthrodesis operation 7,500.00
5Economic loss (including allowance for
convalescence after arthrodesis) 75,000.00
Total $114,982.75
Accordingly there will be judgment for the plaintiff for $114,982.75, plus costs to be taxed.
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