TABITHA Schollum v Australian Capital Territory - [2012] ACTSC 58

TABITHA SCHOLLUM v AUSTRALIAN CAPITAL TERRITORY & anor

[2012] ACTSC 58 (13 April 2012)

DAMAGES – personal injury – medical negligence – six-year-old girl – fractured radius and ulna – inappropriate treatment resulting in fracture uniting at unnatural angle – plaintiff requiring surgery to correct deformity, and subsequent surgery to remove plates and screws – permanent scarring – general damages $70,000.00, total award $97,596.90.

MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657

EX TEMPORE JUDGMENT

No. SC 258 of 2007

Judge: Master Harper
Supreme Court of the ACT

Date: 13 April 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 258 of 2007
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:TABITHA SCHOLLUM
Plaintiff

AND:AUSTRALIAN CAPITAL TERRITORY
First Defendant

AND:JOHN KELLETT
Second Defendant

ORDER

Judge:  Master Harper
Date:  13 April 2012
Place:  Canberra

THE COURT ORDERS THAT:

judgment be entered for the plaintiff against the defendants for $97, 596.90.
the defendants pay the plaintiff’s costs.
the defendants pay the judgment sum into court.
$9,925.80 be paid from the moneys paid into court to the solicitors for the plaintiff for payment out to the plaintiff’s litigation guardian.
the balance of the moneys paid into court be paid to the public trustee for investment on behalf of the infant plaintiff.
the parties have liberty to apply in relation to costs.

The plaintiff was born on 6 December 1997. She was almost six when she suffered the injury which gave rise to these proceedings. She is now fourteen and in year 8 at school.
On 15 December 2003 she fell from a swivel chair at home and fractured her left radius and ulna. Six months earlier she had fractured her right radius and ulna in an incident on a trampoline. The earlier fracture had been treated at Canberra Hospital by closed reduction under general anaesthetic. The plaintiff had made an uneventful and apparently complete recovery.
After her fall in December 2003 she was taken by her parents to Canberra Hospital. She was seen by a resident doctor who ordered X-rays. He treated the fracture by placing her left arm in what was described as a long-arm plaster back slab.
The resident advised the plaintiff’s parents to take her to her family doctor or to an orthopaedic surgeon. The instructions were somewhat unclear. It was close to Christmas and the parents found that there was no orthopaedic specialist immediately available.
They made an appointment with the second defendant, Dr Kellett, who is a sports medicine practitioner. Dr Kellett saw her four days after her injury. He replaced the slab with a waterproof cast. He reviewed her on 30 January 2004. In the meantime the plaintiff had been away during the school holiday period with her parents. It would have appeared to her and her parents that the fracture was recovering in the normal way.
When Dr Kellett saw her on 30 January he ordered a further X-ray. This revealed that the forearm had set in such a way that the radius at the fracture site had a 30° angle, causing a deformed appearance to the forearm, described in the plaintiff’s case as a banana arm.
Dr Kellett referred the plaintiff to Dr Chris Roberts, an experienced orthopaedic surgeon specialising in hand and wrist surgery. The defendants were initially separately represented in these proceedings. Before trial negligence was admitted on behalf of both defendants. The defendants, whilst retaining separate solicitors, were represented by the same counsel at trial. It is agreed that I may make a single award of damages against both defendants.
Dr Roberts saw the plaintiff on 9 February 2004 for the first time. He noted that the fractures were well healed but in a deformed position. There was no complaint of pain. Dr Roberts had a lengthy discussion with the plaintiff and her parents. He recommended that she undergo surgery to correct the deformity, in the form of an osteotomy under general anaesthetic. His recommendation was that the operation should be carried out within one or two weeks.
Within a day or so the parents decided that the recommendation was the best course for the plaintiff. On 18 February 2004 she was admitted to John James Memorial Hospital where Dr Roberts operated under general anaesthetic. The plaintiff stayed in hospital overnight. Her mother stayed with her.
In the course of the operation two long incisions were made to her forearm. Screws and plates were inserted to stabilise the fractures. The surgery was successful. It is common ground between the parties that the fracture should have been treated initially by closed reduction under general anaesthetic, in the same way that the fracture to the plaintiff’s right arm had been treated six months earlier, and that if it had been a similar outcome would have followed. The plaintiff is thus not entitled to damages for the initial fracture, but only for the consequences of the negligent diagnosis and treatment.
I am not satisfied that the negligence of the defendants caused any compensable damage prior to the surgery on 18 February 2004. I take account of the fact that the proper initial treatment would have involved the administration of a general anaesthetic and probably a night in hospital.
The plaintiff found the anaesthetic extremely unpleasant. After her operation she was in considerable pain for some time. Fortunately, she recovered reasonably quickly. She was able to go back to school after a few days, subject to some restrictions on her physical activities. Her arm was in a cast for about six weeks. Dr Roberts then removed her stitches, which she found a painful and unpleasant experience.
She saw Dr Roberts on four occasions over the ensuing months. In September 2004 she was readmitted to John James Memorial Hospital for surgery to remove the plates and screws. She was very reluctant to undergo this further operation. She had found the anaesthetic very unpleasant and the procedure extremely stressful, as well as painful after the event, but the parents and the plaintiff decided that the procedure for the removal of the hardware was in her best interests.
Dr Roberts operated again under general anaesthetic. He made incisions along the lines of the existing scars resulting from his earlier surgery. Again the operation was successful, and the plaintiff soon returned to school and to normal activities.
For about a year after this second operation she had noticeable muscle wasting in the left arm, and the scars were very obvious. Dr Roberts expressed some concern that the plaintiff might be left with a slightly shortened ulna, but he no longer sees this as anything more than an incidental finding which may not even be a consequence of the fracture.
The plaintiff now has no pain or restriction of movement in the right arm. She has been left with two scars, one 12 centimetres in length and the other 13 centimetres, running the length of her forearm on opposite sides of the arm, one on top and one underneath. The scars are obvious but not disfiguring.
They are reasonably pale and without much contrast to the surrounding skin colour. They are not significantly raised above the skin surface. Nevertheless they represent a moderate and noticeable permanent reminder of the surgical procedures and an alteration to the plaintiff’s natural looks.
She is an attractive girl in her early teenage years. The scarring is likely to be a factor, perhaps mainly in her own mind, as she grows up and relates to her friends and contemporaries.
Her parents took her to see a plastic surgeon when she was twelve to advise as to whether the scars could be revised for a better cosmetic effect. The plastic surgeon noted that the plaintiff was not particularly motivated to undergo such surgery at that time. I take account of the fact that she might decide to proceed with plastic surgery of a cosmetic nature when she is older. The plaintiff gave oral evidence, and I had the opportunity to inspect the scarring to her arm in chambers. Her parents also gave evidence. She is fortunate to be part of an admirable and enviable family of five. She has two younger brothers.
Both defendants are to be commended for their decision to admit liability and to join in briefing a single counsel. This considerably reduced the cost of the hearing and the stress for the plaintiff and her parents.
I come to the assessment of damages. In relation to general damages for pain and suffering, loss of enjoyment of life and scarring, counsel for the defendants submitted that I should award no more than $30,000.00, whereas senior counsel for the plaintiff submitted that the injuries justified an award of the order of $100,000.00.
The plaintiff has been subjected to what should have been unnecessary surgery and hospitalisation, with consequent pain and interference with her normal life. Fortunately the surgery has been successful, but it has left her with obvious scarring to the forearm.
I remind myself that the assessment of general damages is not a formulaic exercise, but a reflection of community standards and expectations. Whilst there is in theory no upper limit to such an award, the legislature of the State of New South Wales has imposed a ceiling for injury claims arising out of motor vehicle accidents, presently $450,000.00, which must be taken to be seen by the New South Wales Parliament as something less than the amount which a court might award at common law for a most extreme case. I take account of that by way of analogy.
On consideration I have arrived at a figure of $70,000.00 as appropriate to compensate the plaintiff for pain and suffering, interference with her enjoyment of life and permanent impairment of her bodily integrity. Having regard to the plaintiff’s age and life expectancy I apportion that sum as to $25,000.00 for the past and $45,000.00 for the future. The past component attracts interest at the rate applicable pursuant to authority of 4% per annum: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657. Most of the pain and suffering was suffered in the first year after the injury. I allow $6,000.00 for interest.
Past treatment expenses are agreed at $10,133.90. The plaintiff’s parents have paid most of this. They had paid some $7,200.00 by late 2004. Since then they have paid a further $1,750.00 at what I take to have been a relatively even rate over the period. Interest on $7,200.00 at 9% over 7½ years comes to $4,860.00. Interest on $1,750.00 at 9% over the same period divided by 2 comes to $590.00. The balance of the expenses has been paid by Medicare and does not attract interest.
The plaintiff’s parents have incurred expenses for travel in connection with her treatment which is agreed to have cost them $963.00. That sum attracts interest at 9% over the same period. To reflect the periods of time when that expense was incurred I apply a factor of 70% and allow interest of $450.00.
There is a claim for future treatment and related out-of-pocket expenses which, on my findings, can reflect only the possibility that the plaintiff may elect for surgical scar revision at some time in the future. It is agreed that the present cost of such treatment in all would be approximately $5,000.00. That amount must be discounted for the future and reduced for the likelihood that the plaintiff may never decide to have it. For future treatment and related expenses I allow $1,000.00
If the plaintiff does decide to have the surgery she is likely to lose some income. Applying the same discounting factors I allow $100.00 for loss of earning capacity for the future.
The plaintiff makes a claim for the commercial value of the care she has received. This component of the claim is almost never capable of mathematical calculation despite the best endeavours of solicitors and counsel for plaintiffs. Undoubtedly the parents spent time attending to the plaintiff’s needs related to her early treatment, including surgery, reflecting her incapacity to look after herself as a six-year-old, and they spent time taking her to appointments with doctors. In the absence of evidence as to the commercial cost of such care I propose to allow the conventional commercial rate of $21.00 an hour.
The solicitors for the plaintiff filed a statement of particulars claiming that the parents had spent 2,311 hours in such activities. It seems to me that that claim was grossly inflated. Solicitors and parties or parents who provide particulars which are patently unsustainable run the risk of alienating those whose task it is to assess damages.
I propose to allow 100 hours in all at $21.00 an hour: that is $2,100.00. That figure attracts interest of 9%. Virtually all of that care was provided during the period up to late 2004, some 7½ years ago. I allow interest which I round to $1,400.00. I am not satisfied on the evidence that any allowance is justified for future care: senior counsel for the plaintiff did not seek such a component in his closing submissions.
The individual components of the award are therefore: general damages $70,000.00, interest thereon $6,000.00, treatment expenses $10,133.90, interest thereon $5,450.00, travel $963.00, interest thereon $450.00, future treatment $1,000.00, loss of earning capacity for the future $100.00, Griffiths v Kerkemeyer component $2,100.00, interest thereon $1,400.00: a total of $97,596.90.
There will be judgment for the plaintiff for $97,596.90.
I order that the defendants pay the plaintiff’s costs.
I order that the amount of the judgment be paid into court and that out of the money so paid into court $9,925.80 be paid out to the solicitors for the plaintiff for payment to the litigation guardian.
I further order that the balance be paid to the Public Trustee for investment on behalf of the infant plaintiff.
I grant liberty to apply in relation to any differential between the costs reasonably chargeable by the plaintiff’s solicitors and the costs recovered from the defendant.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 13 April 2012

Counsel for the plaintiff:  Mr AJ Bartley SC & Ms LA Whalan
Solicitors for the plaintiff:  Ken Cush & Associates
Counsel for the defendant:  Mr SM Whybrow
Solicitors for the defendant:  ACT Government Solicitor
Date of hearing:  10, 11 April 2012
Date of judgment:  13 April 2012