Temple v Hill
[1987] TASSC 112
•15 October 1987
Serial No B42/1987
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Temple v Hill [1987] TASSC 112; B42/2012
PARTIES: TEMPLE, L V R
v
HILL, G R
FILE NO/S: 3369/1983
DELIVERED ON: 15 October 1987
JUDGMENT OF: Green CJ
Judgment Number: B42/1987
Number of paragraphs:
Serial No B42/1987
List "B"
File No 3369/1987
L V R TEMPLE v G R HILL
REASONS FOR JUDGMENT GREEN CJ
15 October 1987
The plaintiff claims damages for personal injuries suffered as a result of the defendant's negligence. Liability is admitted.
On 30 June 1983 the plaintiff was injured when his right leg was crushed between the bumper bars of a moving motor vehicle and a stationary motor vehicle. As a result the plaintiff suffered a compound comminuted fracture of the right tibia and fibula. He suffered severe pain before being admitted to hospital. He underwent surgery and was placed in plaster. Subsequently the lower part of the plaster was adjusted in relation to the upper part by a painful process called "wedging". Whilst in hospital the plaintiff's wound became infected and had to be treated by the opening of a window in the plaster. He was an inpatient for 22 days and then discharged on 22 July on elbow crutches. Whilst in hospital the pain was to some extent controlled by drugs and after about 14 days subsided, but did not disappear. The plaintiff was in a full length plaster for 18 weeks and then in a short plaster cast which commenced below the knee for another three weeks. He continued using crutches for another five to six weeks. He underwent physiotherapy at Huonville and then from March to August 1986 underwent an intensive course of physiotherapy and occupational therapy at the Douglas Parker Clinic. Upon the recommendation of Mr W B Law the plaintiff has since June 1984 worn one of two types of caliper which provide him with physical support and add to his confidence. It was not until about the end of 1984, or early in 1985 (18–20 months after the accident) that the plaintiff's capacity to use his leg improved to its present level.
For the following reasons I do not regard the plaintiff's evidence as reliable where it is not corroborated. He was evasive and prevaricated when giving evidence about a number of matters. He exaggerated his symptoms to Dr Pargiter and made material omissions when asked to describe his activities to him. He was evasive, or initially reluctant to be forthcoming about a number of issues, including the farm work he could so, the extent of his involvement in the work done at the Salad Bowl shop, the extent to which he has engaged in water carting work since the accident and his contract work with the Department of Main Roads. He exaggerated the extent to which he could be regarded as being on standby and the number of weekends upon which he did overtime with the Hobart City Council and in cross–examination he at first prevaricated about whether he had made a false statement in a claim for sickness benefit, then conceded the possibility that he had done so, but then, in re–examination, said that he "wouldn't say" that he had done so. He exaggerated the nature of the warning on the bottle containing analgesic tablets which he was taking, sometimes described as Codral Forte and sometimes as Fortral, when he said, "Yes, it says you're not to take these tablets whilst driving because they cause drowsiness whilst on these so it would be the same as driving under the influence of liquor". In fact the label on the bottle tendered by the plaintiff reads "this medicine may cause drowsiness and may increase the effects of alcohol. If affected do not drive motor vehicles or operate machinery" (my emphasis).
As a result of the original injury or the subsequent immobilisation of the limb, in addition to the fractures the plaintiff suffered scarring, loss of muscle bulk and, on the balance of probabilities, damage to the subcutaneous nerve endings, adhesions, poor venous return and a reduction in the elasticity of the ankle capsule or sleeve. I find that the plaintiff will always walk with a slight limp, that as a result of the damage to the veins his leg tends to swell after continuous activity or weight bearing for any length of time, that he has some loss of feeling or altered sensation in parts of his right foot and in the shin and calf below the fracture site and that he has a reduced capacity to move his right ankle and foot, but that this varies with the amount of swelling. The restriction in ankle movement makes it difficult for the plaintiff to kneel, squat, climb, walk on hills or uneven ground or use ladders and he is prone to losing his balance. The plaintiff is left with a permanent disability of the right leg of the order of 20 per cent. I find that the plaintiff has a perceptible reduction of muscular strength in his right leg, he is unstable on uneven ground or on a slope or on steps and he has a feeling of tightness in the area of the scarring and over a wider area when it is swollen. I find that the plaintiff suffers pain after prolonged activity involving his leg or ankle, especially when that activity involves movement of the foot which extends beyond the limits of the elasticity of the ankle capsule. I find that he sometimes suffers pain in cold weather. I find that on occasions the level of pain is such that the plaintiff needs to take a fairly strong analgesic. I am not satisfied that the plaintiff suffers constant pain.
I find that before the accident the plaintiff was an outgoing, cheerful man who did not worry. I find that he is still outgoing and cheerful at times but that as a result of his disabilities he experiences frustration which has made him more irritable and bad tempered than he was before the accident and on occasions has led him to tears. I find that he is not depressed but is, as a psychiatrist who examined him expressed it, "mourning" the reduction of his physical ability. I find that the plaintiff's relationships with his wife and others have been impaired as a result of his change in personality and outlook. I find that the three main causes of his changed personality and outlook are:
(a) the reduction in his financial independence;
(b) feelings of uselessness because he cannot work; and
(c) the limitations upon his physical capacity.
I find that an award of damages and a more determined effort on his part to find work within his capacity will help to overcome causes (a) and (b). I am satisfied that on the probabilities the plaintiff's emotional and mental state will improve, but that it is not probable that he will ever completely return to his pre–accident state. In assessing the significance and extent of the change in the plaintiff's personality I also take into account that in the following exchange the plaintiff does not appear to be suggesting that it is strong or obvious:
"Counsel:Mr Temple you haven't really changed all that much since the accident have you?
Plaintiff:Well I am told and I feel I have but, then again it's a matter of opinion".
I find that the plaintiff enjoyed hunting and fishing before the accident. I find that the plaintiff's disabilities have very greatly reduced his capacity to engage in these sports.
I find it most probable that as a result of the venous congestion caused by the injury there is a risk of ulceration in the leg. I find that it is highly probable that the plaintiff will have to undergo surgery entailing the grafting of skin within 8 years.
The evidence does not satisfy me that the need to ingest Codral Forte or Fortral has reduced or will reduce the plaintiff's capacity to drive or operate machinery. I refer to the observation I made earlier about the warning on the bottle. I have no evidence as to the accuracy of the assertion on the label, nor, if it is true, do I have any evidence which would enable me to find to what proportion of users it might apply. The plaintiff did not suggest that in fact the drug had caused drowsiness and Mr Law, whom the plaintiff claimed prescribed it, did not say that it would cause drowsiness.
In December 1986 Mr Law manipulated the plaintiff's ankle under a general anaesthetic. This operation involved manipulating the joint and stretching the adhesions and the capsule and injecting lubricating fluid into the joint. The operation resulted in a very substantial reduction of pain and an increase in the range of movement in the joint. After about three months the plaintiff began to revert to the condition he was in before the operation. I find that it would be desirable and reasonable for the plaintiff to have such an operation once or twice a year. The plaintiff should be compensated for the cost of those operations. However, I also take into account when assessing general damages that as a result of undergoing these operations the plaintiff's condition will be greatly improved for a substantial proportion of each year.
The plaintiff's wife provided services and assistance to the plaintiff for a period of about 5½ months after the plaintiff was released from hospital for which compensation should be paid.
I take into account the cosmetic disability represented by the unsightliness of the plaintiff's leg, but in doing so I have regard to the fact that he did not give evidence that he was concerned or self conscious about it although he is self conscious about his limp.
I turn to the question of the economic loss suffered by the plaintiff. The plaintiff has no formal qualifications and left school at the age of 14 years. He is a physically strong and able man. He has had wide working experience. He has worked as a general factory hand, driven taxis, bulldozers and other plant and trucks of all kinds. He has managed a sawmill employing thirty men, worked as a male nurse in training for 3½ years, been a driving instructor in the army, worked as a "general zinc hand" at the Electrolytic Zinc Company and engaged in farm work of all kinds. At the time of the accident the plaintiff was employed by the Hobart City Council as a labourer and handyman. He had a wide range of duties which involved, amongst other things, walking over and working in hilly and rough terrain, excavation work using a pick and shovel, fencing, using ladders, kneeling and squatting and using a jack hammer.
Prior to the accident the plaintiff also engaged in general contracting work in connection with sub–divisions and on farms. Prior to the accident the plaintiff, in partnership with his wife, also ran a small trucking business carting water, gravel, metal and other goods.
I am satisfied that the plaintiff is permanently unfit to resume his former employment with the Hobart City Council. I am satisfied that up to August 1985 at least there was no work available at the Hobart City Council which would have been within the plaintiff's capacity.
Although the plaintiff would be capable of occasionally driving heavy trucks and machinery for short periods, I accept Mr Law's opinion that the plaintiff is unable to do so on any sustained basis and that therefore employment as a heavy truck driver or plant operator is virtually denied to him. In the light of the physical restrictions that I have already outlined I accept Mr Law's estimate that the plaintiff has lost 75 per cent to 100 per cent of his capacity to work as a heavy labourer depending upon the nature of the work he was required to undertake. However, I find that the plaintiff is capable of driving motor vehicles, light vans and tractors for up to an hour at a time and that he would be able to drive a medium truck such as a water carting truck for periods of up to 30 minutes.
The plaintiff worked as a taxi driver for Sandy Bay Cabs from 11 August 1986 to 8 September 1986 and, intermittently, for Mr Miller an owner driver in City Cabs from December 1986 until about March 1987. Whilst with Sandy Bay Cabs the plaintiff earned $1,959.18 gross, of which, in accordance with prevailing practice in the trade, he was paid 45 per cent or $881.60. The plaintiff gave evidence that the reasons he ceased his employment with Sandy Bay Cabs were the same as those which applied to the cessation of his employment with City Cabs and those latter reasons he gave as being the pain the driving was causing and that he was abrupt with customers. He denied that he was dismissed. The plaintiff gave evidence that he started driving Mr Miller's cab on the evening shift as an "experiment" and to see whether it was a "feasible proposition". Why he needed to conduct such an experiment when he had already had experience driving with Sandy Bay Cabs has not been explained. The plaintiff said that his gross takings were about $50–$60 each shift. Mr Miller said that the takings varied and that the plaintiff's takings could have been as much as $80–$100 on some nights and as low as $20–$30 on other nights. Mr Miller paid the plaintiff the cost of the petrol he used to travel from his home to the city and a meal allowance but did not pay him any other remuneration.
There was some dispute in the evidence as to the hours worked by the plaintiff as a taxi driver. In part this arose because there was sometimes confusion or a failure to distinguish between the hours during which the plaintiff had charge of the taxi and the hours during which he was actually driving. I find that when he worked at Sandy Bay Cabs the plaintiff sometimes had the cab in his possession for the whole of an 11 or 12 hour shift but that he did not drive continuously during the whole shift. Mr Underwood, who was the manager of Sandy Bay Cabs during the last 11 days whilst the plaintiff worked there, gave evidence, which I accept, that he regarded the plaintiff as a good driver, that the plaintiff did not make complaints about his leg or suggest that he was finding driving difficult and that the plaintiff's employment ceased when Mr Underwood told him to "make his sheet up" which I conclude was tantamount to dismissal. I find that the plaintiff's takings whilst at Sandy Bay Cabs were comparable with those of the average driver for the first three weeks, but declined in the last week.
I find the evidence about the plaintiff's work with City Cabs does not provide a satisfactory guide to the plaintiff's capacity to work as a taxi driver. The evidence as to the hours during which the plaintiff actually drove was imprecise and neither the plaintiff nor Mr Miller kept records. The plaintiff's employment was not a businesslike arrangement but was an arrangement between friends whereby the plaintiff was paid a fixed amount irrespective of his takings and there was no incentive for the plaintiff to work to the limit of his capacity.
I find that the plaintiff is capable of driving taxis during a full 11 hour shift, but that he would not be able to drive continuously for more than about an hour during a shift. I find that during some shifts that would not disadvantage him at all, but that during busy shifts when continuous work was available for periods in excess of an hour his takings would be less than those of a driver without his disabilities. I find also that he would be disadvantaged to a limited extent by the difficulty he would encounter in helping disabled or elderly passengers or handling luggage. The plaintiff has not persuaded me that he could not be an owner/driver or a taxi. If he were, I infer that he would be better able to adapt his work load to his capacity and that his income would be greater than that of an employed driver.
The plaintiff's evidence as to the income which he earned from contracting work and truck driving before the accident and his evidence of the extent to which he has been able to do that sort of work since the accident was vague and unsatisfactory.
The plaintiff gave evidence that during the five years before the accident he carried out subdivision work at Tinderbox, Oyster Cove, Lower Longley and Kettering and that the profits derived from those projects were $5,000, $7,000 to $8,000, $6,000 to $7,000 and $3,000 to $4,000 respectively. However, in his examination–in–chief the plaintiff qualified his evidence about those figures by saying that they were "not accurate", that the question about them was "sprung" on him and they represented "the type of money that I can recall being taken out of it". In cross–examination the plaintiff reiterated that the figures were not accurate and then in contrast to his previous evidence, said that he could not say to which jobs the figures related.
Because of the way in which he gave his evidence about these figures, my reservation about the plaintiff's reliability as a witness generally and the fact that he kept no records and did not file a return for income tax purposes in relation to these jobs, I am not persuaded that these figures are reliable, nor am I persuaded that the plaintiff has made the calculations necessary to accurately determine the amount of the net profit he derived from these projects. However, he was not cross–examined about those figures to any extent and it was not put to him that he did not derive those profits and I am not persuaded that I should disallow this component of his claim entirely.
The plaintiff gave evidence that he did not undertake any sub–division contracting work during the year prior to the accident, but that he did do a variety of small contracting jobs which would have "related to approximately the same amount of takings per year" (that is the same takings as with the sub–division work). In view of the reservations I have about his evidence relating to the sub–division work and as, on his own evidence, his subdivision takings ranged from $3,000 to $8,000 this evidence is of little value in assessing the rate of his pre–accident earnings.
The plaintiff makes no claim for past economic loss in relation to the trucking business. He gave evidence that during the 12 months before trial he or his wife received about $5,000 to $6,000 from his trucking work from the Department of Main Roads but the evidence is too vague and unreliable to enable me to quantify precisely how much profit the plaintiff derived from this work. However, I am satisfied that the plaintiff derived some income from the trucking work, which will have to be deducted from his claim for past economic loss.
I am left in the position of being satisfied that the plaintiff was capable of earning an income from contracting and trucking work before the accident, that he has done some contracting work and earned some income from trucking work since the accident and that in the future he will continue to be able to earn some money from contracting or trucking work, or both, but that he would not be able to participate in some of the physical work involved to the same extent as before the accident. I am satisfied that his earning capacity in relation to his contracting and trucking business has been reduced, but not entirely lost.
The plaintiff was paid by the Hobart City Council what it is agreed I am to treat as earnings until 11 April 1986. During the period 121185 to 1786 the plaintiff's gross weekly earnings were $320.50. By reference to the earnings of a comparable employee I find that for the year ended 30687 the plaintiff's gross weekly wages, excluding overtime, would have been $327.80. The plaintiff claims that allowance should be made for overtime he would have earned after 11 April 1986. The amount of overtime earned by the plaintiff before the accident fluctuated considerably, but I am satisfied that the plaintiff would have continued to earn overtime and I allow $10.00 per week. By extrapolating nett rises over recent years I shall allow an increase of 4 per cent for the current year.
I find that but for the accident the plaintiff's present nett earning capacity would have been of the order of $325 per week, being $290 per week wages from the Hobart City Council and the balance being the amount he could have earned from his contracting and trucking work.
In considering the extent to which the plaintiff is employable I take into account the disabilities and limitations upon his working capacity to which I have referred above and that in view of his age, his lack of formal qualifications and, to some extent, his personality, the plaintiff would find it difficult to compete with others for a job. However, I also take into account that the plaintiff is physically strong and has had extensive experience working in a wide range of occupations and that it is clear that there are many jobs which he would be competent and physically able to undertake; that although the plaintiff has no formal qualifications he is not confined to doing purely physical work but has shown himself capable of negotiating contracts, organising small projects and managing and overseeing other workers; that the burden of sustaining his claim for damages for lost earning capacity rests upon the plaintiff; that save for his employment as a taxi driver and his attempt to resume employment with the Hobart City Council, the plaintiff has not shown that he has made any attempts to find employment since August 1985; that the plaintiff's capacity to drive motor vehicles and medium trucks for the periods of time I have indicated would enable him to make a substantial contribution to the operation of any contracting business he wished to undertake. I find that the plaintiff's earning capacity has been reduced by 40 percent.
I find that the plaintiff has developed callouses on both feet caused by his gait, which will require treatment on a continuing basis, but I reject the plaintiff's evidence that he will require treatment each month. I also find that the plaintiff should have an orthotic device and a surgical shoe to accommodate the device, which will have to be replaced each two years. The plaintiff is only claiming the cost of one orthotic device. I accept the plaintiff's claim for future podiatrist expenses as formulated by his counsel, save that I do not accept that he will need to have a consultation each month. The claim for future travelling expenses will be reduced accordingly.
I accept the plaintiff's claims for services provided by his wife, the cost of analgesics purchased since the accident and for travelling expenses incurred since the accident, save that I do not allow the expenses of travelling to see Mr Law for the purpose not of obtaining treatment, but for obtaining reports.
I allow the claims for future expenses for drugs, consultations and surgery, save that I am not satisfied that the claim for an additional amount of $2,000 for further plastic surgery has been substantiated. I do not allow the full amount claimed for drugs as the manipulations and orthotic devices should reduce the need for them in the future.
I asses the plaintiff's damages at $154,971.38 made up as follows:
Past Economic Loss
1.1 Past loss of income
Hobart City Council (wages together
with allowance for overtime)11486 to 30686 –
11 weeks at $272.40
Nett after tax $2,996.40
1786 to 30687 –
52 weeks at $280.19
Nett after tax 14,569.88
30687 to 141087 –
15 weeks at $290.34
Nett after tax 4,355.10
$21,921.38
Lost income from contracting
work from date of accident
to date 8,000.00
$29.921.38
Less estimated nett
earnings from taxi
driving $1,000.00
Less amount earned
from truck
driving 2,000.00 3,000.00
$26,921.38
1.2 Services provided by plaintiff's
wife $4,332.00
1.3 Travelling for treatment 1,592.00
1.4 Analgesics 394.00
$33,239.38
Future Loss
2.1 Future expenses for surgery
and consultations 17,558.00
2.2 Analgesics 600.00
2.3 Podiatrist 4,631.00
2.4 Travelling 1,455.00
2.5 Reduced earning capacity
Present values of $325 pw
for 17 years using 3%
compound interest tables
$226,525.00
40% of $226,525.00 90,610.00
Less 20% to allow
for contingencies 18,122.00 72,488.00
3 Damages for pain and suffering and
reduction in enjoyment of life 25,000.00
$121,732.00
0
0
0