Thornton v Linds Rehabilitation Equipment
[2021] VCC 367
•31 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-06235
| SCOTT THORNTON | Plaintiff |
| v | |
| LINDS REHABILITATION EQUIPMENT | Defendant |
---
JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 March 2021 | |
DATE OF JUDGMENT: | 31 March 2021 | |
CASE MAY BE CITED AS: | Thornton v Linds Rehabilitation Equipment | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 367 | |
REASONS FOR JUDGMENT
---
Subject:ASSESSMENT OF DAMAGES
Catchwords: Pain and suffering consequences of unhealed wound in context of paraplegia – compliance with wound management not possible where serious consequences would result.
Legislation Cited: Australian Consumer Law and Fair Trading Act 2012; County Court Procedure Rules 2018; Wrongs Act 1958; Transport Accident Act 1986
Cases Cited:Todorovic v Waller [1981] HCA 72; 150 CLR 402
Judgment: Judgment entered in default of appearance pursuant to Order 21 of the County Court Civil Procedure Rules 2018
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Tim Connor Law |
| For the Defendant | No appearance | No appearance |
HER HONOUR:
1The plaintiff, Mr Scott Thornton, makes a claim for damages against the defendant, Linds Rehabilitation Equipment, for injuries arising from the use of a wheelchair supplied by the defendant. The plaintiff makes his claim on two bases.
2Firstly, that the defendant was:
(a) a manufacturer of the wheelchair pursuant to s7 of Schedule 2 of the Australian Consumer Law and Fair Trading Act 2012 (“the Act”); and
(i)the wheelchair was not of acceptable quality and was not fit for its disclosed purpose in breach of s55 of Schedule 2 of the Act; and
(ii)that the defect was a defect within the meaning of s138 of Schedule 2 of the Act; and
(iii)that the defect caused the plaintiff to suffer injury, loss and damage.
3Secondly, the plaintiff says that the defendant was negligent in the supply of the wheelchair in that it knew or ought to have known of the defect and that it failed to warn the plaintiff about the defect. The defendant’s failure to warn the plaintiff about the defect caused the plaintiff injury, loss and damage.
4Judgment was entered for the defendant in default of appearance on 19 December 2020 and orders were made on 12 February 2021, listing the matter for an assessment for damages. No material has been filed by the defendant in relation to the assessment of damages and there was no appearance at the hearing. Leave was sought by the plaintiff to rely on the following material:
(a) his affidavit, dated 16 March 2021;
(b) the report of Kathryn Maguire, dated February 2021;
(c) the report of Dr Crock, dated 26 July 2019; and
(d) various documents setting out the background of the supply of the wheelchair and treatment received by the plaintiff at pages 46 to 122 of the Court Book.
5Pursuant to Rule 40.05 of the County Court Procedure Rules 2018 and in the interests of promoting the efficient and cost-effective disposition of the claim, I granted leave to the plaintiff to tender these various medical reports and records without the need to call the author of each report.
Background
6Mr Thornton was born in June 1963. He grew up in Ringwood, Victoria, and attended Southwood State School and Seville State School. He then attended Upper Yarra High School and completed Year 11 at Yarra Valley Grammar. Following high school, he studied engineering at Lilydale Tech, before working for his father in an injection moulding factory, where he eventually took up a managerial position.
7In 1982, at the age of nineteen, Mr Thornton was involved in a transport accident. He sustained a T11-12 vertebral fracture, resulting in paraplegia.
8He spent a year in the spinal unit at the Austin Hospital, followed by a year of rehabilitation at home. After this, although he was confined to a wheelchair, he re-joined the workforce as a purchasing officer at an air-conditioning company and then subsequently returned to his family business in a managerial role until the company was sold in 1995.
9Mr Thornton gave evidence that in his managerial role he implemented a number of strategic advances for the company, which required him to undertake travel around the world on at least five occasions. He lived a full, independent life.
10Between 1996 and 2014, he held a number of positions at different firms and spent the last decade of his working life at the ANZ bank. His position at the ANZ was demanding and involved long working hours.
11In about 2014, he developed a sacral pressure wound after an incident while mowing his lawn. This resulted in a three-month stay at Bellbird Hospital and a further three-month period of recovery at home. He was able to return to work, but the demands of his job at the bank, which required long hours sitting in his chair, caused the wound to become compromised. As a result, he ceased work in about November 2014 and has not returned to the workforce since.
12After he ceased work and was no longer required to spend such lengthy periods sitting in his chair, the wound resolved and he was able to continue to live an independent life and maintain his social life and hobbies.
Development of the wound
13Due to the demands of using a manual wheelchair, Mr Thornton sustained injuries to his shoulders which necessitated, in about December 2016, a change from a manual wheelchair to an electric wheelchair. He was provided with a wheelchair manufactured by the defendant. The wheelchair was described as a “Glide Centro mid-wheel drive power wheelchair”. Mr Thornton says it was the defendant’s duty to assess his needs and identify his mobility restrictions and modify the wheelchair accordingly.
14Mr Thornton says that when the wheelchair was assembled, the metal side saddles protruded above, rather than sitting flush with, the metal seat. Over time this resulted in a sharp metal edge protruding over the foam cushion. Wheelchair users necessarily have to transfer from wheelchair to other surfaces, such as bed, toilet, bath seat, car and so on. Mr Thornton undertook the necessary transfers independently.
15Mr Thornton described the process of what he called a ‘clean transfer’. This is a transfer where he lifts his body cleanly away from the surface he is currently sitting on, for example the wheelchair, and transfers to the next surface, for example the toilet, without sliding his body or catching any part of his body on either surface. He compares this with a ‘dirty transfer’. This is where for whatever reason the transfer involves some sliding or catching on one of the surfaces which can injure the body, especially during transfers to the toilet and bath seat when clothing is removed.
16When undertaking transfers from the chair to the toilet or bath seat, the sharp exposed edge of the wheelchair seat tore the skin on the top of his ischium (“the wound”). Due to his paraplegia, he did not feel the wound and only discovered it when he noticed blood on his chair. The wound is located on the part of his buttocks that sustains the most pressure when seated. This means that it is impossible to remove all pressure from the area whilst sitting. As a consequence, the torn skin turned into a wound ulcer which continued to deteriorate and which has persisted since that time.
17Although the wound improves from time to time, the healing is always compromised and is easily broken down by ordinary daily activities of living which can knock or scrape the wound. Sitting upright necessarily involves pressure on the wound which compromises its healing.
Consequences of the wound
18Mr Thornton describes a significant detrimental impact on his life from the wound. Prior to the development of the wound he had a great deal of independence, and although he had ceased working he had an active social life, and in particular was heavily involved in competitive archery. He says he trained four to five times a week and each training session would be three or more hours in length. He would compete regularly, including in two-day events, and had ambitions to eventually compete in the Paralympics.
19Prior to the wound developing he drove without restriction, and was able to visit friends and family, including travelling extensively and independently interstate and overseas. By contrast, the picture he paints of his life since the wound is a life in which every aspect of his existence is significantly impacted by his awareness of, and management of, the wound.
20Mr Thornton describes the pain caused by the wound as being like a hot iron held against his body. Pain killers do little to alleviate the pain, unless he takes morphine which he is reluctant to do as it is highly addictive.
21There is little he can do to reduce the pain, although he tries to shift in his seat so he is not resting directly upon the wound. This means that he leans to the left or the right, but there are consequences of this – his spine is not upright and this causes aggravated back pain. Lying down does not always reduce the pain caused by the wound, although it alleviates the pressure on the wound and allows the wound to recover to some degree. However, lying down for extended periods comes with its own difficulties. Mr Thornton describes a period of bed rest that he underwent when the wound got particularly severe, which resulted in pressure sores developing on his legs.
22Continual bed rest would also necessarily have impacts on his muscle tone, particularly in his shoulders, which he needs to maintain to be able to undertake transfers. Without the use of his shoulders he would effectively lose his independence. Continual bed rest would also have a significant impact on his quality of life, his relationships and his mental health.
23As best he can, he tries to strike a balance between having some degree of independence and engagement with his activities, and limiting the time and number of those activities so as not to unduly exacerbate the wound. He says on an average day he would spend somewhere between four to six hours lying down, just to alleviate the pressure on the wound. This is separate from time he spends asleep.
24He tries to participate in archery two to three times a week, but on each occasion restricts the period of time that he is engaging to under three hours. If he knows he has a competition coming up he will rest in bed for a day or two prior to try and ensure that the wound is in the best possible condition so that he can push on without causing too much damage. He describes an incident prior to Christmas where he attended his archery club for training and then stayed on to socialise with friends for a couple of hours afterwards. This resulted in him sitting up for more than three or four hours at a stretch and the consequence of that was the wound, which had reduced significantly in size, increased within three days to the size of a fifty-cent piece, and resulted in an extended period of bed rest.
25His evidence was that he can sit for somewhere between three and four hours at a time before both the pain becomes too much and the risk of deterioration of the wound is increased.
26Mr Thornton eloquently described the anxiety he feels when he is out and about and can feel a tingling in the wound, which may presage an aggravation of his condition. He says this will often cause him to hurry home, only to find there is in fact no aggravation of the wound. On other occasions, however, it will transpire that the wound has worsened because of an inadvertent dirty transfer or excessive pressure caused by him sitting on it for too long. He knows that aggravation of the wound will inevitably render him bedridden for days. As he puts it, if he enjoys himself, he will pay for it in exacerbation of the wound.
27Mr Thornton describes an existence in which his activities have been significantly and severely curtailed in almost every way. While he can still drive his car, attend archery and do his shopping, he has to constantly be aware of the time each activity might take and select only one or two activities each day or every other day, rather than being able to go about his life in the normal way that he did prior to the injury.
28He explained that he is unable to visit his uncle and aunt who live in Tasmania. His uncle suffers from fibromyalgia and his aunt has multiple sclerosis. Neither are able to travel to Victoria, but the demands of travelling to Tasmania and the risk that his wound might worsen while there, rendering him bedridden, means that travelling to Tasmania to visit them is not feasible. He is unlikely to ever see his uncle and aunt again.
Medical treatment
29Mr Thornton says that when his wound is relatively good he spends about thirty minutes a day taking care of it. There are five different types of dressings to apply, depending on the state of the wound, and he cleans and dresses the wound every morning, and occasionally in the evenings as well, depending on its severity. When the wound is bad, he is bedridden.
30He attends the hospital every two weeks for wound review and also sees his general practitioner regularly. He sees a wound care nurse at the Knox Hospital wound clinic and the notes of those attendances neatly encapsulate the seemingly interminable cycle of wound repair and breakdown that Mr Thornton has found himself in over the past four years. Those notes record that at times Mr Thornton has become very depressed and distressed about his situation and the toll it has taken to try and manage this wound. Despite recommendation, he has not chosen to see a psychologist. Mr Thornton considers his depression is caused by the existence of the wound and the toll it takes on him to manage it, and there is little that can be done other than to put up with it and try and live as normal a life as possible.
31Mr Thornton has sought surgical opinion from Raminder Dhillon but has been advised that surgery would be very risky and would involve the installation of a colostomy, a skin and muscle graft, a lengthy period of rehabilitation and then the reversal of a colostomy. The process would take around a year, with no guarantee of success and a high probability of failure. Unsurprisingly, Mr Thornton has not elected to pursue this option.
32The wound care nurse notes that the recommendation for management of a buttock pressure injury of the type that Mr Thornton suffers from is to have 100 per cent bedrest until healing. However because of the persistence and location of the wound, Mr Thornton has been advised that the time required for complete healing of the wound might be somewhere in the order of twelve months. The consequences of twelve months bedrest on his physical and mental health would undoubtedly be dire and therefore he continues to try to avoid aggravation of the wound whilst maintaining some independence and social life. The amount of time he spends in the chair directly impacts on the speed of healing.
33Mr Thornton also remains at risk of developing wound infections which would further compromise his health and potentially his life, although his wound care appears to be thorough and competent and there is no sign of any underlying osteomyelitis.
34The opinion tendered of plastic and reconstructive surgeon, Mr John Crock indicates that Mr Thornton’s prognosis is poor. Mr Crock’s view is that complete eradication of the wound is not likely, and that surgery is fraught with complications and should be avoided “as far as possible”.
35Whilst Mr Thornton says that he maintains hope the wound will completely resolve, based on the medical material and his experience to date, I accept that it is unlikely this will transpire and the injury is permanent. I think it is likely that Mr Thornton will continue to experience ongoing cycles of improvement and wound breakdown and the existence of the wound will continue to significantly limit his ability to fully participate in activities, and to enjoy his life.
Entitlement to damages for non-pecuniary loss
36Mr Thornton requires the use of a wheelchair as a result of a transport accident, and has received payment for pecuniary loss from the Transport Accident Commission pursuant to legislation.
37He brings this claim pursuant to the Australian Consumer Law and the common law, governed by the provisions of the Wrongs Act 1958. Pursuant the Wrongs Act 1958 the plaintiff is not entitled to recover damages for non-economic loss in respect of an injury caused by the fault of another person unless he has suffered a significant injury.
38Pursuant to s28LF(1)(aa) a certificate of assessment is required from an approved medical practitioner who assess that the injury meets the relevant threshold, being a greater than 5 per cent impairment of the whole person that is permanent.
39Mr Thornton provided a certificate of assessment from Mr Crock dated 26 July 2019 which fulfils this requirement. Mr Crock’s report also sets out the causal mechanism whereby the exposed metal edge of the wheelchair caused the injury.
40There may be an argument in this case as to whether Mr Thornton’s claim for damages pursuant to the Wrongs Act is precluded by reason of the operation of s28LC(2)(b) which excludes a claim for recovery of damages for non-economic loss where Part 3, 6 or 10 of the Transport Accident Act 1986 applies.
41It was submitted on behalf of Mr Thornton that the question of whether that exclusion could or should apply to Mr Thornton would be a matter for the defendant to raise by way of defence. Having not entered a defence, the Court does not need to concern itself with that provision. I accept that submission and consider that Mr Thornton has established an entitlement to damages. Given that the regime for assessment of damages pursuant to the Competition and Consumer Law 2010 requires an assessment of the percentage impairment having regard to the most extreme case, and the lack of any evidence about the percentage impairment before me, I have confined my assessment of damages to an assessment pursuant to the common law.
Assessment of General Damages
42Mr Thornton has a permanent impairment that will afflict him, on the balance of probabilities, for the rest of his life. He submits that an appropriate range of general damages is $100,000 to $150,000.
43The principle upon which damages are awarded is well known:
“… a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries.”[1]
[1] Todorovic v Waller [1981] HCA 72; 150 CLR 402 at paragraph [6]
44The purpose of an award of damages is to restore, as far as it is possible to do so by the award of monetary compensation, Mr Thornton to the position he would have been in had the tortious conduct not occurred.
45Whilst the Court may be assisted by awards of damages in other cases, each case will ultimately turn on its own facts and the assessment of the pain and suffering each individual has experienced.
46Recent decisions of the Court offer little assistance in the assessment of damages for Mr Thornton, as he finds himself in an unusual position. Unrelated to the facts in this case, he is already restricted in his mobility by reason of his use of a wheelchair and the consequential toll that wheelchair use, particularly transfers, takes on his body.
47I have formed the view that because his life has already been restricted by his wheelchair use, the injury he has sustained in this case presents a greater toll on him than it might on someone who was not so restricted. The implications for him of total bed rest which might result in healing of the wound are far greater than they would be for someone who was not dependent on maintaining shoulder muscle tone in order to maintain independence. I was impressed by the forthright and unpitying manner in which Mr Thornton presented his evidence, but it was clear that this wound has taken an incalculable toll on his day to day life and represents a burden from which he is never free. The restriction on his capacity to participate in archery presents a much greater imposition for him than it might for someone else who could readily turn to other pursuits.
48I therefore accept that Mr Thornton’s injury falls at the upper end of the range of damages for what might otherwise be considered a modest injury.
49I assess general damages in the amount of $150,000.
50In addition, Mr Thornton is entitled to interests and his costs of the proceeding.
- - -
0