| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : VAN BEEK -v- LIAM PTY LTD [2011] WADC 172 CORAM : GOETZE DCJ HEARD : 19 SEPTEMBER 2011 DELIVERED : 21 OCTOBER 2011 FILE NO/S : CIV 2026 of 2009 BETWEEN : AREND JAN VAN BEEK Plaintiff
AND
LIAM PTY LTD
Defendant
Catchwords: Motor vehicle accident - Plaintiff injured in course of employment - Liability denied - Assessment of damages - Turns on own facts Legislation: Civil Liability Act 2002
Motor Vehicle (Third Party Insurance) Act 1943
Workers' Compensation and Injury Management Act 1981 Result: Judgment for the plaintiff in the sum of $76,484.99
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Representation: Counsel:
Plaintiff : Mr N W Marsh
Defendant : Ms L A Eddy
Solicitors:
Plaintiff : Julienne Penny & Associates
Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
The Council of the Shire of Wyong v Shirt (1979-1980) 146 CLR 40
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Introduction 1 On 12 February 2004, the plaintiff, Arend Jan Van Beek, was injured when he was crushed by a van against the limestone wall of a house. The van was being driven by David Hay in a narrow lane off Carnac Street, South Fremantle (the accident). 2 The accident occurred during the course of Mr Van Beek's employment as a furniture removalist with the defendant, Liam Pty Ltd, trading as Bants Removals & Storage (Bants). Bants owned the subject van. Mr Hay was also employed by Bants as a furniture removalist. 3 Mr Van Beek alleges that Mr Hay was negligent in driving the van in the lane when reversing it into Mr Van Beek and crushing him. 4 Mr Van Beek further alleges that Bants is vicariously liable for Mr Hay's negligence. 5 The defence denies negligence and alleges contributory negligence by Mr Van Beek. The defence also puts in issue the quantum of the claim made by Mr Van Beek.
Mr Van Beek 6 Mr Van Beek was born on 14 January 1965. He left high school after completing Year 8. Until the accident, he had always worked as a removalist. 7 Mr Van Beek has a de facto partner. He has three children from an earlier relationship. He and his partner have one child together. 8 Prior to the accident, Mr Van Beek rode a motorcycle, undertook walking and bicycle riding. Further, he played with his two youngest children, presently aged 9 and 4 years respectively. His older children are 24 and 21 years of age.
Mr Hay and Bants 9 Although Bants is named as the sole defendant in this action by reason of the alleged act of negligence of its employee Mr Hay arising from his driving of a motor vehicle, the Insurance Commission of Western Australia, as insurer of each of Mr Hay as driver of the van and Bants as owner of the van, can assume the conduct and control of legal proceedings in respect of the claim by Mr Van Beek pursuant to s 11 of (Page 4)
the Motor Vehicle (Third Party Insurance) Act 1943. And that is what has happened in this case, so that the State Solicitor's Office has been instructed by the Insurance Commission to represent the interests of both Mr Hay and Bants in this action. 10 The parties are agreed, by reason of the driver and the subject van both being required to be insured by the Insurance Commission in accordance with the provisions of the Motor Vehicle (Third Party Insurance) Act, that the damages, if any, which I am to assess, must be calculated in accordance with that Act and judgment, if any, can be entered against Bants and that there be no recourse against Mr Hay.
Liability – the pleadings 11 The statement of claim alleges that: 4. The accident was caused by the negligence of the defendant and/or David Hay for whose acts the defendant is vicariously liable. Particulars of negligence The defendant, in the person of David Hay: (a) assessed the laneway as suitable down which to reverse the van when it was or should have been apparent to Hay that the laneway was unsuitable by reason of: (b) failed to keep any or any proper lookout for the plaintiff; (c) reversed the van down the laneway without first checking if the plaintiff was in a safe position; (d) whilst reversing, failed to avoid trapping the plaintiff between the van and the wall of the laneway. 12 The amended defence admits the occurrence of the accident, but denies that it occurred as alleged by Mr Van Beek and pleads that the van was travelling forwards at impact and not in reverse. The negligence of Mr Hay is denied. The defence also pleads: 3. in the alternative, the defendant says the accident was contributed to by the negligence of the plaintiff. (Page 5)
Liability – the agreed evidence 13 The evidence is that on 12 February 2004 another Bants employee, who is neither Mr Van Beek nor Mr Hay, drove the van to a lane leading off Carnac Street, South Fremantle. That lane runs in a west/east direction. The purpose of so driving the van there was to unload furniture from the van and to deliver it to a house in Carnac Street, the back of which faced another lane which runs in a north/south direction off the west/east lane. Thus, it was necessary to enter the west/east lane running off Carnac Street to reach the north/south lane with which the west/east lane forms a T-junction. At the south-west corner of that junction is an old house which comprises, in part, a limestone wall running in a west/east direction parallel with the lane and which wall is the southern extremity of that part of the lane. 14 The lanes were narrow. The distance between the van and the limestone wall of the house to the south of the van was a couple of metres. Driving the van into the north/south lane proved to be difficult. 15 The agreed evidence is that Mr Hay drove the van in the lane from west to east and that Mr Van Beek followed behind it on foot. The plan was to then drive the van past the junction of the two lanes and to reverse (Page 6)
it from the west/east lane into the north/south lane in order to reach the house at which the furniture was to be unloaded. 16 Neither Mr Van Beek, nor Mr Hay, held a truck driver's licence at the time. However, that is not relevant to the issue of negligence. 17 Central to the issue of liability is a determination of the direction in which the van was travelling when it trapped Mr Van Beek between it and the limestone wall of the house bordering the lane.
Mr Van Beek's evidence on liability 18 Mr Van Beek said that Mr Hay drove the van in an easterly direction along the west/east lane and into, but not past, the junction where the west/east and north/south lanes meet. Mr Van Beek said, that, until this time, the van was 'crawling'. He was walking 4 metres behind it. He maintained this position until Mr Hay began to reverse the van back along the west/east lane. 19 Mr Van Beek said that Mr Hay reversed the van from the T-junction back along the west/east lane for another 'bite', or 'swing', to gain 'a better angle' or 'arc' as Mr Van Beek variously put it, before again driving forwards and then attempting to reverse the van into the north/south lane. 20 As noted, Mr Van Beek maintained his position behind the van until it got to the point where it began to reverse back along the limestone wall bordering the west/east lane. He said that he then had to position himself between the van and the wall so as to be able to guide Mr Hay to reverse the van along the west/east lane and also, to reverse it into the north/south lane without damaging the van. This required two distinct acts by Mr Van Beek. 21 First, Mr Van Beek said in his evidence-in-chief that he walked into a position between the van and the limestone wall on the driver's side of the van so that Mr Hay could see him in the driver's side rear wing mirror, such that that would prevent Mr Hay from driving the van into the wall as the van reversed to the west in order to gain the better arc, as noted above. It was during this reversing of the van that the accident had occurred. 22 Secondly, Mr Van Beek agreed in cross-examination that he was also attempting to get from the west/east lane into the north/south lane so as to be on the driver's side of the van in the north/south lane when Mr Hay ultimately reversed into that lane so that Mr Hay could then see him in the driver's side wing mirror as Mr Hay reversed to the south. (Page 7)
23 Mr Van Beek said that when the van was reversing along the limestone wall to gain a better arc, it hit a pothole or something, causing the van to lean over and pin Mr Van Beek against that wall. He said that Mr Hay then drove forward bringing the van upright again, such that Mr Van Beek could walk away from the wall. Mr Hay then took him to hospital in another vehicle. 24 Mr Van Beek was 'positive' that the van was reversing at the time of the accident.
Mr Hay's evidence on liability 25 Mr Hay said that both lanes are narrow, resulting in at least a discussion between Mr Van Beek and Mr Hay as to how to get the van to the required destination at the rear of the subject house in Carnac Street. Mr Van Beek said he and Mr Hay tried to 'work it out'. 26 Mr Hay said that he moved rubbish bins on the north side of the west/east lane and directed Mr Van Beek when Mr Van Beek attempted to drive the van into the north/south lane. Mr Van Beek could not do so and Mr Hay then tried to do so. Mr Hay did not know if he had 'one or two tries'. He could not remember where Mr Van Beek was when he tried to drive the van. 27 Mr Hay believed that he was 'backing' the van in a creeping fashion along the west/east lane towards a limestone wall of an old house when Mr Van Beek was struck by the van and sandwiched against that wall. Mr Hay did not recall whether impact with Mr Van Beek was the side or the rear of the van because he never saw the van strike Mr Van Beek, but Mr Hay heard him yell. Mr Hay said that he was 'pretty sure I was reversing', but he was not really sure if he had previously driven the van to or beyond the T-junction of the lanes and had reversed back once before. 28 Counsel for Bants observed that Mr Hay was confused in giving his evidence-in-chief and, with support from counsel for Mr Van Beek, tendered a crash report form completed and signed by Mr Hay on 25 February 2004, detailing that: (Page 8)
29 Mr Hay suggested in evidence that the report form referred to himself 'driving forward … before reversing', such that he still believed he was reversing at impact. 30 The reference in the report form to Mr Van Beek yelling 'as I passed the corner' is consistent with Mr Van Beek's evidence of the van reversing, as is Mr Hay's presumption that Mr Van Beek 'was trying to get past me for when I started to reverse' into the north/south lane. 31 Having seen this form, Mr Hay could then recall driving forward with Mr Van Beek guiding him behind the van. He also recalled that Mr Van Beek was at the back of the van when he was struck. He thought that Mr Van Beek was struck on the passenger side of the van as it was reversing from west to east, but he did not know where Mr Van Beek was. His final evidence-in-chief was that the van was reversing at the point of impact notwithstanding that the crash report form also indicates in answer to another question that the van was travelling in an easterly direction. He said that if he had known where Mr Van Beek was at impact, then, that impact would not have occurred. That is self-evident. 32 In cross-examination, Mr Hay said that he did not know in which direction he was driving the van when the accident occurred. He also said that ruts in the lane took the van closer to the wall.
Findings on liability 33 The initial defence admitted as a fact that the van was being driven in a reverse direction at the time of impact. The defence submissions refer to the van being driven forwards. The parties could not recall any pre-trial discussions as to the direction of the van at the time of the accident. Accordingly, leave was given at the commencement of the trial, in the absence of prejudice to Mr Van Beek, to amend the defence to plead that the van was moving in a forwards direction at time of the accident. 34 The difficulties of reversing the van into the north/south lane, about which the two men each gave evidence, can be readily accepted. Consistent with that acceptance is Mr Van Beek's explanation of the need to reverse the van from the T-junction back along the west/east lane in (Page 9)
order to gain a better arc from a more southern position in the west/east lane before again driving forwards past the T-junction and then reversing into the north/south lane. 35 Mr Van Beek was cross-examined at length about the direction of the van at impact. He maintained his evidence that the van was travelling in a reverse direction at that time. 36 Mr Van Beek accepted that he was 'foggy' about the accident. But that is to be expected, at least to a certain degree. Otherwise, there is no reason to not accept his evidence on liability. 37 Mr Hay insisted in his evidence-in-chief that he was driving in reverse at impact. In cross-examination, he admitted that he did not know. He was not re-examined about this. The accident had, he said, traumatised him. His evidence does not contradict Mr Van Beek. Indeed, there is some support from Mr Hay for Mr Van Beek's version of the accident. 38 Mr Hay was not a good witness whose evidence should be readily accepted. He did not adopt the contents of the crash report form in his evidence and it is his evidence in court to which regard must be paid. 39 It was however an error to have admitted this report form into evidence, because to do so is contrary to s 10(1) of the Motor Vehicle (Third Party Insurance) Act. In all the circumstances, it should not be afforded any evidentiary value. 40 Further, if the van had been travelling forwards at impact, then, there would have been no need for Mr Van Beek to place himself between the van and the limestone wall in order to prevent Mr Hay from driving the van into the wall and placing himself at risk of impact between the van and the wall. He could simply have remained at the rear of the van and walked into the north/south lane once the van cleared the limestone wall. Indeed, if Mr Hay had been driving forwards, then, it was the front of the van which would have impacted the wall, not the rear of the van. 41 The likelihood is that it became obvious to Mr Hay at some point whilst moving in an easterly and forward direction that the van could not successfully reverse into the north/south lane from its then position in the west/east lane. That is why Mr Hay stopped moving it forwards and began to reverse it. Mr Van Beek then remained to the west of the T-junction by the limestone wall and moved between the van and the wall to guide Mr Hay as he reversed it to gain the better arc. He said that as (Page 10)
the van was reversing, it went into 'a pothole or something and leant over pinning him against the wall'. 42 Mr Hay also referred to 'sort of ruts in the road or the corner and its somehow taken the vehicle closer but in my recollection, John was clear…', but the fact is that Mr Hay simply did not see Mr Van Beek at impact and had not seen him since he was driving forwards and yet he knew that Mr Van Beek was somewhere in the vicinity to guide him. 43 Given that Mr Hay was reversing the van, with Mr Van Beek acting as a guide, Mr Hay had a duty of care to Mr Van Beek to be aware of his presence and to avoid striking him with the van: see The Council of the Shire of Wyong v Shirt (1979-1980) 146 CLR 40 at 44 and (47 – 48). Mr Hay knew that there were ruts in the lane. However, as Mr Hay admitted, he did not know where Mr Van Beek was when he was reversing the van and in breach of his duty, the van reversed into Mr Van Beek and crushed him against the limestone wall. 44 There was a not insignificant foreseeable risk of injury to Mr Van Beek in the narrow lane by reason of Mr Hay reversing the van in these particular circumstances, including that Mr Hay did not know where Mr Van Beek was. A reasonable driver would have ascertained Mr Van Beek's position before reversing or continuing to reverse once he lost sight of him because of the high probability of serious harm to Mr Van Beek. It would have been easy to stop and seek out his position. There was no useful purpose to be served in simply driving on and reversing without knowing where Mr Van Beek was. Therefore, Mr Hay's fault was causative of Mr Van Beek's injuries and loss and it is appropriate to find liability against Mr Hay to extend to the harm caused by him – Civil Liability Act 2002 (CLA), s 5B and s 5C. 45 My findings are that Mr Hay was reversing the van in a westerly direction before driving forwards so as to place the van in a more southern position in the west/east lane and thereby gain a better arc when driving forwards to assist reversing into the north/south lane. Mr Van Beek was between the van and the wall to guide Mr Hay, but Mr Hay had, by that time, lost sight of Mr Van Beek. The van then crushed Mr Van Beek against the wall. Mr Hay was therefore negligent, causing injury, loss and damage to Mr Van Beek. 46 I am also satisfied on Mr Van Beek's essentially uncontradicted evidence that the point of impact was against the limestone wall, slightly (Page 11)
to the west of the north/south part of the lane. That impact was towards the rear of the van on the driver's side. 47 The defence also alleges contributory negligence by Mr Van Beek in attempting to pass between the reversing van and the wall of the laneway. 48 Mr Van Beek said that he walked up the side of the van as it reversed so that Mr Hay could see him. In this way, the van would not strike the wall. Mr Van Beek also wanted to be on the driver's side of the van in the north/south lane when it was reversing in that lane. There was however limited space between the van and the wall. The undisputed evidence is that this was a 'couple of metres'. 49 The parties did not further deal with this in evidence, but my finding is that this distance was appreciated by Mr Hay as the van moved forwards along the west/east lane because it follows that if Mr Hay were to reverse the van to gain a better arc from which to attempt to reverse into the north/south lane, then he needed some space in which to obtain that better arc and such space was within the 'couple of metres'. It was Mr Van Beek who gave the evidence of Mr Hay seeking to gain a better arc and Mr Van Beek should therefore have appreciated the danger of placing himself between the van and the limestone wall, and he should not have done so unless Mr Hay acknowledged to him that he had Mr Van Beek in his sight whilst reversing. Mr Van Beek did not suggest in his evidence that Mr Hay did so acknowledge him before or after he began to reverse the van. 50 A reasonable person would not have placed himself in such limited space by reason of the obvious risk of injury. 51 The risk to Mr Van Beek was foreseeable, not insignificant and Mr Van Beek should have taken the precaution to have Mr Hay acknowledge his presence between the van and the wall. If he had done so, then, the probability of the harm occurring would have been eliminated or, at least, seriously diminished. However, by not taking the precaution, there was likely to be serious harm, which in fact occurred. That harm could have been easily avoided and there was nothing to be gained in taking the risk. Mr Van Beek's contributory negligence was a necessary condition for the harm he suffered and it is appropriate to reduce his award in that he did not act reasonably for his own protection in the circumstances known to him at the time. (Page 12)
52 In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, 497, the High Court said that in apportioning responsibility, the following approach should be taken: The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42–49 and Broadhurst v Millman[1976] VR 208at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance. 53 An appropriate finding of contributory negligence in this case is that Mr Van Beek's award of damages should be reduced by one third. In making this finding, I have had regard to s 5K of the CLA.
Assessment of damages 54 Having found that Mr Hay was negligent, it is therefore necessary that Mr Van Beek's damages be assessed.
Nature of injuries 55 It is not disputed, that, Mr Van Beek suffered: (a) the fracture of five ribs; (b) punctured left and right lungs; (c) a dislocated left shoulder; and (d) pressure ulcers on both heels whilst in hospital.
Particulars of treatment 56 As a consequence of the accident, Mr Van Beek was taken to Fremantle Hospital where he was an inpatient for 2 1/2 weeks. A report dated 1 November 2004 from Dr Patrick Hertnon, on behalf of the Executive Director of Medical Services at Fremantle Hospital, was tendered into evidence by consent. Mr Van Beek was under the care of Mr I Gilfillan, cardiothoracic surgeon, but he has not provided a report. (Page 13)
57 Upon presentation to the Emergency Department, Mr Van Beek complained of shoulder/upper chest injuries, extensive bruising to the torso and difficulty in breathing He was provided with pain relief, a tetanus booster injection and a chest drain. He undertook an ECG. An early chest x-ray showed bilateral upper rib fractures and subpleural haematoma on the left in that region. The lungs were otherwise grossly clear. 58 A CT of the thorax indicated bilateral rib fractures, a small left pneumothorax and bilateral lower lobe lung atelectasis or contusion. 59 By mid-afternoon of the day of the accident, a new right pleural drain had been inserted. There was by then a moderate right pneumothorax and a naso-gastric tube was inserted. The left basal atelectasis/contusion and a small amount of the left pleural fluid persisted, as did the consolidation/contusion in the right middle/lower lobe. 60 On the following morning, there was a cap of pleural blood over the left upper lobe. Bibasal lung atelectasis/contusions were noted. The stomach was distended with air. 61 Mr Van Beek's condition deteriorated rapidly on the day following admission. He went into respiratory decompensation with the development of a flail chest. He was transferred to the Intensive Care Unit with a pulmonary infection, intubated and a right intercostal catheter was inserted. 62 Chest x-rays continued to be performed. By the morning of 16 February 2004, further infiltrate had developed in the right lower zone and left mid-zone infiltrate had also become more prominent. Mr Van Beek remained ventilated and sedated. 63 Eventually, a tracheostomy was inserted, along with DVC. Later that day, the left and upper right ICC's had been removed. The lower right ICC remained in the same position, and the right subclavian central venous line was unchanged in position. Bilateral pulmonary infiltrates, particularly in the mid and lower zones, were unchanged in appearance. 64 The right intercostal drain was removed on 18 February 2004. Mr Van Beek was then opening his eyes to voice and intermittently obeying commands, having previously been in a coma. Further, by this time, necrotic areas developed on his heels and ankles requiring elevation of his feet. (Page 14)
65 On 21 February 2004, Mr Van Beek was able to stand with assistance and to sit out of bed. Non-verbal communication was then appropriate. There was little change on his chest x-ray by 23 February 2004, when Mr Van Beek was returned to the general ward. 66 On 26 February 2004, Mr Van Beek was ambulant and self-caring and insistent on being discharged. He was to continue with intravenous antibiotics and daily dressings were required to the tracheostomy site.He was discharged against medical advice. 67 The medical report indicates that Mr Van Beek suffered multiple fractured ribs and multiple bilateral lung contusions with the complications of bilateral haemopneumothoraces, right flail chest and left acromioclavicular joint dislocation. 68 Mr Van Beek was kept under out-patient review and certified off work until 27 November 2004. 69 By mid-March 2004, Mr Van Beek was haemodynamically stable. His ICC and tracheostomy sites had healed well. He still had emphysematous lungs and he was discharged from the Cardiothoracic Outpatient Clinic 70 In late March 2004, Mr Van Beek was reviewed in the Orthopaedic Outpatient Clinic in respect of the AC joint dislocation which developed calcification over time. Conservative management was maintained. The calcification was significant and his shoulder did not improve. The shoulder remained symptomatic, but more movement was obtained during April 2004, by which time, the bilateral heel pressure sores that developed in the Intensive Care Unit had become infected and required monitoring by Silver Chain nurses every second day. They were debriding well in early April and by late May, the heel sores were the sizes of 50 and 20 cent coins respectively and it was hoped that they would heal within the following three months. 71 In May 2004, the left shoulder was diagnosed with a small insubstance tear involving mid-insertional supraspinatus tendon fibres, mild subachromial subdeltoid bursitis and traumatic AC joint disruption with 1 cm inferior subluxation of the acromium process and coracoclavicular injury. Mr Van Beek was by this stage under the care of Mr Tony Jeffries, orthopaedic surgeon, but he too has not provided a report. It seems that he recommended conservative treatment. (Page 15)
72 By September 2004, Mr Van Beek's main problem was his left shoulder. He was not getting any pain, but had restriction of movement therein. He was referred to physiotherapy. By this time, the left heel pressure wound had healed completely and the right heel continued to heal. 73 As at September 2004, Mr Van Beek reported some pain in his right hypochondrium when he had been standing up for half an hour or so. It was also thought, that, Mr Van Beek would not return to his work as a furniture removalist and rehabilitation was required. 74 By 15 September 2004, pressure ulcers to both heels had healed and Mr Van Beek was discharged from care. 75 The reports of Dr R J Warner, occupational physician, dated 21 July 2004, 16 June 2008 and 5 April 2011 were tendered into evidence by consent. From those reports, the following can be ascertained: 1. Mr Van Beek suffered five fractured ribs on the left and right sides and bilateral pneumothoraces. 2. Mr Van Beek has bilateral scars at the lower end of the axilla from drainage of the lung. 3. He has a prominent left upper sternum as a result of the fractured ribs which have healed, or by union, in a deformed manner. 4. He has disruption of the left shoulder and left acromioclavicular joint with marked deformity. 5. He was unable to sleep on his left side and suffered loss of sexual enjoyment due to shoulder pain. 6. He previously had pressure sores on both heels, which healed. 76 In June 2008, Dr Warner assessed the permanent loss of function of each foot at 15%, the loss of function of the arm at or above the shoulder at 30% and severe bodily scarring or disfigurement to the left shoulder of 20%. 77 In June 2008, Dr Warner also indicated that Mr Van Beek was suffering from post traumatic stress disorder and depression, which he translated to a whole body disability of 10% and which was likely to persist for the foreseeable future. (Page 16)
78 On 5 April 2011, Dr Warner again reported on Mr Van Beek noting that percentage losses of function had not changed, however he did not comment on whether or not Mr Van Beek still suffered post traumatic stress disorder or depression. 79 These percentage figures are based on the Workers Compensation and Injury Management Act 1981. 80 A psychiatric report has not been provided with respect to Mr Van Beek's post traumatic stress disorder and depression. 81 Medical evidence was also called on behalf of Bants. First, Dr Alan Home, occupational physician, gave evidence based on his two reports dated 28 July 2004 and 26 May 2011. 82 In his report dated 28 July 2004, Dr Home noted that Mr Van Beek had consulted Mr Jeffries who had apparently recommended that Mr Van Beek avoid returning to heavy manual handling as required with furniture removalist work. 83 Dr Home noted tenderness to palpation overlying the anterior aspect of the right fourth and fifth ribs, extending from the sterno-costal junction to the mid-clavicular line. 84 The left shoulder revealed prominence of the left acromion process with moderate wasting of the deltoid and periscapular muscles. The left AC joint was tender to palpation, as was the subacromial space. The top left of the shoulder produced pain with scapular elevation, but there was a full range of scapulo-thoracic movement. There was a full range of passive movements. There was otherwise a reduced range of active left shoulder movements. Resisted movements across the rotator cuff were performed with mild discomfort. 85 Dr Home diagnosed: 1. traumatic AC joint disruption with 1 cm subluxation of the acromion process and injury to the coracoclavicular ligament; 2. mild subacromial subdeltoid bursitis; 3. small mid-insertional supraspinatus tendon tear of the left shoulder; 4. coracoclavicular ligament injury; (Page 17)
5. traumatic right chest wall rib fractures with pneumothorax and lung contusions; 6. subsequent chest infection with a good recovery from chest injuries, but with mild residual chest wall pain; and 7. bilateral heel bedsores, slowly resolving. 86 Dr Home was of the view that Mr Van Beek did not have a capacity to resume his pre-accident occupation as a removalist. The prognosis for a return to that work was somewhat guarded and was dependant upon the extent of recovery from the left shoulder injury. However, any return to heavy manual work was unlikely because of the injury to the AC joint and coracoclavicular ligaments. He still had limited use of the right arm for light manual activity. Mr Van Beek was then still totally unfit for work and could not wear shoes due to the heel ulcerations. He had limited standing and walking tolerances due to his heel complaints. 87 In May 2011, Dr Home reported that from about January 2005, there had been no need for further treatment directed towards Mr Van Beek's heel complaints, but he had residual scarring in the region of the posterior margin of both heels. Those scars are quite sensitive. 88 Apparently, Mr Van Beek did not have any further specific therapy for his left shoulder complaints after July 2004, apart from undertaking a range of motion exercises for several months. He had not required further orthopaedic review and did not have any ongoing psychological complaints, which he specifically denied in terms of symptoms of anxiety, nightmares, flashbacks or avoidant activities in relation to the circumstances of the accident. 89 Mr Van Beek's main ongoing complaint relates to his left shoulder injuries. The shoulder remains restricted in motion and cannot be lifted above the horizontal. It also provides intermittent ache on most days of moderate intensity. He is working, and towards the end of the week, the pain is greater and is increased during cold weather. 90 In relation to his chest complaints, Mr Van Beek described occasional cramp in the chest wall with prolonged driving. There was no complaint of respiratory difficulty or pain with coughing and sneezing. 91 Dr Home reported that Mr Van Beek's left shoulder causes pain when he attempts sexual activity in the missionary position, but Mr Van Beek did not report any sexual dysfunction. He prefers to avoid lying on (Page 18)
the left shoulder at night. Dr Home also reported that Mr Van Beek is apparently seeking independent review by a specialist urologist regarding any sexual dysfunction. Dr Home deferred assessment of permanent disability of sexual or genital function to the urologist. 92 Mr Van Beek experiences difficulty in playing with his children and social motorcycle riding. 93 Dr Home obtained a history of Mr Van Beek returning to work during 2006. He is able to undertake his work duties without major difficulty. 94 Mr Van Beek's traumatic chest wall injuries with pneumothorax and lung contusions complicated by subsequent chest infection had recovered well and he no longer has any residual chest wall pain apart from mild transient cramping when driving over long distances, but which is relieved by stretching. 95 Mr Van Beek has made full recovery from his bilateral heel sores to the extent that the skin over the heels have healed, but the scars remain mildly sensitive, such that when he is walking with bare feet he experiences local sensitivity or discomfort. He is comfortable walking in shoes and boots. 96 Dr Home assessed Mr Van Beek as sustaining an AC joint disruption with 1 cm subluxation of the acromion process and injury to the coracoclavicular ligament. He had persisting mild subacromial subdeltoid bursitis and a mild insertional supraspinatus tendon tear of the left shoulder and a coracoclavicular ligament injury. He has intermittent activity related pain at the left shoulder. There is restriction in motion of the left shoulder. 97 Mr Van Beek has not gained sufficient recovery from his left shoulder injuries to return to heavy manual handling required for the work of a furniture removalist on a full or part-time basis. His recovery has maximised and he cannot pursue rehabilitation to return to working as a furniture removalist. He is capable of full-time work in an alternative occupation with a lifting restriction of 15 kgs. 98 Dr Home thought that Mr Van Beek had suffered a 2% permanent disability in respect of each of the scars to his heels. There was no left shoulder scarring but, he has suffered a permanent disability of the left shoulder in the order of 15% permanent disability with disfigurement of the left shoulder being an additional 2%. The disfigurement in the left (Page 19)
shoulder reflects prominence of the left clavicle and wasting of the overlying deltoid muscle. Otherwise, counsel declined an invitation for inspection of the disfigurement which could not be seen at trial by reason of Mr Van Beek's clothing. 99 Dr Home thought that Mr Van Beek required only the occasional use of simple analgesia on those occasions when his left shoulder complaint becomes symptomatic. 100 Dr F B Webb, orthopaedic surgeon, reported on Mr Van Beek in September 2004 indicating that Mr Van Beek suffered the injuries and received the treatment previously outlined above. His main problem at that time was the left shoulder which was sore around the top and, if he turned on his left shoulder when sleeping, then, he would be awakened. His mobility was improving and physiotherapy was assisting in that regard. 101 Mr Van Beek then suffered pain in the right lower chest anteriorly when walking. He denied any psychological effects, such as depression or nightmares. His heels were sore, but were getting better and he could by then wear shoes. He was not seeing any doctors on a regular basis and was not on any medication. 102 On examination, Mr Van Beek had a very prominent bony lump on the top of his left shoulder. The lateral end of his left clavicle was expanded and it felt to be a mass of bone. It was not possible to move it at the AC joint. There was some wasting of the posterior fibres of the left deltoid muscle. There was a reduced range of movement in the left shoulder. Both shoulders were stable. 103 Scars were present on each heel. Recovery at that time was still partial and not complete. 104 Mr Van Beek could not then return to work, but was due to see Advanced Personnel Management (APM) in that respect. Dr Webb was optimistic in terms of Mr Van Beek's prognosis, but he would suffer permanent injury as set out by Dr Home. 105 Mr Van Beek was referred to APM for the purpose of assessing his need for vocational rehabilitation services following his injury. He attended for review in September 2004. 106 Ms J Murrell, psychologist at APM, found Mr Van Beek to be a motivated person who was eager to return to work. She prepared an (Page 20)
action plan for him to do so, considering him to be fit for light manual work consistent with his physical restrictions in September 2004. Work was obtained after completion of a three day training course during the week beginning 18 October 2004. That work was as a traffic controller commencing on 22 October 2004 on a casual basis. That work took him to the north-west and other parts of the State. His income exceeded that which he had been receiving in his work as a furniture removalist. He reported that he was coping well with the new work and vocational rehabilitation with APM ceased. 107 It appears that Mr Van Beek has thereafter continued to work at all times.
Loss of amenities – award 108 An appropriate award for the injuries, pain and suffering, loss of amenities and of enjoyment of life is the sum of $69,500 calculated by reference to 20% of a most extreme case in accordance with s 3C(3) of the Motor Vehicle (Third Party Insurance) Act.
Past medical and rehabilitation expenses 109 Past medical expenses amount to the sum of $6,917.46 and rehabilitation costs have been the sum of $1,174.52, thus making an agreed total of $8,091.98.
Future medical expenses 110 Mr Van Beek does not have any requirement for future medical treatment apart from some occasional analgesia when his left shoulder complaint becomes symptomatic, as set out in Dr Home's report dated 26 May 2011. 111 Mr Van Beek also requires a vest for work to keep his shoulder comfortable. Each vest costs $150 and is likely to last a couple of years. There is no medical evidence to support this claim. There is no independent evidence of this cost, but it is likely to be a permanent requirement. 112 I will allow $1,000,
Travel 113 Mr Van Beek has not made a claim for travel expenses. (Page 21)
Past loss of earning capacity 114 On the medical evidence, but contrary to counsel's submissions and Mr Van Beek's evidence, Mr Van Beek was totally unfit for work from the date of the accident until about September/October 2004. He has not been able to return to a heavy manual handling job, such as is required to remove furniture. He has however been in full time work as a traffic controller or road maintenance worker since 22 October 2004. 115 Prior to the accident, Mr Van Beek was earning $633.35 net per week calculated as follows: 116 For the period from the date of the accident until 22 October 2004, Mr Van Beek therefore suffered a total loss of earnings of $22,800.24 ($633.34 x 36 weeks). I will allow interest thereon at 6% per annum ($1,368.01) for the past seven years, thus making a total of $9,576.07 for interest, or $32,376.31 in all. (Page 22)
117 It should be noted, that, since returning to work in 2004, Mr Van Beek has earned more in that employment than he was able to earn as a furniture removalist. He therefore did not claim any additional past economic loss of earning capacity beyond when he returned to work and on my finding, that was on 22 October 2004.
Future loss of earning capacity 118 Mr Van Beek has abandoned any claim for loss of future earning capacity.
Past and future loss of superannuation 119 Past loss of superannuation can be calculated by reference to Mr Van Beek's pre-accident gross weekly income of $817.12 per week or $42,490.24 per annum. The superannuation levy was 9%, being $3,824.12 per annum or $73.44 per week. His loss continued for 36 weeks, thus totalling $2,647.46. Interest thereon at 6% per annum ($158.85) for seven years is $1,111.95, resulting in a total loss of past superannuation of $3,759.39.
Past and future gratuitous services 120 There is no claim made for gratuitous services.
Summary 121 Damages can therefore be assessed as follows: Loss of amenities $ 69,500.00 Past medical expenses $ 8,091.78 Future medical expenses $ 1,000.00 Past economic loss $ 32,376.31 Past loss of superannuation $ 3,759.39 Subtotal $114,727.48 Less 1/3 apportionment of liability $ 38,242.49 Total $ 76,484.99
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