West v Rosenlis
[2021] VSC 41
•8 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2019 00443
| DANIEL WEST | Plaintiff |
| v | |
| CHAD ROSENLIS | Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 February 2021 |
DATE OF JUDGMENT: | 8 February 2021 |
CASE MAY BE CITED AS: | West v Rosenlis |
MEDIUM NEUTRAL CITATION: | [2021] VSC 41 |
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NEGLIGENCE – Personal injury – Plaintiff injured when defendant’s jet ski collided with plaintiff’s jet ski – No appearance by defendant – Defendant’s negligence was a cause of the accident and injuries sustained by the plaintiff – Assessment of damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | M Seelig | National Compensation Lawyers |
| For the Defendant | No appearance |
HIS HONOUR:
In February 2016, on the Goulburn River near Nagambie, a jet ski driven by the defendant, Mr Rosenlis, collided with a jet ski driven by the plaintiff, Mr West.
Mr West brings this proceeding against Mr Rosenlis alleging there was negligence by him in the driving, management and control of his jet ski which was a cause of the accident. Mr West claims damages for injuries he suffered in the accident.
In late September 2020 Mr Stirling, the solicitor who had represented Mr Rosenlis in the proceeding to that point, applied to cease to act on his behalf. An order was made by Clayton JR on 29 September 2020 giving Mr Stirling leave to file and serve a notice of ceasing to act. Subsequently the trial of 5 October 2020 was vacated and the proceeding was relisted on 4 February 2021. Notice of the trial date has been given to Mr Rosenlis. No step has been taken by Mr Rosenlis in the proceeding since Mr Stirling was given leave to cease to act on his behalf. Mr Rosenlis did not attend court for the trial.
The issues at trial on 4 February 2021 were:
(a) proof that there was negligence by Mr Rosenlis which was a cause of the accident and injury to Mr West; and
(b) assessment of damages.
Background
Mr West was born in 1976, and is now aged 45 years. He attended Preston Tech, left school at the start of year 9, and then worked as a truck jockey with his father, and later in Noosa Heads at a Coles store, with a business called Noosa Canvas and Vinyl, and for a period of about one and a half years operating a restaurant. In his early 20s Mr West returned to Melbourne where he worked in two different pizza shops for a total of seven or eight years, and in a fish and chip shop and milk bar for two years. Mr West was then out of work for a period of around two years.
Mr West said he fractured his left elbow in about 1985 or 1986, suffered a hernia in the right groin in about 2012/13 in relation to which he made a WorkCover claim, and injured his left knee in 2014. He had weight issues in the past but said he was very active in the period leading up to the accident and had reduced his weight to 104 kgs. He attended the gym frequently, enjoyed water sports in summer such as boating, knee boarding and skiing, was involved in sports such as netball and bowling with his children, and regularly went go-carting and played golf. He described his life as happy, and his relationships with his partner and children as good.
Mr West agreed he had scans taken of his low back before the accident. He said at the time he suffered the right groin hernia he experienced some back pain which was diagnosed as a bulging disc. He said he had some chiropractic treatment and recovered.
The accident
On 28 February 2016 Mr West and Mr Rosenlis spent a day jet skiing on Lake Nagambie with a group of family and friends. During the day the group left the lake and entered the Goulburn River, which at that point had a 5 knot speed zone.
Mr West said he was on the lead jet ski in the middle of the river, proceeding slowly in accordance with the speed limit. Mr Rosenlis was driving a jet ski some distance behind Mr West. A person in a nearby boat called out to get his attention, and Mr West released the throttle, allowing his jet ski to slowly drift to the left. At that point he turned and saw Mr Rosenlis’ jet ski coming straight at him at great speed. He said Mr Rosenlis’ jet ski was travelling much faster than the 5 knot speed limit, and Mr Rosenlis took no action to steer, manage or control his jet ski so as to avoid colliding with his jet ski. Mr Rosenlis’ jet ski struck the middle of Mr West’s jet ski, colliding with him in the process, and causing him injury.
On 3 November 2017 Mr Rosenlis pleaded guilty to and was sentenced on one charge of driving his jet ski in a manner dangerous causing serious injury, arising from the accident.
I conclude that:
(a) Mr Rosenlis owed Mr West a duty to take reasonable care in the driving, management and control of his jet ski to avoid causing him injury;
(b) there was a foreseeable risk of harm to Mr West if Mr Rosenlis failed to do so, which was not insignificant;
(c) having regard to all the circumstances, including the matters in s 48(2) of the Wrongs Act 1958 (Vic) (‘the Wrongs Act’), a reasonable person in the position of Mr Rosenlis would have taken precautions against the risk of harm to Mr West, which include driving his jet ski at a slower speed, keeping a proper lookout, and steering and controlling his jet ski so as to avoid colliding with Mr West’s jet ski; and
(d) Mr Rosenlis’ negligent driving of his jet ski was a cause of the accident and injury to Mr West.
The injuries
Mr West described the pain he experienced at the scene of the accident as ‘unbelievable’.
Mr West was transported by ambulance to the Goulburn Valley Base Hospital in Shepparton. The following day he was transferred to the Alfred Hospital (‘The Alfred’). There he was treated for the following injuries:
(a) Open fracture of the distal left humerus. On 1 March 2016 the orthopaedic unit performed open reduction and internal fixation of the fracture.
(b) Closed fracture of the left distal radius and ulna. On 1 March 2016 the orthopaedic unit performed open reduction and internal fixation of the fracture.
(c) Left haemopneumothorax treated with an intercostal catheter.
(d) Collapsed right lung secondary to thrombus. A right intercostal catheter was inserted.
(e) Multiple left sided rib fractures with fractures of the left 2nd rib, lateral 3-9th ribs treated with open reduction and internal fixation. On 9 March 2016 Mr West was taken to theatre under the care of the cardiothoracic unit for left rib fixation.
(f) Grade 3 splenic laceration. On 29 February 2016 Mr West underwent a spleen angioembolisation.
(g) Fracture of the base of left thumb. This injury was not diagnosed until the 10 March 2016. The plastic surgery unit recommended outpatient follow up.
Initially Mr West was admitted to ICU. He was commenced on physiotherapy and occupational therapy while still an inpatient at The Alfred, and was discharged to rehabilitation on 13 March 2016.
On 17 March 2016 Mr West was re-admitted to The Alfred and underwent surgery to the left thumb involving closed reduction and K wire fixation of the first metacarpal bone fracture.
Mr West was admitted to The Alfred for a third time on 26 March 2016 for treatment of a wound infection to the left forearm with a course of intravenous antibiotics.
On 30 March and 6 April 2016 Mr West was treated at The Alfred cardiothoracic outpatient clinic with complaints of ongoing pain and tenderness secondary to the rib injuries, which required control with oral opiate medication.
On 14 April 2016 Mr West attended the occupational therapy and hand therapy clinic at The Alfred. The K wires were removed from his left thumb. He complained of pain and reduced thumb movements. A splint was fitted and he was given active thumb range of movement exercises.
In reports dated 8 November 2018 and 11 March 2020 Mr West’s treating general practitioner, Dr Ala Alethan, confirmed he continued to suffer a range of physical and psychological symptoms and restrictions caused by injuries sustained in the accident, for which he was prescribed a range of medications, including opioid analgesics. Dr Ala Alethan stated treatment to March 2020 included attendances with a psychologist and psychiatrist, pain management provided by the Caulfield Hospital, and neurosurgical review at The Alfred. Dr Ala Alethan stated Mr West had been experiencing ongoing chronic pain in multiple sites since the accident, including his left chest, left abdomen, left lower knee/leg, left arm/forearm and lower back.
It is not clear when the lower back symptoms commenced. Dr Ala Alethan stated CT imaging of the lumbosacral spine was conducted in July 2018 due to ongoing pain.
Dr Seah, pain fellow at Caulfield Pain Management and Research Centre, stated that when Mr West first attended for treatment on 16 October 2018 he gave a history of having suffered injuries in a jet ski accident in 2016, which left him with residual severe pain in the side of his back, left upper chest and left flank. The issues found by Dr Seah were:
(a) post-thoracotomy neuropathic pain;
(b) discogenic lower back pain with radicular features;
(c) weight loss;
(d) current smoker;
(e) depression.
Treating psychologist Dr Ramagnano provided a report in relation to therapy sessions attended by Mr West in 2018, which included:
As a result of receiving very little psychological support post injury, Mr West’s maladaptive beliefs related to pain and negative thoughts and feelings associated with his injury were reinforced in his mind on a daily basis. His rumination and worry have caused him to feel helpless and hopeless about his future.
Mr West reported having made some significant changes in lifestyle 2 years prior to his accident. He reported he had lost weight, was living a healthier lifestyle, feeling more positive, confident and motivated. Mr West reported the accident has had a negative impact on all these areas.
Mr West has been diagnosed with the following:
Adjustment Disorder with Mixed Anxiety and Depression (Chronic)
Chronic Pain Syndrome
Dr Ramagnano noted Mr West did not attend regular therapy appointments, and was ambivalent about the effectiveness of treatment. She concluded Mr West’s physical injuries had a severe negative impact on his mental health, social and domestic areas of his life and on his capacity for work, and that his health prognosis was poor if left untreated.
In 2018 and 2019 Mr West was assessed by Associate Professor Arnold at the Caulfield Pain Management and Research Centre, who recommended he attend a pain rehabilitation program. Associate Professor Arnold noted Mr West suffered significant physical and psychological symptoms arising from his injury, and that he was unable to participate meaningfully in the treatment offered.
Mr West said he was unable to attend Caulfield Pain Management initially because of illness, and more recently because of COVID-19 restrictions. He intends to return for further pain management treatment when circumstances allow.
The following medico-legal reports were obtained at the request of Mr West’s solicitors:
(a) Dr J Henderson dated 14 March 2019;
(b) Mr T Kossman dated 31 March 2020;
(c) Dr D Weissman dated 8 April 2020; and
(d) Dr J Burdon dated 11 May 2020.
I will focus on the three more recent reports.
Mr Kossman, who is an orthopaedic surgeon, noted a pre-accident history of spinal issues, including x-rays of the cervical, thoracic and lumbar spine in December 2008 which demonstrated a retrolisthesis of L1 on L2 by 2mm. A CT of the lumbosacral spine in September 2010 was reported as demonstrating some pathology from the L3/4 to L5/S1 levels. There was also an x-ray and CT scan of the left knee in 2014 which demonstrated some pathology, including a comminuted and slightly depressed fracture of the posterior margin of the lateral tibial condyle. Mr Kossman performed a physical examination using videoconferencing. He diagnosed injuries consistent with those treated at The Alfred, to which I have referred above, adding aggravation of pre-existing lumbar spondylosis. He concluded Mr West suffered the following symptoms:
(a) Ongoing pain issues affecting his chest on the left side, his lower back, his left arm and back.
(b) Reduced mobility in both of his hips due to pain in back.
(c) Movement restrictions affecting his left shoulder joint, left elbow, left wrist and left thumb.
(d) Very sensitive forearm.
Mr Kossman said Mr West’s prognosis was guarded, that he would require further treatment of the lumbar spine and left arm conditions by way of medication, and that he may benefit from injections into the left shoulder and possibly the joints of the left thumb, physiotherapy and hydrotherapy. He concluded the injuries had a profound effect on all aspects of Mr West’s life, and gave the following opinion in respect of work capacity:
Mr West has in my opinion no work capacity to work in any physically demanding work or work where he has to walk long distances, on uneven ground, upstairs/downstairs, inclines/declines, climb up and down ladders, kneel, squat or carry heavy items weighing more than 5kg. Furthermore, he should avoid working with his upper extremities, work above shoulder or head height.
Dr Burdon, who is a consultant respiratory physician, said the chest injuries suffered by Mr West involved multiple left sided fractured ribs, a left haemopneumothorax, surgical emphysema and pulmonary contusions. He said the left sided rib fractures required stabilisation by open reduction and internal fixation, and that it was common following this type of surgery for the afflicted person to experience chest pain for a prolonged period, sometimes indefinitely. Dr Burdon said Mr West would require ongoing pain relief and management by his general practitioner and, for the foreseeable future, by a pain management specialist/service. He considered from the point of view of the chest injury Mr West’s prognosis was good, but that it was more likely he would experience regular respiratory tract infections.
Psychiatrist Dr Weissman expressed the following opinion:
The subject jet ski accident was emotionally distressing, traumatic and frightening for him as well as physically injurious and painful for him in an ongoing manner.
Mr West continues to suffer from and experience mild, classical and discernible, chronic post-traumatic stress and anxiety symptoms and traumatisation features directly due to the circumstances of the jet ski accident which occurred on 28 February 2016.
However he probably does not have a full-blown chronic Post-Traumatic Stress Disorder (PTSD). He has a subsyndromal PTSD or a partial PTSD.
He is also suffering from a moderate, mixed, reactive depressive and anxiety syndrome with frustration, irritability and grievance partly complicating his traumatisation syndrome above, and partly occurring as a consequence of, or secondary to, his accident-related pain, injuries, disabilities, limitations and restrictions.
He has also sustained and developed a chronic Adjustment Disorder with depressed, anxious and frustrated/irritable mood in this regard.
He said Mr West required another therapeutic trial of antidepressant medication. He concluded Mr West was at least partially psychiatrically incapacitated for work, and that since the accident there had been a significant decline, deterioration and downward trajectory in Mr West’s quality of life, level of enjoyment and pleasure, level of function, interpersonal relationships and socialisation. He considered Mr West’s psychiatric prognosis was guarded.
Occupational history post-accident
Mr West said at the time of the accident he was actively seeking employment. He said he was in the process of setting up a panel beating business in partnership with another person, and that he had been offered a position as a restaurant manager by a former employer. He said he intended to pursue the two occupations concurrently.
According to the history set out by Dr Weissman in his report Mr West intended to open the panel beating business in a factory premises owned by Mr Rosenlis or a member of his family. His business partner would operate the panel shop, and he would run the business. The factory lease commenced while he was in hospital. He was reliant on his partner, who was working full-time, to set up the factory. They were served with a notice by Mr Rosenlis’ father to vacate the factory. They moved the business to another factory premises, but it was under financial stress and had to be closed. Mr West makes no claim in respect of past loss relating to the panel beating business. No documents were produced by Mr West in relation to the panel beating business, and his former partner was not called to give evidence.
Mr West stated that because of his injuries he was unable to take up the position as a restaurant manager.
Mr West stated that later in 2016 he started to operate a pizza shop with his partner. He said he was unable to operate the business effectively because of his injuries and had to stop work at times. Mr West said that because he was unable to cope with the demands of the work the business ceased operating in March 2018. Mr West makes no claim for past loss of earnings for the period the business operated. No documents were produced in relation to the pizza shop business.
Mr West states that he has not worked since March 2018.
Loss of earning capacity
I was troubled by the loss of earning capacity claim. Mr West particularised a claim of over $950,000 for loss of earning capacity damages. No tax or earnings records, business records or other documents were provided supporting this claim. After a discussion at trial the matter was briefly stood down in order that tax and earnings records could be provided. When the trial resumed Mr West withdrew any claim for loss of earning capacity damages.
Non-economic loss damages
Mr West has satisfied the requirements of Part VBA of the Wrongs Act, and is entitled to recover damages for non-economic loss.
I conclude Mr West sustained the injuries described in paragraph 13 above, together with a psychological injury as described by Dr Weissman.
Mr West has required extensive treatment by way of surgery, hospital rehabilitation, prescription medication, psychological therapy and pain management. He has a continuing need for treatment.
I accept that Mr West sustained aggravation of pre-existing lumbar spondylosis in the accident, although the pre-existing condition of his lumbar spine, and the degree of aggravation caused by the accident, is somewhat unclear.
I observed three significant scars on Mr West’s left arm, on the inside and outside of the forearm and wrist, and a jagged scar in the area of the bicep.
I summarise the evidence of Mr West as to his symptoms, functional restrictions and loss of enjoyment of life as follows:
(a) He struggled returning to work in the pizza shop, and has not sought work since because he is concentrating on getting on top of the pain.
(b) He experiences significant and constant pain in the left side and back in the area of the rib fractures. The left side of his chest is sensitive to touch. He has sought surgical advice which is to the effect that no more can be done. More recently a procedure has been suggested, which may be a nerve block.
(c) When he coughs it feels like his rib cage is blowing out.
(d) There have been three infections to his left hand and recurrent chest infections.
(e) He suffers constant, shooting pain in his left arm, and restricted use of that arm and hand. There is a constant dull ache in his left thumb and excruciating pain if it is pushed back.
(f) He has been unable to return to pre-accident sports and activities.
(g) His weight has increased because of medication and reduced activity.
(h) He has reduced self-esteem and confidence, and feelings of depression.
(i) There has been a negative impact on relationships with his partner and children.
(j) He is unable to help around the house as he would like, and has consequent feelings of worthlessness.
Mr West said in the six months following the accident he required a great deal of assistance from his partner with showering, toileting, dressing and other activities. He now tries to do things for himself, but he is much slower. He attends his general practitioner regularly, and is prescribed medication. Currently he takes Tramadol morning and night, Endone as required, usually six to eight per week, Gabapentin for nerve pain, antidepressant Mirtazapine, Panadeine and sleeping tablets. Despite that, his sleep is poor. He feels that he requires more help with his mental health.
It was submitted for Mr West that $500,000 should be awarded for non-economic loss damages. In my view, that amount exceeds a fair and reasonable assessment. The evidence suggests that, at least at times, Mr West suffered issues in relation to his low back and groin, left leg, weight, lifestyle, unemployment and general level of activity before the accident. There have been issues to date with Mr West accessing recommended treatments, in particular for psychological therapy, antidepressant medication, and pain management which may be able to be remedied in future, resulting in some benefit to him in terms of his experience of pain, symptoms and functional restrictions. Mr West was able to return to at least some level of occupational activity in the pizza shop for 18 months from November 2016, though I accept this was done with difficulty and the experience of pain.
On the basis of all of the evidence I conclude a reasonable assessment of non-economic loss damages is $300,000.
Medical and like expenses
Mr West has particularised a claim for past medical and like expenses as follows:
(a) Medical and radiological expenses (proved by supporting documentation) $6,156.55
(b) Medication (supported by PBS patient summary) $548.63
(c) Travel costs for attending for treatment (1,239 kms at 66 cents per km) $817.87
(d) Total $7,523.05
I accept Mr West’s evidence supporting these expenses.
Mr West has particularised a claim for future medical expenses summarised as follows:
(a) 12 general practitioner visits per year, for life.
(b) Treatment with a psychologist for a period of 18 months, on a three-weekly basis, followed by review at a cost of $200 per session. This claim is supported by the opinion of Dr Weissman.
(c) Analgesic and anti-inflammatory medication, physiotherapy and hydrotherapy at a cost of $75 per week, for life. There is partial support for this claim by Dr Kossman.
(d) Cardiothoracic treatment including specialist review, radiology, pathology, lung function tests, medication for chest infections, hospital admissions, surgery/procedure for nerve blockade, and allied health. There is some support for this claim in evidence given by Dr Burdon.
The total amount claimed for future medical and like expenses exceeds $135,000. By far the largest claims are for orthopaedic treatment and management of over $68,000, and cardiothoracic treatment of almost $55,000.
For the following reasons I will not allow future medical and like expenses in the amounts claimed. First, the amounts claimed, particularly for orthopaedic and cardiothoracic treatments, are not reflected by the treatment accessed to date. While I accept that there has been some financial restriction on Mr West’s access to treatment, in my view the future claims for orthopaedic and cardiothoracic treatments are inconsistent with the pattern and degree of need for treatment to date. Second, the usual expectation would be for there to be a greater need for treatment in the acute and sub-acute period following injury, often followed by a decreasing need for treatment with passing years and altered lifestyle. Third, there is a degree of speculation about the level of need for future treatment and the degree to which it would be accessed by Mr West. The need for some future treatments is expressed by Mr Kossman and Dr Burdon as a possibility rather than probability.
I accept that Mr West is likely to require regular attendances with his general practitioner, prescription of analgesic and antidepressant medication, psychological treatment for a period of at least 18 months, pain management treatment, and some level of orthopaedic and cardiothoracic treatment in line with the evidence of Mr Kossman and Dr Burdon. Doing the best I can on the evidence I conclude a reasonable allowance for future medical and like expenses is in the range $40,000 to $45,000.
On that basis I will allow a total sum of $50,000 for past and future medical and like expenses.
Conclusion
I have concluded that:
(a) There was negligence on the part of Mr Rosenlis which was a cause of the accident and injuries sustained by Mr West; and
(b) A reasonable assessment of Mr West’s damages is:
(i) Non-economic loss damages $300,000
(ii) Medical and like expenses $50,000
(iii) Total $350,000
Judgment will be entered for Mr West against Mr Rosenlis in the sum of $350,000 for damages, together with an order for costs.
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