Williams v Williams
[1990] TASSC 119
•23 July 1990
Serial No B42/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Williams v Williams [1990] TASSC 119; B42/1990
PARTIES: WILLIAMS, Leonie Joy
v
WILLIAMS, Brian
FILE NO/S: 3226/1985
DELIVERED ON: 23 July 1990
JUDGMENT OF: Wright J
Judgment Number: B42/1990
Number of paragraphs: 33
Serial No B42/1990
List "B"
File No 3226/1985
LEONIE JOY WILLIAMS v BRIAN WILLIAMS
REASONS FOR JUDGMENT WRIGHT J
23 July 1990
The plaintiff, now aged 33 years, sues her husband for damages for personal injuries caused to her in a motor vehicle accident on 20 February 1984. Liability is not in issue and interlocutory judgment for damages to be assessed was entered on 8 December 1989. The defendant called no evidence and did not challenge the veracity of the plaintiff or her witnesses.
The plaintiff's injuries were sustained when a motor vehicle being driven by her husband left the road and rolled over as it was travelling along the Lyell Highway from Queenstown to Hobart. The plaintiff's left hand was jammed between the passenger door frame and the ground and, as a consequence, she sustained a very severe degloving injury to the back of the hand and the fingers of that hand. A number of photographs taken at intervals between the day of the accident and the present time, provide graphic illustration of the extent of this injury and the progressive recovery that has been made.
The plaintiff was educated at the Elizabeth Matriculation College in Hobart. Then, having decided to pursue a vocation for teaching, she attended the Tasmanian College of Advanced Education. After three years, she secured a diploma in teaching and after a further year, completed a Bachelor of Education degree. The following year, 1980, she took up a position at the Scottsdale Primary School and after a year's employment in that position, she obtained her teaching certificate. Whilst at Scottsdale, she met her husband through a mutual interest in Venturer scouting and after completing two years' service at Scottsdale school, she transferred to the south of the State where she married in January 1982. Thereafter she held teaching positions at Lansdowne Crescent Primary School for one year and one term and then at Lenah Valley Primary School for five weeks. She left this employment to prepare for the forthcoming birth of her first child, Tamika who was born in August in 1983. Tamika was six months old at the time of the plaintiff's injury.
Before the accident the plaintiff and her husband had decided that she would not resume employment until after their last child had commenced attending school. They now have three children and, on the basis of the timetable which they set in 1983, the plaintiff would not have been contemplating a return to the work force until 1992 when the youngest child is due to commence primary school. However the plaintiff says that in view of the family's financial circumstances she has been obliged to give consideration to taking part–time employment in recent years and would already have taken such employment had she been physically capable of doing so.
Whilst the plaintiff was substantially employed in the teaching profession before her marriage, she had taken three months' employment in the kitchen of the Fox and Hounds Hotel at Port Arthur following the completion of her thesis in 1979 and before she took up her appointment at Scottsdale. It is plain that she enjoyed cooking and at one stage contemplated setting up her own restaurant. It is claimed, and is scarcely disputed, that this avenue of employment is no longer open to her as a consequence of the serious injury which she sustained.
Before the accident she enjoyed good health and was actively involved with the Venturer scouting movement. In this capacity she participated regularly in numerous outdoor activities such as water skiing, parascending, abseiling, rock climbing, caverneering, rafting and kayaking. She also enjoyed squash, badminton and swimming. Although her right hand appears to be her dominant hand which she uses for such activities as writing, she considered herself to be ambidextrous to some degree. She was a competent and busy seamstress and she also enjoyed embroidery and knitting. She made some of her own clothing and on one occasion, produced a stock of aprons for sale in her husband's mobile clothing business. Because of their mutual and well established interest in the Venturer scouting movement, I am satisfied that notwithstanding the increasing demands of a young and growing family, the plaintiff and her husband would have continued their active involvement in outdoor activity of the kind described for a considerable period of time. In fact they are both still heavily committed to the scouting movement although the plaintiff's capacity to participate in outdoor activity has been extremely limited since the accident.
As a consequence of the accident, the plaintiff sustained, in addition to the serious degloving injury to the left hand, lacerations to the head and shoulder which required suturing. Her recovery from these last mentioned injuries was uneventful and it is not suggested that they now cause her any residual disability. However as already mentioned, the injury to the left hand was very serious indeed. The exposed flesh was deeply contaminated and the bones of the hand were exposed. The initial pain was excruciating. The plaintiff was taken by ambulance to the Ouse District Hospital where she received some emergency treatment to the injury. She was then taken to the Royal Hobart Hospital where the first of many operations was carried out by Mr M.J. Pohl, a specialist plastic surgeon. He found a severe crushing injury which included degloving of the left ring finger, a compound comminuted fracture of the left little finger with a loss of soft tissue. There was also a loss of soft tissue over the back of the left hand, over the left index, ring and middle fingers, including loss of the joint capsules of those three fingers dorsally. There was also a loss of the extensor mechanism on the back of the hand.
Immediately after her admission, Dr Pohl debrided the massive wound to her hand and sutured the lacerations to her scalp. The following day, to the great dismay and distress of the plaintiff, he informed her that it would be necessary to amputate the left ring finger and that it may even be necessary to amputate the little finger on that hand. On 22 February 1984, the ring finger was removed and the remaining flesh from that finger was filleted and rotated to form a flap over the degloved area on the back of the hand. On 29 February, further debridement of the wound occurred and a split skin graft was placed on the back of the left hand, the skin having been taken from the plaintiff's left hip. The donor site for this procedure has healed well and is not a source of discomfort or disability for the plaintiff.
Three weeks after her admission on 13 March 1984, the plaintiff was discharged from the Royal Hobart Hospital. Whilst in hospital, pregnancy tests had confirmed that she was expecting a second child and not surprisingly she became very concerned about this in view of the fact that she was receiving strong medication for the continuing pain in her injured hand. She thought that this may have some seriously adverse effect upon the unborn foetus. She was also distressed that as a result of her enforced stay in hospital, her developing relationship and bonding with Tamika had been substantially disrupted. However, there is no evidence to suggest that this has created any long term emotional problems for the plaintiff or her eldest daughter. The plaintiff's concerns for the welfare of her second child were only removed when the child was born normally approximately eight months after the accident.
The plaintiff, who appears to have been fastidious about her personal appearance, was initially repulsed by the grotesque appearance of her hand following the initial procedures which I have described above. However, despite her initial distress, it is plain that she was able to adopt a more philosophical attitude with the passage of time and that she is now well adjusted to her serious disability, although I am satisfied it is still a source of frustration and unhappiness to her.
Following her discharge from hospital, she was assisted by her husband and an employed housekeeper in her day to day tasks around the home. She said, and her husband confirmed, that she is an extremely independent individual and she soon found ways to improvise the performance of many of her domestic chores. She continued to have difficulty however in such things as washing her hair and fastening clothing. She was also unable to bathe or dress Tamika and she relied upon her husband and the housekeeper to perform such jobs as cooking, ironing, washing and cleaning. She required assistance to cut her food and she was generally very dependent upon the assistance of others.
Initially the plaintiff had difficulty sleeping because she had to rest with her hand elevated and this forced her to sleep on her back, a position to which she was not accustomed. A great deal of the pain in her hand had gone by the time she left hospital, although there was still a tendency for the hand to ache if it was not kept in an elevated position. She attended regularly for physio and other occupational therapy and although adjusting to the appearance of the deformed hand, she found that she had a tendency to cover it with her right hand to prevent it being observed by other people. This is a habit which has continued to the present time. The little finger was deformed and bent at a strange angle to the hand and, initially, with the aid of physiotherapy the plaintiff was able to restore some movement to the index and middle finger. However, as a result of, or in spite of, subsequent surgical procedures, that mobility has been lost. The plaintiff's thumb had not been injured in the accident and the wrist had not been damaged. The movement in the three remaining fingers however was minimal, but she was able to achieve some slight grip between the thumb and those fingers. She found that the damaged hand was vulnerable to trauma from knocking it against furniture and other objects. This type of minor injury, though infrequent, was, and still is, a source of excruciating pain whenever it occurs.
In April 1984 the plaintiff attended Mr Pohl's rooms for the removal of K wire which had been used to stabilize the injured joints of her fingers but she delayed a further admission to hospital for necessary surgery until after the birth of her second daughter, Kirsty. Regrettably, the Motor Accidents Insurance Board decided that the expense of employing a housekeeper was no longer warranted thereafter and, because of the limited financial resources of the plaintiff and her husband, they were unable to continue to employ a housekeeper on a daily basis. They did however secure the services of a friend, Mrs Marker, and paid her for four hours a week over the next five weeks.
In February 1985 when her daughters were aged 18 months and 4 months respectively, the plaintiff re–entered hospital. During her sojourn there, her children were cared for by her parents–in–law at the family home at Blackmans Bay.
With a view to correcting several residual deformities and disabilities, Mr Pohl carried out further surgical procedures at the St. Helen's Hospital on 18 February 1985. He then inserted silastic tendon spacers in the middle and index fingers with a view to providing a pathway for subsequent tendon grafts. He also corrected the deformity of the little finger by performing a fusion of the distal interphalangeal joint. The plaintiff was discharged from hospital on 23 February 1985 and was re–admitted for completion of these procedures on 7 July 1985. Between February 1985 and July 1985, the plaintiff undertook an intensive course of physiotherapy at Kingston. On 8 July 1985, Mr Pohl performed extensor tendon grafts to the middle and index fingers. K wire was also removed from the fused left little finger, following which the plaintiff was discharged from hospital on 14 July 1985. Regrettably, the tendon graft did not restore movement to the plaintiff's damaged fingers and she feels that since that time she has developed no useful increase in function. Mr Howard Bye, who gave evidence for the plaintiff, thought that she may be understating the value of the operations to some extent as she had told him there was some lessening of pain from these procedures and thus, he thought, there was likely to be some functional improvement in the hand. I am sure that the plaintiff did not intend to mislead, but I think the position is probably as stated by Mr Bye.
Nonetheless the plaintiff is still substantially disabled. She is unable to hold a cup and saucer in her left hand with any degree of confidence. She is unable to manicure the fingers of her right hand. She cannot grasp a doorknob or turn on a tap and she has difficulty in opening screw top jars and cartons. She is unable to type with her left hand or fasten small items of clothing or jewellery. Surprisingly, she is able to tie shoelaces and she can still sew and knit, but her speed and accuracy have been severely curtailed and, in performing household chores, she finds that the time needed to complete any given task has effectively doubled when compared with her speed prior to the accident. She has however, adapted to doing the majority of tasks around the house with her uninjured right hand using the left thumb and elbow to provide limited stabilizing assistance. She finds that cold weather causes her to lose sensation and mobility in the left hand. She has not played squash since the accident, mainly because she is concerned that she may injure her damaged hand in the course of vigorous play. She has not been swimming since the accident mainly because she does not feel confident in being able to do this properly.
The plaintiff's third child Timothy, was born on 9 May 1986. With the assistance of her husband and the accelerated independence of her two young daughters, she found she was able to cope with the new baby. However, following the operation in July 1985, it had been found that the plaintiff's middle and index fingers were developing a condition known as ulnar drift, that is, they were drifting sideways towards the little finger. To correct this condition, Mr Pohl arranged to perform a further operation at St. Helen's Hospital on 14 September 1987. He then carried out a fusion of the metaphalangeal joints on the left index and middle fingers. He removed a foreign body from the back of the hand and removed further K wire from the little finger on the left hand. The plaintiff was discharged from hospital on 18 September 1987 and once more undertook a course of physiotherapy. Once more, she was aided initially by her friend and neighbour Mrs Marker, who assisted her in doing some of the heavier housework.
Over the next twelve months or so, she developed a swelling in the right wrist. She consulted Mr Bye in respect of this condition and he found that a ganglion had formed in that area. He surgically removed the ganglion at St. Helen's Hospital on 28 February 1989. Although Mr Bye was unable to say that the ganglion had developed as a direct result of the plaintiff's over use of the right wrist, he expressed the opinion that it had become symptomatically accentuated as a result of the plaintiff's heavier than usual dependence upon the function of her right hand. I have no difficulty in accepting this assessment and I think that the removal of the right wrist ganglion should properly be regarded as compensible in these proceedings. Mr Bye anticipates a 10% chance of recurrence of that condition and this is something that must also be taken into account. It is, no doubt, a matter of some concern that any future episodes of disability in the right wrist may produce an overall but temporary disability in the plaintiff of a substantial magnitude.
Asked to describe her present condition and the use that she could make of her left hand, the plaintiff said:
"Well it assists me in performing my ironing for example and some of my household tasks. I can look after myself. I can look after the children. If it is something that requires the full use of the two full hands, then I can't do it."
She says that she finds the thumb of some assistance in preparing meals, hanging out the washing and lifting relatively light objects. She finds that her pinch grip is not very strong but the hand is of some minor assistance to her. The hand is substantially deformed but the skin grafting has healed well. Nonetheless, it has a definite claw like appearance and I am not surprised that the plaintiff is still embarrassed by the way it looks.
The plaintiff ceased her involvement with the Venturers' group at the end of 1989, principally because she found it very frustrating that she was no longer able to participate in the many outdoor activities that I have described. In partial compensation for this deprivation however, she has undertaken the responsible position of State Commissioner for Joeys, which is a new section of the Scouting movement for six and seven year olds which has been established in Australia recently. In this way, the plaintiff will be responsible for co–ordinating the establishment of the Joeys' section in Tasmania. As may be expected, Joey activities will be basically games, art and craft, day outings and family involvement, but without the vigorous weekend activity which was a feature of the Venturer group.
The plaintiff is able to drive a car successfully since the accident, but without power steering she would find this difficult. She also finds a certain amount of difficulty operating the hand brake on her vehicle which is situated on the left hand side of the driver's seat. She is self conscious about the appearance of the hand, particularly so far as children are concerned. She finds that they have a tendency to comment upon the extent of the injury and this causes her some embarrassment. She also found that Kirsty had a tendency to be repulsed by the hand for a time and understandably, she is a little apprehensive as to how children may react to the injury if she resumes her occupation as a primary school teacher.
In the latter part of 1988, as a result of financial necessity, the plaintiff undertook some relief teaching at the Technical College at Hobart. The students involved were much older than the plaintiff had been used to prior to her marriage when, despite her obvious academic proficiency, she had chosen to engage in primary, rather than secondary, school teaching. The plaintiff believes that she could cope physically with primary school teaching, but she envisages difficulty in handling small children and undertaking some of the physical work necessary in that job.
Evidence called from Mr Murray Yaxley, the principal recruitment officer for the Tasmanian Education Department, and Mrs Sheridan Lendrum, the co–ordinator of the Kingston Child Care Centre, tended to reinforce the plaintiff's misgivings in this respect. The major impediment to the plaintiff's re–employment in primary school teaching however, appears to be the very strong competition which exists for any vacancy occurring in this area at the present time. There is clearly an over supply of primary school teachers in the southern part of Tasmania and, irrespective of the plaintiff's injury, I would regard her prospects of re–employment in that field as very slim in the foreseeable future. When vacancies do occur, the plaintiff will be at a disadvantage compared with applicants who have no physical disability. As Stephen J observed in Wade v Allsopp (1976) 10 ALR 353 at p361:
"... whereas diminished capacity to perform useful services may be expressed by a percentage figure the process of selecting one from a number of applicants for employment is, on each occasion, an all or nothing affair in which the applicant with diminished capacity may each time be wholly unsuccessful."
On the other hand, it is plain from the evidence of the plaintiff and her husband, that she was a dedicated primary school teacher and Mr Murray Yaxley's evidence satisfies me that she was regarded by the Education Department as a very efficient and gifted teacher of small children.
I think the plaintiff clearly has a capacity to teach at secondary school level although her subject choice of mathematics and geography is an unusual one and would make her placement difficult. Furthermore there is an over supply of secondary teachers at the present time and the plaintiff's only realistic method of rejoining the teaching profession would appear to me to be in registering as a relief teacher and taking on relief work for some months or years before expecting to secure full time employment. It is plain that several areas of employment which she may otherwise have considered, such as secretarial work, computer operation, or typing, will now be beyond her unless she is lucky enough to find a sympathetic employer. On the basis of the detailed history she gave of her accomplishments, although she was not trained for any of these positions before the accident, she had the intellectual and physical capacity and also the resolve and purpose necessary for her to qualify in any of these fields. Bearing in mind the limited use that she has in her left hand, she would not now be suitable for unskilled physical work such as cooking, waitressing or domestic cleaning. There can therefore be little doubt that she has suffered a serious overall diminution of choice in respect of her future employment and that she will be substantially disadvantaged in the event of competition from fully able bodied applicants for the same position.
On the other hand, she is an attractive, articulate, intelligent woman with an outgoing disposition and therefore, with suitable retraining, I think that there are still many areas of gainful employment which are open to her.
Whilst it is not possible to assess her loss of earning capacity in any precise or mathematical way, it is plain, I think that the injury will impinge upon her capacity to earn income in the future. In his very eloquent final address, Mr Denehey for the plaintiff, directed me to the provisions of a number of wages' awards which, whilst helpful, provide no firm foundation for an assessment in a case of this kind. The plaintiff told me, and I have no reason to doubt her, that her intention was that upon re–entering the work force, she would continue in paid employment until she was aged 60 years. The plaintiff gave brief evidence that she had been looking for work for some time prior to the trial, although she had only actually applied for one position at the Kingston Child Care Centre. However, in my opinion there is no firm basis upon which I can or should make the assumption that she has been deprived of any reasonable opportunity to work during the last 18 months or so as a result of the injury to her hand. Therefore no allowance will be made for past economic loss.
In looking to the future one further matter must be considered. Because of the proximity and the immobility of the index and middle fingers of the left hand, the plaintiff experiences difficulty cleaning between these two digits. This in turn gives rise to itching and possible infection and it has been suggested by Mr Bye that syndactylisation may become necessary in the future. This would fuse the flesh between the two fingers for part of their length and would eliminate this tendency to infection, but of course it would also increase the cosmetic disability of the hand to some degree. It would also require further surgical intervention and after her numerous experiences in the past six years, it would not be surprising if the plaintiff resisted this course for as long as possible. The plaintiff also has a degree of wasting in the left arm, due to lack of use and there is a small, but appreciable difference in the circumference of the left and right upper limbs.
Mr Bye and Mr Christopher Edwards, a consultant plastic surgeon, both placed the plaintiff's residual disability of the left hand in the order of 60%–80%. Mr Pohl said 70–75%. All in all I think it reasonable to regard the hand as being 75% permanently disabled. The plaintiff has had numerous surgical procedures carried out and extensive physiotherapy. Whilst the surgery was all plainly necessary and desirable, it has unfortunately failed to produce any significant long term improvements in the use of the hand. Fortunately for the plaintiff, the hand is no longer a source of chronic pain but initially it was very painful and from time to time she suffers from acute episodes following minor trauma. She is sensitive to the hand's appearance and from time to time is rudely reminded of her misfortune by thoughtless remarks. She has coped well with her handicap and has surmounted many obstacles and will, I think, continue to do so in future but there is no denying that she has sustained a disfiguring and disabling injury of considerable significance.
With these considerations in mind, I assess damages as follows:
1 Pain, suffering and loss of amenities $ 42,000.00
2 Lost earning capacity $ 70,000.00
3 Allowance for possible future surgery $ 1,500.00
4 Housekeeping (as claimed) $ 418.80
5 Griffiths v Kerkemeyer claim
(as claimed 26 April 1990 and
amended at trial) $ 3,780.00
Total $117,698.80
I have not added in the benefits received by the plaintiff from the Motor Accidents Insurance Board because in circumstances such as the present where contributory negligence is not in issue, I think that it is unnecessary to do so.
There will be final judgment for the plaintiff for $117,698.80.
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