Wilson v Lambkin
[2010] QDC 254
•24 June 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
Wilson v Lambkin [2010] QDC 254
PARTIES:
JEROME RICHARD WILSON
(Plaintiff)v
MATTHEW LAMBKIN & ALLIANZ AUSTRALIA INSURANCE LIMITED (ACN 000 122 850)
(Defendants)FILE NO/S:
BD 2667 of 2008
DIVISION:
Civil jurisdiction
PROCEEDING:
Claim
ORIGINATING COURT:
Brisbane
DELIVERED ON:
24 June 2010
DELIVERED AT:
Brisbane
HEARING DATE:
29, 30 April 2010
JUDGE:
Griffin SC, DCJ
ORDER:
I order that the defendants pay to the plaintiff the sum of $81,718.32 together with interest on past care calculated according to the appropriate agreed mechanism.
CATCHWORDS:
NEGLIGENCE – CLAIM FOR DAMAGES – PERSONAL INJURY – LIABILITY – QUANTUM – where licensed driver collided with off road object – duty of care of inexperienced licensed driver – learner driver – driver training – numerous laps of isolated bushland road – whether “dangerous recreational activity” occurred – whether an “obvious risk” – voluntary assumption of risk – contributory negligence
COUNSEL:
G Mullins for the Plaintiff
G W Diehm SC for the DefendantSOLICITORS:
Slater & Gordon Lawyers for the Plaintiff
McInnes Wilson Lawyers for the Defendant
On the evening of 10 November 2006 at about 9.00 pm a motor vehicle, a Ford sedan driven by the first defendant Lambkin went off the side of Simpsons Falls Road, Bardon and ran into a culvert and smashed into a stone wall. The first defendant had been given permission to drive his father’s work car and had recently obtained his provisional driver’s licence. Two passengers were in the vehicle, one Telford, a friend of both the defendant and the other passenger Wilson the plaintiff. All received serious injuries, the most serious of which were injuries occasioned to the plaintiff who was hospitalized and later underwent operations.
The plaintiff claims that the defendant was negligent in the operation of the motor vehicle and his subsequent injuries were the result of the defendant’s negligence. At issue in this trial are both liability and quantum.
The second defendant was the insurer in these proceedings and both defendants were represented by the same legal advisers deny both liability and question the quantum of damages.
The facts
On the evening of 10 November 2006 the plaintiff met a school friend Telford and travelled in Telford’s manual Holden Astra to the home of the defendant Lambkin who convinced his father to allow him to use the father’s work vehicle. The three companions travelled to the area of Simpsons Falls Road and began each in turn to travel “circuits” of that road which was a dead-end road. The road was bitumen according to the photographs and sign posted at 50 kilometres an hour although at a number of speed bumps the advisory speed was 15 kilometres per hour. The plaintiff gave evidence that the trio went there because they were “bored and wanted to fill in time”. This is contrary to the plaintiff’s statement to police soon after the accident in which he says that the defendant was allowed one half hour use of the motor vehicle by the defendant’s father. Both the plaintiff and Telford gave evidence that the area was selected in order for the plaintiff to practice driving as he possessed at that time only a learner’s permit. Both Telford and the defendant held provisional driver’s licences, the defendant’s having been obtained some months prior to the night in question.
Although the plaintiff denied that in travelling these so-called circuits, each party in turn taking the driving of the motor vehicle, that the vehicle was operated at speed, Telford gave evidence that on the incline towards the dead-end he travelled over the speed limit. Furthermore, the defendant gave evidence that both he and Telford travelled at between 60 to 70 kilometres an hour on occasions although this was in cross-examination accepted as an estimate only and the speed may have been between 50 and 60 kilometres an hour on those occasions. Further, the defendant said that the plaintiff travelled, when driving the vehicle, at a lesser speed than he and Telford.
The effect of the evidence of all three was that their purpose for being at Simpsons Falls Road was an entirely unexceptionable one and that they did not nor did they intend to indulge in inappropriate driving or dangerous behaviour in the use of the motor vehicle. The purpose given by the plaintiff and Telford for their presence that night at Simpsons Falls Road was for the purpose of giving the plaintiff some driver training.
I reject that evidence entirely. It is inherently improbable. The plaintiff according to his own evidence had a learner’s permit for at least 11 months by that time and had been “training” on a manual Holden Astra used by Telford. The defendant’s vehicle which he used that night was an automatic Ford sedan and there was therefore in my view, little utility in the plaintiff’s “learning to drive” on such a motor vehicle. By the time of the incident his ability to steer a motor vehicle and generally manipulate a motor vehicle would very easily have been satisfied.
In fact the parties went to a place which was isolated, without street lighting and was in fact a dead-end road in a bushland area. Far from regarding the presence of the three friends as being legitimate driving activity, the place where they deliberately took the motor vehicle suggests that their purpose either before arrival or at least by the time the “circuit” activity started was for the driving of a motor vehicle in such a manner which would not be countenanced on a public street and for purposes inconsistent with properly obeying rules and regulations relating to the proper driving of a motor vehicle on a public road.
Some further flavour and atmosphere is provided by reference to the evidence of Telford who said that on two occasions he deliberately did “burn outs” and to the plaintiff’s evidence that Telford twice deliberately allowed the car tyres to skid on gravel although this latter description may be correlative with Telford’s description of doing “burn outs”.
On the evidence therefore I am satisfied that in pursuing this mindless circuit driving activity both Telford and the defendant on occasions deliberately exceeded the set speed limit of 50 kilometres an hour.
Furthermore, the continual repetition of circuits by the three companions provides further flavour to the purpose and type of driving activity in which they were involved. This was no mere driver training exercise for the plaintiff’s benefit.
At the end of these activities the uncontested evidence is that the defendant took the wheel of the motor vehicle to travel back to his home. Both the defendant and Telford have little or no recollection of the events that followed. The plaintiff’s recollection is that the defendant after taking the wheel of the vehicle at the dead-end section of the road operated the accelerator of the vehicle heavily and sped down the road eventually losing control of the motor vehicle and swerving off the road into a culvert where the vehicle hit a stone wall and the three parties were all injured.
During the course of this manoeuvre, the plaintiff, sitting behind the defendant called out for him to slow down. In a statement to police about a week after the events, the plaintiff said that the demand to slow down occurred just as the car was travelling on to the gravel.
Although this is somewhat inconsistent with the evidence at trial the speed with which events must have occurred lead me to accept the plaintiff’s evidence that at the first reasonable opportunity the plaintiff made that demand of the defendant. I do not consider on the evidence that the plaintiff allowed the defendant to continue this dangerous course of driving until the last minute when it was obvious an accident would occur. In fact in all other respects apart from that which I have mentioned, I accept the plaintiff’s evidence both on matters concerning the circumstances of the accident and in relation to the effect of his injuries which go to the question of quantum.
On this topic my impression of the plaintiff was that his evidence was considered and on occasions for example in relation to aspects of lasting disability, he made concessions which I consider to be consistent with a truthful witness.
I do not however hold the same view for witness Telford or the defendant. In Telford’s case I found his evidence to be somewhat guarded and in relation to a previous speeding episode to be patently evasive.
As to the defendant’s evidence I find that he was on occasions deliberately untruthful. For example when asked about his recollection concerning the traffic offence with which he was charged and the resulting court proceedings he affected to have no recollection of either the charge or the result of those proceedings. In the circumstances of his being the driver in which he was injured and his two passengers were also injured this simply is incredible.
Although this may well be regarded as a collateral issue, it is significant I think on the issue of credit and the acceptability of his evidence as a whole is diminished considerably by that view which I have formed.
The plaintiff in a statement to police said that there had been an agreement that the defendant had the use of the motor vehicle for one half hour. That agreement had been made between the defendant and his father. The defendant denied such agreement and because of a view I have formed as to the defendant’s evidence as a whole, I accept the plaintiff’s evidence in this regard.
I am further prepared to accept the plaintiff’s version of events as to how the accident occurred that is, that the defendant without warning or pre-planning and to the surprise of the plaintiff, sped down the hill and in doing so the vehicle left the road out of control.
Although I have accepted that there was a common behaviour amongst the three companions to drive the motor vehicle in a manner which would not have been permitted and tolerated on a public road and further although that on occasions involved some speed beyond the speed limit set for Simpsons Falls Road I am nonetheless satisfied that the defendant’s behaviour in taking the wheel of the motor vehicle for the final time and speeding down the hill was of a character and degree beyond what had occurred earlier that night. It was at a level of dangerousness far more serious than could have been contemplated or was part of the behaviour which had been earlier indulged in by the three companions. The effect of the plaintiff’s evidence is that he was taken by surprise by this behaviour in driving by the defendant. I accept that. Furthermore, I accept that it was not contemplated nor able to be foreseen by the plaintiff or any reasonable person. Furthermore, in the circumstances in which this driving happened, the plaintiff was not practically in a position to extricate himself from the danger which the defendant placed his passengers in by pursuing that course of driving.
As a result of the impact with the stone wall, all three parties were injured; the plaintiff suffering both superficial and what were later to be discovered severe abdominal injuries which required surgery, intensive care and a period of approximately 30 months rehabilitation. It is in respect of these injuries that the question of quantum arises.
The issue of liability
The plaintiff has helpfully set out the issues in respect of which the trial is conducted. They are as follows:
1. Did the defendant owe the plaintiff a duty to take reasonable care or was there no duty by reason of the alleged joint illegal enterprise? (This issue was abandoned at trial)
2. If a duty was owed, what was the relevant standard of care owed by defendant to the plaintiff?
3. Was the standard of care breached?
4. Was the risk that the plaintiff would suffer an injury an “obvious risk” within the meaning of s13 of the Civil Liability Act2003 and, if so, did the plaintiff voluntarily assume the risk of injury?
5. Was the activity a dangerous recreational activity within the meaning of s18 of the Civil Liability Act 2003 and, if so, was the harm suffered a result of the materialisation of an obvious risk of a dangerous recreational activity?
6. Was the plaintiff contributory negligent for embarking on the journey and participating in the activity and should that contributory negligence be 100%.
As to the first issue it was common ground at trial that the defendant at all times owed a duty of care to the plaintiff. A consideration of that however depends upon the operation of relevant provisions of the Civil Liability Act 2003. Those provisions are as follows:
s13 Meaning of obvious risk
(1) For this division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
(5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.
Examples for subsection (5)—
1 A motorised go-cart that appears to be in good condition may create a risk to a user of the go-cart that is not an obvious risk if its frame has been damaged or cracked in a way that is not obvious.
2 A bungee cord that appears to be in good condition may create a risk to a user of the bungee cord that is not an obvious risk if it is used after the time the manufacturer of the bungee cord recommends its replacement or it is used in circumstances contrary to the manufacturer’s recommendation.
s14 Persons suffering harm presumed to be aware of obvious risks
(1) If, in an action for damages for breach of duty causing harm, a defence of voluntary assumption of risk1 is raised by the defendant and the risk is an obvious risk, the plaintiff is taken to have been aware of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the risk.
(2) For this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
s17 Application of div 4
(1) This division applies only in relation to liability in negligence for harm to a person resulting from a dangerous recreational activity engaged in by the plaintiff.
(2)This division does not limit the operation of division 3 in relation to a recreational activity.
s18 Definitions for div 4
In this division—
dangerous recreational activity means an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person.
obvious risk has the same meaning as it has in division 3.
s19 No liability for personal injury suffered from obvious risks of dangerous recreational activities
(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the person suffering harm.
(2)This section applies whether or not the person suffering harm was aware of the risk.
The issue of dangerous recreational activity
It is undoubted and in fact common ground as I understand it that the plaintiff and his companions were indulging in a recreational activity. As to whether that activity was “dangerous” according to the Act, it is necessary to consider not only the activity itself but the circumstances surrounding which that activity was conducted.
While reference to designated speed zones and restrictions will always be relevant to a consideration of this issue in relation to the driving of a motor vehicle, it is I think trite to say that mere reference to and comparison with the speed of a vehicle and whether or not that was consistent with the speed requirements as signed does not provide a complete or absolute answer to the question of whether such driving activity was “dangerous” within the meaning of the Act.
In this case all parties, according to the evidence, knew the area and in particular that road. The plaintiff and Telford had been there before on occasions. The accident occurred at approximately 9 pm and there is no evidence to suggest that there were any other persons or vehicles in the vicinity where the parties undertook their driving activity.
The road was narrow but bitumen with some speed bumps which were sign posted. Although there was evidence that both Telford and the defendant drove the Ford sedan on occasions at a speed above 50 kilometres an hour (which evidence I accept) I do not regard on all the evidence that the activity of driving by any of the three prior to the defendant’s taking the wheel for the last time as involving a dangerous recreational activity.
Duty and standard of care
At the commencement of proceedings the second respondent abandoned an argument as to the absence of a duty of care. As to the issue of standard of care owed by the first defendant to the plaintiff, that standard is a standard of care to be expected of a reasonable driver even though the evidence discloses that the first defendant was not a particularly experienced driver. On the evidence in this case, the standard of care owed by the first defendant to the plaintiff was that of a reasonable driver and the defendant was required to exercise that the standard of care to the plaintiff was a standard to be expected of a reasonable driver.
On the evidence I conclude that the collision was caused or contributed to by the inability of the first defendant to properly manage and control the motor vehicle and the collision which occurred was a failure by the first defendant to exercise judgment and discretion in controlling the motor vehicle by reason of the speed and manner of the driving of the motor vehicle when with the plaintiff and Telford as passengers the first defendant as driver “put his foot down” and accelerated the motor vehicle. I am satisfied on the evidence that prior to the collision the plaintiff protested at the manner of the first defendant’s driving and asked him to slow down in circumstances where the first defendant was travelling at a speed that was substantially in excess of the speed which had been used by all three parties earlier in the evening when doing laps of the circuit on Simpsons Falls Road. The evidence I conclude is that Lambkin simply drove too fast at that time and drove differently and dangerously from the manner in which he had earlier operated the motor vehicle when all three parties were either drivers or passengers in the vehicle. I am satisfied that there was a breach of the appropriate standard of care by the first defendant.
Did the driving involve an “obvious risk”
In considering this issue as to whether the risk of injury to the plaintiff was an “obvious risk” within the meaning of s 13 of the Civil Liability Act 2003 it is necessary to consider this concept as it relates both to the second defendant’s defence under s 14 of that Act and the reliance placed on s 19 of the Civil Liability Act 2003.
Section 13 provides:
(1) For this division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
(5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.
Examples for subsection (5)—
1 A motorised go-cart that appears to be in good condition may create a risk to a user of the go-cart that is not an obvious risk if its frame has been damaged or cracked in a way that is not obvious.
2 A bungee cord that appears to be in good condition may create a risk to a user of the bungee cord that is not an obvious risk if it is used after the time the manufacturer of the bungee cord recommends its replacement or it is used in circumstances contrary to the manufacturer’s recommendation.
The risk considered in this context is whether the first defendant was likely to drive or would drive the vehicle in such a reckless and dangerous manner that the vehicle would leave the road and crash into the wall. That risk of crash in the circumstances was created because of a failure on the part of the first defendant to properly operate the vehicle. A consideration of whether that risk therefore was obvious is if that type of driving by the first defendant was an obvious risk. [1] The evidence on this topic may be summarized as follows: Lambkin was a licensed albeit inexperienced driver and on previous occasions prior to November 10 2006 and on the night itself there is no evidence that the plaintiff knew or had reason to believe that the first defendant would operate the vehicle in the way in which he did immediately prior to the crash when he took over as driver for the journey home. The activity of performing “laps” around the road circuit had been completed and I have found the first defendant’s manner of driving on the journey home was substantially different and dangerous from the driving of all three parties earlier that evening. Nothing, I conclude on the evidence, could have forewarned the plaintiff of the style of driving that the first defendant undertook for the journey home which resulted in the collision. There was therefore no “obvious risk” that the plaintiff could have known or foreseen about the first defendant’s driving which led to the collision.
[1]See s 13(5) of the Act
There is always the risk in driving or being a passenger in a motor vehicle that accident or collision will occur. That is not to say however that there is an “obvious risk” of the type contemplated by the Act. In this case I conclude despite the behaviour of the three occupants in the motor vehicle earlier in the evening that nothing in the quality or manner of the driving prior to the first defendant’s finally taking over the driving for the journey home could or did amount to an “obvious risk” as contemplated by the Act.
Voluntary assumption of risk
On the view that I have formed it is unnecessary to analyse further the provisions of either s 14 or s 19 of the Act. However, the defence of voluntary assumption of risk requires some proof that the plaintiff freely and voluntarily with full knowledge of the nature and extent of the risk … impliedly agreed to incur it. [2] On the evidence in this case should the driving of the defendant be regarded as a risk of the type contemplated by the Act there is no evidence that the plaintiff voluntarily agreed to incur that risk.
[2]See Imbree v McNeilly & Anor (2008) HCA 40 at para [81].
I accept the plaintiff’s submissions that even if the plaintiff did accept a risk that the defendant might exceed the speed limit from time to time during the course of doing “laps”, he did not accept the risk that Lambkin would drive so dangerously and recklessly as he rounded the bend driving the vehicle in such a way that he would lose control leading to a crash.
On the evidence in this case, the materialization and appreciation of the risk could only have come about following any risky conduct of another. On the evidence the plaintiff concluded that it was safe to ride in the vehicle and said that he would not have ridden in the vehicle if it was unsafe. [3]
[3]See Trancript T 45.40 to T 50
Was there a dangerous recreational activity undertaken?
The plaintiff submits that the “activity” was complete at the time of the accident and the group were on the journey home and furthermore in any event that activity was not dangerous.
Section 19 of the Act provides: a person is not liable in negligence for harm suffered by another person as a result of the materialization of an obvious risk of a dangerous recreational activity engaged in by the person suffering harm.
“Dangerous recreational activity” is defined to mean an activity engaged in for enjoyment, relaxation or leisure which involves a significant degree of risk of physical harm to a person. The “obvious risk” referred to has the same meaning as for Division 3 of the Act. Although I have concluded that there was no “obvious risk” although the activity was a “recreational activity” within the meaning of the definition for that activity to be dangerous it must involve “a significant degree of risk of physical harm to a person”. [4]
[4]See s 18 of the Act
The activity which I have concluded the three parties indulged in, before the first defendant finally took over to drive home was, although perhaps mindless and attended on occasions by some speed, nonetheless not an activity which properly could be said to be a dangerous recreational activity. In Lormine Pty Ltd v Xuereb[5] , Mason P with whom McColl and Hunt JA agreed observed:
“The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The capitalization must take place in the particular context in which the defendant places himself or herself.”
[5] 24 (2006) NSWCA 200
I conclude that any activities which all three indulged in during the course of doing “laps” and the burnouts by Telford such risk of injury which was likely to occur in these circumstances in any event was at a low level. On the evidence nothing of a similar quality of driving to the first defendant’s driving just prior to the accident had occurred on that night or in the past. The behaviour of the three parties prior to the driving by the first defendant could not properly in my view be categorized as a recreational activity that was “dangerous” within the meaning of the Act.
Contributory negligence
The basis upon which contributory negligence should be considered in this case is as to whether the plaintiff’s agreeing to ride in the motor vehicle gives rise to the notion of contributory negligence on the plaintiff’s part. Having regard to the views I have formed on evidence relating to the prior history of driving both on that night and other occasions, there is no evidence that Lambkin had driven in the past so grossly unsafely. In the circumstances therefore, I conclude that the issue of contributory negligence on the plaintiff’s part does not arise.
Quantum
It is relevant to set out the facts and circumstances of the plaintiff’s hospitalisations and recovery.
On admission to hospital, the plaintiff was diagnosed as suffering a contusion/abrasion on the left anterior chest at the base of the neck, a seatbelt injury and abdominal pain. A CT scan of the chest revealed a fractured first rib. He was treated conservatively and released on 23 November 2006.
Over the ensuing five days, he remained in significant pain and was vomiting. On 28 November 2006, he represented at the RBH. CT scans revealed perforation of the sigmoid colon and ileum. He was suffering from sepsis and peritonitis.
The plaintiff underwent a laparotomy with a Hartmann’s procedure and a small bowel resection of the terminal ileum on 29 November 2006. He had a repeat laparotomy on 2 December 2006 for sepsis, which involved a washout of his peritoneal cavity and pelvis.
The plaintiff was discharged from hospital for the second time on 27 December 2006. The discharge record of the Royal Brisbane & Women’s Hospital reveals that he was “too ill to start education until this last week. Able to change own pouches, but has not done full wafer change independently as reluctant to do his own care. Grandmother has watched changes.”
The plaintiff spent a considerable period of his second admission to hospital in Intensive Care. He was absent from work until 1 July 2007. During that period, he convalesced at home. As he was released with a colostomy bag and a stoma, he was required to change the colostomy bag 3-4 times a day.
On return to work on 1 July 2007, he needed to have the colostomy bag with him during the course of his employment. The stoma was ultimately reversed by a reversal of a Hartman’s procedure in December 2007. Thereafter, the plaintiff’s health improved.
The plaintiff was assessed by Dr Ringrose on 29 February 2008. By that time, the plaintiff was beginning to exercise, but felt his abdominal muscles were still weak. He had some mild general discomfort in the abdomen, but no significant pain. Dr Ringrose considered he had no permanent disability as a result of his intra-abdominal problems. There was some slight risk in the future of adhesion formation as a result of this surgery, but it was impossible to predict whether this would or would not happen. Dr Ringrose assessed the whole person impairment as 2%.
Dr Trevor Harris, Plastic & Reconstructive Surgeon, examined Mr Wilson on 21 July 2008. He noted a scar in the left pectoral region measuring 10 centimetres. He also noted extensive scarring of the whole of the anterior abdominal wall. In particular, there was a scar of 19 centimetres in length involving the area of the umbilicus. There was a marked depression of the whole scarred area up to a depth of 1.5 centimetres with no apparent herniation.
Dr Harris describes that the abdominal scar is quite ugly, being 19 centimetres in length and varying in width from 4 centimetres to 6 centimetres wide in its lower portion. There were also two smaller scars near the previous colostomy. It was noted that there was previous anterocutaneous fistula which closed spontaneously and therefore it is likely that the gut was adherent to the posterior aspect of the scar. An operation may involve entering the gut and hence the possibility of soiling of the wound by gut content.
Therefore, it would be desirable for a separate procedure to be performed to include any repair of the gut and then perhaps at the same time excision of the scar by the general surgeon and closure. A further assessment of the scarring should then be undertaken some months after such a procedure to assess the advisability of repairing the scar further. The general surgical repair of the scar and underlying tissues may be quite acceptable and therefore obviate the necessity for further plastic surgical repair. If the scar repair were acceptable, the degree of scarring may well be reassessed at 60/70% of the present assessment in relation to disfigurement.
Dr Harris expanded on this opinion in his further report of 27 April 2010. He reiterated that the decision whether the procedures would be conducted together or separately would be a choice for the surgeon. The costing of the repair of an antero-cutaneous fistula after excision of the scar would be in similar terms to that previously described. A recovery of 3-4 weeks would be necessary with an absence from work, if the work being carried out was manual in nature, of 3-4 months following recovery.
The plaintiff does not complain of significant ongoing problems, although complains that he feels “ashamed of the scar”. He also suffers from feelings of tightness during physical activity. The scar is depicted in Exhibit 4 and is significant.
In summary, the plaintiff has suffered a significant physical injury for which he has required a lengthy period of hospitalisation and, to date, three surgical procedures. A fourth and fifth surgical procedure in the future is likely. The plaintiff is left with significant scarring.
The plaintiff’s argument as to general damages is as follows:
1. An assessment of general damages in a case involving multiple injuries pursuant to the Act requires a four stage process:
(a) The court must identify the injuries and categorise each injury within an ISV item from Schedule 4 of the Regulations;
(b) The “dominant injury” must be identified;
(c) The court must determine whether the ISV range for the dominant injury adequately reflects the combined adverse impact of all injuries. If it does, the court may assess the ISV at the top of the range. If it does not, the court may make an assessment higher than the maximum dominant ISV, but rarely more than 25% higher; and
(d) If the 25% uplift does not adequately reflect the combined value of the injuries, the court can assess a higher ISV.
The heads of damages the subject of agreement are as follows:
Past economic loss $25,308.10
Interest $3,391.15
Past loss of superannuation benefits $2,277.72
Special damages/out of pocket expenses $1,617.85
Interest $83.50TOTAL AGREED: $32,678.32
The damages which are contentious are:
General damages
Future economic loss
Future special damages
Past care both in hospital and not in hospital together with interest.
General damages
The plaintiff submits that the relevant injuries and their associated items under the Regulation are the scarring (Item 55), the bowel injury (Item 73) and the fractured rib (Item 39). The dominant injury is agreed to be the scarring (Item 155) with a maximum ISV of 25.
In this case there were a number of surgical procedures including re-admission to hospital in the Intensive Care Unit, a serious bowel injury which require a stroma and bag for approximately 12 months as well as a rib fracture. The scarring itself is disfiguring and although the defendant submits that the use of clothing will alleviate the problem nonetheless the plaintiff is a young man and the scarring is at the side of his chest and the stomach. On his evidence which I accept this is a significant issue for him. Objectively of course, I think this is so as well.
A proper appreciation of the level of scarring together with the associated injuries, the length of time over which he required medical treatment, the separate bowel and rib fracture injuries to my mind including an uplift is an ISV of 22. That is $29,600.00.
The defendant submits that an appropriate ISV level be set at 18 including an uplift. I do not however consider that such a level properly reflects the combination of injuries together with the level of scarring.
Economic loss
The figures for economic loss and interest are agreed at $25,308.10 and interest of $339.15. The plaintiff submits that there is a basis for an award for future economic loss. Such economic loss is governed by s 55 of the Act. Sub-section 1 provides:
“If a court is considering making an award of damages for loss of earnings that are unable to precisely be calculated by reference to a “defined weekly loss” then the section applies.”
Sub-section 2 provides that the court:
“May only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history … .”
The question is whether there is a basis for the provision of future economic loss in circumstances where loss of earnings is unable to be calculated precisely by reference to a defined weekly loss.
The plaintiff presently works as a storeman and his work of course was interrupted during the period of the injury. His evidence is that he had and continues to have an interest in joining the armed forces or the police force. On the evidence I am satisfied that his injuries have almost entirely resolved although he still experiences some problems in the physical activity of stretching together with the injuries to his mid and upper body. There is a minor component in all of this of a period of time lost to him in investigating and being physically able to pursue other career interests. Furthermore on the evidence I consider that there is a very low level of likelihood that his career opportunities in the future will be impeded although I accept that there is some modest value to be placed on this. The figure of course is not capable of any precise calculation as to the nature of this.
Together with this is the possibility of loss of time in whatever employment he is pursuing when recovering from the effects of an operation or operations which he proposes to have for the reduction of the scarring on his body. I accept that he is presently determined to pursue this option partly for cosmetic reasons which are perfectly understandable because of the disfiguring nature of the scarring on his body.
The medical evidence as to the extent of the operation or operations which will be required and the length of time necessary off work is imprecise. This is unsurprising because of the nature of the intended operation or operations and the possible complications that may arise. This provides another example of a quite imprecise assessment of what will or may occur in the future. I have no doubt that some allowance should be made for his however calculating the loss of earnings at $500.00 per week over a period of eight weeks.
That figure together with a very modest allowance for loss of future earnings, the limitation in career choice should be set at a global figure. A total award of $8,000.00 as a global figure is appropriate for this head of damages.
Past care in hospital and out of hospital.
The plaintiff relies on the evidence of himself and his grandmother/carer Ms Harold in particular on the schedule of care. [6] The parties have agreed that the rate for domestic care and assistance is $18.00 per hour. The evidence describes[7] as to Ms Harold’s involvement for assistance in the provision of assistance for her grandson of “a couple of hours a day when he first came out and then it was only you know maybe an hour or two a week”.
[6]Exhibit 2 at pp 59 and 60.
[7]T 169.20.
The evidence is that the plaintiff was required to use a colostomy bag for a period of approximately 12 months and that in particular he had difficulties bending and stretching. On the evidence I have no doubt that Ms Harold rendered considerable assistance to the plaintiff when he returned home from hospital in the early stages of his recuperation. However on the evidence I am also satisfied that the plaintiff recovered well during the year following the injuries and returned to work in July of that year.
However a threshold put provision of a Griffiths v Kerkemeyer award is provided for in section 59 of the Act which provides that damages for gratuitous services are not to be awarded unless the services are necessary and have been provided for at least six hours per week for at least six months. On the evidence I am not satisfied that although Ms Harold did provide significant assistance when the plaintiff returned from hospital that assistance is at a level of six hours per week lastly for six months or more. No award can be made for this claim.
Wilson v MacLeay damages.
A claim is made under this head for assistance given to the plaintiff whilst he was in hospital by his carer grandmother Ms Harold. Evidence given by the grandmother Ms Harold together with particulars in exhibit 2 (pages 59 and 60) demonstrate that care was provided to the plaintiff whilst in hospital between 10 November and 23 November 2006 and 29 November 2006 and 24 December 2006. It is entirely conceivable in my view that a relative may be able to provide in a hospital setting general assistance and company and supplement hospital care particularly for a patient living with the effects of operations and a medical condition suffered by the plaintiff whilst in hospital during those two periods. This is especially so I think for a patient in intensive care or in those circumstances the hospital care is likely to be itself more intense general assistance and company for a patient in intensive care is consequently likely to be more valuable assistance. A claim is made for 117 hours in this regard. On the evidence I consider an appropriate award of 80 hours at $18.00 per hour to be appropriate that is $1,440.00.
As to future special damages the plaintiff has given evidence which I accept that he intends to pursue surgery recommended by Dr Harris. It is likely that two surgical procedures would be involved; gastrointestinal intervention together with plastic surgery. There is no precise evidence of the combined costs of the two surgeries from two independent specialists in relation to each surgical procedure although Dr Harris whose expertise is in one field only suggests a figure in the order of $20,000.00 to $26,000.00. From the evidence I conclude that in fact the extent of surgery or separate surgeries will very much depend on decisions made by the surgeons during the course of the procedures. On this evidence it is therefore not possible to arrive at a precise figure, however I consider that the sum of $10,000.00 should be allowed in this regard.
Orders
I order that the defendant(s) pay to the plaintiff the sum of $81,718.32 together with interest on past care calculated according to the appropriate agreed mechanism.
I will hear submissions as to costs.
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