YOUARD v Barr
[2000] WADC 207
•15 AUGUST 2000
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: YOUARD -v- BARR [2000] WADC 207
CORAM: WILLIAMS DCJ
HEARD: 20-21 JULY 2000
DELIVERED : 15 AUGUST 2000
FILE NO/S: CIV 4259 of 1999
BETWEEN: GRAHAM RODNEY YOUARD
Plaintiff
AND
CHRISTOPHER JAMES BARR
Defendant
Catchwords:
Damages - Assessment - Personal injury - 59 year old sub-contract aluminium door and window installer - Injury to right elbow - Aggravation of pre-existing arthritis to left knee
Legislation:
Nil
Result:
Plaintiff entitled to judgment in sum of $158,036.78 including loss of amenities $45,000, past loss of earning capacity $56,254.69 and future loss of earning capacity $29,375.
Representation:
Counsel:
Plaintiff: Mr M Herron
Defendant: Mr G Bourhill
Solicitors:
Plaintiff: Gibson & Gibson
Defendant: Phillips Fox
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Western Australia v Watson [1990] WAR 248
Medlin v SGIC (1995) 69 ALJR 118 CLR 1
Potter v SGIC (1990) A Tort Rep 81-015
Neal v CSR Ltd (1990) A Tort Rep 81-052
Watts v Turpin & Ors (1999) 21 WAR 402
Struthers v Harris [1983] WAR 123
Husher v Husher (1999) 73 ALJR 1414
WILLIAMS DCJ: As a result of the admitted negligent driving of the defendant on 10 December 1995 the plaintiff was injured in a motor vehicle accident and he now brings this action for damages. Liability is admitted and the matter proceeds before me by way of assessment of damages.
The plaintiff's evidence
The plaintiff was born on 29 August 1940. He attended school in Geraldton and left school at age 15. He commenced an apprenticeship as a carpenter and joiner in Geraldton and completed that apprenticeship in Perth when he was aged 20 years. Thereafter he worked with various builders on a subcontract basis including 13 years with Jaxon Constructions.
In 1973 he commenced work with Trimview installing aluminium doors and windows. Because he was to operate on a subcontract basis he registered a business name "D R & G R Youard" for taxation purposes. Trimview made payments directly by cheque into that business name. "D R" were his son's initials but his son was never part of the business. At no time did the plaintiff employ anybody else. In addition to working as a subcontractor for Trimview he took on private work on weekends. That also mainly involved windows and doors.
The accident occurred on 10 December 1995. At that time he was on his way home from a private job when the defendant who was driving a stolen motor vehicle, crossed onto the plaintiff's side of the road and collided with the plaintiff. The plaintiff's vehicle left the road and ended up upside down. He managed to crawl out of the vehicle and he noticed that his right arm was sore and stinging. He was taken by ambulance to Wanneroo Hospital and admitted.
The next day he underwent surgery to the right elbow and subsequently a second operation to the right elbow. He remained in hospital until 18 December 1995. The seatbelt had left bruising across his chest. He found his left ankle difficult to walk on and his right knee had a deep laceration. His right knee only required suturing.
On release from hospital he stayed with his son and daughter-in-law. He felt very subdued and his right elbow and left foot were painful. He was unable to put the ball of his foot down. He commenced physiotherapy and swimming and those assisted. He was taking pain killers. The stitches in the right knee were removed by his general practitioner and that healed up.
In March 1996 his orthopaedic surgeon Mr Lim recommended an insert in his shoe for his left foot. When that was inserted he was able to put his foot flat on the ground again and the pain subsided. He still wears the insert. His ankle settled down after that and subsided to next to nothing. His right elbow progressively got better. He is right hand dominant.
It was six months before he was able to do a few bits and pieces by way of work. At that time he started to notice symptoms in his left knee. The symptoms became worse when he walked. He consulted Mr Lim who took x‑rays and performed an arthroscopy in June 1997. However when he got over the operation his knee progressively got worse. Lifting, stepping up ladders and stairs caused him problems. He developed stress and anxiety and felt that he was falling apart.
He was recommended to see Dr Dimmitt a consultant physician. He felt very uptight about meeting people. He was anxious and panicky and would rather just sit in a corner. He got uptight about little matters and felt that his confidence was right down.
He found that he had pain between the shoulder blades and he saw a chiropractor. He had in fact seen the same chiropractor some two days before the accident for the same complaint. That has now settled down considerably.
He now feels quite unmotivated and his energy level is less.
Prior to his accident he used to participate in indoor cricket, basketball, softball and golf but he is not able to do those matters since the accident. His sleep pattern involves flashbacks and sleepless nights although at the present time his sleep is not too bad. He still takes medications and takes pain killers for his knee. Around the house his right elbow restricts him from scrubbing the shower recess.
Prior to his accident he took pride in his physical fitness but since the accident he has lost the desire and now feels totally unfit.
He owns a boat and prior to his accident he used to go fishing. Now he continues to fish but his knee gets sore.
Insofar as his work activities are concerned he is unable to swing a hammer. He considers it important to be able to use a hammer. He now tends to use his wrist and shoulder joint when using a hammer. In the mornings his elbow and knee are quite good but by the end of the day his knee is swollen and the elbow is sore. He is unable to lift anything heavy.
Following his accident he tried to return to Trimview, but was not able to do the work because he was unable to lift. After some time he got back to light duties. That was around about October - November 1996. He worked for three to four hours per day and found that difficult. There were restrictions in what he was able to do. Following his operation to the left knee in June 1997 he was unfit for a couple of months. After that he resumed work again. However the knee became progressively worse.
In early 1998 he was approached by Rowethorpe Nursing Home. He has been with them ever since. That is a retirement village set on 30 acres and he does the maintenance over the whole of the area. That job is not as physically demanding as his job with Trimview. He is still paid on an hourly basis. He renders invoices through the business name as he did with Trimview. He still does a couple of small private jobs but that is not as great as before his accident.
Following his accident he became aware that Trimview had closed down. However he considered that there were plenty of other sources of work. He could also have taken on more private work.
At the time of his accident he was hoping to carry on. He had no ideas of ceasing work at age 65 and no plans for retirement.
At the time he was working for Trimview he was paid at an hourly rate of $25 per hour. He is presently on an hourly rate of $30 per hour. He commences work at 7.30 am and finishes at 4 pm. He described the work as being pretty steady and he averages six to seven hours per day. He still gets a little bit of private work for which he charges $30 per hour.
The medical evidence
Mr Soo Tee Lim is an orthopaedic surgeon. In his report dated 20 December 1995 he stated as follows:
"Thank you for referring the above patient whom I saw at Wanneroo Hospital. He is a self-employed aluminium window installer. He was driving a Land Cruiser and had a head on collision with a stolen taxi that came into his path.
The injuries that he sustained were:
1.Right elbow-deep grossly contaminated macerated and jagged wound on the right elbow approximately 8-10 cms in length, contaminated with dirt gravel and bits of chrome, the wound undermining approximately to the biceps tendon and laterally into the radio-capitulum joint. There was a cortical crack fracture of the olecranon and quite extensive contused macerated muscle around it.
2.Right knee - laceration approximately 8cms full thickness laceration but not involving the knee joint.
3.Right clavicular area aching due to seat belt contusion and abrasion.
4.Left clavicular area soft tissue injury.
5.Left ankle soft tissue injury with bruising on the medial aspect.
He was admitted to the ward in the early hours of 11th December 1995. Due to Theatre Staff fatigue surgery was not carried out at the time of admission.
The following morning, he was taken to Theatre and under general anaesthetic complete debridement of the laceration of the right elbow and right knee was carried out.
In the right elbow complete thorough scrubbing, toilet with hydrogen peroxide and Betadine, complete debridement of any contused dead muscle and skin were effected. Drains were inserted and the wound left open due to the gross contamination.
A full course of antibiotics consisting of Flucloxacillin, Gentamicin, Penicillin and Metronidazole were given.
He was taken back to Theatre for inspection of the wound, further debridement and closure of the wound on the 13th December 1995. Undermining was carried out. The elbow was kept in full extension with a plaster slab on the volar aspect. Betadine wicks were left in the wound as there was still some contamination.
The right elbow is to be inspected in forty eight hour periods. The wick gauze will be removed.
The laceration on his right knee was completely debrided at the initial surgery on the 11th December 1995 and he was in considerable pain. The knee did not appear to bother him. Elevation of the right upper limb was maintained with pillows.
The wound was inspected on the 16th December 1995 and the wick gauze removed. There was no evidence of any severe sepsis and the wound appears to be stable and healing is progressing.
On the 17th December 1995 wound inspection indicated no evidence of sepsis. There was some swelling and oedema of the hand due to inactivity. The plaster splint support keeping the elbow in extension was removed and he was encouraged to commence active elbow flexion exercises. A collar and cuff was to be used and to be adjusted for comfort. He was reminded to continue mobilising his shoulder putting it through full range of abduction.
He was to continue taking Flucloxacillin antibiotic 1 gram qid for a further three days. He was scheduled to be discharged on the 18th December 1995. He will be reviewed again in my Rooms on the 21st December 1995."
On 27 December 1995 Mr Lim reported that the wound on the plaintiff's right elbow looked good although there was still some limitation to his flexion being able to flex from O degrees to 70 degrees only. The wound on the right knee had healed and he had been requested to see his own family doctor in two days time to remove the sutures. His left ankle still ached. He was advised to continue with mobilisation.
On 9 January 1996 Mr Lim reported that the wound on the right elbow had completely healed and the sutures had been removed. The plaintiff could just barely flex his elbow to 90 degrees after which there was some pain over the olecranon. He was referred for physiotherapy for foot, ankle and right elbow rehabilitation.
On 27 February 1996 Mr Lim reported that the plaintiff's elbow was improving with an increased range of movement. He could flex to 125 degrees as compared to 110 degrees previously. His left foot still ached. Mr Lim referred him for an orthotic insert. He was requested to commence swimming on a daily basis as an essential part of his rehabilitation.
On 27 March 1996 Mr Lim reported that the plaintiff's right elbow still ached and that the plaintiff pointed to the anterior deep aspect of the right elbow. His extension was almost full, lacking the last 5 to 10 degrees and flexion was to 120 degrees. Pronation and supernation were full but certainly there was tenderness in the radial capitulum joint and also over the olecranon and the insertion of the tricep. The plaintiff was unable to use a hammer or do any lifting of heavy weights. In his left foot the plaintiff had found excellent relief from the Amfit insert and was delighted with the relief of the pain and was able to walk well. He had lost two kilos since he commenced swimming and was pleased with the progress.
On 11 June 1996 Mr Lim advised the plaintiff that he should continue swimming and cycling and again partake in any sport within the limits of his symptoms.
On 2 July 1997 Mr Lim reported as follows:
"The above patient was admitted to St John of God Hospital and on the 6 June 1997 left knee arthroscopy was carried out. There was a complex posterior horn tear of the medial meniscus. In addition there was full thickness articular cartilage damage. There was also an osteophytic spur in the intercondylar notch and this was shaved away. Minor damage to the chondral cartilage was also noted. Chrondroplasty and medial meniscectomy were carried out.
Post operatively he made a good recovery and there were no complications. He was instructed exercises to do on his own.
He was reviewed in my Rooms on the 1 July 1997. Minimal effusion still persists. He was walking well though he was unable to squat or kneel. This is obviously expected in view of the pathology present.
He has been certified unfit for eight weeks as his work is quite physical doing domestic home repairs.
I will review him again in about five weeks' time."
On 28 October 1998 Mr Lim reported that he considered that the left knee post traumatic arthritis was an aggravation of a pre-existing condition. He had pre-existing medial joint arthritis which was entirely asymptomatic until the accident. On a long term basis should his left knee become symptomatic he will require possible initial proximal tibial osteotomy. Total joint knee replacement may have to be considered at a later date. This would depend upon his progress. With regard to his right elbow it was quite likely that he was at risk of arthritis of his elbow joint. The degree and severity was difficult to predict at that stage and he may require elbow joint replacement should the arthritis progress to the point where he is incapacitated.
Mr Lim last saw the plaintiff on 12 January 2000. At that time Mr Lim considered that the plaintiff was still coping well. Mr Lim did not consider that there was any need for surgical intervention at that time, although there could be a need in the future. He was unable to predict. If the plaintiff required surgery to the left knee that would be by way of a joint replacement. It was dependant on pain and function. Insofar as the right elbow was concerned, that was not a loading joint and he considered it less likely that the plaintiff would need an elbow joint replacement.
In relation to his left knee Mr Lim considered that most of his problems pre-existed the accident. The symptoms would have increased as he went along. It may be the case that he does not require any treatment. If his pain increased that would impact on his ability to continue as a carpenter. Trauma aged the knee and brought the pain forward. If it had not been for the accident he may have gone on for five to 10 years. But it was more likely that he would suffer knee problems and it is likely that would impact on his ability to work.
On the need for surgery Mr Lim was of the view that the plaintiff was presently coping with his knee. If he remained at that level no operation would be necessary. The position was similar with respect to his elbow. If he required an operation on his knee he would be unable to work for between two to four months. If that was successful he would be much better. If it was successful he would again be fit for the duties that he is presently carrying out. He would be under no greater restrictions than at present if he had the operation.
Dr Simon Dimmitt is a consultant physician.
In a report dated 24 December 1998 Dr Dimmitt stated that the plaintiff attended him on 16 June, 27 July and 27 October that year. The plaintiff described feeling worthless, frequently stressed and butterflies in the stomach from which he gained some relief by taking a deep breath. He would awaken several nights each week with a feeling of panic.
Significant findings on examination included excess weight, boderline hypertension and an innocent cardiac murmur. He had moderately positive scores for depression and anxiety.
Dr Dimmitt assessed him as having mild to moderate depression and moderately severe anxiety with panic attacks. His condition was consistent with his history and appeared to substantially post date his accident. He was presently much improved on Fluoxetine and Amitriptyline. Dr Dimmitt stated that his outlook on medication looked favourable though relapses of mild depression and/or anxiety may occur. Dr Dimmitt considered that he would require to be on medications indefinitely with regular medical monitoring, predominantly by his general practitioner and Dr Dimmitt.
On 25 November 1999 Dr Dimmitt reported that the plaintiff had attended him on five occasions during that year. The plaintiff described continuing symptoms of anxiety, quite severe at times. He also had periods of feeling very unmotivated and flat. He was lethargic at times. His sleep was impaired.
Examination found him physically well save high blood pressure prior to an exercise test, which he performed well with no other adverse findings. His mental state appeared mildly flat. Dr Dimmitt prescribed Venlafaxine and Nortriptyline to help with his sleep and anxiety. His diabetes had deteriorated, probably related to his excess weight. He considered that the plaintiff was moderately improved and likely to gain further over the next six to 12 months. He considered that it would probably be necessary for the plaintiff to continue anti-depressant medication which should control most of his symptoms indefinitely.
On 19 July 2000 Dr Dimmitt reported that he expected the plaintiff's anxiety and depression to improve significantly once the legal proceedings and his finances are resolved. However it was likely that he would require some medication in this respect long term. His diabetes and hypertension (which were unrelated to the accident) will almost certainly persist and will likely require ongoing follow-up and medication.
A number of medical reports from the Odin Road Medical Centre were tendered by consent. In my view they do not take the matter further.
Assessment of damages
The plaintiff claims damages for loss of amenities being pain and suffering and loss of enjoyment of life both past and the future.
The defendant accepts that the plaintiff had a serious and traumatic accident and that initially his injuries were serious and debilitating. It is the defendant's submission that the plaintiff has weathered a traumatic experience and made a good recovery to his right knee and left ankle. The defendant accepts the plaintiff's need for an orthotic insert.
There is really little dispute about the plaintiff's evidence or that of the medical evidence. I accept what they have to say.
The plaintiff has made a recovery from all of his injuries except the right elbow and the left knee. It was Mr Lim's evidence that they had stabilised and that he was coping with the work that he was presently doing. His present position had not deteriorated in the last couple of years.
It is clear from the plaintiff's evidence that at the time of his accident he was an active 55 year old. He participated in a number of sports which he has not been able to continue. The plaintiff is now about to turn 60 and the likely prospect is that he would have slowed down on his sporting activity over the coming years in any event.
It may be the case that he will require surgery in the future.
So far as his home activities are concerned the only complaint by the plaintiff was his inability to scrub the shower recess.
In addition to his physical injuries the plaintiff suffers from mild depression and anxiety which is kept under control by medication. Certainly it does not interfere with his capacity to work.
The plaintiff struck me as a cheerful and forthright person and I accept his evidence in relation to the accident. There is no dispute as to the medical evidence and I accept that evidence also.
I am required to have regard to the provisions of the Motor Vehicle Third Party Insurance Act 1943 s 3(C). Under s 3C(2) the amount of damages to be awarded for non‑pecuniary loss is to be a proportion determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded.
Under s 3C(3) the maximum amount of damages that may be awarded (presently $225,000) may only be awarded in a most extreme case.
Under s 3C(4) if the amount of non‑pecuniary loss is assessed to be amount B or less (presently $11,000), no damages are to be awarded for non‑pecuniary loss.
Under s 3C(5) if the amount of non‑pecuniary loss is assessed to be more than amount B but not more than amount C the amount of damages to be awarded for non‑pecuniary loss is the excess of the amount assessed over amount B.
Under s 3C(6) if the amount of non‑pecuniary loss is assessed to be more than amount C but less that the sum of amounts B and C, the amount of damages to be awarded for non‑pecuniary loss is the excess of the amount so assessed over
Amount B ‑ [amount so assessed ‑ Amount C]
In my view the plaintiff's loss of amenities should be assessed at 20 per cent of a most extreme case. I calculate the plaintiff's award for non-pecuniary loss as follows:
$225,000 x 20 = $45,000
100
As the figure of $45,000 is not less than the sum of amounts B ($11,000) and C ($34,000) s 3C(6) has no application.
I allow the plaintiff the sum of $45,000 for loss of amenities being pain and suffering and loss of enjoyment of life.
The plaintiff claims past loss of earning capacity in the sum of $89,974.10 calculated in accordance with the plaintiff's schedule of past loss of earning capacity as follows:
"Refer to paragraph 9 of the statement of claim.
The Plaintiff says the calculations in paragraph 9 set out the minimum loss suffered by the Plaintiff and do not take into account that the Plaintiff's income through his business would have increased each year had he not been injured.
For the five year period from 1991 to 1995 the overall gross income of the Plaintiff's business indicated an increase of 29% or an average of approximately 65 per year.
Year
Gross Income
Cash Expenses
1991
$40,171.00
$19,120.00
1195
$51,920.00
$19,940.00
The cash expenses have been arrived at by deleting depreciation and home office being non‑cash items. There has been little increase in expenses.
It is likely that the average income increase would have continued during the years after the date of accident as set out in Table A.
Nett loss to 1 July 2000 = $89,153.06
The period of 1 July 2000 to 20 July 2000 (date of trial) is approximately 3 weeks.
$14,231.44 nett per annum is $273.68 nett per week
$223.72 x 3 weeks = $821.04
Total $89,974.10
The Plaintiff claims interest on past economic loss at the rate of 8% between the date of accident and 12 September 1998 and 6% from 13 September 1998 to 20 July 2000 calculated as follows:
Loss to 12.09.98 = $61,217.46 x 8% p.a. x 2.75 years = $13,467.84
Loss to 20.07.00 = $89,974.10 x 6% p.a. x 1.83 years = $9,879.15
Total interest = $23,347.00 / 2 = $11,673.50"
The defendant counters by saying that the plaintiff's past loss of earning capacity was more likely to have been $56,254.69 in accordance with a schedule of the plaintiff's projected income (assuming no disruption to employment) as follows:
"Year
Net Projected Income
Actual Net Income
Net Loss
1996
$20,883.20
$4,473.20
$16,410.00
1997
$21,718.52
-$386.00
$22,104.52
1998
$22,587.26
$14,384.25
$8,203.01
1999
$23,490.75
$20,582.33
$2,908.42
2000
$24,430.38
$17,801.64
$6,628.74
$56,254.69
* Calculated by increasing 1995 net income by 4% per annum.
Average net loss per week, 1999 and 2000 - $91.70"
The plaintiff's schedule is based on an income projection (Exhibit 7) prepared by Mr Keith Jackson a certified practising accountant and the plaintiff's accountant. Mr Jackson calculated his income projection on the basis that overall gross income indicated an increase of 29 per cent between the years 1991 ($40,171) and 1995 ($51,920) which was the last year prior to the plaintiff's accident. He concluded that the overall gross income averaged 6 per cent per annum. He increased the expenses at a rate of 4 per cent per annum and prepared a projection on the basis of an increase for each year.
The defendant's projected income has been calculated by increasing the 1995 income by 4 per cent per annum.
The calculation of past economic loss is based on a prediction of what the plaintiff would have earned if he had not been injured. The plaintiff had worked for Trimview for 20 years prior to his accident. He worked as a sub‑contractor. However he did not employ anybody and his earnings were entirely dependant upon his own labours. He did not work for anybody else during the week unless Trimview was not able to fully occupy his time. Trimview went out of business sometime after the plaintiff's accident and was taken over by another company. The plaintiff called evidence that indicated that he would have been employed by others but in my view there would have been some interruption to his work. The liquidation of Trimview would have had a major impact on the plaintiff's business and he would have to have looked elsewhere for sub‑contract work. Furthermore the projection forward based on the 1991 and 1995 years is in my view purely a matter of chance. The projection forward for those years was calculated by Mr Jackson at 6 per cent. If Mr Jackson had made the same calculation based on the 1990 and 1994 years the projection forward would have been at a rate of 4.7 per cent. If he had adopted the 1989 and 1993 years the projection forward would have been 3 per cent. In my view using a figure of 6 per cent to project the gross receipts is too high a figure.
Furthermore in calculating the expenses Mr Jackson has not taken any account of what he described as non-cash items, namely, depreciation and home office expenses. In my view they are both proper expenses to be taken into account. The depreciation is for a motor vehicle. Clearly the plaintiff would need to set money aside to replace the vehicle from time to time. For the year ended 30 June 1995, depreciation ($4,688) and motor vehicle expenses ($4,528) were the largest items of expenditure and constituted nearly 60 per cent of total expenditure. In his income tax returns the plaintiff claims up to 95 per cent use of his vehicle for business expenses. In that situation it does not seem to be appropriate to exclude that figure when calculating past loss of earning capacity.
With respect to home office expenses I understood Mr Jackson to say that it included electricity and other like expenses. I fail to see how the payment of a power account can be other than a cash item.
In my view projecting the income by increasing the 1995 income by 4 per cent per annum is fair and reasonable.
I would allow the sum of $56,254.69 for the loss of income to 30 June 2000.
I would allow any figures for the period after 1 July 2000 in the claim for future economic loss.
The plaintiff claims interest on past loss of earning capacity. The defendant does not object to a rate of 4 per cent per annum. I allow interest as follows:
$56,254.89 x 4.6 x 4 = $10,350 1 100
I allow the sum of $10,350 by way of interest on past loss of earning capacity.
The plaintiff claims future loss of earning capacity in the sum of $112,333.86 or alternatively $175,745 in accordance with the plaintiff's schedule of future loss of earning capacity as follows:
"1The Plaintiff's predicted nett operating profit for the year ending 30 June 2000 is $44,845.00. The Plaintiff's predicted nett income as at 1 July 2000 is therefore $659.00 nett per week (PAYG Withholding Tax Tables 1 July 2000)
2As at 1 July 2000 the Plaintiff's actual nett operating profit is $23,263.00 and his nett income is $375.36 (PAYG Withholding Tax Tables 1 July 2000).
3The Plaintiff currently suffers a loss of income of not less than $284.03 nett per week.
4It was the Plaintiff's intention at the time of the accident to work indefinitely and it is submitted until at least the age of 70 years.
5The Plaintiff is presently aged 59 years, his date of birth being 29 August 1940.
6Therefore the Plaintiff has a future working life expectancy of 10 years.
6% multiplier for 10 years – 295.5
$284.03 x 395.5 = $112,333.86
7Further and in the alternative it is unlikely the Plaintiff will now be able to continue working until the age of 70 years and will suffer a future loss of income as follows:
8The Plaintiff will continue to suffer a loss of income estimated at not less than $284.03 nett per week until the age of 65 years.
6% multiplier for 5 years – 226.3
$284.03 x 226.3 = $64,275.99
9It is likely the Plaintiff will be unable to continue working beyond the age of 65 years and therefore will suffer a loss of earning capacity calculated on the basis he will be totally incapacitated for work from the age of 65 to 70 years.
6% multiplier for 5 years – 226.3
$44,845.00 nett per annum or $659.40 nett per week
$659.40 x 226.3 x .747 (multiplier for delayed payment of 5 years) = $111,469.00
10Total of 8 & 9 Above $175,745.00"
It is firstly said that the plaintiff currently suffers a loss of income of not less than $284.03 net per week and it was always the plaintiff's intention at the time of the accident to work indefinitely and the calculation is made to the age of 70 years. In the alternative it is said that the plaintiff will be unable to continue working beyond the age of 65 years and would be totally incapacitated to work from the age of 65 to 70 years.
In my view those figures are quite unrealistic. In the first place the starting point for the plaintiff's predicted net operating profit for the year ended 30 June 2000 is $44,845 and was taken from the plaintiff's schedule of past loss of earning capacity. As I have said when dealing with past loss of earning capacity in my view the plaintiff's projection based on a 6 per cent increase was too high. I have already accepted the defendant's schedule of the plaintiff's projected net income of $24,430.38 for the year ended 30 June 2000.
In the second place it is unlikely that the plaintiff would have continued in his pre‑accident capacity working for Trimview. He described that work as physically demanding. I find it difficult to accept that he would have stayed in such a physically demanding job to age 70. It also needs to be borne in mind that Trimview went into liquidation in any event.
I think it unlikely that the plaintiff would have continued doing the work that he was doing at Trimview beyond the age of 65 years. I gained the impression from the plaintiff's evidence that he is entirely happy with the work that he is doing at the present time. He is doing all of the maintenance at the Rowethorpe Nursing Home. He described that work as not as physically demanding as before the accident. He is paid for that work on an hourly basis and he renders invoices through the registered business name on the same basis that he was doing at Trimview. The plaintiff did not indicate that he was not able to cope with that job. There is no reason why he cannot continue to do that job until age 65 or beyond if he so desires.
The medical evidence was that his condition had not deteriorated. It is conceded by the plaintiff that if he does not get worse he can continue to do what he is doing now. He has remained the same over the last couple of years. If his condition deteriorated he may need a knee replacement. The only further contingency is a period of time out of the workforce for that operation.
In my view the plaintiff should be compensated on the basis that he would have continued to earn at the rate that he was earning at Trimview until age 65. At that stage, in my view, he was more likely to have sought employment of the sort he is now performing or to have retired from the work force.
Based on the defendant's schedule of the plaintiff's projected income the average net loss per week over the 1999 and 2000 years is $91.70. It is possible that he may require an operation on his left knee within that period when he could lose from two to four months away from work. He would then be fit for the same duties as he is presently carrying out.
On the basis that he may miss some work between now and aged 65, I would be prepared to increase the loss to $125 per week from 1 July 2000 to age 65.
By way of future loss of earning capacity I would allow the plaintiff the sum of $125 between 1 July 2000 and the plaintiff turning 65 on 29 August 2005.
That is a period of approximately 5.2 years and the multiplier on the 6 per cent weekly discount tables is approximately 235.
$125 x 235 = $29,375.
Because the period for future loss of earning capacity is only five years I would not reduce that figure for contingencies.
I allow the sum of $29,375 by way of future loss of earning capacity.
In my view the plaintiff is unlikely to suffer a loss beyond age 65 either because he would not then be working or he would be in the job that he is in now or in similar employment.
The plaintiff claims damages for future medical expenses in the sum of $34,339.85 in accordance with the plaintiff's revised schedule of future medical expenses as follows:
"1Right Elbow Arthroscopy –
(a)
Theatre fees
$1,222.00
(b)
Hospital bed fees ($422.00 per day x 2)
844.00
(c)
Surgeon's fees
1,010.00
(d)
Anaesthetist fees
610.00
(e)
Pharmacy
200.00
Total
$3886.00
The surgery will be required in 10 years time.
6% multiplier for delayed payment of 10 years
0.558
$3,886.00 x 0.558 =
$2,168.39
2
Right Elbow Joint Replacement -
(a)
Theatre fees
$1,222.00
(b)
Hospital bed fees ($578.00 per day x 10 days)
5,780.00
(c)
Surgeon's fees
1,870.00
(d)
Anaesthetist fees
1,110.00
(e)
Pharmacy
200.00
(f)
Prosthesis
5,000.00
Total
$15,182.00
The surgery will be required in 20 years time.
6% multiplier for delayed payment of 20 years
0.132
$15,182.00 x 0.312 =
$4,736.78
3
Left Knee Osteotomy -
(a)
Theatre fees
$931.00
(b)
Hospital bed fees ($422.00 per day 4 x days)
1,688.00
(c)
Surgeon's fees
1,325.00
(d)
Anaesthetist fees
800.00
(e)
Pharmacy
200.00
(f)
Implants
2,000.00
Total
$6,944.00
The surgery is required immediately.
4
Left Knee Joint Replacement
(a)
Theatre fees
$1,762.00
(b)
Hospital bed fees ($578.00 per day x 10 days)
5,780.00
(c)
Surgeon's fees
2,180.00
(d)
Anaesthetist fees
1,210.00
(e)
Pharmacy
200.00
(f)
Prosthesis
7,000.00
Total
$18,132.00
The surgery will be required in 15 years time.
6% multiplier for delayed payment of 15 years
0.417
$18,132.00 x 0.417 =
$7,561.04
Total Future Surgery Costs
$21,410.21
5
Physiotherapy
50 sessions of physiotherapy at $50.00 per session
$2,500.006
Orthotic Inserts
The Plaintiff will require orthotic inserts every two years at a cost of $410.00
6% multiplier
616.3
$410.00 ÷ 104 weeks = $3.94 per week
$3.94 x 616.3
$2,429.64
7
Pharmacy
Medication
$3,000.00
8
Medical Reviews
Attendances upon Dr Dimmitt and medication for depression
$5,000.00TOTAL OF ALL ITEMS
$34,339.85"
The total future surgery costs are said to be $21,410.21. Those costs are said the include right elbow arthroscopy, right elbow joint replacement, left knee osteotomy and left knee joint replacement. Mr Lim's medical evidence was that it was unlikely that the plaintiff would require either a right elbow arthroscopy or a right elbow joint replacement. The plaintiff's schedule in respect to the right elbow joint replacement states that the surgery will be required in 20 years time. In my view that is unrealistic bearing in mind that the life expectancy for a male 60 year old is presently 21 years.
The medical evidence is that the plaintiff will not require a left knee osteotomy and I do not allow the sum claimed in respect to that matter.
In respect to the knee joint replacement the schedule indicates that surgery will be required in 15 years time. That operation is not inevitable. However the defendant accepts the costs and accepts the calculation in the schedule is appropriate. I allow the sum of $7,561.04.
The plaintiff claims 50 sessions of physiotherapy at $50 per session or $2,500. There is no evidence that the plaintiff has been undergoing physiotherapy at the present time. The only medical evidence for a requirement in the future is following a left knee joint replacement. That is not said to be required for a further 15 years. I allow the sum of $500.
The plaintiff claims a sum of $2,429.64 for orthotic inserts. The defendant considers that is reasonable and I allow that sum.
The plaintiff claims medications in the sum of $3,000. It was Dr Dimmitt's evidence that he expected the plaintiff's anxiety and depression to improve significantly once the legal proceedings and his finances were resolved. However it was likely that he would require some medication in this respect long term.
There are no figures on the costs of medication. In my view the amount claimed is too high. I allow the sum of $1,500 under the heading of pharmacy.
The plaintiff claims medical reviews being attendances upon Dr Dimmitt and medication for depression in the sum of $5,000. Again there is no indication of what is required. However I accept that there will be some future attendances upon Dr Dimmitt. In my view the claim of $5,000 is too high. I allow the sum of $2,500.
The plaintiff claims special damages in the sum of $2,294.73 in accordance with Exhibit 4.
The plaintiff accepts that the safe driver policy in the sum of $127.32 is not claimable and the defendant concedes the rest. The difference between those figures is $2,167.41 and I allow that sum by way of special damages.
The plaintiff claims interest on the special damages. I allow interest at the rate of 4 per cent as follows:
2,167 x 4.6 x 4 = 399
1 100
I allow the sum of $399 by way of interest on special damages.
Conclusion
In my view there is no overlapping between the various heads of damages. I allow the plaintiff's claim as follows:
| Loss of amenities | $ 45,000.00 |
| Past loss of earning capacity | $ 56,254.69 |
| Interest on past loss of earning capacity | $ 10,350.00 |
| Future loss of earning capacity | $ 29,375.00 |
| Future medical treatment Left knee joint replacement | $ 7,561.04 |
| Future physiotherapy | $ 500.00 |
| Orthotic inserts | $ 2,429.64 |
| Pharmacy | $ 1,500.00 |
| Medical reviews | $ 2,500.00 |
| Special damages | $ 2,167.41 |
| Interest on special damages | $ 399.00 |
| Total | $158,036.78 |
The plaintiff is entitled to judgment against the defendant in the sum of $158,036.78.
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