Brian John Brodrick v Patricia Brodrick and Robert A Meller [1987] ACTSC 62 (10 September 1987)

SUPREME COURT OF THE ACT

BRIAN JOHN BRODRICK v. PATRICIA BRODRICK and ROBERT A. MELLER
S.C. No. 99 of 1985
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Negligence - motor vehicle accident - plaintiff a passenger in front seat of motor vehicle - plaintiff with left hand inside vehicle on window-sill of open window at time of collision - side-swiped by another vehicle - no contributory negligence - no new matter of principle.

Damages - injury to left hand - aggravation of pre-existing degenerative condition - contingency that aggravation could have occurred in any event - further aggravation caused by infection in area of injury - possibility of operative relief of symptoms - injury advanced date upon which pre-existing condition became symptomatic and disabling - difficulty in plaintiff continuing work as interstate truck driver - no new matter of principle.

HEARING

CANBERRA
10:9:1987

ORDER

There be judgment for the plaintiff against the firstnamed defendant in the sum of $110,945.30.

There be judgment for the secondnamed defendant with costs.

DECISION

This is an action for personal injuries sustained by the plaintiff at about 2 p.m. on Saturday, 12 March 1983. On that occasion the plaintiff was a passenger in a Ford Falcon sedan travelling in a westerly direction in Parkes Way, Reid. The vehicle was being driven by the first defendant, who is the wife of the plaintiff. The allegation made in the statement of claim is that the vehicle was driven into collision with another vehicle driven by the second defendant and an allegation of negligence is made against both defendants. However, there is no evidence which permits of a conclusion of negligence being drawn against the second defendant and there will be judgment for the second defendant, with costs.

2. The plaintiff at the time was an interstate truck driver. He had arrived back from a trip to Melbourne on the morning of the day of his injury. After a short break at his home he drove his truck to his employer's premises at Queanbeyan and he was collected there by his wife soon after lunch. He had consumed two or three cans of beer and was drowsy. He has little awareness of the collision and he was probably dozing at the time of the impact. The plaintiff said in his evidence that he was travelling with his left elbow resting on the window-sill adjacent to where the glass had been fully wound down but nevertheless wholly within the vehicle. The defendant alleged in her defence that the defendant had allowed his hand to protrude from the motor vehicle in which he was travelling, but I accept the plaintiff's evidence to the contrary. The defendant gave no evidence. The plaintiff remembers being awakened or aroused by the vehicle coming to a sudden halt. He noticed another vehicle about twelve feet to the rear. He noticed damage to the left-hand side of the vehicle in which he had been travelling. He was asked whether he noticed anything about the other vehicle and started to say that he could see the back end of it, but he was interrupted before he finished his answer. I conclude that he saw something unusual about the other vehicle, probably that it was damaged. I conclude further that there was a collision between the two vehicles and in the absence of an explanation on the part of the first-named defendant, that it was caused or materially contributed to by absence of reasonable care on her part.

3. Immediately after the impact the plaintiff noticed that his left hand was covered in blood and that the skin was torn from the back of the hand. He was taken to the Royal Canberra Hospital where his left arm was examined and x-rayed. No fractures were detected at that stage and the plaintiff was allowed home. However the hand continued to be painful and the plaintiff consulted Dr J.A. Calder, an orthopaedic surgeon, who noticed gross swelling on the back of the hand and diagnosed a bruise with possible cellulitis or infection. The plaintiff's arm was immobilised in plaster for about four weeks. He was absent from his work for a total period of seven weeks. He received physiotherapy during the last three weeks. X-rays taken by Dr Calder during the course of treatment showed a pre-existing un-united fracture of the left scaphoid joint, where the base of the thumb joins the wrist. Dr Calder considered at that stage that the pre-existing non-union of the scaphoid joint was unrelated to the injury and that the effect of the injury on it would be of a temporary nature. Dr Calder expected that the plaintiff would return to his normal pre-injury work within one or two months, and advised the plaintiff to that effect.

4. The plaintiff then returned to his work of interstate truck driving which he performed with increasing difficulty over the next fifteen months. He found particular difficulty in changing gears in the vehicle. The gear system incorporated a button or knob which required the driver to use a squeezing or grasping movement with the left hand as well as the pushing and pulling movement associated with the gear lever. It was the manipulation of the knob or button which occasioned the greatest difficulty to the plaintiff both because of pain and the feeling of weakness in the hand. The plaintiff himself felt that the major aspect of the pain was in the wrist but he was also having difficulty with the middle finger.

5. In June 1984 the plaintiff was dismissed from his employment for reasons which are far from clear but of which it may be said that they had absolutely nothing to do with the plaintiff's ability to perform his work. I am not convinced, nor was it argued, that the plaintiff had done anything deliberately to court his dismissal. He immediately looked for alternative work which he felt he was capable of doing. He found a job with Abletts Transport Pty. Ltd. of Queanbeyan as a yard foreman. He remains in this position at the present time. It involves mainly supervisory duties but he is required occasionally to drive a forklift or to drive a truck short distances in the local area. The plaintiff continues to have pain and restricted movement in the left wrist and left middle finger. He states and I accept that he is not fit for work as a long distance truck driver and indeed the work that he continued to do from the time of his return to employment until June 1984 was work which he should not have been doing. In particular, he ran the risk of not being able to control the vehicle properly in the event of a blow-out or other sudden emergency and he could not be relied upon to carry out necessary repairs to the vehicle whilst on the road. The medical evidence was almost unanimous that the plaintiff has been and continues to be unfit for long distance truck driving. The only medical opinion which qualifies that conclusion is the opinion of Dr Peter Morris, an orthopaedic surgeon, that if the plaintiff underwent operations for the fusion of the wrist and for a prosthesis in the proximal interphalangeal (P.I.P.) joint of the left middle finger then he might be able to change gear without pain and with less inconvenience and difficulty. However, even Dr Morris conceded in effect that this was a rather remote contingency.

6. The plaintiff was born on 9 October 1937. He had been working for two or three years with an organization called Mark Taylor Transport at the time of his injury and he appears to have been engaged in the transport industry for some considerable time. At any rate, there is no suggestion that he is capable of work in any other field. The plaintiff said that prior to his injury he played golf and cricket on a social basis, that he enjoyed fishing and gardening and also water-skiing. He appeared to me to be a truthful witness and I do not think that his credibility was damaged on any particular issue.

7. The case for the defendant on damages rested upon the history of the plaintiff prior to the subject injury. In about 1972 the plaintiff had suffered an injury to the base of his left thumb when the truck he was then driving hit a rock, causing the steering-wheel to spin violently. He lost no time from work and received no treatment for that injury. However, from time to time in the ensuing years, particularly during a change of weather, he experienced an ache in the area of injury which would last for a day or two. He suffered from gout and prior to the 1972 injury had regularly taken anti-inflammatory tablets to combat the pain from the gout. It appears, and I find that without medical advice the plaintiff came to the conclusion that the anti-inflammatory medication was useful for controlling the pain experienced from time to time in the left thumb.

8. The history of the injury to the left thumb was not given to Dr Calder who initially treated the plaintiff. It was only when the plaintiff was referred by his solicitor to Dr Danta, a neurosurgeon, that some thought was given to the 1972 injury and the effect of the injury in March 1983. Again there is not much dispute in the medical opinions. Although Dr Calder's earliest report of May 1984 makes no specific reference to osteoarthritic change, it does mention a "collapse of the proximal pole of his left scaphoid". In his last report of 29 May 1985, Dr Calder notes that an x-ray taken on that day showed that the left wrist degeneration had progressed slightly and was by then severe. Dr Maguire, a rheumatologist, who gave evidence, interpreted the earlier report of Dr Calder to indicate that some osteoarthritic changes were already evident in March 1983. I accept that interpretation, as well as the further opinion of Dr Maguire that the osteoarthritic change evident at that stage was due not to the 1983 injury but to the 1972 injury. The question then arises as to whether the 1983 injury caused an aggravation of the pre-existing degenerative condition which has continued ever since, or whether it was merely a temporary aggravation, the long-term effects being due to the 1972 injury and likely to have occurred in any event, that is to say without the intervention of the 1983 injury. I have little hesitation in coming to the conclusion that on the balance of probabilities the 1983 injury has been a substantial cause of the long-term effects. I reject the submission on behalf of the defendant that the plaintiff was less than frank with the doctors and with the court in seeking to minimise, if not to hide, the fact that he had sustained an injury in 1972. Indeed the case is one of a classic type injury to the scaphoid, according to the medical evidence. Such an injury can be caused by relatively minor trauma and the pain associated with it can disappear within two or three weeks, without union of the fracture. In the ensuing years the injured person may feel pain in the base of the thumb from time to time, and the fracture may never unite. This is exactly what happened to the plaintiff up until the time of the 1983 injury.

9. Where the case presented on behalf of the defendant has substance, however, is in the contention that even without the 1983 injury the plaintiff was likely to have developed incapacitating osteoarthritis in any event. The defendant may be successful in reducing the award of damages even though it cannot be established that such a contingency was likely, as a matter of strict probability, to have occurred. In my view the plaintiff's occupation as an interstate truck driver raised the distinct possibility that he could have sustained a repetition of the type of injury he sustained in 1972. His leisure activities, particularly water-skiing, were also likely to put a strain on his wrist to the extent that an aggravation of the degenerative condition may well have occurred. Dr Maguire agreed with the suggestion put by counsel for the defendant that by the time of the 1983 injury truck driving for the plaintiff was "counter-indicated".

10. I am satisfied on the medical evidence that the 1983 injury caused a substantial and immediate aggravation of the plaintiff's wrist condition for a period of seven weeks or so after which he had recovered sufficiently for him to resume his truck driving. I accept the opinion of Dr Maguire that the effect of infection in the area of injury was such as to cause greater aggravation of the degenerative condition than would otherwise have occurred. Furthermore, during the following fifteen months or so the plaintiff's continuation of his driving duties subjected the injured hand to further stress so that by the end of that period the permanent disabling effect of arthritic change in the left wrist had become established. Whilst I accept the argument of the defendant that this may have occurred in any event, I am of the opinion that it was the 1983 injury which had brought forward to about June 1984 the time at which that degenerative condition became disabling.

11. The other matter upon which emphasis was laid on behalf of the defendant was the possibility that by operative treatment the plaintiff might be restored to the capacity to carry out the full range of duties of a heavy truck driver. First, he could submit to a fusion of the scaphoid. This would relieve the pain from the joint, but it would leave him without movement in the wrist. However, as I have already said, I reject the opinion of Dr Morris and accept the evidence of the other doctors that a fused wrist would make it very difficult for the plaintiff to operate the gears of a heavy truck. I might add that Dr Maguire was of the view that two operations and not one would be necessary to completely relieve the condition in the wrist, but on this particular point I prefer the evidence of Dr Morris, the orthopaedic specialist.

12. However, the plaintiff's problems are not confined to the wrist alone. He has severe limitation of movement in the left middle finger, although the doctors do not appear to agree as to the exact range of movement either in the finger or in the wrist. Dr Calder puts it as forty percent residual dorsi-flexion and thirty percent residual palmar flexion in the wrist. He says that the PIP joint of the left middle finger flexes to ninety degrees only and the DIP joint movement is slightly limited. But he regarded the finger as the predominant disability where the range in the MCP joint was limited to eighty-five degrees and that in the PIP joint to seventy degrees. He says that there is a range of five degrees dorsi-flexion and ten degrees palmar flexion in the wrist. Dr Morris thought the range of movement in the PIP joint of the finger was thirty to sixty degrees and that the MCP joint was normal. He says there is a range of forty-five degrees dorsi-flexion and thirty degrees palmar flexion. Dr Danta expressed his view as to the wrist by assessing the plaintiff's limits as one hundred and sixty degrees dorsi-flexion and one hundred and fifty degrees palmar flexion. The finger reduces the strength of the plaintiff's grip and he cannot make a complete fist.

13. The plaintiff is left with a substantial disability in the left hand which continues to occasion pain. His working, domestic and recreational life has been disrupted. He has difficulty getting to sleep without his left hand above his head. He has had to abandon social cricket, golf and water-skiing and finds difficulty in gardening and fishing. The finger aches continuously but he has learned to live with it. He takes panadol daily and stronger pain-killers, as necessary, on prescription. The ongoing cost of medication is not specified and allowance will be made in the general damages.

14. Nerve conduction studies by Dr Danta establish that the disability in the finger is not caused or contributed to by nerve root compression and hence does not arise from the condition known as carpal tunnel syndrome. This diagnosis leads to the further conclusion that resolution of the plaintiff's problem in the wrist by way of fusion, would not relieve the finger, because the disability in the finger is independently caused. X-rays of the finger indicate that there is probably some foreign material trapped within it which contributes largely to the restriction of movement. It is possible and I am satisfied that operative treatment could be of assistance in restoring movement in the finger, but it is a complex operation and, as Dr Maguire said, would not be the subject of the recommendation of a sole medical practitioner but of a team expert in hand surgery. Having regard to the plaintiff's age, employment and lifestyle, I think it highly unlikely that he would submit to such an operation and declining so to do would not mean, in my view, a failure to mitigate his damage. The finger could be amputated but again it is not unreasonable of the plaintiff to decline to follow that course. I take the same view with regard to the proposed fusion of the wrist. Although the chances of success in such an operation are high, the advantages to be gained thereby are not, but I will take into consideration for the purpose of future contingencies the possibilty that the plaintiff's pain in the wrist may over the years increase to such an extent that he would elect to have the surgery. A countervailing factor has also to be considered, however, and that is that future aggravation is not so much the result of the 1983 injury but of a condition which pre-existed that injury. As I have already said, what the 1983 injury did, in my view, was to advance the date upon which the condition became symptomatic and disabling.

15. As far as past loss of earning capacity is concerned, the plaintiff is entitled in the first instance to the seven weeks he lost from work immediately after the injury. He was paid sick pay for some time, but having received the sick pay he lost the right to claim it at some later time and the defendant has not shown any reason why the payment of sick pay should be deducted from the plaintiff's damages. The rate was $450 net per week and $3,150 will be awarded for this component of damages.

16. From June 1984 the yard foreman's rate is substantially less than what interstate truck drivers receive. Figures are before me from Ablett's Transport Pty. Ltd. showing what truck drivers in the employ of that company engaged in interstate haulage received presently for what was called "trip money". I think that the difference between the yard foreman's rate and the Ablett's interstate driver's average earning over the period in question is a proper approximate guide to the plaintiff's loss of earning capacity from June 1984 to date. The exact figures are not available anyway. I would award $25,000 for the period, making a total of $28,150 for total past loss.

17. For the future I think it proper to take into account the contingency that with the capital which an award of damages will provide, the plaintiff's earning capacity may not be as restricted as it is now. He has performed perfectly satisfactorily as a foreman with a number of men and vehicles under his control. Should he wish, he has the option of purchasing a prime-mover and operating it on contract with an employee doing the driving. A prime-mover and semi-trailer cost about $250,000. Ablett's engage a number of contractors with Ablett's supplying the semi-trailer and the contractor supplying the prime-mover and driver. Work is available interstate and locally. If the project does not appear economically feasible the plaintiff need not embark upon it. If it does, he might. I put it no higher than that and will take it into account in discounting the figure for future economic loss.

18. As far as the future is concerned, it is necessary to make an estimate of how long the plaintiff, if not injured in 1983, was likely to have remained driving interstate trucks. I note that the oldest of the fifteen or so truck drivers in the employ of Ablett's Transport Pty. Ltd. at the present time is 48 years, and the next oldest is 45 years. They are both younger than the plaintiff. On the other hand, there was evidence from Mr. David Lamont of the Transport Workers' Union that many interstate truck drivers, that is to say those who are in excellent health, continue to drive well into their fifties. The plaintiff was, on my findings, in excellent health apart from the degenerative condition in his left wrist. There was a strong possibility that that degenerative condition would have rendered him unfit for interstate truck driving at some time between age fifty and sixty. I think the most appropriate way to approach the assessment of the loss of future earning capacity is to calculate the likely loss over a period of eight years from the present time and then to reduce the figure by an appropriate percentage having regard to the contingencies that I have mentioned. The figures for current rates paid at the date of hearing show a difference of some $279 per week between what is paid to interstate truck drivers and what the plaintiff receives. However, the figures in January 1986 indicated a difference of only $201 per week. I do not know the reasons for the increase in the gap which appears to be much greater than the rate of inflation. There may be some temporary factor of which I am not aware. I propose to take $250 as the periodic loss. On the three percent discount tables the present value of $250 per week over a period of five years into the future is about $60,000. I think that this should be discounted by twenty percent and I would allow a round figure of $48,000 for the future.

19. For pain and suffering and loss of enjoyment of life it is necessary to avoid over-lapping of heads of damages, but I think that the condition in the plaintiff's left hand had markedly affected his lifestyle. The plaintiff did not, in my view, exaggerate his symptoms or disabilities. I think that an award of $33,500 is appropriate under this head. Out-of-pocket expenses are agreed at $1,295.30, except for those related to physiotherapy. I find the physiotherapy expenses to have been reasonably incurred and the whole of that sum will be awarded. The total damages are $110,945.30.

20. There will be judgment for the plaintiff against the first defendant in that amount. Unless the parties wish to be heard I propose that the first defendant pay the plaintiff's costs.