Rosa Lentini v Mala Aggresta [1988] ACTSC 6 (16 February 1988)

SUPREME COURT OF THE ACT

ROSA LENTINI v MALA AGGRESTA
S.C. No. 890 of 1985
Damages - Assessment

COURT

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

CATCHWORDS

Damages - Assessment

HEARING

CANBERRA
16:2:1988

ORDER

There be judgment for the plaintiff in the sum of $36,226.46.

DECISION

This is an assessment of damages in respect of injuries sustained by the plaintiff on 5 May 1982. On that day she was a passenger in the front seat of a motor vehicle then being driven by her daughter, the defendant, when it collided with a tree. She was taken by ambulance to the Casualty Department of the Woden Valley Hospital. She complained of a sore head, chest, left leg and right knee. When examined no detectable injury on the scalp was found, she was very tender over the 7th, 8th and 9th ribs, her left leg showed a large haematoma on the lateral aspect and there was a superficial laceration below the right knee. x-rays of the skull, left leg, chest and left ribs disclosed no fractures. All other examination was normal. The lacerations were dressed and a pressure bandage was applied to the haematoma of the left leg. She was given advice regarding head injuries and a tetanus toxoid booster. She was asked to return the following day. She did so and reported decreased pain but some problems with her neck and shoulders. Examination then revealed tenderness at the trapezii. On 10 May 1982 she was reviewed. Because of persisting symptoms she was referred for physiotherapy. That commenced on 24 May 1982 and was mainly directed to pain in the left lower leg where the haematoma had been. She made gradual improvement and the haematoma decreased in size until 11 June 1982 when she was discharged with advice regarding exercises. Her prognosis was then thought to be good.

2. Meantime, however, on 12 May 1982 she consulted her general practitioner, Dr Jennings, complaining of painful ribs on the left side and a painful left ankle. Dr Jennings ordered x-rays of her ribs and advised her to apply a cream to the bruised ankle. x-rays of the ribs revealed a fracture of the anterior end of the 9th rib and possibly a fracture of the anterior end of the 10th. Dr Jennings strapped the plaintiff's ribs on 13 May 1982. Dr Jennings' notes indicate that the plaintiff developed a large haematoma over her left calf for which he ordered physiotherapy. It is not clear whether the physiotherapy which he ordered was that which was given her at the woden Valley Hospital where, incidentally, she does not seem to have been an inpatient.

3. When she saw Dr Jennings on 28 May 1982 she was complaining of a sore neck. An x-ray of her cervical spine revealed no abnormality. Dr Jennings' practice was taken over by Dr Brenda McDonald who saw the plaintiff first on 29 June 1982. She was then still tender over the fractured ribs, the haematoma was resolving and her neck movements were normal. Dr McDonald last saw the plaintiff on 11 August 1982 when arrangements were made for her left tibia to be x-rayed because she was still tender in the area. The x-ray revealed no underlying bony damage. The plaintiff at the same time was complaining of some tenderness in the neck. Dr McDonald thought that when she last saw the plaintiff in August 1982 her prognosis was excellent.

4. Some time in 1982 the plaintiff changed general practitioners. She consulted Dr David Lee of Red Hill.

5. On 28 August 1984 she saw Mr Arnold Mann, a consultant surgeon, at the request of her solicitors. She gave him a history which included no reference to the injuries to her right leg and neck. She complained to him of occasional pains in the left lower ribs and that her left leg was swollen and ached "inside" at night. Mr Mann noted that the skin was not ulcerated. She told him that she could "do everything". She did her own shopping and all her housework including hanging out washing, vacuuming and gardening. She stated that she did experience some pain in the left leg, particularly after gardening, but she enjoyed it too much to give it up.

6. Examination showed a star-shaped scar on the outer aspect of the leg below the left knee with slight oedema on the outer side of the leg just above the ankle. Some tenderness was noted in the area. Mr Mann found a full range of powerful movements in the leg with no sensory loss, pulses and reflexes were normal and there was very slight pain on left leg progression. He concluded then that the plaintiff had made an almost full recovery following the accident in May 1982. He thought that her complaints of residual pain were consistent with the nature of the injury and were probably due to increased tissue pressure due to the swelling of the leg. He thought it should be possible to control these symptoms with an elastic stocking or a bandage. However, the symptoms did not seem to him to be particularly severe and he thought the plaintiff might feel inclined to leave things as they were rather than have the inconvenience of wearing an elastic stocking. He considered that the disability in the lower part of the left leg did not exceed 5% of its function. Pain in the left lower ribs was a frequent accompaniment to fractures on that side, he said, but as a general rule the pain was not severe and the complaints were of the more common kind, namely, that she got "occasional pain". He considered that the plaintiff was not significantly disabled and should manage her domestic duties for an indefinite period. He then said:-

"Whether she would be able to get a job in

some capacity or other at a later time is
problematical because her age would be
somewhat against her in this economic
climate. However, she is a very active
person and I think she will manage most jobs
that are within her anticipated capacity
assuming that she is able to get a job."

The plaintiff was born on 1 January 1935.

7. Mr Mann re-examined the plaintiff on 24 June 1987. She told him that she did all her housework with the assistance of her daughter and that she could do most things around the house but only slowly. She said, however, that she could not wash windows because she was frightened of heights. She still gardened a little and cut lawns. She complained to him of weakness of the left leg upon which she could not stand for long and that sometimes her ribs were sore. On examination he found no change from that previously recorded. His opinion remained as it was. In response to a question put to him by the plaintiff's solicitors in a letter of 12 June 1987, he said:-

"I must say that I feel that she could do a
stand up job provided she wore an elastic
stocking. I can find nothing in her leg
which would prevent her from doing so. As
regards the number of hours of this sort of
work she would be able to undertake, one must
take note first of all that she is 52 and
that she has been at home for quite some
time. However, I think she could try doing
part-time work for a start to see how she got
along. I am afraid that trial and error is
the only way to determine, in this instance,
just how much work she could do."

8. Dr Richard Vance, an orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 4 June 1986. She gave the history of the accident, her injuries, said to have been only the cracked ribs on the left side and the injury to her left leg below the knee, and of their treatment. She complained to Dr Vance that since the accident she had always had pains in relation to her left ribs and her left leg. She did her work but she was not able to do it as easily as she used. Sometimes she might go for weeks without any trouble and at other times she had pain in her legs and ribs on successive days. On examination he found an old scar on the antero-lateral area of her leg below the knee which she said was due to a childhood injury. He could find no other clinical signs. Likewise he could find no clinical signs in relation to her left ribs where she indicated the costal cartilages as the site of her pains.

9. Dr Vance thought that the plaintiff had sustained minor injuries in 1982 from which she was still complaining in a mild sort of way. He thought that her activities were not interfered with and that she required no special treatment.

10. Dr Andrea, a consultant surgeon, also examined the plaintiff on behalf of the defendant on 27 February 1986. Again she gave the history of the accident and her treatment, noting her injuries as having been a fracture of the lower left rib and bruising to the lower left thigh and upper outer left calf with a haematoma formation. She complained to him that the outer side of the left calf and knee ache at times when she is active and when the weather changes but that that was slowly improving. She said there was occasional pain over the lower left ribs, mainly when the weather changed. The pains might last a day or two. She had no complaints concerning her left ankle, neck, back, arms or in connection with headaches. On examination she complained of pain on springing of the lower left ribs, the chest otherwise appearing normal, and of some pain when the outer aspect of the left calf was squeezed.

11. Dr Andrea thought that the plaintiff walked and moved freely and considered that she had made a virtually complete recovery from her injuries. He said:-

"She is said to have a fractured rib but this
should heal completely, in the normal course
of events, without disability.

She, apparently, developed a haematoma in the
left calf which needed draining. These are
common and, apart from some mild discomfort
in the area for a time, should not produce
any permanent symptoms."

12. No evidence was given by Dr Lee but counsel for the defendant tendered a report made by him on 1 December 1987 following examination on 17 November. Her only complaint to him was of pain and some weakness of the left leg. On examination he found some fibrosis and wasting of the muscles between the tibia and fibula on the anterior surface of the leg. This he thought a result of the large haematoma of the left leg which she had suffered in the motor vehicle accident. His opinion was that the leg disability would probably be permanent and could cause some limitation of ability to stand for long periods. He thought that the plaintiff should be able to work full time provided she was not required to stand all the time.

13. The plaintiff gave evidence. She seemed to have no difficulty in movement. She has four children born between 1956 and 1961. She said that she had worked for about a year full time and for about a year part time when the children were still growing up. She gave evidence that she had intended to go back to work some time late in 1982. I think that the plaintiff was a witness of truth and I see no reason to doubt that she would have attempted to get work at about that time, her domestic responsibilities having, for practical purposes, been greatly reduced. There was no suggestion that she was qualified to do any work other than that of a shop assistant in, say, a fruit and vegetable market.

14. She gave evidence, which I accepted, of the pain and shaking up she sustained in the accident. In particular she said that she suffered from headaches after the accident although she admitted frankly that she had had some headaches before the accident. I think, on all the evidence, particularly her lack of complaint to doctors in recent times of headaches, I should accept that if she does presently suffer from any headaches they are not due to the accident but are the equivalent of what she suffered before the accident and might have expected in any event. j am satisfied that from time to time she suffers from pain in her left leg after gardening for up to one and a half hours. Her belief is that she could work for only a couple of hours in a fruit shop but I think the weight of the medical evidence is against this and that she could work as a shop assistant full time although she might feel the necessity, at least from time to time, to wear an elastic stocking.

15. The plaintiff has made a claim in respect of loss of earning capacity. This is based on her plan to seek work late in 1982 when she would have been about 47h years old. Her experience was, of course, limited but she is a pleasant woman and I have little doubt that she would have been able to obtain some employment of the kind she intended to seek. I am, however, satisfied that by the end of 1984 she had recovered to the point where she could work full time as a sales assistant in a fruit and vegetable shop, given that such work might have been available. However, there is to be taken into account that there may have been some difficulty in her getting work in any event.

16. I think her loss of earning capacity should be assessed as a loss of something less than two years having regard to probable adverse contingencies ending not later than 31 December 1984.

17. Using as a guide the figures set out in the particulars dated 3 December 1987 which it was agreed were correct for the periods set out, I think the proper amount to allow on account of loss of earning capacity is $15,000.

18. I thought the evidence which the plaintiff gave concerning the cost of medicaments was unsatisfactory although I do not think she was in any way dishonest when giving it. Doing the best I can I think I should allow a total of $500 under this head. Out-of-pocket expenses are agreed at $1,270.31. The defendant has already paid the sum of $363.85 on account of those out-of-pocket expenses leaving a balance of $906.46 payable. I think the appropriate amount to award for pain and suffering and loss of amenities is $8,000.

19. I allow interest in respect of loss of earning capacity at $7,620 and in respect of the general damages to date at $4,200, a total of $11,820.

20. There will be judgment for the plaintiff for $36,226.46.