Barry Bryson v Motel Canberra Pty Limited Trading As Canberra International Motor Inn [1990] ACTSC 53 (21 December 1990)

SUPREME COURT OF THE ACT

BARRY BRYSON v. MOTEL CANBERRA PTY. LIMITED trading as CANBERRA INTERNATIONAL
MOTOR INN
S.C. No. 420 of 1987
Damages

COURT

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

Damages - assessment of quantum of damages - no new statement of principle.

Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

HEARING

CANBERRA
21:12:1990

Counsel for the plaintiff: Mr R. Crowe

Solicitors for the plaintiff: Higgins Solicitors

Counsel for the defendant: Mr G. Lunney

Solicitors for the defendant: Garry Robb and Associates

ORDER

There be judgment for the plaintiff in the sum of $328,936.07.

DECISION

The plaintiff sues for personal injuries sustained by him on 17 June 1985 when he was working for the defendant as a storeman and stock manager at the Canberra International Motor Inn.

2. His uncontradicted evidence was that he had to carry out a stocktaking of the liquor stores at the end of each month. The wine and spirits stock was contained in pineboard bins, each about 600 cms high and 750 cms wide. Each bin contained about 24 bottles of wine. A row of bins was stacked on opposite sides of an aisle. The rows were about two metres high and about twelve metres long. At each level of bins a piece of pine timber, about 4 cms by 2 cms in dimension, was nailed along the row of bins to prevent bottles from falling out. There were some loose cartons of bottles of wine stacked on top of the bins. The plaintiff wanted to get to the top of a row of bins in order to check what was there. In order to do so, he straddled the aisle between the rows of bins, and started to climb in that fashion, with one foot supported by a bin on one side of the aisle and another foot supported by a bin on the other side of the aisle. As he was doing this, the piece of pine timber upon which one of his feet was placed, was dislodged and fell to the floor, the plaintiff falling with it. The plaintiff landed in such a way that his right knee was directly in impact with the floor.

3. The plaintiff said, and there is no reason to disbelieve him, particularly when he was not cross-examined on the point, that he had been instructed to gain access to the top of the bins in this way, and although he had asked the maintenance manager for a ladder or some better form of access to the top of the bins, none had been forthcoming. Clearly the defendant failed to devise, institute and maintain a reasonably safe system of work for the plaintiff and to provide him with reasonably safe plant and equipment for the carrying out of his task, and there must be a finding of negligence in favour of the plaintiff.

4. On the question of contributory negligence, it was suggested that the plaintiff should have used some means of access or assistance to climb to the top of the bins which was reasonably open to him, such as a carton of bottles of wine, or a wooden box. The plaintiff conceded that he had seen wooden boxes in the kitchen. He himself did not work in the kitchen. I am not convinced that the use of a carton of bottles of wine was a reasonably practicable alternative which the plaintiff should have used in order to take reasonable measures for his own safety. Such a carton would not necessarily have been sufficiently strong to avoid the likelihood of partial collapse, and in any event may not have been high enough for the plaintiff's purposes. I am not convinced on the evidence that the possibility that there might have been a wooden box in the kitchen provided a reasonably practicable alternative. There is no evidence that such a box was available on the day in question, and boxes and crates vary greatly as to strength and the capacity to take the weight of a human being. The defendant has not discharged the onus of proving that the plaintiff failed to take reasonable care for his safety and there will be no apportionment for contributory negligence.

5. I turn now to damages.

6. The plaintiff was born on 26 January 1934. He left school in 1951 after obtaining the leaving certificate and joined the Royal Australian Navy. His career in the Navy was in the catering area and he progressed to the level of Chief Petty Officer Cook upon his discharge in 1973. He had married whilst serving in the Navy. He had an injury to his right knee in 1966 when playing football and had undergone an operation for removal of a cartilage. He said that he recovered fully from that operation soon after and continued to play football and follow a wide range of physical activities.

7. After his discharge from the Navy the plaintiff continued in various capacities within the catering industry, mostly as a chef, but sometimes also as a chef/manager. In 1983 he became the licensee of the Cotter Reserve Hotel, but after about a year the business proved to be unsuccessful and he abandoned it. According to the plaintiff, the business failed because of underworld activity including death threats to the plaintiff and his wife.

8. The plaintiff commenced employment with the defendant as a storeman/purchasing officer in May 1984.

9. Immediately after the accident the plaintiff felt what he described as "great pain" for about five minutes. However, it eased off and he continued to work the rest of the day. By 4.30 p.m., however, the pain had increased to the extent that he went to the Woden Valley Hospital Casualty Department where his right leg was x-rayed, fixed with a splint, and he was supplied with crutches. The x-rays indicated a small fragment of bone at the edge at the top of the right tibia. The swelling of the knee subsided after about three or four days, but the pain persisted. The plaintiff continued in work with the assistance of colleagues. On 24 June 1985 he returned to the Woden Valley Hospital, complaining of considerable pain in the right knee. It was noted that the "lateral and anterior cruciate ligaments were stressed". His right leg was placed in a full length plaster cast and he was discharged on crutches which he used for about two or three weeks. The plaintiff was then referred to Dr Richard Vance, an orthopaedic surgeon. Dr Vance thought that the x-rays indicated a small avulsion fracture at the outer margin of the tibial plateau. The plaster was removed on 3 July 1985 and a bandage substituted. By the end of July Dr Vance recommended a return to work. It appears that the plaintiff did return to work although still using crutches. The plaintiff continued at work, hobbling, using crutches sometimes and continuing to see Dr Vance. He complained in evidence of a lack of assistance and so he returned to Dr Vance at the beginning of August 1985 and was given another two weeks away from work. However, he was asked to return to work because of the turmoil in his absence and he did so. Although Dr Vance had recommended light duties, none were available.

10. The plaintiff continued in this situation until 9 October 1985 with continuing pain and swelling in the right knee. Dr Vance recorded improvement by 31 July 1985 but at the consultation on 7 August 1985 the plaintiff complained of further pain to the right knee whilst moving trolleys at work. Dr Vance also recorded continuing complaints despite physiotherapy and analgesic tablets during the month of August 1985. On 9 October 1985 an arthrogram was carried out which indicated a possible tear in a remaining portion of the medial meniscus which had been subject to operation in 1966. However, Dr Vance did not suggest any further operative treatment at that stage because the plaintiff stated that his knee felt much better. He did not see the plaintiff again until 27 January 1987.

11. In his evidence the plaintiff said that his knee continued to "play up", but he managed to continue working. However, in February 1986 because of a clash of personalities with someone else at the defendant's motel, the plaintiff resigned from there. He then took a part-time casual job for three or four months at a hotel in Queanbeyan where he worked as a breakfast cook for two to four hours a day. After that period he commenced full-time employment in that position, at a net wage of $300 per week, less than he might have expected if he had stayed employed by the defendant. Again he said in his evidence that he continued to have pain in his knee, but he had purchased a "physio-wrap" which helped ease the pain.

12. In January 1987 the plaintiff commenced work as a chef with a seafood restaurant in Queanbeyan, but after two or three weeks found that the increasing pain in his knee was such that he could not carry on. The work was heavier there than at the hotel, and he was required to bend frequently to get down to ovens. The plaintiff has not worked since then.

13. On 27 January 1987 the plaintiff returned to Dr Vance complaining of "aching and swelling of the knee over the past twelve months". Dr Vance prescribed a course of physiotherapy. Dr Vance expressed the view that when he last saw the plaintiff on 23 February 1987 he thought that the plaintiff may have been developing early arthritic changes in the knee but those were not at that stage confirmed radiologically.

14. In April 1987 the plaintiff, sought a second opinion as to his condition and was referred by his local practitioner to Dr Cairns. The plaintiff first saw Dr Cairns on 17 June 1987. He gave a history consistent with his evidence. Dr Cairns arranged an arthroscopic examination on 30 June 1987. It confirmed the retention of part of the medial meniscus and advanced osteoarthritic change over the articular surface of the patella. On the advice of Dr Cairns, the plaintiff underwent an operation of antero-medialisation of the patella on 24 July 1987 which gave temporary relief only. When there was continuing pain, instability and fluctuating swelling on review on 28 October 1987, Dr Cairns advised excision of the patella and that operation took place on 20 November 1987. The plaintiff thereafter experienced relief in his symptoms. He describes the pain as "niggling but not excruciating" in contrast to the pain he had experienced from the beginning of the year.

15. Since then the plaintiff's condition has remained more or less stable, although he has experienced relief with the fitting of a full length calliper about two or three months ago. He experiences pain after prolonged standing for 20 minutes to half an hour, although he complained to Dr Cairns that there is a constant ache. He has registered for work with the Commonwealth Employment Service on the basis that he is fit for clerical work only and has been quite unsuccessful in obtaining any such work. The plaintiff was an active sportsman prior to his injury playing golf regularly, as well as tennis and fishing and occasional cricket. He lives in the small community at Uriarra and is now dependent on neighbours for the mowing of his grass, the cutting, collection and splitting of firewood and other tasks. He has become depressed. In 1988 he consulted Dr Cohen for pain in the lower back and was referred to a podiatrist. He was advised to wear orthotic inserts in his shoes to correct his limp, and his own view is that these have helped the pain in his back and indeed have affected a "vast improvement". The opinion of Dr Howes is to the contrary.

16. The medical evidence is overwhelmingly in support of the view that whatever disabilities followed the 1985 injury, they were due to that injury. True it is that Dr Cairns stated in his report of 30 November 1989 that medial menisectomy commonly results in the development of secondary osteoarthrosis in the medial compartment and not infrequently in the patello-femoral compartment, but there is no radiological evidence of such degeneration in the medial compartment of the plaintiff's knee, and the degeneration in the patella was not shown radiologically until the arthroscopy on 30 June 1987, although Dr Vance suspected in 1985 that such degenerative changes were under way. In any event, I reject the view expressed in the report of Dr Cairns that the plaintiff will continue to be disabled by osteoarthrosis in the medial compartment of the knee, complicated by the necessity to carry out patellectomy. The plaintiff's injury was a hard fall on his right knee. I accept Dr Mann's opinion that that is not the sort of injury that was likely to cause a meniscus tear and further that the meniscectomy in 1966 was unlikely to set in train degenerative change in the patello-femoral compartment. Although Dr Cairns on 24 July 1987 took the opportunity to remove what remained of the medial-meniscus in addition to removing the patella, the purpose of the operation was to relieve the condition in the patella region, which on all the medical evidence is quite separate from the medial region. I think that it is quite unlikely that Dr Cairns would have operated on the medial region alone. The fact that there was a degenerative condition by 1987 which was barely apparent in 1985, is not inconsistent with a causative relationship between the plaintiff's symptoms in 1987 and the 1985 injury. It is true that the plaintiff's symptoms between July 1985 and about September 1986 were not serious enough for him to seek out medical treatment, but I am satisfied both on his evidence and on the consistency of his complaints to the doctors that there was a continuity of mild symptoms during the period, aggravated by the heavier work which he took on when he commenced more demanding work at the Queanbeyan Seafood Restaurant. I do not regard the effect of the heavier work as being an intervening cause which relieves the defendant from responsibility for the plaintiff's condition. When Dr Mann saw the plaintiff in March 1990, he noted that there was no wasting of the quadriceps muscle, which is inconsistent with the plaintiff's general complaints of inability to use the right leg. On the other hand, there were previous observations, for instance by Dr Cairns in September 1986, that there was a wasting of the quadriceps, and the explanation would appear to be that contained in the report of Dr Howes that the plaintiff was undergoing a regime of quadriceps exercises which was recommended at the same time as the acquisition of the orthotic footware. It might be noted at this stage that Dr Howes' opinion was that the use of the orthotic footware was unnecessary and might even be deleterious to the plaintiff's back condition, but that in any event the use of the calliper has corrected the problem.

17. Dr Keiller thought that the plaintiff was exaggerating his symptoms. Dr Cairns thought that either the plaintiff was exaggerating his symptoms or his disability was due largely to the effect of the meniscectomy, because the plaintiff should have improved considerably following the patellectomy.

18. Dr Mickleburgh, a consultant psychiatrist, who saw the plaintiff on reference from his solicitors, was of the view that the plaintiff was suffering from a severe depressive reaction which was getting worse as at the end of August 1990. However, in the last couple of months the plaintiff has obtained unexpected relief with the use of the calliper prescribed by Dr Howes, and although I accept that there has been a degree of depression which probably resulted in an increased perception of pain, the plaintiff did not impress me as being depressed at the time of the hearing. Of course it is easy to be misled by impressions, but there is also evidence from Dr McGrath and Dr Keiller that if the plaintiff's motivation were increased, or his emotional fear and stresses removed, he would be more likely to be able to enter the workforce. The plaintiff himself in the witness box appeared to take quite a positive attitude that he would be prepared to take up any work within his capacity if it were available. Dr Mann considered that while the plaintiff had suffered a very serious permanent injury to his right leg he was nevertheless ideally suited for work which could be done at a desk without too much walking around. It is nevertheless a fact that the plaintiff's condition will not improve, and is likely to get worse so that a total knee replacement will be necessary, but not earlier than at age 65.

19. Two other factors need to be taken into consideration as far as the future is concerned. The first is the possibility or likelihood that the degenerative condition in the patella region of the plaintiff's knee was such that it would have become disabling in any event. Dr Mann's view was quite optimistic in this regard in that, although he thought that it was likely that the plaintiff would have had a degenerative condition in his knee in any event, the question of symptoms of disability was another matter. Dr Mann thought that there was only a "small possibility" that but for the injury the plaintiff would have been disabled by knee problems before the age of 65, and that despite the meniscectomy, the chances were that the plaintiff "would be one of those patients who had a complete relief of symptoms and a complete cure of the condition". The other end of the spectrum was the view of Dr Nicholls that the plaintiff's symptoms would have occurred as a result of minor injury or spontaneously and that at the most the 1985 incident simply brought on the symptoms a little sooner than would otherwise have been the case.

20. In my view it is impossible to be dogmatic about these matters of conjecture and I think that the true situation is best expressed by Dr Keiller when he said that the plaintiff lost the chance of remaining symptom free.

21. The other matter that needs to be taken into consideration is even more conjectural. It is that the plaintiff has recently been diagnosed as suffering from a heart condition which will require his admission to hospital for a by-pass operation. There is no connection between his heart condition and the injury for which the defendant is responsible. There was no medical evidence on this aspect, but the plaintiff stated that if the operation is successful he expects after two or three months of recuperation to be back to normal. There is the contingency, however, that the heart condition may prove more serious, and I think that the ordinary adverse vicissitudes have been increased somewhat in the plaintiff's case.

22. It is agreed that if the plaintiff's total loss of time from work since the injury is to be attributed to the injury, then his past loss of earnings is $87,522 net. I would discount this for past contingencies and allow a figure for past loss of $80,000.00. Out-of-pocket expenses are agreed at $23,898.54. The Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 component is agreed at $6,537.53.

23. A claim is made under Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 for assistance the plaintiff received from his neighbours for wood-cutting and collection, lawn mowing and other chores. I think it reasonable to allow this at two hours per week in the past, with a slight discount, to round out the figure at $5,000.00. For the future the figure should be discounted somewhat more heavily and I will allow $8,000.00 for the future. The plaintiff will require two more callipers which at present values would involve an outlay of $4,363.97. Allowing for the fact that he is receiving payment in advance, but not knowing what the cost is likely to be when the purchase needs to be made, I allow $4,000 for this aspect. The cost of pharmaceuticals in the future, now running at about $20.00 per week, will continue, but I do not think that the use of anti-depressants has been proved to be necessary for a substantial period in the future. Again this aspect has to be discounted for the substantial possibility that the plaintiff's degenerative condition may have become disabling by reason of natural processes or some other injury. I would allow $5,000.00 for this component of the damages.

24. As far as future loss of earning capacity is concerned, I note that it is agreed that the wage that the plaintiff could have commanded if he had gained and continued in employment as a second chef is $537 net per week. Using the three percent tables and reducing the total for vicissitudes, taking the plaintiff's working life up to 65 years, gives a figure of just less than $150,000. There is another factor, however, which I think must be taken into consideration. Normally, the Court is not concerned with the use to which a plaintiff may put an award of damages. However, in this case it cannot be ignored that the plaintiff is a man who is very experienced in the catering trade at all levels. He is no longer able to carry out the physical duties of a chef, and I accept his evidence that semi-managerial duties such as those of a purchasing officer, which he was carrying out at the time of his injury, are physically demanding. Nevertheless, I think he is capable of managing a small business such as a coffee lounge or bar where he is able to sit at the till, to get up and move around when he feels like it, to act as a waiter or as a receptionist within his capacity, and to employ others to do the physical work. After all, he was the licensee of a hotel and the reasons that he gave for not continuing in that business had nothing to do with any lack of ability to manage or carry on the business. Whilst I think that the plaintiff is quite unlikely to find employment in the catering industry, it is likely, once he has some capital behind him, that he will be able to manage a modest business in this area. Of course one cannot conclude that the business would be particularly profitable, but it does mean that the plaintiff's physical capacity to earn income, which cannot be put into practical effect at the present time in paid employment, may well be reflected in his daily activities. I would award the plaintiff for loss of earning capacity in the future the sum of $120,000.00.

25. As for pain and suffering and loss of enjoyment of life, the plaintiff has undoubtedly suffered a serious injury with major impact on his social, sporting and family life. Again, however, there has to be some discount for the possibility that the degenerative condition may have interfered with his capacity to enjoy life in any event. Taking a slight discount into account, I award $50,000.00 for this component, as to which $25,000.00 is to be apportioned for the past. With respect to the past wage loss, I note that the plaintiff received worker's compensation, net after tax of $49,685.00 which when subtracted from the award for past loss leaves a sum of approximately $30,000 on which interest is to be awarded on the usual basis and at the usual rates. Interest on the past component of pain and suffering amounts to $12,000.00 and on the component of past loss of earning capacity $14,500.00.

26. In summary, the award of damages is as follows:
Past loss of earnings $ 80,000.00

Out-of-pocket expenses $ 23,898.54
Fox v. Wood $ 6,537.53
Griffiths v. Kerkemeyer $ 13,000.00
Pharmaceutical expenses $ 9,000.00
Future loss of earning capacity $120,000.00
Pain and suffering and loss of
enjoyment of life $ 50,000.00
Total: $302,436.07

27. This appears on reflection to be an appropriate award in all the circumstances. When the interest of $26,500.00 is added, the plaintiff is to have judgment for $328,936.07 Unless the parties wish to be heard I propose to order that the defendant pay the plaintiff's costs.