Brett Davis v Vlasta Michellie Sterner [1991] ACTSC 2 (29 January 1991)

SUPREME COURT OF THE ACT

BRETT DAVIS v. VLASTA MICHELLIE STERNER
S.C. No. 702 of 1988
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master Hogan(1)

CATCHWORDS

Damages - Personal Injury - Assessment - Police Cyclist - Fractured Wrists - Altered Career Prospects - Likelihood of Osteoarthritis - No Issue of Principle

HEARING

CANBERRA
29:1:1991

ORDER

Judgment be entered for the plaintiff in the sum of $188,757.53.

DECISION

This is the assessment of damages for personal injury which the plaintiff sustained in a motor vehicle accident on 25 January 1988.

2. The plaintiff was born in 1964.

3. In May 1986 he joined the Australian Federal Police. After service in general duties he transferred to the traffic section as a motor cyclist in June 1987. He had originally joined the force in order to be a motor cyclist, and enjoyed that type of work.

4. On 25 January 1988 he was riding his cycle in the course of his duties when a car made a right hand turn across his path. He was thrown across the handlebars, struck the car and fell to the roadway. He was not knocked unconscious. He immediately felt extreme pain in his wrists and nose and around his mouth.

5. He was taken to Royal Canberra Hospital by ambulance and admitted under the care of Dr Kitchin. He suffered considerable pain until he was taken to the operating theatre later that day.

6. His injuries included:
1. Compound, comminuted fracture of the right distal radius

with posteriorly and proximally displaced fracture fragments.
2. Fracture of the left distal radius and ulna with palmar
angulation on left and fractures of base of third, fourth
and fifth metacarpals.
3. Dislocation/Subluxation right acromioclavicular joint.
4. Laceration to nose with fractures of nasal bone and nasal
process of maxilla.
5. Minor laceration to right anterior chest.
6. Bruised scrotum.

7. Dr Kitchin carried out a closed reduction of the Colles fracture of the right wrist and open reduction and internal fixation with a plate and screws on the left wrist. Both wrists were immobilised in plaster. The fracture in the nose was also reduced, and the nose sutured.

8. The hospital records show that he made satisfactory progress until his discharge on 30 January, 1988. However, he suffered considerable discomfort during this period.

9. On 3 February he attended the casualty department with some concern about the plaster.

10. On 4 February he saw his general practitioner, Dr Gary Jones. His scrotum was still bruised, his arms in plaster, and he was complaining of malalignment of his teeth.

11. While his arms were in plaster he had to rely upon care by his parents for all tasks of every day living, such as washing, eating, going to the toilet and dressing. He was assisted in showering by a nurse who attended twice a week.

12. The plaster and stitches were removed from his nose about eight days after the accident. His arms were in plaster for about six weeks after the collision.

13. He continued to see his general practitioner during February, March and May.

14. On 19 February Dr Jones referred him to Dr Gaudry because the plaintiff was complaining about his bite. Dr Gaudry could find no abnormality then or later, but attributed the feeling of discomfort to a bruising or jarring of the jaws and teeth in the accident, or possibly referred pain from the fractured nose.

15. The bruising and dental symptoms subsided normally over time. Dr Kitchin prescribed physiotherapy for the wrists, and continued to see the plaintiff at intervals during 1988.

16. The plaintiff's ability to care for himself and use his wrists slowly improved. The nose healed, but there is some displacement which leads to nasal congestion. This could be remedied by operation, but the plaintiff does not consider the discomfort sufficiently grave to warrant it.

17. In July 1988 he was able to return to work, on light duties. He went back to full duties on 30 August 1988.

18. While riding a cycle he found his wrist movement restricted, and he suffered from nagging aches in the wrist.

19. His writing was shabby at first, but gradually improved.

20. On 14 February 1989 Dr Kitchin removed the plate from his left wrist under general anaesthesia at John James Hospital. The plaintiff spent two days in hospital. By 28 March 1989 the wounds were healed and Dr Kitchin judged that recovery from the surgery had been satisfactory. The plaintiff returned to work on 6 April 1989.

21. He continued to suffer pain in both wrists, the right one being a little the more painful. He consulted the Commonwealth Medical Officer, Dr Navin in January 1990. He was prescribed anti inflammatories and advised to wear a thermal bandage. He was also advised to give up work on the motor cycles, so he applied for transfer to the police driver training division, to which he was appointed in June 1990. Dr Navin reported that following the transfer he was much less concerned by pain and disability.

22. On review in October 1990 Dr Navin found that the plaintiff's need for medication had decreased, but not ceased. He had fixed restriction of both wrist joints, and some deformity which decreases his ability to use his wrists. He already had some evidence of osteoarthritis. Dr Navin expected further decrease in function as joint destruction continues, with corresponding increase in pain.

23. Dr Kitchin saw him in November 1990, and his findings were to the same effect. X-rays showed narrowing of the articular surface of the left wrist joint, and disturbance of the joint surface in the right. There was a slight deformity at the shoulder, without significant residual disability. The condition of the wrists is permanent. The disturbance of the articular surfaces increases the probability of osteoarthritic changes later in life. In the very long term, if the arthritic process became sufficiently disabling, then arthrodesis of the wrist joints would need to be considered.

24. He has a scar on the lower part of the left wrist.

25. I accept that the plaintiff has lost the capacity for work as a cyclist, which he enjoyed, and which he could have anticipated would last for some time, though not, of course, until his retirement.

26. There is no danger of his becoming unsuitable for employment as a police officer, but I also accept that he would act reasonably in not undertaking general duties.

27. The opportunities for variety, and perhaps advancement, in his police career would therefore be restricted.

28. He had engaged in Tae Kwan Do, golf, squash and tennis. He now plays only squash, occasionally. Naturally he suffers some discomfort and limitations when gardening or mowing lawns.

29. The injuries were painful. The disability is permanent. There is a real possibility of the need for arthrodesis at some time in the future. His enjoyment of his career has been affected.

30. For his pain and suffering and loss of the amenity of life I award $50,000.00. In lieu of interest on that part of that sum as relates to the past I award a lump sum of $5,000.00.

31. The out-of-pocket expenses have been agreed at $7,172.53.

32. His loss of wages to 10 October 1990 has been agreed at $17,997.00.

33. The Fox v Wood component is agreed at $4,724.00.

34. The assessment of the value of the services voluntarily provided by his parents over the eight weeks after he left hospital is not contested, and amounts to $3,864.00.

35. A report by Macquarie Reporting Services was admitted into evidence by consent, which sets out a calculation of the present value of his future economic loss at $147,558.00.

36. That calculation is based on a number of stated assumptions one of which is that if not for his accident the plaintiff would have remained in the traffic branch as a motor cycle policeman. I do not think that assumption is supported by the evidence, or by common sense. The plaintiff, who gave his evidence at all times moderately and carefully, agreed that a time would have arrived when he would have changed to some other type of duty. However, the possibility for employment in general duties, with consequential overtime, shift and penalty allowances, which he can not now receive, has also been closed to him. It is not possible to make a calculation about the net effect of these considerations, but they must bring about a significant discount to the maximum figure set out in the report. To that there must be added a discount on account of the normal contingencies of life for a police officer, a career which is not without its own particular dangers.

37. I would assess the present value of his future economic loss at $100,000.00.

38. The total award is therefore made up as follows:

General damages $ 50,000.00.
Interest $ 5,000.00
out-of-pocket expenses $ 7,172.53
Loss of income $ 17,997.00
Fox v Wood $ 4,724.00
Griffiths v Kerkemeyer $ 3,864.00
Future economic loss $100,000.00
Total $188,757.53

I direct the entry of judgment for the plaintiff in the sum of $188,757.53.