To'Omailangi Jakomos v Stanley Hambesis [1991] ACTSC 3 (29 January 1991)

SUPREME COURT OF THE ACT

TO'OMAILANGI JAKOMOS v. STANLEY HAMBESIS
S.C. No. 1248 of 1986
Damages

COURT

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

CATCHWORDS

Damages - Personal Injury - Motor Vehicle Accident - Assessment - Abdominal Injury - Laparotomy - Scar - Pre-existing Spondylolisthesis - Exacerbation - No Issue of Principle

HEARING

CANBERRA
29:1:1991

Counsel for the Plaintiff: Mr Crowe

Solicitors for the Plaintiff: Peter Smyth Burnett and Co.

Counsel for the Defendant: Mr Parker

Solicitors for the Defendant: Abbott Tout Russell Kennedy

ORDER

Judgment be entered for the plaintiff in the sum of $70,983.47.

DECISION

This is the assessment of damages for personal injury sustained by the plaintiff in a motor vehicle accident on 24 November 1985.

2. The plaintiff is a 35 year old woman, born in Tonga. She came to Australia in 1972, and, after completing a technical college course, obtained employment as a secretary.

3. She married in 1977, and by the time of the accident had two children, born in 1978 and 1980.

4. In 1985 she was living in Canberra with her family, and was engaged on contract as a word processing operator with a secretarial agency.

5. On 24 November 1985 she was a a passenger in a Kombi Van being driven by her sister in Canberra. She was wearing a seat belt. A car driven by the defendant failed to give way at a give way sign and the front of the van collided heavily with the left hand front of the defendant's car. The plaintiff was thrown heavily forward until restrained by the seat belt, and then thrown back to the seat. She did not lose consciousness. She immediately felt pain in the abdominal area and had difficulty breathing.

6. She was taken by ambulance to Royal Canberra Hospital where she was kept under observation for 3 hours. X-rays did not disclose any condition that called for her admission, and she was discharged to her home.

7. She was still in pain. When she got home she had a drink, and vomited blood. The ambulance was called and she was again taken to hospital, where she was admitted under the care of Dr Scott-Findlay.

8. Later that evening Dr Scott-Finday performed a laparotomy which disclosed a perforation of her jejunum, which he repaired.

9. The plaintiff was not expecting an operation wound as big as the one she discovered when the dressings were changed.

10. She remained in hospital for about ten days, undergoing the normal painful process of recovery from an abdominal operation.

11. After some weeks at home she went to Tonga at Christmas to stay with relatives, while she continued to recuperate. Eight weeks later she returned to Canberra.

12. She then consulted her general practitioner, Dr Rea. As the abdominal pain settled down she had noticed pain in her lower back, which troubled her when bending over, or when walking, standing or lying for long periods.

13. Dr Rea reported that X-ray of her lumbar spine revealed displacement of the lower lumbar vertebra forwards on the sacrum, with narrowing of the disc space and osteophyte formation. She had never had any symptoms of back pain before the accident. Dr Rea concluded that the back injury was an aggravation of the previous condition, and that it was probable that the degenerative process present in her lower lumbar spine will accelerate due to the accident. She made a slow recovery from the back pain, and he certified that she was fit to go back to work from 5 April 1986.

14. She did not return to work immediately, but in about September 1986 she obtained a position as a word processing operator with the then Aboriginal Development Commission.

15. Her back has continued to be a source of discomfort, especially if she sits for more than about an hour at one time.

16. In August 1986 her solicitors referred her to Dr Newcombe. He reported that her injuries from the accident consisted of a laceration of the small bowel, a crush injury of the chest wall, an intervertebral disc injury at T11/12 and aggravation of lumbar spondylolisthesis associated with L5/S1 degeneration. He thought it likely that pain from the lumbar injury would continue indefinitely. No specific treatment is required. Further deterioration is possible. Further surgery could be needed, but on balance would not likely be required.

17. In late 1989 she conceived another child who was born on 12 July 1990. Although she had had no problems with her back in previous pregnancies, she suffered a great deal of discomfort from it during this one.

18. The laparotomy scar extends on the midline of her abdomen from the xiphisternum to the pubis. The upper and lower limits are raised and hard. The central segment is flat and soft, but widened. The photograph in evidence shows the scar clearly, and also shows the deformation of the surrounding skin and muscle tissues, especially on the lower end of the scar.

19. Dr Ferguson, plastic surgeon, reported that the upper and lower segments of the scar might be improved by surgery, but the combination of her dark skin and the midline scar makes predicting the final results impossible. He does not say that the condition of the surrounding tissue would be improved. In round figures, the surgery, hospital expenses and loss of income involved would be about $1,000.00.

20. The plaintiff is a lady of attractive appearance, and speaks very softly, it seemed to me with some degree of shyness. She was not inclined to articulate her reactions and sufferings. She does not like the scar, and is upset to touch it. It prevents her from wearing some styles of clothing that she enjoyed. She thinks it likely that she will have the plastic surgery when the baby is a little older.

21. It is true that the back pain is not disabling, nor likely to become so. She is still able to enjoy some social sport. The discomfort is intermittent, not constant. But deterioration is likely, and the need for further surgery possible, though not likely. She has not suffered any symptoms from the injury to the thoracic disc, and the doctors do not comment on it. I do not regard it as significant.

22. The abdominal trauma was substantial, calling for major surgery, and has left a large permanent scar.

23. I assess her damages for pain and suffering and loss of amenities at $50,000.00. I include in that the likelihood and expense of the further operation. In lieu of interest on that part of that sum as relates to the past I award the sum of $15,000.00. The out-of-pocket expenses are agreed at $2,907.65, and the wage loss at $3,075.82.

24. The total award is therefore made up as follows:
General Damages $50,000.00

Interest $15,000.00
out-of-pocket expenses $ 2,907.65
Loss of wages $ 3,075.82
$70,983.47

I direct the entry of judgment for the plaintiff in the sum of $70,983.47.