Scott John Hewett v Anne Margaret Meyboom [1992] ACTSC 63 (24 June 1992)

SUPREME COURT OF THE ACT

SCOTT JOHN HEWETT v. ANNE MARGARET MEYBOOM
No. SC 800 of 1990
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Panel beater - Compound fracture upper arm - Fractures of left fibula and in left knee - Soft tissue back injuries - Future loss of income - No issue of principle.

HEARING

CANBERRA
24:6:1992

Counsel for the Plaintiff: T. Christie QC and M. Inglis

Instructing Solicitors: Scott Sheils and Glover

Counsel for the Defendant: L. Morris QC and G. Parker

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $214,300.
2. I order the defendant to pay the plaintiff's costs.

DECISION

This is the assessment of damages for personal injury sustained by the plaintiff in a motor vehicle accident on 27 April 1989.

2. The plaintiff is a single man born on 15 June 1971. Shortly before his sixteenth birthday he left school, and in April of 1987 he began an apprenticeship as a panel beater.

3. In 1988 he undertook a course of instruction at the TAFE College in panel beating. The TAFE course would have taken three years, and his apprenticeship would have lasted four years.

4. He had not been a very successful scholar at school, but he found that he enjoyed panel beating and was progressing satisfactorily with the course of study.

5. On 27 April 1989 while he was riding a motor cycle home from work, the defendant made a right hand turn in front of him, and his cycle collided heavily with the defendant's vehicle. He was apparently thrown over the vehicle and lost consciousness. He woke up lying on the side of the road, in shock. He lost consciousness again. He recalls waking in the ambulance and being given an anaesthetic. He next woke up in hospital.

6. Although he has no recollection of it, the hospital notes record that on examination he was conscious and alert, although unable to remember the events of the accident. There were two puncture wounds in his left mid upper arm with bone protruding and a large laceration to the left lower leg. There were abrasions to all knuckles and to the left leg.

7. X-ray of the left leg and left ankle revealed an undisplaced fracture of the mid third of the fibula. X-ray of the left humerus revealed a fracture of the shaft of the humerus at the junction of the middle and lower thirds. X-ray of the left knee revealed a fracture at the posterior end of the interchondral eminence of the tibia. X-rays of the chest, cervical spine and skull revealed no abnormalities.

8. After the wounds had been cleaned and dressed in Casualty he was taken to the theatre where the compound fracture of the left humerus was cleaned and a plaster slab applied. The wounds to the left leg were also cleaned.

9. He was under the care of Dr Woods, orthopaedic surgeon, who described his injuries as a compound fracture of the left humerus, haemarthrosis in the left knee with avulsion of the posterior cruciate ligament, and an undisplaced fracture of the mid shaft of the left fibula, abrasions of the left foot, left knee and left hand.

10. As he became more conscious and co-operative it became apparent that there was a weakness of the muscles around the left shoulder and upper arm, consistent with a brachial plexus injury. He developed numbness on the fingers of the left hand and the hospital reports that it was felt that he had sustained trauma to the ulnar nerve.

11. On 3 May 1989 he was returned to the theatre. Under general anaesthetic the left knee was examined and Dr Woods concluded that there was an incomplete tear of the posterior cruciate ligament. The fractured humerus was treated by open reduction and internal fixation with a plate. Post operative treatment consisted of physiotherapy as well as medication for severe neuralgic pain in the left arm.

12. He was discharged from hospital on 15 May 1989 with his arm in a sling and a cast on his leg. He went home to live with his mother, who of course found it necessary to care for him, feed him and dress him.

13. Dr Woods removed the plaster from the left leg on 8 June 1989. X-rays revealed that the fracture of the humerus appeared to be progressing satisfactorily but there was still complete paralysis of the shoulder and elbow muscles. He prescribed physiotherapy and a sling to support the left shoulder.

14. On 20 July 1989 Dr Woods noted that there was a flicker of contraction in both biceps and triceps indicating some recovery. The elbow was still stiff, but the knee had regained reasonable movement.

15. When Dr Woods reviewed his condition on 26 October 1989 he reported that his knee was no longer causing problems, and he was able to flex his elbow against gravity, mainly by using the common forearm flexor muscle. There was a flicker of deltoid activity and a x-ray of the humerus revealed union to be progressing.

16. At review on 21 December 1989 Dr Woods noted further progress with some contraction of the deltoid muscle being possible. He recommended that the plaintiff continue with physiotherapy.

17. Dr Duncan, rheumatologist, examined him for the purpose of a report to his solicitors on 5 November 1989. The plaintiff had begun doing work with weights on his left arm in an attempt to built up strength. He obviously still had a very weak arm with stiffness in the shoulder and pain in cold weather. By this time he was able to drive a car and look after himself but normal household tasks were causing discomfort and took prolonged effort.

18. He was still getting pain around the left knee and left ankle on more severe exertion. Dr Duncan found that he had about fifty percent of normal movement at the left shoulder. There was an 18 cm scar on the anterior biceps, a 5 cm scar on the lower part of the extensor surface and a 3 cm scar over the lateral upper arm. Those scars are still present, and, I understand, permanent. The power of the triceps muscle was normal but other movements of the shoulder were weak. Flexion at the elbow was weak. There was weakness in finger extension, wrist supination and pronation. There were areas of sensory deprivation over patches on the arm. The arm appeared significantly wasted from the shoulder girdle to the wrist.

19. Dr Duncan assessed the level of impairment to the left arm at 70-80 percent. He also assessed the loss of shoulder joint movement as 50 percent.

20. It was by this stage obvious that the plaintiff would never be able to return to work as a panel beater. Dr Duncan also thought that later in life function would be likely to deteriorate both as a result of further nerve deterioration and shoulder joint damage.

21. On 7 March 1990 the plaintiff consulted Dr Charles Howse a consultant at the Southern Sports Medicine Clinic. Dr Howse reported to the workers compensation insurer that the condition of the arm was improving. The plaintiff had progressed from having a useless left arm to a point where he was able to use the hand functionally and had limited movement and strength in the shoulder joint.

22. The insurer sought an opinion from Dr Scott-Findlay, who saw him on 29 May 1990. The plaintiff had continued working with exercise and weights on the arm, which was improving, though he said that it had only been in the previous month or two that the arm had begun to function. He said that his left knee was alright but was painful on complete extension. It sometimes locked and hurt while riding a bike.

23. Dr Scott-Findlay's impression was that the plaintiff had suffered a gross traumatic injury to the left side of his body involving the brachial plexus as well as the peripheral nerves, muscles, bones and probably the ligaments. However what had been an almost completely useless left upper limb had by then started to become very useful. He was obviously still not fit for his pre-injury work.

24. On 30 April 1991, at the request of his solicitors, the plaintiff was examined by Dr Coffey, a consultant neurologist. Dr Coffey's report mentions an aspect of his injuries that could easily be lost light of because of the injury to his arm, that is, that he had been troubled by recurrent neck and low back pain ever since the accident, and in association with his neck pain he experienced recurrent headaches which were occurring two to three times per week.

25. There was a normal range of low back movements but some restriction of neck movements. There were no abnormalities in the cranial nerves. Dr Coffey related the headaches to a soft tissue injury to the cervical spine. He expected them to improve further with time.

26. So far as the arm and leg were concerned Dr Coffey's opinion seems to be consistent with that of Dr Howse and Dr Scott-Findlay. It should be noted that counsel for the defendant did not raise any issue about the medical aspects of the case.

27. Dr Searle, consultant orthopaedic surgeon, examined the plaintiff on 30 April 1991. His report is consistent with the opinions of the other doctors, but he mentions the possibility of a surgical procedure to improve somewhat the function of the left arm which would cost about $10,000, and a repair of the posterior cruciate ligament costing $8,000. Dr Searle also makes it clear that degenerative changes in the knee joint are inevitable and will cause gradually increasing symptoms and disability later in life. He agrees that the plaintiff is permanently fit for only light work and is permanently unfit for his pre-injury occupation as a panel beater.

28. In August 1991 he was assessed by Dr Corry, rehabilitation consultant. Dr Corry thought that the instability in the knee is not such that knee reconstruction would appear to be indicated. He discussed with him his motivation to seek employment within his capacity. I agree on the basis of the evidence that the plaintiff is most unclear about the direction this should take, and I also am not sure that he is being realistic in his choices.

29. Dr Corry arranged for a more detailed analysis of his employment capabilities, which was carried out by an occupational therapist, Mr Magill, who works with Dr Corry in his rehabilitation clinic.

30. Since the accident the plaintiff had undertaken a short security training course and obtained licences which would qualify him for work as a security guard or body guard. He also undertook a one week intensive bar tending course at the Reid TAFE in July 1991. He applied for jobs, and I accept that he has actively looked for work, but the disability in his left arm has been a major obstacle to his gaining employment at least as a bar tender or as a security guard.

31. Mr Magill listed a number of jobs that would be within the plaintiff's assessed capacity to perform. They were not those for which the plaintiff expressed a preference. He is undertaking further education, and I think it is fair to say that he would find difficulty in obtaining employment without it.

32. He has been able to find occasional work, driving a truck on five to ten occasions.

33. The plaintiff was a fit young man who enjoyed physical activity and sport, though not regularly engaged in any particular one.

34. It is obvious from a comparison of his musculature on the uninjured side that he would have been well built and very strong. He is able to enjoy horseriding from time to time, being skilled at it since childhood, but found that water skiiing placed too much strain on his leg. He rides a bicyle, and can drive a motor vehicle.

35. Counsel for the defendant quite fairly did not contest that he received a severe injury. I am not persuaded that he will probably undergo any further operations, but the possibility, especially of one upon the knee, must be taken into account in assessing general damages. He is young, and will suffer disability and some pain for the rest of his life.

36. I would award the sum of $55,000 for his pain and suffering, of which $20,000 would relate to the future.

37. On the conventional basis I award $1,700 interest on the past component of that item.

38. His loss of income to the date of hearing was agreed at $40,272. He was receiving workers compensation, and interest on the shortfall is agreed at $4,615.50, together with the Fox v Wood component at $4,660.32.

39. The out of pocket expenses are agreed at $16,549, and the value of services provided voluntarily by his mother for a time after the accident are agreed at $11,500. I make no award for the future on the basis of Griffith v. Kerkemeyer.

40. The principal item in contention is the assessment of his loss of income earning capacity for the future.

41. I am satisfied that he would have succeeded at his chosen calling as a panel beater, and could well have progressed to starting his own business. It is a conservative approach to start from a figure of the order of $335.00 a week as indicating what he might have earned uninjured. But he is obviously not unemployable, and I think he will almost certainly obtain employment of some kind. It is likely that it will not be constant. He will always be at a gross disadvantage in competing for suitable jobs against uninjured people. But suitable jobs such as he might become capable of doing do not pay less than $300.00 a week. Some might even pay more than $335.00 a week. He would probably have worked to age 60 at least.

42. To mark out the area of discourse in order to arrive at what must be a discretionary sum I have made a series of calculations at 3 percent discount rates. The present value of a weekly loss of $35.00 for 45 years is $45,432. For a loss of $50.00 for 40 years it is $61,187. For a loss of $100.00 for 40 years it is $122,375. For a loss of $75.00 for 45 years it is $97,355.

43. Taking also into account the normal contingencies, I think that an assessment that does justice between the parties is the sum of $80,000.

44. I have tested that result against the approach suggested by counsel for the plaintiff, an approach which did not appear unreasonable to me. If one allows some time out of the job market for further education and training, and adds a very moderate estimate for time looking for employment, to give 4 years, at $335.00 a week that gives an undiscounted total of $69,919. By adding a further minimal allowance, as a buffer for the time thereafter, being careful not to double count times out of work, one arrives at a sum of at least the same order as $80,000.

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

Pain and suffering $55,000.00
Interest 1,700.00
Loss of income 40,272.00
Interest 4,615.50
Fox v Wood 4,660.32
Out of pocket expenses 16,549.00
Griffiths v Kirkemeyer 11,500.00
Future loss of income 80,000.00
TOTAL $214,296.82

46. The rounded sum of $214,300 appears to me to be appropriate as a global figure for such an injury to a young man who had been suited to a hard physical career.

47. I direct the entry of judgment for the plaintiff in the sum of $214,300.