Sharon Maree English v Marko Zarak [1992] ACTSC 65 (1 July 1992)

SUPREME COURT OF THE ACT

SHARON MAREE ENGLISH v. MARKO ZARAK
No SC 1743 of 1988
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Multiple fractures to leg and ankle - Future arthrodesis - No issue of principle.

HEARING

CANBERRA
1:7:1992

Counsel for the Plaintiff: M. Wheelahan QC/B. Meagher

Instructing Solicitors: Meyer Boettcher and Clapham

Counsel for the Defendant: L. Morris QC/P. Garling

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

Judgment be entered for the plaintiff in the sum of $389,238.

The defendant pay the plaintiff's costs.

DECISION

This is the assessment of damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 2 September 1986.

2. The plaintiff is a married woman and the mother of eight children. She was born on 3 May 1950. She married on 1 March 1969. Despite the number and ages of her children she was able to work from time to time in a number of occupations. In 1974 her family, headed by her father, established a business of funeral directors in the ACT and Queanbeyan. She was actively involved in setting up that business although working at the TAB at the same time.

3. In November 1977 she and her husband moved to Sydney where her husband was doing sub-contract transport work for his brother-in-law. She attended to the clerical and accounting part of her husband's business.

4. In 1980 her father died and the family returned to Canberra, where at first she obtained a job with the TAB. The funeral business was expanding, and she also took an increasingly active role in it, until in March 1982 she became formally an employee, taking on the duties of office manager in 1983.

5. As an adjunct to the principal business she also opened another business, that of a florist shop, which was conducted by employees under her guidance and management.

6. In the winter of 1985 she took up an additional working activity. Her brother had a catering concession in the Queanbeyan Leagues Club, and on Sunday nights she attended to supervise the smorgasbord area, which catered especially for people travelling from the snowfields back to Sydney.

7. In the winter of 1986 she went back to work at the Leagues Club on the same part time basis. On 30 June 1986 the family business associated with the funeral home was sold. She had arranged with her brother to work full time at the Leagues Club, expecting to take over from his wife, who was expecting their first baby.

8. There was still a considerable amount of work to be done in connection with the funeral business, even after the sale, and she expected to commence her duties at the Leagues Club in early September 1986.

9. This rather detailed account of her work activities is necessary because the accident the subject of this action took place before she took up those duties. It is clear that she enjoyed working, and that she had the active co-operation of her husband in the strenuous task of doing so whilst they raised their family.

10. On 2 September 1986 at about 3.30 pm she was returning from a family picnic together with her mother-in-law and five children in a Mazda van. At the intersection of Luxton Street and Coulter Drive in Page a vehicle driven by the defendant collided with the front of the van that she was driving. It was a severe impact. She did not strike her head or lose consciousness. The front of the van was deformed, so that the steering wheel was against her chest and metal panels encased her legs, which had sustained obvious fractures.

11. It was necessary to use machinery to cut her out of the vehicle. The process took about two and a half hours. She was conscious during all that time, in a lot of pain, and aware that she was seriously injured.

12. An ambulance took her to Royal Canberra Hospital where she was admitted at about 6.30 pm under the care of Dr R. J. Kitchin, orthopaedic surgeon.

13. Her injuries consisted of:
1. A comminuted segmental mid shaft fracture of the

right femur.
2. A fracture dislocation of the right ankle.
3. An undisplaced fracture of the medial malleolus of
the left ankle.
4. Fractured ribs.

14. Primary treatment was for pain control. She was given intravenous fluids and traction was applied to the femur and a splint to her ankle.

15. On 4 September 1986 under general anaesthetic Dr Kitchin reduced the fracture of the right femur, inserting a kuntcher nail, and internally fixed the fracture of the right ankle. The left ankle was placed in a plaster.

16. Early in her stay in hospital she developed pneumonia. The plaster was removed after about three weeks, and the traction pin removed.

17. After about four weeks she began to attempt to walk, using a cast brace, but experienced a problem with the kuntcher nail. She underwent further surgery to fix the nailing. Ten days later she began to start to walk again, this time with the assistance of crutches. She went home on 24 October 1986. She continued to use crutches for about six months. The detail of her subsequent progress is set out in a report of Dr-Kitchin dated 12 June 1990 which is part of Exhibit "A" and I do not need to repeat it all in these reasons.

18. On 9 June 1987 it was noted that the second and third toes on her right foot were clawing and the kuntcher nail had become prominent. On 15 March 1988 at John James Hospital there was a further operation on the ankle and an arthrodesis was performed on the toes. On 3 May 1988 the wires were removed from the toe fixation. Union of the femur was not yet complete in June 1988 and she was suffering persistent pain in the femur at the end of the kuntcher nail. The nail was removed on 14 July 1988. She received of course extensive physiotherapy treatment.

19. In July 1987 a build up was added to the right shoe which enabled her to walk more comfortably.

20. In is clear from the report of the physiotherapist that in addition to the gross injury to the leg she also suffered significant soft tissue injury to the back and neck. The emotional trauma also had its physical results and she attended Dr Baraclough for irregularities in her periods and gastric problems, which he thought were related to the stress arising from her suffering.

21. In about September of 1988 she and her husband, through a company called Benrama Corporation Pty. Limited, set up a business connected with the recycling of waste paper. She started travelling around, contacting potential clients, but found that the pain and fatigue prevented her from continuing. She withdrew from the travelling side, and concentrated on the management and bookkeeping aspects of the business which she did mainly from home.

22. Her experience with trying to find suitable footwear led her also to attempt to start up another business, also through Benrama, of supplying instep specialty footwear. Her daughter helped in the shop. She developed a stomach ulcer, and that business was sold after about 6 months.

23. On 6 March 1989, Dr Corry, rehabilitation specialist, examined her at the request of her solicitors. He noted the shortening of the right leg. Her major complaint to him related to the right ankle where she had developed soreness and a feeling of weakness and instability. The fracture of the femur was giving her only occasional pain. She still had problems with the lower back and stiffness in the hip joints, for example on long car trips. There were no continuing symptoms relating to the chest or abdomen. She had put on weight and found that she tired very quickly even with normal home activity. Dr Corry recommended more aggressive physical exercise to strengthen the right lower leg and hip joint and to stabilise the pelvis, together with an active aerobic exercise problem to improve general fitness and help with weight control.

24. In the opinion that Dr Corry then had, if her strength and fitness improved, her tolerance for performing a full days work would also improve, and he thought that in the longer term she could manage a job as manageress of a specialised shoe store. He accepted that the difficulties that she had encountered in the paper recycling business were reasonable. He thought that she continued to have a continuing partial incapacity for work. She could cope with clerical or sales type duties for about six hours daily, but he thought that this could build up to full time quite rapidly.

25. On 4 December 1989 she again saw Dr Kitchin. He summarised her condition in a report to her solicitors as follows:

"Her residual disabilities are 3.5 cm of shortening, 15
degree loss of full flexion of the knee, operative scarring
of the right femur, a secondary post-traumatic
osteoarthritis of the right ankle and chronic low back pain.
The symptoms I ascertained from the patient are listed in
my report. These symptoms are the result of the accident.
The low back pain is not directly attributable to the
accident but it has developed during the course of her
management since the injury and one can associate it with
her accident.
The ankle symptoms will not abate and will deteriorate in
the future. The low back symptoms will remain as they are.
The residual disabilities have been outlined above.
She will require an arthrodesis of the right ankle in the
future. Replacement with a plastic arthro-plasty is not a
reality. I am not able to pinpoint a time in the future
when arthrodesis would be required. The indications for
arthrodesis are disabling pains.
Continuation with physiotherapy is mostly directed towards
her back and for the future she will probably require this
on an irregular basis, say once or twice a month.
The walking aids and the periods of use are in accord with
her disabilities and subsequent management and subsequent
surgery.
She was incapacitated for work for the periods you
outline. She is presently capable of working at her present
rate carrying out book-work for her husband's business,
which apparently is done at home.
Her claims for household assistance have been reasonable."

26. On the basis of the information supplied by Dr Kitchin, the total costs of an arthrodesis of the ankle would exceed $5,000 and would involve 10 days in hospital, plaster for 12 weeks and physiotherapy thereafter for one month.

27. On 14 December 1989 her solicitors referred her for an opinion to Dr Stalley, an orthopaedic surgeon in Sydney. She still had some pain in the left ankle and right femur but her principal complaint related to her right ankle. Its condition had been deteriorating over the six months before the examination. X-rays showed obvious significant osteoarthritis in the right ankle. In his opinion arthrodesis at some time in the future was a certainty. He thought she should wait until she could stand the pain no longer before undertaking the operation, but he also felt that it would be necessary within the next five years.

28. The right leg was some three centimetres short, which was helping to aggravate a previously degenerative lumbar spine. He advised a raise in her shoe. His final comment was:

"The disability of loss of movement in an ankle joint is
variable from one person to another. In a sportsman it is a
disaster. In a non sportsman doing a sedentary occupation
the disability is small indeed."

29. Dr Corry re-examined the plaintiff on 2 April 1991. The pain and disability of the right ankle appeared to him to have increased in severity since he had last seen her. His final conclusion was:

"Although Mrs English probably does have some limited
capacity to do a fairly sedentary job provided she were able
to change posture periodically, she cannot work at the
levels to which she previously aspired. The injuries would
appear to have significant psychological impact as well as a
physical impact, and from her history it would seem that she
had quite significant depression during 1989 which has now
been largely relieved since she has been taking it more
quietly at home. Given all these factors I think it is
reasonable that she has elected to cease work at this time."

30. There is no real contention about the physical effects of the accident. The plaintiff was examined by doctors for the defendant, but their reports were not tendered. The only doctor required for cross examination was Dr Kitchin, and that cross examination related only to the fact that while an arthrodesis restricts mobility it does relieve pain, and that at one time he had thought her fit for clerical duties.

31. In the light of that medical evidence, and especially Dr Corry's uncontested later opinion, I accept the plaintiff's evidence that she would now no longer be able to do the sort of work that she had done at the TAB, or at the Leagues Club or in the funeral business, even if the activities could be categorised as mainly clerical. I do not therefore accept the defendant's submission that she is fit for any clerical or administrative work, or even that she will become fit for any such work after the arthrodesis.

32. That does not mean that she has no residual income earning capacity at all. I think that with her abilities, and with the worry of the litigation behind her, she may well find some way of earning money. But it is not a capacity that can be quantified with any accuracy at all. It is most unlikely that she would find employment working even part time for someone else, and I accept her evidence that she would not want to take on employment that she could not honestly carry out to a high standard. Her capacity for sustained activity has been demonstrated by her attempts to work in the recycling and shoe businesses. It would be more likely that she might find some form of entrepreneurial activity, which did not involve constant attention, full time activity, or any great amount of stress. Even this, I think, is more a possibility than a probability. I can approach the question in no other way than by applying a heavier discount than is conventional to the figure for the loss of her full capacity.

33. The physical and emotional trauma of the injuries themselves, and the drastic changes that they caused to the amenity of her active and fulfilling life, were great. The pain in her ankle will increase till she can stand it no longer, and the surgeon will then consent to operate. That pain will then largely cease, and she will be left with her scarred and shortened limb, and immobile ankle. Other aches and disabilities will continue to some extent, especially the low back pain which results from her altered gait. She is only 42.

34. For her pain and suffering I would award $80,000, of which $25,000 relates to the future. On the conventional basis I award $6,400 interest on the past component of that item.

35. It is agreed that the defendant has already paid the sum of $24,248 in respect of out of pocket expenses. I do not therefore include that amount in this award. I do include the sum which, it is agreed, has not been paid, namely $6,493. There is no evidence on which I could base any award of interest on that item.

36. For the cost of the arthrodesis at some time in the future, but probably within 5 years, I award the sum of $5,000, as I think it is clear that the total undiscounted cost would, on present day figures, exceed that amount to some extent.

37. The ongoing cost of alteration to shoes is agreed at $150.00 a year, which will continue for the rest of her life. Her life expectancy is 39 years. The product of those figures is $5,850. But that sum must be discounted for its being received now. The usual tables are not accurate, as they are based on a weekly, not an annual loss. I was not referred to any appropriate table. Supposing a weekly loss of $3.00, the present value, discounted at 3 percent, would be $3,622. The correct figure would be somewhere between those two, and as a matter of judgment I award $4,500 for this item.

38. For about two years from the middle of 1987 domestic assistance was provided by the Red Cross, at the defendant's expense. That indicates to me that from the time the plaintiff left hospital until mid 1987 more was being required of her husband and family than a mere re-arrangement of domestic activities. They had to do things for and to the plaintiff for which it would have been reasonable to pay.

39. But I agree with the submission of the defendant that the evidence supports an award based on about 3 hours a day from October 1986 to February 1987, and 1 hour a day from then to mid 1987. That is about 500 hours. At an approximate rate of $10.00 an hour, which is close to the agreed figure, I would award $5,000 for this item. I would not award any sum based on Griffiths v Kerkemeyer after the Red Cross ceased attending.

40. I accept the plaintiff's evidence that had the accident not happened she would have begun her employment with her brother at the Queanbeyan Leagues Club.

41. In assessing past loss of income, therefore, the comparable earnings set out in the accountant's report, Exhibit "D", are of more importance than an analysis of her earnings before the accident. What her working history before the accident does demonstrate is that she was highly motivated, capable and dedicated to doing well whatever she undertook.

42. The estimate made by Mr Dormer of the amount that the plaintiff would have received between 2 September 1986 and 5 October 1988 is reasonably accurate at $29,868.

43. The calculations in respect of the period 5 October 1988 to 1 September 1990 were shown in cross examination to be based on some unsustainable assumptions, but on the other hand the plaintiff may well have received more generous treatment than an employee being paid award rates. A resulting figure of about $30,000 is to me a not unreasonable starting point for what she could have earned. She did in fact receive $10,300 in directors fees of Benrama Corporation. Part of that she really received in recompense for the work she did in the shoe shop. Part she would have received in any event, even had she not done any actual work as a director. But there is no issue raised by the parties based on that consideration and it is conceded that the $10,300 should be deducted. I therefore allow a net $19,700 for her loss during that period.

44. From 1 September 1990 to date, a conservative estimate which favours the defendant is arrived at by making the calculation on the basis of $390.00 a week. That gives a result of $37,272. There is no evidence that she has in fact received any income over that period. The total for past loss of income is therefore:

$29,868
19,700
37,277
$86,845

45. As a global discretionary sum that result also seems reasonable to me.

46. Lest it be not clearly implied in what I have already said, I expressly find that her physical and emotional state till now has been such that she has not been capable of earning more than she did.

47. Taking 9 percent as an indicative rate, I award a lump sum of $45,000 in lieu of interest on that item.

48. For the future, I agree that $400.00 a week is a reasonable starting point. The plaintiff intended to work only till she was 55. She is now 42. The present value of $400.00 a week for 13 years at 3 percent is $225,216. That should not be reduced by anything more than the conventional 15 percent on account of the ordinary vicissitudes.

49. But I think that from it there should be deducted a moderately substantial amount on account of the possibility that she will earn some income in the future. As a matter of judgment I award $150,000 for loss of full time income earning capacity.

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

Pain and suffering $80,000
Interest 6,400
Out of pocket expenses 6,493
Future operation 5,000
Cost of altering footware 4,500
Griffiths Kerkemeyer 5,000
Past loss of income 86,845
Interest 45,000
Future loss of income 150,000
TOTAL $389,238

51. There are a number of items in that list that are to some extent discretionary. On checking it I am not aware of any double counting. On some items I may have erred on the side of generosity, on others on the side of caution. But looking at the result as a global figure, it appears reasonable to me.

52. I direct the entry of judgment for the plaintiff in the sum of $389,238.

53. I order the defendant to pay the plaintiff's costs.