Peter James Waters v Dereck Adam Davis [1992] ACTSC 86 (28 August 1992)

SUPREME COURT OF THE ACT

PETER JAMES WATERS v. DERECK ADAM DAVIS
S.C. No. 190 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 - Whiplash - Knee and thumb injuries - Two operations - Deafness - No issue of principle.

HEARING

CANBERRA
28:8:1992

Counsel for the Plaintiff: R. Brewster

Instructing Solicitors: Baker Deane and Nutt

Counsel for the Defendant: F. G. Parker

Instructing Solicitors: Abbott Tout Russell

Kennedy

ORDER

The Court orders that:

1. Judgment be entered for the plaintiff for $64,314.11.

DECISION

This is the assessment of damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 17 February 1990.

2. The plaintiff was born in Britain on 29 November 1951. He came to Australia in 1962, and after completing his schooling obtained employment as a technician with the PMG, which later became Telecom.

3. In 1981 he had an accident at work which damaged the cartilage of his left knee. He underwent an operation at which a left medial meniscectomy was carried out. He had recovered from that incident by the end of 1981. Before the accident which is the subject of this action, he was active, especially in skiing, both cross country and alpine. He enjoyed skiing and travelled overseas on occasions for this purpose. He was also involved in basketball, windsurfing, squash and bicycle riding.

4. On 17 February 1990 he was driving a Telecom van and came to a halt at an intersection, intending to make a right hand turn. It was raining. A vehicle travelling in the opposite direction went out of control and collided with the front of his van. It was obviously a violent impact. His head hit the windscreen. He may have lost consciousness for a short time. He noticed a loud ringing in his head and pain at the back of the neck. He was rescued from the vehicle and then noticed that his hands and his knees were sore. He had sustained numerous small lacerations from the splintered glass.

5. A friend took him home, but he collapsed when he got there, and he was then taken to Queanbeyan Hospital. He was kept under observation there for some time and then sent home.

6. The next day he saw his general practitioner, Dr Bills. He was complaining of ringing in the ears, aching muscles of the neck, back and trunk, a dull headache especially in the occipital area, his right and left knees were sore, two joints of his left thumb and his right thumb were sore and tender. Examination yielded no neurological signs. His neck movement was full but with pain especially on flexion and extension. Dr Bills arranged X-rays of the skull, neck, right knee and left thumb, which were normal.

7. When Dr Bills saw him on 22 February 1990 the bruising had become more pronounced. His neck was more stiff and painful despite three days of Naprosyn and analgesia. He had pain in the left ribs, hips and iliac crests and the right shoulder, consistent with a seatbelt injury. His thumbs remained sore but were settling. He had pain in the right knee and was tender over the left knee. Dr Bills prescribed physiotherapy and stronger analgesics.

8. His headaches became more severe with consistent nausea. He saw Dr Bills again on 23 February complaining also of some blurring vision and tingling of the hands. Dr Bills became concerned about a possible intra cranial bleeding and arranged for an urgent CT scan. There was no evidence of pathology within the cranium. He prescribed medicines to deal with the symptoms.

9. There was no improvement at the review on 1 March 1990 and a more potent anti spasmodic was prescribed.

10. The plaintiff then began to improve. Dr Bills noted on 12 March that there had been significant improvement, although the headaches, clicks in the left knee and the sore thumb persisted. Dr Bills expected the soft tissue injuries to his neck muscles and ligaments to take some time to settle.

11. The plaintiff returned to work on 28 March 1990. The nausea had stopped. He still had headaches, but they had decreased and he still had ringing in his ear. By this time the general bruising was subsiding. At work he had problems in climbing ladders or lifting, and over the next two months had occasional days off work.

12. His solicitors sought an opinion from Dr Gavaghan, consultant physician, who saw him on 10 May 1990. The history that he gave was consistent with his evidence and what he had told Dr Bills.

13. The seat belt bruising had resolved over a period of about 3 weeks. The neck pains had improved, but were still present. He still had daily headaches, though they were improving. His knee pain was still significant, as was the pain and locking that he was experiencing in the left thumb. Dr Gavaghan found clinical signs of significant damage in the left knee. He expected the musculo ligamentous injury to the cervical spine to recover completely with time. He advised specialist investigation of the injury to the ear, even though the tinnitus had largely subsided.

14. The knee was troubling him so much at work that he took time off from 17 to 21 May 1990.

15. He first saw Dr Gillespie on 29 May 1990. X-rays confirmed damage to the left patella. On 1 August 1990 Dr Gillespie carried out an arthroscopy of the left knee, and released the triggering mechanism in the left thumb. By that time the plaintiff was also suffering pain and weakness in the right knee. He had ceased work on 25 July 1990.

16. The operation improved the condition of the left thumb. It still locked from time to time, but was no longer painful.

17. On 10 August 1990 Dr Gillespie formally examined the right knee, and was led to suspect damage to the meniscus. He performed an arthroscopy on the right knee on 26 September 1990. He found, and repaired, a complex tear of the right medial meniscus.

18. The plaintiff's recovery after that procedure was rapid and uneventful. The plaintiff returned to work on 22 October 1990.

19. The plaintiff still enjoys his work, but finds some restriction of movement, especially when squatting or carrying heavier weights. Dr Gillespie's opinion is that there is a very slight risk that further surgery may be needed at some time in the medium to long term future on the right knee, as the risk of developing osteoarthritic change has been increased. I propose to take that into account when deciding on general damages, rather than attempt to assign a separate figure to it.

20. The plaintiff came to realise that his hearing had been affected, and he consulted Dr Rohan, who conducted audiograms on 11 December 1991 and 4 February 1992. Dr Rohan diagnosed a minimal loss of hearing of a cochlea nature which could have been caused by the accident, and a marked conductive loss which was probably caused by the accident.

21. Dr Bridger, also an ear, nose and throat specialist, examined the plaintiff for the defendant's insurer on 21 May 1991. In Dr Bridger's opinion the accident had caused cochlear damage resulting in a loss of hearing in the right ear of 2.1 percent. The impression that Dr Bridger received was that subjectively the hearing loss did not inconvenience him, but his wife had noted some impediment to speech understanding when on his right side.

22. In summary the plaintiff suffered a number of injuries in a violent accident.

23. The whiplash injury to the neck has resolved completely.

24. He was required to undergo two operations under general anaesthetic.

25. An operation was required to repair the left thumb. It is no longer painful, but is weakened and locks from time to time.

26. His right knee is generally pain free, though there is occasional discomfort. His left knee continues to trouble him, but there is still significant restriction of movement.

27. He is no longer able to enjoy skiing at all, and other activities, such as long journeys in a car or gardening, cause discomfort. He has given up practically all sporting activities, and he has put on weight.

28. He has a noticeable loss of hearing in his right ear.

29. The plaintiff's evidence was not really controverted in cross-examination. None of the doctors were required to give evidence. There is no real issue between the parties about the facts of the case.

30. For his pain and suffering I would award $38,000, of which $30,000 relates to the past. Interest on that past component on the conventional basis amounts to $1,500.

31. The out of pocket expenses are agreed at $7,716.56, and the wage loss, including the Fox v Wood component, at $17,097.55. He was covered by workers compensation, so that no interest is claimed on these amounts.

32. The total award is therefore made us as follows:

Pain and suffering $38,000.00
Interest 1,500.00
Out of pocket expenses 7,716.56
Loss of income 17,097.55
TOTAL $64,314.11

33. I direct the entry of judgment for the plaintiff in the sum of $64,314.11.