David Keith Phillips v Anne Elizabeth Paliaga [1993] ACTSC 20 (18 March 1993)

SUPREME COURT OF THE ACT

DAVID KEITH PHILLIPS v. ANNE ELIZABETH PALIAGA
No. SC1135 of 1988
Number of pages - 9
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Above knee left leg amputation - Subsequent HIV infection - Voluntary redundancy - Economic loss - No issue of principle.

HEARING

CANBERRA, 3 March 1992 and 7 December 1992
18:3:1993

Counsel for the Plaintiff: G. Lunney

Instructing Solicitors: Barker and Barker

Counsel for the Defendant: L. Morris QC and M. Cranitch

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $217,381.97.

2. I reserve liberty to apply in respect of Fox v Wood component or
interest on lost income.
3. I order the defendant to pay the plaintiff's costs.

DECISION

MASTER HOGAN This is the assessment of damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 21 June 1988.

2. The plaintiff was born in July 1944. In 1963 he joined the Commonwealth Public Service in Melbourne. He moved to Canberra in 1970. By June 1988 he had been promoted to ASO 7, or Clerk Class 9. He is intelligent and articulate and was reasonably satisfied with his job. Promotion to Class 11 was on the cards at some time in the future, though he did not entertain any particular desire for further advancement. He was married, but separated from his wife, and lived with his 13 year old daughter.

3. On 21 June 1988 he was riding a motor cycle through the intersection of Kuringa Drive and Kingsford Smith Drive in Spence. A car entered the intersection from his left. He could not avoid the collision. The front left hand side of the car struck his left leg.

4. He did not strike his head or lose consciousness. He lay on the road, and when he attempted to get up found that his left leg was shattered. The only other injury of note that he suffered was a loss of feeling across most of his right hand, which gradually healed, leaving only some numbness in the right ring finger.

5. He was in extreme pain. A bystander applied a tourniquet to the leg. The ambulance arrived after about three quarters of an hour. He was taken to Royal Canberra Hospital, where he came under the care of Dr Stubbs.

6. Dr Stubbs found a grossly comminuted compound fracture of the whole tibia and fibula. There were two large and ugly dirty wounds. Despite what he described as the horrific nature of the injuries there was good blood supply and nerve function in the muscles. He decided to try to save the leg. He cleaned the wounds and placed the leg in an external fixateur held in place by three pins through the femur and tibia.

7. The blood supply and nerve supply deteriorated. There were several more visits to the theatre. He was in constant pain. There were difficulties with the pain killing medications. It became clear that a very long period of surgery would be needed to save the leg, but without any real guarantee of success.

8. Reluctantly, and after obtaining a second opinion, the plaintiff accepted the need for an amputation, which was performed by Dr Stubbs on 4 July 1988.

9. While he was recovering from the operation he suffered intense pain. Although he had been prescribed a larger dose of Morphine at greater frequency than usual, he was in such pain that he became hysterical. Because of staffing difficulties at the hospital it was some hours before he received sufficient narcotics to reduce the agony to a bearable level.

10. Thereafter the operation site healed normally. He was discharged from Royal Canberra Hospital on 22 July 1988; and was referred to the Rehabilitation Department at Woden Valley Hospital, where he came under the care of Dr Farnbach.

11. Over the next few months he exercised the stump. Although it continued to heal he required treatment with antibiotics, and large amounts of haemoserous fluid were expressed from it. His exercise program was designed to prepare him for the fitting of a prosthesis and to manage his pain.

12. In September 1988 he was fitted with a temporary prosthesis, and began the long process of learning to use it.

13. The stump continued to shrink. In October another prosthesis was fitted. He ceased physiotherapy and returned to work in mid December 1988. By this time he was reasonably proficient in the use of the prosthesis, sometimes using Canadian crutches for extra security. However, he still suffered constant pain and occasional falls.

14. At work he returned to his former position. He suffered great discomfort, and the rehabilitation experts suggested modifications to his work station.

15. In mid February 1989 the Public Service made an offer of voluntary early retirement to about seven officers in his department, including the plaintiff. Because of his pain and discomfort his motivation for work in the department had decreased. He accepted the offer, and ceased work there on 23 March 1989.

16. He immediately began to look for other work, with no success for some time. On 15 June 1989 he applied for the position of Office Manager with the Aids Action Council of the ACT. That organisation carried out community work in which the plaintiff had already shown interest, and he had been a board member of the Aids Action Council for some years. He was successful in that application, and began work there on 7 August 1989. He continues in that position, in a job which he is capable of doing and which he is motivated to do well.

17. In September 1989 he had had a blood test, which was negative for HIV infection. In October he was ill with a condition that resembled glandular fever. In February 1990 another blood test was positive for HIV.

18. Putting aside the complications raised by that development, Dr Stubbs noted in May 1989 that the plaintiff had a satisfactory, functioning, above knee amputation, with a stump in good shape that did not require any revision. He did not foresee any need for further management by an orthopaedic surgeon.

19. Dr Farnbach continued to see him frequently, even after late 1988. In April 1991 there was a small open area on the suture line of the stump, which was not infected and healed with conservative treatment. The plaintiff also experienced cysts in the groin of the amputated leg, associated with the times when the prosthesis did not fit properly.

20. Dr Farnbach summarised his condition as follows:

"Mr Phillips' mobility has been significantly restricted because of his
above knee amputation. Although he is quite competent in the use of his
prosthesis, he does not use it all the time as he finds it uncomfortable
and more efficient to ambulate with crutches. He does have difficulty
walking over uneven ground, up and down hills or slopes and up and down
steps and stairs. He will not ever be able to ride a motor cycle again

and

will be limited in many activities such as sitting in the rear seat of a
motor car, a picture theatre, an aeroplane, a bus or at inappropriately
designed tables. These difficulties can be overcome by him not wearing

his

prosthesis, but he then requires crutches or a walking frame which then
poses a problem of where they can be stored whilst he is sitting."

21. This summary accords with the plaintiff's unchallenged evidence.

22. Dr Farnbach then also anticipated that the plaintiff would need 2 to 4 weeks off work each year because of problems that could be expected to arise from the condition of the stump and the fitting of prostheses. He also agreed that prostheses would need to be replaced at intervals of about 2 years, if the plaintiff continued in good health. He also confirmed that it would be reasonable to replace the Canadian crutches every 3 to 5 years, depending on wear.

23. The action was first heard on 3 March 1992. Shortly before reserved judgment was about to be delivered, the plaintiff was advised that a further operation was needed on the amputation stump. Leave was therefore given to the plaintiff to re-open his case, and further evidence was given on 7 December 1992, after the operation had been performed.

24. The suture site had ulcerated frequently, and he had experienced cysts and abscesses in the left groin, associated with the total contact prosthesis. He suffered recurrent pain in the distal end of the stump, with tenderness to pressure.

25. Dr Rowland ordered a CT scan, which was performed on 24 April 1992. It disclosed a spicule of new bone formation arising from the site of the amputation, a small bone fragment, and a possible site of fluid collection in the muscle flap wrapped around the stump. Dr Rowland referred him to Dr James, plastic and reconstructive surgeon, who saw him on 18 May 1992.

26. Dr James found, in addition to the bony irregularity, inadequate soft tissue cover over the bone. On 2 June 1992 he therefore operated on the stump, with a general anaesthetic. He removed the spike of bone and the bursa, and about another 10 centimetres of the femur. He replaced the soft tissue cover.

27. Recovery from the operation was uneventful. He spent 11 days in hospital. He was discharged on crutches, and in considerable pain. A month or so after discharge he began all over again the pain and discomfort of adjusting to a properly fitting prosthesis.

28. He was keen to get back to work, and started on a two hourly basis only two days after discharge from hospital. But his continuing severe pain was not adequately controlled by strong medication, and he had trouble sleeping.

29. During July the pain lessened to some degree, but it still caused sufficient concern for Dr James to order another CT scan. He resumed physiotherapy at Woden Valley Hospital in July and August, and the process of getting a prosthesis that fitted correctly began.

30. He went on leave for a trip overseas in September, with a prosthesis that still did not fit correctly. He described his mobility on the vacation as "Excellent on crutches, the prosthesis was an absolute disaster." A suture that remained in the operation site caused inflammation until it was extruded naturally in October.

31. On review on 21 October 1992 Dr James found the stump to be soft and mobile, with no abnormalities or triggering points for pain. He continued:

"The symptoms Mr Phillips is suffering are common post-amputation
symptoms. He has long intervals when the stump is painfree and these
periods will become longer as the stump settles. It may, however,
take a number if years before he is completely free of this symptom.
No further treatment is contemplated."

32. In December 1992, however, Dr Rowlands reported that he had had repeated courses of antibiotics for infection, and was on opiates for pain relief. He had developed an opiate dependency.

33. In evidence in December 1992 the plaintiff said that he was suffering pain a couple of days a week, particularly at night or early in the morning, but was "generally okay". He expected to be fitted with the latest prosthesis within the next fortnight. He was still taking Endone, the opiate, but not to the same frequency. The dosage was down to about two a week, and he expected to be able to phase out the use of them completely.

34. It is therefore tragically necessary to attempt some estimate of the plaintiff's life expectancy and chances of remaining in good health. Medical science is not yet able to give any firm prognosis that is particular to him.

35. Professor Robert Gust makes the following points:

(a) Infection with HIV carries an increasing risk that the subject
will develop AIDS with time. As more than 50% of individuals
infected 10 years ago have now developed AIDS and a further
30 - 35% have some other symptomatic expression of infection, it is
reasonable to conclude that
(i) the mean incubation period from infection until the
onset of AIDS is about 10 years, and
(ii) if no treatments are developed which dramatically
affect the course of the disease, most HIV infected
individuals will develop AIDS within 20 years of infection.
(b) Improved treatments gradually extended the life expectancy of
patients with AIDS from 15 months in 1983 to more than 20 months
by 1989. There is some evidence that this trend is being
reversed, perhaps because the widespread use of AZT and
prophylaxis against opportunistic infections defers the onset of
AIDS.
(c) Management of HIV infected individuals has changed considerably
over the past few years with the emphasis being on prophylaxis,
early diagnosis and treatment of opportunistic infections and
outpatient management. As a result patients with AIDS are able
to work longer and spend less of their time in hospital, than
was previously the case. This trend is likely to continue.
(d) I think it unlikely that a cure for AIDS will be discovered this
century. It needs to be remembered that although there are many
viral infections which we can prevent there are very few which
we can cure.
(e) Given current scientific knowledge and the peculiar problems
posed by lentiviruses such as HIV, the prospect of a cure is remote. The
major advances in treatments are likely to be in the area of chemotherapy
where a range of anti-viral agents are being developed and tested in men.
It is probable that useful new agents will be identified perhaps every

5-10

years and that when added to existing drugs (such as AZT and ddc) will
extend life expectancy. Although a "magic bullet" is theoretically
possible, it seems more likely that progress will be incremental rather
than in quantum leaps."

36. His general practitioner, Dr Rowland, has continued to see the plaintiff regularly, and reported as follows, in August 1991:

"In relation to his HIV infection, Mr Phillips has no significant
disability at present due to the slow onset of the disease known as
AIDS which may take many years to cause any appreciable symptoms.
It is difficult to form a prognosis in any particular case as even
after ten (10) years from the date of infection only 50% of people
have either died or have significant disability. The remaining 50
are symptom free. At present Mr Phillips is showing no sign of rapid
onset of damage to his immune system and with the advent of new
antiviral therapy one could be fairly confident that this onset could
be postponed at least for some years. Indeed, it is not beyond the
bounds of possibility that with the rapid medical advances in this
area the mortality will fall considerably and normal life expectancy
may be obtained. However it is also possible that viral activity may
suddenly increase and Mr Phillips could develop symptoms of AIDS
within a relatively short time.
Hence you can see it is impossible to give any sort of reasonable

prognosis
in a case such as Mr Phillips' who at the moment shows no obvious signs of
immune system damage. I am sorry to be so vague but unfortunately that is

the reality of the situation for so many of the HIV positive people."

37. Dr Rowland gave evidence and was cross-examined. He expected that, in order to care for the condition of the stump, it would be necessary for the plaintiff to consult him, on average, once a month. Tests that he had conducted since August 1991 indicated a very low level of viral activity, which, taken with the development of future clinical treatments, indicated to him that the plaintiff has a very high chance of surviving to a natural life span.

38. Dr Rowland's experience with and interest in the disease is perhaps greater than that of most general practitioners.

39. In cross-examination, although he conceded that the plaintiff is more at risk than most members of the community, and that the favourable test results allowed him to speak with real confidence only about the next two years or so, he adhered broadly to his optimistic view. He commented:

"With Mr Phillips, who has shown absolutely no sign of deterioration
over three years, from experience I would say it is highly likely that

this
continuation of lack of deterioration will continue perhaps for many years.
Now, I can't say definitely that Mr Phillips will not start to deteriorate

next week, I'd just say it's highly unlikely."

40. He also conceded that it was possible that the continuing problem with infection in the stump could be related to the HIV infection, but he did not think it was likely.

41. Dr Rowland's evidence was not contradicted, and I accept it.

42. I think that the only way I can deal with the problem posed by this evidence is by discounting any calculations or considerations relating to the future by a greater amount than would be conventional, and it seems to me that a figure of the order of 30 percent would be appropriate.

43. Taking that view of the future into account, for his pain and suffering and loss of amenity I award the plaintiff $90,000 of which $25,000 relates to the future.

44. The greater part of his pain, and the shock of coming to terms with the loss of his leg, was in the period shortly after the accident, so that I do not think it is appropriate to award interest at 4 percent for only half the period since the accident. In lieu of interest on the past component of general damages I award a lump sum of $8,000.

45. The out of pocket expenses are agreed at $38,005.41. Comcare has paid $12,516.60 for hospital and medical expenses, and $9,097.28 for prosthetic equipment. The evidence does not enable me to determine exactly how much of the balance has been paid, or when, but it is reasonable to assume that the plaintiff has been out of pocket for travelling and pharmaceutical and other expenses in a sum of the order of $3,000 over the period. I would allow a lump sum of $500.00 in lieu of interest on out of pocket expenses paid by the plaintiff.

46. Before the accident the plaintiff travelled by motor cycle, and for reasons of economy would probably have continued to do so for some time. The accident has prevented him from ever riding a motor cycle again. He purchased a Ford station wagon in October 1989 for $16,100. It has and will cost him more to run than a motor cycle.

47. The plaintiff on the other hand has the benefits of owning and driving the vehicle. There is no acceptable evidence comparing the costs of running the motor vehicle with those of riding a motor cycle, and it would not be just to attribute the whole of the cost of the vehicle or the additional running costs to the defendant. Yet some allowance should be made for the additional expense, which I would assess in a discretionary manner at $10,000.

48. For about six weeks after his discharge from hospital he was cared for by his mother and a friend, who for that time were providing services to him that it would have been reasonable to pay for, at about the rate claimed in the particulars, amounting to about $2,000 for that period. Between then and the end of 1988 his daughter and his friends were called upon to help him, for a decreasing number of hours a week, in respect of which I would award $2,500. Thereafter I am not satisfied that the services he received really come within the principles enunciated in Griffiths v Kerkemeyer, so that the total I would award under this head is $4,500.

49. Up to the date of his voluntary retirement the plaintiff lost $12,701.78 in income, as set out in the particulars, supported by the information from the Department in Exhibit "E".

50. I do not doubt his evidence that in the events that had happened his disability played some part in his deciding to accept the offer of redundancy. There was also the possibility of promotion to consider.

51. Nevertheless the financial benefits involved in the offer were substantial, and I find that on balance, I am not positively satisfied that it was his injuries that caused him to accept the offer to retire. Nor am I satisfied that any lessening in his income since that retirement has been the result of anything other than his own choice. In other words I am not satisfied that the negligence of the defendant caused such diminution in his income earning as followed from his decision to leave the Public Service.

52. He did however lose an additional $5,674.78 as a result of the operation in 1992. The total loss of income is therefore $18,376.56.

53. A claim was made in the particulars for reimbursement of tax paid on compensation payments. There was no evidence or agreement about the matter, so that I have not included any amount for a Fox v Wood component. There was also no material, so far as I can remember, upon which I could calculate interest on the lost income. If my notes or recollection are in error about this aspect, the case may be relisted for mention before me for appropriate adjustment under the slip rule.

54. The plaintiff will incur economic loss in the future for attendances upon his general practitioner, costs of prostheses, costs of Canadian crutches, and pharmaceutical expenses. There would also be additional travelling expenses, but I think they would be covered by the amount I have already awarded.

55. These items are not capable of exact calculation. Apart from the replacement costs of the prostheses, I think that an amount of $500.00 a year would be a reasonable estimate of these expenses. Again, I do not have assistance from any relevant actuarial tables, other than the male expectation of life table at p 556 of Luntz, 3rd Edition.

56. The normal life expectancy for the plaintiff would be about 27 years. The gross product, which must be too high both on account of its present receipt and the plaintiff's condition, is $13,500. The present value of a weekly loss of $10.00 a week for 27 years at 3 percent compound interest is $9,702. That result, reduced by 30 percent, is $6,792, which would be too low because the amount is paid at longer intervals than weekly. I think, in round figures, a sum of $8,000 is appropriate, doing the best I can with such assistance as I received from counsel on this aspect of the case.

57. The evidence about the cost of prostheses, with all due respect to the meticulous testimony of Mr Nash, was most confusing, to me at any rate. Again, it was, as I recall, left very much at large by counsel in their addresses.

58. The Department of Veterans Affairs, which provides and repairs prostheses for the amputee community, originally calculated the estimated future cost at $38,915. At the further hearing the updated estimate, taking account of increased prices in the meantime, was $43,760.08. That calculation was based on a life expectancy of 28 years, and made no allowance for the present receipt of a sum which is to be disbursed at irregular intervals over the period.

59. On the other hand, it was based on the provision of a base model prosthesis only, and I would agree with the submission that it would be reasonable for the plaintiff to use a model with the refinements that Dr Farnbach referred to in evidence.

60. If I understood Mr Nash's evidence correctly, the plaintiff, having received compensation, will be required to pay the full cost of prostheses and maintenance at any rate until the sum awarded for that cost has been exhausted. The more suitable model would cost $2,970 at present prices, and could be expected to last 2 to 3 years. Maintenance costs would be of the order of $300.00 a year.

61. Based on figures of that order the calculations shown in the particulars arrive at a figure of $50,984. But that figure also is based on a life expectancy of 28.6 years, and makes no allowance for the present receipt of an amount to be paid at intervals over the period.

62. It is obvious that the sum to be awarded is a matter of judgment rather than calculation, and I would award the sum of $40,000 for this item.

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

Pain and suffering $90,000.00
Interest 8,000.00
Out of pocket expenses 38,005.41
Interest 500.00
Additional travelling expenses 10,000.00
Griffiths v Kirkemeyer 4,500.00
Loss of income 18,376.56
Future medical and other expenses 8,000.00
Future prostheses 40,000.00
TOTAL $217,381.97

64. Subject, therefore, to what I have said about the possibility that I may have misunderstood the evidence or the submissions, I would propose to direct the entry of judgment for the plaintiff in the sum of $217.381.97. I reserve liberty to apply in respect of the Fox v Wood component or interest on loss of income.