Andrew Stanley Harrington v Australian Capital Territory [1993] ACTSC 68 (23 July 1993)

SUPREME COURT OF THE ACT

ANDREW STANLEY HARRINGTON v. AUSTRALIAN CAPITAL TERRITORY
No. S120 of 1992
Number of pages - 6
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

CATCHWORDS

Damages - Assessment - Personal injury - Cervical spine - Fracture - Chest and lower back injuries - Manual worker - No issue of principle.

HEARING

CANBERRA, 9 and 29 March 1993
23:7:1993

Counsel for the Plaintiff: G. A. Stretton

Instructing Solicitors: Snedden Hall and Gallop

Counsel for the Defendant: F. G. Parker

Instructing Solicitors: Australian Government Solicitor

ORDER

The Court orders that:
Judgment be entered for the plaintiff for $241,377.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident which occurred on 2 January 1990.

2. The plaintiff was driving a Ford Falcon utility through the intersection of Barry Drive with Belconnen Way, when it collided with a local government fire tender which was answering a fire call. The intersection was controlled by lights. Although the lights were red to the fire tender, it was activating its warning devices. The parties have agreed that there should be judgment for the plaintiff, and that the plaintiff's damages should be reduced by one third on account of the plaintiff's contributory negligence.

3. The collision was particularly violent. The plaintiff's vehicle was reduced to a heap of scrap metal. The plaintiff was severely injured. He lost consciousness. He has no recollection of the actual impact. He came to in the back of the ambulance, which took him to Royal Canberra Hospital.

4. He had lacerations to the scalp, right elbow, left hand and left foot. He had pain in the neck, chest, back and shoulder. X-ray of the cervical spine suggested a fracture at C2, which was confirmed on a CT scan. Fracture at this site is called a "hangman's fracture". X-ray of the chest, thoracic spine and sternum revealed marked widening of the mediastinum, with indications that the aorta might be ruptured. There was no evidence of bony injury to the thoracic spine, sternum or ribs.

5. His head was immobilised with sandbags. He was kept in intensive care, until he could be transferred by helicopter to Westmead Hospital, where an aortic angiogram was performed later that day. His description of that was:
"I remember them injecting dye into my head that they had to put so

they could put me through this machine and it was pretty
uncomfortable, yes. It was like someone actually inside my body
with a blow torch."

6. He was taken back to Royal Canberra Hospital and admitted. Skull traction was applied. The plaintiff's description of that was:

"A head brace with two sort of bolts in the side with points on
them that they screwed into my skull for traction."

He then began to complain of pain in the left thumb and shoulder. Dr Coyle, orthopaedic surgeon, then examined him. X-ray of the thumb revealed an oblique comminuted fracture of the first metacarpal bone. X-ray of the left clavicular sternal joint revealed posterior subluxation. There was a fracture of the left shoulder blade. A plaster cast was applied to the left hand. The left shoulder injury did not need operation. Once mobilisation commenced, a sling was applied. With his neck in traction and his other bruises and injuries, the constant nursing care that was necessary caused him great discomfort.

7. On 10 January 1990 he was sufficiently recovered for Dr Robson to insert a spacer in the cervical spine at the site of the fracture. This Dr Robson explained as a means of applying internal splintage while waiting for the fracture to unite. He made an uneventful recovery from the operation. He was fitted with a brace to keep his neck stable, and discharged from hospital on 15 January 1990. His left hand was in plaster and his left arm in a sling.

8. He went first to his brother's home, and then to his mother's, as he was not capable of caring for himself. He was reviewed in the fracture clinic on 17 and 19 January and on 14 February 1990. The sutures were removed from his neck on 19 January.

9. He stopped wearing the sling after about a week. He got respite from wearing the brace when he lay down. He suffered chest pain on breathing, and consulted Dr Shihoff, his general practitioner.

10. In mid April Dr Robson reviewed him. The neck fracture was united, and he was told to stop wearing the collar for a time.

11. By 6 June 1990 Dr Robson found that he was quite comfortable without the collar, and he began to undergo massage on his neck and shoulders at the hands of Mr Hengst, a friend who has no professional qualifications, but whose ministrations gave him some relief.

12. On 14 November 1990 Dr Robson operated under general anaesthetic to remove the spacer. He was discharged after one day, and the stitches were removed on 26 November 1990. He is left with a scar on the back of his neck about as long as the cervical spine, but it is usually concealed by his hair, which he now wears in a plait at the back. He had worn his hair long even before the accident.

13. Over 1991 he continued to consult Dr Shihoff for headaches, neck stiffness and pain in the chest and back, and to receive massage about once a week from Mr Hengst. In October he collapsed for some unexplained reason, and was taken to hospital by ambulance. He was given a soft collar and discharged. Dr Shihoff noted that his stress contributed to symptoms which were clinically like a stomach ulcer. Some years before the accident he had suffered from stomach ulcers, but they had not troubled him for some time.

14. In February 1992 Dr Shihoff ordered a CT scan of his lumbar spine and sacro iliac joints, because of continuing general discomfort over his back. There was a small central disc protrusion at L5/S1, but no abnormality of significance. To stabilise his insomnia Dr Shihoff prescribed Prothiaden. He had to experiment with different medications for the ulcer pains. He eventually referred the plaintiff to Dr Chandran, neurosurgeon, who saw him on 21 July 1992. His examination showed no neurological deficits, but tenderness over the right sacro iliac. His reading of the radiographic material was that it disclosed pre-existing degeneration in the lumbar spine. He advised conservative treatment by physiotherapy.

15. Dr Shihoff noted continuing ulcer symptoms, emotional lability and insomnia, and later in 1992 he referred him to Dr Clarke, gastroenterologist, for endoscopy and review of the abdominal discomfort.

16. Dr Clarke saw him on 10 February 1993. He thought it likely that the medication he had been taking had contributed to his gastric symptoms. Although Dr Clarke did not say so in his report, Dr Shihoff thought he did have gastric ulceration, which is likely to recur in the future, especially if he needed chronic pain relief. On Dr Clarke's advice he has recently prescribed a new and expensive medication, and expects more investigations by the gastroenterologist.

17. In December 1992 Dr Coyle re-examined him. He found moderately restricted cervical movement, with complaints of occasional discomfort. There was noise on movement of the sterno clavicular joint. The left shoulder appeared clinically normal, and there was complaint only of discomfort with heavy manual work.

18. The left thumb and left hand had healed, and were fully functional, with complaints only of aching in cold weather.

19. During 1992 the plaintiff was examined for the defendant by Drs Keiller, Cairns and Andrews and in 1993 by Associate Professor Jones. Their reports were not tendered. In the case of Dr Cairns that was not done solely because he was not available for cross-examination. The only doctor who gave evidence was Dr Shihoff. The cross-examination did not really attack the basic medical facts. I accept Dr Shihoff's opinion that his lower back pain resulted from the accident. I also accept that the plaintiff is unfit for heavy manual work, and that the prognosis must be guarded.

20. There is an increased risk of early osteoarthritis. I do not think that the plaintiff's failure to attend the Commonwealth Rehabilitation Service has made any significant difference to his capabilities.

21. Dr Shihoff's opinion that he was motivated to get back to work is backed up by his attempts to do so since the accident.

22. The plaintiff was born on 19 August 1962 and had left school after Year 10. He had a number of relatively unskilled jobs. In 1987 he worked as a labourer for Chieftain Constructions, doing formwork carpentry, concreting, steel fixing and other heavy physical work.

23. His relationship with his defacto wife broke up in 1987, and in 1988 he went into business on his own account carting wood. The business was not a success.

24. In October 1989 he had obtained work as a general hand at Collector Rural Supplies, where he was working at the time of the accident. It was not a permanent job, and the business closed some short time after the accident.

25. By November 1992 he felt he was well enough to start work again, at least on a part time basis. He approached Mr Reynders, who had been his boss when he worked for Chieftain Constructions. Mr Reynders gave evidence. He remembered him as a good, hard worker, and gave him some casual work at first, putting him on full time work in February 1993.

26. He found that the plaintiff was not able to do the jobs he had done before. He tried to arrange lighter duties, or for another worker to help the plaintiff. Under pressure from his partner, however, he felt it necessary to terminate the plaintiff's employment in March 1993.

27. The plaintiff's own evidence was that as the work got heavier and more constant he found he did not have the staying power. He started to get pain in the neck, and occasional pain shooting down into the back. His shoulder and sternum ached, and the headaches got worse. He proposes to seek work as a van driver or some other lighter work, for example, with Australia Post.

28. He is still undergoing physiotherapy at Queanbeyan Hospital.

29. Counsel for the defendant did not contest a substantial award for general damages. The original injuries were severe, even life threatening. The injuries to the plaintiff's upper body, and the early course of treatment, were also very painful, and the medication caused his stomach ulcers to flare up again. pre-existing degeneration of the lumbar spine has been made symptomatic. He has and will always have restricted neck movement and pain which is controlled only by strong medication. There is an increased risk of osteoarthritis. His ability to earn a living depended on his physical strength, which is now greatly reduced. He is only 30 years old.

30. I assess compensation for his pain and suffering and loss of amenity at $95,000, of which I attribute $35,000 to the future. Interest on the past component on the conventional basis amounts to $4,267.

31. The out of pocket expenses are agreed at $24,016. Interest on them is not claimed.

32. His dog was also injured in the accident, the cost of treatment being uncontested at $250.00. The damage to the motor vehicle was agreed at $2,500.

33. An allowance for the value of services provided by his mother was also uncontested, assessed at 2 hours a day for 16 weeks at $14.00 an hour, which totals $448.00.

34. There was a dispute about the defendant's responsibility for the cost of the massage performed by Mr Hengst, who has no medical or any other formal qualifications. It is not suggested that it was illegal for Mr Hengst to provide the relief, or that the rate at which he charged was in itself excessive. I think that it was a procedure which in fact afforded the plaintiff relief. It is not shown that it would have cost less or been more effective had he received it from a physiotherapist or chiropractor. It was reasonable for him to seek that relief, and the amount paid for it seems reasonable, so that I propose to allow it in full, at $3,885.

35. In the years shortly before the accident he had not been constantly in full time employment. Nevertheless, I think the rate at which he was earning at the time of the accident is a better indicator of his income earning capacity than an average over the period would be. There were some unusual circumstances that led to his being out of work at some time, or in a relatively unremunerative occupation at another, during that time. Mr Reynders confirmed that he was a willing and competent worker.

36. On the other hand, the enterprise that was employing him at the time of the accident ceased operations shortly afterwards, and it is not certain that he would immediately have obtained work at the same rate of pay, with the substantial overtime involved. There are also the usual contingencies to be taken into account. The type of work that he did is more prone to involve accident that some other occupations.

37. The starting point for the past wage loss is a loss of $300.00 a week from the date of the accident to the present, which is $55,628. The alternative approach of basing the calculation on the award rates gives an amount very much of the same order. Discounting that sum by about 20 percent on account of the contingencies to which I have referred gives a past wage loss of $45,000, which I consider a reasonable estimate. He received social security benefits of almost exactly half that amount over the period. I therefore assess interest on the past wage loss at $6,400.

38. The future is more problematical. It is possible that he will obtain some sort of employment. With his lack of particular skills and his injuries that possibility must be substantially discounted. I think it would result in substantial under compensation to allow only a short period while he looks for a job and then allow only a small differential for the rest of his working life. I think it is more appropriate to start from the present value of the loss of $300.00 a week, and then discount it very substantially on account of the two possibilities, namely, that he might obtain some sort of work from time to time, on the one hand, and that, had he not been injured, he might well have been out of work for substantial periods in any event on the other. In addition to the contingencies referred to it is not certain by any means that he would have worked till 65. The present value of $300.00 a week for 30 years at 3 percent is $311,308.

39. An alternative approach suggested by counsel for the plaintiff was to take a rather high figure of $547.30 net as being what he could have earned as a labourer uninjured, and $309.49 net as what he may earn as a postal worker, to give an ongoing claim for $237.81 a week. The present value of that loss for 30 years at 3 percent is $246,774. I do not think the probability sufficiently high that he would continuously have earned that much, and although that result is also affected by the lack of certainty that he will obtain work as a postal worker, I think it also should be substantially discounted.

40. As a matter of judgment I would assess the loss of future income earning capacity at $180,000.

41. A full compensation would therefore be made up as follows:

Pain and suffering $95,000
Interest 4,267
Out of pocket expenses 24,016
Cost of treating dog 250
Motor vehicle 2,500
Voluntary services 448
Massage treatment 3,885
Past wage loss 45,000
Interest 6,400
Future loss of income 180,000
_______
$362,066

42. That sum, reduced by one third on account of contributory negligence, gives $241,377. As a global sum, that result appears to me to be reasonable in all the circumstances.

43. I direct the entry of judgment for the plaintiff for $241,377.