Karl Kristchen Heckenberg v Fong Kam Yam [1993] ACTSC 76 (6 August 1993)

SUPREME COURT OF THE ACT

KARL KRISTCHEN HECKENBERG v. FONG KAM YAM
No. SC633 of 1991
Number of pages - 5
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Fractured clavicle - Enrolled nurse - Economic loss - No issue of principle.

HEARING

CANBERRA, 18-19 May 1993
6:8:1993

Counsel for the Plaintiff: G. A. Stretton

Instructing Solicitors: Ken Johnston Bedford and Co

Counsel for the Defendant: C. Branson QC/M. Scott

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

I direct the entry of judgment for the plaintiff for $200,207.

DECISION

MASTER A. HOGAN This is the assessment of damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 23 July 1990.

2. The plaintiff was born in South Australia in 1957. He worked at first as a storeman and then as a truck driver. He married in 1977, and he and his wife have four children, born between 1980 and 1988.

3. During 1985 he began work in the nursing profession, as an assistant in nursing at the Mercy Care Centre in Young. He undertook a course of study and training, and qualified as an enrolled nurse.

4. In 1988 he moved with his family to Canberra, and obtained work as a nurse at George Forbes Nursing Home.

5. Early in 1989, while playing cricket with his brother-in-law and some friends he experienced some shoulder pain after spells of fast bowling. He consulted a doctor, and received some physiotherapy treatment, but did not take any time off work because of the discomfort. There is some dispute about whether his right or left shoulder was involved, but I do not think the episode was significant for this case.

6. Between June and December 1989 he took leave to serve in the Army as a member of a paratroop regiment. He suffered no shoulder discomfort. He was strong and in good health.

7. He returned to work at George Forbes House, and in May 1990 began work at Morling Lodge, also a nursing home. As a nurse he has concentrated on geriatric nursing. That involves some heavy physical work, lifting and caring for disabled people.

8. His wife was not working. He had four young children. In July 1990 he took on additional work during night shifts at Brindabella Gardens, another nursing home.

9. On 23 July 1990 at about 11.25 pm he was riding his motor cycle to work at Brindabella Gardens. At an intersection the defendant drove a car across his path instead of giving way to him. He and the bike were projected over the low bonnet of the defendant's car. He landed heavily on his left side, still on the motor cycle. He was wearing a full face helmet, and did not suffer any head injury.

10. When he tried to lift the cycle off he felt pain in the left shoulder. As he dragged himself from under the cycle he felt pain in his left leg.

11. He was taken by ambulance to Woden Valley Hospital. He was complaining of pain in the neck and shoulder. On examination a fractured left clavicle was diagnosed. A soft cervical collar was applied. The left arm was put in a sling and analgesics provided, and he was allowed home in the early hours of the morning.

12. He spent a very uncomfortable night, and next day consulted his general practitioner. He noted multiple bruising to the scalp, shoulders, hips and legs. The neck was painful and stiff. X-ray confirmed the fracture of the clavicle. The shoulders were both swollen and there was deformity due to the fracture. Dr Allan diagnosed a fractured clavicle and subluxed right acromio clavicular joint. He prescribed immobilisation and anti inflammatory medication.

13. He wore the soft collar for about two weeks, and his arm was in a sling for perhaps a week longer.

14. On 6 August Dr Allan referred him for physiotherapy. The plaintiff was complaining of pins and needles in the left arm, and the doctor suspected brachial plexus involvement and tethering of the neck muscles to the fracture site. He referred the plaintiff to Dr Woods, orthopaedic consultant.

15. On 1 September he resumed work at the George Forbes House and Morling Lodge, and on 4 September he resumed at Brindabella Gardens. Arrangements were made for his duties to be light. He was not able to help with lifting patients.

16. Dr Woods saw him on 27 September 1990. His complaints were of pain over the left collar bone and shoulder, which was worsened by turning to the right. There was weakness in the left shoulder and the previous complaint of pins and needles in the left hand. Dr Woods thought the fracture was proceeding to union, and the injury to the left brachial plexus was also showing signs of resolving. He advised that the conservative treatment should continue.

17. On 2 October 1990 Dr Allan noted that headaches, which he attributed to the tethering of the neck muscles, were continuing. He gave him a steroid injection into the shoulder.

18. Morling Lodge put him off work because he could not carry out normal duties. He was keen to return to work and in late October Dr Allan certified that he was fit to resume, which he did. Early in November he ceased work at George Forbes House.

19. On 13 November 1990 he reported continuing pain in the left shoulder, especially after lifting patients. Steroid injections gave temporary relief, although the procedure was itself painful.

20. In April 1991 Dr Allan referred him again to Dr Woods. He found minor wasting of the left arm and shoulder muscles and restriction of movement. He thought there was no problem with the articular surfaces in the joint, but attributed the continuing pain to the scarring or tethering around the left brachial plexus. He advised physiotherapy.

21. Dr Allan referred him for specialised physiotherapy. The shoulder pain continued, and he gave several more steroid injections, but he advised the plaintiff that this form of treatment could not continue indefinitely.

22. Dr Allan's summary in his report of 10 July 1991 was:

"Karl's residual problems are deformity of the left clavicle with
tethering of the neck muscles and brachial plexus irritation, and
weakness and pain in the left shoulder. These problems interfere
with his capacity to work as a nurse, and ride his motor bike to
work. He has also told me that he is limited in his capacity to
play with his children.
Karl is a workaholic, and very stoic with his pain. I have no
doubt that he is underplaying the severity of his shoulder
disability. Unfortunately, I do not think that his shoulder will
ever function normally again. I consider that his condition is
now stable."

23. He continued to experience pain and difficulty at work, especially with lifting patients. He discontinued his job at Brindabella Gardens, having obtained a position as a security officer and storeman at Jindalee Nursing Home. Although the job involves some lifting he was able to do it without the level of discomfort that was caused by his nursing duties.

24. On 5 December 1991 he was examined by Dr Andrea for the defendant. Dr Andrea noted the deformity of the mid shaft of the clavicle. There were complaints of pain in that area on lifting the arm upwards or pushing heavily. The left shoulder was weak, tired easily and ached. There was some tightness of neck muscles. The pins and needles in the hand and the headaches had stopped when he stopped nursing.

25. Dr Allan arranged a cervical spine X-ray in January 1992, and a CT arthrogram of the left shoulder in May 1992. They did not disclose anything significant. The arthrogram procedure involved significant discomfort.

26. Dr Andrews, neurologist, examined him for the defendant on 27 March 1992. He agreed with Dr Woods that in addition to the healed clavicular fracture he had sustained relatively minor injury to the left brachial plexus, which gave rise to symptoms of weakness and pain in the left shoulder. He expected those symptoms to persist, and did not suggest any therapy.

27. Dr Allan referred him to Dr Bokor, an orthopaedic surgeon in Sydney, who saw him on 28 July 1992. He suggested modification of the physiotherapy to stretch and strengthen the muscles around the shoulder.

28. Associate Professor Jones, rehabilitation specialist, examined him for the defendant on 11 November 1992.

29. He was taking 2 to 4 Digesic each day for the pain in the shoulder and headaches. Dr Jones confirmed the findings of both skeletal and soft tissue injuries to the left shoulder. He could not attribute the headaches to the accident. He thought that the plaintiff could still work as an enrolled nurse, but thought he had the personality and potential skills to become a hostel supervisor.

30. The plaintiff had applied for entry into a TAFE course which would have qualified him for such a position, but he did not obtain entry, and the course is no longer offered.

31. Evidence was given by an organiser of the Nursing Federation, herself a nurse, that the plaintiff's present qualifications fit him only for geriatric nursing, and that with his disability he would not be suitable for that type of nursing. There are no post graduate courses in Canberra through which he could upgrade his qualifications.

32. Dr Andrea re-examined him for the defendant on 25 February 1992. He was still taking Digesic tablets and receiving physiotherapy twice a week. Dr Andrea agreed with Associate Professor Jones, but thought the plaintiff could work as an enrolled nurse. Although none of the doctors gave evidence or were cross examined, I think that the plaintiff is not the sort of person who would exaggerate his symptoms. His general practitioner's assessment is more likely to be accurate. I accept that although he would be physically capable of doing the job, it would cause him so much extra pain and discomfort that it is reasonable for him not to return to it, especially for the extended hours that he was working before the accident.

33. Dr Andrews re-examined him on 9 March 1993. Swimming and exercise had improved the muscles around the left shoulder. He agreed that the career change was reasonable. He recommended cessation of cortisone injections, and suggested local applied anti inflammatory medication, and avoidance of strain.

34. There should be taken into account the continuing cost of medication, but instead of allocating a separate sum I have taken that into account in assessing general damages.

35. For his pain and suffering and interference with amenity I would award $30,000, of which about $5,000 would relate to the future. Interest on the past component on the conventional basis amounts to $1,500.

36. The out of pocket expenses are agreed at $7,899.28, which were paid by the workers compensation insurer.

37. I accept that had the accident not happened he would, on the balance of probabilities, have continued to work about the same number of hours that he was working at the three nursing homes, at least until now. I think that he would have been able to rearrange his shifts when the George Forbes Home closed. On that basis the parties agreed that the loss of wages to 17 May 1993 was $51,740, and was continuing at $352.00 net per week. That gives a total to the date of judgment of $55,913. He was receiving workings compensation. The net difference between what he would have earned and what in fact he received is of the order of $14,000. Using a rate of 8 percent I would award $3,400 for interest on the past wage loss.

38. The Fox v Wood component was agreed at $11,495 to 17 May 1993. It would have increased since then, but the size of the increase is not significant in the light of the other discretionary elements of this judgment.

39. The major difficulty in deciding this case relates to the valuation of his future loss of income earning capacity. He would certainly not have continued to work as intensively for many more years, but it is not possible to fix a time when he would have reduced his hours markedly. It is impossible to tell what effect the separation from his wife has had or would have had upon his motivation to work such long hours. As the children got older she may well have obtained employment, and reduced the pressing need for money to bring them up. Arguments about money seem to have been an important factor in the breakdown of the marriage. His evidence was that he intended to work more than one job until his eldest son had left high school. Richard was born in December 1980, so that a starting point could be the end of 1997. The present value of a loss of $352.00 a week for 4 years at 3 percent is $69,270. Thereafter, it is not really demonstrated what loss he would be suffering, if any. But he is prevented from exercising the only professional qualification that he has, or is likely to be able to acquire, and that must be reflected in a loss of income earning capacity. Making allowance for normal contingencies, as a matter of judgment I would award $90,000 for future economic loss.

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

Pain and suffering $ 30,000
Interest 1,500
Out of pocket expenses 7,899
Past economic loss 55,913
Interest 3,400
Fox v Wood 11,495
Future economic loss 90,000
TOTAL $200,207

41. I direct the entry of judgment for the plaintiff for $200,207.