Steven Robert Jones v the Nominal Defendant [1994] ACTSC 33 (11 April 1994)

SUPREME COURT OF THE ACT

STEVEN ROBERT JONES v. THE NOMINAL DEFENDANT
No. SC439 of 1988
Number of pages - 7
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Fractured Wrist - No issue of principle

HEARING

CANBERRA, 23 March 1994
11:4:1994

Counsel for the Plaintiff: G Stretton

Instructing Solicitors: Ken Johnston Bedford and Co

Counsel for the Defendant: B Hull

Instructing Solicitors: Crossin Barker Gosling

ORDER

The Court Orders that:
Judgment be entered for the plaintiff in the sum of $196,742.

DECISION

MASTER A HOGAN This is the assessment of damages for personal injury sustained by the plaintiff in a motor vehicle accident on 18 January 1987.

2. The plaintiff was born in England in 1958. He came to Australia with his family in 1960 and left school at the age of 14, when he was only part of the way through year two of secondary school.

3. His family was fairly itinerant and he stayed with them for some years after leaving school, joining his father in various kinds of unskilled casual labouring work. He spent 18 months in the Army and then returned to labouring work.

4. He came to Canberra in 1982, where he met Lyndy Stewart. He formed a relationship with her in 1983. They had two sons, born in 1986 and 1992. Again, he was working in a number of different jobs, until in January 1987 he obtained a job as a landscaping labourer with Mr Eddie Dunn. He had been in that job for only a week when the accident occurred. He said that he enjoyed the work and intended to stay on in that job.

5. On 18 January 1987 he was a pillion passenger on a motorcycle which overturned as it came on the ramp leading from the Tuggeranong Parkway to the Cotter Road. He and the driver collided in the air as they came off the cycle and the plaintiff hit the road and skidded some distance along the bitumen. He did not lose consciousness. He was bleeding, and noticed that his wrist was broken.

6. After a short time by the side of the road he was taken by ambulance to Canberra Hospital.

7. The hospital records show that on examination there were multiple abrasions to the back, upper torso and arms. These were cleaned and treated with gauze and betadine. X-ray of the right hand showed a comminuted fracture of the distal radius. This was reduced under ischaemic block anaesthetic and a back slab was applied. The process was very painful. He was given Pethidine. He was then allowed to go home.

8. The following day the abrasions were redressed. That also was painful. The wrist appeared to be in good position.

9. He returned home, where he was cared for by Lyndy Stewart. A district nurse came daily to redress the abrasions for about two weeks.

10. On 19 February 1987 x-rays showed the wrist fragments to be in good position. A fresh plaster cast was applied.

11. The abrasions healed over about six or seven weeks, during which time he always slept on his stomach.

12. On 9 March 1987 the fracture was clinically united. He was instructed to begin mobilising the wrist and a crepe bandage was applied.

13. On 25 March 1987 the hospital noted that the wrist was stiff, with dorsiflexion limited to 25 degrees and palmar flexion to 15 degrees. He was referred for physiotherapy.

14. At first the physiotherapy did not improve the stiffness and the pain persisted. He was given a plastic brace to support the hand and wrist. He was eventually referred to Dr Kitchin, orthopaedic surgeon, who saw him first on 28 July 1987.

15. He complained to Dr Kitchin of wrist pain. He was not able to work. Flexion and dorsiflexion were restricted by about 25 per cent.

16. X-rays showed a healed fracture of the distal radius, with some involvement of the joint, and a separate ununited tip of the ulnar styloid process. Dr Kitchin recommended further physiotherapy. He found the joint still painful on 25 August 1987, and gave the plaintiff a further work certificate to 18 September. The injury was not yet stabilised at that stage.

17. Before the accident he had not noticed any abnormality in his jaw. As he recovered he began to notice a loud clicking on chewing or yawning.

18. On 23 September 1987 he consulted Dr Greenman, a general practitioner, and mentioned the clicking jaw to her. She gave him a further certificate and referred him to Mr Swanson, dentist.

19. Dr Kitchin reviewed him on 24 November 1987. He found continuing pain.

20. On 2 December 1987 Mr Swanson examined him. He saw him on two further occasions that month. He prescribed and constructed a flat plane splint, a plastic device designed to treat the swelling in the temporo mandibular joint. He also advised further treatment in the nature of physiotherapy, but the plaintiff did not return to see him. He said he could not afford the continuing treatment.

21. In January 1988 Dr Kitchin found continuing pain in the wrist. He decided to advise an operation. On 7 March 1988 at Calvary Hospital, under general anaesthetic, he excised the ununited ulnar styloid process.

22. The plaintiff spent three days in hospital and was discharged with a plaster slab and bandage.

23. The plaintiff felt that the pain was worse after the operation.

24. On 19 April 1988 he was examined by Dr Vance, orthopaedic surgeon, for the defendant. He told Dr Vance that at the time of the accident he had been wearing a full face helmet, and had hit the road with his chin. The dental splint had not given him any benefit. He thought his wrist was worse than before the accident.

25. Examination revealed significant clicking at both temporo mandibular joints, though without any apparent pain. There were multiple scars over his back, shoulders and chest.

26. There was the recent operation scar over the distal portion of the ulna measuring five centimetres in length. There was some swelling and thickening of the underlying tissues and the area was tender. Flexion of the wrist was barely 20 degrees in each direction. Finger movements were normal.

27. In Dr Vance's opinion the plaintiff had sustained a relatively straightforward fracture of the right wrist, of a type which would not usually cause continuing disability. However, while the long term effects of the operation remained to be seen, because of the long continued pain the outlook for satisfactory recovery was not good.

28. Again he underwent physiotherapy and began to use a skateboard protector to ease the pain in the wrist.

29. In October 1988 Dr Kitchin found he had residual pain and some numbness in the region of the ulnar border of the hand. He thought him still unfit for work as a landscape gardener and gave him a certificate to 20 November 1988. He did not expect the wrist to stabilise for about another year.

30. At about that time he applied for work as a driver with Murray's coaches, but was not able to get the job because he could not provide a satisfactory medical certificate.

31. He registered with the Commonwealth Employment Service, but was unable to find work.

32. Dr Greenman referred him to Dr Corry, rehabilitation specialist. He thought his job prospects were limited.

33. Associate Professor Jones, also a rehabilitation specialist, saw him for the defendant on 1 November 1989. He concluded that the plaintiff had suffered a moderately severe fracture to the right radius with involvement of the joint surface. He accepted that he had discomfort in the right wrist and that heavy labouring duties would cause discomfort. He thought he was capable of doing labouring work, with obvious limitations. He advised the assistance of vocational rehabilitation services, which he understood the plaintiff to be receiving.

34. Dr Corry's report suggests that he did not receive any vocational services from him, perhaps because of the cost.

35. Dr Vance found little change in his condition when he saw him again on 13 December 1989. He also thought that if he wished he could do most sorts of work.

36. In April 1990 he was admitted to hospital with a fracture of the right zygoma, which he sustained as he walked past some people who were fighting. I do not think that injury has any bearing on this case.

37. Dr Vance and Professor Jones were speaking of course about his physical capacity for work. I am satisfied that, in effect, the plaintiff agreed with them and that he actively sought work. He did not enjoy the boredom of being out of work. With his employment history, lack of formal education and restriction on the use of his wrist, however, it was difficult for him to find work.

38. In November 1990 he was employed as a handyman at Telopea Park Motel, work which he was physically able to perform, despite some pain, but the job terminated because of some disagreement with the management about remuneration.

39. In February 1991 he obtained casual employment as a relief sorter with the Document Exchange. His employment there ceased because he was only a relief casual and his services were no longer required.

40. He then obtained a casual part time job, using his own car, doing deliveries for a firm called Optic Express. That finished because he was not being paid properly.

41. He became despondent about his inability to obtain a job, the continuing pain, and the restrictions that it placed on his relationship with his son. Dr Greenman's locum, Dr Gibson, advised psychiatric assistance. His solicitors referred him to Dr Tennant, who saw him on 15 October 1991.

42. She had no doubt that he had been depressed as the result of his injuries for an extended period. He was not, however, clinically depressed at the time of the examination. He could become depressed if his attempts to find work were not successful.

43. Dr Corry saw him again in January 1992. He advised further investigation of his employment capabilities. He later decided that they were not worth pursuing.

44. Dr Kitchin saw him again in August 1992. He commented that he had residual wrist pain, which restricted him from full physical activity. The removable splint was useful. His condition was stable and Dr Kitchin did not expect any improvement.

45. Dr Vance reexamined him in December 1992. In his opinion there was minimal residual disability of the wrist. No further treatment was called for.

46. Professor Jones reviewed him in April 1993. His opinion remained unchanged.

47. Towards the end of 1993 his relationship with Lyndy Stewart deteriorated. He left the home and went first to Nowra and then to Perth. There he obtained employment in March 1994 as a bricklayer's labourer.

48. None of the doctors whose reports are in evidence were required to give oral evidence. That is probably because the plaintiff does not really disagree with what any of them say, although they vary in their emphasis. I accept that he genuinely still suffers pain in the wrist, but his taking on work as a bricklayer's labourer demonstrates that he also genuinely wants, and always has wanted, to work, and makes his claim that he was depressed when he could not obtain it more credible.

49. His wrist causes him pain and swells at the end of the day. He treats the swelling with heat and ice packs. But he is much happier being back at work.

50. Lyndy Stewart confirmed his depression when he was out of work, and the strain that it placed on their relationship. She had preceded him to Perth and has noticed the change in him for the better now that he is working. There is at least a possibility that after some time their relationship may improve again.

51. In summary therefore the plaintiff suffered multiple abrasions, damage to the temporo mandibular joints and a fractured wrist. The abrasions healed normally, leaving visible, but not disfiguring, scars, which are not very significant to him.

52. He has the clicking in his jaw, which, if he undertakes the treatment needed, will take seven years or more to heal.

53. He suffered a moderately severe fractured wrist, which was followed by an operation under general anaesthetic. He is left, some seven years later, with some restriction of movement and pain on heavy use. The condition is permanent. There is no suggestion that osteoarthritis will develop. He suffered depression for a time as a result of his inability to obtain work, which resulted from his injury.

54. He is not really fit for heavy manual work, but his employment choices are so limited that he is prepared to undertake it, if that is all he can get, despite the pain it causes him. He is only 35 years of age.

55. For pain and suffering and loss of amenity I award $50,000, of which $10,000 would relate to the future.

56. Interest on the past component is $5,700.

57. Mr Swanson was not paid for some time. He charged interest at 20 per cent on the money owing to him. I do not think that the defendant is responsible for the interest. On that basis the out-of-pocket expenses are conceded to be $3,342.

58. The plaintiff had earned $166 for four days work with Mr Dunn in the week before the accident. The letter from Mrs Dunn (Exhibit D) states that he was a willing and cooperative worker and that her husband "would have continued to employ him on a casual basis as often as he required him".

59. The plaintiff told Professor Jones, according to his report, that the particular job had finished and his boss was going to return and look for more work. Whether that is accurate or not, I think it is clear that his arrangement with Mr Dunn was not one where he would be sure of working a full day for five days a week every week.

60. His own estimate, given to Professor Jones, was that he would have been unemployed for about 40 per cent of his working career. He had been out of work, on his own evidence, for well over a year before he obtained the job with Mr Dunn. In cross-examination the plaintiff conceded that had the accident not occurred he might well have been on unemployment benefits for a substantial part of the time, and that the assessment that he gave to Professor Jones, of 40 per cent of the time out of work, was not unfair.

61. On the other hand, I do not think that, when in work, he would always have earned as little as the $166 that he did earn during the four days in the week before the accident. I take Mrs Dunn's letter to be referring to gross wages, and it is the net figure which must be used. But even for an unskilled casual labourer an earning capacity of $200 nett per week is not an excessive estimate. At that moderate rate he could have earned $75,000 between the accident and the present time. Taking account of the occasional money that he did earn, and of the 40 per cent estimate of the time he might well have been out of work, that would give a figure of $45,000.

62. Counsel for the plaintiff suggested that a more realistic approach would be to take account of what he is in fact earning now, even injured, which is of the order of $120 a day gross. Allowing more than he would have received from Mr Dunn, but much less than he is receiving now, he suggested a calculation based on an earning capacity of $300 per week nett. That would give a total of possible earnings of $113,000. Allowing for the money he has earned, and discounting for the periods he might well not have worked, gives a figure of about $67,000. Those figures mark out the area of discourse.

63. I think the figure to be awarded should be closer to that suggested by the plaintiff, which is based on a figure very much below that which he has shown now that he is capable of earning. Increasing family responsibilities might well have influenced him. It must be borne in mind that earnings over a period of more than seven years are in issue. As a matter of discretionary judgment I award $60,000 for past economic loss. Interest on that element of the award at eight per cent amounts to $34,700.

64. For the future, however, he is now earning more than ever before. It is problematical how long he will be able to keep that job. If and when it finishes he will again find difficulty in finding another, as his past experience shows.

65. On the other hand, he is motivated to look for work and to accept work which some others would not, with his painful wrist. But his choices are still limited by his disability and he does not have security in his job. Even uninjured, he would not have security, but he would find it much easier to find work when put off. There must be taken into account a period of up to 30 years future working life. The present value of $1 a week for 30 years at three per cent is $1,038. I think that an award of $40,000 for future loss of earning capacity is moderate and fair as between the parties.

66. The only firm evidence about the cost of future dental treatment is that it would be more than $3,000. How much more is a matter of speculation. Part of the need for more expenditure on dental treatment is due to deterioration in the teeth, not in the joint, and the defendant is not responsible for that. I award $3,000 for the cost of future dental treatment.

67. The total award is therefore made up as follows:-

Pain and Suffering $ 50,000
Interest $ 5,700
Out-of-Pocket Expenses $ 3,342
Past Loss of Income $ 60,000
Interest $ 34,700
Future Loss of Income $ 40,000
Future Dental Treatment $ 3,000
TOTAL $196,742

68. I direct the entry of judgment for the plaintiff for $196,742.