Julie Ann Hawkins v Graham James [1994] ACTSC 89 (9 September 1994)

SUPREME COURT OF THE ACT

JULIE ANN HAWKINS v. GRAHAM JAMES
No. SC347 of 1990
Number of pages - 8
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Concussion - Multiple fractures - Degree of disability - Value of services provided voluntarily - No issue of principle.

HEARING

CANBERRA, 30 August 1994
9:9:1994

Counsel for the Plaintiff: Mr R Crowe

Instructing Solicitors: Maliganis Edwards Johnson

Counsel for the Defendant: Mr B Hull

Instructing Solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the Plaintiff in the sum of $324,267.70.

2. The Defendant have credit for $38,515.16.
3. The Defendant pay the Plaintiff's costs.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 20 September 1989. Liability is not in issue.

2. The plaintiff is a widow born on 13 September 1949. She left school at the age of 15, having completed the second year of high school. She worked as a waitress at Murrumburrah and Canberra before she married, in 1967. Her daughter Cindy was born in 1968 and her son John in 1969. She lived with her family in Harden, and over the years took some seasonal fruit picking work at Kingsvale. Her husband was killed in an accident in 1975, and she brought up her children in Harden. She received a widow's pension until both her children turned 16, and then received unemployment benefits.

3. In 1988 she began a friendship with Mr James, the defendant. She was not employed at the time of the accident.

4. Shortly after midday on 20 September 1989 she was a passenger in a car being driven by the defendant, when it was involved in a collision. She has no memory of the accident, or of some hours before it.

5. The hospital records show that on the way to the hospital there was some intermittent loss of consciousness. She had a grand mal fit which resolved spontaneously.

6. She was admitted to Royal Canberra Hospital, initially under the care of Dr McKeown. She was reported as conscious, but with signs of cerebral irritation. There was a laceration over the left temporal region, and an obvious open fracture of the right tibia and fibula. The laceration was sutured. She was given a blood transfusion. She was transferred to the care of Dr Coyle for treatment of her massive orthopedic injuries.

7. Dr Coyle described her injuries as follows:

"1. Cerebral concussion apparently the result of a direct impact
injury and associated with a large laceration over the left temporal
region.
2. Contusion lower left lung.
3. Displaced closed fracture left neck of femur.
4. Grossly compound fractures midshafts right tibia and fibula (with
5cms of tibia protruding through skin and not able to be reduced in
the Casualty Department).
5. Fractures of pelvis; the fractures involved the right pubic bone
and the left sacro-iliac joint and were not greatly displaced or
apparently unstable.
6. Closed displaced fracture neck of left index finger metacarpal and
closed undisplaced fracture midshaft left middle finger metacarpal.
7. Closed undisplaced fracture left neck of fibula, unassociated with
injury to lateral peroneal nerve."

8. He performed the following operation:

"1. Manipulative reduction and osteosynthesis of the fracture of left
neck of femur, fixation being achieved in good position by means of
three long Mecron cancellous type screws inserted under image
intensifier control.
2. Debridement and toilet of compound right leg wound, manipulative
reduction of fractures of right tibia and fibula, primary (loose)
closure of compound wound and immobilisation of right lower limb in an
above knee plaster cast.
3. Toilet and suture of wound left temporal region."

9. After 24 hours in intensive care she was transferred to a general ward. Although she has no memory of events until some days later, she appears to have been conscious and of course in pain.

10. Post operative Xrays of the right leg showed the position of the fractured bones to be unsatisfactory. By 3 October her general condition had improved sufficiently to enable her to undergo a further operation, where the fractures were internally fixed by an intra medullary nail in the right tibia.

11. Post operatively she made an uneventful recovery. Slow mobilisation was commenced on 10 October 1989. She was transferred to Harden Hospital on 16 October 1989. He general practitioner in Harden was Dr Datoo.

12. After a short stay at Harden Hospital, she was transferred to the Mercy Care Centre at Young for intensive physiotherapy and rehabilitation.

13. Early in November 1989 she returned home, and continued physiotherapy at Harden District Hospital as an outpatient.

14. At home she was nursed by her daughter, Cindy. She was still on crutches, and unable to care for herself.

15. Dr Coyle reported that by 19 January 1990 she was still only taking partial weight on her legs, and still using crutches, but Xrays showed that fractures were healing in good position. He tried to persuade her to discard the crutches and start taking full weight as soon as possible. The locking screw of the nail was causing discomfort. His prognosis for the neck of the left femur was guarded.

16. Her pain increased, especially in the left hip. On 24 September 1990 Xrays showed necrosis of the head of the left femur. On 30 October 1990 Dr Coyle operated at Woden Valley Hospital to remove the screws and nail in the hope that this might relieve the symptoms. She came home, again on crutches, to be cared for by her daughter.

17. Her hip deteriorated, however, and by 5 February 1991 Dr Coyle noted that she was disabled by constant pain in the hip, which not only prevented her from taking any weight on her left leg, but also kept her awake at night.

18. Despite her relative youth he advised a hip replacement. She accepted his advice.

19. On 4 March 1991 he performed the operation at John James Hospital. After about 10 days in hospital, she returned home, again on crutches, to be cared for by her daughter. She was still in severe pain.

20. In May 1991 Dr Coyle reported that she was attending physiotherapy to help mobilise and strengthen her hip muscles and to teach her to walk again. Her left leg, which at first had been shortened by the injury, had been lengthened by the hip operation.

21. After such a series of operations and unremitting pain she was becoming depressed. On 29 May 1991 she was examined by Dr Roberts, clinical psychologist, for the defendant. She told Dr Roberts that she could do light housework which did not involve bending, and was generally independent in daily living activities. She was taking Valium to help her to sleep and Panadeine Forte for pain.

22. Dr Roberts reported that she presented with some features of anxiety and depression, in part related to the levels of pain that she was experiencing.

23. Dr Newcombe, neurosurgeon, examined her at the request of her solicitor on 14 February 1992. He reported that, as was to be expected from such a serious group of injuries, there were persisting anatomical deformities and permanent disabilities.

24. The principal complaint was of low back pain. The initial neck pain substantially improved over a year, but still continued. There was pain over the fracture sites in the left wrist and hand, the right hand, the pelvis, the left hip, and the right leg below the knee. She suffered temporal headaches.

25. On examination he found no cranial nerve abnormalities. There was crepitus on neck movement, and restriction of movement of the neck. Lumbar spinal movement was restricted. There was two centimetres of shortening of the left leg compared to the right. The right shin was swollen by callous formation at the fracture site. There was sensory disturbance in the distribution of the left femoral and left lateral cutaneous nerve.

26. Xrays showed minor L5/S1 disc space narrowing, which had advanced considerably over 18 months. The pelvis had healed in a distorted assymetrical fashion.

27. In Dr Newcombe's opinion, with the exception of the lumbar spinal problem, her injuries were stable and she was unlikely to improve further. Her neck injury could deteriorate over time. The left hip replacement was working well, but of course might need revision in later years.

28. The low back problem was accentuated by the leg shortening and the pelvic assymetry. Conservative management had failed, and he thought further investigation was justified, which could possibly lead to surgical intervention.

29. In May 1992 she consulted Dr Veness, consultant psychiatrist. He referred her to Dr Sutton for neuro psychological assessment. Dr Sutton examined her in June 1992. He thought that chronic pain, medication and possibly mild effects from the head injury might all be contributing to a reduction in her memory and attention. The reduction was mild, but because it was from an already lowered position, it was relatively disruptive. His opinion that she was not suitable for retraining for employment was not really disputed.

30. Dr Veness reported that in his opinion she suffered a chronic pain syndrome. His observations were consistent with the results of Dr Sutton's tests, but he was inclined to diagnose organic brain injury. She had a variety of symptoms of reactive depression. Combining all her problems he concluded that she was permanently invalided. She would not be capable of gainful employment in the future. She could not cope with domestic routine without help, and would need this kind of help for the rest of her life. Even after treatment that might extend over two or three years she would still need medical surveillance and would still be subject to depression.

31. Dr Coyle reviewed her orthopedic injuries on 21 September 1992. He reported,

"I am afraid that Mrs Hawkins has not had a very satisfactory result
from this procedure to date, and furthermore I think the situation has
probably stabilised and that no improvement can be expected without
further surgical intervention.

32. Mrs Hawkins' major complaints now of problems which she relates to her injuries are as follows:

1. Central lumbar and low back pain which she feels more on the left
side than the right and which tends to radiate to the left lower limb,
present constantly but most worrying at night in bed.
2. Pain in the left lower limb quite well localised to the lateral and
anterior parts of the mid thigh which occurs with activity,
specifically with weightbearing. This varies from day to day but when
present occurs with every step or as soon as weight is taken on the
left lower limb.
3. Left knee discomfort and weakness occurring only over the last
three months or so, contributing to Mrs Hawkins' difficulty with
walking and possibly I believe associated with thigh pain.
4. Aching in the right leg at the site of the healed tibial and
fibular fractures associated with activity and with changes of
weather."

33. After describing his examination, he continued,

"I believe that Mrs Hawkins' left thigh pain and probably her left
knee pain and also her low back pain can be attributed to her
unsatisfactory hip prosthesis. Firstly her femur has been lengthened
which would aggravate any tendency to back pain and secondly the
femoral component appears to be loose causing the thigh pain and
probably also the knee symptoms. I have explained this to Mrs Hawkins
and suggested that she be further investigated by means of a bone scan
to confirm the looseness of the femoral component. She is very
reluctant to consider further surgery however especially when I
reassured her that the situation is not likely to deteriorate and
therefore at this stage she has declined further investigation. If
she changes her mind about this she will notify me and I will arrange
the bone scan with a view to possibly revising the loose and over long
left femoral prosthetic component.
I believe that, in the absence of further surgery, Mrs Julie Hawkins'
situation has now stabilised with respect to injuries she sustained in
a motor vehicle accident three years ago and which I have discussed in
detail in my report of 6 February 1990. The aching in her right leg
will probably settle in time but her other problems are permanent and
constitute a significant functional disability in my opinion."

34. Dr Newcombe found nothing new on 13 January 1994. Her condition was stable. While the plaintiff is not keen on having further hip surgery he thought it likely that it would be required.

35. Dr Corry, consultant in rehabilitation medicine, examined the plaintiff on 31 January 1994, at the request of her solicitors. He major complaints were still of pain in the left hip and lower back. The headaches also continued.

36. Her daughter Cindy had moved out at the end of 1993. The plaintiff lived alone, doing lighter domestic chores for herself, such as washing, making her bed, dusting, getting her own meals and shopping. Her sister helped with the heavier house cleaning, and the defendant usually kept the yard tidy. She needed help with carrying heavier shopping.

37. Dr Corry did not identify any available work of a type that she could carry out. He thought she needed regular domestic assistance, perhaps for four hours a week.

38. Dr Roberts also commented on the claim for domestic assistance, and also assessed it as being for three to four hours a week, with one to two hours a week for gardening.

39. Dr Gibney, consultant psychiatrist, examined the plaintiff for the defendant on 23 June 1994. He considered her incapacitated for work, and to be suffering some degree of anxiety and depression. His prognosis was for a gradual improvement in her anxiety and depression, but she would be left with some permanent impairment in those areas. The possibility of further hip surgery also prevented a quick recovery from psychiatric symptoms. He agreed with Dr Roberts that the clinical picture was not one of organic brain damage, but that her psychiatric symptoms were a consequence of her emotional reaction to the accident.

40. None of the doctors whose reports were tendered were called to give oral evidence or be cross examined.

41. In summary, I find that in the subject accident she sustained the orthopedic injuries described by Dr Coyle. After four operations in 1989, 1990 and 1991 she is left particularly with the low back and hip pain, which will probably deteriorate rather than improve. I think it is probable that the hip pain and restriction will increase to the stage where she will feel forced to have a further operation, despite her fears.

42. She continues to suffer, and will continue to suffer, mild depression and anxiety. Dr Gibney noted that the bed wetting of which she complained has improved, but still embarrasses her from time to time.

43. She has multiple scars on her legs, which embarrass her. She can no longer enjoy gardening. Her social and sexual enjoyment are significantly reduced.

44. She has lost any opportunity that she might have had to engage in remunerative work.

45. All these effects are permanent. She is only 45 years of age. Her life expectancy is of the order of 35 years.

46. For her pain and suffering and loss of amenity I award $130,000, of which $40,000 relates to the future.

47. Interest on the past component of that award should reflect that she endured a greater part of her suffering during the first two years after the accident. I award $13,000 interest on the past component of general damages.

48. The defendant's insurer, according to its present records, has paid hospital and medical expenses totalling $38,515.16, and $5052.54 remains unpaid. I include $43,567.70 for out of pocket expenses, on the basis that the defendant is to have credit for $38,515.16.

49. In present day figures the cost of a further operation would be between $11,000 and $12,000. It will probably become necessary within five years. I allow $10,000 for the discounted cost.

50. The plaintiff will need pain relief for the rest of her life, at a cost of the order of $9 a week, the present value of which is $10,238. After discounting that sum by 15% for contingencies, I allow $8,700 for the cost of future medication.

51. The plaintiff's employment history is such that I do not think that she has demonstrated a loss of an income earning capacity that she would have exercised to any measurable extent in the past, had the accident not happened. For the future, the most that can be said is that she has lost a capacity to work which she might have exercised to some small extent. She has lost the opportunity to earn, the value of which I assess at no more than $5,000.

52. The principal area of contention in the case was the assessment of the value of the services voluntarily supplied to her by her daughter, the defendant, her sister and other friends.

53. Despite authority to the contrary, which is not directly binding on me, I am not presently persuaded that the value of services provided by the defendant may be awarded, and I was not invited by Counsel to use this case in order to elucidate the relevant principles.

54. The care that the plaintiff needed was obviously intensive during the periods after the operations, and the calculations put by counsel for the plaintiff of 26 weeks, 8 weeks and 13 weeks at 56 hours a week provide a reasonable starting point, in my view. I do not think that the commercial value of those services would be as high in Harden as they are in Canberra, and the Home Help figures are only indicative. Using an average value of $12 an hour, I would award $31,000 for those discrete periods. For the balance of the time, there would not have been a sudden reduction, but a gradual tapering off of the hours needed, to the present estimate of about 4 hours a week suggested by Dr Corry.

55. I think that estimate is a reasonable one, in the light of Dr Roberts' report and my overall impression of the evidence called by the plaintiff.

56. The assessment is more an exercise of judgment than of calculation, and I allow $25,000 for the balance of the period. That makes a total of $56,000 for the value of past services, spread over five years or so, which appears a reasonable figure to me.

57. The figure for the past has been estimated using a rate of $12 an hour. The present cost of services provided by Home Help Service in Canberra is $25 an hour. I do not think they would cost anywhere near that much in Harden, but, in the absence of any evidence about it by either party, I do the best I can by using a figure of $15 an hour, a figure which would favour the defendant if it is in error.

58. The present value of $60 a week for 35 years is $68,255.

59. On the one hand there will be a period following the future operation when her need will be greater. The operation may possibly reduce her need for help if it is successful, but it may do no more than prevent her from suffering more than she suffers at present. I do not think that the present value should be discounted more than normally. I award $58,000 for the value of future services.

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

Pain and suffering $130,000.00
Interest 13,000.00
Out of pocket expenses 43,567.70
Future operation 10,000.00
Future medication 8,700.00
Loss of income earning capacity 5,000.00
Value of past services 56,000.00
Value of future services 58,000.00
TOTAL $324,267.70

61. I direct the entry of judgment for the plaintiff for $324,267.70. The defendant is to have credit for $38,515.16.

62. I order the defendant to pay the plaintiff's costs.