Alan Norman Butt v Ronald Arthur Bowler [1994] ACTSC 9 (3 February 1994)

SUPREME COURT OF THE ACT

ALAN NORMAN BUTT v. RONALD ARTHUR BOWLER
No. SC 588 of 1991
Number of pages - 10
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Fractured pelvis - Multiple injuries - Crane driver - Leatherworker - Future economic loss - No issue of principle.

HEARING

CANBERRA, 1-2 & 13 September 1993
3:2:1994

Counsel for the Plaintiff: R.E. Williams QC/R. Mildren

Solicitors for the Plaintiff: Vandenberg Reid

Counsel for the Defendant: P. Arden

Solicitors for the Defendant: Crossin Barker Gosling

ORDER

Judgment be entered for the plaintiff for $739,141.

DECISION

MASTER A. HOGAN This is the assessment of damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 14 March 1988.

2. The plaintiff was born in Sydney on 24 May 1946. Early in his secondary school years he obtained an exemption from the Education Department which allowed him to leave school at the age of 13, when he began working with Mr Tom Smith, a relatively successful trainer of racehorses at Randwick. After some years he was apprenticed as a jockey to another trainer, and completed his apprenticeship at the age of 21.

3. He moved to Canberra, where he would have a more favourable weight allowance, but over a period of about 3 years he was not very successful.

4. In 1969 he answered an advertisement for riggers at the Tidbinbilla Tracking Station, obtained a position, and gained experience over some years, becoming a leading hand rigger. With subsequent employers he qualified as a dogman, then as a crane driver, obtaining certificates to drive both tower cranes and mobile cranes.

5. He first married in 1972, but was divorced in 1977. Over the years he worked constantly as a mobile crane and tower crane driver, on projects such as the Lower Molonglo Water Treatment Works, Black Mountain Tower and the National Gallery.

6. When there was a downturn in construction in about 1980 he worked as a chauffeur for 12 months, but then obtained work as a crane driver in Surfers Paradise in Queensland. He then returned to Canberra, where he worked constantly at his trade.

7. He remarried in 1983, and his daughter was born in that year.

8. In February 1988 the construction industry was again contracting in Canberra. He obtained work in Sydney with a steel erection company owned by a Mr John Neilson, driving a mobile hydraulic crane on various jobs in the Sydney and Wollongong districts. He also had his name entered on a list of tower crane operators looking for employment in that capacity.

9. He was in good physical health. In March 1987 he had injured his right lower leg in a motor cycle accident, but lost only 3 weeks from work while recovering from the injury. He had a hobby of parachuting, and was a member of a successful four man team at free falling formation competitions. He held an instructor's licence. He had last performed at the sport in November 1987. He also enjoyed riding and looking after his motor cycle.

10. His intention was to continue working as a crane driver till he was 65.

11. On Tuesday 14 March 1988 he was riding his motorcycle on the Hume Highway near Marulan. He had spent the weekend in Canberra, and was returning to work, Monday having been a rostered day off.

12. As he approached an intersection a Toyota Landcruiser with a trailer attached failed to stop at a give way sign, and came onto the roadway in front of him. He had no opportunity to avoid it. He collided with the trailer in the region of the A frame that connected it to the towing vehicle. The trailer became dislodged from the Landcruiser. The plaintiff was thrown onto the roadway, and saw the trailer bouncing up and down, coming towards him. His head was towards Sydney, and the trailer was travelling north. One wheel of the trailer ran between his legs, and his right leg became jammed between the axle and the tray, while his left leg was forced up between the tyre and the mudguard. He held on to some part of the trailer until it came to a stop.

13. He did not lose consciousness. Some men got the trailer off him, and pulled him from underneath. At first he did not feel pain, but thought that the lower part of his body might be paralysed, until he saw that he could move his toes. He tasted blood. He was thirsty, but was not allowed to drink. He tried to stay conscious while the ambulance was called, fearing that if he blacked out he would die.

14. He was taken by ambulance to Goulburn Hospital, where he was admitted under the care of Mr T.P. Lyttle, surgeon.

15. Mr Lyttle's report states:
"On admission to Hospital he was pale and sweaty and had

most of the signs of extreme blood loss. He had a
distended abdomen with distention and swelling in the
right inguinal region and had extreme pain around the hips
and pelvis region. He had multiple other grazes and
bruises. X-rays showed a widely distract symphysis pubis
with instability of the pelvis and chest x-ray seemed
reasonably normal but showed some evidence of pulmonary
contusion. Abdominal x-rays showed a paralytic ileus with
evidence of pelvis haematoma. There was also a small
avulsion fracture from the alcaneus. After initial
resuscitation, in Casualty he was transferred to the
Operating Theatre where a large transverse supra pubic
incision was carried out for exploration of the abdominal
cavity. He was found to have complete rupture of the
right rectus muscle, total disruption of the right
inguinal canal with a large haematoma on the right side of
the scrotum and tracking down to the right side of the
thigh from the supra pubic space. There was an extra
peritoneal rupture of the bladder, widely distracted
symphysis pubis as expected and extensive bleeding from
damage to the membranous urethra. A catheter was passed
via the urethra and into the bladder to ascertain
continuity of the urethra, the bladder rupture was
repaired in layers and the distracted symphysis pubis
wired together to produce at least temporary stability.
Muscle ruptures were repaired in layers and the majority
of the pelvic bleeding stopped after prolonged packing and
pressure during the operation time. A rather dirty jagged
laceration around the left knee was debrided and repaired,
there being some disruption of the quadriceps insertion
but no significant disruption of function. He was
commenced on antibiotics, required blood transfusion and
was returned to the Ward for continued post operative
management. During the next few days his condition
gradually stabilised, his respiratory problems settled,
post operatively he remained in considerable pain
developed extensive bruising and a haematoma around the
penis and scrotum with some skin break down but generally
progressed relatively satisfactorily. As he was going to
require a long term of convalescence and lived in Canberra
he was transferred to Woden Valley Hospital under the care
of Dr Morris on the 25th March, 1988."

16. In his evidence he recalled severe pain in his lower body and right shoulder during his stay in Goulburn Hospital.

17. He was transferred by ambulance to Woden Valley Hospital, where he was admitted under the care of Dr Peter Morris.

18. Dr Morris recorded that when he first saw the plaintiff he was still in considerable distress from the pelvic fracture. He complained of urinary incontinence, and numbness extending down his left leg to the lateral aspect of his left calf, and also numbness on the left side of his penis. There were still extensive haematomas in the right thigh and left leg, and he also complained of ongoing lower back pain.

19. He was gradually mobilised in Woden Valley Hospital, and was discharged home in a wheelchair, where he was cared for by his wife.

20. Dr Morris saw him in the outpatients clinic on 13 April 1988. He drained about 50 ml. of bloodstained fluids from the haematomas in the left leg and right thigh.

21. He reviewed him again on 25 May 1988. In the meantime the plaintiff was gradually mobilising on crutches. Dr Morris drained a further 50 ml. of fluid from his left calf. He referred the plaintiff for hydrotherapy and physiotherapy.

22. He was also referred to Dr Peter Hughes for ongoing opinion about his incontinence and penile sensory impairment. His bladder had been ruptured. A fistula in his penis had resolved. He was given an indication that he might recover from his impotence after up to 2 years.

23. Dr Morris reviewed him in August 1988 and February 1989. In addition to pain in the left testicle, right lower back and right hip, movement of his right shoulder was very limited and painful.

24. On 23 February 1989 Dr Morris manipulated the shoulder under general anaesthetic. By March 1989 the range of movement had improved, but the plaintiff was still having pain in the right leg and limping severely.

25. He also entered into the Back Care Program at Woden Valley Hospital early in 1989, which involved physiotherapy and woodworking.

26. He went on a holiday in Queensland, and on his return in May 1989 Dr Morris found some decrease in right shoulder movement and ongoing back pain radiating to his right anterior pubic area. His left leg pain and numbness in his calf remained, and he still had ongoing discomfort if he was on his feet for long periods.

27. In August 1989 he confirmed to Dr Morris that all his pains were aggravated by cold weather.

28. He continued rehabilitation in the woodworking shop, attending for 4 or 5 hours on 3 days a week.

29. In April 1990 his solicitors referred him to Canberra Occupational Therapy Services for an assessment of his abilities. He was able to walk without a stick, but had a marked limp and noticeable shortening of his left leg. The pain that most distressed him was in his groin, which made movement difficult, yet caused discomfort when he had to sit for long periods. Sitting tolerance was limited to 45 minutes with constant changes of position. He could not stand still for more than 10 minutes without having to move around the room to ease the discomfort. His shortened left leg affected his ability to walk, climb stairs or stand still.

30. He portrayed an overall attitude of being motivated to return to any sort of work, but was uncertain about what his capabilities might eventually be.

31. It was clear to the occupational therapist, Sarah Lawn, that he would never return to crane driving or other heavy manual work. His limited education and lack of clerical skills indicated that retraining in higher work skills would have limited success. He would be able to undertake light manual work, but only if he was able to take regular rest breaks, to allow changes of posture. He had been unhappy with his situation, if depressed is too strong a word, and would benefit from psychological counselling.

32. On 11 April 1990 Dr Keiller examined him, also at the request of his solicitors. He noted his marked limp. The low back was tender at L5/S1 and over the right sacroiliac joint. There was a small inguinal hernia. The right shoulder was tender, stiff and painful.

33. Dr Keiller's opinion was that he had made a good recovery from the less serious, multiple, soft tissue injuries, and that the undisplaced fractures in the left foot had settled well, but that he still had severe pain and limp due to the disrupted pelvis, and possibly an injury to the L5/S1 disc. Further treatment was obviously indicated.

34. On 26 April 1990 Dr Morris found from x-rays that the pubic wires had fragmented. There was ongoing low back pain and pain down the right side of his back and into his groin. He made arrangements for an operation.

35. On 26 July 1990 Dr Morris removed the wires from the symphysis pubis at Woden Valley Hospital. The wires had fragmented and the operation involved extensive dissection down to and including the bladder wall to remove the fragments of wire.

36. The process of recovery from that operation was painful, and he spent about 6 weeks at home in bed after his discharge from the hospital. He was again cared for by his wife.

37. When he became mobile again, he found that a lot of the pain in the symphasis area had been relieved, but he still continued to have severe ongoing lower back pain and leg pain.

38. Dr Keiller saw him again on 7 November 1990. There had been improvement in the symphysis pubis, and the neck and shoulders were not unduly tender, and showed a full range of pain free movement. Problems still persisted in the low back area, though there was no evidence of any neurological deficit to suggest nerve root irritation. There will be some increased tendency to degenerative changes in the lumbar spine.

39. In mid 1991 he ceased attending at the Woden Valley Back Care Program. He had tried to improve his reading and maths, but without much success.

40. He applied for jobs, as a radio dispatch clerk with Canberra Cranes, and with the Pakistan Embassy, but without success. The Commonwealth Employment Service interviewed him, but were unable to help.

41. He had been interested in leather work, and was asked by a scaffolder to make a leather belt for carrying scaffolding tools. When others saw what he could make he received some more orders, and then decided to go into business as a leather worker, operating from his garage at home.

42. In November 1991 Dr Morris found a satisfactory range of movement at both hips, but with discomfort at extremes of motion. X-rays confirmed an ununited anterior lip fracture of the L5 vertebra and some ongoing disruption of the left sacroiliac joint with widening of the joint. He thought his condition was permanent and unlikely to improve with treatment.

43. During 1992 he underwent an operation to repair the inguinal hernia. The only evidence about it comes from Dr Andrea, who examined him for the defendant on 9 September 1992. He had no doubt that it was related to the accident. It took the plaintiff about 3 months to recover from that operation. Dr Andrea had no doubts either that all his complaints about his pelvic area were genuine. He related them to the sacroiliac joint rather than to a lumbar disc problem. He thought it possible that he might need a fusion of the right sacroiliac joint should the pain become intolerable. He thought the plaintiff was permanently unfit for significant physical work, and that the leather work might be a suitable solution for him.

44. Dr Morris gave evidence that there is a likelihood of ongoing degeneration in the sacroiliac and lumbar regions, which if it occurs, will lead to increased pain in those areas.

45. On 17 and 18 August 1992, at the request of the defendant's solicitors, the plaintiff was assessed at the Vocational Capacity Centre by Lyn Gosling, physiotherapist, Graham Hiscox, psychologist, and Dr Dalton, consultant in rehabilitation medicine.

46. Dr Dalton's report summarised their conclusions as follows:

"The overall assessment concluded that Mr Butt is
incapable of returning to his pre-injury job as a Crane
Driver. He is functionally restricted in weightbearing,
the lifting of weight and activities requiring trunk
flexibility. It was further determines that Mr Butt was
suitable for a range of sedentary jobs with appropriate
intellectual demands and these are listed in the body of
the report.
The MEDICAL ASSESSMENT involved in a thorough physical
examination and a detailed history of the accident,
resulting medical symptoms, present symptomatology and
vocational history.
Although this man as (sic) having major disabilities
resulting from his injuries, much of this appears to be
due to chronic pain and depression. His physical
restrictions have arisen out of the injuries to his
pelvis and this has resulted in back pain and hip
discomfort. Nevertheless he has learned gain patterns
which could be improved and has the potential to benefit
from pain management and counselling. He is fit for
sedentary work and currently runs his own business from
home. The psychological effects of his injuries appear
to have had a significant effect upon his physical
function.
The FUNCTIONAL ASSESSMENT involved the client in a variety
of weighted and non-weighted activities to determine
functional ability employing the Isernhagen Functional
Capacity Evaluation standard.
On assessment Mr Butt was found to be very limited in his
ability to perform weighted activities. As well, he is
limited in his ability to perform tasks requiring trunk
and hip flexibility. He is unable to crouch, kneel or
squat and further he is unable to step ladder climb or
balance. Sitting, standing and walking tolerances are
all restricted. With regard to future job options, he
would be able to perform sedentary work not involving
transference of weight and where he can vary his posture
as required.
The VOCATIONAL ASSESSMENT involved the administration of
tests of intellectual and educational ability, and
vocational preferences. This assessment also included a
determination of relevant skills obtained from work
experience, and interests and hobbies.
Mr Butt worked predominantly over the past 23 years as a
Crane Driver. Psychometric assessment would appear to
have been impeded by clinical levels of depression and
anxiety and indeed it is expected that until such a
psychological state is investigated and treated further,
then his ability to seek, secure and maintain employment
to his potential will be compromised. However, it would
be expected that he would be capable of other such work
within the ASCO major group headings of Machine Operators,
and Labourers and Related Workers."

47. The principal issue in this case was not the extent of his injuries or the pain and suffering that resulted from them, but the economic consequences. As counsel for the defendant expressed it, "The issue here is what is his residual capacity and how do you quantify it?"

48. In Dr Dalton's view the plaintiff would benefit from psychological support and counselling, not only for his general well being, but also to enhance his ability to find suitable work. The report from his organisation identifies a number of types of employment which would possibly be suitable for the plaintiff.

49. I think it is quite on the cards that with the financial security that should follow from this award he will receive help. But the state of the labour market reasonably available to him is such that I do not think that his future income earning capacity will be measurably enhanced by any benefit he does derive from counselling.

50. Fundamentally, he has not changed from the man that he was, who went looking for work somewhere else when it was not readily available for him here, and he has himself come up with the most reasonable solution of finding useful work to do, in his leatherwork and woodworking business. That bears upon his general damages. As a lofty crane driver he had a job of considerable skill and standing, especially among his fellow workers in the construction industry. He can now turn his skill with his hands to some good use, but he can not take the pride in what is left for him that he could in the work he could do before the accident.

51. The injuries he suffered were distressing even to read about. His recovery, as far as he has recovered, took years, and involved not only the initial operation, but also, under general anaesthetic, the manipulation of the right shoulder, the removal of the wires, and the repair of the hernia. He is left with the limp and the pain resulting from the pelvic deformity, which is unlikely to improve, and which will probably deteriorate. An operation on the sacroiliac joint is at least possible. Although he is no longer impotent his sexual life had been adversely affected, and there is still some residual incontinence.

52. He is still only 45 years of age.

53. For his pain and suffering and loss of amenity I award $120,000, of which $30,000 would relate to the future.

54. The greater part of the past pain and suffering was incurred early in the time after the accident, so that it is not appropriate to average interest on the past component evenly over that time. For interest I award $15,000.

55. The out of pocket expenses are agreed at $15,525.

56. He received workers compensation for a time, and the tax that was deducted is also agreed at $7,729.

57. The claim for the value of his wife's services is not really disputed, and is moderate as claimed at $15,157.

58. The evidence supports, in my view, the submissions about the past wage loss. Although crane drivers could not be assured of continuous work over the time since the accident, he was always prepared to go looking for it, and the claim does not include any amount for overtime. In busy times he would have earned substantially more than the enterprise agreement or award rate per week on which the claim is based. Bringing the amount up to date from the hearing at $624.00 a week gives a total of $158,605.

59. He received $77,385 in workers compensation. Interest on the balance of $81,620 at 8 percent amounts to $38,500.

60. The starting point for the future is the present value of $624.00 a week for 18 years at 3 percent, which is $454,272.

61. His health before the accident was generally good, but not perfect. His thoracic spine showed signs of Schueurman's disease in 1971, when he had injured his back at work. He had on occasions been depressed, particularly when under stress at work, and had from time to time over indulged in alcohol. He had suffered from headaches, and in 1985 had to give up alcohol for a time as his liver was affected. I accept the evidence, both from him and his wife, that his capacity for work had not been adversely affected. But when considering the discounting factors for the future I take those matters into account.

62. The attack by counsel for the defendant on the claim for future economic loss did not really focus on what the plaintiff might have earned had he not been injured. The considerations already mentioned with relation to the past economic loss justify basing calculations on $624.00 a week. But I think that for the future there should be some discounting on account of the ordinary contingencies, and, over such a long period, some additional periods out of work or work at a reduced level of remuneration. A discount of the order of 20 percent seems to me to be called for.

63. Counsel's main attack was based on the proposition that he will in fact be able to earn substantial money, even though he is injured.

64. The plaintiff is indeed a courageous and resourceful man. He is not a quadriplegic. He will have the resources to set up his business properly. But he will still be able to earn income only from his own personal exertion as a leatherworker and woodworker. There is no evidence about what that income might be, even for a skilful worker with a well set up workspace. It will be a commercial enterprise, carried out by a man with skill and courage, but still with disabling and increasing pain who is able to work only for short continuous periods. I think it would be quite unrealistic to expect the plaintiff to be able to earn anything like 50 percent of what he would receive as a crane driver.

65. It is impossible to put a figure on his future earnings. They must be considered as a possibility. To give an idea of the extent of the difference that the possibility could make, if he were able to earn $100.00 a week over the rest of his working life, the present value of that capacity would be $72,800. I do not think that he has as great an earning capacity as that.

66. Taking all those matters into account, as a matter of discretionary judgment I award $325,000 for future economic loss.

67. Mrs Chamberlain, the consultant occupational therapist, reported on the cost of a number of items of equipment and ongoing advice that the plaintiff will reasonably need to carry on his activities as a leatherworker and woodworker. Dr Dalton contested the extent to which some of them are reasonable.

68. The first item is an amount of $5,000 for annual review by a rehabilitation specialist. I think Dr Dalton's estimate of about $100.00 a year for 10 years is the more likely. Theoretically the discounted present value should be awarded, but in view of the amounts involved I think that an award of $1,000 for this item is justified.

69. I am also not satisfied that he needs or would use the type of home gymnasium equipment contemplated by Mrs Chamberlain, and I think $2,000 would amply cover that sort of need.

70. The fracture of the pelvis has resulted in a disparity of leg length, as explained by Dr Morris, and the sum of $2,000 is a reasonable estimate of the cost of appropriate footwear.

71. As an amateur home carpenter I could install a handrail at the back steps for less than $250.00, but I doubt whether a tradesman could be employed to do it properly for less.

72. It is conceded that the claim for social workers' advice and travelling to a social club is too high. Dr Dalton supports membership of a club. I award $375.00 for this item.

73. Dr Dalton increased Mrs Chamberlain's estimate of the cost of psychological counselling, for which I would award his estimate of $1,000.

74. Counsel conceded that the claim for advice about incontinence is not supported by the evidence.

75. I also agree with Dr Dalton that the use of a wheelchair should be discouraged.

76. Modification of his workshop and equipping it with proper equipment will cost an amount of the order of $29,000, in Mrs Chamberlain's opinion, which was not controverted by any evidence.

77. The total cost of the items referred to in her report which I would award is $35,625.

78. There were no submissions contrary to the claim for $8,000 for the cost of medical attendance and medication for the future, which I would also allow in full.

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

Pain and suffering $120,000
Interest 15,000
Out of pocket expenses 15,525
Fox v Wood 7,729
Griffiths v Kerkemeyer 15,157
Past economic loss 158,605
Interest 38,500
Future economic loss 325,000
Items in Mrs Chamberlain's report 35,625
Future medical expenses 8,000
TOTAL $739,141

80. I direct the entry of judgment for the plaintiff for $739,141.