Charles Leo King v Sophie Singh [1995] ACTSC 52 (2 June 1995)

SUPREME COURT OF THE ACT

CHARLES LEO KING v. SOPHIE SINGH
No. SC312 of 1987
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 - Soft tissue injury to neck - Knee injury - Police officer - Compulsory retirement - Loss of income earning capacity - Earnings affect pension rights - Capacity not fully exercised.

Johnson v Hegarty (1981) 56 FLR 279

Graham v Baker (1961) CLR 340
Jones v Gleeson (1965) 39 ALJR 258

HEARING

CANBERRA, 27 and 28 February 1995
2:6:1995

Counsel for the Plaintiff: Mr R. Stanley QC with Mr C. McKeown

Instructing Solicitors: Snedden Hall and Gallop

Counsel for the Defendant: Mr P. Deakin QC with Mr M. McDonough

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the Plaintiff for $278,000.00.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff on 14 March 1986.

2. The plaintiff was born in Queanbeyan in 1937, and has lived since then in the Canberra district. After basic schooling he completed an apprenticeship as a motor mechanic and underwent national service. He then had a number of jobs, including truck driving. He married in 1961, and in 1966 he joined the Australian Federal Police.

3. He had long been interested in Police work, and became a dedicated and efficient member of the force. He progressed to the rank of station sergeant in 1983. He was selected to attend a course to qualify him for appointment as inspector, which he passed, and he had spent a short period as an acting inspector. During his career he had received a number of awards and commendations, for bravery, efficiency and community relations. He intended to remain an active member until compulsory retirement at the age of 60.

4. He was in good health and active in sport, especially in coaching young soccer players. He had a young family, his wife was not working, and they were paying for their home. For financial reasons he took on a second job, driving passenger coaches.

5. On 14 March 1986 he was driving a Police Falcon sedan in College Street, Bruce. He stopped at a pedestrian crossing. He glanced in the rear vision mirror and saw that a vehicle coming from behind was about to collide with his vehicle. He was wearing a seat belt. He braced himself for the collision. There was a heavy impact. He could not recall when giving evidence what exactly happened to him inside the vehicle immediately after the impact. He was able to get out to check that the other driver was not seriously injured. He felt sore in the leg and stiff in the neck.

6. He was taken to Calvary Hospital and his wife was called. By the time a doctor was able to see him the x-ray department was closed. The hospital recorded complaints of a painful neck and tender right knee. On examination there was marked spasm of the neck muscles, but no other abnormality was detected. Panadeine and Valium were prescribed, and physiotherapy recommended. His wife took him home.

7. At work he consulted Dr. Smyth, a Police medical officer, who ordered X-Rays which disclosed no abnormality. He noted pain on neck movement and tenderness along the lateral border of the patella. He prescribed Naprosyn and rest. The plaintiff suffered a reaction to the Naprosyn, and developed headaches and nausea. He discontinued the Naprosyn and continued to rest. At first his neck was his principal concern, and as it improved he returned to work on 7 April 1986.

8. His knee however continued to trouble him. He had an effusion of the joint after refereeing a soccer match on 10 April 1986 which took 72 hours to subside. When Dr. Smyth saw him on 24 April 1986 he still had a tender palpable swelling at the patella. On 4 July 1986 Dr. Smyth noted that the plaintiff was still having pain in the knee after prolonged standing, going up stairs and sometimes during the night. He referred the plaintiff to Dr. Vance, an orthopaedic specialist.

9. Dr. Vance saw him twice, and then referred him to Dr. McNicol, orthopaedic surgeon, who saw him first on 14 August 1986. The X-Rays demonstrated to him an avulsed flake of bone from the lateral femoral condyle. He felt that a local steroid injection might help, but it had no beneficial effect. When he reviewed the plaintiff on 2 April 1987 he was no better. He decided therefore to explore the region surgically. On 8 April 1987 at operation he found an area of cartilage damage with softening, and a loose piece of bone on the lateral femoral condyle on the margin of the articular cartilage and bone. He curetted the cartilage and drilled the base of the lesion. The plaintiff spent only a few days in hospital and his recovery was uneventful. He underwent physiotherapy and performed the exercises prescribed by Dr. McNicol.

10. Although he appeared to Dr. Smyth to be recovering well on 22 April, on 11 May 1987 Dr. Smyth noted that swelling was still present and the plaintiff could not perform straight leg raising because of pain under the patella. On 6 July 1987, some 3 months after surgery, he told Dr. McNicol that his knee was 75% better but clinically he still had poor muscle tone and straight leg raising.

11. On 21 July 1987 Dr. Smyth noted little improvement. The plaintiff could walk only short distances with a limp, could not run or kneel or turn a corner on the right leg, or sit for more than short periods. He issued a certificate for continued sick leave until 30 October 1987.

12. On 21 October 1987 Dr. McNicol reviewed him. Clinically his quadriceps were of poor bulk and tone, and there was tenderness on the lateral femoral condyle. All ligaments were intact. Dr. McNicol recommended an ongoing strenuous approach to quadriceps rehabilitation. His prognosis was that the plaintiff would continue to suffer some knee discomfiture, although he did not think that the problem was disabling.

13. When Dr. Smyth saw him on 9 November 1987 he noted signs of a sprain in the right ankle, probably due to a collapse of the knee. On 18 December 1987 there had been no further improvement in the knee and quadriceps wasting appeared to have worsened. That examination was a formal one in order to determine the plaintiff's suitability for continued employment or retirement on invalidity grounds.

14. Dr. Smyth certified that the plaintiff was unable to perform any of his normal duties, and that redeployment was not available because of the plaintiff's inability to sit for extended periods. He recommended invalidity retirement. That recommendation was accepted, and the plaintiff was retired with effect from 1 April 1988.

15. The plaintiff was examined on 30 June 1988 by Dr. Cairns, orthopaedic surgeon, at the request of the defendant. He thought that the plaintiff's symptoms were consistent with his injury, and were such as to cause him to be classified as unfit for active Police duty. He thought that the plaintiff would be fit for light selected manual activities. He also thought that there was a prospect that in the longer term the plaintiff would develop secondary, traumatic osteoarthrosis which might require further medical, physiotherapy or even surgical treatment in the longer term.

16. Four years later the defendant also sought a report from Dr. McGrath, consultant in occupational medicine, who saw the plaintiff on 27 August 1992. He was then working on a casual or part-time basis driving passenger coaches on short runs. He complained that he had a stiff, uncomfortable neck, and on occasions the second and third fingers on the right hand would ache. The pain and restriction of movement persisted in the right knee. On examination Dr. McGrath found mild restriction of neck movements and some tenderness to deep palpation at the base of the neck. There was a full range of movement at the knee but tenderness over the lateral dorsal aspect. He diagnosed post traumatic arthritis of the patello-femoral joint.

17. Dr. Cairns also reviewed him on 2 September 1992. He had taken up coaching indoor soccer, and returned to occasional dancing. He described his ongoing symptoms as being some pain, some stiffness, and a limp, all of which got worse when he himself was generally tired. He found no change in the level of disability since 1988. He did not think that secondary, traumatic osteoarthrosis was a distinct, likely consequence of the injury. He believed that the current situation was virtually static.

18. When the plaintiff saw Dr. Cairns again, on 10 November 1993, he was working as a courier driver without difficulty. His inability to run had caused him to discontinue indoor soccer coaching. Again Dr. Cairns believed that the symptoms were unlikely to change with the further passage of time. Dr. McGrath came to much the same conclusion when he saw him on 23 November 1993.

19. Dr. McNicol last saw him on 30 January 1995. He also summarised the plaintiff's symptoms as ongoing, although in a minor way. He expected this to be the pattern in the months and years ahead.

20. Dr. McNicol gave evidence and was cross-examined. The plaintiff was not able to remember any direct blow to his knee in the accident. There were some discrepancies between his description of the accident and the contemporaneous records. However, the police report records neck and leg injuries, and he clearly complained of tenderness in the region at Calvary Hospital immediately after the accident. On the basis of the evidence of Dr. McNicol I am satisfied that all the subsequent problems that the plaintiff had with his knee resulted from the subject accident. The precise mechanism does not matter. Dr. McNicol also thought that there is already a small area of osteoarthrosis in the joint, but he did not expect it to spread to the remainder of the joint. He expected only localised arthritis, with intermittent symptoms. I think that this view is consistent with that of Dr. Cairns. I accept that this is the likely prognosis.

21. The plaintiff was cross-examined about his signing waivers of his appeal rights. I think that he had accepted that, in the light of the opinion expressed by Dr. Smyth, his retirement was inevitable, and he was simply assisting in the administrative processes designed to give effect to that recommendation.

22. There is some evidence that the plaintiff did not always agree with decisions or attitudes of all his superior officers, but that does not cause me to doubt his evidence that he regarded police work as his career, and that if he had not been injured he would have continued to serve until normal retirement age. On the other hand, promotion to inspector level was by no means automatic, and there would always have been the possibility that he might become dissatisfied with his postings, and have accepted early retirement. I think that those two possibilities are of about the same order, and cancel each other out.

23. The plaintiff expressed in evidence a view that it was not necessary to declare income from his second job if he did not receive a group certificate. This is not a view that I share, but it must be acknowledged that many members of the community who would claim to be honest did share it. It was to deal with the injustices created by the prevalence of such a view that the tax file number system was introduced. Thereafter the plaintiff did declare all his income derived from his work as a coach driver.

24. His evidence in chief was to the effect that he did not resume coach driving until after his discharge from the police force. The date of his operation was 9 April 1987. He was retired from the force on 1 April 1988. The group certificates filed with his 1987 return do not show the dates on which he worked as a coach driver. They merely demonstrate that between 1 July 1986 and 30 June 1987 he earned gross amounts of $834 from Canberra Charter Coaches and $2185 from Stateliner P/L. The 1988 return shows gross earnings of $3600 from Greyhound Coaches P/L between 21 March 1988 and 30 June 1988. On this aspect he was responding to relatively leading questions by his counsel. I am not moved by his evidence on these matters to disbelieve his evidence generally.

25. I am satisfied that in the subject accident the plaintiff sustained a soft tissue injury to the neck, and an injury to the right knee. The discomfort caused by the neck injury subsided normally over a period of some months, although there was still some restriction of movement and deep tenderness on examination by Dr. McGrath six years later. An operation was necessary to treat the damage to the knee. Disability persisted, and about a year after the operation he was retired against his wishes from the police force, which was his chosen career. There was some improvement in the condition of the knee over succeeding years, so that by 1993 he was capable of working without restriction, but with some discomfort, as a coach driver or courier. His knee is not likely to get any better, but it will probably not get much worse over the years. Secondary osteoarthritis is a possibility, but not a probability. His ability to enjoy recreational activities such as dancing or soccer coaching has been markedly restricted. He is now 58 years of age.

26. For his pain and suffering and loss of amenity I award $30,000, of which $8,000 relates to the future.

27. For interest on the past component I award $4,000.

28. The out of pocket expenses are agreed at $2,042.50. There was no claim for interest on them.

29. The claim for past economic loss was based on a report from a financial loss analyst, which quantified the loss at $168,237 up to 27 February 1995.

30. The assumptions made with respect to the plaintiff's potential earnings but for his injuries were based on the earnings of two comparable members of the police force. Subject to one consideration those assumptions appear valid. That consideration is that the plaintiff might not have chosen to remain in the police force. I propose to deal with that consideration when dealing with the discounting of the raw figures.

31. Bringing the net potential earnings up to date at $700 a week gives a total for potential earnings but for injury to $314,299.

32. The actual earnings are shown in the report as $136,662, again up to 27 February 1995. Extending that amount up to date at $377 net a week gives a total of actual earnings to date of $141,724, resulting in a prima facie loss of $172,575.

33. But it is clear from the plaintiff's own evidence that he has not exercised his income earning capacity to the full.

34. After his retirement he received a superannuation pension. That pension was affected by earnings that the plaintiff derived from any other job. His estimate was that he was able to earn only $87 a week without affecting his pension. He worked so as to have something to do. He said that in one year he worked out that he had paid $1,000 in order to work.

35. The defendant submits that the reason why he did not earn a lot more than he did was not because he was physically incapable of doing so, but because he chose not to, as to do so would only cut into his superannuation entitlement.

36. Counsel for the plaintiff did not submit that to approach the question in this way would not be in accordance with the law. He did not submit that to do so would be contrary to decisions binding upon me such as Johnson v Hegarty (1981) 56 FLR 279, Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 or Jones v Gleeson (1965) 39 ALJR 258. As I understand the defendant's submission I think that he was not suggesting that I should give the defendant credit for the superannuation received, in the manner which was decided to be impermissible in those cases. It is simply that the plaintiff has chosen not to exercise his capacity to the full, for reasons which are perfectly rational, in the light of what his earnings would do to his superannuation, but for which the defendant should not have to bear the consequences.

37. Counsel for the plaintiff submitted that such a finding, as a matter of fact, is not justified on the evidence. He pointed out that the plaintiff had earned $136,000 net after tax, or about $377 net a week, over the relevant period. He rightly stressed that there is nothing of the malingerer about the plaintiff, and submitted that there was no evidence that more work was available to the plaintiff than he had taken. He submitted that I should find as a fact that the plaintiff has exercised his capacity to the fullest extent of which he was physically capable.

38. I think that the truth lies somewhere between the two. The plaintiff conceded in evidence that he could, at times, have worked an extra day a week. I think that justice is best done between the parties by a substantial discounting of the arithmetical figure. There is a period of 7 years since his discharge. In addition to the normal contingencies he might have left the police force voluntarily, though that was only a possibility. On the other hand, there was a possibility that he might have been promoted to Inspector at some time during those 7 years. I think that also was a possibility rather than a probability. He could have exercised his capacity to a greater extent.

39. I award $130,000 for past loss of income earning capacity.

40. He received worker's compensation totalling $51,203. Interest on the balance, $78,797, from 1 April 1988 to date, calculated in accordance with the practice direction, is $82,046. I allow one half of that sum, namely $41,000 in round figures, for interest on the past loss.

41. The Fox v Wood component is not disputed at $15,945.

42. The future loss involves a period of only two years in the police force. Taking into account his unused capacity, I think a fair starting point is a loss of about $550 a week. The present value of that loss for 2 years at 3% is $55,717. The period is so short that no real discounting is called for. In addition, had he not been injured, he may well have been capable of earning substantial money from various activities after retiring from the police force at age 60. That capacity has also been diminished. The plaintiff gave no specific evidence about his intentions in that regard. In all the circumstances I think that an award of $55,000 for future loss of income earning capacity is fair as between the parties.

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

Pain and suffering 30,000
Interest 4,000
Out of pocket expenses 2,043
Past economic loss 130,000
Interest 41,000
Fox v Wood 15,945
Future economic loss 55,000
_______
277.988

44. I would round that figure up to $278,000, which seems to me appropriate as a global figure.

45. I direct the entry of judgment for the plaintiff for $278,000.00