Van Luat Bui v Samantha Jane Mccrossen [1995] ACTSC 60 (27 June 1995)

SUPREME COURT OF THE ACT

VAN LUAT BUI v. SAMANTHA JANE McCROSSEN
No. SC52 of 1994
Number of pages - 4
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Motor Vehicle Accident - Fractured patella - Plaintiff unemployed at time of accident - Persistent knee pain - Ability to work - Inability to stand for long periods - No issue of principle.

HEARING

CANBERRA, 1 May 1995
27:6:1995

Counsel for the Plaintiff: Mr R. Mildren

Instructing Solicitors: Barker and Barker

Counsel for the Defendant: Mr R. Cranitch

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the Plaintiff in the sum of $62,977.00.

2. The defendant is to have credit for $7,813.00 already paid.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 7 October 1992. Liability is admitted.

2. The plaintiff is a married man, born on 1 November 1958. He left school at the age of 14 and worked for some time as a fisherman. He married in 1981 in Vietnam. He has two children. After some years in a refugee camp in Hong Kong, he arrived with his family in Australia in 1986. He studied English for six months, but is unable to read the language and it was necessary for him to give his evidence through an interpreter.

3. From time to time he has obtained part time or casual work, of a relatively unskilled nature, such as cleaning or chicken boning. He had been on unemployment benefits for some time before the accident. About a year before the accident he separated from his wife, although they have remained friendly. He spent some time living with her relatives.

4. On 7 October 1992 he was driving a car on Haydon Drive when another car came into his path and there was a collision. He thinks now that he lost consciousness for a short time, although the hospital records do not support that complaint. No doubt he was shocked and violently shaken up. He had to be cut out of his car. He felt great pain in his leg. He was taken by ambulance to Woden Valley Hospital, where he was admitted with a compound fracture of the right knee. There were other less serious injuries. X-Rays were taken of his skull, facial bones, chest, pelvis and right knee.

5. He was taken to theatre, where Dr. Hitchen, orthopaedic registrar, operated to reduce the fractured patella. The reduction was secured by wires. He woke in the ward with his right leg bandaged, and pain in the forehead, jaw, chest, left knee and right hand and wrist. His recovery was painful but uneventful. He began to receive physiotherapy. He was discharged on crutches on 12 October 1992.

6. On 19 October 1992 he consulted Dr. Ong at the Melba Health Centre. In addition to his right knee he complained of pain in the right jaw and right hand, and of headaches. On examination Dr. Ong found a tender right wrist and 5th finger and tenderness in his right jaw, right chest and right thigh. He continued the prescription for Panadeine forte. On 6 November 1992 Dr. Ong noted that he was still suffering from recurrent headaches and a sore jaw. The pain in his right wrist had resolved, but his right knee was painful. He referred him for physiotherapy.

7. The plaintiff was not able to arrange transport to enable him to undergo the physiotherapy. When Dr. Ong examined him on 7 December 1992 he had recovered from most of the other injuries. He was no longer using crutches. He had some discomfort in the right hand and suffered from headaches. He could extend the knee fully, but could not flex it completely. It was still painful. Dr. Ong prescribed analgesics and advised daily exercises.

8. The plaintiff came under the care of Dr. McNicol, orthopaedic surgeon. In February 1993 Dr. McNicol operated to remove the wires from the patella. The plaintiff could not remember very much about this operation.

9. On 13 February 1993 he began to attend Dr. Lieu as his general practitioner. He noted an obvious wasting of muscles of the right upper leg. The plaintiff was still complaining of pain in the finger on the right hand and right chest pain. He got headaches occasionally. Dr. Lieu also prescribed Panadeine forte and advised on exercise. He continued to see the plaintiff at monthly intervals.

10. On 20 May 1993 Dr. McNicol noted retropatellar crepitus and chronic atrophy of the quadriceps muscle. The joint was stable. It is significant that Dr. McNicol noted that his gait pattern appeared to be normal. He thought that at that time the plaintiff was capable of at least part time work. However, when Dr. Lieu saw him on 21 June 1993 he did not think that he was fit for work, as the knee was still painful, the leg was weak and subject to numbness after sitting for some time. He thought it would take about another 6 months before the plaintiff would be fit for work.

11. On 16 August 1993 Dr. McNicol noted the continuing crepitus. He recommended a diagnostic arthroscopy. This was undertaken by him at Calvary Hospital on 18 August 1993. That examination showed a scar across the articular surface. There were early chondromalacic changes in the joint. He told the plaintiff, through an interpreter, that if his symptoms were disabling and preventing him from working he should undergo a patellectomy. In evidence the plaintiff said that he has no plans to undergo that operation at present. He has not returned to see Dr. McNicol.

12. Dr. Lieu has continued to see him from time to time. In March 1995 he reported that when he last measured his right quadriceps muscle it was almost equal in size to that of the left leg. Pain still persisted in the right knee. He told Dr. Lieu that the pain makes him unable to walk fast, and that he definitely could not run. Dr. Lieu discussed with him the possibility of another operation but he said that he would like more time to think about it. He also advised the plaintiff that it would be to his benefit to try a graduated return to work.

13. The plaintiff said in evidence that in future he may be able to work, in a restaurant, chicken boning, cleaning or in a bakery. He thought that he was capable of doing between 1.5 and 2 hours a day. During April this year he worked for 2 days in a bakery, but found that standing for more than 1.5 hours made his leg painful. He claims that he feels nervous when travelling in a car.

14. It was noticed that the plaintiff walked into court with a limp. He was asked to demonstrate his mode of walking while giving his evidence. He walked a distance of about 5 metres with a pronounced limp favouring the right leg, and with his right foot splayed outwards much more than the left foot. He insisted in his evidence that he could not run at all, nor could he even walk fast. He was shown a videotape which was recorded on 10 April 1995. It lasts for less than 3 minutes. But, as the plaintiff admitted after seeing it, it clearly shows him running across a road, running up a short flight of stairs two stairs at a time, and walking down stairs without relying upon any handrail or banister.

15. The plaintiff called evidence from the owner of the bakery where he worked during April who said that the plaintiff was able to work for only one and a half hours on each of two days. He has a vacancy for a worker to assist for a full day.

16. Dr. McNicol was called to give evidence. He said that the plaintiff has chronic knee pain which is the result of damage to the joint surface underneath the kneecap. He has observed that damage on his last arthroscopy. He thought that on balance the condition of the knee was likely to deteriorate. If it did deteriorate the plaintiff would suffer increased pain and might well have a different view about having another operation. He would expect that he would carry out another arthroscopy before deciding what particular operation to perform. He thought that the plaintiff's present complaint of pain after standing for a long time was reasonable. He was not shown the videotape, nor was he given a description of what it showed. He did agree that if it were demonstrated that he could in fact do the things he said he could not do, then the prognosis would be optimistic.

17. On that evidence I find that the plaintiff was involved in a relatively severe collision. He suffered a fractured kneecap and a number of less serious injuries, to his head, face, hand and body. He underwent three operations to the knee. There is an unsightly scar on his knee. He has been left with continuing pain in the knee. The articular surface is damaged. Its condition is likely to deteriorate. It is possible, but not yet probable that he will need another operation to remove the patella in later life. That operation would reduce the level of his pain, from a level sufficiently severe to make him want to undergo the discomfort and risk of an operation. His pain at present is not so severe.

18. On the other hand he is not as disabled as he claims. He is clearly capable of walking fast and even running on occasions. His right quadriceps muscle is no longer significantly wasted. I accept that he would not walk fast for a long time, and that he suffers pain after standing for some hours, but I do not accept that he usually walks with the limp that he demonstrated in Court.

19. He is capable of work that does not involve strenuous or prolonged use of his right knee, or prolonged standing. His work background and lack of language and other skills make finding a suitable full time job very difficult. I do not think that he is motivated to try very hard to find a full time job. But I think it is quite likely that, when this case has been decided, he will find a part time unskilled job that is within his capacity.

20. For his pain and suffering I award $35,000, of which $5,000 relates to the future. Interest on the past component is $1,637.

21. The out of pocket expenses amount to $7,954. The defendant is entitled to credit in respect of $7,813, part of that sum.

22. He obviously needed some assistance with personal care for a relatively short time after the accident and after the operations. The value of the services he received is not capable of calculation. I allow $3,000 for that item.

23. There is no doubt that in a physical sense his capacity to earn income has been damaged, both in the past and so far as the future is concerned. The problem is to determine the extent to which that diminution in capacity has caused or will cause economic loss to him. He had been registered as unemployed since the job at Chickens Galore ran out some time in 1989. The same pattern might have persisted for the three years after the accident as for the three years before it. Had he not been injured, however, he might have obtained a job which paid up to $300 a week, though a part-time job paying less is more likely. As an exercise in discretionary judgment I award $5,000 for past economic loss. Interest on half that amount in accordance with the practice direction is $386.

24. He is now only 36 years old. Taking the factors set out above into account, I think that a discretionary sum of $10,000 for the future is fair as between the parties.

25. The total award is therefore made up as follows:
Pain and suffering 35,000

Interest 1,637
Out of pocket expenses 7,954
Griffiths v Kerkemeyer 3,000
Past loss of income 5,000
Interest 386
Future loss of income 10,000
62,977

26. I direct the entry of judgment for the plaintiff for $62,977.00. The defendant is to have credit for $7,813.00 already paid.