William Dirk Mayberry v Tracey Jean Gavegan [1995] ACTSC 80 (21 July 1995)

SUPREME COURT OF THE ACT

WILLIAM DIRK MAYBERRY v. TRACEY JEAN GAVEGAN
No. SC 751 of 1990
Number of pages - 9
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor cycle accident - Multiple orthopaedic injuries - Naval seaman - Career prospects - Economic loss - No issue of principle.

HEARING

CANBERRA, 29 and 30 May 1995
21:7:1995

Counsel for the Plaintiff: Mr G. Stretton

Instructing Solicitors: MacPhillamy Cummins and Gibson

Counsel for the Defendant: Mr B. Hull

Instructing Solicitors: Crossin Barker Gosling

ORDER

1. Judgment be entered for the plaintiff for $736,000.00.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 16 June 1989. Liability is not in issue.

2. The plaintiff is a single man, born in Canberra on 8 December 1967. His father was a leading seaman steward in the Navy, and his own constant ambition was to be a sailor. After two applications, he was accepted into the Navy at the age of 17, while in final year at school.

3. In September 1985, after a recruit and gunnery course, he became an able seaman and quarter-master gunner and was posted to sea in HMAS Vampire. He also served in HMAS Hobart and HMAS Cook before being sent to duty on land at HMAS Cerberus in 1988. He enjoyed life in the Navy, and his experience at sea confirmed his intention to make the Navy his career. He became engaged to be married.

4. On 16 June 1969 he was riding a motor cycle on Northbourne Avenue to visit his parents. At about 6 p.m., at the intersection of London Circuit, the defendant drove her car through a red light and collided with his right side. He lost consciousness, and came to lying on the road. An ambulance took him to Royal Canberra Hospital, where x-rays were taken and he was operated on by Dr. Stubbs.

5. His initial treatment is described in the hospital report as follows:
"On examination there were obvious fractures of the right and left

femurs, a compound fracture of the right tibia and fibula. There
were possible fractures of the right radius and ulna and right
ankle.
X-ray of the right femur revealed a fracture of the mid-shaft of
the femur.
X-ray of the left femur revealed a fracture of the left femur at
the junction of its middle and upper thirds.
X-ray of the right leg revealed a comminuted fracture of the
mid-third of the tibia and a fracture through the fibula.
X-ray of the right forearm and wrist revealed fracture of the
proximal third of the shaft of the ulna. There was no
displacement. No other fracture was seen.
X-rays of the chest, pelvis, left leg, cervical spine, right ankle
and foot and left wrist revealed no fractures or abnormalities.
After resuscitation in the Accident and Emergency Department, Mr
Mayberry was taken to theatre where open reduction and internal
fixation of both fractured femurs was performed. The compound
fracture of the right tibia and fibula was treated initially by
wound debridement and application of an external fixateur. A
plaster backslab was applied to the fractured radius and ulna.
Mr Mayberry was transferred to the Intensive Care Unit and placed
in suspensory traction. He was commenced on intravenous
antibiotics and analgesia. Postoperatively his condition remained
stable and he was transferred to the ward on 20 June 1989."

6. It is understandable that he described the pain that he suffered as excruciating.

7. He returned to the theatre on 23 June 1989. The external fixateur was removed from his fractured tibia and fibula and an open reduction performed. Difficulties were experienced in the operation because of the size of his bones. A large area of muscle was left open, and there was some loss of skin at the operation. The right ulna was fixated with a plate and screws. He was again placed in traction.

8. On 30 June 1989 a split skin graft was applied to the exposed area of muscle. After about 10 days it was noticed that the tibia wound was infected. The infection was a multi resistant staph aureus.

9. It was then noted that his legs were setting with an external rotation. He returned to theatre once again on 25 July 1989, where a bone graft was performed to the various gaps in the fracture of the tibia.

10. Efforts were made to mobilise him on crutches and in a wheelchair. Despite intensive physiotherapy an external rotation developed in both legs. He was transferred to the hospital at Duntroon for convalescence on 30 August 1989.

11. He was again admitted to Royal Canberra Hospital on 19 November, and the nail in the tibia was removed and replaced by another, which was locked by screws. He returned to Duntroon on 29 November 1989.

12. Because of the persisting staph infection, it was necessary to isolate the plaintiff from other patients, so that in addition to the pain he had to endure months of loneliness. He became depressed. Yet, when at about Christmas it was suggested that he spend periods of time at home, it was necessary for his divisional officer, Lt. Mackie, to direct him to leave the hospital.

13. At home he used a wheelchair initially, but then found it easier to move about on a skateboard. He needed to attend the hospital overnight once a week. He felt that in his condition it was not fair to remain engaged to be married, and he terminated the relationship with his fiancee.

14. On 12 March 1990 he was admitted to Royal Canberra Hospital, for a further operation by Dr. Stubbs, to remove the nails from the fractures. After recovering from that operation he began rehabilitation at Woden Valley Hospital. Continued medication was necessary because of the bone infection.

15. On 28 May 1990, at Royal Canberra Hospital, Dr. Stubbs attempted to correct the rotation deformity in each leg. Because of the plaintiff's obesity and lack of hip mobility, he had to abandon the operation. He was put on an exercise and weight reduction program. On 3 September 1990 he underwent surgery where bilateral femoral osteotomies with internal fixation was performed to each femur to correct the rotation deformity. He remembered this as one of the more painful operations, but was relieved that the deformity appeared to have been corrected.

16. After about 6 weeks in bed he began to become mobile, initially in a walking frame.

17. On 15 October 1990 Dr. Stubbs operated yet again, to insert a bone graft to the fracture of his tibia and to lengthen the tendons behind the ankle. In November Dr. Stubbs was pleased to report that the plaintiff had made much improvement. His feet were facing in the right direction and there was early union of all the fractures. The infection in the tibia also seemed to be under control. The plaintiff was just beginning to walk again, but Dr. Stubbs needed more time before being able to assess his final level of disability.

18. He underwent more rehabilitation at Woden Valley Hospital. In March 1991, he resumed duty at HMAS Harman, using a wheelchair and crutches. He was of course restricted to clerical duties. His personnel records show that he had a very positive attitude to his rehabilitation, and he wrote asking for every chance to be allowed to continue in the Navy.

19. However, by December 1991 it was clear to Dr. Stubbs that the plaintiff would never be fit for duty as a naval seaman. On 17 March 1992 he appeared before a board of final medical survey, which recommended that he be discharged as medically unfit for naval service. He reluctantly accepted the inevitable. He was discharged on 15 May 1992.

20. On 4 October 1991 he was examined for the defendant by Dr. Tedder, specialist in rehabilitation medicine. She described his condition on examination as follows:

"He limps and wears built up shoes. His right leg is two
inches shorter than his left. He is unable to balance if he
stands on his right leg. He has extensive scarring on the
right lower leg. He has a scar from release of the right
tendo Achilles. He has loss of sensation in his right heel.
Vertical scar on his right thigh and scar on his right leg,
scar on his left leg and he has gross swelling of his right
ankle. He has stiffness also of the right ankle.
He can manage to get round without a stick for a very short
distance but his walking distance is very limited."

21. On the same day he was examined for the defendant by Dr. Taylor. His opinion was as follows:

"OPINION I feel that there has been great difficulty in
treating the numerous extensive injuries which Mr. Mayberry
suffered in his accident in June 1989. I examined his central
nervous system. His cranial nerves are intact and he does not
seem to be suffering from any ill effects from any head injury
which he sustained. There is considerable shortening of the
right leg. He seems to have recovered from the infection he
had. The osteomyelitis seems to be quiescent and the new nail
is holding the tibia satisfactorily and union is taking place.
There was a gross defect on the antero medial aspect of the
leg which has been skin grafted and the sinus in the lower
part of this area has only recently closed over. This defect
will be permanent in the leg and in years to come may be the
subject of ulceration as when he is older the blood supply to
the leg may diminish, depending of course on the health of his
arteries. The leg is short.

I feel he has a 12% impairment at present in the right leg due
to the area that has been skin grafted over exposed muscle,
the tendency to evert of his right ankle and the shortness of
his leg, needing a built up shoe which still does not prevent
him from limping slightly. The right knee seems to be within
normal limits. Eventually the plate which is still holding
the right femur will be removed and plate and pin will be
removed from the right leg. The new Grosse Kempf nail will
have to be removed from the right tibia so that he has at
least one and possibly two further sessions in the theatre to
remove and adjust these conditions. I feel when the pin and
plate are removed from the left leg there should be negligible
disability in his left leg. I feel however that due to the
disability in his right leg because of its shortening and the
skin grafted area in the lower part of the right leg as well
as the mobility of the right ankle he will have a permanent
12% disability in his right leg but he will undergo course of
expert rehabilitation. He seems an intelligent young man and
will probably be able to do a course to increase his
educational abilities."

22. After his discharge he sat the public service entrance examination, but was not successful. He does not consider himself suited to clerical work. He obtained a taxi driver's licence in August 1992 and began driving a taxi on a part time basis. He has continued to drive a taxi since then. He tires easily, and the pain in his leg is more severe when he is driving. He is able to cope with two shifts a week. That this is an appropriate level of physical activity for him is confirmed by the reports of the doctors who examined him for the defendant, doctors Tedder Taylor and Buckley.

23. In January 1992 Dr. Stubbs summarised his disability and prognosis as follows:

"I have based his disability assessment on the Comcare Guide.
His lower limb disabilities may be assessed thus. In his
right thigh he has some loss of internal rotation of the hip,
but has good union of his fracture. From Table 9.2 his
disability assessment would be 10%. The same applies to his
left thigh. In his right lower limb there is a loss of length
of more than 2.5 cms, a poor range of ankle movement, less
than half the normal range, with associated swelling, scarring
and anaesthesia of the skin, and poor bone formation after
grafting. The disability here is quite a deal higher and
probably represents a 25% whole body impairment. All these
together give a 45% disability. As a cross check I refer to
Table 9.3, which describes impairment after amputation. An
above knee amputation with a functional stump would give a 40%
whole body disability, so I think the level of impairment is
in rough agreement, given that the disabilities Mr Mayberry
has in getting about, his peculiar rolling gait, his general
problems with standing and so forth, very closely correspond
to an above knee amputation. I would much prefer this to the
functional assessment Table 9.5, which I think quite seriously
under-estimates his problems. I note that the Department of
Veterans' Affairs have assessed him as being more than 60%
disabled for pension entitlement.

There are two other matters that need to be considered in his
future. The first is the risk of early invalidity. He would
not need a lot to go wrong with his lower limbs for his
disability to rise substantially. With an 80% disability he
would be entitled to an invalid pension, so some further
problems, such as osteoarthritis setting in in either hip or
the ankle, would certainly bring things to this stage. I
would therefore think that allowance must be made for the
likelihood of late problems leading to early invalidity. I
would assess the prospects of him becoming invalided before
reaching age 65 to be in the region of 50%. I would think
that if problems were to develop with any of his joints
causing invalidity, they would declare themselves by age 45,
so I think that there is about a 50% prospect that he would
lose 20 years from his normal employment expectations.
The other problem that arises and one that is somewhat more
difficult to arrive to a quantitative figure is the
likelihood that osteomyelitis will flare up in his right leg.
Were it to do so, or were some fracture to develop in the
weakened bone of the right leg, he may well go on to a below
knee amputation. This should be included as a possible cause
for early invalidity, but I would think the likelihood of
these events supervening are appreciably less, say 10%."

24. Dr. Tooth, consultant orthopaedic surgeon, who examined the plaintiff on 14 July 1992, agreed with Dr. Stubbs that there is a 50% chance that he will be invalided before reaching the age of 65 years, and there is a 50% prospect that he will lose 10 to 20 years of his normal employment expectation.

25. His report also confirmed the possibility of developing degenerative change in the right knee, ankle and possibly hip, and a slightly increased chance of degenerative change in the left knee. He also mentioned the possibility that osteomyelitis in the right tibia could flare again, and might involve further periods in hospital and possibly surgery.

26. At the request of his solicitors, the plaintiff was examined by Dr. Saboisky, consultant psychiatrist, on 2 December 1992. He told the doctor about being devastated by having to leave the Navy, his depression during the early part of his treatment, his reaction to the scars and limp and occasional periods of continuing depression. Dr. Saboisky excluded post traumatic stress disorder, and expressed his diagnosis as an adjustment reaction with mixed features of depression and anxiety. He was not then clinically depressed. He noted the plaintiff's positive attitude, which also impressed me as the plaintiff gave his evidence. He thought it unlikely that the plaintiff would have any sustained serious psychological problem after the conclusion of this litigation.

27. Dr. James, plastic surgeon, describes the scars in his report of 15 January 1993. They are all permanent and constitute gross cosmetic deformity. The area of skin grafting on the right tibia is more susceptible to injury as it is firmly attached to bone with no subcutaneous tissue. He advised against any attempt to improve the scars.

28. In the opinion of Dr. Stubbs, it is more likely than not that the plaintiff will need a hip joint replacement, probably at about 45 years of age. That would probably wear significantly and need later surgical revision. Amputation of the lower limb is also a possibility, because of osteomyelitis of the tibia. The report of Dr. McLaren sets out the extensive procedures and rehabilitation involved in the provision of a prosthesis. He also recommended custom made footwear, to lessen the probability of degenerative changes in the hips and lumbar spine. The footwear and orthotics will need replacement on a 2 year basis for the rest of the plaintiff's life.

29. None of the doctors were required to attend for cross-examination. The only substantial area of contention in the case related to the plaintiff's claim for economic loss.

30. The plaintiff's injuries were grievous. He has already undergone nine operations, each with lengthy and painful periods of recovery. He will probably have to submit to more in middle and late age. He has been disabled from his chosen career, and from an active sports loving man has been reduced to one with significant continuing pain and disabilities.

31. He is only 27 years of age.

32. For his pain and suffering I award $125,000, of which $40,000 relates to the future. A substantially greater part of his pain was suffered in the years after the accident, so that I award $15,500 for interest on the past component of his general damages.

33. The medical expenses were paid by the Navy. They are agreed at $74,815. The reasonable cost of conversion of his car was $991. Past expenses are therefore $75,806.

34. The calculation of past loss of income in Exhibit L is based on the assumption that the plaintiff would have been promoted to Leading Seaman on 1 July 1992. The case for the defendant was that he would still have been only an able seaman.

35. Promotion to leading seaman is not automatic. To the date of the accident the plaintiff had not been motivated to obtain the necessary pre-requisites. He was not yet ready for the added responsibility. But I have no doubt that he had the necessary ability. He was engaged to be married, to a lady with dependent children. He had been in the Navy less than 4 years. The accident was 3 years before July 1992. I think it was quite on the cards, though not certain, that he would have been promoted at about the time assumed by the accountant.

36. On that assumption, the past earnings but for his injury, to 28 May 1995, would have been $82,309. His actual net earnings were $22,650. The difference is $59,659. Applying a slight discount for contingencies over a 6 year period, and for the possibility of a later promotion, I award $55,000 for past loss of income. Interest on half that sum in accordance with the practice direction is $21,971.

37. The reports tendered by both parties with respect to the claim for future economic loss were also based on a number of assumptions.

38. On one side of the equation, there must be estimated the present value of the plaintiff's future earnings in spite of his injuries. I do not think that the plaintiff's receipt of a pension will have the effect that he will not try to be as useful and as independent as possible. The Mercer report, Exhibit L, also assumes the statistical chances of early retirement that Dr. Stubbs referred to. I think that a sum of the order of $140,000 is reasonable, and the defendant's report suggests a figure that is of the same order.

39. The other side of the equation is the present value of his earnings had he not been injured. The plaintiff's report suggests three alternatives. The first is that the plaintiff would have been promoted to Petty Officer in July 1006, and to Chief Petty Officer in July 2000. The second assumes a promotion to Warrant Officer in July 2004, and the third a subsequent promotion to Lieutenant in July 2008. All three then assume that the plaintiff would have retired from the Navy at age 55, and would have obtained employment at a similar level until age 65.

40. At least the third alternative is based on assumptions that could only be described as heroic. The others could not be classed as highly probable, on the evidence.

41. This young man's naval career was cut short before he had a chance to demonstrate his ultimate potential. But what evidence there is does not support an inference that he was already embarked on a distinguished career. I think that it is likely that he would have remained in the service until 55, because the life suited him, and he was not really trained for anything else, nor likely to be. But progression beyond Leading Seaman was not demonstrated as a strong probability for him, no matter what the overall statistics might suggest. It would be a possibility that he could have become a Petty Officer after a number of terms of engagement, but the number of positions available for promotion thereafter make it most unlikely that he would have risen to Chief Petty Officer.

42. In each of the alternatives I also think it is unlikely that he would, between the ages of 55 and 65, have been able to earn at the same rate as just before his retirement.

43. The figures suggested in the reports therefore mark the outer limits of the type of sums to be considered.

44. The contingencies, and my lack of arithmetic skills, to say nothing of any actuarial competence, make the assessment very much a matter of discretionary judgment. It must be borne in mind that he is only 27, and had a relatively secure career path ahead of him.

45. After allowing for the value of his expected future earnings, I award $350,000 for loss of future income earning capacity.

46. A claim was made for loss of superannuation benefits. Depending on the assumptions made, the figures suggested in the reports range from $32,171 on the most favourable assumptions to $26,411 on the least favourable. Both reports seem to me to take into account, as I think the law requires them to do, the present value of the actual benefit to which he is entitled. I think it is probable that there would be a loss, in respect of which I award something less than the amount suggested in the Mercer report on alternative 1. I award $12,000 for loss of superannuation benefits.

47. The claim made pursuant to the principles in Griffiths v Kerkemeyer is, to my mind, modest, and I award $13,700 for that item.

48. I am satisfied that the department will not accept responsibility for the cost of future treatment. As counsel for the plaintiff conceded, the present day costs set out in the particulars must be discounted on account of payment in the future, and for the chance that they, or some of them, may not be necessary.

49. I think that the two hip replacement operations are highly probable. I allow $16,000 for the present value of their cost.

50. The cost of custom-made footwear is almost certain to be incurred. I allow $11,000 for that item.

51. The amputation of the lower limb is much less likely, though if it happens it will be the most expensive, with the need and cost of prostheses for the rest of the plaintiff's life. I think that $40,000 should be awarded against that contingency.

52. The total for future treatment expenses is therefore $67,000.

53. The total of those elements is as follows:

Pain and suffering 125,000
Interest 15,500
Past expenses 75,806
Past loss of income 55,000
Interest 21,971
Future income earning capacity 350,000
Loss of Superannuation 12,000
Griffiths v Kerkemeyer 13,700
Future treatment 67,000
735,977

54. As a global award, I think that $736,000 is a fair award as between the parties. I direct the entry of judgment for the plaintiff for $736,000.00.