Kenneth James Enright v Brian Windley [1995] ACTSC 84 (1 August 1995)

SUPREME COURT OF THE ACT

KENNETH JAMES ENRIGHT v. BRIAN WINDLEY
No. SC265 of 1993
Number of pages - 12
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Motor Vehicle Accident - Multiple fractures - Internal injuries - Psychological damage - Capacity to work - Capacity for retraining - No issue of principle.

HEARING

CANBERRA, 13-14 June 1995
1:8:1995

Counsel for the Plaintiff: Mr G. Stretton

Instructing Solicitors: Messrs Phelps Reid

Counsel for the Defendant: Mr G. Lunney

Instructing Solicitors: Mallesons Stephen Jaques

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $475,000.00.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 22 April 1991. Liability for the accident is not in issue.

2. The plaintiff was born on 13 April 1974. He lives with his fiancee and their two baby sons. From the time he left school at the end of Year 9 in 1988 up until the date of the accident, the plaintiff worked as a chicken processor and shop assistant in the family's chicken business, the Chic Chick. To carry out this work the plaintiff was required to stand for up to 13 hours per day, six days per week, while he carried out chicken boning and preparation of chicken cuts for sale over the shop counter. He was also required to assist in the loading of delivery vans and carrying out deliveries, tasks which involved bending and lifting. He was still living in the family home, receiving $150 per week in addition to full board and keep.

3. On 22 April 1991 the plaintiff was a passenger in a car driven by his brother which was involved in a head-on collision at the intersection of Tuggeranong Parkway and Hindmarsh Drive, Chifley, ACT, when a car driven by the defendant crossed to the wrong side of the road. He was wearing a seatbelt. The collision was violent. The door had to be cut from the car in order to release him. If he lost consciousness it was for only a short time, but he was confused and disoriented.

4. The plaintiff was taken by ambulance to Royal Canberra Hospital. He received multiple injuries in the accident, including fractures to the L3 and T9 vertebrae, a Grade II compound fracture of the right tibia and fibula, injury to the head involving fracture of the right zygomatico-maxillary complex with significant medial displacement and rupture and displacement of the right infra-orbital rim and disruption of the orbital floor, and multiple mesenteric bruising and mesenteric tear in the ileum with intra-abdominal bleeding. He has undergone a total of seven operative procedures during six operations, the most recent in January 1995.

5. Upon arrival at the hospital he was operated on by Dr Michael Gillespie, orthopaedic surgeon, who performed an open reduction and internal fixation of the right tibial fracture using a compression plate, and Dr Dennis Dyason, consultant surgeon, who performed an exploratory operation for the intra-abdominal bleeding. A tear in the mesentery of the small bowel was located and operated upon. His recovery from those injuries was routine and uncomplicated. He spent a short period in plaster. On review on 25 June 1991 the tibial fracture had solidly united and the range of ankle movement was satisfactory.

6. On 29 April 1991 Dr Bryan Ashman, orthopaedic surgeon, operated on his lower spine. He performed an L2-3 postero-lateral fusion with Knodt rods using bone harvested from the right iliac crest.

7. On 1 May 1991 Dr Peter Vickers, consultant oral and maxillo-facial surgeon, operated to repair the zygomatico-maxillary fracture by the insertion of plates and wires.

8. The plaintiff suffered severe pain during the recovery from each of those operations.

9. He was discharged from hospital on 10 May 1991. On review on 6 August 1991 Dr Ashman found the healing processes in the back to be proceeding satisfactorily. He suggested that the plaintiff could return to work.

10. The plaintiff was reviewed by Dr Vickers, who, in his report of 19 August 1991, found the fracture to the zygomatico-maxillary complex to be healing well. There had been no double vision, and Dr Vickers expected that any epiphora and blurred vision which might have occurred would improve of its own accord.

11. On 18 September 1991 he commenced employment with Greenbank Chicken at Fyshwick in a similar position to his previous job with Chic Chick. The terms of employment were that he would work Monday to Friday and Saturday mornings. However the plaintiff was unable to carry on in that job because of the pain and disabilities associated with his injuries. In particular the plaintiff reported experiencing severe pain in his back and in his lower right leg. He left Greenbank Chicken after only one week.

12. The plaintiff was again seen by Dr Gillespie on 24 September 1991, complaining of pain and giving way in his right leg, and mild backache. Examination of both areas was "utterly unremarkable". No treatment was recommended.

13. On 4 October 1991 the plaintiff commenced a series of eleven sessions with Mr Petroni, clinical psychologist, for treatment of sleep fragmentation and bad dreams, irritability, problems with communication and memory, and tenseness and fear when travelling as a passenger in a motor vehicle.

14. Following review of the plaintiff on 12 November 1991, Dr Ashman reported him to be experiencing occasional pain in the back while at work but otherwise well.

15. On 6 February 1992 Dr Ashman removed the Knodt rods and the plate in the right leg under general anaesthetic at John James Hospital.

16. There is some confusion in the evidence as to when the plaintiff returned to work at the Chic Chick. In cross-examination he thought it was several months after ceasing work with Greenbank Chicken. At any rate, when he recommenced his employment there he was initially working to his own timetable.

17. In March 1992 Mr Petroni carried out a neuropsychological assessment, in order to determine whether the plaintiff had suffered any brain lesion. He appeared to co-operate fully in the tests. Mr Petroni's impression of his pre-accident intellectual functioning was one of "good average", though the results suggested that he had inadequate general knowledge, vocabulary and social comprehension, the result of inadequate performance at school.

18. Mr Petroni's opinion was as follows:
"In my opinion Mr Enright has sustained a severe blow to the head

in the motor vehicle accident on 22nd April 1991 resulting in a
mild (approaching moderate) right hemisphere lesion probably in
the tempero-parietal region. As a consequence he may develop
problems of comprehension or order and sequence and therefore may
have difficulty dealing with temporal relationships and be unable
to make plans adequately.
Other areas he may have problems with are: written calculations,
mild vestibular and visuo-motor difficulties and visual scanning.
These difficulties clearly can affect his work capacity although it
is difficult to say to what extent, if they do manifest. On the
balance of probability his work efficiency and output could be
affected by up to 20 per cent.
His nightmares, fear of traffic and guardedness should resolve
within the next 18 months."

19. On 8 April 1992 Dr Dyason reviewed him. He was complaining of pain in the left upper quadrant of the abdomen. Dr Dyason recommended an operation.

20. On 28 April 1992 Dr Ashman reviewed him. He had been suffering pain in the lower thoracic region, without any precipitating cause. An x-ray revealed a previously undiagnosed fracture of T9 vertebra. Dr Ashman thought that his symptoms would settle over time, although he was then still unfit for work.

21. The defendant's insurer referred him to the Commonwealth Rehabilitation Service for assessment, which was carried out on 12, 24 and 25 June 1992. He demonstrated co-operative behaviour during the tests.

22. The assessment and recommendations were as follows:

"SAFETY: The client required a high level of education about safe
lifting practices and needed reminding to ensure continuance of
these practices. He did demonstrate a general awareness of safe
techniques and their importance. Although generally he paced
himself appropriately, occasionally he needed to be reminded of
the importance of this.
QUALITY OF MOVEMENT: Client has a jerky style of movement which
is probably habitual and is not significant. However, some
testing items were performed with uncoordinated movements. These
included the following: step ladder, hand co-ordination tests,
balance tests.
SIGNIFICANT ABILITIES: Mr Enright demonstrated high abilities in
sitting and standing tolerance, walking and stair climbing. His
hand grip strength is high.
He has moderate abilities in kneeling, crouching, forward bending
in sitting and standing, rotation in sitting. He can perform fine
motor activities although some movements are uncoordinated and
performed in ways that may be bio-mechanically unsafe.
In regard to the right lower limb the client has made a good
functional recovery.
SIGNIFICANT LIMITATIONS:
Work activities requiring a high level of balance will not be
suitable eg. working above ground level or on step ladders.
He is limited in his ability to perform upper limb work such as
moderate or heavy lifting work. Similarly he is significantly
limited in his ability to carry weights either in front or to the
side. His static push/pull capacity is reduced.
He is significantly limited in his ability to perform elevated
work, to crawl, to perform repetitive squats and in spinal
rotation in standing.

RECOMMENDATIONS:
1. A neuro-psychological report may be useful to provide more
information about the balance and co-ordination problems which
Mr Enright is experiencing.
2. Mr Enright should commence a strengthening exercise program
to -
(a) increase his capacity for upper extremity function, particularly
shoulder girdle function.
(b) increase his overall condition which is currently below normal.
3. When Mr Enright secures work, he should be observed performing
his work duties to ensure he is carrying out safe lifting practices
and may need education in improving some positional postures eg.
when performing fine motor functions."

23. In July 1992 he visited his brother in Adelaide. While there he suffered severe pain and cramps in the abdomen. He was admitted to Modbury Hospital on 18 July 1992 and treated for acute intestinal obstruction. A naso gastric tube was inserted, and he was fed intravenously for 4 days. He left hospital on 23 July.

24. When he returned to Canberra he consulted Dr Dyason, who on 24 September 1992 performed a laparoscopy to repair multiple adhesions to his bowel.

25. On 17 November 1992 he complained to Dr Ashman that his thoracic back pain was becoming more widespread. He was working 3 or 4 hours a day, and noticing the pain at the end of a shift. The range of motion in the lumbar spine was only 30% of normal. X-ray confirmed the fracture of T9, but Dr Ashman expected it to heal eventually, without surgical intervention.

26. The Commonwealth Rehabilitation Service ("CRS") carried out a workplace assessment at the Chic Chick on 16 November 1992. His ability to do the work appeared to be moderately reduced. He started a formal work trial on 23 November, in which his hours were to be extended to 5 hours a day, and it was hoped to extend them gradually to full time work. He co-operated in the trial, and kept a diary, which occasionally showed a severe exacerbation of pain and frequently a moderate level of exacerbation. The pain settled with rest or change of activity.

27. Dr Black referred him to Dr J.A. Ewing for neuropsychological assessment in November 1992. She reported that the plaintiff had not noticed any memory or cognitive changes, but had noticed changes in his temperament, becoming short-tempered and stubborn. He reported having had bad dreams in which he re-experienced the accident. However those dreams were now less frequent and had become less intense. Dr Ewing found the plaintiff to be suffering from a moderate Post Traumatic Stress Disorder, evidenced by his nervousness while travelling in a motor vehicle and the changes to his temperament. She found no evidence of impairment to his memory.

28. Dr Ewing summarised her findings:

"It is possible that these neuropsychological deficits reflect mild
diffuse brain dysfunction, as a result of his head injury, in which
case his increased irritability and poor temper control may also be
seen as organic signs. However, given the strong evidence suggesting
a Post Traumatic Stress Disorder, I think it is more likely that his
psychological state underlies, or at least exaggerates, his
information processing, concentration and impulse control
difficulties. The relationship of his chronic pain to all of these
symptoms and signs must also be considered as a significant factor."

29. CRS referred him for psychological assessment by Alison Knight, clinical psychologist, who saw him on 14 December 1992. She reported:

"Mr Enright presents with a number of symptoms consistent with
Post-traumatic Stress Disorder (DSM-IIIR criteria attached). His
low level of avoidance behaviour however, somewhat restricts
diagnosis of that condition. His reported experience is consistent
with a heightened level of anxiety characterised by increased
arousal, autonomic hyperactivity and motor tension. By his report,
the accident is apparently continuing to effect Mr Enright in both
his current driving behaviour and via his persistent recollections
of the event.
RECOMMENDATIONS:
1. Mr Enright may benefit from assistance with the management of his
anxiety, in particular from a program that involved debriefing from
the accident, and systematic desensitisation to driving. He may also
benefit from training in progressive muscle relaxation.
2. In conjunction with (1) Mr Enright may benefit from an assessment
regarding the need for Advanced Driver Training."

30. Dr Peter Brown, plastic surgeon, examined him on 1 December 1992. His findings and prognosis were as follows:

"CLINICAL EXAMINATION
The following scarring is present resulting from his injury and
treatment of these injuries.
1. In the skin of the upper abdomen there is a vertical midline
linear scar measuring 6cms in length extending between the ziphi
sternum and the umbilicus. This scar resulted from laparotomy.
In the skin below each costal margin there is a 1cm transversely
orientated scar on the right side and on the left a 1.5cm long
linear scar. In addition there is a transverse linear scar to the
right of the umbilicus. These three scars resulted from the
laparoscopy procedure.
2. In the skin at the junction of the right lower eyelid and cheek
there is a transversely orientated 1cm long scar. Underlying this
scar there is some irregularity of the infra-orbital margin at the
fracture site. The right zygoma has united in normal alignment.
3. In the skin of the midline of the lower back there is a 15cm
long vertically orientated linear scar resulting from internal
fixation of his lumbar fracture.
4. In the skin overlying the right ilium posteriorly there is an
obliquely orientated linear scar 8cms in length resulting from
exposure of the iliac bone for the purpose of bone grafting.
5. In the skin of the right lower leg overlying the tibia in its
mid third there is an 18cm long linear scar measuring up to
1.5cm in breadth.
The scar is white in colour but not directly adherent to underlying
tibia. The scar is stable and there is no evidence of ulceration at
the time of examination.

PROGNOSIS
All scars are in the process of resolution. There is still some mild
pinkness due to hyperaemia but there is no residual scar
hypertrophy.
The scars will eventually become white in colour and will be
permanent causing him some cosmetic disability.
The most conspicuous scars are those situated in the lower back,
upper abdomen and right lower leg.
In my opinion surgical revision of these scars is unlikely to
improve there (sic) final appearance and I recommend that they be
accepted in their present form."

31. He obtained a job with Jamison Newsagency, working on a paper run, commencing on 1 January 1993. This employment was terminated on 15 February 1993, following the plaintiff's hospitalisation with abdominal pain.

32. From 1 April 1993 until 15 June 1993 the plaintiff took over the running of the Chic Chick. The plaintiff's parents handed over the business in the hope it would be something which the plaintiff could do, taking his physical limitations into account, thereby providing him with a stable future. Unfortunately the plaintiff proved himself not up to the task of managing the business, which rapidly lost money. The plaintiff's father came back into the business to recover the losses incurred by the plaintiff, before finally closing it altogether.

33. On 18 May 1993 Dr Black reported to the insurer that the plaintiff's principal disability was of continuing pain, which rehabilitation could not alleviate. He would have to learn to live with it.

34. On 20 July 1993, towards midnight, he presented at Calvary Hospital with pain in the back and numbness in both feet and the right leg. A CT scan was performed, which did not disclose anything significant.

35. He again tried chicken boning at a shop in the Belconnen Mall, but the pain in his back and leg forced him to give it up after about a week.

36. The plaintiff commenced casual employment as a kitchen hand at the Canberra Motor Village, where his father is a chef, on 29 September 1993. That employment lasted approximately 10 weeks, with the plaintiff reporting difficulty with the standing and lifting involved in the job. He father gave evidence about his difficulties in doing the job. Despite all the help he could give as his supervisor, he felt bound in duty to put him off for safety reasons.

37. In late 1993 the plaintiff obtained a truck driver's licence in the hope that he would be able to find employment. It was only after obtaining his licence that he discovered that a large part of a truck driver's work involves loading and unloading, tasks which he is unable to perform as a result of his injuries. He has never found any employment in this area.

38. He attempted to work in a car yard as a detailer, but Dr Black gave him a certificate for 3 or 4 days off in October 1993. He gave up that job.

39. The plaintiff next found employment in February 1994, through the CES, at Bridgewater Trading and Engineering Pty Limited at Fyshwick, manufacturing fire doors. This position, which involved a lot of heavy lifting which caused severe back pain, lasted only a matter of days.

40. In his report of 2 March 1994, Dr Ashman reported the plaintiff to be suffering "from regular pain in his thoracic and lumbar spine related to the site of his previous injury and this pain is consistent with the residual effects of the injury itself and his subsequent surgery." Despite this continuing pain Dr Ashman noted an improvement since earlier examinations and predicted it would subside gradually, although it might be in the area of five years before this occurred. While he assessed the plaintiff as being fit to work, he advised against any occupation which involved repetitive bending or lifting.

41. In his report of 8 March 1994, Dr Gillespie reported that the fracture to the plaintiff's right leg had solidly healed, with both knee and ankle having full range of movement. A small muscle hernia remained along the anterior border of the tibia, which ached from time to time, with occasional swelling to the lower end of the fracture. Dr Gillespie concluded that all signs were present for a full recovery to the right leg with no long term sequelae.

42. In March 1994, at the request of the insurer, CRS again became involved in attempts at his rehabilitation. There were difficulties involved in arranging suitable appointments. His child was born at the beginning of April, and had some illness. He changed his address. Despite many attempts to make contact, CRS eventually decided it could not assist further.

43. The insurer in this case has taken considerable trouble and expended a deal of money in its attempts to help the plaintiff get back to work.

44. Of course, self interest is involved, but it is enlightened self interest, and to be commended. The plaintiff was criticised for his failure to co-operate with this latest attempt, and I can understand the insurer's reaction.

45. However, the extensive earlier attempts demonstrate that the plaintiff was willing to co-operate, and I accept his evidence that he was not deliberately trying to avoid assistance. There is no evidence that persuades me that, had he kept his appointments with CRS, he would have been any more fit for work than he was, or that he would have found more work than he did.

46. A laparotomy, again by Dr Dyason, was performed on 25 January 1995 to relieve bowel obstruction by division of adhesions. This followed four admissions to Calvary Hospital between February and November 1994 for abdominal pain, at which times he received the same conservative treatment as administered by Dr Cox in Adelaide in 1992. In his report of 8 June 1995 Dr Dyason gave the opinion that the plaintiff would experience residual adhesions in the peritoneal cavity. He could not predict whether these adhesions will cause an obstruction requiring further surgery, but considered it as being possible.

47. The plaintiff was examined for the defendant by Dr James Athanasou, psychologist and consultant in vocational guidance, on 18 March 1995. He was of the opinion that the plaintiff's intelligence and educational background may present some limitation on his ability to undertake formal re-training courses, such as at a technical college, although short vocational courses may be appropriate.

48. Dr Athanasou identified a range of semi-sedentary positions which would be appropriate for the plaintiff to pursue. While he was largely optimistic regarding the plaintiff's potential for retraining and re-employment, such a prognosis is contingent on the availability of suitable training courses and employment opportunities.

49. On 30 March 1995 the plaintiff underwent psychological testing by Dr Wendy Roberts, clinical psychologist, for the defendant. Her results with regard to the plaintiff's intelligence were largely consistent with those of Mr Petroni and Dr Ewing. She questioned the diagnosis of a Post Traumatic Stress Disorder, preferring the term "reaction" to that of "disorder" and found that the symptoms which led to that diagnosis to had all but resolved with no further need for psychological treatment.

50. In her report of 8 April 1995, in which her assessment of 30 March 1995 was detailed, Dr Roberts reached the following conclusion:

"Current assessment indicates that he is of low average to average
intelligence, with memory skills to match or better and I can find
no evidence of any specific accident-related cognitive impairment.
In my opinion, his scored on the Vocabulary and Digit Symbol
subtests of the WAIS-R are unrelated to the accident, especially
in light of his school reports. Also, as it seems that he did not
suffer any loss of consciousness or any appreciable period of
amnesia, no slowing or verbal expression problems attributable to
head injury would be expected. On assessment, there was no
evidence of any impairment of concentration or attention, nor of
planning and organising, nor of ability to learn nor verbal
learning nor to attend and track. I agree with Dr Ewing that Mr
Enright had pre-existing learning problems. This is further
reinforced by examination of his school reports, which indicate
that he had concentration problems, lacked effort, did not attend
some classes, performed poorly and worked slowly."

51. Dr Black summarised his present condition, in a report following an examination on 23 May 1995, as follows:

"His current complaints are chronic low back pain at the site of his
crushed vertebra. This pain is significantly worse when the weather
is cold. He also complains of low grade chronic pain in the right
tibia, the site of his previous fracture and this again is worse in
the cold weather. Since January he has had no further admissions
for bowel obstruction, however he does complain of a constant low
level of pain in the upper abdomen at the site of his previous
scar.
Kenneth also complains of chronic anger at his situation and finds
he is unable to sleep at night time, often being awake until 3am.
On examination there were no different physical findings to those
previously documented, but for the purposes of this report he has
a large abdominal scar slightly to the right of the midline in his
upper abdomen with some tenderness of the underlying abdominal
musculature. Examination of his back reveals tenderness of the
several vertebrae underneath the scar and movements of his spine
were mildly restricted in all directions. Examination of his leg
revealed some tenderness over the lower end of the scar at the
site of his fracture, an area where there is also mild swelling.
IN SUMMARY Ken Enright suffers from chronic low back pain at the
site of his vertebral fracture. He also suffers from chronic pain
in his lower leg at the site of his fractured tibia and fibula. He
also suffers from chronic upper abdominal pain which is largely
related to the scar and subsequent healing of his abdominal wall.
It is now four years since his accident and I consider the above
symptoms to be permanent. I feel that he will probably develop
degenerative arthritis in his spine at the site of the injury and
it is certainly quite possible he will have further obstructive
problems in his intestine due to a reoccurrence of the adhesions.
His current level of disability make it difficult for him to carry
out any heavy manual labour, however I feel he is presently able
to carry out light work of a more sedentary nature which
unfortunately because of his poor education is not readily
available to him."

52. Dr Roberts was the only medical expert who was required to attend to give oral evidence. I am not persuaded that the plaintiff suffered any organic brain damage. The evidence from the psychologists who saw him at the relevant times, Mr Petroni and Alison Knight, does indicate that for a considerable period he suffered from a post traumatic stress disorder, which had been considerably alleviated by treatment at the time Dr Roberts examined him.

53. The accident did not cause any learning problems. He had a limited capacity for academic pursuits before it. But I accept the evidence of his father and his partner that the accident did cause a change for the worse in his temper and his memory.

54. The plaintiff was involved in a violent accident. Over a period of 4 years he has undergone 6 major operations, and has been admitted to hospital for treatment on 3 or more other occasions. The skeletal damage has been repaired as well as might be hoped for, but he is left with constant pain in the low back and lower leg. In the abdomen there is chronic pain, with a possible need for further procedures. He has extensive, permanent, visible scarring, which causes some discomfort and embarrasses him.

55. Before the accident he was fit enough for any activity. He is now restricted, and can not do anything that involves heavy lifting or constant use of his back. He is able to do only light, sedentary, work, for which his intellectual capacity makes him generally unsuitable.

56. He is only 21 years of age.

57. For his pain and suffering I award $125,000, of which $35,000 relates to the future. The greater part of his pain in the past was suffered during the first year or so after the accident. I award $11,000 for interest on that past component of general damages.

58. I am satisfied that the expenses of a special bed and treatment by Mr Petroni were reasonable. The out of pocket expenses were therefore $47,347. The defendant will be entitled to credit for so much of those as have been paid by the insurer, and no claim for interest is made in respect of them.

59. His capacity to earn but for the accident is claimed at $360 a week, and is not challenged. I find that he has attempted as much as he could to find suitable work, and that it has been his pain that has prevented him from finding or remaining in it. His potential earnings to the date of judgment are $80,383. His actual earnings were $7,216. His past loss of income is therefore $72,167. Half the interest on that sum in accordance with the practice direction is $19,396.

60. The particulars claim a total loss of income earning capacity for the future, which would give an undiscounted capital sum of $462,269. I am not persuaded that the plaintiff is entitled to anything like that sum.

61. He does have a capacity to do light work. His educational standard makes if difficult to find, and difficult to devise a program that involves retraining. I do not think that he is at all held back by any lack of motivation.

62. What restricts him is not so much lack of muscular strength or restriction of movement. It is pain. That is permanent. It is not appropriate therefore to adopt the approach suggested by the defendant, that of allowing a closed period for retraining. I think that for the rest of his life he will get work if he does, periodically only, and that there will always be periods when he will be out of work. The award therefore becomes one for the exercise of a discretionary judgment. The period involved is 44 years. I think that an award of $200,000 for future economic loss is called for.

63. I award $10,000 as a discretionary sum for the cost of future medication and to provide for the contingency of future treatment.

64. The total award is made up as follows:

Pain and suffering $125,000
Interest 11,000
Out of pocket expenses 47,347
Past loss of income 72,167
Interest 19,396
Future loss of income 200,000
Future treatment 10,000
$474,910

65. That sum, rounded up, seems to me appropriate as a global figure. I direct the entry of judgment for the plaintiff for $475,000.00.