Elio Giacomo Pegorer v Lisa Pegorer [1996] ACTSC 90 (23 August 1996)

SUPREME COURT OF THE ACT

ELIO GIACOMO PEGORER v. LISA PEGORER
No. SC339 of 1994
Number of pages - 9
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER T. CONNOLLY

CATCHWORDS

Negligence - Whether Plaintiff was in Fact a Passenger in Motor Vehicle Driven by the Defendant at the Time of the Accident.

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Injury to Right Knee - Complications of Post Operative Infection - Whether Injury Causally Connected to Accident - No Issue of Principle.

Livingstone v Rawyards Coal Co (1880) 5 App.Cas.25 (HL)
Lee Transport Co v Watson [1940] HCA 27; (1940) 64 CLR 1

HEARING

CANBERRA, 13 August 1996
23:8:1996

Counsel for the Plaintiff: Mr R. Mildren

Instructing Solicitors: Barker and Barker

Counsel for the Defendant: Mr C. Leahy

Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $83,817.32.
2. The defendant pay the plaintiff's costs.

DECISION

MASTER T. CONNOLLY This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on the October long weekend of 1991 when the plaintiff, who was then a 16 year old student, claims that he injured his knee whilst a passenger in a small hatchback sedan being driven by his sister. He claims that this injury, which at the time he considered to be merely a minor bruise, caused a part of his knee to come loose in early 1992, which required surgical intervention. What should have been a simple procedure to remove a bone fragment of the knee became complicated by post operative infection, and the plaintiff's condition deteriorated. He now suffers from a significant problem with his knee which represents a real and ongoing limitation to him.

2. The claim is contested on two fronts. The defendant denies that the plaintiff was involved in the accident at all, and further denies that, if he did suffer a minor injury to his knee during the accident, this could have been causally connected to the loose body which required surgical intervention to the knee in 1992. It is conceded that, if the accident of October 1991 can be linked to the loose body in the knee and the original surgical intervention to the requisite standard of proof, the complications caused by post operative infection are attributable to the tortfeasor. This was of course a most proper concession.

3. The motor vehicle accident occurred when the plaintiff's then 20 year old sister, driving her mother's Ford Laser Hatchback, collided with steel poles forming a centre divide in the stretch of roadway leading down from the Molonglo Mall at Fyshwick to the roundabout on Wollongong Street. There seems to be no contest that this accident occurred, and that it was an impact of some force. The defendant tendered an insurance claim form relating to the damage to the vehicle which had been filled in by the defendant. This showed that the damage to the vehicle was in the order of $4,400, which is consistent with the evidence given by the plaintiff that the accident occurred when the vehicle was travelling at about 30 to 40 kilometres per hour, but that the force of the impact sheared the driver's front wheel from the vehicle, causing considerable damage and loss of gearbox oil. The form asks whether there were any injuries or whether there were any witnesses. Both sections are left blank. While the defendant was present at Court on the day of the hearing she was not called. I am able to infer from this that her evidence as to why these parts of the form were not completed would not have been of assistance to the case of the defendant insurer.

4. The plaintiff gave evidence in an impressive manner. His mother and father also gave evidence. They all said that on the day of the accident the plaintiff and his sister left their home in Queanbeyan to drive to the family small business in the Molonglo Mall to collect some wire which the father required. After the accident the plaintiff's sister called her parents, and they both attended the accident. Both swore to having seen the plaintiff at the scene of the accident, and both swore to having noticed a fairly minor cut on the defendant's knee. I have no difficulty in making a finding to the requisite standard of proof that the plaintiff was present as a passenger in his sister's vehicle when the vehicle came into collision with steel dividing poles, and that he sustained some form of injury to his knee in this impact.

5. The plaintiff's evidence is that his right knee struck the dashboard as he slid forward on impact. It was put to him in cross examination that his seat belt, which he said he was wearing, would prevent such impact. The plaintiff is a tall young man. In the absence of any technical evidence to support the defendant's claim that the seat belt would prevent such an impact, I have no difficulty in accepting as true the plaintiff's statements.

6. When the accident was reported to police, and when the property insurance claim was made, there was no record of injury. Again, the defendant was not called herself, although she was present outside the court, and some inference can be drawn from this. I accept as entirely credible the plaintiff's statement that he considered this to be only a superficial cut and bruise. His evidence was that he had some difficulty in standing immediately after the impact, and that the knee was stiff and sore for some days after the accident. He noticed bruising over the next few days, and was careful with his leg, but by the following week he felt that it had entirely resolved itself.

7. The plaintiff was a fit and active 16 year old at the time, who played competitive soccer and also games of basketball and soccer and the like at lunchtimes with his school friends. It is entirely credible for such an individual to say, as he did, that he felt that this was only a minor knock, and as a result he neither reported the injury nor sought medical advice.

8. The plaintiff was a student in year 11 at St Edmunds College in Narrabundah at the time of the accident. I am satisfied on his evidence that he was a successful student. He said that the motor vehicle accident, which occurred on the Monday of the October long weekend, happened at a time when his competitive soccer had concluded, and when he was generally dropping off his sporting and recreational activities with a view to concentrating on his exams. This again is entirely credible, and he gave evidence that he did very well in his year 11 results, so that projections from these results would have had him finishing his year 12 with a Tertiary Entrance Score of 92. While this is only a projection it does indicate a very strong result for his end of year 11, which is entirely consistent with his claim that his activities at school during the period after the October long weekend were lighter than normal, although he said that he still played the odd game of lunchtime soccer, basketball or social tennis. After the first week after the accident he felt no restrictions from his knee in engaging in these activities.

9. When the school term finished the plaintiff embarked, in the company of his sisters, for a European holiday. This lasted until his return to Australia in late January, just before he began his year 12 studies. He said that he suffered no discomfort during the long periods in aircraft, or while travelling about Europe by train and bus, or while walking about sightseeing.

10. On his return to Australia and to school he says that he started to get more serious about fitness, and commenced cycling. This is entirely credible. The plaintiff's main sport was soccer, and his ambition was to complete a course in biomechanics and sports coaching at the University of Canberra and develop a career in sports coaching. He said that he had in his senior years at school given up other competitive sports to focus on soccer, and by year 11 he was indeed playing in both the First and Second Elevens. By making the First Eleven while still not in his final year I must conclude that he was a player of some skill, and that he devoted considerable energies to training.

11. It is undoubtedly a weakness in the plaintiff's case that his knee was asymptomatic from the date of the accident until he first presented for medical assistance in February 1992. If I accept the plaintiff's evidence, which I do, that he was less physically active in the period after the October long weekend because of his exams, and that while he was travelling he was not engaging in sporting activities, but that he started to train heavily on his return to school in February 1992 in order to get his fitness levels up for the soccer season which would begin competitively in the second term, this satisfactorily explains why an impact in October would only become symptomatic in February. This is consistent with the medical evidence.

12. The plaintiff says that he had by this stage put the accident out of his mind, and that when he started to develop stiffness and soreness in his knees while cycling, and then had an incident when his knee gave way during a lunchtime soccer game, he became concerned. He says that there was a family history of arthritis, and this was his first concern. On advice from his physical education teacher he consulted Dr Robert Still, a sports physician who conducts the Canberra Sports Medicine Centre, on 20 February 1992. Dr Still's report of 30 June 1993 sets out what then occurred:

"Mr Pegorer initially presented on 20 February 1992 complaining of
bilateral knee problems with the right knee mainly effected. He
has subsequently not complained about his left knee at all. His
complaints on presentation were of weakness and buckling of the
right knee, particularly with patello-femoral loading, swelling of
the right knee in the past week and of 'something being out of
place' when kicking a ball in February 1992 . This latter episode
had resulted in a 'clunk' and inability to straighten the knee for
two minutes. Examination revealed a moderate effusion of the right
knee, some discomfort with medial McMurray's test and was
otherwise normal. Rheumatological investigations were organised
and were normal. X-ray was normal apart from some calcification
at the medial aspect probably in the medial ligament.

He was reviewed on 27 February 1992 when he advised that he had
experienced several episodes of a lump appearing and disappearing
at the supero-lateral aspect of the knee and had been experiencing
intermittent sharp pain in the knee. I diagnosed a radio-lucent
body of the right knee and advised arthroscopy which was
subsequently performed on 20 March 1992. At arthroscopy, a
chondral defect of the medial facet of the patella of
approximately 1.0 cm in diameter was noted but a thorough search
of all compartments of the knee failed to locate the loose body.

The loose body reappeared from its hiding place approximately two
days post-operatively and so a further arthroscopy was scheduled
on 3 April 1992 when the loose body was located in the politeal
recess and was removed through a postero-lateral puncture."

13. This would in the normal case have been the end of the story and would, if the injury was attributable to the tortfeasor, have resulted in a full recovery, and quite modest general damages, even allowing for the fact that this plaintiff had to undergo two arthroscopies, both under general anaesthetic as a day patient, before the matter was resolved. But complications developed from this point, which I will address later.

14. It is clear that the plaintiff did not refer to the motor vehicle accident in discussions with Dr Still at this time. The first time this was raised seems to have been in a letter from the plaintiff's solicitors which prompted Dr Still's June 1993 report. He said:

"Unfortunately, I have no note of him being involved in a motor
vehicle accident as described by you. I would, however, advise
that a chondral injury of the medial facet of the patella
associated with the formation of a loose body could very easily
result from an anterior impact to the patella such as a dash board
injury as you mention in your letter. The development of a loose
body several months after the accident would also be entirely
consistent with this."

15. This opinion is confirmed by a report from Dr Scott, an occupational physician, in his medico legal report to the plaintiff's solicitors of 29 June 1996.

16. Dr Still was cross examined on the link between the October accident and the later problems to the plaintiff's knee. It was put to him that after "about a week" the plaintiff returned to his normal physical activities, which

"...included cycling, included occasionally running, included
an occasional game of tennis - by that I mean, say, once a
fortnight."

He responded:

"I don't think the story or the scenario that you're providing
to me rules out the motor vehicle accident causing the problem",

although he later acknowledged that,

"If there was no pain at all a week after the accident and there
was no pain or symptoms at all for the next few months I would say
that it's unlikely the motor vehicle accident caused it."

In re examination the plaintiff's activities between the accident and February were put again to the Doctor, emphasising the plaintiff's evidence that he was less active in this period because of his forthcoming exams. Dr Still said this was compatible with the motor vehicle accident as the cause of his problems.

17. The lack of complaint between the immediate aftermath of the accident and presentation in February is a weakness in the plaintiff's case. If I found that the plaintiff continued at his normal activity levels, playing regular competitive sport, I would be inclined to the view that the accident did not cause the later injury. But I accept the evidence of the plaintiff that his activities from October to December were reduced. As he said in cross examination,

"It was approaching exam time so I would have been tapering off."

On this basis, Dr Still does connect the accident with the injury, and I am satisfied that this is appropriate.

18. I am confirmed in this view by the report of Dr Cairns of 30 November 1994 to the defendant's solicitors, which was tendered as part of the plaintiff's case. Dr Cairns describes the injury as claimed in the motor vehicle accident, and then says:

"Injury was not such as to cause him to attend hospital, and the
injury healed without complication over the ensuing 4 months. In
that time he had enjoyed an overseas holiday, and returned home
without any symptoms related to his right knee."

19. Dr Cairns was not called, but Counsel for the defendant urged that I should read the phrase "the injury healed without complication over the ensuing 4 months" to mean that Dr Cairns assumed ongoing symptoms from the time of the accident gradually declining to resolution in 4 months. I am unable to accept this. It is inconsistent with his next sentence, which clearly indicates that he was aware that the plaintiff had enjoyed a symptom free overseas trip from December 1991 to the end of January 1992. It is also hard to imagine that the plaintiff would have given a different history to Dr Cairns than he has given to date. Indeed, if the plaintiff had given a history to Dr Cairns that indicated ongoing difficulties after the accident, which would contradict his sworn evidence, I am entitled to assume that Dr Cairns would have been called or his notes produced.

20. Dr Cairns, in preparing his medico legal report for the defendant, accepts totally that this plaintiff's current problems are related to the motor vehicle accident. He is a very experienced practitioner whose reports are regularly before this Court. He says of this plaintiff

"Examination shows the claimant to be a pleasant young man
presenting his history in a reasonable and forthright manner."

He concludes:

"His ongoing complaints are fair and reasonable and consistent
with the complication suffered as a result of the surgery
necessitated by the knee injury sustained in the motor vehicle
accident of 7 October 1991."

In his later report to the defendant's solicitors of 16 May 1996 Dr Cairns confirms his earlier reports and says nothing that would cast doubt on the causation of this injury.

21. I find liability established on the balance of probabilities. I now turn to the question of damages.

22. The role of the court in assessing damages is of course to find a quantum that will

"as nearly as possible get at that sum of money which will put the
party who has been injured, or who has suffered, in the same
position as he would have been in if he had not sustained the
wrong for which he is now getting his compensation"

(per Lord Blackburn, Livingstone v Rawyards Coal Co (1880) 5 App.Cas.25 (HL)) although as Dixon J has observed,

"No doubt it is right to remember that the purpose of damages for
personal injuries is not to give a perfect compensation in money
for physical suffering. Bodily injury and pain and suffering are
not the subject of commercial dealing and cannot be calculated
like some other forms of damages in terms of money"

(Lee Transport Co v Watson [1940] HCA 27; (1940) 64 CLR 1 at 13).

23. In assessing general damages I must look, not only to the initial injury and the two procedures leading to the eventual removal of the loose body from his knee, but to the complications which followed. What happened after this procedure is set out in Dr Cairn's report of 30 November 1994. He sets out the details of the two arthroscopies, and continues:

"However, this procedure was complicated by the development of
post operative infection and septic arthritis within the right
knee for which he required referral to Dr Coyle, Orthopaedic
Surgeon, who admitted Elio to Woden Valley Hospital and performed
lavage arthroscopically and commenced him on antibiotic therapy.
Once the infection had been brought under control, however, he had
ongoing and significant problems with his right knee.

The knee remained very stiff, with muscle weakness and loss of
power, and significant swelling. Despite physiotherapy and serial
cast treatment, there was no significant improvement, and he was
referred by Dr Still to Dr L Pinczewski in Sydney. In April 1993
he underwent a further arthroscopic procedure at which adhesions
were divided, and the knee was manipulated, after which he
returned to physiotherapy."

Dr Cairns concluded:

"In summary, this 19 year old man has suffered the misfortune
to develop an infection following arthroscopic examination of his
right knee over 2 1/2 years ago, and has already developed the
clinical and radiological signs associated with post infection
osteoarthritis. This is a significant disability in such a young
man, and will be the source of ongoing disability which will
progressively increase with the passage of time, and which will
initially require medical and physiotherapeutic treatment, but
ultimately will lead to the necessity for either knee arthrodesis,
an operation which most people decline in these modern times, in
favour of a total knee replacement arthroplasty. This prospect is
of no little concern in this young man who is physically healthy
and strong. His ongoing complaints are fair and reasonable and
consistent with the complication suffered as a result of the
surgery necessitated by the knee injury sustained in the motor
vehicle accident of 7 October 1991."

24. Despite the complications from surgery and the ongoing physiotherapy the plaintiff completed his year 12 in 1992. He did well, with a Tertiary Entrance Score of 85, but not as well as his year 11 results would have suggested. He puts this down, quite reasonably, to the considerable disruption caused by his condition. Nevertheless his good result was sufficient to gain him university entrance to what was always his first choice - the University of Canberra course in sports and biomechanics which he hoped would lead to a career in coaching. He commenced his university studies in 1993, and obtained distinctions and credits in his first year.

25. He said that, despite doing very well academically, he was aware that his disability was a serious barrier to this career. He said that a coach must be able to demonstrate actions and movements, which he could not now do. Although his Sydney doctor originally thought that he could continue, the plaintiff decided, on medical advice, to discontinue this course.

26. He worked in the family business in 1994, and enrolled in the Bachelor of Commerce program at the University of Canberra, in 1995, hoping to develop a career in the banking or finance sector. He has done well in this course, and I am sure, from the way he presents, that he will eventually do well in this field.

27. Counsel for the plaintiff acknowledged, in my view correctly, that it is in all events likely that this change will, in economic terms, be to the plaintiff's long term benefit, a career in banking and finance with a Commerce degree being likely to be both more stable and more remunerative than sports coaching.

28. But the plaintiff gave evidence, which I accept, that this was a great disappointment to him. He can no longer play soccer. Dr Scott says in his report:

"Soccer was very much part of his life. He would train regularly,
and play 2 matches each weekend. This is not now possible. At most
he may have an occasional social 'fun game'. He could not bear to
watch matches, being unable to play. This has all made him very
depressed."

29. While there is no evidence of clinical depression, this is, in Dr Cairns' words, "a significant disability in such a young man", and must sound in general damages to elevate this well beyond a simple knee injury resolved by arthroscopy. In respect of general damages, I award $30,000, $20,000 for past loss resulting in interest of $1,951.78.

30. The plaintiff had worked part time as a student both in his parents' business and in other businesses. While he has continued with the family business, where he says he can take breaks when standing causes problems for his knee, he said that he has had to give up on his second job in about October 1994. This has been accepted by Dr Cairns in his report to the defendant. The plaintiff makes a claim under this head for a loss based on $5,000 per year for his student years of 1995, 1996 and 1997. I find this to be reasonable and I award $15,000 as a discretionary sum inclusive of any interest both for his past loss and until he graduates at the end of next year.

31. The plaintiff also claims a buffer in respect of future economic loss. The plaintiff is a pleasant and clearly intelligent young man, doing well in his commerce degree, with plans to work in banking and finance. His disability will be of no impact in this career, and I am sure that he will do well. But it remains true that he would be precluded by his injury from a range of jobs in the open labour market, and for this a buffer, although of modest proportions, is appropriate. I award $10,000, resulting in a total award for economic loss of $25,000.

32. The plaintiff and his mother both gave evidence that the plaintiff was driven to and from his many physiotherapy sessions and medical procedures by either his mother or his sister. This has been particularised as a Griffiths v Kerkemeyer claim for $12,709.20. I am satisfied that some such assistance was provided, but I am not satisfied that the plaintiff needed attendance at all routine appointments in Canberra. I award $5,000 as a discretionary sum to cover this head of damages.

33. Out of pocket expenses were agreed as claimed at $15,865.54.

34. There is evidence from both the plaintiff's doctors and Dr Cairns that it is highly probable that the plaintiff will require knee replacement surgery in the future as well as some physiotherapy. I award $6,000 under this head.

35. This amounts to a global award of $83,817.32, which seems to be appropriate in all the circumstances, which I award with costs.