Philp v Australian Mutual Provident Society [1999] ACTSC 12 (26 February 1999)

Last Updated: 7 October 1999

Philp v Australian Mutual Provident Society [1999] ACTSC 12

(26 February 1999)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Plaintiff slipped and fell on tiled footpath - Injury to knee - Permanent ongoing disability - No issue of principle.

No. SC 395 of 1996

Coram: Master T Connolly

Supreme Court of the ACT

Date: 26 February 1999

IN THE SUPREME COURT OF THE )

) No. SC 395 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: REGINALD JOHN PHILP

Plaintiff

AND: AUSTRALIAN MUTUAL

PROVIDENT SOCIETY

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 26 February 1999

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $51,363.40.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising from an incident on 26 May 1995 when the plaintiff slipped and fell on ceramic tiles on the footpath of a building in Canberra owned by the defendants. Liability was admitted, and the matter proceeded before me by way of an assessment of damages only.

2. The plaintiff was born in September 1942 and is a public servant engaged in clerical duties with the Australian Federal Police. On the morning of the accident he came to work from his suburban Canberra home by bus, and was taking a direct route from the City bus interchange to the headquarters building of the Australian Federal Police. As he walked along Mort Street he felt his left leg slip on the tiled footpath, and he fell in a scissor like manner, striking his left knee on the ground.

3. He immediately felt pain in his knee, and he noticed that his kneecap seemed to have moved position. He waited on the ground for a minute or so before being helped up by passers by and assisted to a seat in a nearby bank, where he waited until an ambulance attended. He was taken by ambulance to the Calvary Hospital.

4. He was examined in the emergency department of the hospital. A report from Calvary Hospital states that

"...on examination, swelling was noted of the medial aspect of his left knee and he was noted to be tender over this region. Patella margins were noted to be not significantly tender. Extension of his left knee was normal, however flexion of his left knee was reduced to 30 degrees as this induced pain. An x ray of his left knee was requested and is reported as thus `Left Knee: Only a limited examination was possible. No fracture demonstrated on the films obtained.' It was thought that Mr Philp had sustained a medial ligament strain of his left knee and he was advised to wear a Zimmers splint and to take Voltaren 50mg tablets three times a day and to be reviewed by his general practitioner. Mr Philp was allowed to leave the Emergency Department with a letter to be taken to his general practitioner."

5. Mr Philp says that his recollection of that day in hospital is limited due to his pain, but he does recall that he was taken home by his wife. The Zimmers splint that he wore he described as like an old fashioned corset, that was strapped on so as to immobilise his knee. He was on crutches, and any movement or strain on his knee caused great pain. He said that for the two months that he wore this splint and used crutches he was very dependant on his wife for assistance with the tasks of daily living, and for transportation, as he was unable to drive or use public transport.

6. Mr Philp was referred to physiotherapy, and was absent from his work due to the injury.

7. He saw Dr Mark Porter at the Canberra Sports Medicine Centre on 1 June 1995 complaining of a painful and swollen left knee. He concluded that the plaintiff had dislocated his patellar and torn his medial ligament. He prescribed ongoing physiotherapy and home exercise. On 19 June he had his swollen knee drained, and he says that from this time on the swelling gradually subsided. He was able to commence a graduated return to work program in mid July, and by December was back to his full hours at work. He continued with his physiotherapy, at first 4 times a week, and gradually reducing. He then commenced a program of exercises at a gym, which he continued with until mid 1996.

8. Although the plaintiff has been able to resume full time employment, he still complains of instability in his left knee. He continues to experience pain if he sits for any length of time, but he is able in his job to get up from his desk on regular occasions. He has difficulty in driving for long distances, and must stop and rest. He had been a keen participant in ten pin bowling until about four years before the accident, and he tried on one occasion since to participate in this sport, but found that his knee caused real difficulties and pain. He enjoys the surf, but says that he is now very concerned about the stability of his knee if he is on uneven sand.

9. There is no real dispute about the nature of his injury. Two reports were tendered by the defendant from Dr Andrea, who confirmed that the plaintiff dislocated his patella in the fall. In his report of August 1996 he said

" It is likely that Mr Philp suffered significant damage to his knee and there is probably permanent minor damage to the articular surface of the patella and ligaments holding it in place. His current disability does not appear to be great, but he may continue to suffer some pain and some difficulty when walking on slopes."

10. He essentially confirmed this opinion in a later report of August 1998, noting that there was ongoing muscle wasting and movement of the patella. He found on this examination that extension power was weakened by about 30 per cent. He formed the view that there is

"...a slightly increased risk of arthritis developing in the joint but I doubt it will become severe enough to require a knee replacement."

11. It is common ground that the plaintiff has a degree of underlying degenerative change to his knees. Dr Porter acknowledged this in his report of November 1998 but said that

"...it is likely that the symptoms in his left knee will be worse than those on the right side in correlation with the amount of degeneration present."

12. Dr Scott, an occupational physician, noted in his report of September 1997 that

"It is possible that the fall will accelerate any arthritic changes with resultant disabilities."

13. Mr Philp was also examined by Dr Coyle, an orthopaedic surgeon, for the defendant, but his report was not tendered. I am of course in these circumstances entitled to draw the inference that the report would not have assisted the defendant's case.

14. The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, `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'."

15. In this case I must assess the plaintiff in relation to general damages on the basis of an injury to his knee which produced a permanent ongoing disability which continues to impact on the plaintiff's mobility. He continues to experience pain and discomfort, and is also troubled by the fear of a further fall. He says that he is particularly concerned at his knee giving out on uneven ground or stairs. He feels that he does not have normal power in his left leg, and this is confirmed by Dr Andrea's report.

16. While the plaintiff is able to continue with his employment and has also been able to resume his normal activities around the house and garden, albeit with some caution and additional time, he remains restricted in his recreational activities. He says that he had been considering retiring to Queensland when the time comes (he is presently 56) where he could look forward to lawn bowls and surfing. He now feels that he could not take part in bowls, and that his fear of uneven surfaces would remove his former pleasure in the surf.

17. I am satisfied on all of the evidence that the plaintiff has sustained an injury of some significance in this fall which is permanent, and will continue to have a marked impact on his enjoyment of life. I note that Dr Scott assessed this as a 15% whole purpose impairment. While this scale of assessment is generally not utilised in the assessment of general damages in this Court, I note that this does go to show that the plaintiff has a significant disability.

18. Taking all of this into account I would assess the plaintiff's general damages in the sum of $33,000, with $20,000 referable to past loss generating interest of $1,511. This amounts to a total award of $34,511, which I consider to be appropriate in all of the circumstances.

19. The plaintiff's claim for economic loss was limited to a claim for the time off work, and was agreed to be in the sum of $10,201.38. As this sum was paid to him by way of Comcare payments, no interest should be awarded on this sum as the plaintiff was not in fact out of pocket.

20. Out of pocket medical expenses were agreed in the sum of $4,261.02, which I award.

21. There was a claim for travelling expenses, which was particularised as a claim for 3416 kilometres at 48.1 cents per kilometre. I am satisfied that this is an appropriate rate, being based on a rate approved in 1995 by the Australian Taxation Office.

22. The plaintiff was required to attend for regular physiotherapy sessions. This required travel from his home in Gilmore to either Erindale (a round trip of 14 kilometres) or Turner (a round trip of about 40 kilometres). I am satisfied that the plaintiff is entitled to be compensated for the cost of his necessary travel. Each precise journey was not proved, but his physiotherapy did continue for some time, with 4 sessions a week for a couple of months, gradually declining to two sessions a week. It seems to me that the claim as particularised is not excessive, and I award this sum of $1,640.

23. A claim pursuant to the principle of Griffiths v Kerkemeyer was particularised at the rate of 6 hours per week for two months. I am satisfied that this claim is made out, as during this period the plaintiff was significantly immobilised, and his wife was required to provide assistance with all the activities of daily life. She was also required to drive him to his physiotherapy sessions, which alone would amount to at least 5 hours a week. The plaintiff tendered evidence by way of a letter from Home Help ACT which stated that the current rate for home help charged by that organisation was $31 an hour.

24. I note that it is appropriate to look to the market cost of the services relevant to meet the need for an award of Griffiths v Kerkemeyer damages, and evidence is regularly tendered in this court concerning the going rate for cleaning and domestic assistance. Evidence has been given that services such as Home Help ACT have a "third party rate" which they charge in the expectation of a later reimbursement which is considerably above the general going rate for domestic help. I am not satisfied that $31 per hour is the real market cost of the type of domestic assistance provided in this case. I would consider a rate of about half of this amount as appropriate, and award the sum of $750 as an appropriate award for the assistance provided by the plaintiff's wife.

25. There was no claim for future economic loss or future out of pocket expenses.

26. This amounts to a total award of $51,363.40, which I consider to be appropriate in all of the circumstances, with costs.

I certify that this and the six (6) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 26 February 1999

Counsel for the Plaintiff: Mr R Mildren

Instructing Solicitors: Snedden Hall & Gallop

Counsel for the Defendant: Mr M Robinson

Instructing Solicitors: Deacons Graham & James

Dates of hearing: 8 February 1999

Date of judgment: 26 February 1999