Ronald Leslie Selmes v ACT [2000] ACTSC 32 (19 April 2000)

Last Updated: 16 October 2000

RONALD LESLIE SELMES v ACT [2000] ACTSC 32 (19 April 2000)

CATCHWORDS

NEGLIGENCE - measure of damages - plaintiff injured stepping from lift which had stopped above floor level - liability admitted - whether injury previously sustained significantly contributed to the plaintiff's current physical condition - whether quantum of damages should be adjusted accordingly - no point of principle.

No. SC 784 of 1996

Judge: Higgins J

Supreme Court of the ACT

Date: 19 April 2000

IN THE SUPREME COURT OF THE )

) No. SC 784 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROBERT LESLIE SELMES

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

ORDER

Judge: Higgins J

Date: 19 April 2000

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $59,833.80.

1. The plaintiff, now aged fifty-three years (dob 28.08.1946), suffered an injury on 20 December 1995 at the Woden Valley Hospital.

2. He had been visiting his wife, Rhonda, who had recently undergone an operation. They entered a lift on the eighth floor (Lift No. 1) intending to travel to the Ground Floor. Instead, the lift stopped at the Basement level. The plaintiff stepped out expecting the lift to have stopped, as lifts usually do, so that the floor level and lift levels were the same. Unfortunately, they were not. The lift stopped some fifteen to twenty centimeters above the outside floor level. The plaintiff lost his balance and fell heavily on his left side. He fell onto his left hand, elbow, shoulder and hip in particular.

3. In 1986, the plaintiff had suffered a serious back injury whilst working at a saw mill at Bodalla, New South Wales.

4. Immediately following this fall the plaintiff noticed pain not only in his left shoulder and hip region but also in the lower back. He reported the fall to hospital authorities.

5. Next morning the plaintiff's shoulder and back were particularly sore. He attended the casualty department, had X-Ray investigations and was prescribed Panadeine Forte for the pain.

6. A day or so later the plaintiff and Mrs Selmes returned to their home at Narooma, New South Wales.

Liability

7. Liability was formally in issue until the case was opened. However, at that point, Mr Erskine, counsel for the defendant, informed the Court (and the plaintiff's counsel, Mr Stretton) that liability was admitted.

8. Accordingly, without further consideration of that issue I formally find liability established.

Damages

9. There was no dispute as to the facts deposed to by the plaintiff. Nor was there any medical evidence relied upon by the defendant to contradict or qualify the medical evidence relied upon by the plaintiff. The only issue between the parties is as to the quantum of damages.

10. The plaintiff is now fifty-three years of age. He left school in 1961 at the completion of Third Year. He has gained no formal tertiary qualifications.

11. Between 1961 and 1981 he worked at running a family property of about 1000 acres at Crookwell, New South Wales. The property stocked sheep and cattle.

12. In 1981 the property was sold as part of a divorce settlement between the plaintiff and his first, (now ex-) wife.

13. From then until 1986 the plaintiff worked at various labouring jobs. He purchased and renovated a number of rundown houses at Narooma. He worked on fishing trawlers, a sewerage line and at saw mills.

14. It was in the course of that work he suffered his back injury. Up to 1988, having met and formed a relationship with his present wife in 1985, he worked as a cook in various Clubs and war veterans homes around Canberra.

15. In 1988, he purchased a small general store at Maloney's Beach (South Coast, New South Wales). That business was sold about two years later. Thereafter, he and his wife moved back to Narooma. He purchased and renovated a house for sale. He also worked as a caretaker at the Montague Motel, Narooma. In return, they received free accommodation.

16. As caretaker, he undertook not only maintenance work but also such gardening work as lawn mowing.

17. Despite his previous injury he had undertaken beach fishing and tennis.

18. He did concede, quite frankly, that the 1986 injury had precluded him from heavy work. He suffered constant low back discomfort. Activity, such as had occurred in 1990 ("lifting a pot plant"), "stirred it up a bit".

19. That pre-existing condition was aggravated by "a lot" of standing or walking. Pushing a trolley and travelling by car on rough roads would aggravate the back pain. Even though the plaintiff could do lawn mowing, that activity could "stir it up".

20. The plaintiff considered that the fall of 20 December 1995 had made the back pain considerably worse (ie. "stirred it up") for a period of about eighteen months. Thereafter it reverted back to its previous intensity. However, he considered that his back pain was more easily stirred up than before.

21. The left shoulder and hip have continued to trouble him. They further limit the extent and duration of his activities.

22. The medical evidence supported this assessment.

23. Dr Peter Burgess, orthopaedic surgeon, examined the plaintiff on two occasions for medico-legal purposes.

24. On the first occasion, 29 February 1996, Dr Burgess concluded that the plaintiff's back was impaired permanently to the extent of twenty percent. The fall had, he considered, contributed four percent of that permanent disability. The left shoulder injury had created a five percent permanent loss of efficient use of the arm at or above the elbow.

25. The left hip injury "is imprinting a 5% permanent loss of efficient use of his left leg at or above the left knee on his overall disability".

26. As at 6 March 2000, Dr Burgess found the disability by reason of lumbar back pain to be the same as in 1996. The left hip injury he found "not very troublesome" but still at five percent loss of efficient use of the left leg at or above the left knee.

27. However, he noted, in relation to the left shoulder injury "the appearance of degenerative changes" in the relevant joint. This, he considered "could in the future involve him in local anaesthetic and depo-cortisone injections and even possibly arthroscopic management". Whilst only partly related to the fall, Dr Burgess was of the opinion that the fall-related disability now should be put at ten percent.

28. The level of disability was over-all such that, compared with the previous level of activity, he now "potters about".

29. That is consistent with the impression I gained from the plaintiff's evidence about his present level of disability compared with that previous to his fall in 1995.

30. There is no claim for loss of earnings arising out of the plaintiff's lessened activity level. He presently gains relief from regular chiropractic treatments. They are likely to continue at a rate not less than presently. There are ongoing expenses for analgesics (Feldine and Panadeine Forte). The annual expenses are (approximately):

Chiropractic treatment $416.00

Feldine 64.80

Panadeine Forte 83.20

$564.00

31. Additionally, there is some need to take account of Dr Burgess' prognosis that some further treatment may be required, partly related to the fall. No more than a "buffer" can be offered for that contingency. My intuitive estimate is $1500.00.

32. For general damages, I would award $45,000 after taking account of the pre-existing disabilities and natural degeneration. Having regard to the more intense pain and suffering for eighteen months following the fall, I attribute fifty percent of that pain and suffering to the past for the purpose of an award of interest over the total period of five years and four months. I do not, however, consider it necessary to increase the average rate of interest beyond two percent having regard to the impact of other elements of general damages.

33. I award $2590.00 for interest accordingly (in round figures).

34. Out of pocket expenses are agreed to be not less than $3193.80 (one item of $439.70 is not clearly due to the fall but if it is the defendant undertakes to pay it without the need for an order to do so). There is no claim for interest on the out-of-pocket expenses.

35. I award $7550.00, after allowance for contingencies, for future non-medical treatments and medication (conventionally calculated after fifteen percent allowance for contingencies on usual life expectancy).

Summary

General Damages $45,000.00

Interest 2590.00

Out of pocket expenses for the past 3193.80

Future non-medical treatments and medications 7550.00

Future medical treatment 1500.00

Total: $59,833.80

36. That total seems appropriate globally and I direct the entry of judgment accordingly.

37. I will hear the parties as to costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 19 April 2000

Counsel for the Plaintiff: Mr G Stretton

Solicitor for the Plaintiff: Pamela Coward & Associates

Counsel for the Defendant: Mr C Erskine

Solicitor for the Defendant: ACT Government Solicitor

Date of hearing: 28 March 2000

Date of judgment: 19 April 2000