Toni Leanne Gordon v Russell Genter [2000] ACTSC 47 (9 June 2000)

Last Updated: 17 October 2000

TONI LEANNE GORDON v RUSSELL GENTER

[9 JUNE 2000] ACTSC 47 (2000)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - No issue of principle.

Laird v Smith, Full Court ACT Supreme Court, unreported, 31 May 1996

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327

Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49

No. SC 616 of 1999

Coram: Master T Connolly

Supreme Court of the ACT

Date: 9 June 2000

IN THE SUPREME COURT OF THE )

) No. SC 616 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: TONI LEANNE GORDON

Plaintiff

AND: RUSSELL GENTER

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 9 June 2000

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $ 275,448.32

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages arising from a motor vehicle accident which occurred on the morning of 8 September 1995 when the plaintiff was the passenger in a car driven by her partner which swerved to avoid a wombat on the Hume Highway near Marulan in New South Wales. The car left the highway and rolled several times down an embankment. The plaintiff was a seatbelted passenger in the front seat, but as the car rolled the windows shattered and her left arm was thrown from the vehicle. It is common ground that as a consequence of the accident, for which liability is admitted, the plaintiff sustained significant injuries to her left shoulder, which has required repeated surgical intervention, and which now leaves her with a marked permanent disability in function in her left shoulder. The plaintiff is right handed.

2. The plaintiff was born in 1971 in Canberra, and attended a local high school. After this she worked for a while in her parents take away food van. She then undertook a six-month office traineeship with an accountancy firm. She left this job when she became pregnant with her first child, who was born in April 1989. She has not worked since. She cared for her child and maintained her home. Her partner, who is a roof tiler, has himself been in irregular employment over this time, with periods of work and periods of unemployment. The plaintiff has been in receipt of a supporting parent's benefit. They had another child in August 1994, who was being breastfed and was with them at the time of the accident.

3. The plaintiff's case is that she had planned a return to the workforce shortly after the accident, and that by reason of her accident related disabilities, which include soft tissue injuries and headaches as well as the shoulder disability, she is now precluded from any employment. The defendants dispute the connection between the accident and subsequent headaches, and, while acknowledging a significant overall diminution of employment capacity which counsel for the defendant conceded could amount to 20%, submitted that the plaintiff had not utilised her economic capacity for many years prior to the accident. There was also dispute over the extent to which the accident has caused a need for domestic assistance.

4. It is common ground that in the accident the plaintiff sustained a shoulder injury, which was originally diagnosed as a psoterior fracture dislocation of the left shoulder joint. She also sustained various cuts and abrasions. There is no question that this was a significant accident, which occurred when a car travelling at highway speed left the road and rolled several times before coming to rest at the bottom of the embankment. As the plaintiff said in her evidence, she and her family realise they were fortunate to have survived. She was taken to Goulburn Base Hospital where Dr Beevors, a general surgeon, was called in and under general anaesthesia reduced the dislocation. She was kept in overnight and then discharged with her arm in a sling. Dr Beevors in her report of 22 May 1996 says that she expected that after physiotherapy the pain would settle and the plaintiff would regain normal shoulder function.

5. The plaintiff returned to Canberra and attended her general practitioner, who treated her for her other abrasions. She continued to experience significant pain, and he referred her to Woden Valley Hospital for x-rays. These disclosed that the plaintiff in fact had sustained a four part fracture dislocation to the left humerus, and she was admitted to hospital immediately under the care of orthopaedic surgeon Dr Stubbs who on 14 August undertook under general anaesthetic an open reduction and internal fixion of the fracture with multiple screws.

6. In the space of 5 days the plaintiff had undergone two procedures under general anaesthetic, the latter involving an open procedure to her shoulder joint. Her arm was then placed in a fixed sling. Although she had been breastfeeding her daughter at the time of the accident this was no longer possible, and her baby had to go on to formula. Ms Gordon said that this was distressing for her, and her milk continued for a time, which further caused her distress. I take this factor into account in assessing general damages.

7. Ms Gordon had to have the arm completely immobilised in the fixed sling for some six weeks after the operation. Her mother in law came down from Newcastle and helped for part of this time, and her partner and mother and friends also provided some assistance. She estimated that this would have amounted to some nine hours a day. While this seems a lot, I accept that the plaintiff at the time had a 13-month-old baby girl to look after. I accept that the full care of the infant had to be provided by others, and that the plaintiff, as well as being unable to do any household tasks, required direct assistance for all activities of her personal care during this time. She said that due to the fixed sling it was impossible for her, even with assistance, to properly clean under her left arm, and that this, understandably, was distressing.

8. By November 1995 the sling was removed and she began physiotherapy, which she says was painful. She gradually regained some movement in the shoulder, and began to be able to undertake more tasks around the home as well as becoming independent in activities of personal care. In July 1996 Dr Stubbs again operated under general anaesthetic to remove the screws, and also to try to improve the range of movement in the shoulder by releasing injured and contracted soft tissues. In a report following this procedure Dr Stubbs said that he expected that the plaintiff would eventually regain about three quarters range of movement in her shoulder, but he also warned of the possibility of the plaintiff developing a vascular necrosis in the head of the humerus, which would result in "a much higher impairment rating than presently anticipated."

9. After the July 1996 procedure the plaintiff was again discharged with her arm in a sling, and again was very restricted in her movements and ability to undertake domestic tasks. Again she was assisted by her mother in law, mother, partner and friends. She resumed physiotherapy, and slowly regained movement, so that Dr Stubbs in November 1996 reported that she had regained two thirds of shoulder movement. She again gradually resumed independence in respect of domestic activities. In June 1997 Dr Stubbs noted that there had been little improvement since the last review, and he again raised the possibility or a vascular necrosis of the humeral head.

10. The plaintiff says that her shoulder remained at about this level for some time, but that through 1998 she felt that it was becoming more stiff and painful. In September 1998 Dr Stubbs confirmed that she had suffered from necrosis which had caused the collapse of the humeral head. He advised that it would be necessary to perform further surgery to undertake a shoulder reconstruction using prosthesis. In a report to her general practitioner on 25 September 1998 he set out the costs of this procedure, based on either a replacement of the humerus (the ball of the joint) or a total reconstruction involving also a replacement of the glenoid (the socket into which the humerus fits). He observed that Ms Gordon wanted to put this off, as long as possible, and given her experience with three painful procedures under general anaesthetic over the previous three years, this is understandable.

11. In April 1999 she came to surgery. On exposing of the shoulder Dr Stubbs formed the view that, although the humerus needed to be replaced, the glenoid was in good condition, and would not require replacement. He undertook this procedure, and again on discharge the plaintiff was immobilised for a time in a sling, and again required considerable domestic assistance. In a report of May 1999 Dr Stubbs indicated that the surgery was technically successful, and anticipated that further revision surgery would be unlikely for fifteen years, beyond which time it may be necessary to replace the artificial humerus, or to also include a replacement liner for the glenoid. The last report from Dr Stubbs was dated March 2000, and referred to his last examination in September 1999. At that point he said reported considerable restriction to her movements, which "constituted a restriction in the range of movement by greater than 50%." He noted that range of movement should again be assessed twelve months after surgery, that is in April 2000, and said: "so little improvement will occur after that time that the range of movement at twelve months could be taken as representative of the final degree of stiffness."

12. Although there has been no further report from Dr Stubbs, the plaintiff was examined on 27 March 2000 by Dr Billett, a consultant orthopaedic surgeon, for the defendant. His clinical finding in respect of the left shoulder was as follows:

"There was no fixed flexion deformity of the joint. There was marked wasting of the deltoid and suprasinatus muscles. There was a J shaped healed surgical incision centred over her shoulder. The muscle powers of abductor and flexor were decreased to 3 ½. During palpitation she complained of tenderness over the trapezius at shoulder level extending to the acromion-clavicular joint and down into the delto-pectoral groove, over the deltoid insertion of the left upper arm and along the vertebral border on the left side of the scapula down to the level of approximately T6. There was a marked decrease in movements, with zero rotation (normal 90º), extension to 20º (normal 45º), abduction to 50º (normal 150º) and flexion to 80º (normal 150º). She complained of discomfort throughout all movements. "

13. These clinical observations from Dr Billett are consistent with Dr Stubbs observations, and indicate that the plaintiff continues to suffer from a significant restriction in her range of shoulder movements. I should observe that a video film exposed in January and February 2000 did not reveal the plaintiff moving her left shoulder beyond the range of movement described by Dr Billett. The plaintiff has also been examined by Dr White, a neurologist, who has reported to her solicitors that she has a 70% disability in the left shoulder.

14. The plaintiff said in her evidence and told Dr White that she had experienced increasing migraine type headaches which she said started some three months after the accident. Dr White on this history had no difficulty attributing these headaches to a response to the trauma of the accident. Her now former general practitioner, in a report to her solicitors on April 1997, said: "She has had an increase in her migraines but this is not related to her shoulder injury". The clinical notes from her former general practitioner were read by her present general practitioner in his evidence, and he agreed that the first reference to migraine was in October 1996, some 14 months after the accident, and was related to her mensural cycle Dr White, in cross examination agreed that he would expect trauma related headaches to occur within "months" of an accident, and that 14 months was beyond the period in which it was more likely than not that there was a relationship. On all of the evidence I am not satisfied that the plaintiff's headaches, which I find were first reported to her doctor in October 1996, are accident related.

15. Dr Billett accepted that the plaintiff had a degree of soft tissue injury to her neck and lower back, and I accept that this was accident related, although I also find on all of the evidence that the accident related impact of this has now passed. Her counsel conceded that this was a minor matter, and did not now impact on her economic capacity.

16. The plaintiff's treating general practitioners and surgeon have made no reference to psychological sequelae from the accident, and have prescribed no medication or other treatment. The plaintiff has been seen for the purposes of a medico legal report in March 2000 by a clinical psychologist, Dr Stevens, who has made a diagnosis of moderate pain disorder, moderate chronic post traumatic stress disorder and mild depressive disorder currently in partial remission. The plaintiff gave evidence that she has dreams about the accident, and is distressed by seeing television road safety advertisements and news items about road accidents. She is very aware that this accident could have had fatal consequences. She is distressed when driving past the scene of the accident, but agreed that she first obtained her driving license after the accident and drives frequently. In assessing a psychological sequelae I note the absence of any references to symptoms from the treating general practitioner, but in the absence of any medical evidence to the contrary, and accepting the truthfulness of the applicant of her symptoms, I accept that there has been some mild to moderate psychological consequences as described by Dr Stevens, which, on the basis of his report, should respond well to treatment by way of a pain management program and a course of counselling for trauma and depression.

17. I therefore assess the plaintiff on the basis of having sustained a significant shoulder injury in the accident, originally diagnosed as a dislocation, but then found to be a fracture. I find that she has undergone a series of surgical procedures, but that unfortunately she has suffered necrosis of the humeral head, and that this has lead to a replacement of the head, which while technically successful, has not given the plaintiff a full range of movement. I find that she now has a permanent restriction of movement of her left shoulder in the range of 50% to 70%. I find that there has been soft tissue neck and back pain, which has now settled, and I find that the plaintiff's migraine headaches are not accident related. I accept that there have been psychological sequelae of the accident and the permanent shoulder injury.

18. 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 in 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'."

19. In relation to general damages I assess the plaintiff on the basis of the significant shoulder injury described above, and a level of low back and neck soft tissue injury. The shoulder injury has required four procedures under general anaesthetic, with lengthy recovery after the last three. There is a prominent surgical scar running from the top of her shoulder along the line of a bathing costume or bra down about 30 centimetres on the front. There is a degree of muscle wasting, and the left shoulder is now asymmetrical with the right. The injury and its sequelae forced the plaintiff to suddenly abandon breastfeeding her daughter, which was distressing for her. Her surgeon is of the view that her present prosthesis should last for about 15 years, but that further surgery is likely beyond that time, possibly involving a replacement of the shoulder socket.

20. Despite the best efforts of her surgeon her shoulder will never regain full mobility, and I find on all of the medical evidence that she will permanently have a significant restriction on range of movements of her left shoulder, being restricted to 50%-70% of full movement. Even though the plaintiff is right handed, this does represent an ongoing impact on her lifestyle. She is now fully capable of undertaking household and personal care tasks, and video material taken of her showed her cleaning her car, picking up her child, shopping and carrying shopping from her car. She avoided any heavy work with her left arm, but she did lift out a child safety seat, which was made of foam and carry light shopping bags with that arm. She agreed in cross-examination that anyone observing that video would be unaware that she suffered any disability at all. She avoids sporting or recreational activities that would involve a full range of shoulder movement, or that would put her at risk of knocking the shoulder.

21. The plaintiff was injured as a young woman, and her shoulder injury is permanent.

I also take into account a degree of inconvenience from neck and back pain caused by soft tissue injuries that have now settled, and the psychological consequences of the accident which have persisted in mild form and which I find will respond to treatment as set out in the report of Dr Stevens.

22. In respect of general damages, I award the sum of $ 100,000. Recognising that the level of disability will be permanent, and will involve further surgery but that there have been four painful surgical procedures to date with three lengthy periods of recovery, I would allocate $40,000 to the past, generating interest of $3,810 making a total award of $103,810

23. Out of pocket expenses to date of trial were agreed in the sum of $26,638.32, which I award. I note that all but some $200 of this has been paid, so no interest is appropriate on this sum.

24. The plaintiff will incur additional out of pocket expenses. I am satisfied that she would benefit from additional physiotherapy. She has been limited to date in receiving physiotherapy by being unable to afford treatment beyond what has been approved by the insurer. Dr Billett in his report to the defendant of 30 March 2000 said: " I consider that she would benefit by having long term physiotherapy treatment, perhaps associated with a controlled gym program." Her physiotherapist, Mr Bloom, recommended in May 1999 that she receive a course of treatment of two treatments a week over 12 weeks. I am satisfied that further physiotherapy is reasonably necessary, both in respect of an immediate course of treatment to maximise her potential shoulder movement, and following any further surgery.

25. I am satisfied also that the plaintiff requires a course of counselling in respect of her trauma related depression and a course of pain management, as recommended by Dr Stevens. There is also likely to be some ongoing need for pain relief, although the plaintiff tries to minimise her consumption of painkillers.

26. She will require future surgery. Dr Stubbs in a report of September 1988 estimated the cost of the replacement of the humerus and the socket as being both about $10,000. She has undergone the replacement of the humerus, and in his post operation report Dr Stubbs said: "it is not expected that any revision surgery will be needed in the next 15 years." While this is encouraging, I also note that in the 1998 report he noted the possibility of a total shoulder replacement, which could be required after 30 or 40 years. I take this into account.

27. I award the sum of $30,000 against future out of pocket expenses, taking into account all of the above.

28. The plaintiffs claim for economic loss is based on her evidence that it was her intention to return to the workforce within weeks of the accident to a position as a packer of groceries at a nearby supermarket. Her claim is for past and future economic loss at about $300 a week. Her claim is that she is now unable to undertake any employment at all. I am satisfied that the repeated surgical interventions have meant that for all practical purposes the plaintiff has had little or no economic capacity in the years since the accident. Dr White and Dr Billett say that it is unlikely that she will work again, but I am not persuaded that a restriction in shoulder movement, even a major restriction, means that a person is totally unemployable.

A vocational assessment report form IRS Total Injury Management identified a range of activities that the plaintiff could perform. It is common experience that this type of injury to the non-dominant shoulder does not preclude many persons from taking up employment.

29. The plaintiff had not worked since 1989. She acknowledges that she has only ever filled in one taxation return. She has been in receipt of ongoing benefit, being a supporting mothers benefit before the injury and a disability pension since. While her husband has had periods of employment and periods of unemployment, she said that she had received the same benefits throughout. She acknowledged in cross-examination that any income she earned would affect the ongoing rate of benefit.

I am not satisfied that this pattern would have been suddenly altered four weeks after the accident and the plaintiff would have been in steady employment since then.

30. I accept, on the other hand, that the plaintiff would have come to a point when her youngest daughter was of school age she may have sought to utilise her economic capacity. Although the defendant pointed to her long term absence from the workforce, and a history of only ever doing some part time work for her parents and a partially completed traineeship, I am satisfied that she would have had access to a range of part time employment which could itself have led to full time employment.

I am satisfied that her injuries and ongoing restriction of shoulder movement significantly restrict the range of options open to her, but I also find that she had a significant residual economic capacity.

31. This is a case where, given the plaintiff's employment history:

"to make an assessment of [her] future by reference to what [she] would have been earning at the date of assessment if there had been no injury, which is purely speculative, and doing the calculation for the future on that figure is not appropriate in this case and involves not merely double prophesy but guess work. It gives a false sense of mathematical accuracy in a case where it is impossible to achieve accuracy of that nature."

(per Miles CJ and Gallop J, Laird v Smith, Full Court ACT Supreme Court, unreported, 31 May 1996)

32. In all of the circumstances of this case I award a buffer sum of $100,000 against past and future wage loss inclusive of interest. This sum is the equivalent of the present value of a net loss of $100 a week from the date of injury to age 60, which taking into account all of the variables of the likely extent of the plaintiff's involvement in the workforce, and her significant residual capacity as well as her significant restriction of left shoulder movement, seems to me to be appropriate in all of the circumstances.

33. A claim pursuant to the principle of Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 was made in respect of domestic assistance provided to the plaintiff. This was particularised as an ongoing claim for three hours per week, but counsel for the plaintiff conceded that the plaintiff was now largely independent in respect of domestic activities, and I am not satisfied that any assistance she now receives from her husband in respect of sharing of domestic duties goes beyond the normal give and take of domestic relationships described in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 I am satisfied, however, that the plaintiff was totally disabled following the initial accident and the first major surgery, and that she required extensive assistance, provided by her mother in law, mother, friends and partner, for some months after this, gradually decreasing as she resumed independence. I am satisfied that this continued after the further two operations, and I must also take into account that there will be a further period of significant incapacity following future surgery. It is impossible to be precise about the amounts of assistance provided, although the plaintiff said that her mother in law initially provided assistance of nine hours a day for twenty days, and I accept that, with the need for care of her infant daughter and herself this was not unreasonable. I will allow a claim based on three periods of an average of three months or ninety days, with an average care component of three hours, which at a current rate amounts to an award of $12,100. Allowing an amount for the future would round this sum up to $15,000, which I consider to be appropriate in all of the circumstances.

34 This amounts to a total amount of $275,448.32 which I award, with costs.

I certify that this and the thirteen (13) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 9 June 2000

Counsel for the Plaintiff: Mr Parker

Instructing Solicitors: Ken Cush & Associates

Counsel for the Defendant: Renshaw

Instructing Solicitors: Abbott Tout Harper & Blain

Dates of hearing: 23 May 2000

Date of judgment: 9 June 2000