Suffolk v Meere [2001] ACTSC 24 (23 March 2001)

Last Updated: 11 June 2002

Robert Suffolk v Clare Mary Meere [2001] ACTSC 24 (23 March 2001)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Knee and wrist injuries - Reactive depression - No issue of principle.

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

Fry v McCufficke (1998) 1499 FCA

Griffiths v Kerkemeyer (1977) 193 CLR 161

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

Van Gervan v Fenton [1992] HCA 54; (1990) 109 ALR 283

No. SC 656 of 1994

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 23 March 2001

IN THE SUPREME COURT OF THE )

) No. SC 656 of 1994

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROBERT SUFFOLK

Plaintiff

AND: CLARE MARY MEERE

Defendant

ORDER

Coram: Master T. Connolly

Date: 23 March 2001

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $895,168.00.

2. The defendants pay the plaintiff's costs.

1. This is a claim for damages arising from a motor vehicle accident which occurred at Bruce in the Australian Capital Territory on 16 June 1990. The plaintiff was riding his motor bike home from work along Ginninderra Drive when the defendant, who was proceeding along Tucker Street, failed to give way and collided with the plaintiff. Liability for the accident was admitted, and it was acknowledged that the plaintiff sustained fractures to the base of the third metacarpal of the left hand, and in his knee to the lower pole of the left patella. The plaintiff appeared to recover from these injuries in the normal way and return to his employment, but his knee problems re emerged some years after the accident, and he could no longer continue in his employment as a security guard. It is the plaintiff's case that the frank injury to his knee has triggered the onset of a degenerative condition that has lead to a disabling knee condition, and that he has also developed a debilitating psychological sequelae to the accident as well as ongoing problems with his left wrist. He has worn a brace to both his left wrist and knee since about 1995, and doctors who have examined him for both the plaintiff and the defendant agree that there are genuine signs of wasting and disuse to his knee and wrist, indicating that he has been consistently avoiding use of these joints. In extensive surveillance material no suggestion was made that the plaintiff did not consistently use these braces.

2. The plaintiff was born in Murwillumbah in September 1962. He was educated to Year 11, but says that he only really enjoyed sports at school, and was not academically inclined. When he left school he found employment as a sawmill labourer, and married and had a family. He had intermittent work in the 1980's. He found employment as a contract postal worker, but sustained quite significant head injuries in a motor cycle accident in 1982, and his contract was not renewed. He had some periods on unemployment benefits.

3. He became aware through a friend of the possibility of employment as a security guard with the Australian Protective Services, and from the mid 1980's while unemployed, made a number of applications for employment. He was also trying, unsuccessfully, to return to Australia Post. He was eventually successful with the Australian Protective Services, and was appointed to a position within the Australian Public Service as a security guard in November 1988.

4. He says that he enjoyed this work, and was suited to it. There is no question from such records as are available that this type of work, which came to involve quite long shifts and periods of overtime, was well remunerated. It is his case that, despite a chequered past employment record, he had "found his place" with secure and well paid employment with the Australian Protective Service, and that, but for the accident related injuries, he would have continued with this employment. I am satisfied that this plaintiff had indeed found his niche with this work, which he enjoyed, and would have continued with this had his health permitted. The real issue between the parties in this matter, which extended over six sitting days, was the extent to which his present disabilities, mostly related to his knees, are accident related.

5. The plaintiff acknowledged in his opening that he had pre existing difficulties with his knees. The notes of his then treating general practitioner, Dr Kettle, confirm that he complained of a painful right knee in August 1984 from soccer, and that he attended again in October 1984 with right knee pain from soccer, but also said that his left knee became painful and stiff when playing sport. He presented in November 1984 for an arthrogram to his right knee, which showed a tear of the medial meniscus. A further arthroscopic examination of the right knee was performed in October 1985. In August 1986 his left knee was x-rayed, showing a small flake of calcification on the posterior aspect of the femoral condyle. The left knee was arthroscoped at the Murwillumbah Hospital in November 1986, after complaints of swelling around the left knee with occasional inability to straighten his leg.

6. On his medical examination to join the public service the plaintiff acknowledged a history of "internal derangement of both knees". I accept that this was not a precise medical description, but does indicate that he acknowledged to his new employer that he had experienced problems to both knees.

7. Following the accident he had both fractures set and was incapacitated for some time with his wrist and knee in plaster. He was back to work by August 1990 to his duties as a security guard. He attended his treating general practitioner, Dr Reid, who specialises in sports medicine, in May 1991, complaining of some ongoing problems with his left knee, and the development of an exostosis over the site of the fracture of the left hand, causing pain and stiffness. Dr Reid referred him to Dr Wood, an orthopaedic surgeon, to remove this growth. He also on this consultation complained of right knee problems, and Dr Reid diagnosed an anterior cruciate ligament deficiency, and recommended right knee reconstruction with a view to getting the plaintiff back to playing soccer. At this point he was still working full hours, and his complaints were both accident related, left knee and wrist, and unrelated, in that a full reconstruction of the right knee was recommended. At this time he acknowledged in his evidence he was cycling about 30 kilometres a day in commuting to and from work.

8. Dr Woods, in his report of 13 June 1992, records that he first saw the plaintiff at the request of Dr Reid on 16 July 1991, and took a history of left wrist and knee pain, arising from the motor vehicle accident. Dr Woods also recorded,

"He gave a past history of injury to the right knee in an accident in 1982, wherein he sustained an injury to the anterior cruciate ligament of the right knee."

9. Dr Woods performed surgery on the left wrist on 29 July 1991 to remove the overhanging bony projection at the site of the fracture, and there seems to be no real dispute that this was accident related. He recommended that the left knee be treated essentially by exercise therapy to strengthen his knee muscles. He felt that neither injury should affect the plaintiff's capacity for work, and indeed he was working long hours during this period.

10. Unfortunately the plaintiff went on to develop a neuroma at the site of the surgery to his hand, and this required a further procedure in October 1992 by Dr Woods to remove this. In a report to Dr Reid of 6 November 1992 Dr Woods said that this was healing well, and said that the plaintiff could increase the use of his hand as tolerated, with no future problems foreseen.

11. He continued to experience problems with his left knee, and in September 1993 he underwent an arthroscopy of the left knee. In his report to Dr Reid on 29 September 1993 Dr Woods said,

"He has femoral condyle osteophytes on the patella groove on both knees, left worse than the right, and these were present a couple of years ago. It may be that he has a traumatic condyle injury following his accident. This is difficult to tell in retrospect."

12. In a report to Comcare of 11 June 1996 Dr Woods said that he felt that it was possible that the degenerative changes found at arthroscopy in the left knee were caused by the accident. In his evidence in chief he expanded on this somewhat, saying that it is more probable than not that the fracture to the lower pole of the patella sustained in the accident in 1990 lead to the ongoing degenerative changes in his left knee. He justified this view on the basis that the 1986 arthroscopy of the plaintiff's left knee reported no degenerative change to the joint surface. He thus concluded that the changes to that surface have been a consequence of the fracture sustained in the 1990 accident.

13. On 15 December 1993 the plaintiff underwent an arthroscopic reconstruction of his right knee, involving repairs to the medial meniscus. Dr Woods has reported that this has been a successful procedure, and the plaintiff's complaints are now limited to his left knee.

14. The plaintiff acknowledged that since the 1990 accident there had been a series of events involving impact to his knees. In February 1993 he fell from his cycle and suffered grazing to his left knee and hand. He acknowledged in cross examination that he had not referred to this incident to doctors. There was a further fall from his cycle in July 1993 involving injuries to his right knee. He slipped and fell at work on the slopes at Parliament House in October 1993, and complained of some left knee pain.

15. Throughout these years he was consistently working as a security guard, often for long shifts. In 1992 he sought unsuccessfully to transfer his employment to Brisbane. Although he was working long hours he says he was suffering increasing difficulties, and his general practitioner, Dr Reid, made enquiries in late 1994 about the plaintiff being retrained to a clerical area. By this time he had fitted the plaintiff with the braces to his left knee and wrist. In a report to Industrial Rehabilitation Services of 7 October 1994 Dr Reid said,

"He continues to have problems with his left knee and left wrist, and there is no medical treatment that has been found that will actually stop the problem. With his left knee, he cannot walk for long distances because of some developing osteoarthritis of the medial part of the joint of his left knee. He wears a brace on this left knee to unload this area, but it continues to be a problem and will continue to be a problem for the rest of his life. His left wrist is such that he cannot put a lot of pressure on it for long periods of time, and he wears a splint on this wrist almost full time. Because these problems will not decrease, but are likely to increase, it is important for Robert to be retrained in some other form of job, preferably in some sort of clerical position."

16. Various doctors have expressed the view that the ongoing use of the braces has been either unnecessary or inappropriate. Dr Reid, however, maintains the view that this is appropriate, and the plaintiff I am satisfied has acted in good faith on the basis of his doctor's advice. He has consistently worn the braces, and as a consequence his left wrist and knee both show significant muscle wasting consistent with disuse. While there is no entirely satisfactory explanation for his claimed left wrist problems, I am satisfied that in following the advice to wear the wrist brace and avoid heavy work on this wrist he has developed over time a genuine disability to his left wrist.

17. I note that Dr Stubbs, who reported for the plaintiff on 8 November 1999, said that the original injury to the wrist and the complications that followed should not have led to the ongoing wrist limitations. He said that,

"The wrist stiffness that he has is probably provoked by the habitual use of a wrist brace. The problem in the left wrist is therefore one of disuse muscle wasting and weakness for which there are no clinical signs to suggest ongoing pathology."

18. Dr Stubbs acknowledged that there were osteoarthritic changes in the left knee, which he accepted were attributable to the motor vehicle accident. He agreed with Dr Woods that the lack of reference to any changes to the left knee joint surface in the 1986 arthroscopy indicated that the changes observed in 1992 were post traumatic. He noted that the plaintiff had a successful reconstruction of the right knee, and that although he was constitutionally predisposed to osteoarthritis of the knees, as the right knee is sound but the left knee symptomatic, "I cannot reach any other conclusion than that the medial compartment osteoarthritis is the result of the accident."

19. He noted, however, that, "As with the forearm, a good part of his problems result from disuse." Dr McEwin, who reported for the defendant on 16 July 1997, said,

"I cannot see the need for him to wear a brace on the left knee and I believe that this is having negative effects on his emotional health and indeed on the knee itself in that the quadriceps muscles have wasted and need rebuilding which is not assisted by the use of a knee brace."

20. Dr Cairns has examined the plaintiff on a number of occasions since 1993 for the defendant. He has accepted that the arthritic change to the left knee is related to the trauma, but he has consistently questioned the extent of the claimed disability. In a report of 16 October 1997 he said,

"I believe that the overriding element in his continuing disability relates to protective disuse, accentuated by the use of the orthotics, and induced by his psychogenic response to his injuries."

21. He concluded,

"I believe that Robert Suffolk now presents with compensation neurosis which may very well be permanent."

22. He later referred to this as a "crippling psychogenic disability". Dr Cairns did not question the genuineness of this presentation.

23. I am satisfied, on all of the orthopaedic evidence, that the fracture sustained by the plaintiff in his left knee in the accident has caused the rapid onset of a degenerative arthritic condition in this knee. I should note that the suggestion was made that the plaintiff's left knee could be explained as the condition of osteochondritis dissicans. I am satisfied from all of the evidence that this is a developmental defect, and that it would come to symptoms, if present in the plaintiff, in late adolescence. I am not satisfied, on all of the evidence, that the condition of osteochondritis dissicans is the cause of the plaintiff's present difficulties.

24. Despite working for long hours more or less consistently since initial recovery from the fractures caused by the accident, the plaintiff was put off work by Dr Reid on 14 February 1995. Dr Reid attributed this inability to osteoarthritis of medial compartment of left knee, and said in the initial certificate that he would be unfit from 14 February 1995 to 13 May 1995 "and may not be fit until working life." The plaintiff says that he would have kept on working, but because he was told by his doctor to cease work, he followed that advice. In the period leading up to the advice from Dr Reid to cease work he had been consuming increasing amounts of pain killers.

25. After he left his full time employment he attempted some rehabilitation work trial in less physically demanding work. From June to August 1995 he was trialed at a security job at the Australian Government Printer's works at Kingston in Canberra, in what seems to have been static guarding type work, sitting at a security point checking passes and answering telephones, as well as doing some filing work. The plaintiff said that he hated this work, and that he is not an office person. He was then trialed at a sign making plant, which was unsuccessful, as well as in a less onerous security position at the Defence Department. No further work trials have occurred since the end of 1995. It seems that the plaintiff was unable to cope with the less vigorous security jobs as much for psychological reasons as physical ones. He has not worked since, and has since moved with his family back to the Murwillumbah district in northern New South Wales, where both he and his wife grew up.

26. A history of a motor vehicle accident, followed by a recovery and a return to work for long hours over several years, would in most orthopaedic complaints lead one to the conclusion that the accident related effects had resolved, and had been overtaken by other difficulties. I am satisfied, however, that Mr Suffolk's pattern is normal and to be expected where a fracture in the knee leads to post traumatic arthritic changes. The plaintiff recovered from the initial fracture, and returned to his work. Despite this apparent initial recovery, I am satisfied that the fracture has lead to the arthritic changes, which over some years since the accident have developed to the point where his knee has caused ongoing problems.

27. I am not satisfied that his left knee problem is due simply to the passage of time on a pre existing difficulty. While it is undoubtedly the case that the plaintiff has a history of knee difficulties in both legs, the doctors are agreed that at present the left knee displays far greater arthritic degenerative change than the right knee, which the plaintiff says has been satisfactory since the arthroscopic reconstruction procedure in 1993. I am satisfied on all of the evidence on the balance of probabilities that the 1990 motor vehicle accident has lead to the development of post traumatic arthritis in the left knee, thus explaining the difference in the progress of the degenerative changes observable in both knees.

28. I am satisfied that the accident lead to a fracture in the bones of his left hand, and that this lead to further complications with the development of the neuroma, requiring further procedures. On all of the evidence I am satisfied that the plaintiff continues to experience difficulties with his left wrist, but I am satisfied that these are largely now as a result of the disuse syndrome that has developed due to the ongoing use of the brace. I am not satisfied on all of the evidence that there is any clear orthopaedic mechanical explanation for the difficulties the plaintiff is now complaining of in his wrist.

29. This is not to say that I do not believe the complaints the plaintiff makes. Indeed, those doctors who have reported for the defendant that the plaintiff's complaints greatly exceed the degree of disability that they would expect from the observable arthritic changes to his left knee, and from the ongoing complaints of wrist limitation, do not suggest conscious exaggeration of symptoms for the purpose of malingering. Dr Cairns has reported that the plaintiff presents with compensation neurosis, and he has expressed the view that the plaintiff's psychogenic disability is significant, and represents the major barrier to his re employment.

30. The plaintiff was treated extensively by Mr O'Brien, a psychologist, from 1995 to 1999 for pain management. His general practitioner, Dr Reid, says that this referral was made because of concern at the level of pain relief medication the plaintiff was consuming. Excessive levels of pain relief have been noted by many doctors in this case. Some criticism of the extent of the treatment provided by Mr O'Brien was made by the defendants, but I am satisfied that attempts at pain management were a reasonable therapeutic decision. Mr O'Brien has expressed the view that the plaintiff is extremely depressed, and suicidal. There was evidence that the plaintiff has had suicidal ideation in recent years.

31. The plaintiff has been examined by Dr Veness, a consultant psychiatrist. He expressed the view in his report of November 1999 that the plaintiff as suffering from major chronic pain syndrome and major depressive illness, both conditions attributable to the motor vehicle accident. He noted that the plaintiff had only ever worked in physical jobs, and that sport had been a major part of his life. He said,

"Mr Suffolk is seriously depressed and is at considerable risk of dying from suicide. Fortunately, he is seeing experienced clinical psychologist Marshall O'Brien. Were it not for this I suspect he would have made an attempt on his life by now."

32. Dr Veness noted that the plaintiff had not until this time been on anti depressants, and he commenced a course of medication. His present treating general practitioner, Dr Barker, said in his report of 8 February 2001 that as a consequence of the use of Zoloft, "His mood is improved without any untoward side effects."

33. The plaintiff was also seen by Dr Donsworth, for the defendant. She did not diagnose any depression, stating that,

"The only psychiatric diagnosis I could apply to this man would be that of Pain Disorder associated with both psychological factors and a general medical condition. By this I mean that there are psychological factors for example his anger, passivity, lack of self confidence regarding the general labour market, social isolativeness and defensiveness, which have perpetuated the pain experienced."

34. In cross examination Dr Donsworth conceded that the symptoms described by the plaintiff and doctors who had examined him as part of his case did fit the criteria for depression. She had described his anger at life in her report, and placed considerable emphasis on his poor relationship with his father. She conceded that a person who felt that their life had been irrevocably changed as a consequence of an accident could well display such anger, and moreover that reactive depression could follow. Dr Donsworth in her cross examination laid considerable emphasis on the fact that, at the time of her consultation, the plaintiff had never been prescribed anti depressants to reinforce her view that the plaintiff was not depressed. In fact, Dr Veness did so prescribe, and his treating general practitioner has continued with anti depressants, changing medications and dosages until the present regime, which he has reported to be successful.

35. On all of the evidence I am satisfied that the plaintiff does suffer from major chronic pain syndrome and major depressive illness as diagnosed by Dr Veness. I am satisfied that this now forms a major part of his difficulties, in that his psychological condition of chronic pain syndrome, which I take to equate with what Dr Cairns, for the defendant, described as compensation neurosis, has lead him to very significantly reduce his use of and mobility in his left knee and wrist, which have been effectively immobilised by bracing, leading to significant and measurable muscle wasting in both limbs. I accept that the plaintiff's degree of claimed disability is out of proportion to his observable mechanical problems, and attribute that to his psychological condition, which has I find developed as a consequence of the accident.

36. The principles to be applied in determining compensation in personal injuries cases have 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'."

37. In relation to general damages, I assess the plaintiff on the basis of the conditions set out above. The plaintiff comes to court as a man who was never very successful at school, and whose main interests had been sporting and physical. There is also evidence that he may have sustained some brain damage as a consequence of a major motor cycle accident in 1982. He had a somewhat chequered work history. Nevertheless, he maintained and enjoyed active involvement in sports, and his physical prowess has clearly been an important part of his life. The plaintiff found employment as a security guard with the Australian Protective Service in the late 1980's, and it is apparent that this employment was very appropriate to him. I was invited by his counsel to see him, in effect, as a man who had `fallen on his feet' in finding this employment, and there is much in this submission. In the Australian Protective Service the plaintiff found secure and well paid employment which was far superior to anything he had previously been able to obtain. I find that the plaintiff was keen to return to his work after his initial fractures resolved, and indeed he did return to long hours with his employer in the years after the accident, even while he was obtaining further treatment for his knee and wrist. The plaintiff does not present as a man who has sought to go onto compensation benefits immediately after the accident, and this must be to his credit.

38. I accept that the accident has had a major impact on this man, and that this impact has now extended over more than 10 years. I accept that he at first had the expectation that, once the mechanical difficulties were resolved, he would recover completely to his pre accident level of fitness. Unfortunately, there were complications with the development of neuromas at the site of his wrist injury, and during this time the fracture to the knee developed into post-traumatic arthritis. To the plaintiff, this meant a long and apparently inexplicable process of continuing troubles from conditions that he had expected would wholly resolve. I accept that he has followed the advice of his doctors, and this has included the extensive use of braces to his wrist and knee since the mid 1990's. On all of the evidence I am not satisfied that this is still medically appropriate, but I accept that the plaintiff has genuinely believed that these braces have been necessary. I accept that he has worn them, and that as a consequence he has in fact weakened his left knee and wrist, and there is extensive wasting in these limbs. Video surveillance confirmed his use of these aids, and that he guards the use of the affected limbs. While he was filmed filling his wife's car with a jerry can of petrol, he did seek assistance in this task, although it also did demonstrate that, when pushed, he does have a level of capacity in his left wrist. I find that his level of disability to his left wrist and left knee, while genuine, is not as severe as he believes.

39. I accept that he has developed psychological sequelae to this accident, and indeed that the condition described by Dr Veness as chronic pain syndrome is now largely the source of his disability. Dr Donsworth expressed the view that the resolution of the litigation will lead to a resolution of his psychological condition, but I am not satisfied that this is necessarily the case. I note that, since he was prescribed anti depressants, relatively recently, there seems on his general practitioner's view to have been some improvement. I expect that the successful resolution of this litigation, in so far as it confirms that the plaintiff has genuinely suffered and ongoing disability, will be of some assistance, but he will remain limited in his movements, and it has been the limitation of his physical capacity that has, I find, lead to the development of his reactive depression.

40. His knee condition will continue to deteriorate with time. While an operative reconstruction of the knee could give some relief, this is a major procedure, and his surgeons do not advise that this be done in the short term. I am satisfied that he will come to surgery over the next ten years, with some relief, but then the prognosis of dependency of further surgical intervention.

41. His wrist condition seems to me on all of the evidence to be mainly down to psychological factors and disuse. I would hope that the plaintiff will heed the generally consistent medical advice, including from doctors who have reported in his case, that he move away from the use of these braces. This will obviously take time, and will need close support from treating doctors. He has over the years ingested high levels of pain relief medication, including morphine based drugs, and this has been an ongoing problem. I am satisfied that he would benefit from additional pain management treatment to seek to further limit pain relief medication. All of these factors will, I am satisfied, lead to an improvement in his psychiatric condition, and in his wrist and knee mobility, but the fact is that his left knee will never be pain free and regain full range of movement.

42. I must also take into account that he has a history of problems with both knees, and indeed came to reconstruction of his right knee to resolve a clearly defined mechanical problem. He has signs of arthritic change in this knee, but remains symptom free. I am satisfied that the plaintiff would in time have come to experience degenerative changes to his knees, and would also have continued to complain, from time to time, of injuries to his knees, as he had in the years leading up to the accident.

43. Nevertheless, the plaintiff presents as a man whose life has been substantially adversely affected by this accident, and this must be reflected in an award of general damages. Taking all of the evidence into account I award the sum of $110,000 in respect of general damages, with $70,000 for the past, generating interest of $15,085 leading to a total award of $125,085.

44. Out of pocket expenses were agreed in the past to amount arithmetically to $70,741. I am satisfied that this amount should be awarded in full.

45. Future out of pocket expenses are a significant factor in this case, being particularised in the amended statement of particulars as a claim for some $69,000. Recurrent costs are claimed for the knee and wrist braces, and special footwear. I have expressed the view that I am not satisfied on all of the medicine that the prolonged bracing that the plaintiff has undergone has been medically justified, and I do not see this as an ongoing expense which should continue indefinitely at present levels. In respect of the footwear, this is also to some extent indicated due to the right knee problem, and this must accordingly be discounted. Pain relief medications have been high in the past, but I again note that there is a consensus in the medical evidence that the levels of use of pharmaceuticals for pain relief has been unduly high. I am satisfied that this ought be lowered over time, which will itself involve some expense by way of appropriate pain management techniques. Use of anti depressant medication has been of relatively recent origin, but I am satisfied that this has proved beneficial, and ought be continued, noting the improvements to date.

46. I am satisfied on the evidence of the orthopaedic specialists, particularly Dr Woods, that the plaintiff will come to surgery on his left knee as a result of the post traumatic arthritis. He says that he will on the balance of probabilities need to undergo an osteotomy within 10 years, and a full knee replacement some 10 years after that. The present cost of each procedure is in the range of $20,000.

47. Taking all of this into account, I award the sum of $50,000 for future out of pocket expenses.

48. The plaintiff's past wage loss claim is based on his loss of earnings up to the middle of 1995, which can be quantified based on the time taken off work and paid by the employer, amounting to $37,444, and then an ongoing claim based on the loss of full wages amounting to a claim for $216,820. I am satisfied that the former claim is made out, and, taking all of the evidence into account, I am also satisfied that the plaintiff has, to the date of trial, been precluded from working due to his accident related disabilities. Counsel for the defendant submitted that his past wage loss, for the period since he ceased working full time in 1995, should be based on the difference between his agreed net weekly earnings from 1995 of $740 per week and the amount that he could have earned as a base grade clerk, estimated at $340 per week. To adopt this approach I would have had to form the view that the plaintiff retained a significant residual economic capacity. It was submitted that his statements in cross examination and to doctors that he did not enjoy the sedentary work that he was trialed at during 1995 established that he had chosen to remain on compensation payments rather than attempting to fully utilise his residual capacity. I am not satisfied of this. I accept that this plaintiff did remain in the workforce up until 1995, that he then ceased full time work on his doctor's advice, and that he found difficulties with the alternative work trials. Given all of the evidence as to his medical condition to date, I am satisfied that this should sound in an award based on full loss of economic capacity to date. The net loss is claimed at $740 per week for 293 weeks to the date of conclusion of the trial, being $216,820, and $217,780 to date of decision. I award this sum.

49. The plaintiff has received workers compensation payments up until August 2000, when he left the public service under an invalidity retirement. He has paid tax of $63,747 on this, which is recoverable as an award pursuant to the principle of Fox v Wood [1981] HCA 41; (1981) 148 CLR 438.

50. Mr Crowe has provided the court with calculations based on the plaintiff's actual net disability pension receipts from 30 June 1995 (being the most practical date for calculation for these purposes) which show that his net loss during the period to trial is in the order of $64,106, which generates interest in the sum of $18,060.32 to 20 February 2001. I award interest on past economic loss in the sum of $18,665 taking this amount to date of decision.

51. The plaintiff's future economic loss claim is particularised as a claim at average net wages for a security guard in the Australian Protective Services, which was agreed for present purposes to amount to $798 per week in February 2001, to normal retirement age. This amounts to a claim for $774,858, which the plaintiff's counsel argues should be reduced only by 20% for contingencies, arguing that he has minimal residual capacity, and that there is insufficient evidence to satisfy me that his economic capacity would have been reduced but for the accident by underlying degenerative arthritis.

52. It must be recalled that the mechanics of his condition are relatively minor. He does experience a degree of left knee pain due to the progression of an arthritic disease, which I have found is accident related. This will continue to deteriorate over time, although invasive surgery will provide some respite. He complains of left wrist weakness, but there is little objective explanation for this, and I have found that this is now mostly attributable to his psychiatric condition. While I have found that this combination has rendered him unable to work to date, I am not satisfied that the plaintiff's combination of conditions are such that I am satisfied that he will never work again. There is support in the medical evidence for the view that he is capable of a range of sedentary occupations. I accept that his education is a limiting factor here, but I am satisfied, on all of the evidence, that the plaintiff will be able to re enter the workforce. Dr Stubbs, who reported in the plaintiff's case, said in his report of 8 November 1999 that the plaintiff had an impairment, for the purposes of the Comcare tables, of 10% for the left arm and 20% for the left knee. The Comcare table, or indeed any system of impairment rating, is not definitive for the purposes of assessing future economic loss at common law, but I point to these conclusions against the claim that this man will never work again in any capacity.

53. The defendant submitted that the plaintiff should be awarded future economic loss, if I was satisfied that the present conditions are accident related, on the basis of the ongoing difference between clerical and security guard wages, being $458 net per week, to age 60, being an award of $231,931.20.

54. I am satisfied that the plaintiff would, but for this accident, have continued as long as he could have in the well remunerated and secure work as a security guard. I am satisfied that the accident has precluded him from doing this, but I am not satisfied that, but for the accident, he would have continued in this work to age 65. The work is demanding, and he has a history of knee complaints well before the accident. There should be some discount factor to take into account early retirement from this type of work. I am also not satisfied that the plaintiff, who has real but not totally disabling physical limitations, will never be able to work. It seems to me that on all of the evidence I should find that he does have a residual economic capacity of some significance. Nevertheless, he has sustained a substantial loss as a consequence of this accident. I am satisfied that he will take some time to achieve a realistic residual economic capacity, and it would in my view be inappropriate to assess him on the basis that from the date of trial his loss is limited to the difference between his lost security officer earnings and notional clerical wages. I must therefore assess future loss on the basis of a man who would have continued to work as a security guard as long as he could, but probably not to age 65, but who has a realistic prospect of utilising a substantial residual economic capacity.

55. I assess the plaintiff on the basis of a loss of $798 for 850 weeks, that is taking him to his mid 60's, which I then discount to 50% to take into account his significant residual capacity. This amounts to an award, by way of a buffer but taking into account the views of the Full Court of the Federal Court in Fry v McCufficke (1998) 1499 FCA, of $339,150, which I award.

56. The plaintiff has particularised a claim pursuant to the principle in Griffiths v Kerkemeyer (1977) 193 CLR 161 for gratuitous assistance in nursing and domestic care. I accept that the plaintiff was substantially immobilised in the immediate period of the accident and his immobilisation by way of wrist and knee plaster. I accept that during this period he received substantial care and assistance from his wife, and that this has recurred when he underwent further procedures on his wrist in the early 1990's. The plaintiff has claimed ongoing care at the rate of six hours a week, but I am not satisfied that this is made out. The plaintiff has a limitation of movement to his wrist, which remains substantially beyond the explanation of orthopaedic specialists, and an arthritic degeneration of his left knee. He remains independent in care and daily functions. While I have no doubt that his teenage son now does lawn mowing and he does not do heavy household jobs, it seems to me that these adjustments, if they are accident related at all, are no more than the normal give and take of domestic relationships, and do not sound in damages, as explained in Van Gervan v Fenton [1992] HCA 54; (1990) 109 ALR 283. I would award a modest buffer, inclusive of interest, of $5,000 in respect of the past post operative care, and make a similar award for the future, based on the need for further operative procedures to the left knee, which will on Dr Wood's evidence be likely to occur twice within the coming decades.

57. This amounts to a total award of $895,168 which I consider to be appropriate in all of the circumstances and award, with costs.

I certify that the preceding fifty six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 23 March 2001

Counsel for the Plaintiff: Mr Kennedy with Mr Crowe

Solicitor for the Plaintiff: Maliganis Edwards Johnson

Counsel for the Defendant: Mr Deakin with Mr McDonogh

Solicitor for the Defendant: Barker Gosling

Date of hearing: 28, 29, 30 & 31 August 2000 & 19 & 20 February 2001

Date of judgment: 23 March 2001