Beniamini v Senti [2004] ACTSC 3 (13 February 2004)

Last Updated: 17 February 2004

GIOVANNA BENIAMINI v LYNETTE SENTI

[2004] ACTSC 3 (13 February 2004)

DAMAGES - personal injury - fractures to sternum and tibia - no issue of principle.

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

No. SC 596 of 2000

Judge: Master Harper

Supreme Court of the ACT

Date: 13 February 2004

IN THE SUPREME COURT OF THE )

) No. SC 596 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GIOVANNA BENIAMINI

Plaintiff

AND: LYNETTE SENTI

Defendant

ORDER

Judge: Master Harper

Date: 13 February 2004

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $137,000.

1. This is an assessment of damages for personal injury arising out of a motor accident on 5 January 2000. The plaintiff was a passenger in a car driven by her husband, which collided with a car travelling in the opposite direction which made a right turn across their path, at the intersection of Belconnen Way and Caswell Drive, Aranda. The defendant was the driver of the vehicle at fault.

2. The plaintiff was born on 15 March 1945. She was fifty-four at the time of the accident, and is now fifty-eight. She was born and grew up in Italy, where she married her husband in 1963. They have five children, three born in Italy and two in Australia. The youngest is now over thirty. The family migrated to Australia in 1970. The plaintiff's husband was born in September 1941, and he is now seventy-two.

3. The plaintiff worked in the early 1970s as a cleaner at the Canberra Rex Hotel. In 1975 she started her own business as a curtain-maker, doing contract work for Grace Brothers, Habitat, Curtin Call and other retailers. She continued with this work until 1996.

4. From 1982 for about four years, the family operated the Tivoli Restaurant at Deakin, and the plaintiff worked there on an irregular basis, assisting her brother-in-law as chef.

5. In 1996, the plaintiff's husband retired and he became a pensioner. The plaintiff was then entitled to a social security partner allowance, and she gave up her curtain-making, effectively retiring also.

6. In 1997, her daughter Silvia and son-in-law purchased La Terrazza, a restaurant in Garema Place in central Canberra. The plaintiff agreed to be the chef, without payment. She had become bored at home and had long had a dream that one day she might run her own restaurant. This arrangement worked well; Silvia and her husband could not have afforded to buy or operate the restaurant if they had had to employ a chef at arm's length. The plaintiff generally worked from about 10.00 am to 2.00 pm, and again from about 5.30 pm to 10.00 pm, sometimes later. The restaurant was not open for lunch on Saturday, and was closed on Sunday.

7. The plaintiff had no pre-accident medical history of significance. She had fractured her right wrist in 1982; she had had some episodes of back pain not long before the accident, which led to a referral for X-rays of both hips in December 1999, but the symptoms were not of sufficient severity to interfere with her capacity to work.

8. Immediately after the accident, the plaintiff was in a lot of pain, particularly in her right leg and foot, and her chest. She could not move or breathe. She was taken by ambulance to The Canberra Hospital and given morphine. She was found to have suffered a fracture of the sternum, a depressed communited fracture of the right lateral tibial plateau, a small avulsion fracture of the talus, and, it became known much later, a syndesmosis injury of the right ankle. She also had general contusions. Dr Chris Roberts, orthopaedic surgeon, performed open reduction and internal fixation on the tibial fracture, with synthetic bone grafting. The plaintiff was in hospital for about two weeks. She developed a rash as a reaction to the morphine, which was unpleasant but disappeared after a few days. She was sent home in a wheelchair with her leg in a splint. After about 10 weeks in the wheelchair, she moved to a walking frame which she used for about three months, followed by a walking stick for about eight months. She had extensive physiotherapy.

9. By about six months after the accident, the plaintiff had recovered from the fracture of the sternum, and has had no symptoms since. The injury is a particularly painful one in the early stages, though fortunately there is no suggestion that there will be any long-term after-effects.

10. In September 2001, Dr Roberts operated to remove the hardware from the tibia, and conducted an arthroscopic investigation of the right ankle, which confirmed synovitis in the ankle capsule. He also found, unexpectedly, a disruption of the syndesmosis of the right inferior tibio-fibular.

11. The plaintiff thereafter continued to complain of constant pain in the right knee, which has improved marginally over the years since the last surgery. She also complains of pain and swelling in the right ankle, aggravated by prolonged standing, and accompanied by tenderness over the lateral aspect of the ankle, with restriction of movement. These disabilities impede the plaintiff's capacity to negotiate stairs. She is unable to use a ladder. She cannot kneel, which restricts her gardening, an activity she used to enjoy. She cannot run, and this restricts her in playing with her grandchildren. She wears an elastic support on the right knee and lower leg. She walks with a limp, because of restricted dorsiflexion of the right ankle.

12. She complains of pain in the low back. The lumbar spine has been put out of alignment by the injury to the right leg, which is now some 2.5 centimetres shorter than the left leg. X-rays confirm narrowing of the intervertebral spaces at L3-4, L4-5 and L5-S1, with associated degenerative changes involving the facet joints.

13. Dr A T Cairns, an experienced orthopaedic surgeon qualified by the solicitors for the plaintiff, who was not cross-examined, expresses the view that she is predisposed to the longer term development of post-traumatic osteoarthrosis in the right knee, and thinks that she may ultimately present as a candidate for total knee replacement arthroplasty. Dr Cairns thinks that the plaintiff is also predisposed to development in the long term of post-traumatic osteoarthrosis in the right ankle, which may require surgical intervention. Her disabilities related to the right knee and ankle are permanent and cannot be expected to improve without surgery. Dr Cairns' evidence is that the current cost of a knee replacement operation would be $12,000 to $15,000, and that of an arthrodesis to the right ankle $8,000 to $10,000.

14. The plaintiff travelled to Italy with her husband at the end of 2002, where she had some treatment, and obtained some benefit from orthotic supports worn inside her shoes. She was referred to a podiatrist in Canberra, and orthotics were fitted, but these were less satisfactory. The Canberra podiatrist explains in a report of October 2003 that the plaintiff has been tested with different orthotics with multiple modifications, with mixed results. There is damage to the common peroneal nerve on the lateral side of the right leg, causing weakness in the peroneal muscle group, leading to instability of gait. The fracture of the tibial plateau has been a complicating factor, making it more difficult for the podiatrist to provide pain relief through altering the balance of the plaintiff's foot and leg. As is explained in the report, supporting the foot in one way could easily overload the weakened peroneal muscle group, while supporting the foot the other way is helpful to the peroneal muscle group weakness but may load up the injured fracture site on the lateral tibial plateau. The combination of the two injuries is described as counter-productive to a speedy result from a podiatric perspective.

15. The plaintiff's general practitioner referred her last year to Dr Anna Dorai Raj, a rheumatologist, who blamed the pain in the right knee and leg on a regional pain problem in the area, accompanied by a degree of osteoarthritis affecting the knee. Dr Raj thought that it would be worth attempting to treat this conservatively, with muscle strengthening exercises and medication. She was hopeful that orthotics might provide some pain relief if fitted properly. A further option was a trial of intra-articular injections of corticosteroid, which would be capable of dealing with the symptoms from the osteoarthritis in the knee but might not help at all with the regional pain problem, though other measures such as Tricyclics and hydrotherapy might assist. Dr Raj's preference was to postpone surgery until these conservative measures had been attempted. Dr Roberts, the treating orthopaedic surgeon, whose evidence was that he last saw the plaintiff about a year ago, similarly was in favour of pursuing conservative measures for a little longer before considering further surgery.

16. The plaintiff's solicitors arranged for her to be seen on two occasions, in April 2000 and October 2003, by Dr G G Griffith, an experienced consultant surgeon. His view is that the patient will suffer progressive arthritic change in the lateral compartment of the right knee, and degenerative change in the right ankle. Her symptoms in the right leg will continue to produce abnormality of gait, predisposing the plaintiff to aggravation of lumbar back pain, which will continue indefinitely unless the leg problems are corrected. He thinks that she will ultimately require a left knee replacement, at a time when her pain progresses to a level she is no longer prepared to tolerate. He thinks that the total cost of such surgery will be of the order of $20,000.

17. The medical evidence in the defendant's case was in the form of written reports by Dr R J Kitchin and Dr W J Coyle, orthopaedic surgeons. Neither was required for cross-examination. Dr Kitchin saw the plaintiff in October 2000 and August 2001; Dr Coyle in May 2002 and August 2003. Dr Kitchin initially formed the view that the injury to the right ankle was a soft tissue one, and would heal without any permanent consequences. He thought that the right knee injury would recover reasonably well, though with a possibility of the development of premature arthritis. When he saw the plaintiff almost a year later, he thought that the likelihood of osteoarthritis developing was high, and that it was reasonable to undertake arthroscopic investigation of the right ankle to identify the cause of the plaintiff's continuing symptoms in that joint.

18. Dr Coyle thought in 2002 that the prognosis for further improvement of the plaintiff's knee and ankle problems was probably poor. He thought that she might develop osteoarthritis in the knee, and that in any event she would continue to have significant symptoms in the knee, and also in the ankle, making it unlikely that she would ever be able to return to her previous work, or indeed to any other form of employment. Dr Coyle at that time thought it unlikely that her knee would proceed to a level where surgery would be required. By August last year, he thought that she had improved to an extent that it was less likely that she would develop arthritis in the knee, though she remained moderately disabled. He also thought that the prognosis was reasonably good for the right ankle, so far as future arthritis was concerned. He said that it was possible that she would develop arthritis of the knee which might develop to a point where knee replacement surgery was necessary, but he was optimistic about the outlook, partly because her symptoms had improved and partly because if arthritis had been going to develop, he would have expected to see evidence of it by then. He noted that there was no radiological evidence of arthritis in the right ankle, and no fracture of the ankle, making it highly unlikely that arthrodesis of the joint would be required in the future.

19. My task is not to arrive at a finding as to whether or not the plaintiff will require surgery to the right knee or ankle in the future. Rather, it falls to me to assess the chance that such surgery may be required: Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638. None of the medical experts commits to a prediction as to future surgery with any degree of certainty. The evidence considered as a whole obliges me to find that there is some prospect that surgery to the knee may be required in the future, and some prospect that surgery to the ankle may also be required. I am persuaded that there is a somewhat higher than 50-50 chance that the plaintiff will ultimately come to a knee replacement operation, though probably not for five to ten years; and a chance of the order of 25% that she will eventually require an arthrodesis of the right ankle.

20. About six months after the accident, the plaintiff's daughter and son-in-law sold the restaurant, La Terrazza. They could not afford to keep it going if they had to pay a chef to do what the plaintiff had been doing. It does not seem to me likely that the restaurant would ever have increased its profitability to a level where the owners could have afforded to pay the plaintiff a commercial wage as a chef. In any event, I do not think that it would have suited the plaintiff's economic interests to have been paid for what she was doing. It appears to me that this would have affected the plaintiff's entitlement to a partner allowance, and might also have affected her husband's entitlement to an age pension. Also at risk would have been the additional benefits available to pensioners, for example, access to pharmacy benefits.

21. I think it highly unlikely that the plaintiff would ever have realised her dream of owning her own restaurant. There was no family capital available to put into the purchase, establishment or fit-out of a restaurant. I do not think that such earning capacity as the plaintiff may have had at the time of her accident, in relation to work as a chef or restaurant proprietor, ever had any practical likelihood of being reflected in the earning of income.

22. The plaintiff's alternative case is that, if it had not been for the accident, she would have exercised her earning capacity to produce income from curtain-making. The evidence is that she returned to this activity about May 2002, and that she worked a few hours a week at it, with a friend. She kept handwritten records which reflect earnings as follows:

May 2002 $180.50

June 2002 $285.00

July 2002 $50.00

August 2002 $540.00

September 2002 $270.00

February 2003 $112.50

March 2003 $367.50

April 2003 $105.00

August 2003 $476.00

September 2003 $380.25

October 2003 $216.00

23. The plaintiff kept these records for the purpose of disclosure to Centrelink, as she was required to do. The earnings led to some adjustment of her partner allowance entitlement. Her case is that but for the injuries, she would have worked much longer hours and earned much more money. Again, I am not satisfied that this would have happened. As I have mentioned, there were limits to the amount the plaintiff could have earned without jeopardising the entitlements of herself and her husband to their pension and allowance, and to related benefits. Additionally, the evidence is that the plaintiff's husband is suffering from the early onset of dementia, so that he requires increasing care and cannot be relied upon to attend to tasks which would have been within his capacity in the early years of his retirement.

24. I accept the plaintiff's evidence that she suffers pain in her right leg every day of her life. I found the plaintiff to be a truthful and impressive witness, and did not form any impression of exaggeration. She had an acute period of severe pain because of the fracture of her sternum, though fortunately this has resolved completely, but she has been left with continuing pain in the right knee, and a deformity of the lower right leg which affects her gait, and causes, or at least exacerbates, pain in her low back. The pain in the knee will be permanent unless it is ultimately resolved by successful surgery, and the same is true of the ankle. The plaintiff's enjoyment of life has been greatly reduced by the loss of her unpaid work as a chef at her daughter's restaurant, which would probably have continued to be available to her for as long as she could cope with it. She has generally lost mobility and her enjoyment of life has been considerably reduced. It seems to me that an appropriate figure to compensate her for pain and suffering and loss of enjoyment of life is $60,000, of which I apportion $25,000 to the past and $35,000 to the future, noting that it is four years since the accident and that it can be expected, by reference to the Australian Life Tables of 2002, that she has a life span of some twenty-six years in prospect.

25. The past component attracts interest at the conventional rate of 4 per cent, spread over the period since the accident, which I calculate at $2,000.

26. Treatment expenses up to trial were agreed at $27,291.98. I round this sum up to $28,000 to allow for the period between trial and judgment. The bulk of the amount has been paid by the defendant's insurer, but about $5,000, on the evidence, has been paid by the plaintiff, and I allow $1,000 interest on that amount.

27. In arriving at a figure to compensate the plaintiff for future treatment and related expenses, I refer to my findings as to the likelihood that the plaintiff will ultimately require surgery to the right knee and to the right ankle, and I acknowledge that a discount must be applied to the sums allowed, to take account of the fact that if she comes to surgery, it will not be for some years. I allow $4,000 for the chance that the plaintiff will be put to the expense of surgery to the knee; $1,000 for the chance that she will be put to that expense in relation to the ankle; and $7,000 to compensate her for the other expense to which she will be put regardless of whether or not surgery is eventually required. The latter sum is to cover general practitioner consultations, physiotherapy, chiropractic and podiatric treatment and pharmaceutical expense, as well as occasional referrals for specialist opinion. These add to a total of $12,000 for future medical and similar expenses.

28. The plaintiff is entitled to be compensated for loss of earning capacity to the extent that the lost capacity would probably have been productive of income. It is inappropriate in a case of this nature to attempt to perform a mathematical calculation in relation to this aspect of the claim. I am nevertheless satisfied that the plaintiff's earning capacity has been substantially reduced. I think that she probably would have utilised the lost capacity to earn some income to date, and I allow $5,000 inclusive of interest in respect of loss of earning capacity from the accident to date. For the future, I think that the plaintiff probably would have continued to exercise that capacity to some degree had it been available to her, and I allow $10,000 for the future.

29. A claim is made for the notional cost of services which have been provided to the plaintiff by members of her family. It is conceded that an appropriate rate in respect of this component of the claim is $15.00 per hour. I accept that the plaintiff's need was greater during the six months immediately following the accident, probably of the order of five to seven hours per week. For the balance of the period since then, I propose to allow an average figure of about two hours per week, and for the future, about an hour per week, for an indefinite period though not for the rest of the plaintiff's life: ultimately the ageing process would have given rise to a similar need. It is unrealistic to attempt to calculate these notional figures mathematically. I allow $7,500 for past services plus interest of $1,500; and $10,000 representing the present value of the continuing need for services.

30. The individual components of the award are as follows:

General damages $60,000

Interest $2,000

Treatment expenses $28,000

Interest $1,000

Future treatment $12,000

Past earning loss $5,000

Future earning loss $10,000

Past services $7,500

Interest $1,500

Future services $10,000

________

Total $137,000

31. The total amount appears to me to be reasonably proportionate to the injuries suffered by the plaintiff and their consequences for her. There will be judgment for the plaintiff in the sum of $137,000. The defendant is to have credit for the treatment expenses already paid by the insurer, and the judgment is to be regarded as already satisfied to that extent. I will provide the parties with an opportunity to make submissions as to costs and any other issues which may arise from these reasons.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Harper.

Associate:

Date: 13 February 2004

Counsel for the plaintiff: Mr R L Crowe SC

Solicitors for the plaintiff: Maliganis Edwards Johnson

Counsel for the defendant: Mr A J Stone

Solicitors for the defendant: Phillips Fox

Date of hearing: 3, 4 November 2003

Date of judgment: 13 February 2004