Gorman v Kelleher [2007] ACTSC 13 (12 February 2007)

Last Updated: 7 May 2008

WILLIAM HENRY DARTON GORMAN v THOMAS KELLEHER [2007] ACTSC 13 (12 February 2007)

EX TEMPORE JUDGMENT

No. SC 627 of 2005

Judge: Crispin J

Supreme Court of the ACT

Date: 12 February 2007

IN THE SUPREME COURT OF THE )

) No. SC 627 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: WILLIAM HENRY DARTON GORMAN

Plaintiff

AND: THOMAS KELLEHER

Defendant

ORDER

Judge: Crispin J

Date: 12 February 2007

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $207,621.71.

2. The defendant is at liberty to deduct from the judgment monies the sum of $5,144.40 for out of pocket expenses previously paid on the plaintiff's behalf.

3. The defendant pay the plaintiff's costs on a party-party basis.

4. Interest on the judgment sum is not to be payable on the judgment sum provided 90% is paid to the plaintiff within 28 days and the balance is accounted for to the satisfaction of the plaintiff's solicitors within that period.

1. This is a claim for damages in respect of the injuries sustained in a head-on collision between the plaintiff's car and a vehicle driven by the defendant on 11 December 2004. At the time of the accident the latter vehicle was on the wrong side of the roadway, and liability for the plaintiff's injuries is not in issue. I am required only to assess damages.

2. The plaintiff was born on 13 March 1952, and accordingly was 52 years old when the accident occurred. He had left school at the earliest opportunity, and subsequently pursued a number of jobs, generally involving manual work of some kind. He was able to maintain employment until October 1993 when he hurt his back whilst lifting.

3. That accident was severely disabling, and he never subsequently returned to work. The chronic pain that he suffered as a consequence, clearly had a devastating effect on his lifestyle, though in the years immediately preceding the car accident in 2004 he had been able to resume or adopt a number of social and recreational activities. He participated in a dance competition, played pool, tended his garden, albeit with some help, and generally looked after himself at home, again with some assistance.

4. His claim against his employer in respect of his back injury was settled in 2000, and he received a substantial sum of money. Sadly, he apparently lost most of it gambling. However, the settlement did enable him to buy a new car which he enjoyed driving and was able to clean and maintain prior to it being written off as a consequence of the car accident in December 2004.

5. He had also bought a lathe and a welding kit and used them primarily as a hobby, though he had also entertained some hope of selling a few items at some stage in the future. He had become interested in painting designs on motor vehicles and other objects using a technique known as airbrushing, and had enrolled in a course to learn the relevant techniques. In short he had been able to establish a new, though somewhat fragile lifestyle in which he had been able to do many of the things from which he previously been disabled, though at a slower pace.

6. Much of his social life had clearly occurred within the Chisholm Tavern where he not only played darts and pool but also attended social functions. During the weeks before the 2004 accident he had begun to provide some unpaid assistance to the licensee by collecting empty glasses and sometimes emptying ashtrays, she had subsequently offered to employ him for one or two nights a week as "a glassie".

7. As a result of the accident in 2004 he suffered soft tissue injury to the cervical and thoracic spine with the aggravation of a pre-existing injury to the lumbar spine, traumatic chondromalacia of the right knee with meniscus and ligamentus damage, a fractured sternum, fractured ribs, a collapsed lung and facial lacerations.

8. It is clear from the evidence of Dr Stevens, a psychologist, that he had also suffered some psychological difficulty, which Dr Stevens thought constituted a pain disorder associated with psychological matters and his general medical condition, an adjustment disorder with anxiety and a major depressive disorder.

9. As a consequence, he has suffered increased pain and been obliged to increase what had already been substantial dosages of Panadeine Forte and other analgesics. His sleep patterns had been substantially disrupted and he suffered from depression. He claims that the lifestyle that he had so painstakingly carved out for himself during the years prior to the accident has been substantially destroyed, and that as a consequence he is substantially dependent upon his sister and others to come in and clean, cook and do other household chores for him.

10. The plaintiff is of course entitled to damages to compensate him for the injuries and disabilities he has sustained as a result of the car accident in December 2004, including any aggravation of pre-existing disabilities. However, he is obviously not entitled to further compensation for the continuing pain and disability properly attributable to the earlier accident in 1993.

11. The difficulty lies in disentangling the extent to which his present disabilities are now substantially attributable to the latter rather than the former accident. This difficulty is compounded by the fact that the plaintiff seemed unable to provide a wholly accurate account of the extent of his symptoms immediately prior to the car accident and the extent to which they have subsequently deteriorated. I formed the impression that he was a generally honest witness, but a poor historian. At times during cross-examination he readily made admissions that were inconsistent with things that he had said during the course of his evidence-in-chief, but did not seem to realise that there had been any such inconsistency.

12. Nonetheless, there is other evidence as to the extent to which he had made progress prior to the car accident and the extent to which that has been lost. His sister, Ms Gorman, gave evidence that he had improved over the years. She explained that while she had been coming in and assisting him on a regular basis he had improved since 1993 to the point where he could do some vacuuming and cleaning by himself. Indeed, she said the only thing that he had been unable to do was to clean the bathrooms and hang the washing out. She had been assisting him for perhaps 2 or 3 hours per fortnight. After the 2004 accident his condition, she thought, had deteriorated to the point where she was obliged to increase that very substantially and spend just over 8 hours a week assisting him.

13. There was also evidence from a friend of his, Mr Stephens who again spoke of his improvement prior to the car accident. He said it had taken him eight or nine years to get back to the condition that he had been in immediately prior to the accident, he had just slowly improved over that period. He had got back to the point where he could lift lighter things that he'd been unable to lift before, and able to work in the garden, though unable to lift heavy rocks. Mr Stevens worked with the plaintiff on his car and they had played darts together. The car had apparently been a source of some pride to the plaintiff, he had bought that with the proceeds of the first accident, that is that portion of the proceeds of the first accident that he had not lost gambling.

14. Ms Hunt, the licensee and co-proprietor of the Chisholm Tavern gave evidence of observing a substantial improvement in his physical condition over the years immediately prior to the car accident. She confirmed that he had been a regular patron of the hotel, and that she had noticed that he had developed a habit prior to the car accident of picking up glasses for her and other staff of the hotel. She said that as a consequence of this she had eventually offered him a part-time job as a "glassie". I understand that to be a term which describes a person paid to pick up glasses and return them to the bar. She said that she would have employed him in that capacity for about six hours a night, at two nights a week for most of the year. In further evidence she explained that business was quiet in January and in the two months over the winter months, and that she would have needed someone to work as a "glassie" for about nine months of the year. She also said that she found it difficult to get someone to fill in in a supervisory role when she wanted to take some time off, and that she would have employed him in that capacity for perhaps one or two nights every one to two months. She mentioned that she would have paid him $14 per hour as a "glassie", and that the standard rate for a supervisor was $18.75 per hour.

15. It is, I think, abundantly clear that the plaintiff was a person who had suffered quite severely from the first accident but, as I have mentioned, had been able to carve out a new lifestyle for himself as his symptoms gradually abated over an extended period of time.

16. The progress that he had been able to make in that way was lost to him as a result of the severity of the injuries that he sustained in the car accident in December 2004. That must have been an emotional blow, not only because of the severity of the injuries themselves, but also because it would have dashed the hopes that he had formed as a result of his achievements in being able to regain his social life despite his earlier disabilities.

17. So far as general damages are concerned, it is important to bear in mind that some portion of his continuing pain and other disabilities are attributable to the earlier accident, but against this fact must be balanced the severity of his present disabilities, and the psychological impact of the accident upon him. It is, of course, impossible to precisely delineate the extent to which the earlier accident impinges upon his present disabilities. Nonetheless, I take it into account.

18. I allow the sum of $60,000 for general damages. Having regard, on the one hand, to the recency of the accident but, on the other hand, the trauma of the accident itself, his hospitalisation and its immediate aftermath, I allocate $25,000 to the period from the accident to date. I allow interest at 2% per annum for 2.16 years on that sum. That amounts to a further amount of $1,080.

19. Past medical expenses have been agreed in the sum of $5,581.44.

20. So far as future medical expenses are concerned, it seems to me that some of the matters put forward by the occupational therapist on the plaintiff's behalf were based upon projections that may prove to have little basis in reality. I allow the sum of $10,000 for a future operation and the sum of $1,810 for counselling, that being the figure suggested by Dr Bruce Stevens rather than the figure suggested by the occupational therapist. I allow a total sum of $5,000 for hydrotherapy and physiotherapy, that being very much less than the amounts claimed for those items. In addition to that, I allow the sum of $10,000 for future medication and for future medical expenses, such as visits to the general practitioner and the like. I disallow the claim for a recliner chair. That amounts to a total figure for future medical expenses of $26,810.

21. So far as past economic loss is concerned I accept Ms Hunt's evidence that she would have offered him a job to work for the Chisholm Tavern for six hours per night, two nights per week for about nine months a year. For the purposes of these calculations I have worked on the basis that nine months per year would equate to 37 weeks. Having regard to the way in which the seasons have fallen, it seems to me that that would have involved a past working loss of 78 weeks, that being 37 weeks for two years plus a further four weeks to allow for the fact that the hotel would have required him during January. 12 hours per week for 78 weeks at $14 per hour amounts to $13,104. In relation to the proposal to employ him as a supervisor, I accept that she would have offered him a position in which he would have been required to 8 hours per night, 2 nights per month, and that over the last period of 2 years and 2 months he would have worked in all for, say, 12 nights at $18.70 per hour. I allow $1,800 for that.

22. It seems to me to be appropriate to make some allowance for the vicissitudes of life even in relation to this past wage loss. The plaintiff was not a well man, he had been struggling with other problems and it may well be that he would have been unable to work every night. Accordingly I allow a 10% allowance for that factor. That reduces the net past loss to $13,414. It was not suggested that this figure should be reduced by reason of any taxation liability or impact upon social security entitlements.

23. I allow a further amount for past loss of superannuation, amounting to 9% of that figure. That amounts to $1,207.26.

24. I allow interest on the past loss at 5% for 2.16 years on those figures. That amounts to $1,315.95.

25. So far as the future is concerned, it must be borne in mind that this man's disabilities could be ameliorated by the operation suggested by Dr Gillespie the orthopaedic surgeon who examined him some time ago. It is true that he would still be left with disabilities with his shoulder and with continuing depression, and one must take a somewhat bleak view of the future.

26. I take into account both the potential position as a "glassie", and the potential position as a supervisor. So far as the position as a "glassie" is concerned, I have made calculations again on the basis of six hours per night for two nights per week for 37 weeks per annum at $14 per hour, that amounts to $6,216 per annum. Again so far as the supervisory role is concerned I allow eight hours per night at six nights per annum at $18.75 per hour, which amounts to $900. That amounts to an annual figure of $7,116.

27. If that figure is allowed for 11 years, that is to age 65, with a 3% discount factor and an allowance of 35% for discount for vicissitudes of life which I consider appropriate in the circumstances, that amounts to $43,586.73. I allow a further sum of $3,922.81 for the loss of future superannuation.

28. So far as the Griffiths v Kerkemeyer claim is concerned, I allow for past assistance of 4 hours per week at $19 per hour. That amounts to $76 per week for 113 weeks, which amounts to $8,588. I am conscious that more than that was claimed, but it seems to me that allowance needs to be made for three things: first, some of that work had to be done as a consequence of the first accident; second, is that some of it may have been done substantially because of affection of a sister to a brother; and third, some of the time seemed to have been spent chatting and having tea. I allow a global sum of $30,000 for future assistance.

29. I also again take a global figure of $5,000 for past and future gardening expenses.

30. On my calculations that amounts to a total sum of $207,621.71.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 6 March 2007

Counsel for the plaintiff: Mr M Cranitch SC with Mr MInglis

Solicitor for the plaintiff: United Legal

Counsel for the defendant: Mr P Ryan

Solicitor for the defendant: Moray & Agnew

Date of hearing: 23, 24 October 2006, 12 February 2007

Date of judgment: 12 February 2007