Kook v Caftor Pty Limited [2008] ACTSC 101 (17 September 2008)

DAMAGES – personal injury – cuts to hand by broken glass – no issue of principle

Shields v Gurcinoski trading as Perfect Air Refrigeration Air Conditioning & Heating & Ors [2006] ACTSC 109

2. The defendant pay the plaintiff’s costs, costs incurred subsequent to 30 November 2004 being assessed as between solicitor and client.

1. In this matter I delivered judgment in relation to liability in January last year, it having been agreed between the parties that the hearing would initially proceed in relation to liability only. I found that the defendant was negligent, there had been no contributory negligence and I entered judgment for the plaintiff for damages to be assessed.

2. An appeal by the defendant was dismissed by the Court of Appeal and hence the matter came back before me for the assessment of damages yesterday.

3. The plaintiff was injured in March 2002 at Mooseheads nightclub when he was bumped on the dance floor and fell and cut his hand on a broken glass, or on a glass which broke because of the impact. The plaintiff was then twenty years old. He had attended Canberra Grammar School. He showed some promise at Australian Rules football. Because Canberra Grammar did not offer Australian Rules football as a sport, he played with St Edmund’s College. He played well enough to be offered a scholarship to play for the Queanbeyan Tigers in the ACT AFL competition.

4. He completed Year 12 at school and gained a score in the Higher School Certificate of 75. This was not enough to gain access to his preferred university course in physiotherapy, but it was sufficient for admission to the degree course of a Bachelor of Science in Human Biology at the University of Canberra.

5. He undertook that course for two years, passing most subjects but failing one subject in his first year and two in his second year. The second-year subjects were human physiology and anatomy II, and neuroanatomy and motor control.

6. At the end of 2001 his ambition was to complete that degree and then to apply as a graduate for entry into a physiotherapy degree course. He had however made an interim decision to ask for a deferment of his course for financial reasons for twelve months, which had been approved.

7. His evidence is that he intended to remain out of the university course only for the first semester. He was reasonably confident that despite the deferment for the year he would be permitted to resume the course after six months.

8. He had a part-time job at the Tuggeranong Vikings Club as a barman. He had been working there since he was eighteen in a casual capacity, earning something like $230.00 to $240.00 net per week.

9. Following his injury he was in considerable pain. It appears that he lost a lot of blood. He was taken by ambulance to the Canberra Hospital where his injured right hand was operated on. His evidence is that although he wrote with his left hand he did a number of other things with his right hand, for example, playing golf and batting at cricket right-handed.

10. There is no real issue about the medical evidence. No doctors gave oral evidence. I had in evidence a copy of the Canberra Hospital clinical notes; a report of Dr Chandra Patel, the plastic surgeon who initially operated on his hand; reports of his general practitioner, Dr Richard Rowe; a short handwritten report by Dr Kao, an orthopaedic registrar at the Canberra Hospital; and two reports by Dr Ron Brooder, a neurologist who was engaged by his solicitors to examine him and to provide reports for the purposes of the case.

11. I was informed that the solicitors for the defendant had had the plaintiff examined for the purposes of the case by three specialists, Dr Faithfull, an orthopaedic surgeon; Dr Rea, a hand surgeon; and Professor James Lance, a neurologist. None of their reports were served on the plaintiff’s solicitors. I draw the available inference that their evidence would not have assisted the defendant’s case. Indeed I can probably go a little further and say that I can accept the evidence of Dr Brooder with greater comfort knowing that Professor Lance, who is one of Australia’s most highly regarded neurologists, and a neurologist of world standing, did not take issue with Dr Brooder’s opinion.

12. The history of the incident and the plaintiff’s progress was succinctly summed up by Dr Brooder in a report of 17 January 2008. When the plaintiff fell he landed on his right wrist on the palm of his right hand on a broken glass. He was immediately aware of sharp severe pain in the palm of the hand. He sustained multiple lacerations to the palm of the hand extending to the right wrist and the ulnar aspect of the hand. The lacerations were associated with profuse bleeding. The plaintiff was also aware of marked numbness involving the right thumb, index and little fingers.

13. He underwent surgical exploration and repair of the injuries. At the time of the surgery there was an untidy laceration of the palm, division of the right ulnar artery, division of the right median nerve, a 90% division of the flexor digitorum superficialis tendon to the right middle finger, and a partial division of the common digital nerve to the second web space. The wound was enlarged at the right carpal tunnel and decompressed. The damaged tendons, nerves and artery were repaired, and the right wrist and hand immobilised in a plaster cast.

14. The plaintiff was discharged the following day in a cast and splint with a prescription for Panadeine Forte. Over the subsequent months the right hand slowly improved. The pain improved significantly, but the numbness and weakness in the hand persisted.

15. As a result of the right hand symptoms the plaintiff was unable to return to his previous employment as a barman. About six months after the injury he found work briefly at a sporting goods retail outlet, after which he obtained full-time employment with the Commonwealth Public Service.

16. He remained aware of the persistent and somewhat patchy numbness of the right hand, particularly involving the right thumb, index and little fingers. As a result of the numbness he sustained a number of inadvertent injuries and burns to the right hand. He was also aware of weakness in the right hand grip, and a loss of right hand dexterity, with impaired flexion of the fingers and impaired flexion of the right wrist.

17. When Dr Brooder first saw the plaintiff in June 2004 he recorded numbness in the right hand, particularly involving the thumb, index and middle fingers, as a result of which the plaintiff tended to limit the use of the right hand with a view to limiting any further risk of injuring himself by hot or potentially dangerous objects. The hand remained generally weak, particularly in grip, and there was a large loss of dexterity. He could not flex the fingers of the right hand or the right wrist fully.

18. The plaintiff told Dr Brooder on that occasion that three or four times a week, usually related to use of the right hand, he would develop an intermittent transient sharp pain through the mid-palm of the hand. As a result of these symptoms he had become increasingly dependent on the use of his left arm and left hand.

19. By the time he saw the plaintiff for the second time in January 2008, Dr Brooder noted that he had been able to continue with his full-time employment in the Public Service, working in clerical and administrative areas. He continued to suffer from numbness and weakness in the right hand.

20. Over the last few years his symptoms had remained essentially unchanged. Sensation was essentially absent over the right thumb, index and middle fingers, and the radial side of the ring finger extending to the palm of the hand. Activities involving a firm right-hand grip would induce a tingling parathesia in the thumb and those fingers. At the same time the plaintiff felt that since the injury there had been a general improvement in the strength of the right hand.

21. He told Dr Brooder that he had, before the accident, considered himself to be essentially right-handed despite writing with his left hand, but he had had to become increasingly dependent on the left hand for daily activities. He was independent in daily living and general personal care but had continuing difficulty with activities involving fine manipulative use of the right hand and fingers, for example, doing up and undoing buttons, zippers and shoelaces. He was significantly limited in gardening activities. In early 2006 he had returned to play Australian Rules Football. He had been able to play for that season, though with an impaired ability to control the football and some difficulty in catching the ball.

22. Dr Brooder was asked to comment on the plaintiff’s pre-injury ambition of becoming a physiotherapist. The plaintiff’s evidence in this Court was that he had aspired to become a sports physiotherapist attached to a football team. That, he said, would have been his ideal job.

23. Dr Brooder made the obvious point that the plaintiff’s ability to work as a physiotherapist would depend on completion of his university studies, and successful transfer to a physiotherapy course. Assuming success in that direction Dr Brooder thought that the plaintiff could qualify to work as a physiotherapist, but that his ability to work in that profession in a full and unrestricted way would be limited. The precise limitations would depend on the type of physiotherapy he elected to pursue.

24. Dr Brooder was asked whether the plaintiff was likely to require any further medical treatment. He answered in the affirmative. He thought that the plaintiff required additional investigation to evaluate any potential underlying cause for the failure of the right median neuropathy to resolve. In Dr Brooder’s view the plaintiff required an MRI scan to evaluate the possibility of any residual scarring or perhaps neuroma formation developing in the right median nerve at the wrist or in the hand. Depending on the outcome of the MRI scan he might require further surgery.

25. Dr Brooder had been informed that a Canberra orthopaedic surgeon, Dr Chris Roberts, who is known to have particular interest in hand surgery, had said that the plaintiff might benefit from surgery in the form of excision of the scarred median nerve and cable grafting and nerve transfer. Dr Roberts did not perform such surgery himself. He had recommended that the plaintiff see a Dr Michael Tonkin at Royal North Shore Hospital in Sydney for opinion and if necessary for surgery. Dr Brooder endorsed the recommendation. He thought that the MRI scan was likely to cost about $800.00.

26. Dr Brooder went on to say that prognosis for further recovery in the right median nerve function was quite guarded. He considered that the plaintiff would remain subject to persistent symptoms in the right hand, related to the median nerve pathology. He remained, in Dr Brooder’s opinion, at long term risk of sustaining inadvertent injuries and burns to the right hand. He was also at long term risk of developing premature degenerative changes involving the small joints of the right hand due to the altered mechanics of hand function consequent on the residual weakness in the hand.

27. There was also, in his view, a long term risk that the plaintiff might develop increased soft tissue scarring involving the right wrist and hand which could cause further deterioration in the right median neuropathy. The exact risk of that complication occurring he could not predict. There was also a long term risk that the plaintiff might develop a neuroma at the site of the median nerve injury, which could result in further deterioration and right median nerve function or the development of a neuralgic pain syndrome. He was unable to predict the precise risk of that occurring.

28. The injury was a severe one. It has left the plaintiff with obvious scarring which I have had the opportunity to see, and with restriction of movement in the hand, and numbness and at some times pain in the form of cramping. This occurs from time to time. The plaintiff’s wife is able to assist by pulling his fingers and thumbs apart, releasing the cramp. Generally if his wife is there to help him in that way, the pain is relieved within minutes.

29. The plaintiff has been married for about a year. He and his wife have bought their own house at Kambah. The house is on a full-sized block of land but has a relatively small lawn which does not require a great deal of attention. The plaintiff’s evidence is that most of the work in the garden is still done by his wife. Whilst he can undertake vacuum cleaning in the house, there are many other tasks which he finds either that he cannot do or that he is unacceptably slow at doing, and which his wife does.

30. For a period after the surgery the plaintiff required a considerable amount of assistance with dressing and bathing. He will require, permanently, some help with some tasks. Sensibly he does what he can to avoid tasks which might prove difficult for him, for example, wearing slip-on rather than lace-up shoes.

31. The injury has also caused him some psychological problems. I was able to observe at first hand, while the plaintiff was giving his evidence, some emotion, when he was asked to identify photographs of the damage to his hand in the early period. Although the plaintiff has done well in the Public Service, having been promoted a number of times so that he is now at the level of APS 6 in the Commonwealth Attorney-General’s Department, he has effectively lost the opportunity to pursue his ambition of qualifying as a physiotherapist.

32. The evidence does not satisfy me that he would more probably than not have become a physiotherapist, but I must take account, in assessing damages, of the fact that he has lost the opportunity to do so. I am satisfied that there was some possibility that he would have succeeded, and qualified to work in the area where he really wanted to work.

33. In relation to general damages, I invited counsel for the parties to put figures to me if they wished to do so. Counsel for the plaintiff submitted that an appropriate range for general damages would be $120,000.00 to 140,000.00. Counsel for the defendant submitted that I should see a figure of $70,000.00 as the top of the range.

34. Counsel for the defendant referred me to two earlier decisions of my own Browne v Coghill [2006] ACTSC 123 and Shields v Gurcinoski trading as Perfect Air Refrigeration Air Conditioning & Heating & Ors [2006] ACTSC 109, both of which I have revisited. I have not found them of particular assistance as in each case the injuries were very different. As counsel for the defendant conceded, every personal injury case depends on its own facts.

35. Doing the best I can, it seems to me that an appropriate figure to compensate the plaintiff by way of general damages for the severe injury he sustained, taking account that it will be with him for the rest of his life, is $90,000.00. I apportion $30,000.00 of that sum to the past. I award interest bearing in mind that the past component is weighted somewhat more heavily towards the early period after the injury, of $5,000.00.

36. The past treatment expenses are agreed at $2,803.05. There is no claim for interest on that amount. There is a claim for future treatment expenses. In that regard I take account of Dr Brooder’s evidence. I cannot be satisfied that it is more likely than not that the plaintiff will have future surgery, but it has been recommended and I take account of the fact that for the first time since his injury the plaintiff will be in a financial position to afford the treatment.

37. I also take account of the various other conditions which Dr Brooder has warned may develop in the long term. I am unable to take a mathematical approach to the assessment of an award for future treatment expenses. I propose to award a figure of $10,000.00.

38. Past loss of earnings are agreed at $4,422.71. Counsel for the plaintiff submitted that I should, in addition to that, make some award to compensate the plaintiff, effectively, for the loss of the two years he spent in his science course. I am not disposed to do that. Any such loss would be offset by the money the plaintiff has earned in the Public Service which he would not have earned if he had spent those years pursuing his ambition, completing his science course and then physiotherapy degree. I make no further allowance for past economic loss. The figure awarded for past economic loss attracts interest at the prescribed rate of 9% per annum for six years, and in that regard I allow $2,500.00.

39. There is a claim for loss of earning capacity. It is again not an area that is capable of a mathematical approach. The plaintiff has a good job in the Public Service. There is no reason to suppose that he will not continue to work in the Public Service unless he chooses to pursue some other career. His present work is within his capacity and likely to remain available to him. On the other hand, he is only twenty-six years of age and one cannot be sure what might happen in the future as to availability of work. One thing that I can be sure of is that many areas of employment which would have been available to him without this injury are no longer available to him. If he does find himself out of work for any reason, the areas of employment available to him will be much less extensive than they would have been if he had not been injured.

40. Counsel for the plaintiff submitted also that he had effectively lost the opportunity to work in a second job as a barman. The plaintiff did work for a short time last year in that capacity, through the intervention of a friend who was a supervisor at the club where the plaintiff found work. He worked there for a fixed period in order to raise money to buy an engagement ring. There were many tasks which he had been used to performing as a barman before the injury which he found himself unable to perform, and indeed was told not to attempt.

41. It is possible that exigencies might arise in the future where the plaintiff might wish to undertake other work in addition to his day job to earn money for a specific purpose. His capacity to do that is undoubtedly reduced by his injury.

42. Additionally, I take account of the fact that if the plaintiff proceeds to surgery he will have, inevitably, some time off work recovering. If the long term conditions which Dr Brooder foreshadows come to pass, one or more of those may also result in the plaintiff being unable to continue working and earning income for a period of time and conceivably might result in his having to retire earlier than he might otherwise do. Doing the best I can, I select a figure of $30,000.00 which I award for future economic loss, or loss of earning capacity.

43. There is a claim for loss of superannuation benefits. The conventional approach of this Court is to adopt a figure of 9% and apply it to the amounts awarded for past and future economic loss. Applying that approach I award $400.00 for loss of superannuation in relation to past economic loss and $2,700.00 for loss of superannuation benefits in relation to loss of earning capacity for the future.

44. I have made reference previously to the claim for gratuitous services required by the plaintiff and provided by members of his family including, over the last twelve months, his wife. Attempts were made in the evidence, as frequently happens in cases of this kind, to put precise hours per day and hours per week on these activities, an approach I rarely find helpful and which is inevitably artificial and conjectural. I am satisfied that the plaintiff has such a need and that it has been satisfied by family members in the past and will continue to be in the future. I award for the past Griffiths v Kerkemeyer component $10,000.00. That award attracts interest of 9% evened out over the period since the injury. For interest I award $3,000.00. For the Griffiths v Kerkemeyer component for the future I allow $5,000.00.

45. Counsel for the plaintiff sought to make out a claim under section 100 of the Civil Law (Wrongs) Act 2002 for what used to be known as the Sullivan v Gordon component (before the High Court held that no such category of damages was recoverable at common law). Such a category does exist under the statute, but no particulars of it have been provided and the evidence, in any event, would not go so far as to justify my making any award under that head.

General damages	$ 90,000.00
- interest on past component	$ 5,000.00
Past out-of-pocket expenses	$ 2,803.05
Future out-of-pocket expenses	$ 10,000.00
Past economic loss	$ 4,422.71
- interest thereon	$ 2,500.00
Loss of earning capacity - future	$ 30,000.00
Loss of superannuation benefits
- past	$ 400.00
- future	$ 2,700.00
Griffiths v Kerkemeyer
- past	$ 10,000.00
- interest thereon	$ 3,000.00
- future	$ 5,000.00
Total	$165,825.76

48. (Following submissions as to costs and the disclosure of a Calderbank offer): The defendant is ordered to pay the plaintiff’s costs, with those costs incurred subsequent to 30 November 2004 being assessed as between solicitor and client.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Solicitors for the defendant: Eakin McCaffery Cox by their agents Ken Cush & Associates

Supreme Court of the ACT

Kook v Caftor Pty Limited [2008] ACTSC 101 (17 September 2008)