Armstrong v Midgley [1992] QSC 329

State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 83 of 1987 BRIAN TREVOR ARMSTRONG Plaintiff and MICHAEL PAUL MIDGLEY Defendant ROCKHAMPTON ·-·· , · · .. DATE 11/09/92 JUDGMENT 1 - ... - ·- -- 1 of 13 -- I 110992 ·(ri~~ack J} I .• :~ HIS HONOUR: :Mr Armstrong was born on 29 September 1953. He was injured in a motor vehicle accident on 9 October 1986. The circumstances of the accident are such that the defendant has accepted liability for Mr Armstrong's injuries. Mr Armstrong was lying in the back of a Toyota vehicle which was struck at considerable speed by a larger vehicle. He was thrown around and suffered very severe injuries to his legs and hips. Both of his femurs were fractured in the neck and there was some involvement of the hip joint as well. Both of tne tibial plateaus were fractured and his left ankle was also seriously injured. An artery in his left leg was severed so that when he was brought to the Rockhampton Base Hospital attempts were made, first of all, to provide a graft of that artery in an attempt to return circulation to the left ankle. This graft did not take and a second operation was performed to attempt to have it grafted. This operation also failed, so his left leg was amputated above the knee. At this stage he had suffered enormous blood loss and renal failure began. So, a shunt was fitted into his right forearm to facilitate renal dialysis. He was obviously, at this stage, extremely ill and in serious proximity to death. The treatment was successful and a fourth operation was performed to remove the shunt from his arm. Attention was then directed to the injuries in the two femurs and a hip screw was fitted to his left femur. He was operated on aga~n in respect of the shunt. Throughout these procedures and in t~e course of resuscitation on arrival at the Rockhampton Base Hospital, he received four times his total -. JUDGMENT 2 10 20 30 40 50 60 -- 2 of 13 -- 110992 (Demack J) blood volume by way of transfusion. He was discharged on 15 January 1987 after some three months in hospital. At that stage he needed virtually full-time care from his wife, who was working at that time as a nurses' aid in the hospital at Dysart. He demonstrated rather remarkable determination to overcome his disabilities and he is obviously a very determined man with'great physical reserves. He did attend school ·but that does not seem to have equipped him with any intellectual skills. He is 'illiterate, although he can · s'i.gn his name. His IQ .is- 74. However, he has retained considerable physical strength in his arms and trunk, so that when tested his grip strength in his right hand was in the 70 percentile and in the left hand in the 80 percentile. Considering that his activities are limited to moving around on crutches and some limited housework, this is a clear indication of a man who prior to the accident was one of considerable physical strength and dete·rmination, although of very limited intellectual capacity. He recovered .some mobility about the house and a prosthesis was fitted to his left leg. However, he is not in the situation of what one might call an ordinary amputee. His left hip is quite seriously disabled, which means that he does not have the control over the artificial limb that is ordinarily required for effective use of that device. His right.hip is also disabled, as is his right knee, and arthritis has developed in his right ankle. \ .. t,;\ This means tha':t.."J.,_. ·.' 1 he spends much of-his time.in a wheelchair as that is the mos~ JUDGMENT 3 10 20 30 40 50 60 -- 3 of 13 -- ( . ~10992 (Demack J) convenient method of moving around. He uses Canadian crutches to aid him when on his prosthesis, but the surgical wounds left by the renal shunt in his right arm are irritated by the arm band on the crutch. His maximum capacity for walking is about 500 metres over a very long period. He prefers to have the prosthesis off his left leg when at home and tends to move around the house in a kind of crawling motion. ~..,- His case was considerably enhanced by a video that was taken of him at home by Mrs Helen Coles. This shows quite ·-graphically the limitations he has and his determination to be as active as possible. It shows him using a vacuum cleaner by sitting on the floor and moving around on his rump. It shows him in his wheelchair pushing a trolley of clothing out to the line and hanging out those clothes. He says he has some difficulty extracting the clothes from the washing machine and does a kind of diving effect into the machine to extract the washing. Unhappily for him his wife died in April 1989 from cancer and left him with a young daughter to care for. He proceeded to do this with some help from friends in the major tasks around the house. He has now formed a de facto relationship with a Miss Edwick. They have a child and they expect to marry. Miss Edwick gave evidence and appeared to accept the gross limitations that Mr Armstrong has and seemed to be fully prepared to share her life with him. This, of course, does alter considerably ~':S~>. day to day living because it gives him a companion and someo~e JUDGMENT 4 ( I I 10 20 30 40 50 60 -- 4 of 13 -- 110992 (Demack J) to help him through his frustrations. Indeed, without Miss Edwick it would seem that his future would be very, very ·bleak indeed as he tried to rear his daughter. There is no question of his ever being able to work again. His phxsical disabilities are such that no avenue of employment is open .to him with his illiteracy. There is no • J.-:- ..... prospect of retraining. His work history was one of constant employment in earthmoving ~eq:uipment. In 1986 he obtained work at the Saraji Mine where he was a scraper driver. He was indeed injured on his way to work -those months Tater. The Chief Mining Engineer, Mr Clarke, gave evidepce, and it seems that counsel were a little cautious about some of the questions they asked Mr Clarke. It seemed to me to be interesting at least that with 120 plant operators at the mine, and with·Mr Armstrong having worked there for such a relatively short period some years ago, Mr Clarke demonstrated a memory and interest in the plaintiff which did condescend to some detail of his ability. So, in those short months he apparently had made some lasting impression on the mine management. This seems to be compatible with the demonstrated . determination that he has shown with his injuries. Mr Armstrong says that he liked the work at the mine. In fact, .he says .he loved it. He loved the outdoor work. He naturally. enough liked the high rates of pay and wanted to ~,.J:.~~:. move on to.the seven day roster. -, - ' ~~ 1 . 10 20 30 40 50 1 so JUDGMENT r , 5 ' -- 5 of 13 -- 1;0992 (Demack J) Since 1986 there have been changes in the way in which people working at the mine are classified as well as changes in shift structure. The life of the mine was discussed by Mr Clarke and it seemed from his evidence that the critical thing was that elusive issue, the value of the Australian dollar. Since the Courts tend to ignore things like the value of the · - .J~ Australian dollar in assessing damages, it seems to me I should largely ignore that horrible prospect of the coal industry falling apart completely. Consequently, as at 1986 Mr Armstrong was employed in work that he enjoyed doing; in work that was physically within his capacity; in work that he apparently did well; in work in an industry that paid exceptionally high wages and which had as bright a future as any Australian industry. All of that has gone with the accident. In addition, Mr Armstrong's disabilities are such that he does need to have a house that is designed for his use and allowance must be made for the additional cost involved in that. There is also a claim for services gratuitously rendered in the past and necessary in the future. There are items that have been calculated by architects and accountants and occupational therapists about additional aids that he will need. A great deal of this material is contained in a report prepared by Mr Maynes, which is Exhibit 18. It seems to me that, although that exhibit is full of a great number of .; t.:- figures, it is not an exhibit which overall assists the c~t. a great deal because many of the calculations are made in a ~ JUDGMENT 6 10 20 30 40 50 60 -- 6 of 13 -- 110992 (Demack J) way that the Court ·simply has not in my experience used. It, indeed, overall b~comes more of a liability than an asset in assessing damages. So far as the m~dical evidence is concerned, from the point of 10 view: of percentages, Dr Macfarlane says that the injuries to the left leg, namely the amputation and the restrictions in .,.,.... the hip, constitute a 43 per cent loss of function of the whole body, and the. disabilities in the right leg constitute a 17 per cent loss of function of the whole body, or a combined 20 ·-e·ffect of 60 per cent loss of the whole bodily function. This seems to me to be a very helpful way of assessing the disability because-it does show just how grave the disability is. When one keeps in mind the other slight irritation in the right arm which influences the use of the Canadian crutch, the 30 loss of bodily function is enormous. Dr Curtis has gone for a loss of function· of the actual limbs and assesses 85 per cent loss of function of the left limb, 30 per cent loss of function of the right limb, increasing to 40 40 per cent after a knee replacement operation in some 5 to 10 years. There is a possibility that both hips will need to be replaced. The need to remove the plate in the left hip is 50 relatively certain and-certainly the knee replacement seems to be inevitable in 5 to 10 years. As I mentioned, there is already arthri.tis present in the right ankle. - .. . 60 JUDGMENT f I 7 I -- 7 of 13 -- r 1,10992 (Demack J) Before the accident Mr Armstrong sa~s he enjoyed football, golf and tennis. None of these, of course, are within his capacity now. He can do very little around the house. He has a limited ability to handle his young child who was born at the beginning of this year and now is not able to play with his daughter. Consequently, his enjoyment of life is grossly diminished. So far as economic loss is~concerned, the material shows that since the date of the accident Mr Armstrong has lost in terms . cf work at the Saraji Mine income and benefits well in excess of $200,000. I accept Mr McMeekin's submissions that some allowance must be made for the possibility that after his wife's death in April 1989 he would have left Saraji, particularly if he were on the seven day roster it would have been extremely difficult for him to care for his young child and continue working. However, he did have family support in the general region and there is a substantial probability that he would have remained there even after his wife's death. I have tried to assess the probabilities without making simply a wild guess and I have taken into account the fact that up to April 1989 his loss of wages and benefits was well in excess of $80,000. For the balance of the time, it seems to me it was something akin to a 75. per cent chance he would have remained at Saraji, so that doing the best I can with these difficult matters I will reduce the loss of income by $25,000 and find his loss of income and benefits to the date of trial at $175,000. This figure takes account of the money that~b:<\-;···' did receive from the mine in the 12 months after his acciden~. JUDGMENT 8 10 20 30 40 50 60 -- 8 of 13 -- 110992 (Demack J) During that period he has received some $38,000 in weekly payments from the Workers' Compensation Board and he has been in receipt of an invalid pension for more than three years. I am not aware of the precise amount he has received by way of invalid pension, which I believe I should take into account in assessing interest. However, doing the best I can I shall allow interest on the sum of $105,000 at 6 per cent over now almost six years. So, I assess interest in the amount of $37,500, so that the total amount for loss of past economic capacity and interest is $212,500. The present rate of pay that Mr Armstrong would receive at Saraji is a net figure of $896 per week. That is considerably in excess of what he would earn driving equivalent plant outside of the mining industry. The net figure there would be $380 per week. However, he is still only 39 years of age and had at least 20 years work~ng life ahead of him. Within the general earthmoving industry his loss of income over all that period would be in excess of ·$250,000. This indicates the lowest level of loss of income because I am sa·tisfied that he had the physical strength to keep working certainly until 60 and probably well beyond. In the mining industry he would have retired at 60 and his gross loss in present day value is in excess of $600,000. I have not used Mr Mayne's figures on that, preferring to stay with the basic approach the Courts have been taking with the multiplier provided by Professor Lunz. I am satisfied that that gross. figure must be reduced bec~\t§.~~. there was a range of possibilities that may have operated on~ ' JUDGMENT 9 ·~ 1. 10 20 30 40 50 60 -- 9 of 13 -- ( ~10992 (Demack J) Mr Armstrong to lead him to leave Saraji Mine and work elsewhere. For example, if his family grew up he may have found it much more desirable to leave Dysart and come to live, for example, at Mackay, where his children would be more easily educated in a larger environment. He spoke of a desire to have a child go to boarding school, .which. may not have worked out because those experiences are not always positive for children. He may have needed to shift to a larger community for a variety of other reasons. He may have chosen to live on the coast after some years at Saraji. All of these m~tters call for some reduction because they are possibilities that cannot be ignored. I assess .his future loss of economic capacity at $475,000 and his loss of superannuation benefits at $40,000. The claim for services gratuitously rendered by his deceased wife .and by his · present de facto wife have been calculated by Mr Williams, QC, in his Exhibit 27. It seems to me that the first two items there which cover the first six months after Mr Armstrong came home from hospital are very realistic. However, after that I am satisfied that because of the great determination Mr Armstrong displayed, his demands upon his. wife did not significantly go beyond the ordinary currency of domestic life. Although some allowance needs to be made,· it seems to me the calculation is much too high. The reality is that for the 30 months after his wife died he virtually cared for himself and his house and his daughter and that cannot be ignored. It does not seem to me that it is worth trying to make another calculation but rather r·shall discount Mr Williams' figures and allow $10,000 for past· services -. JUDGMENT 10 10 20 30 40 50 60 -- 10 of 13 -- 110992 (Demack J) gratuitously rendered. I shall allow the sum of $3,600 interest on that amount. Special damages were agreed in the sum of $33,154. I shall allow $2,000 interest on the items there that attract interest·. Mr Williams in Exhibit 27 has also calculated an item for future costs and expenses in relation to prosthetic aids and other aids and appliances. He has also made some allowance . tnr future operations. These calculations are based essentially on Mr Mayne•s· calculations and I am not satisfied that ·they should he accepted in their entirety. They seem to me to be over generous and also to some extent based on things that are quite unpredictable. It is possible by doing mathematical calculations to make the future seem very, very certain but that is not the way in which damages can be assessed. So, I shall allow $55,000 for the item of future surgery, future prosthetic requirements and future aids and appliances. So far as the future gratuitous services are concerned, I am not satisfied at the moment that the defendant should pay anything for the things that Miss Edwick does. They seem to me largely to fit within the ordinary interaction within a household. However, in the fu·ture there will be occasions when the plaintiff will be seriously disabled following surgery. The number of these occasions is not precise. Also, as he ages he will need assistance and that assistance may~~\ -i ·... needed many years earlier than it would be for someone who ia JUDGMENT f . 11 I 10 20 30 40 50 60 -- 11 of 13 -- ( lf0992 (Demack J) less grievously disabled. I shall, therefore, allow a sum of $20,000 for future services gratuitously rendered. The additional cost to build a house which meets all of Mr Armstrong's needs have been assessed by Mr Deshon, an architect, and I accept his estimates. These have been collated by Mr Williams and I accept his mathematics as well and allow the sum of $57,000, because it does not seem to me to be practical to be as precise ~s the architect and Mr Williams suggest. For house maintenance and other associated expenses, also calculated by Mr Williams, I shall allow the sum of $45,000. Pain and suffering and loss of amenity are, of course, of a very high order. Mr Williams submitted that I should make an award that was very close to what is granted to a paraplegic. Naturally enough such a comparison is invited by the circumstances in which Mr Armstrong finds himself. However, it seems to me that one has to assess each case on its own basis. I have indicated fully the extent of Mr Armstrong's disabilities and his pain. Clearly he had a very distressing and extremely painful period for many months after the accident. He still has phantom pains and some constant daily pain because he insists on exerting himself. Indeed, with his intellectual capacity and his natural physical strength, it seems to me that physical exertion is about the qnly way in which he can relieve the frustration of being grossly disabled. This means that he faces the balance of his li~~s ··~.,"":;,. one that is filled with frustration ·and pain. I assess pain. _ JUDGMENT 12 10 20 30 40 50 60 -- 12 of 13 -- 110992 (Demack J) : ,·, ~ • 1 • ,, and suffering and. loss of amenity in the some of $100,000. I shall allow interest on the amount of $40,000 at two per cent, making a sum of $8,000. In summary the award is: 10 Past economic loss including interest $ 212,500.00 ,.,... Future economic loss $ 475,000.00. Loss of superannuation benefits $ 40,000.00 Past services gratuitously rendered $ 13,600.00 20 " Special damages including interest $ 35,154.00 ,~- ':' Future medical expenses and prostheses etc $ 55,000.00 Future service~ gratuitously rendered $ 20,000.00 House modifications $ 57,000.00 House maintenance $ 45,000.00 30 Pain and suffering and loss of amenities including interest $ 108,000.00 $1,061,254.00 40 There will be judgment for the plaintiff against the defendant for $1,061,254, together with costs to be taxed. - 50 -. 60 JUDGMENT 13 -- 13 of 13 --