De Waard v Wilson [1990] QSC 346

10 '0 30 40 50 60 r7;;\:;-;~~~~-:::~:·.:::::-··~-'. .. ~--- . 4- CIVIL JURISDICTION _. o. 46 of 1988 BEFORE MR. JUSTICE WILLIAMS MACKAY, 24 SEPTEMBER 1990 (Copyright in this transcript is vested inthe Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Rep9rter,Court Reporting Bureau.) BETWEEN: MARK SHANE DEWAARD Plaintiff -and- PETER HERBERT WILSON Defendant JUDGMENT HIS HONOUR: In this matter the plaintiff sustained serious personal injuries in a motor vehicle accident which occurred on 9 October 1987. The plaintiff, who was born on 9 Octob~r 1963, was at the time aged nearly 24 and is now aged nearly 27. ·He was riding a motor cycle on the Bruce Highway nea Sarina when a motor vehicle being driven by the defendant struck him. He received a very badly damaged left leg and other injuries. It appears that he was lying on the roadway for about 40 minutes before the ambulance arrived and during that period he did suffer very severe pain. He was comforted during that period by a nurse who happened on the scene·very shortly after the incident, but it is obvious that there was quite a marked degree of pain associated with the immediate aftermath of the incident. He was conveyed by ambulance to Mackay Hospital and it was there noted that his left lower leg was completely shattered G 214-Govt Printer, Qld. 1 10 20 30 40 50 60 -- 1 of 13 -- 10 20 30 40 50 60 A mid-knee amputation of that leg was carried out immediately. His left index finger had also been amputated traumatically in the incident and surgical repair was carried out on it at the hospital. He also had fractures to a number of bones in the region of the left wrist and various cuts and abrasions to various other parts of his body. The initial r·epair work was carried out under general anaesthetic shortly after his admission, and apparently his recuperation in hospital was uneventful until he was discharged on 16 October 1987. He subsequently visited the hospital 6n numerous occasions to have the dressings on the stump changed and to receive physiotherapy. Details of his medical treatment are contained in various reports and in his quantum statement. There was no challenge to any of that material and I act upon it. He experienced the customary phantom pair:safter the amputation of his left lower limb and ultimately received his first prosthesis on 15 February 1988. There was trouble adapting to that. It would appear that it was not until after his prosthesis had been changed on a number of occasions and the stump had consolidated further that he was comfortable at all with his lower left prosthesis. He did develop a cystic lesion on the stump which necessitated some minor surgery, and there was a tender area of scarring there which was a matter of discomfort for a period of time. There are two medical reports from Dr. White, an orthopaedic surgeon, which ·have been admitted into evidence. There is also a report from Dr. Hirschfeld, who is a very experienced medical practitioner in dealing with amputees, and Dr. Hirschfeld also gave evidence. In my view, there is no significant divergence of opinion between the doctors and I G 214-Govt. Printer, Qld. 2 10 20 30 40 50 60 -- 2 of 13 -- /""". ( accept their evidence. :;: should also say that there is a report from a Miss Susan Laracy, an occupational therapist. Most of her findings would appear also to support the opinions expressed by the doctors. In his report of September 1990, Dr. White speaks of 10 the plaintiff still having some minor skin problems associated with the stump, and in his view there will bJ a continuing .\ need to change the prosthesis from time to tlme and perhaps to change its design slightly to meet problems associated with the plaintiff's stump. The evidence of both Dr. White and Dr. Hirschfeld is to the effect that the plaintiff would need at least two prostheses at any one time, one for better use and one to use on an everyday knockabout basis. Dr. White has expressed the view that the plaintiff should only drive an automatic motor vehicle, and that appears to be a logical 30 conclusion to arrive at in the circumstances. Dr. White comments on the fact that there are degenerative changes in the plaintiff's. left wrist and expresses the opinion that the pain and disability in that joint will worsen as time goes on. 40 so He concludes in that most recent report by saying: "I would regard Mr. De Waard's condition as precluding him from any occupation which he is qualified for by way of experience and education. He would, however, certainly be suitable for retraining to an appropriate light occupation having a degree of freedom to sit, stand or move around as dictated by any discomfort that he might be feeling." In his earlier report of 14 March 1988, Dr. White assessed that the plaintiff had a 75 per cent disability of the left lower lim·b, a 15 per cent disability of the left hand due to the amputation of the index finger, and a disability of 12 per cent of the whole of the left uppe~ arm attributable to the injury to the left wrist. Those assessments of the 10 20 30 40 50 60 60 G 214--Govt. Printer. Qld. 3 -- 3 of 13 -- 10 20 30 40 50 60 plaintiff's disability were not challenged. I note that in oral evidence Dr. Hirschfeld somewhat changed his view as to the likelihood of the plaintiff at some time in the future undergoing further surgery. It does appear that there is a deal of discomfort being experienced by the plaintiff associated with the positioning of his patella. It I may well be thatrthat discomfort can be alleviated by using a . ~~ '1'··· prosthesis of so~~what different design, but it may well be that some further surgery will be called for which would involve the excision of the patella. I bear that in mind as a real possibility rather than an operation which the plaintiff is more likely than not to have to undergo in the future. I should also say I accept Dr. Hirschfeld's evidence that the prosthesis would need changing at least every two and a half years. In the end result, counsel accepted that damages should be assessed on that basis. Dr. Hirschfeld also refers, as do others in reports on the plaintiff, to the fact that he has suffered an understandable reactive depression to the physical loss associated with the amputation of his left lower leg. There was an. unfortunate emotional consequence for the plaintiff in. that the in~ury was to an extent directly involved in the breakdown of a lohg-standing relationship that he had with the girl who was his fiancee at the time of the incident. Matters associated with that have undoubtedly caused him on-going emotional problems which will continue for some considerable time into the future. Dr. Hirschfeld expressed the view that the plaintiff would not be returning to work in his chosen trade as a butcher. He noted that the plaintiff had what could be described as an almost obsessional attitude to butchering and that was having G 214-Govt. Printer, Qld. 4 10 20 30 40 50 60 -- 4 of 13 -- 10 30 40 50 60 some effect on the choice of a future career w1thin his physical capabilities. Dr. Hirschfeld considers it more likely than not that he will f~tiish up in some sedentary work within his physical and educational limitiations. I mention briefly the findings by Miss Laracy that he has a poor tolerance for standing and crouching, that his capacity to lift is extremely limited, that the· grip of his left hand is well below average, and in general her findings as to the limitations which, in her view, would prevent him from working in the future as a butcher. A number of possibilities are 1 10 20 advanced in her report, including furniture manufacturing, which has undoubtedly been included because the plaintiff has from time to time assisted his father with furniture making work. She also suggested part-time plant operator, lawn mowing involving the use of a rider mower, and carpark attendant. The plaintiff completed grade 10 in 1978 and in 1982 commenced a formal apprenticeship as a butcher. He apparently worked in a number of butcher shops prior to commencing work for Borthwicks on 3 March 1986. Borthwicks have a system of engaging labour at the gate on a daily requirement basis, but as at the date of the accident the plaintiff had attained such a degree of seniority that he was virtually guaranteed daily work. I accept that, but for the accident, he would have continued working at Borthwicks. I have already mentioned the fact that at the time he had a long-standing girlfriend and the evidence discloses that a house had been constructed and substantially paid for as at the date of the accident. I_ accept that the plaintiff would have stayed on at Borthwicks at least during the intervening three year period because the wages were good and that would have enabled him to pay off the home G 21 "-Govt. Printer, Qld. 5 30 40 50 60 -- 5 of 13 -- 10 20 entirely and find his feet in a marital situation. I also mention that prior to the accident the plaintiff was quite interested in sport, though. apparently h~ had not achieved any heights in any particular sport. The medical evidence which I have already referred to clearly indicates that he will not be able to return to work as a butcher. In the course of his evidence he expressed a desire to get into a food or catering business, and that is something he has apparently mentioned to some of the doctors. It seems to me that there will be problems if he were to endeavour to conduct such a business. There would be the problems of being on his feet serving customers, moving around in a relatively confined space behind a counter and the like. He suggested in evidence that those problems could be dvercome by employing a young girl to work in the business, but, of 10 20 30 course, to be successful the business would have to make enough 30 money to pay her wages as well as t6 give him a reasonable living. It may well be that he will make a go of such a business, but on the evidence I aci not in a position to make any positive finding that he will be able to earn income from such 40 a business. 50 60 It seems to me that he does have a residual earning capacity, but to a large extent that is affected by the fact not only that he has the amputation of his left leg, but he also has a significant disability to his left arm. He has lived all his life apparently in this region and it is perhaps initially difficult for him to obtain suitable employment; but, as Mr. Reid pointed out in the course of address, perhaps once he does find his niche, the country environment will be such that it is likely he would retain that employment for a lengthy period. G 214-Govt. Printer, Qld. 6 40 50 60 -- 6 of 13 -- 10 30 40 50 60 It also has to be said that his educational limitations are such that he does not have any real earning capacity in the clerical field; and he has indicated a dislike for working in that particular area. I ' G 21 -,-Govt. Printer, Qld. 7 10 20 30 40 50 60 -- 7 of 13 -- Once it was agreed that the prosthesis should be changed every two and a half years, there was little or no dispute as to the cost·of future prostheses and various associated items of equipment. In evidence, the question was raised as to whether or not he should have the cost of Vitamin E cream and a 10 particular powder that he was using on his stump. Dr. Hirschfeld considered that those items were inappropriate ·.\ and suggested that s~~e use of Prantal powder could be more effective. In the end result, there was agreement between counsel that there was need for the plaintiff to expend • 20 something of the order of $ 2. 50 per week for the rest of his life expectancy upon some medical preparation to relieve irritation on his stump. I should also say counsel were also agreed in the end result that the plaintiff's life expectancy from now,for the 30 purposes of calculating such items,was 47 years and it was also broadly agreed that he had some· 33 to 38 years in the workforce. I have chosen to adopt a figure of 35 years for his future work expectancy. That does take into account some of the discounting factors which a judge must always bear 40 in mind in such cases as this. 50 I have also discounted appropriately with respect to the other figures I have used in the calculation of damages. There was a dispute as to travelling expenses. There is no doubt that in the months that followed the plaintiff 1 s discharge from hospital it was necessary for him to travel to the Mackay Hospital for treatment from time to time. On occasions those trips were from his parents home and others were from the home that had been built ·for h:L.111Self and his fiancee at Freshwater Point. Where the latter was involved, a return 10 20 30 40 50 60 60 G 214-Govt. Printer, Qld. 8 -- 8 of 13 -- 10 30 40 50 60 trip of approximately 100 kilometres was involved .. The plaintiff claimed a total of $1,560 for travelling expenses. In his quantum statement, he gave some estimates of the mileage travelled and petrol consumed and he was cross-examined about that. It seems to me that he is not able to justify the figure of $1,560 referred to in Exhibit 12; however, when one bears in mind some small allowance for depreciation on the motor car and the like, I ~rn of the view that the figure of $750 is a fair assessment of his actual travelling costs during that period. It was submitted by Mr. Reid that the amount of $52,406.67 assessed by the accountant as the figure for past net economic loss should be discounted. A submission to the contrary was made by Mr. Harrison for the plaintiff. In the circumstances, it seems to me that I ought not to discount on that particular figure. It is less than three years since the accident and in my view there is no doubt that the plaintiff would· have worked through that period for Borthwicks and the figures put forward by the personnel officer from Borthwicks as to earnings during that period for a person of comparable seniority ought to be accepted. So far as pain and suffering is concerned, I have already indicated that there was a higher than usual degree of suffering associated with the immediate aftermath of the accident. The plaintiff is a young man. There have already been - as I have noted - some psychological and emotional problems associated with his injury. It is something which will be with him for the rest of his life. He also has the not insignificant disability of his left arm and hand G ··' 4-Govt. Printer, Qld. 9 10 20 30 40 50 60 -- 9 of 13 -- ( J 10 20 30 40 so 60 and there is the evidence of Dr. White that the degenerative condition in the wrist will worsen in the future. Bearing all that I have said in mind, when it comes to the question of pain .artd suffering and loss of amenities, I have come to the conclusion that the figure of $75,000 represents the appropriate award under that head. In my view, a significant amount must be attributable to past pain and suffering because of the initial pain and the initial psychological trauma associated with the amputation. I have therefore decided to allow interest orr $40,000 of that at the rate of 5 per cent per annum for a period of two years. I have already said that in my view the amount of $52,406.67 for past economic loss ought not be discounted. That is a net figure calculated by the accountant and .I allow it in full. So far as the items of special damages are concerned, they are set out in Exhibit 12. There has to be an alteration with respect to travelling expenses. As I have said, I would allow $750 for that item. That means that I allow special damages in the sum of $16,134.36. The plaintiff has received from the Workers Compensation Board a sum in excess of $51,000 by way of weekly compensation and lump sum settlement. That virtually equates the past economic loss and because of that I will not allow any interest with respect to past economic loss. The only items of special damage which attract an award of interest are the $780 lawn mowing expenses; $100 for medications;and $750 for travelling expenses. I allow interest on $1,630 at 8 per cent per annum for a period of two years which gives a figure of $260.80. G 214-Govt. Printer, Qld. 10 10 20 30 40 50 60 -- 10 of 13 -- 10 30 40 50 It is agreed that the award of damages should include an amount being the Fox v. Wood factor in the sum of $3,815.10. I turn now to future medical and associated costs. As I have already indicated, ultimately there was agreement between counsel on this particular item. It was agreed that the plaintiff should be allowed a 47 year:life expectancy and J . ' that the prosthesis should be changed every'two and a half ,\ ,. ~- .. years. The calculation covering the change bf prosthesis, maintenance of the prosthesis,.and the stump socks required from time to time, was agreed upon by counsel and produced a figure of $24,838.31, adopting a discounting. It was also agreed that on each occasion there was a replacement of the prosthesis, the plaintiff would have to travel from Mackay to Brisbane and remain in Brisbane for a period of a week. Ultimately it was agreed that a total of $1,384 would be reasonably expended on the occasion of each such visit to Brisbane. Bearing in mind that would take place every two and a half years and using a discount calculation, one arrives at the figure of $10,245.30 for such expenses. Then one has to add in the figure, the amount of $2,405 for the cost of medical preparations over that 47 year period. The total of those three items under that heading is then $37,488.61. That leaves for assessment future economic loss. This is the most difficult part of the case. In my view, it is rendered somewhat more difficult because I am of the 10 20 30 40 50 view on the evidence that the likelihood is that over a perillod f some years, the plaintiff will earn little, if anything. He wil probably have to go through a retraining period; andi.if he was to go into a business, it is, of course, likely that it would b 60 60 G 214-Govt. Printer, Old. 11 -- 11 of 13 -- some time before the business showed a profit. More significantly, it seems to me that there is general agreement between all of the witnesses, including Mr. O'Connor who was called as part of the defence case, that the plaintiff has been reasonably well motivated, but it is because of the major 10 physical disabilities and the major psychological trauma to . I h h which he has been- expbsed. t at he as not been able to .\ re-establish himself ~n the workforce. If one looks at the award figures which were placed in evidence,.and bears in mind the evidence of Dr. Hirschfeld, 20 it does seem that the most realistic award is that for a process worker where the award in the Mackay Division is $281.50 gross, which is $238 net. Even if one took some of the other awards that were contended for by Mr. Reid, one does not get a greatly different figure. That seems to be the 30 best,. on the evidence, that the plaintiff could hope to do. The net weekly wage, if he was still employed at Borthwicks, woUld be $383 a week, so it is obvious that in any event he is going to have an economic loss approaching $150 a week for the rest of his working life. That does not take 40 into account the added loss because he would not be able to earn, even at that reduced level, in the foreseeable future. The loss of $150 a week over a 35 year period - making the calculation using the 5 per cent discount table - gives a present loss of $131,400. One has to add a significant sum 50 60 to that to take account of the additional loss in the immediate foreseeable future. If one took the measure of his loss over the whole of the 35 year period as $200, one would arrive at a figure of $175,200 as the present value of his economic loss. If one approached the calculation another way and tried to see G 214-Govt. Printer, Old. 12 . 1 10 20 30 40 50 60 -- 12 of 13 -- 10 30 40 50 60 how much he would lose if one assumed that he went for somewhere of the order of ten years before he was able to earn at his perceived maximum (which would be of the order of $150 a week less than his pre-accident capacity), it seems to me that one could arrive at a figure slightly in excess of $100,000 as his loss over that ten year period, and then one ! would have to add in a loss at $150 a week for the r½maining ,, 25 years of his working life. Again, if one did that, one arrives at a figure of approximately $175,000. I have mentioned those alternative calculations because, in my view, they all support - bearing in mind the appropriate discounting factor - a figure of $170,000 for future economic loss, and in the end result, that is the figure which I have decided to allow under that particular heading. That results in an overall figure of $359,105.54, and there will be judgment for the plaintiff for that amount. HIS HONOUR: There will be judgment for the plaintiff for $359,105.54 with costs to be taxed. I make no order as to costs reserved on 8 August 1990. G 214-Govt. Printer, Old. 13 1 10 20 30 40 50 60 -- 13 of 13 --