Bearham v Tortora [1991] QSC 141

iO 20 IN THE SUPREME COURT OF QUEENSLAND IVIL JURISDICTION MR. JUSTICE DEMACK 19 APRIL 1991 No. 59 of 1989 (Copyright in this t~anscript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: WALTER STANLEY BEARHAM -and- GAIL ELIZABETH TORTORA JUDGMENT Plaintiff Defendant HIS HONOUR: Mr. Bearham was born on 19 January 1945. e was injured in a motor vehicle accident on 24 August 30 ~988. The circumstances of the accident were such that the kefen~ant has accepted liability for the plaintiff's ~nJuries. I The plaintiff sustained significant injuries. He was Fiding a motorcycle at the time and was struck on his right 40 ~, j 1de. The injuries are described in the report of the 50 60 Mackay Base Hospital, which is Exhibit 3, as follows: a ertrochanteric fracture of the neck of the right femur; a racture of the mid shaft of the right femur; a penetrating 'njury to the right knee; a compound comminuted fracture of he right tibia and fibula; and a fracture of the left Mr. Bearham was taken to theatre where he had a ompound scrub and debridement of the right knee wound, 'nternal fixation of the fracture of the left forearm, a -Govt. Printer, Old. 1 10 L.0 30 40 50 60 -- 1 of 11 -- 10 timans pin inserted to the distal right femur and a back lab applied to the lower leg fracture. He was treated with raction, analgesics, antibiotics and physiotherapy. He again went to theatre on 9 September for removal of utures and closed reduction of the right tibial fracture. e developed a pulmonary embolism which complicated his ecovery. He was eventually released on 7 January 1989. However, hile undergoing physiotherapy, he refractured the femur and . as readmitted to hospital on 1 February 1989. He was breated with analgesics, traction, physiotherapy and arfarin. Fracture cast bracing was applied on 24 April 989. He was mobilised and released for the second time rom hospital on 24 June 1989. I 1 He was cared for by his sister, but he had virtually no 30 j rovement in his knee. Dr. White, an orthopaedic surgeon, rerformed a closed manipulation on 20 June 1990 and achieved l5 degrees of flexion. I would understand this to have been ~one under general anaesthetic. Dr. White seemed to be hopeful that this degree of movement would remain, however 40 I fr. Douglas noted in his most recent report that the rovement of the right knee was between the range of 10 egrees and 40 degrees. As I have indicated already, Mr. Bearham has been seen 50 y two orthopaedic surgeons. Dr. White, who has treated ~im, expresses the view that he is permanently unfit for rmployment in any position requiring significant physical ~ork. He is likely to develop osteoarthritis in the knee, ut it may take years to develop, and it is unlikely that 60 urgical options would be considered. I would understand -Govt. Printer, Old. 2 10 20 30 40 50 60 -- 2 of 11 -- his to be because of the very limited use that Mr. Bearham an put the knee to, in any case. Dr. White says, "At resent, I would regard him as totally unfit for any mployment for which he is qualified by means of experience r education. It may be that he could be trained for some 10 10 20 ight semi-sedentary occupation, such as taxi driving. He ould, however need to drive a car fitted with an automatic earbox and practice left foot breaking due to the inability Ff his right knee." bctober 1990. That opinion was expressed on 12 Dr. Douglas, in his report of 12 February 1991, says hat Mr. Bearham "is unfit for any form of work which equires him to be on his feet for more than short periods Ff time. He also would have difficulty with sedentary work I due to the swelling of the leg which would occur if he were 30 I ro sit for long periods. I think, at the best, he would be Fapable of employment for about two hours per day in a [ edentary occupation." Mr. Bearham complains of swelling in his lower right eg and of discolouration in that leg. He has seen 40 I tr. Siva-Rajah, a consultant surgeon who specialises in ~:::r::a:a::~o:::::::i:a:n:e::::::a:h:::::r:~no::· Siva-Rajah ~nsufficiency affecting his right lower limb and chronic 50 fkin changes as a result of this. He says it is very likely fo be secondary to deep vein thrombosis, and also partly due ~o the direct trauma effect and subsequent scarring. He totes that there is also an ugly deformity in the right leg l'.hich arises from the surgery. He says that the venous 60 ~nsufficiency will continue throughout his life. He cannot, 10 30 40 50 60 -- 3 of 11 -- /~~ l ·,, ithout more intensive examination, determine the full 10 30 ature and extent of it, but he notes that the arterial lood supply to the right lower limb is more than sufficient or him to mobilise and keep his leg viable and active. The lood, in other words, can get down to his feet, but the should take it back up are not functioning One of the things that Mr. Bearham says assists him is assage. This is not mentioned by any of the doctors, but ~t would seem to me, as a matter of common sense, that if t he blood is having difficulty returning through the veins, ~ hen the careful massage of the tissues may well help to elieve that. Consequently, I am satisfied, on the balance f probabilities, that the massage is beneficial and ought I to continue. Dr. Douglas says there is a 50 per cent loss of unction in the right lower limb. Dr. White says a 65 per bent loss of function. This seems to me to do no more than lndicate that Mr. Bearham is now very seriously disabled. I 40 J The injury to his arm does not seem to attract anything I 1 ike the same concern, and there is now full range of pparently painless movement in wrist and elbow. It is apparent then that Mr. Bearham was very seriously fnjured in the accident. He was then aged 43 years. He had 50 previously had surgery to his lung, but the medical opinion ~laced before me is that he had fully recovered from that rnd that it would not have interfered with his capacity for [ ull-time employment. Mr. Bearham's work history is that he left school at 60 he age of 14. He was then employed for two years as a -Govl. Printer, Old. 4 10 lO 30 40 50 60 -- 4 of 11 -- . l elivery boy, and a further two years as a salesman in the rocery section of Lambert's. His father had a bread run, nd at the age of 18, he commenced to work in that bread , un. He continued with the bread run until he was 35 years f age. The lung condition I have referred to required 10 10 urgery and he was off work for six months. He did not , eturn to the bread run, but obtained a job with Tickles, hich lasted for only a short time. In 1981, at the age of 36, he commenced work with Concrete Products. He worked there for about four gaining some skills and being in constant employment ntil retrenched because of a need to reduce staff. Two years earlier, in January 1983, his wife had left im. She took their two children, but returned them to him in March that year. They were then aged almost five and two 30 1 50 rnd a half years. He looked after those children and put ~hem in day care while he was at work. l His work with Besser Concrete Products was terminated n 6 March 1985. He applied for unemployment benefits, but I ~t was suggested to him that because of the age of the I bhildren, it would be better to seek supporting parents' enefit. He could see the wisdom of this and the benefit of ·t, because his younger child - his son - had been much pset by the marriage break up. He continued on the supporting parents' benefit until hu1y 1988. I During that time, he actively sought work. He raid, "I was always eager to find Lhecked the newspapers each day. re Department of Social Security full-time employment." He attended regularly at seeking advice on He 20 30 40 50 60 -- 5 of 11 -- In July 1988, he obtained the position of groundsman at he Mackay Christian College. This college is conducted by church of which Mr. Bearham is a member. The particular ork that he got as a groundsman was subsidised by the ommonwealth Government under one of its schemes to 10 I rncourage people back into the workforce. The hope was that ry doing this work, he would gain the skills and confidence [ to get other employment. However, he had only been on that ob for a couple of weeks when he was injured. He has not orked since. On that job, his gross weekly pay was $270, nd his net, $241.25. Turning to the assessment of his damages, the claim is ade for past economic loss. This is calculated on the ~asis of the kind of income he could have earned as a I ~abourer at Besser Concrete Products. It seems to me that 30 I fhis is clearly too high, because at the time of the rccident, he was earning a net weekly income of about $20 jess than he would have earned on the accountant's projections. The claim for past economic loss is very broblematical because of the long period that Mr. Bearham I had been off work. He had been actively seeking work from ~985 to 1988, but work that he could do simply was not rvailable. It seems to me that all I can do for the past rconomic loss is allow the net figure for the weekly 50 ~ayments he received from Workers' Compensation. His 60 ~ntitlement to Workers' Compensation arose because of the efendant's negligence. It would seem to me quite unjust if e were to receive, by way of compensation for past economic oss, any sum less than the amount of that refund. It seems o me also that there is no clear evidence to justify any -Govt. Pnnter, Old. 6 10 2.0 30 40 50 60 -- 6 of 11 -- .,..,-...... ) 10 arger sum. That net figure is $26,517.80. In considering his, I am taking the same basic argument as that which has pplied to the recovery of tax instalments paid on Workers' ompensation which are now recovered as special damages. For the future, it seems to me that at the time of the ccident, Mr. Bearham had a physical capacity for manual ork and had experience in that work. While the greater art of his working life had been spent on the bread run, he rad had the four years with Besser Concrete Products and, in that time, he had developed skills of a manual kind. I am atisfied that the value of those skills and extent of that apacity is fairly expressed in the net weekly wage that he rould have earned working with concrete products. However, pe had been having difficulty obtaining work, and it seems to me to be unlikely that he would have exercised that 30 I bconomic capacity to the full for the remainder of his torking life. There is evidence before me of difficulty in pbtaining manual work in Mackay and Mr. Bearham's experience bears that out. I propose, then, to assume that for the ~alance of his working life, he would have exercised his I rconomic capacity to 70 per cent. This is, of course, rimply an estimate taken on the basis of all the evidence, [ ut it seems to me to be fairly realistic. He is now severely disabled. I have referred to the 50 rthopaedic opinions. He is also seriously overweight and ~t seems to me that his residual economic capacity is very rmall indeed. f r. Douglas has expressed the opinion that I have quoted. I ave great difficulty picturing what kind of sedentary 60 anual work would be open to Mr. Bearham. I therefore take -Govt. Printer. Old. 7 10 20 30 40 50 60 -- 7 of 11 -- l , 10 view that what remains is about 10 per cent of his It follows, then, that the injuries he has ustained because of the negligence of the defendant have eprived him of 60 per cent of his capacity for manual work. ile I take these figures upon a percentage basis, that is ssentially an estimate made on the basis of all the vidence and of my observations of Mr. Bearham here in I am particularly influenced by Mr. Nigel Clarke's all of which I accept as accurate for the purposes assessment of damages. Using the Award that I have referred to, the value of economic capacity at present is a net $283 per week; 60 er cent of this is, in round figures, $170. It would seem I fo me reasonable, allowing for the contingencies of life, to I allow a further 14 years loss of economic capacity at this 30 I 50 60 fime. This produces a sum of over $89,000; however, it rould seem to me that the use of mathematics in this case rhould not hide the essential nature of the assessment which ~s very much an estimate. Rather than appear to be able to ~ake estimates with mathematical precision, I shall allow I bhe sum of $85,000 for future economic loss. Special damages were agreed in the sum of $3,880.40. Mr. Bearham will need to wear a stocking to protect his eg and also his sister buys liniment to massage his leg. There is the possibility averted to by Dr. Siva-Rajah ff a future operation. These matters are extremely ~mprecise, but I shall allow $500 to cover medical and [ hemist expenses. There is a significant claim made for services ratuitously rendered, particularly by Mrs. Frangos, one of -Govt. Printer, Old. 8 10 20 30 40 50 60 -- 8 of 11 -- he sisters of Mr. Bearham. Exhibit 17 sets out the basis or a claim up to the date of trial. This is based, to a extent, on Mrs. Frangos' evidence. I accept her stimates as realistic. She seemed to me to have made very onservative estimates generally about the amount of time 10 10 30 has given to care for Mr. Bearham. I am satisfied that is injuries require this degree of care. One item on Exhibit 17 which was significantly 1 _hallenged was the amount of child care assistance given ~hile Mr. Bearham was in hospital. There, the sum of $20 day per child is claimed. It seems to me that this is oo high. It is clear that, on the basis on which it was , aid to people undertaking emergency care of children, it ~ncluded the obligation to buy food for the children out of I t 1 his sum. Ordinarily, Mr. Bearham would have had to provide food for the children from his wages, and this is already fevered in the award. Also, it seems to me, that over the rxtended period, $20 per day per child is too high, and I kill allow $10 per day per child. The other item which was questioned in Exhibit 17 is lhe household renovation. Clearly that must have added some wlalue to the house, and I will allow half of that item. The mount claimed then must be reduced by $6,700. I will allow 'nterest on the amount allowed of $11,367.57. I assess that I 50 ~nterest at $1,900. So, the amount allowed for gratuitous ~ervices rendered in the past will be $13,267.57. For the future, it seems to me that Mr. Bearham will eed assistance for a very long time, almost certainly until end of his life. He simply has very limited mobility I doubt that he does have the capacity to do all of the -Go·lt. Pnnter. Old. 9 20 30 40 50 60 -- 9 of 11 -- hings that are essential for his own help. However, over he whole period, it would seem to me to allow two hours a eek would be adequate, and this, on the agreed sum, is $18 per week allowed till the age 70. This produces a sum of 10 f 13,284. I I have referred to the physical injuries and to the lxtent of his disability. This does not cover all of the iatters that are relevant for pain, suffering and loss of lmenities. Mr. Bearham has set much of this material out in I . . ~xh1b1t l. He tells how he has difficulty moving around and alking. His right knee is virtually stiff. He can only 20 i alk relatively short distances without experiencing pain in lhe area above the right knee itself. He finds that if he ts on his leg for a considerable period, the leg swells and discolours. He cannot sit too long, as his knee goes numb. 30 II • He has trouble on stairs. He has trouble driving a motor tehicle. It would seem to me that this latter fact is a reason why I would regard Dr. White's thought that he could lrive a taxi as a little impractical. He has difficulty I ~leeping because of the pain and discomfort and because of 4o I 50 tramps. He says he wakes up three or four times each night tith discomfort. There is a constant dull aching sensation in the right leg as a whole. I There are the scars, which are r here to remind him of his problems, and the discolouration. Before the accident, he said he regarded himself as telatively fit and healthy. He then weighed 13 stone which, tor his height, may indicate that he was, even then, felatively well covered. However, he now weighs ipproximately 18 and a half stone and is grossly overweight. 60 ie has had no success in controlling his weight problem and --Govt. Printer, Old. 10 10 20 30 40 50 60 -- 10 of 11 -- 10 30 50 60 enerally, life has become fairly burdensome. He used to njoy fishing and walking and gardening. Fishing and alking now seem to be substantially out of the question, nd his gardening activities are very restricted. For pain and suffering and loss of amenities, I shall llow the sum of $57,000, $17,000 of which will bear 'nterest, which I assess at $2,720. So, the total amount, 'ncluding interest for pain suffering and loss of amenities, s $59,720. The total of the award, then, is $202,169.17. There will be judgment for the plaintiff for 202,169.17 together with costs to be taxed. -Govt. Printer, Old. 11 10 :o 30 40 50 60 -- 11 of 11 --