BOOTS v PRESTON [2007] NSWDC 255

New South Wales District Court

CITATION: BOOTS v PRESTON [2007] NSWDC 255

HEARING DATE(S): 30-31.10.07 EX TEMPORE JUDGMENT DATE : 2 November 2007

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1 Verdict and judgment for the plaintiff in the sum of $790,596.82, comprising the sum of $1,054,129.10 from which is deducted twenty-five per cent on account of contributory negligence. 2 The defendant is to pay the plaintiff's costs of the proceedings. 3 The exhibits will be retained for twenty-eight days.

CATCHWORDS: Motor vehicle accident - Significant injury to non-dominant left arm - Domestic care needs - Income loss

CASES CITED: Teuma & anor v C P & P K Judd Pty Ltd [2007] NSWCA 166 Van Gervin v Fenton (1992) 175 CLR 327

PARTIES: Kristen Louise BOOTS v Megan PRESTON

FILE NUMBER(S): Wagga Wagga 85/04

Plaintiff - M Cranitch SC - M B Inglis COUNSEL: Defendant - D Ronzani

Plaintiff - Commins Hendricks SOLICITORS: Defendant - Curwoods Lawyers

JUDGMENT

1 Kristen Louise Boots did not secure her school certificate before leaving Leeton High School at the end of year 10 in 2002. Her ambition was to serve as a military police officer in the RAAF. To pursue this ambition she needed her school certificate.

2 In early 2003 she enrolled at the local TAFE in order to repeat year 10 and obtain this qualification. She was to commence in February 2003.

3 She had enjoyed sports, including netball, touch football, basketball and rugby union and she intended to continue to play them. She was right hand dominant.

4 She lived with her parents and two sisters, one older and one younger, at Leeton. Both parents worked and therefore housework for the family was shared.

5 Nine days after her sixteenth birthday, on 8 February 2003, she was seriously injured in a motor vehicle accident.

6 A career in the military police is no longer available to her and she can no longer participate in sporting activities. She suffers from ongoing pain and disability as a result of her injuries.

7 Breach of the duty of care is admitted by the defendant. The parties agreed there was contributory negligence on the part of the plaintiff to the extent of twenty five per cent.

8 It was also agreed that the whole person impairment of the plaintiff as a result of her injuries exceeded ten per cent.

9 The issues therefore were related to compensation, based upon the extent of her ongoing disability and thus the assessment of non-economic loss, past and future loss of income earning capacity, her needs for out of pocket expenses and for domestic care.

10 The plaintiff's injuries were described by Dr van der Rijt in his report of 25 July as follows: 1. Multiple abrasions consistent with shattered glass impact. 2. A compound penetrating wound to the elbow and proximal ulna. 3. Fractured mid shaft left humerus with a dense radial nerve palsy. 4. An extremely comminuted fracture of the distal left humerus with marked comminution of the elbow articular surface epicondylar, and condylar anatomy. 5. Fractured olecranon with a very comminuted fracture with displacement. 6. Anterior dislocation of the left elbow. 7. Undisplaced fracture of the mid shaft left ulna.

11 In addition to the injuries listed, the plaintiff suffered fractures of her pelvis.

12 Dr van der Rijt described the treatment provided to her at Wagga Base Hospital immediately after the accident in the nature of operative reductions, fixation of the fractures, and attention to the nerve damage.

13 Physiotherapy and rehabilitation exercises were provided for several months.

14 In February 2004 some of the fixation materials were removed in the course of further surgery and the plaintiff was required to undertake further rehabilitation.

15 When seen by Dr van der Rijt in June 2006 the plaintiff had complained of increasing discomfort in her left forearm, which was aggravated in cold weather or by activity. She had long-term elbow stiffness which was said to be increasing in severity. There was a problem in straightening the little finger which tended to curl.

16 Dr van der Rijt described the plaintiff's complaints as consistent with the nature of her injury and its long-term outcome.

17 He referred the plaintiff to Dr Hughes, an orthopaedic surgeon, who specialised in elbow disorders.

18 Dr Hughes undertook further surgery on 29 November 2006 in order to provide the plaintiff with a greater range of movement in the elbow and in an attempt to alleviate some of the consequences of the damage to the arm.

19 In a report of 28 February 2007 he diagnosed post-traumatic arthrofibrosis/arthritis of the left elbow, post-traumatic ulna nerve neuritis, and division of the medial cutaneous nerves of the forearm (partial).

20 He said her surgical result at that stage had not plateaued and it would not do so until six months after surgery.

21 He said that long-term the plaintiff would develop progression of post-traumatic arthrosis which would take the form of increasing pain, recurrence of stiffness, inability to use the arm in a repetitive or sustained way, or to lift any heavy weights.

22 He expected that she would eventually develop rest pain and at that point she would be a candidate for options for treatment such as arthroplasty, elbow arthrodesis or possibly joint arthroplasty.

23 The plaintiff was reviewed by Dr Hughes in October 2007, following which he reported severe crepitus throughout the arc of movement of the elbow. He noted early osteophytic changes involving the radial head and the medial joint line consistent with compartment osteoarthritis.

24 His diagnosis was the same as that given in February 2007 and he said that the surgical result had by that stage plateaued.

25 Again he repeated his opinion that she would develop aggressive post-traumatic arthritis in the elbow with increasing pain and recurrence of joint stiffness and the inability to use the arm in a repetitive and sustained manner.

26 This, he said, would impact on her abilities of daily living and she would develop rest pain.

27 He thought that the arthritis would develop within one to two years, but could take up to ten years to progress. He again referred to the surgical options available and he provided a cost estimate.

28 In respect of surgery he noted that there were complications associated with the procedures to which he referred. They included neurological deficit and implant failure.

29 He said that with a young patient implant failure was of significant concern and represented a ten per cent failure rate at ten years. Thus, there was a high probability of the need for revision of the surgery with the results on a second occasion not as good as primary total elbow replacement.

30 Other consequences to the plaintiff are significant scarring of her left arm, as depicted in photographs which are in evidence.

31 Dr Gianoutsis, a plastic surgeon, is of the opinion that those scars cannot be improved by revision.

32 In addition, she has suffered a loss of sensation in her left little finger and part of the palm of her left hand.

33 The plaintiff complains of significant back pain and discomfort as a result of the pelvic fractures and pain in her neck and her hip.

34 According to Dr Nicholls, these are the results of soft tissue trauma and they will continue in the long term.

35 Dr Gertler, psychiatrist, diagnosed an adjustment disorder with anxious depressed mood resulting from her inability to come to terms with the losses in her life caused by the accident.

36 The defendant relied upon Dr Nicholls, an orthopaedic surgeon, who in February 2005 stated that the plaintiff's complaints of ongoing symptoms were reasonable and her symptoms and residual disability were the direct result of the motor vehicle accident. He said that they would be long-term but at that stage he considered that deterioration would be unlikely.

37 He also stated, at paragraph 4 of his report of May 2007, that further surgery would be unlikely to be required, although in paragraph 7 he made a clearly contradictory statement that in the long-term some deterioration would occur in the symptoms in the left elbow such that eventually some sort of arthroplasty would be required some years into the future.

38 The plaintiff gave evidence of the immediate aftermath of the accident and of her difficulties following the three surgical procedures.

39 The surgery in October 2003 involved a bone graft, the harvest site being her hip, as a result of which she was immobilised in a wheelchair for one to two months and then required crutches.

40 She described a continuing heavy reliance upon painkillers, prescribed when they can be afforded, and over the counter when they cannot be afforded.

41 She borrows Panadeine Forte from those prescribed for her father, Mr Errol Boots. She has massage professionally when funds permit, and otherwise by her mother, Mrs Susan Boots, or her partner, Mr Peter Johnstone.

42 She said that medication is taken daily and she is concerned that she is becoming addicted to them or that she is developing a tolerance to them.

43 The plaintiff gave evidence that she has developed pain in her right arm and shoulder as a result of the strain placed upon them by additional use. She complained that her thinking is slower and that she is prone to inappropriate or aberrant responses in conversations.

44 There was no medical evidence to explain this symptom.

45 The plaintiff expressed resentment at her inability to participate in sporting activity, particularly when witnessing her younger sister playing sport.

46 She formed a relationship in early 2007 with Mr Johnstone and they are now living together in a household shared with Mrs Boots.

47 She and Mr Johnstone are planning to have three children. A pregnancy in mid-2007 resulted in miscarriage at ten weeks gestation.

48 The plaintiff stated that her pelvic and back pain was such that her sitting tolerance is thirty minutes and standing ten minutes. She stated that this means that she is unable to exercise, notwithstanding the encouragement given to her by Mr Johnstone.

49 Her sleep is disturbed by her pain and by nightmares.

50 The evidence of the plaintiff's ongoing discomfort was corroborated by her parents and by Mr Johnstone.

Non-economic loss

51 In assessing the plaintiff's non-economic loss, I have taken account of the severity of her injuries, the need for three surgical procedures to date and three periods of recovery and her ongoing pain and discomfort, not only in relation to the left arm, but in relation to her pelvic fractures, her back, hip and right shoulder pain.

52 I have taken into account the problems and frustrations that she will face in caring for her children.

53 I find that the surgery outlined by Dr Hughes will almost certainly be required. The evidence of the plaintiff and Mr Johnstone of increasing pain in recent months indicates that surgery will be required in the short, rather than the long term suggested by Dr Nicholls, but that surgery brings with it complications and prospects of failure.

54 I have assessed the plaintiff's non-economic loss at $200,000.

Income loss

55 The plaintiff's past loss has been claimed on the basis of an average of the average weekly earnings females from 15 January 2004 to date.

56 This commencement date was chosen because of the evidence that the plaintiff intended to repeat year 10 in 2003.

57 From this figure has been deducted her actual income, to arrive at a figure of $76,243.

58 The defendant argued that the average weekly earnings were an inappropriate measure of income loss in respect of a plaintiff who was now only twenty years old.

59 The difficulty with that argument was that the plaintiff is currently earning in excess of the average. I have therefore allowed the amount claimed at $76,243.

60 As far as the future is concerned, since the accident the plaintiff has been employed in a number of occupations, part-time in the Woolworths Supermarket at Leeton and in cafes, with understanding employers who allowed rest breaks as necessary.

61 In March 2007 she took up her current position at a call centre in Wagga Wagga, dealing with calls from Telstra customers. She initially worked for thirty six hours a week, she now works for forty. Her work involves lengthy periods of sitting, typing and working at a computer screen. She said she does this with difficulty and discomfort. Mr Johnstone said that he is required on regular occasions to administer massage when the plaintiff comes home from work.

62 In addition, the plaintiff is facing callers who are upset and frequently abusive. Understandably, she does not expect to continue in this position for much longer.

63 Vocational assessments indicate that the plaintiff is of average intelligence, with some low average intellectual abilities.

64 The vocational assessment undertaken for the defendant indicated that she is suited to semi-skilled or limited areas of skilled employment and retraining was suggested.

65 It will be apparent, however, from the disabilities that I have already referred to that even with retraining the plaintiff will be significantly restricted in her employment options and therefore in her income earning capacity.

66 The preponderance of medical evidence supports the prospect of part-time work only and indicates that café or supermarket work is inappropriate.

67 I find the assessment of the Vocational Capacity Centre to be unduly optimistic.

68 Dr Nicholls refers to occupations for which the plaintiff is suited but does not state whether that opinion is made on the basis that the plaintiff will work full time or part-time.

69 Considering the plaintiff's working history to date and the problems that she has encountered in undertaking her work, I accept that a claim based on a fifty per cent loss of income earning capacity in the future is appropriate and I allow the sums of $103,225 and $172,038 as claimed.

70 Superannuation on past and future income will be allowed as claimed.

Out of pocket expenses

71 Out of pocket expenses for the past as claimed are agreed and are allowed.

72 For the future, I have already expressed the view that surgery is inevitable and that revision of that surgery is probable. In the circumstances, the amount of $53,633 is allowed as claimed.

73 As to the loss of the opportunity to enter the military, the defendant argued that this claim was a case of double dipping. For the plaintiff, it was submitted that she demonstrated a level of determination in continuing to work in the only work that she could find, notwithstanding that it was unsuitable and that it caused her pain and discomfort.

74 I accept this submission. I consider it likely that she would have been accepted into the military, with the better income prospects that are set out in Mr Ravagnani's report.

75 I therefore accept that the claim for the lost opportunity to enter the military is valid and it is allowed in the sum of $50,000.

Domestic care

76 Two issues were raised by the defendant. The first was the extent to which the voluntary domestic service provided to date formed part of the work of the plaintiff's household as a whole. The second related to the extent to which the time estimates given by the various witnesses were overstated.

77 The plaintiff, Mrs Boots, Mr Boots and Mr Johnstone were challenged on the time they spent providing care for the plaintiff on the basis that the tasks undertaken, such as cooking and cleaning, were also provided for the benefit of other members of the household as it existed from time to time.

78 It was pointed out that at the time of the accident the obligations of the household of two working parents and three daughters were shared and that they continued to be shared after the accident, with the plaintiff's duties taken on by the remaining family members. This was clearly so.

79 However, as it was pointed out by Ipp J, in Teuma & Anor v C P & P K Judd Pty Limited [2007] NSWCA 166, the law as established by the majority in the High Court in Van Gervin v Fenton (1992) 175 CLR 327 is that these considerations are irrelevant to the determination of damages for gratuitous care.

80 It was established in Van Gervin v Fenton and emphasised by Ipp J, that the issue to be decided is what was the plaintiff's need for domestic care.

81 In this respect, the defendant also sought to suggest that the time estimates given were overstated by questioning the time undertaken to perform individual items of housework.

82 In my view, this was an inappropriate approach to the plaintiff's needs.

83 This is not a case where some two to three hours of work is needed to assist with the heavier aspects of housework. The plaintiff has effective use of only one arm. She has mobility problems because of hip, back and shoulder pain. These restrictions generate the need for assistance with many ordinary everyday tasks such as shopping, doing her hair, cutting up vegetables and food preparation generally.

84 In addition, there is a need for massage to relieve pain in both shoulders, her arm, and her hand.

85 In the circumstances I reject the suggestion of overstatement.

86 The defendant has acknowledged the significant needs for care following the surgical procedures, and that the amounts set out in paragraphs 1 to 4 of annexure B of the Schedule of Damages, exhibit V, were reasonable and they are allowed.

87 Notwithstanding Mrs Boots' evidence concerning the services provided to the plaintiff while she resided in New Zealand, there is nothing to suggest that her needs at that time were greater than when she returned to Mr Boots' home in Leeton in March 2005.

88 In respect of paragraph 5 of annexure B I have therefore allowed six hours a week from March 2004, reducing the amount claimed to $6,369.

89 I am satisfied that the plaintiff from that date and to the present has established a need for six hours of assistance per week and the amounts claimed in paragraphs 6 and 7 of annexure B are allowed.

90 On my calculation the total amount as adjusted exceeds slightly over $50,000 and I have therefore allowed $50,000 for past domestic assistance.

91 For the future, the claim is for nine hours a week for ten years and thirteen hours thereafter.

92 This is based on the assessment of the occupational therapist, Ms White. The defendant's occupational therapy assessment was of a considerably lesser degree of need.

93 In assessing the plaintiff's needs for the future, it is apparent that her condition is likely to deteriorate and further that it will be necessary to balance the prospect that the surgery envisaged by Dr Hughes might, if successful, alleviate her pain levels and function against the prospect of a substantially greater level of disability if it is unsuccessful.

94 On this basis my assessment of her current need of six hours will continue for a period of about two years. Thereafter her ongoing need will be met by the provision of ten hours a week.

95 A claim is made for weekly hairdressing. This is on the basis of Mrs Boots' evidence that the plaintiff keeps her hair short in order to assist in its management. I consider the claim for a weekly appointment for hair cutting to be overstated. In my view fortnightly appointments are adequate and that claim has been reduced by one half.

ORDERS

96 The orders which I make are as follows: 1. Verdict and judgment for the plaintiff in the sum of $790,596.82, comprising the sum of $1,054,129.10, from which is deducted twenty-five per cent on account of contributory negligence. 2. The defendant is to pay the plaintiff's costs of the proceedings. 3. The exhibits will be retained for twenty-eight days. **********

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