183 of IAS) n.0-9) yqeye DUK. CATCHWORDS Damages for personal injury - Appeal. ON APPEAL FROt THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY. MICHAEL DUKE v. DALE ELSIE PEGG No. A.C.T. G12 of 1981. CORAM: Davies, Lockhart and Kelly, JJ. 17 Secenber 1981. - a ' cod Canverra,'A.C.T. nee * ' IN THE, FEDERAL COURT OF AUSTRALIA o%. * AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) } No. A.C.T. G12 of 1981 ) GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALTAN CAPITAL TERRITORY BETWEEN: MICHAEL DUKE Appellant AND: DALE ELSIE PEGG Respondent ORDER JUDGES MAKING ORDER: Davies, Lockhart and Kelly, JJ. DATE OF ORDER: 17 December 1981 WHERE MADE: Canberra, A.C.T. THE COUKT ORDERS THAT: 1. The appeal be upheld and that the judgment of the Supreme Court of the Australian Capital Territory be set aside. 2. In lieu thereof that there be judgment tor the appellant in the sum of $36,075.45 and costs to be taxed. w The respondent pay the appellant's costs of the appeal, those costs to be taxed. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. A.C.T. G.12 of 1981 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: MICHAEL DUKE Appellant AND: DALE ELSIE PEGG Respondent CORAIi: Davies, Lockhart and Kelly, JJ. 17 December 1981 REASONS FOR JUDGMENT DAVIES, LOCKHART and KELLY, JJ. The appellant, who was born on 26 October 1953, was injured in a motor vehicle accident on 3 April 1979. He sued the respondent in the Supreme Court of the Australian Capital Territory tor damages for alleged negligence. Liability was not contested. The learned trial Judge gave judgment in his favour for the sum of $30,075.45. That was made up of the following components - for loss of earning capacity, past and for a short time in the future, $5,963.45; special damages $12,112 and non-economic loss $12,000. The plaintiff appealed to this Court, claiming that that assessment of the appellant's non-economic loss was erroneous in all the circumstances. Because of their brevity it is convenient to set out the reasons for judgment of the learned trial Judge. He said:- "In this case the facts are really largely, if not completely, undisputed and the major issue is the amount of damages which should be awarded in respect of non-economic loss. As always, I find myself up against the really intractable difficulty of deciding how fairly to place the pain, suffering, inconvenience, distress, discomfort and so on which the plaintiff has sutfered and will, to some extent, in the future still suffer, in any form of just relationship to a sum of money. I bear in mind that this man will have some permanent weakness of the hip and leg. He will probably have pain slowly diminishing over five years. He will have, probably, lameness for some time which may be five years and he will have sears. I bear in mind that he is a relatively young man of 27 and so by far the major part of his life is probably in front of him. I also have to bear in mind that I think he has, in the time since the accident, suffered very considerable pain and some inconvenience. Taking all this into account and doing the best 1 can with a judgment which is regrettably subjective, I think that the right figure to put on the non-economic loss is $12,000... ." During the hearing of the appeal counsel for the respondent stated that there was no suggestion that the appellant had in any way exaggerated his complaints. When the learned trial Judge said that "the facts are really largely, if not completely, undisputed", he is to be taken in all the circumstances as having accepted as witnesses of truth the plaintiff, his wife, and the doctors called on his behalf. The respondent called no evidence. No difficulty arises, theretore, on the ground that the learned trial Judge was in a better position to evaluate the evidence than is this Court. As a result of the accident the appellant was trapped under the door pillar of the vehicle which the defendant was driving. He felt his legs starting to swell in the region of the hip and numbness in their lower parts. Because of his position he underwent a good deal of pain while trapped, as he was for approximately three quarters of an hour. This pain was first relieved by the ministrations of ambulance officers and subsequently by injections of pethidine at the hospital where he was taken. He suffered multiple pelvic fractures, an extremely comuinuted pertrochanteric fracture involving the upper end of his left femur and fractures involving the mid-shaft of his lett tibia and fibula. He underwent surgery on 9 April 1979. In the intervening six days he was, as he put it, very highly drugged and experienced a good deal of pain. On 9 April 1979, Mr Vance, an orthopaedic surgeon, carried out open reduction with internal fixation by pin ana plate of the pertrochanteric femoral fracture and manipulated the fractured tibia and fibula, enclosing those fractures in a long leg plaster. The appellant was in hospital until 15 Way 1979. Twice at least in that period the plaster was changed. During the changes he suffered a great amount of pain. He left hospital still wearing plaster which was changed late in June. Plaster was finally removed on 18 July 1979. The appellant says he continued to wear the plaster until August but in this he seems to have been mistaken. When the plaster was changed late in June it was found that he had a fairly extensive pressure sore over the back of nis left heel. The skin was necrotic. He was referred to Mr James, a plastic surgeon. tir James saw the appellant first on 10 July 1979 and admitted hin to hospital on 12 July 1979 when the ulcer on the heel was debrided in an attempt to promote granulation tissue growth through the tendon. After approximately ten days the appellant was discharged, being thereafter reviewed at weekly intervals until he underwent an operation for skin graft. Before his accident the plaintiff used to jog each afternoon for approximately three quarters of an hour. He played golf, normally about once a month; he played squash usually twice each week, for an hour at a time. He did not try to run again until after the plate and pin were removed on 22 April 1980. The presence of the plate and pin had caused hin discomfort because of his tendency to sleep on his left hand side. When the appellant resumed exercise after the removal of the pin and plate he found that he could run approximately two hundred yards only, because he had too many problems with his hip. Giving evidence on 15 April 1981, the appellant stated that he suffered pain in his hip with any long distance walking, that he needed to take a break of some twenty minutes in the middle of a game of golf, that towards the end of a round of eighteen holes he started to feel pain and that he had trouble sleeping on the night after playing golf. He attributed the trouble to pain in his hip through distance walking. He found his right leg to be a lot stronger than his left leg. Because of this he still had at the time of his giving evidence some problems with his balance. When the plaster was removed there was a good deal of wasting apparent in his left leg but gradually it built up until at the time of the hearing thete was a wasting by comparison with the right leg of approximately 2cm only. He resumed playing squash, trying to play once a week but his playing time per game was reduced to half an hour. He gave evidence of the existence of extensive bruising shortly after the accident but this does not appear to have caused him any particular problems. Following the skin graft in September 1979 he found that he could not wear conventional shoes as they had a tendency to dig into the back of his heel. On one occasion he found that a small amount of skin on the site of the graft had worn away with the result that the area became infected. He was due to undergo a further skin graft the week after the hearing when it was anticipated that he would be in hospital for a further two weeks, spending approximately a fortnight at home recuperating. The appellant complained that his left foot had a tendency to throw in as though he were pigeon toed in that foot. The tendency was said to be noticeable and to cause other people to comment on it, thus making the appellant self-conscious. He gave evidence that he had a slight limp but that that did not cause him any dramatic problems. People conmented on the fact of his limp. He gave evidence of a large scar running from his hip to a point about four inches above the knee and of another scar some five inches by three inches located above the knee. It was caused by the excision of skin for the graft on the heel. He said that he was self-conscious about the scars and tried to keep them covered. He stated that he did not have constant pain in his hip. The pain was brought on by strenuous activity. He got pain also in his hip during cold weather and, it would seem in such weather, at the site of the fractures of the tibia and fibula. Commenting on the relative strengths of his legs he said the right was a lot stronger than the left, that he found he could not support himself properly when trying to lift any weights and that if he bent down he found that he had problems when trying to lift himself up on his left leg. He was then asked if he had pain in any other part of his body. He replied, "I did for some time have pain in the lower part of my back. I went to physiotherapy and we gradually worked out a course of exercises to try and relieve those problems in that area. If I keep up those exercises, I do not have any great problems with my back.'' He was not cross-examined concerning the pain in his back. Asked about his present ability to do heavy tasks about the house, he replied that he was unable to move a refrigerator or anything of about that weight but he did not have any great problems with general duties. By general duties he appears to have meant gardening and similar tasks. Finally, lhe stated that if he sat at a desk for a prolonged period of, say, up to three hours, he had to get up to walk around and exercise his leg because pain would gradually start to build up. Otherwise he had no particular probleuws at work. The appellant's wife gave evidence which corroborated his. Mr Vance gave evidence. He adhered to an opinion earlier expressed that 'from a long term point of view he could well have some permanent weakness in his left leg, perhaps some permanent loss of movement in his left hip". He thought the appellant's inability to jog for much beyond two hundred yards, the limitation on his ability to play squash and the difficulty he experienced in playing up to eighteen holes of golf were consistent with what he had seen of the appellant's condition. ie was then asked in cross-examination a number of questions. They and the answers to thew are set out hereunder: - "Doctor, I want to ask you about this low back aching. When did you last see tir Duke?...On 17 December 1980. And had you recommended some physiotherapy in respect of that synptom?...I recommended sone physiotherapy in August, yes. Apparently it was quite effective, as he no longer complains of that as a problen?...Yes, I think that is true. But, of course, the report that I am looking at is August 1980 and that is before that physiotherapy was carried out?...Yes." In the report of 15 August 1980 Mr Vance had stated that the appellant had complained, when seen on 11 August 1980, of considerable low back ache which had become more marked over the last two months. He had experienced no previous trouble with luis back. wr Vance found on examination that the appellant's lumbo-sacral spine showed a good range of flexion while he ° complained of some pain on extension. He indicated the lumbo-sacral level as the site of pain. There was no tenderness. "ix Vance agreed that the appellant had made what could be said to be a very good recovery in respect of his orthopaedic injuries. It seems desirable to set out a nuuwbder of questions asxed by the learned trial Judge and the answers thereto given by ilr Vance:- ; . "Doctor, he now says that the pain that he has is sufficient to cause the disabilities about running and playing squash; in other words, the pain is brought on by activity and it is also, he said, to some extent brought on by cold weather and also to a little extent brought on by continuous sitting. In that case it is relieved with a bit of exercise after three hours sitting at his desk. Now, that kind of pain and stitfness that he has, what is the probability about the permanence of that would you be able to say?...I think it is likely to gradually diminish over the next few years. I think it is possible that he may have discomfort after exertion indefinitely, but I think the degree of pain is likely to diminish. And he also says that he limps somewhat and that he has a tendency to turn in the left foot when he walks. What is the probability of the permanence of that?...I noted when I last examined him and reported tnat he had a little loss of movement in his ankle and I felt that if ne regained that full movement that this tendency towards turning in would probably go, and this is what I think is likely to happen. And would that be a matter of years, a matter of months or ---?...This is complicated a little Dit, your Honour, by the skin grafting procedures which have been required by the pressure area on the back of his heel, and those operations are not yet finished, I understand. So that I think he might have this tendency for some time to come yet, but I think in the long term he will gradually get over it." Mr James gave evidence also. The ulcer on the right heel was a 4en. full thickness ulcer with exposure of the achilles tendon. Before the first skin graft Mr James reported tiat the appellant would require a skin graft to heal the area and possibly a further graft at a later date in order to thicken and stabilise tne skin. He did not then expect any permanent aisability as a result of tie lesion and once the area had healed telt that there should be no restriction on his activity. He reviewed the appellant's condition on 22 August 1960. Then the appellant complained of tenderness in the scar tissue around the grafted area on the heel. This tenderness prevented him from wearing normal shoes although he could walk satisfactorily and had recommenced sporting activities. On examination there was a 2cm x 2cm depressed area on the heel, the site of the sxin graft, surrounded by a lem thick hard scar. Reporting on 9 September 1980 Nr James expected that in time that scar tissue would soften, become more mobile and less tender. de thought that if that did not occur scar excision and further grafting wight be necessary to obtain the best functional result, but did not expect that a decision on that could we made for at least one year. Giving evidence on 15 April 1981, iir James said tinat he felt that the appellant's heel would require further skin cover in order to stabilise the area and he planned that proceuure, as the appellant had indicated in his evidence, ior the near future. He went on to say, "He may in fact require two procedures to thicken up the skin sufficiently to give it a stable area there". He considered that a third skin grafting procedure was likely to be needed. Each procedure would require the taking of approximately 5cm x 4cm of skin, probably from the upper part of the thigh. Since the taking of skin froi above the knee for the first skin yraft had leit scarring it seens reasonacole to assume that eaclr of the second and third skin graits which were likely to be needed would also leave scarring. The scar present from the previous skin graft and the scars which mignt be expected trom the further procedures would obviously not be grossly distiguring, for tr James ayreed that the first skin graft scar was almost invisible with a little bit of cGepignuentation of the area which would be permanent. He -10- agreed that it was not an obvious thing. He also stated that the prognosis for tenderness and pain in the heel was good and he expected that within five years the plaintiff would have a pain free area there. Counsel for the appellant criticised two of the findings made by the learned trial Judge. These were that the appellant would probably have pain slowly diminishing over five years and that he would have lameness for some time which might be five years. We are not satisfied that these criticisms are justified. When regard is had to the evidence which was concerned with both possibilities and probabilities, the tindings on the two points which are criticised are, we think, findings which were reasonably available to the learned trial Judge. If there was error in those findings it was not such as to warrant of itself any intervention by this Court. So much we think was conceded by counsel for the appellant when he said, "I do not suggest that of themselves, these things are necessarily significant or substantial matters". There are two matters which do not seem to have been considered sufficiently or at all by the learned trial Judge when assessing damages. First, he made no reference to the two operations which the appellant was likely to be required to undergo so that his heel might be restored and one of which was the subject of definite intention. We take some account of the possibility which must, we think, exist, having regard to the total effect of the evidence of Mr James, that the further skin grafts may not achieve their object. We think that two operations constitute substantial reasons for awarding appropriate damages to the appellant. -1l- Secondly, regard should have been had to the appellant's back condition. Without suggesting that the questions put by counsel for the respondent to Nr Vance on this subject were untair, it is plain they assumed that there had been a complete remission of any symptoms in relation to the appellant's back. We are not satisfied that there was a complete remission. Indeed, as we understand the evidence, it seems that the appellant's back continues to give trouble but the trouble is ameliorated by exercise. The question of how long that back condition might be expected to continue was not explored but, having regard to the fact that the condition was attributed in examination in chief to the appellant's gait and that the appellant is likely to continue to be lame to some degree for at least five years, we think that the learned trial Judge paid insufficient regard to the plaintiff's back condition. We are satistied that the award in fact made demonstrates that degree of error which attracts variation upwaras by an appellate court. We think that the amount which should be awarded the appellant for non-economic loss is $16,000.00. It follows that we allow the appeal and substitute for the amount awarded by the learned trial Judge the sum of $36,075.45. The respondent must pay the appellant's costs of the appeal. _. t that this and the 10 preceding paces are a tvue copy of the Reasons for Judgment herein of breHeneur thee SC. Associate | sted: 7) Neco mbe (q&/ cee ee eat