HUNTINGTON v SAUNDERS [2001] NSWSC 692

New South Wales Supreme Court

CITATION : HUNTINGTON v SAUNDERS [2001] NSWSC 692 revised - 17/08/2001 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 13587/90 HEARING DATE(S) : 18 October 2000, 19 October 2000, 20 October 2000, 23 October 2000, 17 November 2000, 20 July 2001 JUDGMENT DATE : 17 August 2001

Janice Huntington (Plaintiff)

PARTIES : v

Thomas Earl Saunders (Defendant) JUDGMENT OF : Adams J at 1

COUNSEL : Mr T D F Hughes (Plaintiff) Mr J P Guihot (Defendant) SOLICITORS : G H Healey & Co (Plaintiff) Blackmore & Associates(Defendant) CATCHWORDS : Death of plaintiff - substitution of wife - claim for voluntary services - whether provided to person "in whose favour award is made" within s72(1) Motor Accidents Act 1988 - whether limits apply. LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1944 Motor Accidents Act 1988 DECISION : Judgement for the plaintiff in the sum of $142,073.50 plus interest plus costs.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J FRIDAY 17 AUGUST 2001 13587/90 HUNTINGTON v SAUNDERS JUDGMENT

1 HIS HONOUR: This action arises out of a motor vehicle accident, the circumstances of which are sufficiently set out in my previous judgment dealing with liability. As I there mentioned, action was commenced by Mr Huntington and, when he died of independent causes in 1997, the present plaintiff, his widow, was substituted by order of the Court in 1999, pursuant to s 2 of the Law Reform (Miscellaneous Provisions) Act 1944, which provides that the cause of action vested in the deceased survived for the benefit of his estate. 2 The accident occurred on 5 May 1988, when the plaintiff was aged forty-eight years. At that time, the plaintiff was employed as a wool classer with Mr Kevin Kentwell of Warren and had been engaged in this occupation for some time. He returned to his former employment some eight weeks after the accident. It is claimed that, although he did so, he suffered continuing disabilities arising from the injuries he suffered in the accident and that these disabilities eventually forced him to give up this work. 3 Following the accident, the plaintiff was taken to Dubbo Base Hospital. He had suffered fractures of the second, third and fourth ribs on the left side together with a fracture of a scapula and the acromion. X-rays of the abdomen, skull and cervical spine were normal. The plaintiff had also suffered a haemopneumothorax with extensive interstitial oedema on the left side requiring insertion of a chest tube. He was alert and orientated with normal blood pressure. Although he was bleeding from the left ear canal, neurological examination was normal. The hospital's clinical notes for 5 May contain an entry, amongst others, "head injury # base skull". Of course, he needed to be treated in intensive care. Dr Gallagher reported that, five days after admission, the plaintiff was able to walk about, although he was bringing up copious green sputum and was febrile. It was noted, however, that he was showing symptoms consistent with alcohol withdrawal, and on the following day, the anaesthetist considered that he was suffering from delirium tremens. It is possible that these symptoms may have been complicated by the effects of pain relief medication and his head injury. The nursing notes for 23 May, on Mr Huntington's transfer from Dubbo to Warren, refer to vagueness and memory problems. 4 I interpolate here that Mr Huntington gave Dr Alam on 22 June 1989 a history, amongst other things, of unconsciousness and bleeding from both ears. The doctor noted that, if this was correct, "then this constitutes a clinical diagnosis of fractured base of skull". However, the radiologist's report on X-rays taken on 2 March 1989, whilst referring to a number of other fractures does not mention such a fracture. 5 By 15 May it was noted that the plaintiff was stable and improving. He was breathing spontaneously and was extubated the next day. Physiotherapy was continued. On 17 May, radiology showed a small left pneumothorax and a faint increase in opacity at both of the bases of the lungs. On 23 May the plaintiff was transferred to Warren District Hospital for convalescence and arrangements were made for him to be followed up by an alcohol counsellor. The hospital notes refer to an initial contact with drug and alcohol services from the Irana Health Centre on 25 May 1988. It was noted that there would be a follow-up session with Mrs Huntington. The plaintiff had no recollection of any such proposal or of attending any counselling session. Nor, for that matter, did the plaintiff consider that her husband had a drinking problem. She denied that, prior to the accident, her husband regularly consumed a large amount of alcohol each night. She said that his usual drink was light beer and that her husband did not drink wine. On the whole, she thought that he was an average drinker. She was not aware of his drinking habits outside the home. She denied the suggestion that at any stage he drank one or two bottles of wine in a sitting, let alone each day. Having regard to the histories of excessive drinking given by Mr Huntington to a number of doctors consulted by him in connection with his injuries, I am satisfied that, indeed, Mr Huntington did have a significant drinking problem before the accident. The plaintiff's evidence, in effect, denied that this was so. Nevertheless, it was, I consider, honestly given and I do not accept the defendant's submission that her general credibility has been adversely affected, though the plaintiff's evidence was marked by a degree of vagueness which affected its reliability in some respects. 6 Mr Huntington was eventually discharged from hospital on 30 May 1988 into the care of his wife. It appears from the history given to Dr Coffey (as to whom see below) that, for a time, he attended Warren Hospital twice daily for physiotherapy for his chest and shoulder injuries. Mr Huntington returned to his employment as a wool classer with Mr Kentwell on 18 July 1988 and continued to work for him until July 1992. Before dealing further with Mr Huntington's work history, it is convenient that I first deal with his developing medical condition. In March 1989, Mr Huntington was seen by Dr Viglione, an orthopaedic specialist, on referral from Dr Haynes, his general practitioner. The history taken by Dr Viglione does not refer to any head injury, but lists left chest and left scapula injuries and an undisclosed soft tissue injury to the lower back. The doctor noted that Mr Huntington had made "quite a satisfactory improvement with his left shoulder" and that, although he worked with reduced efficiency and sometimes required someone to assist him, he was still able to undertake his work as a wool classer. Mr Huntington complained to the doctor of discomfort caused by the physical requirements of his work, which increased when he was dealing with tangled fleeces and, at all events, towards the end of the day. Mr Huntington also complained about difficulty with reaching above his head and to the side and that these movements caused a grating sensation. On examination, the shoulder itself appeared relatively normal although, on close inspection, Dr Viglione thought there was some wasting. Movement of the shoulder was somewhat restricted with accompanying pain. Dr Viglione administered an injection in the subacromial bursa with some success. Dr Alam, who I take to be an orthopaedic surgeon but whose speciality is undisclosed, saw Mr Huntington, as I have mentioned, in June 1989. He noted significant physical restrictions especially in the neck and left shoulder with some limitations in mobility of the lumbar spine. Dr Alam thought that the neck and back problems arose from a marked aggravation of pre-existing spondylitic changes caused by the accident. Although Dr Alam referred to a closed head injury with a fractured base of skull, he did not suggest that Mr Huntington gave a history identifying any reflective complaint, the doctor observing, however, that it "takes some 3-5 years at least [for such an injury] to settle down, and for the signs of cerebral irritation to flow out of the system". The doctor reported that Mr Huntington had, in effect, told him that the accident had caused him to restrict his alcohol intake to beer instead of wine. 7 Dr Haynes reported in October 1990 as having attended Mr Huntington on his initial admission on 5 May 1989 to Warren District Hospital, before his transfer to Dubbo. He listed a number of injuries, but does not refer bleeding from the ears, though he passed on without comment the clinical note containing the reference to head injury to which I have already referred. Dr Haynes stated that he had seen Mr Huntington on a number of occasions since the referral to Dr Viglione concerning his shoulder and back problems, describing treatment involving rest, anti-inflammatory agents and physiotherapy. He noted that Mr Huntington had ceased work because he was unable by pain and restricted movement to continue to work as a wool classer, which required full and active movements in both upper limbs and shoulders. (However, it seems that Mr Huntington in fact returned to work after about three weeks of rest.) Dr Haynes made no reference to any alcohol problem. 8 In December 1990, Mr Huntington was seen by Dr Coffey, a consultant neurologist. He told Dr Coffey that his main problems resulting from the accident concerned his left shoulder and low back, injuries to which interfered considerably with his work as a wool classer. He said that he had made a reasonable recovery from "his head injury" but that he had been left with on-going problems, involving difficulties with memory and concentration and had noted, since the accident, a tendency to dizziness and unsteadiness as well as recurrent headaches, at times occurring almost every day, although these had mainly occurred since June 1990. Mr Huntington told Dr Coffey that his left shoulder, in particular, caused considerable discomfort and restrictions when working, problems to which his back also contributed. So far as the doctors' reports are concerned, this is the first complaint about headaches. He also complained, for the first time, of pain in his right hip region when he stood or walked for long periods and felt stiff and painful when he alighted from a motor vehicle. Dr Coffey attributed Mr Huntington's memory, concentration, dizziness and balance problems to the closed head injury which he accepted was caused in the accident. He considered these difficulties to be minor but expected that they would be persistent. Generally, Dr Coffey seems to have accepted that the other physical symptoms described by Mr Huntington were caused by the accident although, so far as the right hip is concerned, I think this depended upon his accepting that Mr Huntington had been troubled by pain in this region since the accident. However, as I have mentioned, it appears he had not previously complained in this respect. 9 Dr Haynes reported on 10 September 1992 that Mr Huntington had ceased work for "a number of weeks" in February 1991, as I gather from the report - which is not clear in this respect - because of problems with his left arm and shoulder. 10 In April 1991, Mr Huntington consulted Dr Milton, a psychiatrist. The history he gave Dr Milton was generally consistent with what he had already said to others although he dated his suffering headaches from about mid-1988. Dr Milton also considered that the vagueness and memory problems, noted in the hospital records on 23 May 1988, resulted from his head injuries rather than alcohol withdrawal, having regard to the two weeks' lapse of time since the withdrawal symptoms began. Mr Huntington told Dr Milton that before the accident he was a fairly heavy drinker but that this affected neither his marriage nor his work, that after the accident he received counselling about his drinking, which was reduced to a maximum of four drinks a day. Mr Huntington also complained of depression and reduced sexual functioning. Dr Milton noted that Mr Huntington tended to understate his problems. He thought it likely that Mr Huntington's complaint of reduced memory represented a mild residual feature of his concussive injury and suggested that further investigations were warranted. 11 Mr Huntington saw Dr Seaton, who specialised in rehabilitation medicine, in April 1991, whose opinion as to his disabilities was similar to those of the other doctors to whom I have referred. He mentioned a complaint of slight memory loss. Dr Seaton noted that X-rays of both hips and pelvis taken in December 1990 revealed early osteoarthritis, with the right hip being worse than the left. Dr Seaton considered that Mr Huntington's restriction in flexion in his right hip and pain on rotation was contributed to by the accident. Mr Huntington told Dr Seaton that he was finding work more and more difficult. Dr Seaton thought that, given Mr Huntington's range of disabilities, especially affecting the use of his left shoulder, it would be unlikely that he would work much longer as a wool classer. Mr Huntington saw Dr Alam again on 11 April 1991. Dr Alam noted his complaint of pain and stiffness in the right hip together with pain in the right knee on movement of the hip which Dr Alam considered to be referral pain from the hip. Dr Alam thought that the right hip had declared itself as an aggravation and showed signs of calcification in the torn tissues there. Although he does not directly say so, it seems to me that Dr Alam attributed this aggravation to the accident. Mr Huntington's disabilities as found on examination were significant and would not only hamper his work but also, I think, make it painful and difficult to undertake many household tasks, especially those requiring bending or the use of his left arm. Dr Alam noted, again, that, "typically of a rural worker" Mr Huntington minimised his complaints and disabilities. 12 In June 1991 the plaintiff was examined by Ms Jill Farrelly, a clinical psychologist. Amongst other things, Mr Huntington insisted to Ms Farrelly that, although he had been a regular drinker, he did not think he had a drinking problem and, in particular, his drinking habits had never caused him to miss a day's work. Although, as I have said, it is probable that Mr Huntington did have a serious alcohol problem before his accident it seems to me that, in a hard drinking culture, this was not regarded either by his workmates or himself as either unusual or a problem. It is evident that it did not adversely affect his employment. Overall, Ms Farrelly considered, as a result of her assessment, that there had been a decline in Mr Huntington's intellectual capacity, with signs of mild verbal memory impairment. Other poor performances indicated significant frontal lobe deficits with impairment of the ability to exercise judgment, be mentally flexible and organise material learn. Ms Farrelly considered the possible significance of Mr Huntington's alcohol abuse as an explanation for his frontal lobe deficit but concluded that the poor performances which she identified were the result of head injury. 13 Dr Haynes reported on 10 September 1992 that Mr Huntington had been seeing him each month. He said that, in May 1992, Mr Huntington presented in his surgery in great distress with severe right-sided abdominal pain, the cause of which was not revealed on investigation, but which was markedly aggravated by leaning forward over the wool classing bench. Dr Haynes said, "because of pain and disability in his left shoulder and right buttock as well as the abdominal tenderness, Mr Huntington has had to give up his work". It was submitted on behalf of the defendant that I should infer that the abdominal tenderness (apparently having no connection with the accident) was the substantial cause, so far as his physical disabilities were concerned, of Mr Huntington's decision to give up employment in July 1992. Although, no doubt, the abdominal pain played some part in the overall picture, I consider that the correct conclusion from the whole of the evidence, especially the history in the later medical reports, is that it played a relatively minor role. 14 In August 1992, Mr Huntington was examined by Dr Grimsdell, an orthopaedic surgeon. Dr Grimsdell was given a history, inter alia, that the immediate cause of Mr Huntington's departure from employment was the advice of Dr Haynes that he should cease work because the doctor considered that he was not fit to continue as a wool classer. Dr Grimsdell noted that Mr Huntington had severe problems with the use of his left arm and shoulder together with pain and stiffness in his lower back and right hip, all of which had been aggravated when working. It is not necessary to note all the doctor's findings, except that (oddly) Dr Grimsdell found no problems with Mr Huntington's hips and thought that some changes demonstrated on X-ray, were of no significance. In light of the other medical evidence in the case concerning the hip, to which I have referred, I do not accept this finding. Dr Grimsdell noted that Mr Huntington exhibited involuntary, mild but detectable ataxia and some disturbance of his balance. Dr Grimsdell concluded that Mr Huntington was no longer able to continue as a wood classer. 15 In December 1992, the plaintiff and her husband moved to Bribie Island. In December 1996, Mr Huntington was diagnosed with cancer of the bowel and he died on 21 December 1997 from this illness. I will deal later with the period between December 1992 and December 1997 but it is convenient first to consider his situation up to the time that he left Warren. 16 So far as Mr Huntington's work was concerned, the plaintiff relied principally on the evidence of a Mr William Darcy, who had been a close friend for over twenty years. Mr Darcy was a shearer and worked also for Mr Kentwell, for whom Mr Huntington worked as a wool classer. It is unnecessary to describe in detail the work of a wool classer. It is sufficient to state that it involved placing the fleece on the classing table, helped by a rouseabout, ensuring that the fleece is flat on the table, which requires leaning over to full extension whilst bending from the hip, examining the fleece, and throwing it into a bin labelled with the class. The pace needs to be maintained that keeps up with the shearers. Mr Darcy described the work generally in this way - "They are all arm and shoulders. You get your fleece and you throw him back over here and it is all arms. Sometimes when the wool gets up in the bins a bit high and you've got to throw them over, it's a fair bit of weight to it. It's no easy job...He has got to keep up with us and we are going flat chat. Everyone is flat chat and if you don't keep up, the fleece is in front of the table so you drop them down. You don't - the fellow picks them up, the three of us might finish together. You pick it up, put it down. Pick it up, put it down. It's a bit hard when you get behind. If there is three there, it is a bit hard to pick them up. You've got to get around and pick them up. It's pretty physical." 17 As to Mr Huntington's standard of work, Mr Darcy said - "Like, I have been in the sheds all me life really and he is the best wool classer I have ever seen. Get another fellow on the other side of the table, might not be able to keep up with him, might have to do a little bit extra on his side. He was really, really good." 18 Mr Darcy said that he noticed that Mr Huntington, when he returned to work following his accident, "wasn't as good as what he was before" and added, "he was doing it hard, you know". He explained it in this way - "...well, he was not so fast, you know. You are doing it hard...he didn't say he was doing it hard but he was doing it hard. In the shearing shed, like, if you do a bit of complaining, like if I whinge, I got a sore back, you are a whinger, a bit of a sook. You keep those things to yourself...you know, you see a few fleeces laying around, you know, jeez, he's doing it a bit hard. He smoked. He liked his smoke but a lot of the shearers pull up the hour, or a few of them pull up the hour. I don't, I just keep going. Why work an hour flat out and waste a bit, you know...I knew he wasn't as good. If you draw number one, you know what's going on. You know, you're up close to the table. Stand here, I would be along side of him, you know, have a bit of a yarn to him. "How're youse going?" You keep talking to one another, bit of a conversation while you are working, you know and he - yeah, yeah, he slowed up a lot, yeah...he was a hard worker..."