Adrian Ware v Integral Energy [2003] NSWSC 351

New South Wales Supreme Court

CITATION : Adrian Ware v Integral Energy [2003] NSWSC 351 HEARING DATE(S) : 25/03/03,26/03/03,27/03/03 JUDGMENT DATE : 30 April 2003

JUDGMENT OF : Cripps AJ DECISION : See para 48

CATCHWORDS : Damages - most extreme case - severe electrical burns - gross deformities - amputation - cost of prostheses PARTIES : Adrian Ware - Plaintiff Integral Energy - Defendant FILE NUMBER(S) : SC 20481/00 COUNSEL : Plaintiff - P. Blacket SC, W.D.H. Walsh Defendant - R. Sheldon SOLICITORS : Plaintiff - Turner Freeman Solicitors Defendant - Leigh Virtue & Associates

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Cripps AJ

30th April 2003

20481/00 - Adrian Ware v Integral Energy

JUDGMENT 1 HIS HONOUR: On 26 March 1999 the plaintiff was electrocuted as a result of the admitted negligence of the defendant. The matter before the Court is for an assessment of damages only. 2 The plaintiff was badly injured in the accident. He suffered severe electrical burns to his lower right arm, left hand, chest and shoulders and right leg. 3 Initially he was treated at the Intensive Care Unit at Liverpool Hospital. Later he was transferred to the Burns Unit at Concord Hospital where he came under the care of Dr Haertsch a plastic surgeon and Dr Masson a hand surgeon. 4 Between 26 March 1999 and 20 April 1999 he underwent seven operations. On 9 April 1999 his right arm below the elbow and his left finger were amputated. 5 The plaintiff has been left with gross deformities of his neck, shoulder and upper back on the left side and his right thigh and calf. He has two large scars adjacent to each other on the left lateral axilla and the left upper medial arm. 6 The scarring on the left hand and the left shoulder and neck has left the plaintiff with significant disabilities. In addition he has lost right leg medial quadriceps and has significant problems with his right knee which will, in the future, probably develop degenerative changes due to lack of quadriceps. His inability to use his right leg will, in all probability, lead to future problems with his spine. As a result of the electric shock he suffered severe cardiac dysfunction leading to hypertension which will continue in the future and for which he will need treatment. 7 The plaintiff was right handed. He has lost his right hand and now wears a prosthesis. His left hand functions badly due to the loss of his ring finger and extensive scaring. It is extremely difficult for the plaintiff to undertake ordinary day-to-day living activities. He is, not unnaturally, concerned about his uncovered appearance. Although he has had one child since the accident and hopes to have another in the near future he has difficulty with sexual intercourse. The massive scaring has adversely affected his body's capacity to control temperature. He continues to suffer a great deal of pain including phantom pain in his right arm and his Myoelectric prosthesis is sensitive to electro magnetic fields. 8 It is unnecessary to list all the disabilities suffered by the plaintiff. As will be seen the defendant's medical advisers do not really dispute either the injuries suffered by the plaintiff or his present disabilities. For example it is not disputed that the plaintiff can no longer drive a manual motor vehicle and he is entitled to be compensated for the additional costs likely to be incurred by him as a result of the need for a larger modified car. It does not dispute he is entitled to compensation for additional expense he may incur in the future for modifications to his home and the acquisition of a lap top computer. Presently the plaintiff is investigating voice recognition software and other advances in technology, which would not have been acquired by him but for his accident. He needs assistance in carrying out day-to-day activities. On this issue the only dispute between the parties is how much assistance is needed by reason of his injuries. 9 The plaintiff returned to light duties on 17 January 2000. He was unable to carry out his pre-injury work and the defendant created a position especially for him as Assistant Project Manager. He has continued in that work since that time although he has had time off for further operations. He is unable properly to undertake the work of Project Manager because of his disabilities. For example it is often necessary for him to have an assistant with him when undertaking field work which, had he not been injured, would not have been necessary. He will never return to his pre injury occupation as an electrician. Should he lose his present position he will be significantly disadvantaged on the open labour market. 10 The plaintiff was born on 30 June 1977. He was twenty-three when he was injured. At the date of trial he has a life expectancy of 53.7 years and, if he had worked until he was sixty-five a working life of 43 years. When calculating the present value of compensation for future losses and future expenses I have reduced the plaintiff's claim to a weekly sum and have applied the 5 percent table for the appropriate multiplier. That is for 53.7 years the multiplier is 990.80 and for 43 years it is 902. 11 Before his accident the plaintiff had completed a four year course and had qualified as an electrical fitter. Prior to that he had undertaken a typing course at TAFE Wollongong and had passed exams in electronics technology. He had almost completed his Diploma of Engineering. 12 From time to time his performance as an electrical fitter was the subject of assessment by his employer and he was described by his supervisor as having an excellent attitude to work. It was said he was; "A good worker of above average ability. Clear and self thinker. Gets on with co-workers. We need people like Adrian". 13 Before his accident the plaintiff was fit and healthy. On 7 March 1998 he married his childhood sweetheart. They are happily married and since the accident his wife has had a baby. The plaintiff and his wife have both expressed a desire to have a second child in the near future. The plaintiff helped his wife around the house and enjoyed travelling with her. He participated in a number of sports including golf, surfing and bungy jumping. These, with the possible exception of golf, are now beyond him. He plays golf with a prosthesis but is not able to play to the same standard as previously. The plaintiff was a competent organ player although the had not entered musical competitions for some years prior to his accident. Before the accident the plaintiff serviced his own car and his wife's car. He did all the building work associated with the renovation of his home at 10 Balfour Street, Fairy Meadow. Now he can do none of these things. 14 Since the accident the plaintiff and his wife have demolished the house at 10 Balfour Street, Fairy Meadow and have built another single level house on the site. The house was designed to meet the needs of the plaintiff so far as they can be met. Although the plaintiff can perform some functions for his infant child there are many he cannot. For example changing nappies and bathing the child is extremely difficult. Moreover as his child (or children) get older and more active the plaintiff will have increasing difficulty caring for them. 15 There is a difference of opinion between the plaintiff's treating doctor and a West Australian medical expert to whom the plaintiff was sent for assessment concerning future treatment. Dr Haertsch, his treating doctor, has suggested operations to improve the contour, texture and colour of the scaring of the shoulder and neck. Because of the severity of the scaring he thought the treatment would involve about six operations at a cost, in all, of approximately $60,000. Six surgical procedures will be necessary because of the enormity of the task. Even so the procedures will be accompanied by certain risks such as sepsis, which will be higher than normal because the surgeon will not be dealing with a clean surgical wound. Overall the six operations will result in the plaintiff being away from work for a period of about six months during which time he would require increased home care. 16 Dr Wood a plastic surgeon in Western Australia has expressed an opinion that the plaintiff could benefit from four operations referred to as "skin expanders" to improve the plaintiff's neck and shoulder and, as well, his right thigh and calf. Dr Haertsch has advised against any surgical procedure to the thigh and calf. He thought that to have any prospect of success the plaintiff would need to undergo a number of operations and there could be no guarantee of success. As he put it: "He would have to have a significant number of operations over a long period of time and I thought that weighing the risks against the benefits I would advise him against it, but it would not be an unreasonable thing for him to say 'I want to go ahead'". 17 In evidence the plaintiff expressed a preference to undergo the operative treatment referred to by Dr Wood because he believed it would be "less intrusive". The cost of treatment in Western Australia would, according to Dr Wood, be significantly less than the cost of the same treatment in New South Wales according to Dr Haertsch. Dr Haertsch had given evidence and explained why it is that he recommended against any cosmetic surgery to the plaintiff's right thigh and calf. Dr Wood did not give evidence. Notwithstanding the plaintiff's tentative preference I doubt whether the plaintiff will undergo the surgical procedures recommended by Dr Wood bearing in mind the extremely painful and uncertain outcome foreseen by Dr Haertsch. If the plaintiff undergoes the surgical procedures recommended by Dr Haertsch he will need full-time domestic help while recovering from surgery due to the loss of his right arm below the elbow and the problems associated with his left arm and hand and right leg. 18 As I have said there is no real dispute between the parties concerning the gravity of the injury suffered by the plaintiff and the disabilities flowing there from. There are, however, differences concerning: