Assessment of Damages
241 It is appropriate that I address the question of damages in the event that an appeal is brought with respect to my findings concerning liability and any of those findings are overturned. I will shortly consider the issue of damages.
242 The most significant area of injury sustained by the Plaintiff relates to his left knee. The Plaintiff gave evidence of back pain and ankle pain following the fall. I accept that some back soreness and ankle soreness resulted from the fall. However, I am not satisfied on all the evidence, including that of the Plaintiff and Dr Mahony (T366.20), that the back and ankle gave rise to anything more than transient and passing pain. It is the left knee which forms the central part of the Plaintiff's claim for damages.
243 I have referred earlier in this judgment to the Plaintiff's 1983 accident and 1987 operation affecting the left knee. Although the Plaintiff said in evidence in chief that, in substance, the difficulties he had been experiencing with his left knee had settled in the 1990s, he admitted under cross-examination that he received physiotherapy in September and November 1996 complaining of pain in the left knee following prolonged standing and sitting for longer than an hour (T240-241).
244 X-rays of the Plaintiff's left knee taken on 11 September 1998 revealed moderate narrowing of the medial compartment due to osteoarthritic change. There was osteophytic lipping of the lateral compartment and degenerative change in the patella femoral joint (report of Dr Wilding, 6 March 2003, Exhibit O, page 3).
245 Dr Wilding reported that, by May 1987, there was already evidence of degenerative change in the Plaintiff's left knee (Exhibit O, page 4). The 1983 injury resulted in the development of premature degenerative change in the knee. Dr Wilding commented as follows with respect to the fall in September 1998 (Exhibit O, page 4):
"When the fall occurred Mr Gaskell already had degenerative change in the left knee and even if the fall had not occurred the osteoarthritic process would have continued to progress and he would ultimately have required a total knee replacement.
However the fall aggravated the underlying degenerative condition and accelerated the progression of symptoms.
By what time frame the progression of symptoms was accelerated is difficult to state but on the balance of probabilities I would estimate that his symptoms were probably accelerated anywhere between 2-4 years.
I can be no more specific than that."
246 The radiologist's report with respect to the x-ray of the Plaintiff's left knee taken on 11 September 1998 stated as follows (Exhibit 15):
"Slight effusion in the joint space noted. There are gross osteoarthritic changes in the knee joint and patellofemoral [sic] articulation. small [sic] corticated fragments are present at the medial and lateral margins of the joint which are probably extra synovial. No convincing recent injury or other abnormality is seen."
247 The evidence points to an aggravation of a pre-existing injury to the left knee which had already demonstrated significant degenerative change. On the medical evidence, prior to the fall in September 1998, the Plaintiff was likely to require a left-knee replacement at some time. The requirement for physiotherapy of the left knee on more than one occasion in 1996 points to ongoing difficulties being experienced by the Plaintiff before September 1998. The Plaintiff's pre-existing left-knee injury and its degenerative state must be taken into account: Wilson v Peisley (1975) 50 ALJR 207 at 209, 212. The medical evidence in this case demonstrates, in accordance with the principles in Watts v Rake (1960) 108 CLR 158 at 159, that the Plaintiff's left knee was in an advanced degenerative state flowing from the 1983 accident and that further treatment, including knee replacement was inevitable without the September 1998 fall.
248 I accept that the Plaintiff undertook a range of outdoor activities prior to September 1998. By and large, he has continued these activities although with reduced levels of exertion. I accept that the Plaintiff's ability to engage in longer bush walks was reduced as a result of the September 1998 fall, but I consider that difficulties of this type were inevitable in any event. The Plaintiff's left knee had experienced significant degenerative change and a knee replacement, according to Dr Wilding, was inevitable. The reduction in the Plaintiff's ability to undertake a range of outdoor activities must be viewed in this light.
249 It is noteworthy that the Plaintiff was able to undertake a range of activities surrounding car racing, including climbing in and out of buggies and pushing vehicles. The images depicted in the video tape (Exhibit 17) demonstrate a range of movement on the Plaintiff's part in March 2005 and demonstrates a capacity to engage in vigorous activities of this type if the Plaintiff so chooses. It is true that the images of the Plaintiff in the video tape show some limping of the left leg. This is understandable. The Plaintiff had experienced a significant knee injury more than 20 years ago which had already undergone significant degenerative change. I accept that the fall of September 1998 contributed further to the Plaintiff's limp. There is an increased level of pain which the Plaintiff experiences when carrying out tasks involving exertion of the left leg. However, the Plaintiff is able to undertake these tasks. I do not accept that the Plaintiff is unable to perform a range of domestic tasks including vacuuming and lawn mowing. There is a broad similarity between those tasks and some of the tasks visible on the video tape, including pushing a motor vehicle.
250 With respect to general damages, counsel for the Plaintiff submitted that a significant award of general damages ought be made in this case. It was submitted that there was significant pain and suffering on the Plaintiff's part and significant interference with his ability to perform a range of functions affecting his work and recreational activities.
251 Counsel for HRA submitted that the Plaintiff at best makes out a claim for a moderate aggravation of pre-existing degenerative condition of the left knee giving rise to modest general damages of no more than $10,000.00. Counsel for Denkas submitted that general damages would be in the vicinity of $5,000.00 only, or nil if the de minimis principle was applied.
252 If the Plaintiff had established liability in this case, I consider that an award of general damages in the sum of $30,000.00 ought to have been made. This sum would reflect the level of pain and suffering and interference with the Plaintiff's ability to undertake a range of activities. However, I accept the submission of the Defendants that the Plaintiff's injury ought be characterised as a moderate aggravation of a pre-existing degenerative condition of the knee. The award of general damages would reflect that finding.
253 With respect to past economic loss, counsel for the Plaintiff submitted that the sum of $75,000.00 ought be awarded to the Plaintiff (T689.25). Although it was acknowledged that the evidence revealed a level of loss in the Plaintiff's business between 1993 and 2000, it was submitted that a finding was open on the evidence that the Plaintiff had sustained economic loss resulting from his fall of September 1998. It was submitted that he had reduced mobility on work sites which he was required to visit as an engineer and that this restricted his ability to earn income. Although the Plaintiff has moved into well-paid positions in the engineering field since 2001, it was submitted on his behalf that identifiable past economic loss ought be found.
254 Counsel for Denkas and HRA submitted that the Plaintiff had not established any basis for an award for past economic loss. It was submitted that the evidence revealed a history of losses sustained in the Plaintiff's business between 1993 and 1998 with the position only improving in 2000. Thereafter, the Plaintiff sold his business and took up employment in the engineering field receiving significant income in the positions which he has occupied. It was submitted for the Defendants that there is no evidence which ought satisfy the Court, on the balance of probabilities, that the Plaintiff suffered economic loss as a result of the fall in September 1998. Although the Plaintiff asserted that he experienced difficulty in visiting work sites after the fall, the evidence does not reveal any loss flowing from such alleged difficulty.
255 The Defendants' submissions have considerable force with respect to past economic loss. I accept that the Plaintiff may have experienced some greater difficulty in visiting work sites, especially on rough ground, following the fall. The difficulty, however, is translating that difficulty into any reliable figure by way of past economic loss. The Plaintiff's business was running at a loss before the fall and had done so for several years. He cannot point to a further loss on the part of the business following the fall of September 1998. Indeed, on the evidence, the financial position of the business improved in 2000. There is nothing in the documentary evidence provided from the Plaintiff's employers since 2000, namely Connell Wagner, Maunsell and Hyder, which indicates any practical difficulty experienced by him in the performance of his duties with those employers. Accordingly, the only evidence on this issue is the evidence of the Plaintiff.
256 Doing the best I can with the available evidence, I would allow a relatively modest sum for past economic loss. On the evidence, any award of damages under this head would not exceed $15,000.00.
257 As to future economic loss, counsel for the Plaintiff submitted that the sum of $50,000.00 should be allowed for future economic loss (T689.25). The submission in support of this figure pointed to the types of difficulties which I have referred to with respect to past economic loss, namely reduced mobility at work sites. Further, it was submitted that the Plaintiff will be off work for a period of time when any knee replacement operation takes place.
258 Counsel for Denkas and HRA submitted that no award should be made for future economic loss. It was submitted that the Plaintiff was in good employment as an engineer receiving a significant salary. There was nothing in the documentary evidence emanating from his employers since 2001 pointing to any difficulties with his employment which may be referable to the September 1998 fall. It was submitted that the Plaintiff would have required knee replacement in any event and that this aspect does not assist the Plaintiff on the question of future economic loss.
259 Once again, doing the best I can, I do not consider that any significant award of damages by way of future economic loss would have been made in this case if liability had been established. The Plaintiff has a reduced level of mobility arising from the September 1998 fall. In one sense, this may have an effect upon the length of his expected working life. However, a knee replacement was inevitable at some point and this is the major factor which could affect the Plaintiff's future employment. That operation was required in any event. If damages were to be awarded to the Plaintiff, I would make some allowance for future economic loss, but I would do so by way of a buffer in a sum not exceeding $30,000.00.
260 With respect to the claim for past and future care and assistance, counsel for the Plaintiff relies upon the evidence of the Plaintiff concerning his reduced capacity to perform domestic tasks including vacuuming, dishwashing, window cleaning and lawn mowing. It was the Plaintiff's evidence that, prior to 10 September 1998, he spent a period of one-and-a-half to two hours per week undertaking some of these activities. It was submitted that an award of damages should make allowance for this claim and reliance was placed upon the report of Adrianne Howard (Exhibit Q).
261 Counsel for Denkas and HRA submitted that any award of damages in favour of the Plaintiff should make no allowance for alleged past and future care and assistance. Particular emphasis was placed upon the video-tape evidence depicting the ability of the Plaintiff to undertake a range of vigorous activities surrounding car racing. The Defendants submitted that if the Plaintiff was able to perform these activities, then the domestic activities to which reference has been made were well within his capacity.
262 On the evidence, I am not satisfied that any allowance ought be made in any award of damages for past and future care and assistance. The evidence on this issue emanates from the Plaintiff only. I accept the submission of the Defendants that the video tape demonstrates that, as at March 2005, the Plaintiff had a physical capacity to perform a range of vigorous activities. I am not satisfied, on the balance of probabilities that any award should be allowed under this head of damages.
263 With respect to out-of-pocket expenses, the parties have agreed that, if any award was to be made, a sum of $3,662.00 ought be allowed. This figure encompasses general practitioner treatment expenses ($251.00) and physiotherapy treatment expenses ($2,160.00), together with travel expenses with respect to the general practitioner ($9.00) and the physiotherapist ($1,242.00) (Exhibit V). If an award of damages had been made in the Plaintiff's favour, I would have allowed this figure.
264 Counsel for the Plaintiff submitted that future out-of-pocket expenses ought include the cost of the knee replacement operation estimated at $21,550.00. I do not accept that this item ought be included in any award in the Plaintiff's favour. The evidence indicates that this operation was required in any event and, at the highest, the fall in September 1998 accelerated the time when the operation may be needed. In these circumstances, I do not consider that this item ought be included in any damages awarded to the Plaintiff.
265 With respect to other future out-of-pocket expenses, I accept the submission of counsel for Denkas that any allowance for this item ought not exceed $5,000.00.