Supreme Court of Tasmania|1987-07-22|Before: Cox J

McCreary & Anor v Whitney [1987] TASSC 43 (22 July 1987)

CITATION: McCreary & Anor v Whitney [1987] TASSC 43; A39/1987

1 This is an assessment of damages claimed by each plaintiff for personal injuries sustained when struck by a motor vehicle while they were crossing the road on foot on the 12 September 1985.

2 Both plaintiffs are aged 59 years. The first named plaintiff is now retired from a senior position in the insurance industry. He sustained severe bruising on the radial aspect of the palm of the right hand, but was not admitted to hospital after the impact. In the opinion of orthopaedic surgeon Mr. Dermot Morgan he sustained a severe sprain of the wrist and could be suffering from some instability between some of his carpal bones in that joint. Mr. Morgan thought it likely that the male plaintiff would be left with a permanent disability due to his wrist injury which the doctor assessed at approximately 10% of the right arm as a whole. In a report made some 14 months before the trial Mr. Morgan expressed the view that it was more likely that the male plaintiff would develop arthritis in the future and require medication more regularly. Although he did not consider it likely that the symptoms would become really severe, a wrist arthrodesis might require consideration if they did. On present day values the overall costs of such surgery and hospitalisation would be in the order of $2,000. At the trial Mr.Morgan said that he still considered arthritis a possibility and that the plaintiff would require medication more regularly. He conceded however, having heard some of the evidence of the plaintiff, that he appeared to have improved slightly since his last examination and that the chances of an arthrodesis being required were reduced.

3 The male plaintiff prior to the accident had enjoyed good health and his main pursuits had been gardening, boating and fishing and restoring antique furniture. Since the accident the right wrist aches most of the time and using it for any length of time aggravates the pain. Activities such as hammering, digging and hoeing, or anything of a jarring nature, produce a dull ache causing him to desist from them. He takes medication regularly and uses a wrist brace or thermo-glove to reduce the pain when his wrist is worrying him. He is still able to engage in most of his pre-accident activities, but if he uses his wrist vigorously it causes pain.

4 While not a major disability the injury sustained by the male plaintiff is chronic. It is limiting in terms of the vigour with which he can pursue his interests and he will probably continue to require medication for the rest of his life. This now costs approximately $3 per week and the present value of that weekly sum for the 17 years of his life expectation using 3% tables is $2,091.

5 The possibility that he will develop arthritis so disabling as to require surgery is not fanciful or insubstantial. It is a prospect which requires to be taken into account "on a consideration of all the facts in proper perspective" (Davies v Taylor [1974] AC 207, per Lord Reid at 212).

6 Having regard to the continuing pain and suffering of the first named plaintiff, its effect upon his lifestyle, his loss of amenities, the continuing expense of medication and wrist appliances, the possibility of the development of arthritis and the risk that expensive surgery may be necessitated, I assess his general damages at the sum of $7,000.

7 The second named plaintiff was more severely injured. She was knocked to the ground by the car which passed over her. Mr. Morgan examined her on the 1 August 1986 and sent this report to her solicitors:

"At your request I examined this lady on the 1st. August. She told me she was struck by a car as a pedestrian in Hobart on the 12th September, 1985. She sustained a transient loss of consciousness. She was in the Royal Hobart Hospital for about three days after being injured. She told me she had an undisplaced skull fracture. She said she also noticed backache at the time together with pain in her lower legs where the car had apparently run over her.

The back pain and discomfort have persisted and she often finds it necessary to sleep in chairs. She told me she had a poorly healed wound in the lower left leg which later became infected.

She told me she used to be a very active person with a home gym system and used to enjoy a great deal of walking. She now gets variable backache after activity, including much walking. She also suffers from it in cold or wet conditions. Her gardening has been restricted as this also causes backache.

She said she cannot travel long distances in a car as she needs to stop and get out and move around to relieve backache. She is currently taking no medication and believes her back symptoms to be fairly static. She said she cannot sit at a sewing machine for long periods as she used to do before, having been a very keen dressmaker for many years. She denied any back problems before the accident.

She said her lower legs ache if she walks much. She finds the lower legs and ankles tend to swell later in the day since the accident and ache more. She mentioned that she was concerned about their cosmetic appearance. She said she had to keep the sun off the scars which ached in cold weather, particularly on the left side. She said she wore supphose to control swelling.

EXAMINATION:

She walked with a normal gait without a limp. I noted a ten centimetre scar on the lateral side of the left lower leg and this scar was about three centimetres wide approximately; it was unpleasant in appearance and was tender. There was a four centimetre lesser scar on the antero medial aspect of the right lower leg. I noted some swelling in the soft tissues just above the ankles, more marked on the left side. Range of ankle movement was full.

There was tenderness in the lower lumbar spine with some restriction of lumbar movement particularly extension. Straight leg raise however was not limited and she was neurologically normal. X/ray of the lumbar spine showed some decrease in the normal lumbar lordosis indicating muscle spasm and minor degenerative change in the central lumbar spine not inconsistent with her age.

OPINION:

Mrs McCreary has sustained soft tissue damage to the lumbar spine with probable damage to a lower lumbar disc, in my view. I believe her lumbar spine is permanently weakened to an extent and she will continue to be troubled by variable backache with considerable activity or prolonged sitting. This will lead to continuing handicaps with activities which she enjoys such as sewing and gardening.

I do not consider future surgery will be indicated. She may at times need to take anti-inflammatory medication. She might find in the future some help from wearing a supportive type of corset.

She has sustained crush injuries to the lower legs which has left her, particularly on the left side, with a rather unsightly scar. I would certainly accept that this has had the effect of causing some distal swelling there later in the day and I believe this too will be permanent. I do not think there is anything really that can be done about this condition. She is not likely to develop arthritis as a result of these injuries. If anything I would expect the legs to gradually improve over the next year or two however. I would suggest she should probably be considered to have a ten percent disability of the left leg and perhaps a five percent disability of the right due to these soft tissue injuries. I note she had wound breakdown and infection before on the left side and I would not recommend cosmetic surgery to improve the appearance here as I believe there would be an increased likelihood of such complications ensuing again."

8 This report represents a convenient summary of the evidence tendered by both Mr McCreary and Mrs McCreary and Mr Morgan of her condition.

9 The accident has caused a significant interference in the second named plaintiff's lifestyle and in her general enjoyment of life. From being a very active dressmaker for herself, her daughter and her grandchildren, she has found her production reduced by more than 50%. Dressmaking had saved her considerable expense as she made a large proportion of her own clothes. It is difficult to quantify the financial loss this restriction on her ability to make clothes causes her as there was very little evidence on the topic. However, she did say that in the past she had made about half a dozen pairs of slacks for herself per annum at a cost of about $20 per each, whereas the cost of bought slacks was $40 - $50. This would represent a saving of about $120 or $150 each year prior to the accident, or something in excess of $60 - $75 a year since the accident if she can only produce less than 50% of her former output. In addition she made skirts and many other items of clothing. I think it a reasonable inference that she has lost the ability by dressmaking for herself to effect savings of at least $200 - $300 per annum. Doing the best I can I shall treat her as suffering a continuing weekly loss of about $5, which represents a capital sum of $4,220 using 3% tables and a life expectation of 22 years.

10 She also engaged in the restoration of antique furniture, deriving considerable pleasure and some small financial profit from that pastime. The evidence does not enable me to quantify her financial loss, but it does indicate that this activity has been substantially reduced because of the pain it causes her.

11 She has a continuing problem sitting in the one position for periods of an hour or more and when travelling in a car needs to alight and move around after about that time. Her sleeping is affected, her legs swell after lengthy standing or walking and domestic chores requiring stretching cause her pain. Her ability to garden is affected and her pleasure in following this pursuit reduced. She encounters difficulty lifting small children and her enjoyment of her grandchildren is attended by a price of considerable fatigue and sometimes pain.

12 She takes anti-inflammatory tablets, needs lotions to treat her scarred legs and wears a thermo-skin on a fairly regular basis. The present cost of procuring these materials is $7 per week. It is likely to persist at that level for the rest of her expected life of 22 years and its present value using 3% tables is $5,908.

13 The second named plaintiff endeavours to take all reasonable precautions to minimise any exacerbation of her condition. She has lengthened the handle of her vacuum cleaner and lowered her clothes line to reduce stress of her back. She engages in most of her former pastimes, but at a much reduced level, and even then with some discomfort if not pain. She uses medication and apparel to ameliorate her condition and protecting clothing to avoid trauma to her scarred legs. She needs to avoid direct sunlight on them and her ability to enjoy holidays in sunny conditions is reduced. All in all she has sustained moderately severe injuries which continue to cause pain and suffering and to affect her general enjoyment of life.

14 Some months prior to the accident the plaintiffs resolved to take a holiday to the Cook Islands and paid a deposit. The holiday was booked for November 1985, two months after the accident. Because of the second named plaintiff's condition at that time the trip was cancelled, and wisely so in the doctor's opinion. There was no financial loss but both plaintiffs were extremely disappointed. A year or so later they had a holiday at Surfers Paradise, but their aspirations for a once in a lifetime exotic holiday in idyllic tropical surroundings were not realised and the condition of the second named plaintiff precludes the possibility of their ever being realised. In those circumstances it is submitted that they should be awarded some monetary compensation for the loss of their holiday.

15 In Jarvis v Swans Tours Limited [1972] EWCA Civ 8; [1973] 1 All ER 71, the plaintiff suing for a breach of contract to provide a congenial holiday in an alpine resort was awarded damages for his disappointment, distress, upset and frustration caused by the breach. At 74 Lord Denning MR said:

"A good illustration was given by Edmund Davies LJ in the course of the argument. He put the case of a man who has taken a ticket for Glyndbourne. It is the only night on which he can get there. He hires a car to take him. The car does not turn up. His damages are not limited to the mere cost of the ticket. He is entitled to general damages for the disappointment he has suffered and the loss of the entertainment which he should have had. Here, Mr. Jarvis's fortnight's winter holiday has been a grave disappointment. It is true that he was conveyed to Switzerland and back and had meals and bed in the hotel. But that is not what he went for. He went to enjoy himself with all the facilities which the defendants said he would have. He is entitled to damages for the lack of those facilities, and for his loss of enjoyment."

16 This case was followed in Jackson v Horizon Holidays Limited [1974] EWCA Civ 12; [1975] 3 All ER 92 where yet again the facilities offered by the holiday agency in glowing terms were sadly lacking in reality.

17 In the case of Ichard v Frangoulis [1977] 2 All ER 461 Peter Pain J applied the same principle to a case arising in tort. At 462 his Lordship said:

"We have had some discussion at the Bar whether I ought to take into account at all the fact that the defendant had his holiday ruined. Counsel for the plaintiffs has helpfully referred me to a couple of cases in contract, Jarvis v Swans Tours Ltd [1972] EWCA Civ 8; [1973] 1 All ER 71, [1973] QB 233 and Jackson v Horizon Holidays Ltd [1974] EWCA Civ 12; [1975] 3 All ER 92, [1975] 1 WLR 1468 where damages were given in contract for loss of enjoyment of a holiday where the tour operator had let the customer down (to put it shortly) but he said, and counsel for the defendant agreed, there is no authority for that being treated as a head of damage in tort, and it was, I think, common ground between counsel that one applied the ordinary test in tort whether the damages were reasonably foreseeable by the negligent party.

18 This accident took place during the holiday period between two cars both driven by tourists in an area which one knows is much frequented by tourists, and I cannot doubt that if anyone had asked Monsieur Ichard whether, if he drove into another tourist and injured him, that tourist would have suffered a particular loss thereby, Monsieur Ichard would have given a Gallic shrug of the shoulders and regarded the thing as perfectly obvious. It may be that this is why this matter has hitherto never figured in the reports. I regard it not as a separate head of damage but as one of the factors to be taken into account when assessing general damages, and as a factor which would lead me to give rather more by way of general damages than I otherwise would do.

19 In Australia an allowance as part of general damages has been made for loss of the enjoyment of holidays suffered by a plaintiff seeking damages in tort. See Linke v Howard [1965] SASR 83; North v Thompson [1971] WAR 103 and Bosch v Liebe [1976] VicRp 21; [1976] VR 265. In all these cases the plaintiff had received holiday pay during a period of disability caused by the tortfeasor. While the wages thus received could not be recovered as an item of special damages, some allowance could be made by way of general damages for, as Dunn J said in Bosch v Liebe at 266:

".... in the assessment of general damages in such a case one matter to be taken into account is that while the plaintiff has had his holidays, he has not had the advantages of a holiday for pleasure and recreation."

20 In the present case neither plaintiff missed out on a period of recreation leave, whether paid or not. The first named plaintiff had retired and the second named plaintiff had not been in the paid workforce since her marriage. Nevertheless they both missed out on that holiday and lost the opportunity of taking it at some later time, because the second named plaintiff suffered physical injuries which rendered such a holiday an impracticality. Because of her injuries, while the first named plaintiff could physically have taken the holiday, to have done so on his own would have defeated the whole purpose of it. Thus both lost the pleasure and recreation of such a holiday.

21 I think such a loss was reasonably foreseeable by the defendant. Of course he would have had no reason to anticipate that any victim of his negligent driving might have been planning a trip to the Cook Islands, but he should have foreseen that as a result of his negligence a pedestrian might well have been so injured as to be unable to enjoy a holiday and that, as many members of the public have the means and inclination to undertake overseas holidays, disabling them could easily result in depriving them permanently of the opportunity to enjoy such a holiday.

22 In my view it is appropriate to augment the damages of each plaintiff by taking into account this factor and giving rather more by way of general damages than I otherwise would do. I think a figure of approximately $500 is appropriate and I have in fact allowed that in respect of the first named plaintiff.

23 I assess the general damages of the second named plaintiff, after taking into account (with a modest discount) the present value of the loss of $12 per week for medication and thermo-skins and for diminution in her capacity to make her own clothes, together with compensation for the lost holiday, in the sum of $20,000.

McCreary & Anor v Whitney [1987] TASSC 43

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McCreary & Anor v Whitney [1987] TASSC 43 (22 July 1987)

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