Ragg v Palmer

The accident

1. The plaintiff was a passenger in a small Holden hatchback driven by his mother. He was seated in the rear seat. The accident occurred at the intersection of Fowler Street and Henry Street in Deniliquin. The defendant was drunk, speeding and failed to give way at the intersection. As a result of the collision the plaintiff was ejected from the vehicle and came to rest on a grass area.
2. The plaintiff had very bad injuries to his left leg. There was a suggestion of a significant head injury but fortunately this did not actually occur and played very little part in the plaintiff's continuing medical condition.
3. I intend to deal with contributory negligence at this stage. When the plaintiff was cross-examined he was not asked any questions at all about the accident. That is not surprising as there was no dispute that he has no recollection of what occurred.
4. More importantly he was also not asked any questions about his appreciation of the need to wear a seat belt and the consequences if a seat belt was not worn. The response to this point from the defendant was that the test is objective so that it does not matter what the plaintiff thought. I agree that the test is objective (T and X Company v Chivas [2014] NSWCA 235) but in my view applying an objective test to an 11 year old boy requires some evidence about what might be expected from a person of that age.
5. It is important to look at the whole of Section 5R: "(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."
6. Subsection 2(b) requires the determination to include what the person knew or ought to have known. There was no evidence on this point. I do not think I am able to state what an 11 year old person in the position of the plaintiff ought to have known. The plaintiff was obviously a very unsophisticated child sitting in the back of a car. I do not know if any other matters were going on immediately before the accident that might have justified him not wearing a seat belt, I do not know how long the journey had taken before the accident and I do not know whether there was any reason that the plaintiff might have undone his seat belt. Based on what I was told by consent from the bar table, I do know that his mother insists he was wearing a seat belt.
7. The onus is on the defendant to establish contributory negligence. I do not think that the defendant has established the necessary pre-requisites of Section 5R.
8. Also important is the issue of causation. The defendant relied on a report of Dr Griffiths (Exhibit 1). According to this report the plaintiff's leg injuries were caused by him hitting a fence. On this basis, assuming contributory negligence in failing to wear a seat belt that negligence could be seen to have been a material cause of the injury. However, the report of Dr Griffiths is based on the deduction of a police officer. No other evidence was called to establish the path of the plaintiff's body after it left the vehicle.
9. The defendant submitted that I could accept the police officer's deduction because the expert report had been admitted without objection and I was not invited to limit its contents on the basis that any assumptions or stated facts remained to be proved. The second point the defendant made was that Dr Griffiths' opinion does not depend on the plaintiff hitting the fence. Rather it was enough that Dr Griffiths concluded that the injury to the plaintiff's left leg did not occur in the motor vehicle. Once that point was accepted it did not matter how he came to injure his left leg, suffice to say that it would not have happened had he been wearing a seat belt.
10. The difficulty I have with the defendant's second point is that the injury that I am concerned with is that to the plaintiff's left leg. According to Dr Griffiths this was caused by the plaintiff hitting the fence. I think this is what the defendant is obliged to establish.
11. Turning then to whether the tender of the report was enough to establish the facts stated within it, the defendant relied on Section 60 of the Evidence Act 1995. In my view reliance on this section imposed an unfair disadvantage on the plaintiff in the manner described by Sperling J in Roach v Page (No 11) [2003] NSWSC 907 at 75j.
12. In summary, I think the allegation of contributory negligence fails because of the absence of any evidence concerning what the plaintiff knew or ought to have known and secondly because the defendant has not established that the relevant injury was caused by the plaintiff's failure to wear a seatbelt.

After the accident

1. The plaintiff was immediately taken to Deniliquin Hospital. The following day he was transferred to the Royal Children's Hospital in Melbourne. His injuries were summarised by Dr Bodel as follows: "Fracture of the left femur, fracture of the left tibia and fibia, extensive scarring, possible closed head injury."
2. As already noted the head injury was not of any significance. The plaintiff's major ongoing problem is with his left knee.
3. He remained in Melbourne until he was discharged on 24 October 2008. While in hospital he underwent surgery together with a number of scans and tests. He needed a catheter for a time and he was confined to bed. His mother was with him and provided many services such as washing him, feeding him and helping him with his toileting needs.
4. At discharge the plaintiff was in a wheelchair. There was still significant 'hardware' attached to his leg. He suffered a wound infection for a time. His dressings were attended to by a district nurse.
5. While confined to a wheelchair the plaintiff spent most of his time in bed still depending on his mother for all of his basic needs.
6. In February 2009 the plaintiff, still in a wheelchair, started high school in Deniliquin. He graduated to crutches in the second term and it was not until May 2009 that he was able to fully weight bear and could dispense with his crutches. He was still wearing a brace on his left leg. The hardware had been removed in February on a trip back to the Children's Hospital in Melbourne.
7. The plaintiff continued to return to the hospital from time to time for check-ups. He was usually taken to Melbourne by his stepfather. In February 2011 a concern arose about a discrepancy between the length of his respective legs. This led to surgery in March 2012 by Dr Harris.
8. The plaintiff had been keen on sports before the accident but was not able to return to these activities. He did make some attempts, in particular to test his leg's resilience. He was, and remains, scared of injuring his leg again. He was also a keen motor bike rider. He has maintained this interest but is significantly more careful in the manner in which he rides.
9. The plaintiff left school in December 2011. In February 2012 he did a course at Deniliquin TAFE which entitled him to a Certificate II, in turn providing him with, in effect, the School Certificate.
10. Following his course the plaintiff said he fell in with the wrong associates and did not find any work until November 2012 when he was taken on as a potential apprentice boiler maker. This did not bear fruit and the plaintiff was released from the position in February 2013. He then started the first of his farming activities as a station hand at Julia Creek. He later had a period off work which he blamed on once again not associating with the right people.
11. The plaintiff's work history thereafter can be seen in Exhibit C. Other than a period from November 2014 to March 2015 the plaintiff has been in generally regular employment. In the period I have just identified he did not work due to his pursuit of the young woman who has come to be his partner. This is Ms Rebecca Keogh. Ms Keogh gave evidence and she was as honest and forthright as the plaintiff had been.
12. The plaintiff now lives in Meningie, in South Australia. He works about two hours away at Kangarinda Farm in Keith. When working he lives in accommodation provided by the employer but otherwise returns to Meningie where he lives with Ms Keogh.
13. The plaintiff and Ms Keogh are set on a long term relationship. They hope to have children in due course and to live on a small farm. They presently rent a small property which has a three bedroom house and a washing line on the top of a hill.
14. The plaintiff's employment involves him driving a tractor. He is mostly involved in the growing of vegetables. His employer is a large concern.
15. The plaintiff finds driving the tractor painful although the transmission is automatic. I gathered that sitting for long periods causes significant aching in his knee. When he returns from a period of work Ms Keogh says he complains of pain in his left knee and rests. He also takes pain killing medication.
16. The plaintiff has not had treatment for some time. He said he does not like doctors but will seek medical attention and take advice if necessary.
17. The plaintiff has very significant scarring to his left leg. He finds this embarrassing and, other than at home, always wears long trousers. Ms Keogh said that it took some time before he was comfortable with her seeing him in shorts.
18. The plaintiff said that he has some difficulty with sexual relations with Ms Keogh; however they do live in a normal de facto relationship. Ms Keogh does all of the housework. The plaintiff does not do any outdoor work. The lawns are mowed by the owner of the property and the plaintiff finds it difficult to walk up to the clothesline because of the uneven ground.
19. Walking seems to be a particular problem for the plaintiff. He identified the walking involved in fencing as a very difficult task for him. He also said that dealing with cattle, in particular of the Brahman variety, could also be hazardous because he was unable to avoid them when they advanced on him.
20. The plaintiff said that he does not climb a ladder and would have difficulty in carrying out normal maintenance tasks. He did say he could do most domestic chores if given the time. He said that if he had the resources he would like to pay for assistance.
21. As I understood his evidence, the plaintiff was not seeking a domestic assistant who might do housework but rather a person who could attend to maintenance tasks such as cleaning gutters and other heavier periodical maintenance.

Damages

1. I do not intend to analyse the many medical reports in the case but rather to deal with the opinions of the doctors as they are relevant to the issues arising in the assessment of damages.
2. Beginning with non-economic loss the plaintiff submitted that the appropriate figure was $350,000. The defendant suggested $200,000 but with the rider that this figure might be seen as "light" when the plaintiff's devotion to pursuing employment was factored in because no doubt this would be associated with extra pain and discomfort.
3. The plaintiff also pointed out that he had endured considerable pain and suffering since the accident which occurred at a very tender age and he would continue to suffer for the remainder of his life. In addition he had been denied the sporting pursuits that he had enjoyed and such pursuits as he was able to continue, such as motor cycle riding, were at a much more sedate level. In addition the plaintiff reminded me of the extensive scarring which he had suffered. Although I did not see the actual scars I gathered from the evidence of Ms Keogh and the descriptions in the medical reports, that the photographs (Exhibit E) do not provide as graphic a picture as that presented by the scars themselves.
4. In my view the assessments put forward by the parties represent the extremes of the appropriate range for non-economic loss. I do, however, think that the plaintiff's figure is slightly closer to the mark, especially bearing in mind the defendant's point arising from the plaintiff's work ethic, so that I will allow a figure of $300,000.
5. Turning now to past economic loss. The plaintiff has made a claim for $10,000 made up of three separate periods during which the plaintiff did not work. The defendant has said there should be no past economic loss because the periods during which the plaintiff did not work were the result of factors not related to his injury. For example in the period between November 2014 and March 2015 the plaintiff was not working because he had devoted his time to the pursuit of Ms Keogh.
6. As will be seen below there is no dispute that the plaintiff has a diminished earning capacity. I have no doubt that this diminished capacity has affected him in the past notwithstanding his best efforts. However, it is necessary to take into account that the plaintiff did have other matters at hand from time to time which diverted him from pursuing employment. It is almost impossible to separate these times with any specificity. I do, however, think that there would have been short periods during which he would have been affected by his diminished capacity. I think the only fair way to approach past economic loss is to award him a very small buffer of, say $7,500 including any lost superannuation benefits.
7. Turning now to future economic loss it is first of all necessary for me to make findings in accordance with Section 126 of the MACA. In my view, but for the accident the plaintiff would have worked in a non-sedentary occupation, probably farming, for the whole of his working life. In addition, I am of the view that his attitude to work and the absence of any physical problems would have given rise to no more than the usual vicissitudes of 15%.
8. The defendant's case on future economic loss is that the plaintiff is effectively exercising a full economic capacity and is likely to do so for the rest of his working life. If there is going to be a loss it is likely to occur during the plaintiff's later years when the ongoing deterioration in his left knee comes to play a part in his capacity to work. The defendant submitted this would not occur before the plaintiff reached 45 years of age from when he should be awarded, after the appropriate deferment, $500 net per week.
9. The plaintiff agreed that from age 45 his economic capacity would be more significantly diminished. However he said the capacity would be productive of economic loss up to age 45 and this should be assessed at $250 per week.
10. The plaintiff is now working as a tractor driver. His current net weekly wage is approximately $1,200 and he is working 60 hours per week. The plaintiff submitted that while this was enviable it did no more than establish his capacity. The plaintiff submitted that he could not be expected to maintain this level of work as he grew older because his body simply would not cope.
11. The defendant responded that the job of a tractor driver was well within the plaintiff's capacity and therefore there is no reason why he could not carry on doing the work.
12. It is important to remember that the plaintiff is working in the farming industry. While his principal job is that of a tractor driver it is reasonable to assume that from time to time he will be called upon to carry out other farming activities. For example, he might be involved in mustering or fencing. Both of these occupations are difficult for the plaintiff.
13. While the views of the assorted medical practitioners are not the same in assessing the plaintiff's future economic capacity, all of the doctors accept the plaintiff as an honest historian and in some cases congratulate him on his stoicism and devotion to his employment.
14. Dr Harvey, for the defendant, is an orthopaedic surgeon. In his view the plaintiff "may have difficulty with certain very strenuous activities" but he is "fit for most forms of work". However, the doctor said that the plaintiff was likely to suffer "residual discomfort" in his leg and that there was an "increased susceptibility to osteoarthritis of the left knee in later life".
15. Dr Minogue, also for the defendant, whose specialty is a little difficult to understand other than in sports medicine, is one of the doctors who clearly was very impressed with the plaintiff. He said "one can only admire his resolve to live a normal life". Dr Minogue says he pressed the plaintiff "quite hard", in relation to the difficulties that he was experiencing. Despite the plaintiff's stoic answers the doctor said "when one considers all aspects of today's assessment and notwithstanding his comments above, I do consider that there is still ongoing impairment in regard to the left lower limb". The doctor went on to say this impairment was "readily manageable" especially because modern agriculture included "the aid of quad bikes and other mechanical aids".
16. The doctor is no doubt correct, but not entirely so. As I have said the work of a farm labourer cannot be expected to be entirely without physical exertion and strain upon parts of the body such as a knee. I do not accept Dr Minogue's final assessment that the plaintiff's "past, present and future earning capacity have not been impaired as a result of the subject accident". Dr Minogue is in fact almost alone in this view.
17. Dr Bodel, an orthopaedic surgeon saw the plaintiff on a number of occasions. In respect of economic loss Dr Bodel ultimately concluded: "This gentleman has had some ongoing disability in the region of the left leg but in spite of that he is now working in an isolated rural area in Far North Queensland doing mustering work. He is enjoying the work and is coping quite well."
18. The doctor then went on to say: "This gentleman is already in gainful employment and hopefully can continue this indefinitely."
19. Dr Bodel did not predict any major future treatment other than analgesic medication. I note here that the plaintiff currently takes pain killing medication almost every day. As I understood his evidence there was a need for increased medication after long hours at work. This was corroborated by Ms Keogh who said that when the plaintiff arrived home he wanted only to sit on the couch and rest.
20. Dr Endrey-Walder is a general surgeon who was retained by the plaintiff.
21. Dr Endrey-Walder confirmed Ms Keogh's evidence when he stated: "Still, by far the most significant ongoing problem for him is pain in the left knee when working, most especially in the evenings after a day's work when trying to relax, and he has now been in the habit of taking pain killers both before he starts work and certainly when he is finished at the end of the day."
22. In an earlier report (Exhibit A, page 124) Dr Endrey-Walder had said that "there is little doubt regarding the long term risk of Dale developing reactive osteoarthritic changes at the knee". Dr Endrey-Walder suggested an MRI scan of the left knee because of laxity he found in the collateral ligament. He also referred to locking in the plaintiff's knee. The plaintiff himself gave evidence of his knee sometimes giving way and difficulty with squatting and kneeling.
23. By far the most comprehensive report I was provided with came from Dr Lahz, a rehabilitation physician. She was engaged by the plaintiff. Her report is in Exhibit A, starting at page 136.
24. Dr Lahz said the plaintiff "is presently fit for the farming work he is completing, albeit at the cost of night pain and discomfort in the left leg, depending on the specific activity levels undertaken". A little later she observed that the plaintiff was "very young" and continued "the injuries have served to prematurely age him, and he will develop osteoarthritis of the left knee, eventually warranting TKR". TKR refers to a total knee replacement.
25. As with other experts Dr Lahz foresaw the development of osteoarthritis in the knee. She said his condition would "compel him towards knee surgery". She was unable to predict the timing of the surgery, taking into account the plaintiff's "youth, stoicism and tenacity".
26. Dr Lahz thought that the plaintiff would need to retire early from the type of work he was doing. This could occur 15 to 20 years before the normal retirement age although she noted that the plaintiff might engage in part-time work for some five to 10 years before retirement. She concluded: "His ability to continue farm work will depend on many factors particularly the evolution of left knee symptoms, the outcome of future left knee operations be these osteotomies, lateral releases or total knee replacements and availability of suitable (less physically demanding) farming duties. It is very likely that within 15 years, he will be unable to complete very heavy farming activities such as fencing and stock work, and will by necessity be restricted to less physically demanding tasks such as plant operation/tractor driving."
27. It was part of the plaintiff's case that he has been denied the opportunity to work as a miner and earn a higher wage than that which he presently enjoys. The difficulty with translating his inability to work as a miner into economic loss is that there is no evidence that he could have obtained work in this field, let alone whether he has the requisite qualifications. The plaintiff said that work was available in the farming industry, especially in remote areas. There was no evidence of the amount of work available in the mining industry. I therefore do not think that I can include any amount of future economic loss because the plaintiff has been denied the opportunity to work as a miner.
28. As I have already said both the plaintiff and defendant said that the bulk of any economic loss would be incurred after the plaintiff turned 45 years of age. In my view the plaintiff is correct in submitting that there should be an allowance before that time as well as after. I do not however agree with the extent of the allowance suggested by the plaintiff ($250 per week). I am going to approach this allowance on the basis of a buffer to take into account that from time to time the plaintiff may reach a point where he simply is in too much pain to work and has to lose days off and also to guard against the probability that he may not be able to find employment because he is not able to perform the whole range of tasks required of a particular position. As I have emphasised above, a person employed in the farming industry may primarily work with plant but is likely to be called upon to do other physical tasks as well.
29. I think the buffer from the present to age 45 should be assessed at $100 per week. The calculation on the 5% tables is 100 x 768.7 - 15% = $65,339.50.
30. For the period from age 45 to 67 the plaintiff suggested essentially full economic loss of $1,330 per week. The defendant said $500 per week was appropriate.
31. I do not think that the plaintiff, when he reaches 45 or any other age (prior to retirement age), will voluntarily stop working. I think he will do the best he can to find work and given his attitude to date he is likely to do so. However, as his problems in his left knee increase he will find the options more limited and the periods of unemployment longer and more frequent. Taking all of these matters into account I think a figure of $800 per week from age 45 to 67 should be allowed. On the 5% tables for 22 years the calculation is: 800 x 703.8 = $563,040. This figure must then be reduced by 15% bringing it down to $478,584. Finally, the loss must be deferred on the 5% tables for 26 years, reducing the sum to $134,482.10.
32. The total for future economic loss is therefore $199,821.60. The parties agreed that lost superannuation benefits should be assessed at 11.5%. This produces a figure of $22,979.48.
33. The next head of damages is past attendant care services. The plaintiff said the figure should be $50,000, relying on the details provided in the Amended Statement of Particulars filed on the first day of the hearing.
34. The defendant's approach was to allow 14 weeks at 28 hours per week followed by 26 weeks at 10 hours per week. It is important to note at the outset that the plaintiff was 11 years old when the accident occurred so that he was already receiving a good deal of assistance such as the provision of food and housekeeping in any event.
35. One of the deficiencies in the plaintiff's case was that neither of the two providers of domestic assistance, his mother and stepfather, were called to give evidence. It was said that his mother did not give evidence because of tensions arising from the seatbelt issue. One could imagine that these tensions may have infected the plaintiff's stepfather. I do not draw any adverse inference from the failure of the plaintiff to call these witnesses but nevertheless their absence means a good deal of the detail (such as specific hours on various tasks) is not present.
36. The plaintiff's past domestic assistance is taken to August 2009 by which time it is said the plaintiff was back on his feet and generally able to take care of himself. The evidence suggests the plaintiff was able to fully weight bear from 13 May 2009. In my view the defendant's termination of attendant services ignores the fact that even after the plaintiff was able to fully weight bear he still required assistance, in particular frequently needing to be taken to medical appointments and to be assisted with his mobility. It is to be recalled that the plaintiff was living in Deniliquin so that a trip to Melbourne would be a full day's activity.
37. I do not however accept the number of hours claimed by the plaintiff, in particular without the specific evidence of these matters which would have come from the plaintiff's mother and stepfather. The approach I intend to take is to adopt the formula suggested by the defendant but to extend the 10 hours per week for a further 26 weeks for the reasons I gave above. On this basis I allow 28 hours per week at $24.75 per hour from 24 October 2008 to 31 January 2009 and then a further 52 weeks at $10 hours. The latter period is at $24.67 per hour. .
38. In addition, the defendant conceded that the plaintiff would have required care following his surgery by Dr Harris on 6 March 2012. Following Dr Harris' suggestion, and in line with the defendant's submission, I allow 6 weeks of domestic assistance at $27 per hour for 12 hours per week. The calculation is 6 x 12 x 27 = $1,944. The total is $24,474.
39. Turning now to future care. The plaintiff claimed $150,000, again in accordance with the Amended Part 15 Particulars. The defendant suggested $14,064. The major difference between the two approaches is that the defendant's allowance only starts when the plaintiff is 45 years of age and continues until 75.
40. Dr Lahz does suggest continuing domestic assistance until age 45 and thereafter at a higher level. The difficulty I have with Dr Lahz's opinion is that it is not supported by the lay evidence. At the moment all of the domestic work is being carried out by Ms Keogh. Bearing in mind that the plaintiff only visits Meningie during his time off work, this is not surprising. In addition there was no evidence to suggest that the plaintiff would otherwise have carried out any domestic activity.
41. Further, he said that he was capable of the chores although they might take him longer. Where I think he does have a need is in heavier tasks such as maintenance which might involve ladders or other strenuous activities. This could be classified as periodical maintenance. It is difficult to know how often this might be required so I think the best approach is to provide a modest buffer until the plaintiff reaches 45 and then to adopt the two hours per week suggested by the defendant and Dr Lahz, but taken to age 80. I think the buffer to age 45 should be $10,000. From age 45 to 80 the calculation is 2 x 29 x 822 = $47,676. This amount must be deferred for 26 years. The result is $13,396.95. Total future care is therefore $23,396.95.
42. Past medical expenses were agreed at $61,197.83. This figure is made up entirely of Section 83 expenses and will be deducted from the final verdict sum.
43. The plaintiff has claimed $60,000 for future medical expenses on the basis that the plaintiff will have continuing needs for medication as well as operative intervention, perhaps on a number of occasions as suggested by Dr Lahz. The defendant has suggested $15,000 for the surgery plus a small allowance of $5,123 for medication. I am not sure why the defendant's medication suggestion stops when the plaintiff reaches 65. I think it should continue for the balance of his life expectancy which is 66 years.
44. Any surgery, if it occurs at all, will be some time in the future. Some medical opinion, for example Dr Bodel, does not envisage any surgery at all. Taking all these matters into account I think an allowance for future surgery of $25,000 is appropriate. Allowing $5 per week for the balance of the plaintiff's life expectancy on the 5% tables produces a figure of $5,133.50. The total for future medical expenses is $30,133.50.
45. A summary of the damages I have allowed is as follows: Non-economic loss $300,000.00 Past economic loss $7,500.00 Future economic loss $199,821.60 Future lost superannuation benefits $22,979.48 Past domestic assistance $24,474.00 Future domestic assistance $23,396.95 Past medical expenses $61,197.83 Future medical expenses $30,133.50 Total $669,503.36

1. The above total must be reduced by the Section 83 expenses of $61,197.83, producing a final sum of $608,305.53.
2. I make the following orders: 1. Judgment for the plaintiff in the sum of $608,305.53. 2. The defendant is to pay the plaintiff's costs of the proceedings. 3. The exhibits may be returned.
3. I will hear the parties on any special costs orders.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2016