Damages - general
135 The plaintiff is a single man, born in 1965. He has never married and has no children. He was living with a girlfriend at the time of injury in premises rented in her name.
136 The plaintiff enjoyed outdoor activities including fishing, abseiling, bushwalking, motorbikes, motor cross, horse riding and camping.
137 He, together with two others, owned acreage near Goulburn. He had owned it for 15 years and used to go there regularly.
138 The plaintiff left school in 1980 during year 10. He did not obtain his school certificate. He described himself as an average scholar. He said that after leaving school he did some labouring and painting work but agreed he did not have a steady job between leaving school and commencing with Australia Post in February 1990. He worked for Australia Post as a postman until mid 1997 when he resigned, he said, after an altercation in respect of a letter. During this period he fractured his left tibia which healed and which, he said, caused no residual problems. He was otherwise fit and well at all times preceding the subject injury.
139 He said he had carried on business as a labourer under the business name "No More Gaps" for about a year or two, filling in gaps around door frames and edges inside houses for painters. He had an ABN for this work which he obtained by word of mouth. He agreed that he did not have a steady job after leaving Australia Post until he worked for Xentex. He commenced with Xentex on 31 January 2004 and worked a total of 17 days with Xentex between that date and 17 March 2004.
140 The plaintiff gave evidence that about a year before the subject injury he obtained a qualification as a feral animal management controller. There was no formal course for such qualification which the plaintiff said he had obtained by hands-on training with a Rural Lands Protection person over a period of two months. However, he did not obtain employment in this role.
141 The plaintiff agreed he was on unemployment benefits from 14 March 2001 until early 2004, and that he had done no paid work during that period though he did the (unpaid) feral animal training. He said in his evidential statement (Exhibit A) at [34] that it was his intention to work long term in patching and grouting. He also said (at [10]):
"At that time [when he began working for Xentex] I had been looking for work and was keen to earn a regular income and start saving some money. I was nearly 40 and was looking to get some security for my future."
142 The plaintiff was transported by ambulance from the construction site to Gosford Hospital. Examination at the hospital revealed the following injuries: a compound fracture of the shaft of the left femur; a fracture of the left medial femoral condyle, involving the knee joint; a fracture of the right superior and inferior pubic ramus of the pelvis extending into the acetabulum; fracture of the transverse process of the fifth lumbar vertebra; fracture involving the right sacroiliac joint; undisplaced fracture of the left distal fibula.
143 The fracture of the left femur was pinned and screws were inserted into the left knee. On 30 March 2004 further fixation of the left knee was performed.
144 The plaintiff developed a staphylococcal infection and a blood clot in the left leg whilst in hospital. He was discharged from hospital in a wheelchair. He was in the wheelchair for about six weeks and then on crutches for about eight weeks. He underwent about six months of rehabilitation treatment at Royal Ryde Centre.
145 There was a failure of the femur to satisfactorily unite and on 28 July 2005 exchange femoral rodding and excision of a bursa over the left knee were performed. Another nail and screw fixation was inserted.
146 The medical evidence adduced for the plaintiff generally accepted that the plaintiff's left leg was 1-1.5 cm longer than his right leg and that there was 1-1.5 cms of left quadriceps wasting. There was some doubt as to the cause of the leg length difference but the quadriceps wasting was consistent with the injury the subject of the proceedings and also consistent with a limp and some disability. It was recognised that arthritis may develop due to the injuries to the left leg and hip. The doctors accepted the plaintiff's capacity for weight bearing, heavy lifting, climbing ladders and the like had been compromised and he was fit for sedentary and semi-sedentary work only.
147 The most recent reports tendered on behalf of the plaintiff were those of Dr Bentivoglio and Dr Zicat. Dr Bentivoglio was qualified on behalf of the plaintiff whilst Dr Zicat was a treating doctor.
148 Dr Bentivoglio in his report dated 26 February 2009 stated:
" Right [sic Left] Femur
For some reason (and I am unsure as to why) this gentleman had 2cm leg length inequality present in his lower limbs, with his left lower limb being longer than his right.
He had multiple well healed scars present at his lower limbs. He had a full range of movement present at his left hip, with some degree of discomfort present at extremes of movement present at his hip.
There was no obvious deformity present at his left lower limb.
Back
There was no paravertebral muscle spasm present. He demonstrated at least half normal range of movement present in his lumbar spine region. There were no localising motor sensory or reflex abnormalities that I could detect in his lower limbs.
He had straight leg raising to at least 60°.
Pelvis
There was no pain on compression of his pelvis in either an AP or lateral direction. He was tender over the trochanteric bursa region of his left hip.
Left Knee
He had 1.5cm muscle wasting present in his left thigh. He had evidence of some degree of mediolateral laxity present at his left knee, but a surprisingly good range of movement present at his left knee.
There was no evidence of any cruciate ligament disruption present at his left knee.
Left Ankle
He had a full range of movement present at his ankle. There was no evidence of any ligamentous disruption present at his ankle region.
RADIOLOGICAL INVESTIGATIONS
I viewed plain x-rays taken of Mr Ralston's femur. It shows that he had a comminuted fracture of the mid shaft of his femur, with an intramedullary nail.
Plain x-rays taken of his pelvis showed that he had at least a fracture dislocation of his sacrum, with fractures involving both pubic rami on the right side, and at least one pubic ramus on the left side.
Plain x-rays taken of his lumbar spine showed quite gross degenerative osteoarthrosis involved the L5/S1 level of his lumbar spine region.
X-rays taken of his knee showed he had an undisplaced medial femoral condylar fracture, requiring open reduction and internal fixation.
There was no obvious fracture in the region of his ankle (except for the previous injury he had from a motor vehicle accident in the past).
New plain x-rays taken of this gentleman's pelvis, left knee and left femur in February 2009 indicate that all his fractures have united. Currently there are no signs of degenerative osteoarthrosis involving his hip or knee.
DIAGNOSIS AND OPINION
Mr Ralston sustained horrendous injuries to his person in the incident that he described at work in March 2004.
He has been left with significant ongoing disability as a result of this.
He is at significant risk of developing degenerative osteoarthrosis, particularly in the knee region, at a later stage as a result of this injury, and will have ongoing symptoms present at his back, hip, knee and ankle regions, secondary to his injuries.
No further treatment is required for him at this stage, as it will not improve his symptoms.
This gentleman will have a great deal of difficulty in returning to any form of employment as a result of his injuries…
Prognosis
Back
Guarded, as he will continue to experience some degree of symptoms about his back region, with some peripheral radiation.
Pelvis
Reasonable. He does not have significant problems with his pelvis at this stage.
Left Hip
Although the fracture has united, he will continue to experience some degree of symptoms present as a result of his trochanteric bursitis. He is not particularly at risk of developing degenerative osteoarthrosis, present in his hip region at a later stage.
Left Knee
Remains guarded. He does stand a significant chance of developing degenerative osteoarthrosis present at his knee at a later stage.
Left Ankle
Reasonable.
Present condition of plaintiff
This gentleman continues to experience significant symptoms present at his back region, left hip and thigh, as well as his left knee.
Any symptoms he has at this stage will remain with him indefinitely."
149 In a supplementary report dated 26 February 2009 the doctor reported:
"The only treatment this gentleman is going to require in the future is likely to be a total knee joint replacement.
He does stand a significant chance of developing degenerative osteoarthrosis present at his left knee at a later stage, as a result of his medial femoral condylar fracture, as well as the fact that he does have some degree of ligament instability present at his left knee.
The cost of this in today's terms is in the order of $25,000.
The total knee joint replacement however has a component that does show wear characteristics. It only has a life expectancy of about ten to 12 years.
Depending on when this gentleman requires a total knee joint replacement, if he lives a normal life expectancy, he may require at least one, if not two revision procedures.
The cost of each revision procedure is in the order of $15,000.
This gentleman would require removal of his internal fixation devices (his tibial nail as well as his femoral nail) prior to these surgical procedures.
The cost of these is approximately $6,000 for removal of each internal fixation device.
I am doubtful that it will be necessary for him to require a total hip joint replacement."
150 Dr Zicat, in his report dated 11 November 2008, stated:
"His examination today demonstrates his wounds to be clean and dry. He has localised tenderness over the greater trochanter at the left hip, as well as over the medial aspect of his left knee. Range of motion of his hip is mildly restricted to rotation and flexion. He has full extension at the left knee, but flexion is restricted compared to the right hand side. He has no evidence of neurological or vascular dysfunction. His gait is antalgic on the left. He has quadriceps wasting on the left side compared to the right.
Investigations
I reviewed repeat radiographs of his femur that were performed on 18 November 2008, that demonstrated that his previous non-union of femoral fracture head completely healed, and was remodelling…
Prognosis
…At the present time, his pain and dysfunction and weakness are sufficient to recommend that he avoid any work of a heavy physical nature, that involves prolonged periods of standing, walking, any heavy lifting or heavy physical work. He would need to have a workplace assessment done to assess his ability to work in a more sedentary occupation over a long period of time, that may involve some degree of work hardening.
There is always the possibility that infection may recur, and that he may require treatment for this in the future, or that the fracture of his femoral condyle may result in the development of arthrosis long term. The risk of that happening is reasonably high, in the present of an intraarticular fracture, probably more than 50%. If that does happen, he may eventually require a knee arthroplasty, at a cost of approximately $25,000.00."
151 There was evidence from the psychiatrist, Dr Westmore, that the plaintiff suffered from an adjustment disorder with a depressed mood. Dr Westmore concluded that the plaintiff was an independent self reliant man whose personality attributes had assisted him considerably to date in his recovery. He considered the plaintiff would benefit from some counselling but did not need to see a psychiatrist. The doctor's diagnosis was based predominantly upon his history. A defendants' report by a psychiatrist, Dr Maguire, dated 28 August 2007 was in evidence. Dr Maguire accepted the diagnosis of adjustment disorder with a depressed mood was appropriate but considered it would not interfere with the plaintiff's ability to work or to lead a normal life. He supported the recommendation for treatment by Dr Westmore and suggested that about 50 percent of the need for counselling related to personal rather than accident related issues.
152 Mr McMaster, a boarder at the plaintiff's home, gave some evidence that he observed the plaintiff limping and that he encountered difficulty with stairs and the heavier work around the house.
153 The plaintiff gave evidence his condition had been stable for the last three to four years. He said in his evidentiary statement and in his oral evidence, that the report of the occupational therapist, Ms Grinter, of 9 March 2007 accurately recorded his ongoing problems. Ms Grinter's report, which followed an interview of the plaintiff on 9 March 2007, recorded he suffered constant low back pain aggravated by activity, posture and cold. He rated the back pain as 4-9 in a range of 0-10 where 10 was the worst pain. He complained he suffered constant left hip and leg pain aggravated by activity, posture and cold. His left hip was sensitive to touch and he cried if he knocked it. He suffered left knee pain and his left ankle felt numb and his left foot was cold. He rated the left leg pain at 5-10. He suffered flashbacks of his accident weekly. He took 12-14 Panadeine Forte a week for pain. He walks with a limp. He requires a walking stick if walking up or down a hill. He can walk for 15 minutes and then needs to sit down and rest. He can stand for up to 15 minutes before needing to support himself, eg by a rail, he puts most of his weight through his right leg. He avoids stairs if possible. He uses a rail and leads with his right foot one step at a time if he needs to climb stairs. He is unable to kneel on his left knee, squatting is painful and he is unstable, he is unable to bend forward and touch the floor. He is able to carry approximately 7-8 kilograms. He is unable to vacuum, clean the bathroom or toilet or kitchen, change the bed linen, carry out the washing and put it on the line or do heavy washing. He is unable to spring clean, clean the windows or clean the gutters. He said he loved to mow his lawn and whippersnip the edges and now he is unable to due to his disabilities.
154 However in cross examination the plaintiff conceded he could walk up stairs without a handrail, that he did not walk with a limp all the time, that he could execute a full squat, that he could kneel on his left knee, that he did not have difficulty kneeling all the time, that he can bend, that he could walk for two or three hours with medication, otherwise half an hour to an hour, that he had some ability to run, that is to jog but not sprint, he could vacuum, he could walk up 45 stairs without a handrail, he could jump off a step if need be. The cross examination commenced after the cross examiner had informed the Court, in the plaintiff's presence, that there may be some evidence to show on the following day.
155 The defendant tendered reports of Professor Jones, a rehabilitation expert dated 17 August 2007, Dr Cummine, an orthopaedic specialist, dated 30 October 2007 and 16 February 2009 and Dr Dalton dated 19 July 2007. I confirm that these reports and the reports of Ms Leaver are not excluded by any estoppel and are admitted into evidence without any qualification. These reports did not differ greatly from the medical evidence adduced by the plaintiff, though Prof Jones considered that the plaintiff's work capacity might be reduced to 30 hours per week by age 55 and he may be required by the sequelae of his injury to retire between the age of 50 and 65. He considered it was possible the left hip would require replacement and there was a lesser possibility that the left knee would require replacement.
156 In his report, Dr Dalton noted that the plaintiff displayed considerable pain behaviours but concluded that he was not fit to resume labouring work and he had limited tolerance for various physical activities. He felt the plaintiff's capacity to climb ladders and perform household maintenance was likely to be limited. He contemplated the potential for degenerative change in the future.
157 Dr Cummine considered the plaintiff was fit for sedentary duties. He considered he was fit to return to sedentary work nine months after the operation in July 2005. He would allow him domestic care for nine months from July 2005 but then considered he was capable of his daily domestic matters.
158 The defendants sought to challenge the plaintiff's case by reference to DVD evidence of the plaintiff's activities. The evidence consisted primarily of surveillance of the plaintiff on three days. It may be described shortly as follows: