Damages
22 As already noted, the plaintiff was born on the 3rd of February 1982 so he was aged 13 years at the time of the accident and is now 17, going on 18, years. He has been raised from birth by his grandmother and since the age of 4 they have lived in the township of Werris Creek. He attended Werris Creek Public School and his secondary schooling was at Quirindi High School, where in 1995 he was in Year 8. He was not a good student and the only subjects he enjoyed were metal work and agriculture. Prior to his accident, (bearing in mind he was then only 13½) he had in mind that he wanted to be a mechanic or a welder. He was however successful at cricket and rugby league which he played at school and he also played club rugby league for Werris Creek in the local junior league. Although he was not good at his studies, he appears to have had no problems either socially or health wise prior to the accident.
23 When he slipped off the wagon he fell beside the track, he felt numbness in his legs, and experienced a lot of pain. Jarrod Kirkwood and Jamie and Garry MacBeath came to him and someone rang the ambulance. After a short time, his grandmother and brother and sister also arrived. Whilst waiting for the ambulance he realised he had been seriously injured and felt very scared. He was taken by ambulance to Tamworth Base Hospital, continuing to suffer pain which felt as though he was being continually stabbed over and over again in the one spot with a knife.
24 At the hospital he was found to have suffered a traverse fracture of the proximal shaft of the left femur whilst the right leg had suffered extensive compound comminuted fractures and dislocations. The left femoral fracture was treated in traction with a left tibial Steinman's pin whilst the right leg was debrided, the fracture of the tibia and fibula were reduced and the reduction maintained with an external fixateur and fracture dislocations of the ankle and foot were reduced and maintained with Kirshner wires and a traverse Steinman's pin whilst the wound was loosely closed and left elevated on a pillow and observations of circulation carried out. But there was a loss of circulation below the levels of the injuries and a gradual development of dry gangrene, and ultimately a right below knee amputation was performed on the 11th of September. At the same time the left femoral fracture was treated with a closed Kuntchner nail and proximally locked. His reaction when told that his right leg was to be amputated was that he felt "shattered", then he was tearful and angry. He was on extensive pain killers for 3 or 4 days after the surgery but after that the stump area became very painful.
25 Post-operatively, progress was complicated by a tendency of the left femoral fracture to externally rotate and a distil locking screw was inserted on the 26th of September. There was delayed wound healing with the right below knee amputation stump, but he was able to walk on crutches and discharged home on the 15th of October, after some 6 weeks in hospital. Before leaving hospital he had some training in the use of an artificial leg which he found difficult and frustrating. His grandmother stayed with him the whole time he was in hospital to provide moral support and occasionally to get things for him when the nurses were not available. He does not think he would have coped emotionally if his grandmother had not been there with him.
26 When he left hospital he had a temporary prosthesis and also crutches which he found difficult to manage at home particularly because of the steps. On the 8th of December 1995, some 5 weeks after leaving hospital he received his first permanent prosthesis and he had some problems with this, and required his grandmother to dress it for him, but it increased his mobility.
27 At the beginning of 1996 he returned to school in Year 9 but found himself further behind with his studies than before because of the time he had missed. He also had difficulty getting up and down the stairs at school and to and from class and was experiencing phantom pains. He experienced a degree of teasing and name calling from other students, and the teachers required him to walk to and from the sports grounds on sport afternoons, even though he was unable to take part. He had quite a number of days absent from school during that year, a total of 115, mainly on sports days because rather than watch others play sport he simply did not go or had his grandmother pick him up and bring him home, and he also suffered infection and blisters on the amputation stump.
28 Meanwhile in July 1996, he received a replacement prosthesis due to the fact that he was growing. As he was not coping at school he decided to leave school at the end of Year 9 in December that year 1996. In 1997 he did not seek work because he did not feel he was physically ready for it. During that time he started to notice pain on the right side of his lower back particularly when lifting things.
29 At present he is unable to run and cannot squat or kneel easily, and if he does so for any time he has pain below his right knee. He also gets pain in the stump if he walks or stands on it for periods of time and pressure sores on the stump for which he needs to apply powder and take antibiotics. Similarly his left leg aches towards the end of the day, mainly in the hip area, particularly if he has done a lot of walking. He cannot play any sports, particularly cricket or rugby league, and he misses the latter in particular. He said he is bothered emotionally by having a prosthesis because people look at it and ask him questions about it and he tends to wear long pants whenever possible. He has not worked in regular employment but he has a friend who drives a truck and he goes with him not infrequently; he helps him with any mechanical breakdowns and can travel in the truck for long periods without any pain or other problems.
30 There were no recent medical reports, but in November 1997, Dr Geoffrey P Hibbard, Consultant Physician, reported that examination of the left leg appeared completely normal and there appeared to be full range of movement of the right knee with the prosthesis, and apart from scars on the left thigh there was no other clinical abnormality detected but he noted continuing phantom pains and periods of depression and irritability due to the frustration involved with the loss of the lower leg and the severe restriction on walking and leisure pursuits. He considered these complications were most likely permanent and irreversible.
31 At about the same time Peter Briggs, Clinical Psychologist, noted that he was able to wear shorts and attend the local swimming pool without undue embarrassment and, although he had been depressed in the early stages, he reported that he no longer felt tearful and depressed but was continuing to have problems with anger. He found no continuing signs of significant depression or anxiety but emphasised that the plaintiff nevertheless had significant adjustment problems which will be more emotionally impactful at different times in his future life together with increased problems with pain and discomfort which are likely to increase his emotional reaction.
32 I assess the plaintiff's general damages for pain and suffering, loss of amenities, loss of interference with leisure activities and loss of enjoyment of life at $160,000 of which I attribute $60,000 to the past, and I allow interest on this latter amount at 4¼ years at 2%, namely $5,100.
33 Out-of-pocket expenses to date are agreed at $32,357 and in respect of future out- of-pocket expenses there is agreement for the cost of renewal of the prosthesis of $109,573. There is a claim for Tegretol and powder for application to the stump which together total $12.50 per week. This amount does not seem to be seriously in dispute and, having regard to the plaintiff's expectation of life, namely 63 years, I allow $12.50 per week at 3% for 63 years, namely, $18,639. A claim is also made for regular visits to a general practitioner, the plaintiff claiming that these should be allowed at 26 visits a year or once a fortnight, whilst the defendant submits that 6 times a year would be more reasonable. At present the plaintiff attends because of pressure sores on the stump and all the general practitioner can do in this regard is prescribe pain killers and antibiotics. The pressure sores are more likely to be removed by adjustments to the prosthesis, which is already taken care of in the allowance for visits to the prosthetist. In my opinion, 6 visits a year appears to be a reasonable allowance for visits to the general practitioner. I really cannot see any possibility of him continuing to go to a general practitioner on account of his stump every fortnight for the next 63 years. Accordingly I allow 6 visits a year at the agreed rate of $38.50 per visit for 63 years, $6,624. These three items of prothesis, pharmaceuticals and general practitioner total $134,836 and I allow such amount for future out-of-pocket expenses. There is also a claim for the possibility of the need for future psychological counselling, but in my view the evidence on this issue is too vague to justify allowing anything for this item.
34 The plaintiff left school at the end of 1996 and made no effort to seek work until 1998. At the beginning of that year he registered with Job Network and subsequently applied for work at Woolworths and Kay's Meats in Tamworth. Neither organisation had advertised that they had any job vacancies and he simply walked in and applied for employment. Both applications were unsuccessful. Subsequently in August 1999 he applied for a position which was advertised at Paiada Pty Ltd as a chicken catcher; again this application was unsuccessful and he remains unemployed.
35 The plaintiff has grown up in a small country town. He was not performing well academically at school before his accident and the IQ testing places him towards the lower end of the community. As a 13 year old before the accident he had some ideas that he might like to become a mechanic or a welder and he liked doing things with his hands, but whilst he might have gone on to become a mechanic or a welder, I find that he more likely would have become an unskilled labourer probably working on farms, or for a local government authority and he may have suffered significant periods of unemployment.
36 He has been assessed (Ex. 6) as having the physical and intellectual capacity for a number of occupations notwithstanding his injury, and his evidence is that after the case is over his first priority will be to endeavour to find employment. He has been travelling on a truck with a friend of his not for wages but for something to do, and is able to travel lengthy distances seated in the truck without any particular discomfort. He is apparently able to change a tyre but suffered pain after doing so.
37 Notwithstanding the loss of his right leg below the knee, I am satisfied that he does have a capacity for gainful employment but he will be unfit for work involving bending, squatting, climbing ladders or work that requires him to spend a large part of the day on his feet. Whereas he could formerly have worked as a farm hand, builder's labourer, construction worker or such like, I consider that he is now most likely to be employable as a process worker, such as in a fruit and vegetable factory. Some of the other vocations said to be suitable to him would not readily be available in the Tamworth, Werris Creek area. He has observed his friends working as welders and feels that that would be beyond his capacity because of the bending and twisting involved. Moreover, he can expect longer periods of unemployment than if he had not lost his leg. Agreed weekly award wage rates were produced, including farm hand - $353.10 net per week, builder's labourer - $379.28 net per week, cleaner - $394.45 net per week and construction worker - $433.45 net per week, welder - $353.85 to $388.45 net per week, whereas the award wage for a fruit and vegetable factory hand under the Food Preservers (State) Award for an adult is $301.40 per week net. Using these figures merely as a guide and having regard to the factors to which I have referred including the reduced employment opportunities in country areas and the plaintiff's lack of education I assess his loss of earning capacity at $130 per week net. No claim is made for loss of earnings to date but for the future I allow to age 65, 47 years at $130 per week at 3% p.a. less 15% for vicissitudes, namely $146, 447.
38 In respect of the claim for loss of superannuation benefits, no precise figures are available, but I have done some rough calculations based on a gross weekly wage loss of $150 along the lines suggested by counsel, and on this basis I allow $19,000.
39 There is also a claim for unpaid domestic assistance, past and future. During the 6 weeks that the plaintiff was in hospital his grandmother stayed at the hospital and provided him with emotional support. She also fetched things for him when the nurses were not around and he was reluctant to call them. Whilst it was undoubtedly beneficial to have her provide the emotional support which she did, this is not, as I see it, a type of service or domestic assistance which can be the subject of a claim for damages, because it is not the type of service which could have been purchased at a price from someone else if not provided by the grandmother, as it was only on account of her relationship with him that she was able to provide this emotional support. I therefore allow nothing for the period whilst he was in hospital.
40 Following his discharge from hospital and for a period of about 6 months thereafter whilst he was on his temporary prosthesis and initially on his first permanent prosthesis, and whilst he still had a pin in his left femur, the plaintiff needed a considerable degree of assistance around the house and in his ordinary everyday living, including getting him in and out of the shower, preparing his clothes and his prosthesis, fetching things for him around the home and such like. During this time he also had a number of blisters on the stump and these required treatment and dressing. In respect of this period I allow 3 hours per day at the agreed rate of $18.75 per hour, i.e. $56.25 per day or $393.75 per week for 26 weeks = $10,237. Since then she has on occasions rendered him assistance such as dressing blisters on the stump when he has had them and matters of that nature but this is intermittent and irregular and she also does some other things for him like preparing his prosthesis each evening and making him a sandwich before she goes to bed, but these are matters which, on the plaintiff's own admission, he could easily do for himself. In respect of the period, from 6 months after he came out of hospital and for the future I am not satisfied that the plaintiff has any valid claim for further domestic assistance. He is however entitled to interest on the amount of $10,237: Arvind & Kundo v Greco (unreported - Court of Appeal - 24 July 1995). It is in respect of a closed period, and so I allow interest on that sum at 10% for 3 years 9 months, total $3,839.
41 The various heads of damages may therefore be summarised as follows:
General damages $160,000
Interest on past general damages 5,100
Out-of-pocket expenses to date 32,357
Future out of pocket expenses 134,836
Loss of future earning capacity 146,447
Loss of future superannuation benefits 19,000
Loss of domestic services 10,237
Interest thereon 3,839
$511,816