Zilio v Lane

Zilio v Lane - [2009] NSWDC 226 - NSWDC 2008 case summary — Zoe

[10]

[2] The plaintiff suffered the following serious injuries: (a) L1 burst fracture; (b) Fracture T9 - L1 transverse processes; (c) Left fractured ribs (8-12); (d) Small bilateral pneumothoraces; (e) Paraplegia; (f) Paralysed from the waist down; (g) Multiple bruising. [3] The plaintiff suffered the following extensive disabilities: (a) Paraplegia below the waist; (b) Profound paralysis of both lower limbs; (c) Urinary incontinence; (d) Incontinence of faeces; (e) Susceptibility to trophic skin problems; (f) Requirement to use suppositories for bowel evacuation; (g) Occasional requirement to evacuate bowels manually; (h) Inability to stand; (i) Inability to walk; (j) Irregular blood pressure; (k) Spasticity below the waist; (l) Absence of voluntary motor power in the lower limbs; (m) Weakness of the postural musculature; (n) Difficulty in using a manual wheelchair; (o) Requirement for assistance with transfers; (p) Inability to control body temperature; (q) Inability to cope with heat; (r) Grossly impaired balance; (s) Increased reflexes in lower limbs; (t) Susceptibility to respiratory tract infections; (u) Susceptibility to urinary tract infections; (v) Requirement to undergo continuing physiotherapy; (w) Need to wear splints to prevent spasticity and deformity; (x) Anxiety; (y) Depression; (z) Poor body control; (aa) Wasting of both legs; (bb) Inability to control body position; (cc) Neurogenic bladder; (dd) Neurogenic bowel; (ee) Inability to control the bladder necessitating regular catheterisation; (ff) Inability to control the bowel necessitating a regular daily regime to void bowels; (gg) Inability to transverse stairs or stepped or rough or uneven ground; (hh) Surgical scarring; (ii) Total dependence on a wheelchair; (jj) Grossly impaired motor function; (kk) Grossly impaired sensory function; (ll) Severely defective motor skills; (mm) Poor self esteem; (nn) Loss of confidence; (oo) Fatigue; (pp) Requirement for constant supervision; (qq) Requirement for assistance in all aspects of daily living; (rr) Inability to engage in any form of employment; (ss) Severe restriction in recreational, domestic, social and sporting activities; (tt) Loss of mobility; (uu) Lack of agility; (vv) Frustration; (ww) Difficulty in maintaining or controlling posture; (xx) Effective destruction of sexual function; (yy) Inadequacy of movement in ankle joints; (zz) Inability to stand. The plaintiff requires a standing frame for this purpose; (aaa) The plaintiff is at risk of developing osteoporosis; (bbb) Muscle contractures and spasms; (ccc) Delayed educational development; (ddd) Dysauthonomia (dysreflexia); (eee) Recurrent urinary tract infections which on occasions have required the admission to hospital; (fff) The plaintiff is unable to shower and wash himself properly and requires assistance with this; (ggg) The plaintiff is unable to dress himself properly and requires assistance with this; (hhh) The plaintiff is unable to toilet himself properly and requires assistance with this; (iii) Problems with dry skin; (jjj) Progressive scoliosis. The plaintiff is required to wear a back brace in an attempt to control this; (kkk) Skin irritation due to the back brace causing some rubbing; (lll) Dysphonia; (mmm) Diminished respiratory effort; (nnn) An ingrown toenail resulting in left big toe infection and ulceration. This necessitated hospitalisation and appropriate treatment; (ooo) Nightmares; (ppp) Memory difficulties relating to the retention of more complex verbal information; (qqq) Reduced reading and phonetic abilities, necessitation remedial teaching; (rrr) Need for counseling; (sss) Scoliosis necessitating eventual surgical correction; (ttt) Susceptibility to bone fractures due to development of osteoporosis; (uuu) Post traumatic stress disorder; (vvv) Loss of self esteem and dignity; (www) Deterioration in family and social relations. Procedural and witnesses problems

[344]

195 In Yip v Zreika [2001] NSWCA 446, the Court of Appeal reassessed damages for economic loss awarded to an individual who had a relatively poor employment record. In that case the Trial Judge had assessed economic loss on the basis that the Plaintiff would be employed for 42 years without break. The court considered that such an assessment was fanciful as there was little evidence to support the conclusion that the Plaintiff would have settled down and obtained secure employment. The majority of Mason P and Young CJ in Equity allowed a third of that period on the basis of the Plaintiff's sporadic work history. This analysis is apposite to this case. The Respondent's work history indicates that she would have had difficulty in obtaining employment at the rate of pay allowed by the Trial Judge and for the period of time allowed by the Trial Judge. Accordingly, this ground of appeal must be allowed; its consequence remains to be considered." [244] The Court of Appeal took a similar view in Goodsell v Murphy [2002] NSWCA 216. The plaintiff in those proceedings had a tragic history which included starting to use heroin five to six weeks after the accidental drowning of one of her children and considerable health problems including an ectopic pregnancy. This case has long been the landmark concerning the correct approach to the interrelation between drug abuse and employability (see in particular [35]ff). As Mason P noted (at [38]), "the critical issue is the [plaintiff's] pre-accident condition and capacity to earn income". The plaintiff in those proceedings was unemployed and had not worked for many years and was in receipt of social security benefits. Her only evidence of paid employment (see [42]) was a brief history of driving motor vehicles for an unspecified period. The court noted the plaintiff's twenty-year unemployment history and the submissions of counsel that "[t]here was no rational basis upon which the Trial Judge could find that a miracle had occurred and, but for the accident, she would have embarked upon a steady earning career until 60 years of age" (at [48]). The award for economic loss was set aside (at [60] and [62]).

[351]

[251] I shall deal with each of these in turn: (a) Occupational therapy $4,300 - Professor Yeo agrees this is necessary so it should be allowed. (b) GP review 6 times per year at $50 - Professor Yeo agrees so this should be allowed. (c) Orthopaedic review 6 times per year at $50 - this is not challenged. (d) Rehabilitations/spinal specialist review twice a year for $210 - Professor Yeo agrees, so this should be allowed. (e) Urological review once every two years at $210 - Professor Yeo says once a year, so I would follow his suggestion and allow $210 per year. This is a common problem for persons with this kind of injury. (f) Psychological review 10 sessions every 2 years at $220 per session - this is not challenged and in my view is very moderate. (g) Sex therapist 20 sessions at $150 - this is not challenged. (h) Podiatrist once a month at $60 per session - Professor Yeo says once every two months but I consider this is important. In particular I do not accept Dr Zeman's suggestions that the plaintiff can look after himself in this regard. (i) Hospitalisation for UTI infections every 2 years 4 days at $450 per day : Professor Yeo suggested 1 week every three years, which is much the same. (j) IVP/urological testing every 5 years at $350 - I think this is insufficient. This is a major ongoing treatment problem for the plaintiff and I think he should have an ultrasound, review and investigation every two years as suggested by both Professor Yeo and Dr Zeman. If the parties can agree on the costing for this, as well as medication (see below) a total for the future care can be arrived at. (k) Ankle surgery $6,710 - Professor Yeo does not recommend this. In my view, it is more likely than not, and should be allowed. (l) Hamstring release surgery $4,600 - this is not challenged although it is noted it will be necessary in the next two years. (m) Spinal outreach team review annually at $1,200 - this is not challenged. (n) Physiotherapy - one-off review for $1,440 and 20 per annum if symptomatic at $50 per session. The usefulness of physiotherapy for this kind of injury is open to debate, as Dr Zeman and Professor Yeo both note. I prefer Professor Yeo's estimate of 3 per annum which is $180. (o) Occupational therapy - 5 assessments at $1,200 per assessment. Professor Yeo suggests once a year, Dr Zeman says it is not required and Mr Beaver says 2 hours per fortnight over three months (42 hours x 40 per month). I consider the scheme proposed by the plaintiff's medical experts for a series of assessments throughout life to be a sensible approach. (p) Orthotist - annual review of $120 - this is not challenged. (q) Medication - coloxyl ($240 per annum) and ditropan ($227 per annum) - Professor Yeo agreed and Dr Farnsworth also suggested Viagra. I also query whether the plaintiff will require any allowance for painkillers or other prescription drugs in relation to his ongoing psychological problems; this is of course a considerable risk (r) Equipment - one pair of shoes per annum at $800 (not challenged) and one ankle foot splint per annum at $600, new calliper every two years at $1,420, wheelchair cushion at $280 annually and wheelchair replacement every 5 years $1,650 - Professor Yeo agrees and these are reasonable figures. Future Travel Expenses and Home Modification

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