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NSW assessment of damages cases for ankles and arms

Ankle   (contact David kidd at kiddlrs@optusnet.com.au for more cases or for relevant cases for your state or territory. See Kidd’s Damages Australia at www.kiddslaw.com)

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P retiree fell and fractured her left fibula above her ankle joint. P “does have a disabling condition from the … fall which is chronic but stabilised; her subsequent weight gain clearly would not assist weight bearing on the left ankle and she continues to use a walking stick. … Only a relatively small amount of domestic assistance was required … The injury itself was of a minor fracture which was successfully treated but with ongoing disabilities in the left ankle affecting her mobility and day-to-day domestic activity. Her condition does not require further treatment, other than perhaps some physiotherapy to the ankle and Panadol for pain, although the complaints of pain and numbness will persist for at least two years from the date of the fall into the foreseeable future”@46-48.  P assessed at 22% of a most extreme case, but D not liable. Vasilikopoulos v NSW Dept. of Housing 5/6/09 [2009] NSWDC 114 Hungerford ADCJ


In Kay v Murray Irrigation Limited 11/12/09 [2009] NSWSC 1411 P (farmer), in a fall in September 2004, suffered “complex fractures of the left ankle, including a fracture of the medial malleolus, comminution and compression of the surface of the tibia and displacement of the lateral malleolus … Three days later he underwent surgery to fix the fractures and to realign the ankle joint. He was discharged after one week with his leg and foot in plaster. He was effectively bed ridden for eight weeks, unable to weight bear on his left ankle because of the complete disruption of the structure of the ankle joint … Eight weeks after the initial surgery part of the internal structure fixing the fractures was removed after which his ankle was permanently fixed with two screws on the medial malleolus and a plate on the fibula. He was required to wear a protective boot and to utilise crutches for eight weeks after this procedure. He was able to weight bear on his ankle by increments and was free of all walking aids by January 2005. He has the permanent need for orthopaedic footwear as he is unable to walk with his heel on the ground, and even with orthopaedic footwear, to the extent that he needs to weight bear on his left leg, he walks on the ball of his foot. From March or April 2005 he resumed some farm work. He purchased a motorised mustering device which he could drive without using his left ankle at all and endeavoured, albeit with only moderate success, to modify the tractor to avoid using his left ankle … [P’s disabilities include] Difficulty in bending the left foot … Needing to walk on the outside of the left foot with his left leg externally rotated … Difficulty in walking any lengthy distance, particularly on uneven ground … Difficulty in standing for any lengthy period of time … Intolerance to walking with bare feet …The deformity and persistent ankle swelling has led to a difference in feet size meaning that the plaintiff has to purchase boots and shoes in a size suitable for the larger size and then pad the boot or shoe for the smaller size … Permanent limp when walking … Difficulty in carrying out many household activities … Difficulty in driving motor vehicles for lengthy periods of time …Constant need to take Panadol and other pain relief mediations … [and] Depression and loss of confidence”@26-28. Fullerton J assessed P at 35% of a most extreme case.


In Davies v George Thomas Hotels P/L 21/4/10 [2010] NSWDC 55 Murrell SC DCJ assessed P’s ankle injury at 30% of a most extreme case. He suffered a serious trimalleoler fracture in a fall and was on crutches for five months. He has had two operations. The ankle has been infected and is sensitive to knocks. There is scarring. P’s employment, domestic and social life has been significantly affected and he can’t stand or walk for ten minutes without it aching. It is unlikely to improve. P has become depressed. He has a life expectancy of 30 years. Other heads also assessed and a total award made of $317,354.


In Hamilton v Duncan 26/5/10 [2010] NSWDC 90 Murrell SC DCJ assessed the consequences of P’s ankle and knee injuries from tripping at 30% of a most extreme case. The “plaintiff underwent left knee arthroscopic partial lateral meniscectomy and medial femoral chondroplasty … the disabilities associated with the accident caused depression and disappointment. This psychological state was the result of pain, limited capacity to undertake domestic responsibilities, and inability to work and financially support his family. He referred to diminished interest in sexual relations and arguments with his wife because he was unable to undertake household chores and assist with the care of the couple’s seriously disabled daughter … the plaintiff continues to suffer from some pain and instability in the ankle”@35-38. P was 45 in 2006 when the incident occurred.


In Kaiser v Johnston 11/6/10 [2010] NSWDC 103 P, a 65 (68 at judgment), was hit by a car while walking. He suffered a “severe traumatic brain injury resulting in impairment to his cognitive functioning and negative emotional and behavioural consequences [and] … [c]ompound fracture of the left ankle with ongoing pain and discomfort and restriction in range of movement” @128. Sidis DCJ awarded, among other heads, $200,000 in general damages.


In Wakeling v Coles Group Ltd 4/4/11 [2011] NSWDC 20 the P “sustained a twisting and swelling injury to his right ankle, followed by a blow to the medial aspect of the ankle as he fell [in a supermarket]. He also suffered some minor bruising type injury to his right knee, wrist, elbow and shoulder. He also suffered a low back injury, which did not become symptomatic for him until several days after the fall. … [He has] a broad based L5/S1 annular disc bulge with some similar findings at the level L4/L5” @47. P has been “left with persistent pain in his right knee and ankle, including the experience of sharp pain, which he described as being mild, occurring 2 to 3 times a week. His low back problems remain intermittently troublesome for him, depending for severity on his level of activity, and he has difficulty laying on his back when sleeping. He experiences difficulty getting out of bed in the mornings due to back pain” @ 48. He has gained significant weight and has difficulty walking, which was a favourite activity of his. He experiences chronic pain in his right lower leg, an inability to ‘tinker’ with wrecked cars to salvage saleable parts (a hobby of his) and anger and stress which he says has caused him to start smoking again. It’s unlikely that P will ever be asymptomatic. P was 22 when injured and 23 at judgment. Levy SC DCJ  awarded P $90,000 for NEL, among other heads.


In Nemeth v Westfield Ltd & PT Ltd 11/5/12 [2012] NSWDC 76 P suffered a fracture of the tip of the right lateral malleolus when she fell over in shopping centre car park in 2009 when she was 34. P still “has chronic right ankle pain associated with subtle instability of her ankle joint … [and] she is likely to have ongoing ankle pain … [F]ull recovery could take several years” @71. P “did not achieve a good resolution of her injury and has suffered continuing pain and swelling in her right ankle. She is restricted in terms of her mobility to walking no more than 500 metres, and has trouble on stairs and uneven ground. She has not returned to any of her pre-accident recreational activities and has been restricted in what she can do in terms of heavy cleaning and domestic chores” @70. P has had to double her medication for her pre-existing psychological condition. P assessed at 25% of a most extreme case and awarded $34,000 for NEL among other heads. P’s appeal dismissed 9/9/13 in [2013] NSWCA 298.


In Moor v Liverpool Catholic Club Ltd 25/6/13 [2013] NSWDC 93 Levy SC DCJ found the D breached its duty of care to the P who fell in 2009 and injured his ankle while descending stairs wearing ice skates whilst on his way to the ice arena. P was 19 at the time and “suffered a very painful fracture with swelling to his right ankle. This was later defined by an x-ray examination to involve an oblique fracture of the distal right fibula with some dorsal displacement of a major distal fragment, with the fracture line extending a few centimetres above the ankle joint, with some ligament disruption, evidenced by the x-ray findings of widening of the ankle joint” @26. P “continues to experience pain in his ankle and cramping on waking each morning. It takes him some time to ease this problem by moving about. He experiences difficulty with stiffness, mobility and agility with his right leg. He finds difficulty lifting, squatting and bending” @38. P has scarring to his right lower leg, walks ‘like an old man’ and experiences ankle pain every day. Currently, he works 40 hours a week as a truck driver. P 28% of a most extreme case and awarded $75,000 for NEL among other heads. Appeal allowed re liability only [2014] NSWCA 394.


In Aldred v Stelcad Pty Limited  [2014] NSWDC 63 P, at work in 2009 when he was 28, suffered an “inversion injury to his left ankle with joint sprain. He had subsequently developed a DVT which was treated appropriately. He had increasing pain in his left ankle with features of a complex regional pain syndrome. He underwent three sympathetic neural blocks. He was treated for a burning sensation in his foot with constant pain, swelling, redness and sweatiness in the foot with a cracking sensation. His treatment included the spinal cord stimulator from which he suffered a dural leak and was admitted to … Hospital” @68. P “has continued to suffer pain and swelling in his left ankle, particularly after work … [H]is symptoms have become chronic and that it is unlikely that full recovery will occur” @76. Mahony SC DCJ assessed P at 25% of a most extreme case and assessed P’s NEL damages at $36,000, among other heads.


See Schultz v McCormack 20/6/14 [2014] NSWDC 67 where P, now 59, in 2010 slipped on wet tiles outside her friends place. The risk of slipping was an obvious one. D not liable. Damages nevertheless assessed. P sustained a tri-malleolar fracture of her right ankle. “The prognosis for the plaintiff’s problems remains poor and guarded. She faces the prospect of further surgery to her right foot and ankle for removal of indwelling screws and to further attempt correction of the equinus deformity in that foot. The plaintiff feels her ankle has not become more stable since the most recent surgical procedure, and she feels that the pain in her ankle is becoming worse rather than better. The effects of the plaintiff’s disabilities have had a considerable curtailing effect on her ability to pursue he leisure activities, and she also suffers from sleep disturbance resulting from her disabilities” @42. Levy SC DCJ assessed P at 38% of a most extreme case. No psychological injury involved.


See Browne v Owners of Strata Plan No 55497 1/9/14 [2014] NSWDC 239 where P severely twisted her ankle when she fell through a gap by a drain cover in 2009. “MRI revealed multiple pathology which (sic) partial thickness tear of spring ligament complex, bifurcate ligament tear with possibly associated avulsion fracture of cuboid are few of them” @9. P, who is a stoic 48 year old, returned to work relatively quickly after injury and subsequent surgery. Prolonged standing is difficult for P, as is kneeling, and strenuous activities. She has however made a good recovery, “is able to work full time  [in sedentary job], perform most household tasks and activities and her complaint of ongoing symptoms is slight” @59. P is predisposed to osteoarthritic injury and may require future surgery. Gibson DCJ assessed P at 20% of a most extreme case and awarded $16,500 for NEL among other heads.


See Krstin at Pelvis

“26 By reference to Owners – Strata Plan 156 v Gray [2004] NSWCA 304, the appellant noted that an assessment of 33% of a most extreme case, with respect to an injury limited to the plaintiff’s left ankle, ‘was so unreasonable and plainly unjust that it must be inferred that in some way his Honour failed properly to exercise the discretion reposed in him in making the determination he did’: at [41] (Sheller JA, Gzell J agreeing). Such a case may undoubtedly arise: but in the present case, where the defendant accepted at trial a figure of 24% or 25%, the argument cannot run.” Bon Appetit Family Restaurant Pty Ltd v Mongey 11/2/09 [2009] NSWCA 14 Basten JA, Full Court


In McDonald v Moama Bowling Club Ltd 23/9/08 [2008] NSWDC 230 (per Sidis DCJ) a 76 y.o. (80 at judgment) fell and fractured her ‘greater tuberosity of her right humerus with slight displacement and an undisplaced fracture of the surgical neck of the humerus’. The fractures have healed, but P experiences right shoulder pain and restricted use of her right arm. P nowhere near as active and independent as she was before her fall. She can now only care for her husband in a limited way. Assessed at 30% of most extreme case and awarded $101,500 for NEL among other heads.


In Williams v Twynam Agricultural Group Pty Ltd & Anor 16/9/11 [2011] NSWSC 1098 Hoeben J found farm owner (1st D) and P’s employer (2nd D), a contractor to the farm owner, liable for P’s injuries caused by an accident on an internal road on the farm in 2006. P hit a culvert and his vehicle overturned causing injury to his neck and right arm. P was given insufficient warning of the hazard. Liability apportioned 75% to 1st D and 25% to 2nd D. P was 35 and working as an irrigator checking and maintaining water levels. P will suffer pain in his neck and right arm for the rest of his life. It is also likely that he will be dependent on social services and very limited in the types of employment he can do for the rest of his life. P assessed at 45% of a most extreme case and awarded $225,000 in general damages among other heads.


In Awad v Diamond Marble Granite Pty Ltd 21/6/12 [2012] NSWDC 89 a granite slab fell on P’s arm and he “suffered a serious crushing injury to his left forearm which caused internal bleeding causing a compartment syndrome requiring surgical intervention by way of a fasciotomy, removal of the haematoma and repair of the flexor muscle bellies. That procedure required a skin graft for the purpose of wound closure, following which the plaintiff’s left arm was encased in plaster for two months and he underwent physiotherapy from a hand physiotherapist. The plaintiff has been left with a functional deficit of his left upper arm, which was his non-dominant hand, with diminished grip strength of 50% and some lifting restrictions. He also has an unsightly disfigurement of his left forearm, albeit on the ulnar and volar aspects, but which are cosmetically unsightly. The plaintiff has suffered a chronic pain syndrome and still requires analgesics some five years following his injury. … [P] has suffered an adjustment disorder with mixed emotion, together with his chronic pain syndrome” @98-99. P 28% of a most extreme case and Mahony SC DCJ awarded him $73,000 in general damages among other heads.


In Pavlakis v Medical & Fitness Centre Pty Ltd 19/10/12 [2012] NSWDC 193 P slipped and fell in 2011, when she was 49, and fractured her left humerus. “A complicating feature of the plaintiff’s injury is that the location of the fracture to her left humerus coincided with the site a previously unrecognised lytic bone lesion, which created a weakness in the bone and thus vulnerable (sic) to fracture. This was subsequently revealed to be due to an underlying condition of multiple myeloma” @4. P suffers from “pain, discomfort and restriction of movement of her left arm, especially involving the elbow and shoulder. As a result of sustained favouring of her left upper limb, the plaintiff has developed pain, discomfort and restriction of movement in her right shoulder and arm. She has developed abnormal sensations involving a feeling of pins and needles in both hands. She has a reduced capacity to lift, bend and carry and has restrictions in her ability to reach, especially at the extremities of movement of her arm, and especially overhead. Her leisure and dancing activities have also been curtailed. She also feels uncomfortable driving a motor vehicle. The plaintiff has been left with a disfiguring scar on her left upper arm. That scar is widened and pigmented. She would rather that it was not there. She also faces the prospect of further surgery to remove the indwelling fixation hardware in her left upper arm, with the prospect of further scarring. … [Consequently] the plaintiff has developed frustration, distress and a degree of psychological withdrawal” @32-34. P has been unable to continue her career as an early childhood teacher. P is substantially impeded in doing housework, gardening and lawnmowing. Levy SC DCJ assessed P at 23% of a most extreme case and awarded $26,000 for NEL among other heads.


In Le v Heatcraft Australia Pty Ltd and Le v Heatcraft Australia Pty Ltd & Anor 31/5/13 [2013] NSWDC 75 P, a process worker, was injured in 2005 when he was 43. “The principal injury sustained by the plaintiff comprised a deep laceration to the upper forearm of his right arm. This occurred when he lost balance after being bumped by the forklift causing him to fall forward onto a sharp newly cut piece of sheetmetal. The plaintiff’s other injuries, which comprised a graze to the tip of the right middle finger, and a crushing injury to the right foot, resolved relatively quickly” @24-25. “The plaintiff has scarring to his right forearm from the initial laceration. He also has surgical scarring to both of his wrists following several attempts at remedial surgery. He has developed chronic regional pain syndrome which affects both of his upper limbs. He has been left with reduced manual dexterity, strength and reduced capacity to lift and carry objects. He has pain in both arms, shoulders, wrists and in his neck. His tolerance for manual activity, sitting and standing before the onset of pain is about 10 – 15 minutes. He has developed a psychiatric disorder, with severe and chronic depression, associated with his chronic pain syndrome. This is against the background of a perfectionistic character trait and self-reliance, attributes he feels he can no longer fulfil” @79. The MAC Act held to apply rather than the Workers Compensation Act, as P’s injuries a result of the “failure of the second defendant, and vicariously, the first defendant, … to use the beeper or other means to warn the plaintiff of the approach of the forklift, and failure to ensure that a proper lookout was maintained in order to avoid contact with the plaintiff” @84. No contributory negligence found on P’s part who was working at the time of injury. Levy SC DCJ awarded P $200,000 in general damages among other heads.


In Blakemore v Moore & Clements 13/5/15 [2015] NSWDC 9 P tripped in her work car park and suffered “a significant injury to her left upper limb, being a comminuted fracture of her right humerus in the fall. She had immediate surgery by way of open reduction and internal fixation of the fracture, and several further surgical interventions to achieve union of the fracture” @133. P also lost some time from work. Although D not found liable, Mahony SC DCJ assessed P’s damages at 28% of a most extreme case or $80,000. P also “suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood and … would require ongoing counselling with a specialist psychiatrist and anti-depressant medication” @129.