Allan v Fletcher No. DCCIV-98-1364

[2000] SADC 18

ALLAN v FLETCHER
[2000] SADC 18

Judge Vanstone
Civil

In this action the plaintiff claims damages in respect of injuries which she received in a vehicular collision which occurred at approximately 6.10 p.m. on Monday the 5th August, 1996.  Immediately before the incident the plaintiff was parked on the western side of Prospect Road at Blair Athol, facing in a northerly direction.  She executed a U‑turn from that position.  The defendant, who was travelling in a southerly direction on Prospect Road, came into collision with the plaintiff’s motor vehicle either in the latter stages of the plaintiff’s manoeuvre or just after she had reached a position whereby her wheels were parallel with the eastern kerbing.  The force of the collision caused the plaintiff’s vehicle to mount the kerb and demolish a bus shelter.  Prior to the incident the defendant had been driving at a speed well above the 60 kph limit, and in addition he had a blood alcohol content in excess of 0.17 grams percent.  He was subsequently convicted of offences in relation to his dangerous driving and the plaintiff’s injuries.  Both liability and quantum of damages are in dispute.

At the time of the collision the plaintiff was 28 years of age.  She was driving her sister’s motor vehicle.  She had driven to Prospect Road for the purpose of obtaining some provisions from the supermarket at that location, and having done so was intending to return to her sister’s home.  She said that it was getting dark and she turned on her headlights.  Her evidence was that she attempted to engage her seat belt, and that she thought it had clicked into place, but that during the U‑turn she became aware it had not.  She said that she checked her rear view mirrors, put on her traffic indicator, checked the traffic coming towards her from the north, and seeing headlights about 100 to 150 metres away, almost immediately commenced the U‑turn.  She said that her general practice is - and it is one that she had adhered to on this occasion - to go to the opposite kerb, stop and look again to see if it is safe to “take off”.  On this occasion she said she was travelling slowly, perhaps 5 to 10 kph, and was close to the eastern kerbing.  The plaintiff said that at this point she heard the screeching of tyres.  Her next recollection was of a man coming to her assistance after the collision.

The defendant gave evidence. He was 33 years of age at the time of the accident. For some years he has suffered from manic depression and he was taking medication in relation to that at the time of the incident. He said that he had not expected to be driving during the evening of the day of the accident. He had been drinking liquor in the afternoon at home, and an employee had telephoned him requesting a ride from their place of business to the employee’s home. About an hour after the incident he was given a breath analysis and his blood alcohol level was found to be 0.154 grams percent. Pursuant to Section 34 of the Evidence Act 1934 the defendant admitted that at the time of the incident his blood alcohol level would have been slightly higher, but in my view there is nothing in the difference. The defendant was subsequently convicted of causing bodily injury by dangerous driving and driving whilst having in his blood the prescribed quantity of alcohol. There was material before me in the form of admissions demonstrating the profound effects of intoxication of this order on the faculties employed in driving. It was further admitted before me that immediately prior to engaging his brakes to the point of locking the tyres, the defendant’s vehicle was travelling at 87 kph. His evidence was that prior to “slamming on his brakes” he had already slowed the vehicle, though not significantly, because he had realised that a narrower section of the road was ahead of him.

The defendant was not sure as to the position of the plaintiff’s motor vehicle when he first saw it.  Initially he described it as being at a 45o angle and facing south, which would place it as having completed three-quarters of the U‑turn, but later he thought that it was proceeding over the centre line of the road and would have been at about right angles to the kerb.  During the time that his tyres were locked, the defendant’s vehicle left clear skid marks on the roadway.  Police later measured and photographed those marks together with other relevant points on the roadway.  A point of impact was determined.  All that material is before me by way of admissions.  It is apparent that one of the off side tyres on the defendant’s vehicle was skidding for a distance of 29 metres prior to the impact.  The point of impact (which would probably be better described as an area of impact) was found to be 3.4 metres west of the eastern kerbing.  The width of the eastern carriageway in that section of the  road was found to be 6.4 metres.  Therefore the point of impact was at a position near enough to the centre of the eastern carriageway.

These objective matters are significant in that they assist in the determination of one of the main factual issues in the case, being whether the plaintiff had completed her U‑turn and had assumed a position parallel to the kerb.  As will be seen I find that in attempting the manoeuvre at the time she did the plaintiff was negligent.  But the extent to which she presented an obstacle to the defendant’s oncoming car bears on the degree of her blameworthiness.

Apart from the plaintiff and the defendant, other eye witnesses gave evidence.  They were called by the plaintiff.  The first of these was Mr Perrott.  He was a motor mechanic and at that time worked in the service station immediately to the east of the accident scene.  At the relevant time he was standing on a section of the service station driveway close to Prospect Road and perhaps a little to the south of the point of impact.  He was talking to another service station employee, a Mr Schneider.  He noticed the plaintiff’s Sigma station-wagon as it commenced its U‑turn.  He also saw the defendant’s Ford Falcon travelling at “very high speed” and braking from the level of the Trigg Street intersection, 30 or so metres to the north.  He recognised the inevitability of the collision.  Mr Perrott’s evidence was that at the time of the collision the Sigma had completed its U‑turn and was travelling at about 10 to 15 kph and would have been about a metre from the eastern kerb.  Mr Schneider’s evidence was to similar effect although he recalled the Sigma as travelling at “probably less than 5 kph” at the time of impact and being no more than a foot from the kerb.  Again he said that the Sigma had completed its U‑turn.

Mr McDowell was a passenger in the defendant’s vehicle.  He was the employee who had unexpectedly telephoned Mr Fletcher and asked to be driven home.  He said he noticed the plaintiff’s Sigma at about 400 or 500 metres from the accident scene.  His opinion was that at that time Mr Fletcher was travelling at about 80 kph.  He said that the vehicles collided whilst the plaintiff was still in the course of completing her U-turn.

I find that all the eye witnesses - and I include in that group for this purpose the plaintiff and the defendant - were honest witnesses and were attempting to describe what occurred as accurately as they could.  No doubt each was impeded to some extent by the passage of time since the incident.

The other important matter on this question is the relative position of the two vehicles as they struck.  The evidence, which included photographs, was that the left front of the defendant’s vehicle struck the left rear portion of the plaintiff’s motor vehicle.  The skid marks made by the defendant were parallel to the kerb.  Plainly that indicates the direction of his travel in the 30 or so metres prior to collision.  Had the plaintiff’s vehicle in fact been a foot or a metre from the eastern kerb as the defendant approached, then impact would not have occurred.  Her vehicle, and indeed the left rear portion of it, must have been at least 2.7 metres from the kerb.  Moreover had her vehicle, like the defendant’s, been parallel to the kerb then it is hard to see how the accident damage would have been to the left rear and left front respectively of those vehicles.  I conclude that the defendant and his passenger are correct in their evidence that the U‑turn manoeuvre was not complete at the time of the collision.  The witnesses are in general agreement that the plaintiff was travelling slowly at the time of the collision.

On the basis of this evidence and of the findings I have made, I conclude that the plaintiff was negligent in undertaking the U‑turn manoeuvre in the circumstances that faced her.  I find that it was her intention to complete the manoeuvre ahead of the oncoming headlights of the defendant’s vehicle and to place herself to the left hand or eastern side of the carriageway to enable the defendant to pass her, and that then she intended to drive into the traffic stream.  She should not have undertaken that manoeuvre in the face of an oncoming vehicle.  Conditions were fine and traffic was light but it was becoming dark and that made it difficult to correctly judge the movements of traffic on the road.  Prospect Road is a wide one and the manoeuvre would be ambitious at any time and particularly so at a point only 30 or so metres from an intersection.  In undertaking her manoeuvre the plaintiff planned to create an obstacle for south bound traffic and she relied on the good judgment of that traffic to avoid her.  Consequently I find that the plaintiff was significantly blameworthy in terms of the cause of this collision.  Plainly, so too was the defendant.  I find that he was travelling at something like 90 to 95 kph as he approached the Trigg Street intersection.  In addition he was so intoxicated by liquor that he would inevitably have had difficulty in coping with the merest irregularity of behaviour of pedestrian or driver.  He must bear the major blame for this collision.

I turn to the question of the plaintiff’s seat belt.  At the time of this incident Section 35A of the Wrongs Act provided as follows:

“(1).. Notwithstanding any other law, where damages are to be assessed for or in respect of an injury arising from a motor accident, the following provisions apply:

...

(i).... if the injured person (not being a person under the age of 16 years) was, contrary to the requirements of the Road Traffic Act 1961, not wearing a seat belt at the time of the accident, the damages to be awarded shall, on account of that contravention, be reduced by 15 per cent or such greater percentage as the courts thinks just and equitable having regard to the extent to which the proper use of the seat belt would have reduced or lessened the severity of the injury;

....”

The current law provides for reduction of damages by 25% where the injured person was not wearing a seat belt.  However I find that the applicable law is that which was in force at the time of the accident.

As mentioned earlier the plaintiff asserted that she had attempted but failed to engage her seat belt prior to the collision.  That is the one area of the plaintiff’s evidence which initially gave me cause for concern.  However I do not consider it matters since the provisions of Section 35A(1)(i) are attracted by the fact of non‑compliance with the requirement to wear a seat belt.  How that came about is not of moment.  Consequently I am required to reduce any damages awarded by 15% and to reduce the damages by a greater percentage where non‑compliance with the law resulted in more severe injury. 

There is evidence before me that the plaintiff’s injuries would have been reduced or lessened in severity had she been wearing a seat belt.  The plaintiff tendered a number of medical reports of orthopaedic surgeons in relation to her injuries.  Two of those surgeons were called, being Mr John Sweeney and Mr John Lipert.  The defendant cross‑examined both of those witnesses on the question of the impact of the plaintiff’s failure to wear her seat belt.  Further the defendant called Mr Brian Cornish and led him on this question.  (Since no report had been provided by Mr Cornish touching this aspect of the matter the defendant probably should have sought leave pursuant to Rule 38.01(7) to produce this evidence.  However by the time Mr Cornish gave his evidence the issue had been ventilated with the plaintiff’s witnesses.  That cross‑examination proceeded without objection either as to relevance, competence or any question arising under the Rules.  Had Mr Alex Ward for the defendant sought leave in respect of Mr Cornish’s evidence I should have granted it.  In fact when this matter was raised during the addresses Mr Ward sought such leave ex post facto.)  The clear thrust of both the evidence of Mr Lipert and that of Mr Cornish, which I accept, was that the plaintiff’s injuries would have been reduced or lessened in severity had she been wearing a seat belt.  Mr Michael Ward, for the plaintiff, argued that this question was clouded by the fact that the driver’s seat in the plaintiff’s vehicle broke at the base of its upright part during the collision.  I accept Mr Cornish’s evidence that this was not a significant factor.  Accordingly I find that it is appropriate to reduce the award of damages by something more than 15%.

The approach to this question of a reduction to a damages award by reason of contributory negligence, including the failure to wear a seat belt, was discussed at some length by Justice Lander (with whose judgment Justices Prior and Wicks agreed) in Barnard v Towill and Others (1998) 72 SASR 27, particularly at pages 41 to 44. Having established that the plaintiff’s manner of driving did contribute to the collision, and having further found that her failure to wear a seat belt resulted in her suffering greater injury than she otherwise would have, it is necessary for me to consider both those particulars of contributory negligence as part of an overall assessment. In this connection I have regard to all the evidence bearing on the incident, its causes and its results. Having undertaken this exercise I have determined that it is appropriate to reduce the damages which I shall award to the plaintiff by 50% to reflect her contributory negligence.

The plaintiff sustained serious injuries in the accident.  They included a compression fracture of T8, a comminuted fracture of the left proximal fibula shaft, a haemarthosis to the left elbow and bilateral plural effusions and lung contusions.  She was admitted to the Royal Adelaide Hospital under the care of Mr David Hall, Orthopaedic and Spinal Surgeon, and she remained there for five days.  The fractures were managed non-operatively.  The plaintiff was initially unable to walk at all, but, before she left hospital, she was able to walk with assistance.  Her various injuries caused her great pain and discomfort during her stay in hospital and she was still extremely disabled in the ensuing weeks.  She discarded a walking stick about two and half months after the injury and, at about that time, gradually began to take up household duties.  By the time the plaintiff left her sister’s home and lived independently, approximately seven or eight months after the accident, she was basically self- sufficient.  Her evidence was that the injuries to her left leg and left elbow have now resolved completely.  She said though, that she continues to suffer back pain between her shoulder blades and that she notices this when she undertakes household duties and in her play with her young son.  She said that she no longer takes part in swimming or skiing sports because she feels unable.  The plaintiff’s assertion of residual disability was supported by the medical evidence.  There is nothing of any moment in the variances among the medical opinion.  It seems that Ms Allan is left with a loss of function of her thoracic spine to the extent of about 15%.  No future treatment is indicated.  Whilst there might be some slow improvement in the future that is not to be expected.

I turn now to the various items of the plaintiff’s claim.  She was born on the 13th March, 1968 and so is now 32 years of age.  She was not working at the time of the collision but since leaving school had undertaken several different jobs consisting of general hand in a supermarket, cleaning, including industrial cleaning, cook’s assistant, bar work and later snack-bar work.  Not all these jobs were full time.  Indeed some entailed shift work.  The plaintiff’s evidence about her hours of work in these positions and as to the rate of pay she enjoyed was extremely vague and she did not have the benefit of any documentary material to assist her.

The last employment which the plaintiff had prior to the collision was in Adelaide at a snack-bar in Pirie Street.  She worked there for almost a year for four hours a day on each weekday as an assistant.  Again her rate of remuneration was not proved.  She was effectively retrenched from that position in about March 1994.  At the end of that year she fell pregnant and in May 1995 her son Jesse was born.  At the time of the collision she was caring for Jesse on a full time basis.  The plaintiff’s evidence was that on one occasion subsequent to the accident she applied for a casual position as a waitress at a restaurant in Moree.  She was told by the employer that he would not give her the work on account of her previous injuries.  The plaintiff said she considered that she would then have been able to fulfil waitressing duties, and likewise would now be able to perform the type of work she did in the Adelaide snack-bar.  However, she said that she would not now be able to do the work she previously performed in a supermarket, nor a commercial kitchen, on account of the lifting involved.  Nor would she be fit for the heavy work entailed in commercial cleaning. Broadly speaking, the medical evidence supported the plaintiff in the distinction she drew between these various types of employment. 

The casual employment sought by the plaintiff in Moree was something she heard about from a neighbour.  Her application for that work did not come about as part of a concerted effort to find work.  In those circumstances it is not surprising that she did not pursue other employment.  Indeed her evidence was that not very long after that unsuccessful attempt she and her de-facto husband, Nathan,  had to leave Moree and, although the periods have not been identified, she and her de-facto spent long stints travelling in Australia.  During a period which she spent in Adelaide in early 1998 she met a man called Kevin to whom she became pregnant, and her second son Trey was born on the 6th of March, 1999.  The upshot of this sequence of events since the stay in Moree is that the plaintiff was not looking for work and there is no material before me as to what difficulties she might have encountered had she been seeking employment.  The demonstration of the plaintiff’s claim for loss of earning capacity prior to trial devolves then to her one attempt to secure casual employment in Moree in 1997.  Since the position was to be casual and the hours determined on a needs basis, it is impossible to estimate what this job would have been worth to her.  In addition it is not established exactly when the application was made and how much time she could have devoted to the work prior to her and her de-facto husband having to leave Moree.  In the circumstances I am not prepared to allow anything by way of past loss of earning capacity.

I turn to the loss of future earning capacity.  In my opinion the plaintiff will be permanently precluded from pursuing employment necessitating heavy lifting, management of heavy cleaning machinery and the like.  I accept her evidence that she would now not be able to perform some of the employment which she had in the years after she left school.  For a person with limited education that is a significant detriment.  Of course there are many jobs for which she is fitted which she would still be able to undertake.  I accept that in pursuing them she will be competing with fully fit applicants.  Consequently periods between securing jobs might be longer than they would otherwise have been.  In addition she may consider that her level of residual pain dictates something less than full-time work. 

The extent of this future loss is not easy to predict.  It is apparent from the account of the plaintiff’s work history, insofar as I have set it out, that in the five or so years leading up to the accident, the plaintiff did not choose to work in full-time employment.  Indeed there were lengthy periods when she was not working at all and that may be attributed to her rather peripatetic lifestyle, her relationship with the man Nathan and the birth of her first son.  The way in which the litigant should be compensated for loss of earning capacity where that person would have only ever exploited a part of that earning capacity was discussed in Mann v Ellbourn (1973) 8 SASR 298. In those circumstances there is to be compensation for the extent to which the earning capacity would probably have been used, and compensation for the loss of the chance to exploit the balance of the earning capacity. Since the accident the plaintiff’s future plans have not become any clearer. Indeed she has ahead of her a custody battle with the father of her second son. Moreover at the time of the trial Nathan was in jail and the future of that relationship and his interaction with Jesse was unclear. All those factors make the determination of an appropriate level of compensation a difficult exercise. Of course, the plaintiff has a long working life ahead of her, and even if she does not return to full time employment, or even part time employment, for a number of years for the reasons I have mentioned, there may well be periods when her residual disability will - in the ways I have touched upon - have an impact. On the other hand the level of that residual disability is not a high one. In an attempt to provide a rough guide to a quantification of the loss I have undertaken the following exercise.

Let it be assumed that, but for the residual injury, the plaintiff would have worked full-time and continuously until aged 65.  On this basis one could attempt to calculate the plaintiff’s earning capacity and the reduction to it by reason of the residual injury.  Such an exercise was undertaken in Murray v Dawson  Judgement No. S5620 delivered 5 June, 1996, by Justice Lander, with whose approach to the question of damages Justice Cox agreed.  Using the current retail industry rates (which are in evidence) the plaintiff could, but for her residual injury, at present, expect to earn $444 gross and $369 net per week.  The capital sum which would roughly represent her earning capacity to age 65 using Table 4B in the Appendix of Luntz Assessment of Damages (Third Edition) at the prescribed discount rate of 5% is $309,222.

It seems to me that the plaintiff has lost somewhere between 10% and 15% of her earning capacity.  If the rate of 12.5% is used, that brings the capitalised sum to $38,653.  That figure then has to be reduced on account of the various matters which I have enumerated which demonstrate that the plaintiff would not have exercised that capacity fully in any event either in terms of continuity of work to age 65 or in terms of working full-time.  But there must be allowance for the loss of the chance to do so.

Taking all the matters I have mentioned into account I am prepared to find that fair compensation for the loss of future earning capacity would be $25,000.

It is not proved that any future medical or surgical treatment will be required.

The next matter to which I turn is non-economic loss.  It is plain that the plaintiff’s ability to lead a normal life was “significantly impaired by the injury for a period of least 7 days”.  Thus she meets the threshold provided by Section 35A(1)(a) of the Wrongs Act.  Under Subsection (1)(b) I am required to assign a numerical value on a scale running from 0 to 60, treating 60 as the value appropriate to the worst case.  I have reached the conclusion that the proper value to assign to the plaintiff’s pain and suffering and loss of the amenities of life is 10.  Multiplying that number by the prescribed amount - which counsel agree is $1520 - gives an amount of $15,200.  Under Section 35A(1)(k) of the Wrongs Act no interest is allowed on non-economic loss.

A schedule of special damages has been put into evidence as agreed fact.  The total amount is $3,662.75.  In fact, the defendant has already paid the Royal Adelaide Hospital account in the sum of $2,399 and that amount must be taken into account in due course. 

The total of the amounts which I have determined is as follows:

Non economic loss  $15,200.00
         Future loss of earning capacity  $25,000.00
         Special damages  $ 3,662.75
         Total  $43,862.75

This amount is to be halved on account of my finding of contributory negligence.  That gives an amount of $21,931.37.

Therefore judgment will be entered in the sum of $21,931.37,  but as I said, the sum of $2,399.00 has already been paid.

I shall hear the parties as to costs.