ASKEW -v- KIDD [2008] WADC 142

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 142
Case No:	CIV:1228/2004	Heard:	11-15 AUGUST 2008
Coram:	GROVES DCJ	Delivered:	19/09/08
Location:	PERTH
No of pages:	52	Judgment Part:	1 of 1
Result:	Plaintiff's injuries accident caused No contributory negligence Damages assessed
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Parties:	TANYA CLAIRE ASKEW PETER MALCOLM KIDD
Catchwords:	Torts Negligence- Motor vehicle accident Driver affected by alcohol/drugs Passenger injured Defence of "no duty" and voluntary assumption of risk Whether passenger wearing seatbelt Contributory negligence Onus of proof Liability Assessment of damages 39 year old secretarial worker with pre-existing vision impairment
Legislation:	Motor Vehicle (Third Party Insurance ) Amendment Act 1994
Case References:	Avram v Gusakoski [2006] WASCA 16 Commissioner of Railways v Ruprecht (1979) 142 CLR 563 Insurance Commissioner v Joyce (1948) 77 CLR 39 Jeffries v Fisher (1985) WAR 250 SGIC v Hitchcock, unreported; FCt of WA; Library No 970089; 11 March 1997

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : ASKEW -v- KIDD [2008] WADC 142 CORAM : GROVES DCJ HEARD : 11-15 AUGUST 2008 DELIVERED : 19 SEPTEMBER 2008 FILE NO/S : CIV 1228 of 2004 BETWEEN : TANYA CLAIRE ASKEW

Plaintiff

AND

PETER MALCOLM KIDD

Defendant

Catchwords:

Torts - Negligence- Motor vehicle accident - Driver affected by alcohol/drugs - Passenger injured - Defence of "no duty" and voluntary assumption of risk - Whether passenger wearing seatbelt - Contributory negligence - Onus of proof - Liability - Assessment of damages - 39 year old secretarial worker with pre-existing vision impairment

Legislation:

Motor Vehicle (Third Party Insurance) Amendment Act 1994

(Page 2)

Result:

Plaintiff's injuries accident caused

No contributory negligence
Damages assessed

Representation:

Counsel:

Plaintiff : Mr T Lampropoulos SC

Defendant : Mr P Jarman

Solicitors:

Plaintiff : Simon Walters

Defendant : Jarman McKenna

Case(s) referred to in judgment(s):

Avram v Gusakoski [2006] WASCA 16
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Insurance Commissioner v Joyce (1948) 77 CLR 39
Jeffries v Fisher (1985) WAR 250
SGIC v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997

(Page 3)

1 GROVES DCJ: The plaintiff's claim arises out of an accident on the evening of 25 April 1999 when a vehicle, in which she was a front seat passenger, ran off Caves Road, Karridale. The plaintiff's then partner, now her husband, who is the defendant, was the driver of the vehicle. Negligence and causation are admitted by the defendant upon the pleadings.

2 The defence alleges however that at the time of the accident the plaintiff knew or ought to have known that the defendant was under the influence of alcohol/drugs to such an extent that he was rendered incapable of having proper control of his vehicle. On that basis it is said that the defendant did not owe the plaintiff a duty of care.

3 Further the defendant alleges that the plaintiff was not wearing a seatbelt. On the basis of the alcohol/drug and seatbelt allegations, the defendant raises volenti non fit injuria and contributory negligence.

4 The defendant carries the onus of proof in relation to those defences: SGIC v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997 per Ipp J at p 9.

Circumstances of the accident – the plaintiff's evidence

5 The plaintiff and the defendant had been in a relationship for some years. At the time of the accident they were living together at the defendant's property at Karridale. The plaintiff suffered from a congenital eye condition known as Retinitis Pigmentosa resulting in severe tunnel vision (loss of peripheral vision with only somewhere between 3 degrees and 10 degrees vision at the time) and night blindness. She was classified as being legally blind. She was largely dependant upon the defendant when they went out together of an evening.

6 Sunday 25 April was the defendant's birthday. They had a late invitation to attend a friend's birthday party at Yallingup that evening which they declined because it would have meant travelling and staying overnight. Instead they decided to go to the Karridale Tavern which was only about 2 kilometres from home to celebrate the occasion. They arrived at the tavern at about 7 pm. The plaintiff does not drive by reason of her vision impairment. The defendant parked the vehicle immediately outside the entrance to the tavern. The defendant assisted her from the vehicle and into the tavern and to the bar at which they initially sat. The defendant ordered a bottle of champagne and they each had a glass. The defendant assisted the plaintiff to a table where she sat for the remainder of the evening. She had a second glass of champagne. By reason of her

(Page 4)

night blindness in poor artificial light the plaintiff did not recognise anyone else at the bar or whilst seated at the table. She did not mingle with others but listened to the live music being performed. The defendant did mingle with others at the tavern. They had a dance before departing which the plaintiff believed was prior to closing time at 10 pm.

7 On leaving the tavern the defendant "… guided me around to where the car door was and he went around the other side and I got in and, I always put my handbag on the floor and just automatically put the seatbelt on". It was her evidence that when the defendant was guiding her from the table to the car she did not notice anything unusual about him. She recalled that they drove out of the carpark of the tavern and onto the bitumen road which was Bushby Road. That was her last recollection. One and a half kilometres down Bushby Road there is a T–junction with Caves Road. It was at this junction that the vehicle left the road whereby the plaintiff was injured. Her next recollection was waking up at Royal Perth Hospital sometime later.

8 She did not see what the defendant had to drink at the tavern save that she thought that he was just drinking what she had namely a couple of glasses of champagne.

9 In cross–examination the plaintiff was pressed as to her knowledge of the defendant's consumption of alcohol and the events of the evening. The following was her evidence:

"How often did you go to places where you (would) drink alcohol? --- None at all really. The only time we actually – it was usually at – if we were going to go out, it was usually to go and visit someone at their home and we would make arrangements to actually stay the night if we had intended to drink, but we're not actually very big, you know, we are just social drinkers and – and it was rare that we actually went to parties because of the difficulty of my eyesight.

So would Peter go to the tavern and go to hotels without you? --- No, never. He's not that type of person.

And you wouldn't go to friends' for drinks and just a few drinks and drive home? --- No. We – he's not that – No, … he is a very methodical person and – and it would also be he likes to know what's going on ahead, so he would – he would make plans to do that sort of thing. So we did – we wouldn't just drive along and drop into someone's place.

(Page 5)

So he never, to your knowledge, drove after he'd been drinking alcohol? --- Not to my knowledge.

What about when you were living in Perth, … would he drink and drive? --- No, he doesn't drink and drive.

Would you go to places, friend's places or taverns or hotels where he would consume alcohol? --- No, we're not that type of people.

…

… Did you ever go to anywhere, people house, restaurants, hotels, anywhere where Peter would consume alcohol and drive home? --- No

…

… Your evidence is that he's never, throughout the time you have known him he's never gone out and driven home after having consumed alcohol? --- No

He is not much of a drinker, in your experience? --- No

Doesn't drink alcohol at home on a regular basis with you? --- No, he might have an occasional beer, very occasionally might have a beer.

So, the night of this accident was completely out of character for him? --- An aberration."

10 Later in cross–examination the topic was revisited. To some extent the plaintiff's absolute assertion that the defendant did not drink and drive was qualified.

"And on your evidence, he's not much of a drinker anyway? He didn't drink much? --- He's not. He's not. He's – He's not – hardly a drinker at all. He'll have the occasional beer, and if we – like, when you were talking yesterday about if we went out dinner, like, he'd – and – and he had to drive home, he would just have light beer. If we went to someone's place, he would just have a light beer or something. He doesn't drink and drive.

(Page 6)

I thought you told me yesterday that he wouldn't have any alcohol at all? --- We'd catch a taxi. If he – if he had alcohol over – if he thought that he had – had had over whatever the – the limit is, we would catch a cab …

…

Would you agree with me that I put to you that he never drove home after drinking any alcohol, and you said he never drove home after drinking any alcohol? --- Well, a light beer is not having – being drinking. If he had a light – if he had a light beer, it's a light beer. It's not like your having over – the – limit drinking.

You don't classify a light beer as alcohol? --- Well it's a light beer. You're not intending to – you're not over the limit. It's – the only time – he wouldn't drive if he – Peter would not drive if he had had any amount of alcohol that would consider him to be over the limit --- Except if he'd maybe have a – a light beer.

--- I am just saying that if he had a light beer, he probably would drive, but if he was – did have more than drinks, then he wouldn't drive …

…

So can I put it to you that you've changed your evidence today from, 'he never consumed alcohol and drove home', to 'he never consumed more than the limit and drove home'? --- No, I am saying I – what I said yesterday. He does not – I had – to my knowledge, he does not drink and drive with alcohol."

11 The plaintiff acknowledged that on the evening in question that they had shared a bottle of champagne to celebrate the defendant's birthday. She made no comment to him whether or not he was fit to drive for the reason that "… he's always been a very responsible person who I would trust – I trusted my life with, and he's cared for me greatly over the years, especially being a visually impaired person, and I've never had any reason to question his ability to be responsible". The plaintiff denied defence counsel's assertion that she was aware that the defendant was "drunk" that night before the journey home.

(Page 7)

12 The plaintiff was cross–examined as to her knowledge that the defendant was a smoker of cannabis. She was not aware that the result of a blood test showed cannabis in his blood at the time of the crash. She said that she "… had heard that he had mentioned that he had smoked marijuana occasionally" to which her response had been "don't do it in front of me. I don't like people doing it". She had never personally known the defendant to have smoked cannabis and he had never done so in front of her. He did not smoke tobacco products. She had never picked up on him having smoked marijuana by either the smell of it on him or by any behavioural changes. She denied any knowledge of the defendant having smoked cannabis either on the day of the crash or the previous night.

13 Cross–examined about her recollection of getting into the car her evidence went as follows:

"You remembered getting into the car and my recollection of what you said yesterday was that: I would have placed my (handbag) down on the seat and I would have put my seatbelt on? --- That's my normal – what I do – when I get into the car I – well, always – I should have said always.

…

Yes, so what I am putting to you is that the reason why your saying you were wearing a seatbelt is because that's what you always do? --- I remember putting the seatbelt on, if that's the question you're asking … because I remember leaving the tavern.

What I am getting at, whether you actually remember putting a seatbelt on or whether you are telling his Honour, I was wearing my seatbelt because I always wear my seatbelt? --- I remember putting my seatbelt on. I even actually – I remember the clothes I was wearing that night, I remember what outfit I had on, what shoes I had on. I remember getting into the car, I remember putting the seatbelt on.

…

… The proposition is put to you that you were not wearing a seatbelt. What's your response to that? --- My response is I was wearing a seatbelt.

(Page 8)

Can I put it to you that you're only saying that you were wearing a seatbelt that night on the basis that you invariably wear a seatbelt? --- No, I am saying I remember putting the seatbelt on … I did put my seatbelt on. I was wearing a seatbelt. I put the seatbelt on. I wasn't not wearing a seatbelt."

-The defendant's evidence

14 It was the defendant's evidence that prior to the accident that he was a very light social drinker and that he did not drive when he had been drinking. He could not recall any occasion when he might have consumed alcohol and driven afterwards. On the evening in question he left home with the plaintiff to go to the Karridale Tavern at about 7 pm. Otherwise he had no real recollection of the events of the evening save that "… there was a band playing at the tavern and I just recall that I was happy". He was not able to recall what if any alcohol he consumed that evening at the tavern.

15 A sample of blood was taken from the defendant at the Augusta Hospital. That was sent for analysis to the Chemistry Centre (WA). The analyst report (Exhibit 42) states the result of examination as:

"Alcohol 0.168 per cent

Carboxytetrahydrocannabinol 58 ug/litre

Tetradrocannabinol 2 ug/litre

Benzodiazepine not detected

Opiates not detected"

16 A further report from Chemistry Centre (WA) (Exhibit 43) states:

"From the information supplied and s 71 of the Act:

Time of occurrence of the event 2200hrs on 25/04/99

Alleged time of last drink not known

Alcohol in blood at time of event 0.140 per cent"

17 The defendant was subsequently charged on Complaint with two offences namely:

i. Driving a motor vehicle with a percentage of alcohol in his blood exceeding 0.08 per centum (MR 275/99) and

(Page 9)

ii. Driving a motor vehicle in a manner that was, having regard to all the circumstances, dangerous to the public or to any person and thereby caused bodily harm to the plaintiff (MR 276/99).

18 Following discussions between his lawyer and the police the defendant on 17 December 1999 pleaded guilty to the amended charge of driving a motor vehicle whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. He was fined $800 with costs of $507.70 and disqualified from holding or obtaining a driver's licence for a period of six months. The charge of dangerous driving was dismissed with no evidence being offered. The plea was made as a consequence of the findings on the blood analysis.

19 The defendant's explanation as to the identification of cannabis in the blood test result was that on the evening before the accident he had driven down to Hamlin Bay with a group of colleagues "…who were having a spliff and I partook with them". In the month prior to the accident he had done that on three or four occasions and in the six months prior about 18 times. If he had smoked cannabis at home it would be outside and by himself and that was perhaps on six occasions in the six months prior to the accident. Following that he would have normal interactions with the plaintiff in the house. The only discussion he had with the plaintiff about smoking cannabis had been at the commencement of their relationship when she had indicated that if he wanted to do that then he was not to do that in front of her. In 1997 the defendant had been charged with cultivating marijuana. He pleaded guilty to the charge. He said that he was embarrassed about that and that he had kept it from the plaintiff as he didn't want her to think any less of him.

20 The defendant had no recollection of the accident. In cross-examination the defendant denied having had cannabis on 25 April before he had gone to the tavern. He suffered a severe laceration under the right eye, a burst wedge fracture of his L1 vertebrae and bruising on the sternum.

-Ambulance Officer

21 Jill Grist had been a level 2 volunteer ambulance officer at Augusta since 1997. At about 10 pm she received a call to attend the accident. A fire brigade arrived at the scene at about the same time as the ambulance. It was dark and difficult to find her way around. She described the vehicle as being up an embankment on the west side of Caves Road directly opposite where Bushby Road joins it. She located the defendant on his hands and knees beside the driver's side of the car. He had a

(Page 10)

bleeding head wound to which Ms Grist applied a bandage. He was aggressive and did not want assistance. She next tended to the plaintiff who was in the front passenger seat of the vehicle. She observed that the plaintiff did not have a seatbelt on at that time. She noted that the plaintiff had facial bleeding, a facture of the right arm and the left leg. With the assistance of fire officers she was removed from the vehicle to the ambulance and was taken to the Augusta Hospital. From there the plaintiff was conveyed by Royal Flying Doctor to hospital in Perth.

-Commercial Investigator

22 Edmund Robert Crawford is a licenced commercial investigator who was engaged by the Insurance Commission of Western Australia to attend the scene where he took photographs (Exhibit 26). It was his observation from the photographs that Bushby Road was straight for about 500 to 700 metres before it arrives at the junction with Caves Road. There is a slight incline or slope up Bushby Road as one approaches the junction with Caves Road. Those photographs bear the date 31 August 1999 which the witness believed was the date that he attended at the scene.

-Attending police officer

23 Brendon Peter Moore was the officer in charge of the Augusta Police Station at the time. He attended in company with Senior Constable Shane Lawson, arriving at approximately 10.40 pm. Ambulance and Fire Brigade were already in attendance. He described the area as being very dark and heavily forested. He observed the defendant's vehicle had come to rest up an incline and had impacted a tree opposite the terminating road, Bushby Road. The defendant was in care of ambulance officers. The plaintiff was still within the vehicle in the front passenger seat being attended to by Ambulance and Fire Brigade Officers. Photographs of the scene taken by Senior Constable Larson (Exhibit 45) indicate that the front left of the vehicle had impacted heavily with a large tree. A photo of the front interior of the vehicle indicates disarray.

24 When Sergeant Moore observed the plaintiff being attended to in the front passenger seat by ambulance officers he observed that "… her seatbelt was intact in the retracted position and there was no evidence of it being cut …". He observed that the impact of the crash had dislodged part of the dash.

25 Sergeant Moore attended at the scene again the next day by which time the vehicle had been removed. He took three daytime photographs (Exhibit 46) which clearly indicate the thick trunk of the tree with which

(Page 11)

the vehicle had impacted. He did not observe there to be any skid marks on the road preceding the crash.

Findings on liability

26 It is admitted by the defendant on the pleadings that he was driving negligently as particularised in par 4 of the statement of claim in that he:

i. Drove at a speed which was excessive in all the circumstances;

ii. Failed to keep any or any proper lookout;

iii. Drove whilst under the influence of alcohol/drugs to an extent rendering him incapable of having proper control of a vehicle in breach of the Road Traffic Act.

iv. Failed to manoeuvre his vehicle so as to avoid it leaving the road.

27 Defendant's counsel conceded in closing that there was no evidence that the plaintiff was aware or should have known that the defendant drove at an excessive speed, failed to keep any or any proper lookout or had failed to manoeuvre his vehicle so as to avoid it leaving the road. The live issue so far as the defences of "no duty" and voluntary assumption of risk centred on the allegation that the defendant drove whilst under the influence of alcohol/drugs to an extent rendering him capable of having proper control of the vehicle.

"No duty" defence

28 Paragraph 5 of the defence pleads a "no duty of care owed to the plaintiff" or "no duty" defence. For this defence to succeed the defendant must establish on the balance of probabilities that the plaintiff knew or had actual knowledge of the defendant's impaired capacity to properly control the vehicle and that he was incapable of having proper control of his motor vehicle. In SCIC v Hitchcock (supra) this issue was considered by Ipp J at pp 4 - 5. His Honour said:

"It may well be, for example, that a passenger may know that the driver might to some degree be under the influence of alcohol but nevertheless believe that the driver was quite capable of driving safely. A belief that a driver was capable of driving safely would negative the proposition that the driver (

sic

passenger) accepted a danger of which he had full appreciation:

O'Shea v The Permanent

Trustee Company of New South Wales Ltd

[1971] Qd R 1;

Suncorp

Insurance and Finance v Blakeny

(1993) 18 MVR 361. Moreover, knowledge that the driver is to some degree intoxicated does not

(Page 12)

necessarily imply full comprehension of the extent of the danger involved (without which the defence of

volenti non fit injuria

cannot succeed):

Roggenkamp v Bennett

at 300;

The Permanent

Trustee Company of New South Wales Ltd

at 6."

29 Knowledge alone thus is not enough to establish the no duty defence. If that were so it would mean that a person with knowledge, but held in a car against that person's will, would be owed no duty or the reduced standard of care to be observed by a drunken driver. The additional relevant aspect is revealed in Dixon J's judgment in Insurance Commissioner v Joyce (1948) 77 CLR 39 at 57 where he said:

"If he [the passenger] knowingly

accepts

the voluntary services of a driver affected by drink, he cannot complain of improper driving caused by his condition, because it involves no breach of duty." (Emphasis added)

30 Thus the court must be satisfied that the passenger not only knows, but also accepts, that he or she is to be driven by the impaired driver. In other words, that the passenger must make a decision to travel as a passenger with the impaired driver: See Avram v Gusakoski [2006] WASCA 16 per Pullin JA at [13] – [14].

31 As to the plaintiff's knowledge of the defendant's claimed impairment there was only her evidence as to the defendant's consumption of alcohol at the tavern. They had "shared" a bottle of champagne of which she had two glasses over a period of two to three hours. She was not with the defendant all evening at the tavern. She was not aware as to whether or not the defendant had consumed any other alcohol. They had danced together towards to the end of the night. They left together before 10 pm with the defendant assisting the plaintiff out of the tavern to the car. She did not smell or otherwise detect anything on or about the defendant out of the ordinary. She did not detect any behavioural type change in him. He was "his usual thoughtful and caring self". She had no reason to query his fitness to drive despite the fact that on this evening he had consumed alcohol whereas he was not a person to drink and drive. He had always been a very responsible person whom she trusted with her life and he had cared for greatly over the years. He was not known to her as a big drinker. If he did have a drink before driving it would only be a light beer. That would not put him over the limit. If he had thought he was over the limit they would catch a cab. She emphatically denied being aware that the defendant was "drunk" that night before the journey home.

(Page 13)

32 Nor was there anything in his manner of driving as they left the tavern which suggested to her that the defendant may have been impaired. She had no recollection of the trip from the tavern carpark to the scene, a distance of 1 ½ kilometres.

33 The defendant had no recollection as to what alcohol he had drunk that evening.

34 There was no other evidence, eg. from bar staff or other patrons at the tavern as to the defendant's consumption of alcohol or observations as to his state of sobriety.

35 As to the allegation that the defendant may have been impaired by ingestion of drugs the plaintiff's evidence is again adamant that she was not aware and had no reason to suspect that the defendant may have smoked cannabis or that he was impaired by reason of having done so. Her evidence was supported in that respect by the defendant.

36 I have no reason not to accept the plaintiff's evidence as to her knowledge of the defendant's condition when they departed the tavern. She impressed me as having a very clear recollection of the events of the evening to the point where they departed the tavern in the motor vehicle. Her evidence is uncontradicted. Furthermore she impressed me overall as being an honest and truthful person whose evidence could be accepted as being reliable. Nor is there any evidence from which it might be inferred that the plaintiff had the requisite knowledge.

37 Defendant's counsel did not address this defence in closing. On the evidence (or lack of it) it was, as I would infer, properly conceded.

38 I find therefore that the defendant has failed to make out the defence of "no duty".

Voluntary assumption of risk

39 Paragraph 6 of the defence raises the defence of volenti non fit injuria. The defendant pleads that the plaintiff with full knowledge of the risk of injury or damage to herself by the conduct of the defendant, as alleged in par 4 (i–iv) and the risk associated with travelling in the vehicle whilst not wearing a seatbelt voluntarily consented to accept that risk and to waive any claim in respect to any injury or damage that may be occasioned to her by reason of the conduct of the defendant.

(Page 14)

40 As to the defence of voluntary assumption of risk, Burt CJ in Jeffries v Fisher (1985) WAR 250 at 253 said:

"For the defence of

volenti non fit injuria

to succeed, however, not only must the injury to the gratuitous passenger be caused by improper driving caused by the drivers intoxicated condition, but in addition to that, and as a further step, it must be established that a gratuitous driver [

sic

: passenger] fully appreciated the risk and voluntarily accepted it. Of course in many cases that appreciation and acceptance can readily be inferred from knowledge, but the point to be made is that knowledge alone is insufficient …"

41 Once again for this defence to succeed the defendant must establish on the balance of probabilities that the deceased knew or had actual knowledge of the defendant's impaired condition. For the reasons which I have outlined in response to the "no duty" defence I am unable to find that the plaintiff had the requisite knowledge.

42 In closing, the defendant's counsel did not "press" this defence in submissions. The defendant has failed to make out the defence of volenti non fit injuria.

Contributory negligence

43 Paragraph 7 of the defence pleads contributory negligence on the part of the plaintiff.

44 As to the plea of contributory negligence Pullin JA in Avram v Gusakoski (supra) at [25] – [28] said:

"The no duty defence depends upon the knowledge and acceptance by the passenger that he or she should be driven by a drunken driver. That requires an examination of the particular circumstances of the case:

Joyce's

case at 57;

Cook v Cook

(

supra

) and

Gala v Preston

(

supra

). I have already quoted Burt CJ's statement of what has to been shown to make up the voluntary assumption of risk defence. As with the no duty defence, it depends upon an examination of the circumstances and the conduct of the particular participants, not the conduct of a hypothetical participant.

On the other hand the standard of care in contributory negligence depends upon foreseeability, not of the particular

(Page 15)

participants but of a reasonable person. See

Commissioner of Railways v Ruprecht

(1979) 142 CLR 563 per Mason J at 570.

More specifically McHugh J in Joslyn v Berryman (supra) at [38] said:

'Hence, the issue is not whether a reasonable person in the intoxicated passenger's condition – if there could be such a person – would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person – a sober person – would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reasons of the driver's intoxication.'

This explains why it is possible for a defendant to fail on the no duty defence and the voluntary assumption of risk defence and yet it succeeds in establishing that there was contributory negligence on the part of the passenger. This result can be seen in many cases. See

Joslyn v Berryman

(

supra

) [26] and the cases cited at footnote 39."

45 The defendant contends that the plaintiff is guilty of contributory negligence on two grounds, first, that she entered into the car knowing that the defendant had been drinking and secondly, that she had failed to wear a seatbelt.

46 As to the first of those grounds the plaintiff knew that the defendant had consumed a couple of glasses of champagne. She knew that it was not his practice to drive if he had been drinking alcohol (other than perhaps a light beer). The defendant confirmed in his evidence that it was not his practice to drive when he had been drinking. He could not recall any specific occasion of having driven after having been drinking alcohol. And yet, on this evening, he had a blood alcohol reading when calculated back to the approximate time of the accident of 0.140 per cent. Common knowledge would suggest that to attain that level would require more than a couple of glasses of champagne. There was no evidence to that effect however. Nor was there any expert evidence as to whether a couple of glasses of champagne would have rendered him incapable of having proper control of a vehicle. Nor was there any expert evidence called as to what effect having a blood alcohol reading of 0.140 per cent would have on a person's ability to have proper control of a vehicle. There is a paucity of evidence on the defendant's part as to this issue.

(Page 16)

47 The blood alcohol level of the defendant does not of itself assist the defendant.

48 The question then is whether the plaintiff knew of the defendant's incapacity, by reason of consumption of alcohol, to have proper control of the vehicle.

49 There is no evidence as to the defendant's behaviour at the tavern, before he embarked upon the journey. The plaintiff was not in his company all the time. There was nothing in his conduct towards the plaintiff when they went to the car or in his driving as they left the carpark to suggest he was affected by alcohol.

50 On the evidence there are insufficient facts upon which I could be satisfied that the defendant has discharged the burden lying upon him of proving that the plaintiff knew that he was intoxicated to the extent that he was incapable of having proper control of the vehicle. The plea of contributory negligence on account of such knowledge fails.

51 Similarly, the allegation that the defendant was affected by cannabis. He had smoked cannabis some 24 hours before going to the tavern. He had not used cannabis on the day of the accident. The defendant's evidence confirmed that of the plaintiff that at the outset of their relationship he had been told never to smoke cannabis in front of her and so he never did. The plaintiff had never smelt cannabis on him or noticed any change of behaviour which might indicate that he had smoked cannabis.

52 There was no evidence as to what effect having smoked cannabis a day beforehand may have on an occasional user or what behavioural signs might be exhibited and nor was there any evidence as to the significance if any of the evidence from the blood test. There is no evidence whatsoever that the plaintiff knew that the defendant had used cannabis and was affected by it to such an extent as to be incapable of having proper control of his vehicle. Likewise the plea of contributory negligence on account of such knowledge fails.

53 I turn then to the question of the seatbelt.

54 I have earlier outlined the plaintiff's evidence about the seatbelt. The defendant suggests that by reason of her evidence–in–chief it was indicated that the plaintiff simply relied on what she always did with the seatbelt, rather than expressing what she did recall doing. In cross-examination however it became abundantly clear what she did. She

(Page 17)

maintained adamantly that she did put the seatbelt on. Her answers were unequivocal. There was no direct evidence to contradict her. Any evidence would need to be compelling to displace the plaintiff's evidence and my findings as to the reliability of her evidence.

55 The burden of proving that the plaintiff was not wearing a seatbelt at the time of the accident lies on the defendant. Furthermore if I were to find that the plaintiff was not wearing a seatbelt the onus of proof again lies on the defendant to establish, on the balance of probabilities, that the plaintiff would have received fewer injuries then she would have otherwise done. The defendant relies upon the drawing of reasonable inferences to establish these matters. I will deal of each of the assertions which are said to support the drawing of such inferences.

(i) The ambulance officer found the plaintiff without a seatbelt on

56 That was Ms Grist's evidence. The ambulance containing herself and two other ambulance officers and the fire brigade arrived at the scene at the same time. She was not aware of any other persons at the scene. She attended first to the defendant. He was out of the car on hands and knees, conscious, very verbal and refusing attention. She observed a laceration to his head which was bandaged and then with the assistance of others he was placed onto a stretcher and taken to the ambulance. She then went to attend to the plaintiff whom she found to be conscious, very confused and not complaining of any pain. She did not describe in what position she found the plaintiff. She observed facial injuries and ascertained a broken right arm. With the assistance of fire brigade officers she was removed from the vehicle when it was ascertained that the plaintiff had broken leg as well.

57 Self-evident is the fact that someone must have come upon the scene of the accident and to have then called or caused to be called the ambulance and fire services. There was no evidence as to who that person was or what if any other persons came upon the scene and were there prior to the arrival of the ambulance. Sgt Moore arrived after the ambulance and fire services but could not recall if there were other persons present. He observed ambulance officers tending to the plaintiff. The defendant was out of the car when the ambulance arrived.

58 In those circumstances it would be pure speculation for me to conclude that because the plaintiff was not wearing a seatbelt when Ms Grist went to her that she had not been wearing a seatbelt at all. If not undone by the plaintiff there clearly was opportunity for the seatbelt to have been undone by someone else, possibly a passerby who came upon

(Page 18)

the scene or the other ambulance officers or fire service officers prior to Ms Grist getting to her. Accordingly I can not draw any inference as to this from Ms Grist's evidence.

(ii) The plaintiff could not have undone her seatbelt with her right arm because it was fractured and paralysed

59 There was no evidence of loss of consciousness of the plaintiff. She was conscious when Ms Grist was attending to her. Whilst her right arm was severely injured that is not to say that she could not have released the seatbelt herself by reaching across with her left arm. There is no evidence that her other injuries would have prevented her from doing that. In closing defence counsel conceded "…its possible but in my submission extremely unlikely". There is no basis upon which I could conclude that it was unlikely. Accordingly the requisite inference can not be drawn from this assertion.

(iii) The plaintiff sustained no injuries consistent with her having worn a seatbelt, there being no evidence of bruising to the shoulder or chest region

60 By comparison, the defendant suffered seatbelt bruising over his chest and his injuries were far less severe. In support the Augusta Hospital and Royal Perth Hospital records were tendered (Exhibit 40). The Bunbury Regional Hospital records regarding the defendant were also tendered (Exhibit 47). Given the volume of all those records the defendant usefully provided a schedule of hospital evidence in respect of chest injuries. Suffice to say that in the case of the defendant a diagram on the Integrated Progress Notes indicates a diagonal marking from the right shoulder to the left side waist with the notation "chest sore". The diagonal marking would be consistent with forcible restraint caused by the sash of a seatbelt. In the case of the plaintiff there is no indication of a similar marking either on assessment at the Augusta Hospital where it was noted "chest and abdomen seem fine" or at Royal Perth Hospital where, at best it is recorded "chest tender lower. (L) chest–mildly" and "abdo soft … non tender". No markings on a bodily diagram were made of any bruising or injuries to the chest or abdomen.

61 To accept that evidence as supporting the requisite inference would require that I presume that the plaintiff's seatbelt was in working order at the time. There is no evidence that this was the case. Thus I cannot presume that to have been the case.

(Page 19)

62 As to the respective injuries of the plaintiff and defendant it is accepted that the plaintiff's injuries were far more severe than those sustained by the defendant. Even so the defendant did suffer a significant head wound in the area of the right eye and temple and a marked anterior wedge fracture to L1 of the lumbar spine. The plaintiff similarly suffered a spinal injury, her facial injuries were more severe plus she also sustained fractures of the right arm and left leg.

63 The only evidence as to the extent of damage to the vehicle is depicted in the photographs (Exhibits 45). What is evident is that the front left of the vehicle immediately in front of the passenger's location came into heavy impact with the tree causing substantial damage. Photograph 45B indicates the front left wheel pushed back and under almost to the passenger foot well. Photograph 45C depicts the front interior of the car from the passenger side. Sgt Moore described the interior of the cab where the plaintiff was seated as "a mess, basically, obviously the impact of the crash has dislodged part of the dash and crushed that as well. And that's – and, and impacted the – on the surrounding structure of the vehicle --- in various locations". Given those factors I am not prepared to simply infer that because the plaintiff sustained more severe injuries than the defendant that was because she was not wearing a seatbelt.

(iv) The facial injuries and other injuries are consistent with not wearing a seatbelt

64 In this case the court was not assisted by any expert evidence in this area. It is not known with what the plaintiff's face impacted so as to cause the facial injuries sustained. It is not uncommon in this type of case that there is expert evidence reconstructing the accident, identifying the damage, considering what affect the seatbelt would have in restraining forward or sideways movement on impact and to draw certain conclusions therefrom. But that has not been the case here. Nor has there been any attempt at identifying damage either to the dash of the vehicle or elsewhere which may have been caused by reason of the impact of the plaintiff's head upon it. There is a complete paucity of evidence. Just as I should not presume that the wearing of a seatbelt would prevent any injury I should not likewise presume that by not wearing a seatbelt the plaintiff's injuries were as a consequence of such failure. Accordingly, I decline to draw the inference, on the balance of probabilities, that the plaintiff was not wearing a seatbelt.

(Page 20)

65 Furthermore, even had I concluded that the plaintiff was not wearing a seatbelt there was not any evidence that she would have escaped unscathed in the accident or would have received fewer injuries than she would have otherwise done. To draw such and inference in this case would have been mere speculation.

The plaintiff's injuries and hospital and medical treatment

66 Paragraphs 5 and 6 of the plaintiff's statement of claim pleads these matters. In closing defendant's counsel acknowledged that issue was not joined insofar as the matters there pleaded. I therefore adopt the matters pleaded as follows:

5. The plaintiff sustained the following injuries in the accident;

(i) Severe facial fractures including

(b) multiple fractures of the upper and lower jaw;

(ii) Full thickness laceration through the lower lip.

(iii) Fracture of the right humerus requiring internal fixation resulting in right radial nerve palsy.

(iv) Fracture of the left tibia and fibula requiring internal fixation.

(v) Fracture of the right proximal fibular.

(vi) Burst fracture of the L1 vertebrae and compression fracture.

(vii) Fracture of nasal bones.

(viii) Fracture of the left ninth and tenth ribs.

6. In consequence of the said injuries the Plaintiff had to receive hospital and medical treatment including but not limited to the following:

(i) Oral and maxillofacial surgery to the jaw on the 28^th April 1999 involving;

(a) reducing and plating the comminuted compound fracture of the mandible together with reduction and plating of bilateral fracture of the maxilla;

(b) Stabilising of the many broken and/or loose teeth by wiring of arch bars to the upper and lower teeth.

(Page 21)

(ii) Further surgery on the 1

^st

May 1999 involving seven hours of plastic reconstructive and craniofacial surgery involving;

(a) Reducing and stabilising facture of right and left zygoma's both orbits and right and left maxillae using approximately ten titanium plates placed into intermaxillary fixation.

(b) Bicoronal flap to plate the bones of the zygomatic arches and supra-orbital region.

(c) Insertion of speaking tracheostomy which later developed complications and was removed and replaced with a non-speaking tracheostomy on several occasions.

(d) Further repositioning of the maxilla resulting in the wiring of the jaw together.

(iii) Further surgery carried out on the 6

^th

and 8

^th

May 1999 was cancelled as a result of the Plaintiff contracting MNRSA infection (golden staph).

(iv) Admission to intensive care (isolation room) from the 12^th May 1999 – 26^th May 1999.

(v) Subsequent operation on the 1^st June 1999 involving:

(a) Orthopaedic surgery to the tibia and fibula of the crushed left ankle.

(b) Fitting of an ilizarov frame.

(vi) Subsequent operation on the 16

^th

June 1999 involving;

(a) Removal or arch bars which had been splinting the teeth;

(b) Removal of more teeth;

(d) Repairing of a fistula between and the mouth and maxillary sinus.

(Page 22)

(vii) Further surgery on the 3

^rd

September 1999 involving the removal of a broken pin on the ilizarov frame.

(viii) Further admittance to hospital on the 19^th October 1999 for one week for IV antibiotic treatment due to NMRSA infection of the left leg at the ilizarov frame.

(ix) Further surgery on the 20^th November 1999 involving;

(a) Removal of a infected loose half pin from ankle;

(b) Disconnection of the ilizarov frame.

(x) Further surgery on the 10

^th

July 2000 involving:

(a) Rhinoplasty including cartilage graft from the ear.

(b) Correction of B1 temporo hollowing with foreign implants for contour reconstruction.

(d) Tracheostomy scar revision.

(xi) Further surgery on the 10

^th

June 2003 involving:

(a) Closure of oral-antral fistula as a result of the plaintiff suffering from long periods from continual infection in her nose and sinus's which required constant antibiotic treatment as a direct result of prior operation and removal of necrotic bone from the jaw.

(b) Removal of large molar tooth from the top right jaw.

(xii) In addition to the above the Plaintiff underwent the following dental treatment including:

(a) 18 June 1999 preliminary assessment involving:

(i) Comprehensive clinical and radiological examination.

(ii) Repair/removal of broken upper right lateral incisor.

(iii) Fabrication of acrylic provisional upper and lower partial dentures to replace missing tooth.

(iv) Tissue conditioning (Provisional re-aligning/refitting of dentures).

(Page 23)

(b) Further treatment on the 12

^th

August 1999 involving:

(i) Extraction of badly composed upper right lateral incisor and lower right canine.

(ii) Removal of sequestra in the upper right pre-molar.

(d) 22 September 1999 radiographic review.

(e) 8 November 1999.

(i) Draining sinus detected adjacent to retained root fragment, left lower canine region.

(ii) Pulp test molar pre-molar region, upper right quadrant indicating diminished vitality of the first molar, second pre-molar and first pre—molar.

(f) 30 November 1999:

(i) Radiographic review.

(g) 5 January 2001:

(i) Intra-oral radiographic examination.

(ii) Splint re-adapted and adjusted.

(iii) Nerve debridement and stabilisation of fracture upper right first molar.

Plaintiff's pre-accident history

67 The plaintiff was born on 4 April 1960 and was 39 years at the date of the accident.

68 In 1976 she completed her fourth form HSC at Woy Woy High School in NSW and in 1977 undertook a one year full time secretarial course at Gosford Technical College which included shorthand, dictaphone typing, typing, bookkeeping and other office managerial roles.

69 At about the age of 15 she started to have the first symptoms of severe night blindness. There was a history of vision impairment in her family and she was initially reluctant to have her condition confirmed. At

(Page 24)

18 years she was diagnosed with Retinitis Pigmentosa. Initially her difficulty was with night blindness and in environments of changing light but her peripheral vision hadn't then decreased to the point of causing her much difficulty in the daytime. Nevertheless the plaintiff lived a full and active life.

70 Following secretarial college she was employed for a couple of years in a real estate office at Woy Woy undertaking front desk reception and secretarial and switchboard duties. She then went to New Zealand where she worked in the hospitality industry for about 18 months. On her return to Gosford she took employment with Oriental Imports, a clothing boutique as well as selling other oriental merchandise. Her duties included opening the shop each morning, engaging a junior employee, doing banking and other bookwork including ordering of stock. This was a fulltime job Monday to Friday plus Friday night and all day Saturday. She worked there for about three years.

71 In 1983 her family had moved to Western Australia and at the end of 1984 she came to Perth for Christmas and her sister's wedding. She remained in Perth and worked in a travel agency for a year before going to the Northern Territory. There she was employed with Casuarina Home Improvements as a secretary receptionist and switchboard operator. She was there from January 1985 to July 1987. At that time the night blindness was her major vision problem but she was still managing in her work and other activities in the daytime.

72 She then travelled to Melbourne where she was employed in a solicitor's office as front desk receptionist and typist and where she remained for five months until her relationship with her then partner broke down. She returned to Gosford and back to work as retail sales manager at Oriental Imports from January 1988 to November 1989.

73 In about April 1988 she went to the Sydney Eye Hospital where upon examination it was ascertained that her field of vision was then only 10 degrees. She was classified as being legally blind and subsequently was granted a disability support blind pension. The pension was not income tested and she was relieved to know that she could continue to work. At end 1989 early 1990 she managed and worked as a nursery hand/salesperson.

74 In April 1990 she moved to Fremantle where her sister was living. She sought assistance from the Association for the Blind at Victoria Park. There she undertook various computer courses and undertook counselling

(Page 25)

to give her the confidence to deal with her vision impairment. From January 1991 to November 1993 she was employed as a private secretary with a fisheries consultant undertaking all manner of secretarial work. When that business closed she then went to work with a mining and drilling services company as a secretary/receptionist and computer operator. She worked there for about 15 months until her vision deteriorated to such an extent that she had to give up that work.

75 In 1990 the plaintiff had met the defendant when she had first come to Perth. In 1992 a relationship commenced. The defendant lived down at Karridale near Augusta but when he came to Perth they would see each other. As she was not able to continue in her employment in Perth the defendant asked her to go down and assist him on his properties at Karridale regenerating wetlands. Under the guidance of the defendant she assisted establishing gardens, planting trees, fencing etc. In 1998 she consulted Professor Ian Constable at the Lion's Eye Institute. He diagnosed cataracts and performed cataract surgery in each eye in September. That surgery was successful in reversing the deterioration caused by the cataracts and restoring the quality of the plaintiff's vision within the limited range cause by the Retinitis Pigmentosa. With her improved vision she talked with the defendant about returning to secretarial work. She first took a trip to the eastern states to visit friends and on return went back down to Karridale in early April 1999. The plaintiff was looking forward to resuming employment in a secretarial role in 1999. Unfortunately the accident intervened.

Further medical treatment.

76 Much of the medical evidence is agreed between the parties. Many of the medical reports were tendered by consent. In total there were in the order of 60 reports from medical specialists and others. Those reports were from Dr Michael Down (Oral and Maxillofacial Surgeon), Dr Matthew Hansen (Plastic and Reconstructive Surgeon), Dr Peter Woodland (Orthopaedic and Spinal Surgeon), Dr Peter Campbell (Orthopaedic Surgeon), Dr Shane O'Rourke (GP, Margaret River), Dr Douglas Sneddon (Orthopaedic Surgeon), Professor Ian Constable (Lions Eye Institute), Dr W M Hatton (Hampden Road Clinic), Dr Ian Bernardt (Ear Nose and Throat Surgeon), Dr Christine Yu (Fremantle Endodontics), Dr Siri Bjelland (Apple Dental Centre), Dr Sean Hamilton (Plastic and Reconstructive Surgeon), Dr Mario Alberghini (Oral and Maxillo-Facial Surgeon), Dr Jean Cox (South Metro Community Drug Service), Dr Emmeline Lee (SKG Radiology), Dr C Allen (Consultant Plastic and Reconstructive Surgeon).

(Page 26)

Dr Tim Lego (Midland Dental Care) and Dr Marisa Casotti (Ellen Street Family Practice).

77 Additionally the following medical practitioners gave evidence and their reports were tendered, Professor Mastaglia (Consultant Neurologist), Dr V Hotinski (Concept Dental), Mr N C Anastas (Orthopaedic Surgeon), Dr J Rosenthal ( Physician in Rehabilitation Medicine), Dr Jean Cox (South Metro Community Drug Service) and Dr Peta McGrade (Ellen Street Family Practice).

78 Additionally Mr K R Jones, occupational therapist gave evidence and his report was tendered as did Ms Krystelle Smales (Podiatrist). An occupational therapy report of Ms Ruth Jodrell was tendered by consent as was a letter of Domenic Carbonaro (Pharmacist).

79 So far as is relevant I will under the various heads of injury and damages touch on such evidence and reports as is necessary.

Facial injuries

80 In reference to the seven hour operation on 1 May 1999 and further surgery on 10 July 2000 Mr Hansen in his report dated 6 June 2001 stated as follows:

"She made a steady post operative recovery but not surprisingly was left with some post traumatic and post operative deformities of the face. In particular the nose was deficient along its dorsum where the bone had been severely crushed. The scar at the site of her tracheostomy was rather unsightly and tethered and some scars on the central aspect of her lower lip were unsatisfactory. Finally she had some hollowing around her temples due to loss of muscle and fat in the area. Therefore on the 10

^th

of July 2000 I performed an open rhinoplasty including right conchal cartilage graft to build up the dorsum of her nose, revised the scar at her tracheostomy and performed a wedge excision for the scars on her central lip. I also performed autologus fat injections into the areas of temporal hollowing to try and contour these out.

She recovered well from this with a very substantially improved appearance. I last saw her on the 14^th April 2001. … There was also a little bit of hollowing remaining in the temporal areas, particularly on the left hand side. It would be possible to either

(Page 27)

inject some more fat here or fill out the contour with some form of implant and this subject to ongoing review.

As regards possible further treatment in addition to that mentioned above it may be necessary at some point to remove some of the many titanium plates within her face however in the majority of cases these plates can be left in permanently. …She has at least 10 plates in her face and any one or perhaps even all of these could at some point develop problems and necessitate removal although as stated above I consider this quite unlikely. It may well be that she requires ongoing orthodontic and dental treatment … I do not believe that the residual scars that she has can be improved with further surgery.

Despite the extensive attempts at surgical correction Tanya does have persistent and permanent disabilities regarding her face due to the scarring particularly of the lower lip, loss of soft tissue particularly in the temporal areas and mild distortion of her overall features. … As you are aware she has other disabilities relating to her legs … ."

81 The plaintiff was reviewed by Mr SGL Hamilton (Plastic and Reconstructive Surgeon), and in a report dated 19 February 2007 he noted:

"Her temple hollowing could be improved by the use of Medpore implants, … The nasolabial fold discrepancy could be improved by a facelift procedure thereby 'flattening out one and/or both cheeks'. …

…

She has significant scarring on her face, trunk and peripheries. I would estimate, at present, the degree of permanent and residual facial scarring as approximately 30% of the figure allowed for scarring (and deformity) of her face and neck.

She has scarring on her trunk and peripheries and I would estimate the degree of permanent and residual scarring in these areas to collectively amount to a figure approximately 20% … ."

(Page 28)

82 In a report dated 5 July 2007 he explained that the temple augmentation procedure would require probably two nights in hospital and a general anaesthetic, and gave an estimate of the anticipated cost.

83 The multiple fractures and reconstruction of the left side of the plaintiff's face caused infection within the left maxillary sinus together with eustachion tube dysfunction causing blocked ears. Accordingly, she "underwent trimming of turbinates with a left intranasal anstrostomy and insertion of grommets in both eardrums at South Perth Hospital" on 23 May 2006, and that produced a good result (Report Mr Ian Bernardt, Ear Nose and Throat Surgeon) dated 24.7.2006).

Spinal injury

84 Mr Woodland treated the L1 vertebral flexion compression fracture conservatively with a spinal (Jewett) brace for three months. In a report dated 28 March 2003 Mr Woodland stated:

"Current symptoms

On assessment today Tanya confirmed to me that she made good recovery in regard to her spinal injuries. She does have residual back ache, interestingly, mainly at the lumbosacral level but no reporting of lower limb neurological symptoms. That obviously takes into account her discomfort from her lower limb injuries. She also has variable lumbar back pain. Symptoms are activity related.

In view of her very serious multiple injuries she actually became dependant on narcotic medications and Tanya told me today that she did in fact require detoxification treatment and she currently is on a second daily Bupmorphine sublingual medication programme …

Examination findings:

…

Standing posture is reasonable although there was detectable mild angular kyphosis at the upper lumbar level consistent with previous flexion compression fracture. There was pain localisation at the mid to lower lumbar level, no specific tenderness, no localised tenderness at the L1 level, no muscle spasm. She has moderate restriction of thoracolumbar movement …

(Page 29)

… At the time of my first seeing Ms Askew in Intensive Care Unit, Royal Perth Hospital there was considerable concern that she would not survive her multiple injuries or at least she would be left with severe head and facial injuries. She did indeed survive and was treated in the spinal brace (Jewett brace) for three months with follow-up xrays confirming good healing of the L1 burst fracture but with the expected degree of deformity, ie: forward flexion, kyphotic deformity of some 25º on latest xrays. Fortunately your client has not suffered any severe residual spinal symptoms although she does certainly report lumbar back ache and stiffness and variable degree of lumbar back pain depending on her level of activities. Fortunately she has not developed any lower limb neurological symptoms.

From my viewpoint in regard to future treatment, it would be extremely unlikely that she will require any surgical treatment. Up to 10% of individuals with this type of burst fracture do develop significant disabling back pain in the medium to long term, therefore coming under consideration of surgical treatment such as fusion surgery from the vertebra above and below the injured segment. She will ideally continue with some type of self motivated exercise programme to maintain general fitness, spinal mobility and muscle strength. It would be likely in my opinion that she would need to take analgesic and anti-inflammatory medications from time to time depending on the severity of her spinal symptoms.

She may come under consideration of invasive treatments such as performed by an xray specialist or pain medicine specialist and those invasive treatments might include facet joint injections and facet joint rhizotomies performed under local anaesthetic at the area of injury in the upper lumbar spine. …

… In my opinion her symptoms and above stated disability will continue in the long term."

Orthopaedic injuries

85 Mr Peter Campbell orthopaedic surgeon initially managed the plaintiff's orthopaedic injuries at Royal Perth Hospital (Reports Exhibit 4).

(Page 30)

86 These injuries comprised a comminuted fracture of the right humerus with radial nerve palsy and a comminuted tibial plafond fracture involving the left distal tibia and fibular. Her humeral fracture was treated with open reduction and internal fixation after primary bone shortening. The fracture went to solid union and apart from slight dysaesthesia in the thumb she has had a complete recovery of her radial nerve. She has not suffered a permanent disability of this injury. There is a plate still present in the right humerus which is likely to be permanent. Her left ankle injury was non-reconstructable and a primary arthrodesis was affected using an Ilizarov frame. The arthrodesis has gone on to solid union.

151 In similar vein Mr Hamilton in his report of 19 February 2007 said:

"She is capable of returning to secretarial type work but would prefer to pursue a 'helping role' through sociology. Both occupations are entirely satisfactory for her future work capacity.

She is therefore still rehabilitating."

(My emphasis.)

152 In the final analysis whilst I am satisfied that the orthopaedic injuries would not prevent her from making a return to secretarial work the psychological trauma together with the need for the necessary dental work to be undertaken constitutes the plaintiff as a "work in progress" or in the words of Mr Campbell "she is still rehabilitating". I am satisfied that as a consequence of the motor vehicle accident that the plaintiff has suffered a past economic loss and will suffer a future loss of earnings. In calculating past economic loss the plaintiff's schedule has adopted the minimum wage from time to time which I accept has an in-built discount to it as the minimum wage is widely accepted as being significantly less than what might be earned and such discount adequately reflects any adverse contingencies that the plaintiff had anyway by reason of her sight restriction.

(i) 1 July 1999 to 29 February 2000 (35 weeks) at the rate of $373.40 gross or $323.40 net per week, or $16578.96 gross or $14,358.96 net;

(Page 49)

(ii) 1 March 2000 to 21 March 2001 (55.2 weeks) at the rate of $368.00 gross or $323.09 net per week, or $13,069.00 gross or $11,319.00 net;

(iii) 22 March 2001 to 31 July 2002 (71.0 weeks) at the rate of $400.40 gross or $352.94 net per week, or $28,424.40 gross or $24,987.74 net;

(iv) 1 August 2002 to 4 June 2003 ( 44 weeks) at the rate of $431.40 gross or $368.40 per week, or $18,981.60 gross or $16,209.60 net;

(v) 5 June 2003 to 3 June 2004 (52 weeks) at the rate of 448.40 gross or $380.40 net per week, or $23,316.80 gross or $19,780.80 net;

(vi) 4 June 2004 to 6 July 2005 (56.8) at the rate of $467.40 gross or $393.40 net per week, or $26,548.32 gross or $22,345.12 net;

(vii) 7 July 2005 to 30 August 2006 (60.2 weeks) at the rate of $484.40 gross or $429.04 net per week, or $29,160.08 gross or $25,828.21 net;

(viii) 1 September 2006 to 31 June 2007 (47.4 weeks) at the rate of $504.40 gross or $434.40 net per week, or $23,908.56 gross or $30,590.56 net;

(ix) 1 July 2007 to 30 June 2008 I52 weeks) at the rate of $528.40 gross or $448.40 net per week, or $27,582.48 or $22,675.68 net;

(x) 1 July 2008 to the date of judgment 19 September 2008 at the rate of $557.40 gross or $468.40 net per week, (12 weeks), or $6,688.80 gross or $5,620.80 net;

The total past economic loss is thus $217,993.64 gross or $197,180.56 net.

Interest at 3% per annum on $197,180.56 for 9.4 years is ($197,180.56 x 3% x 9.25) $54,717.60.

Total $197,180.56 + $54,717.60 = $251,898.16

Future loss of earnings

153 Following upon judgment the plaintiff will be able to continue her rehabilitation with the necessary facial and dental work being undertaken. The evidence was that the work would be done in stages over at least two years. I expect that the plaintiff will continue her studies at Murdoch University but I anticipate that such studies will be disrupted from time to time and will extend beyond the rehabilitation stage. No doubt the study will be a challenge for the plaintiff but at the same time it will be therapeutic for her. I am of the view that this course is preferable to

(Page 50)

expecting the plaintiff to engage in paid secretarial work as soon as her rehabilitation is complete. On the other hand I don't expect that the plaintiff would remain unemployed and therefore suffer a future economic loss over the remainder of her working life to age 65 (17 years). Whilst she is having further treatment which will require periods of hospitalisation that would be disruptive if she were to go back into paid employment in a secretarial role. That is another reason for not expecting her to do that.

154 In my assessment the plaintiff should be compensated for future economic loss for a period of five years. Again the plaintiff has chosen the minimum wage rate but which again has a built-in discount for the plaintiff's prior disabilities and retained earning capacity.

155 The minimum wage rate is currently $528.58 gross or $450.58 net per week (450.58 x 5 year multiplier 226) totals $101,831.00 net.

Loss of superannuation and interest

Past loss

156 The plaintiff claims:

7.5% of gross earnings lost before 1 July 2000

(being the amount of $17,325.80) being $ 1,299.44

8% of gross earnings lost from 1 July 2000 to

30 June 2002 (being the amount of $40,423.36) being $ 3,233.86

9% of gross earnings lost from 1 July 2002 to

19 September 2008 (being the amount of $158,028.08) $14,222.53

Plus interest from 1 July 1999 to the date of judgment

19 September 2008 (18,755.83 x 3% x 9.25 years) $ 5,204.74

Total past loss and interest $23,960.57

Future loss

157 Allowing for a future loss of earnings for five years is an amount of $101,831.00. 9 per cent of this sum is $9,164.79.

Travel expenses

158 The defendant prepared a summary of transport to and from appointments (Exhibit 44). The schedule covers the period 1 July 1999 to 8 July 2001. In total that travel was 10,824 kilometres. A fair allowance at 40 cents per kilometre is $4,329.60.

(Page 51)

Special damages

159 A schedule of special damages comprising items either paid for or on behalf of the plaintiff or which remain unpaid was prepared. The schedule includes accommodation at the Jolimont unit, hospital fees, specialist and other medical practitioners' accounts, pharmacy and dental care expenses, some taxi fares and other like and no doubt necessary expenses. Outstanding medical expenses as at 4 August 2008 was $9,862.95. In total the special damages, paid and unpaid, is $45,330.41 which together with interest will be rounded up to $50,000.

Past accommodation expenses

160 The plaintiff makes a claim for the rental expenses for the unit at Fremantle which she has occupied since 5 February 2001. It was her evidence that there was the need to reside in closer proximity to the medical services which she required rather than continuing to reside at Karridale. The defendant describes the situation in the following terms:

"… attending for appointments and care was turning into a logistical nightmare … the best thing to do was to relocate to the metropolitan area".

161 Whilst I have no hesitation in accepting that in the earlier years 2001, 2002, there was a continuing need for the plaintiff to attend reviews and assessments and obtain treatment that has diminished with the passage of time. On the one hand the plaintiff may have continued to reside with the defendant at Karridale which would have necessitated the defendant bringing the plaintiff to Perth to attend those appointments. Accommodation and travelling expenses certainly would have been incurred had this been the option. On the other hand I am not able to accept that for the full period of time from 5 February 2001 it has been necessary for the plaintiff to reside in the metropolitan area solely to attend to matters arising as a consequence of the motor vehicle accident. For example it has facilitated her being able to attend at Murdoch University.

162 As best as one can do in those circumstances is to award a global sum of $30,000 to reflect what might have been the reasonable and likely expenses incurred.

(Page 52)

Summary

163 In summary therefore damages will be allowed as follows:

General damages $ 247,200.00

Future medical treatment $ 165,000.00

Future non-medical costs $ 194,555.33

Past gratuitous services plus interest $ 76,570.27

Future gratuitous services $ 40,000.00

Past economic loss and interest $ 251,898.16

Future loss of earnings $ 101,831.00

Loss of superannuation and interest – past $ 23,960.57

Future loss of superannuation $ 9,164.79

Travel expenses $ 4,329.60

Special damages $ 50,000.00

Past accommodation expenses $ 30,000.00

Total $1,194,509.50

Askew v Kidd

[2008] WADC 142

19 SEPTEMBER 2008

ASKEW -v- KIDD [2008] WADC 142