Becka v Tuppen

[2022] VCC 1378

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-19-02654

ALEKSANDER BECKA	Plaintiff
v
DEANNE KATE TUPPEN	First Defendant
and
BOHDAN WASYL	Second Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	3, 5, 9, 10, 11,12, 15, 16 and 17 August 2022
DATE OF JUDGMENT:	31 August 2022
CASE MAY BE CITED AS:	Becka v Tuppen & Anor
MEDIUM NEUTRAL CITATION:	[2022] VCC 1378

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Motor vehicle accident – duty of care – scope of duty – contributory negligence - damages

Legislation Cited:      Wrongs Act 1958 (Vic)

Cases Cited:Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88; Collins v Insurance Australia Ltd [2022] NSWCA 135; Pasqualotto v R & L Pasqualotto [2013] VSCA 21; Parrish v Specialised Australia Pty Ltd(Rulings) [2020] VSC 15; Victorian Stevedore & Co v Farlow [1963] VR 594

Judgment:                  Judgment for the plaintiff against the first defendant. Plaintiff 50 per cent contributorily negligent. General damages assessed at $135,000. Pecuniary loss damages assessed at $188,310.

Claim against the second defendant dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Richards QC with Mr J Fitzpatrick	Zaparas Lawyers
For the First Defendant	Mr W R Middleton QC with Ms J Ryan	HWL Ebsworth Lawyers
For the Second Defendant	Mr P Elliott QC with Ms E Golshtein	Solicitor to the Transport Accident Commission

HIS HONOUR:

Introduction

1Thursday, 13 June 2013 commenced as a normal workday for Mr Aleksander Becka (“the plaintiff”).  He had left for work from his home in Greenvale and drove to a tile shop in Thomastown, before driving on to the Western Ring Road (“the Ring Road”), intending to take the exit for the Princes Highway to go to Point Cook, where he was to start work as part of his trade as a tiler.

2Unknown to the plaintiff, on 13 June 2013, at approximately 9.08am, a collision occurred at Laverton, Victoria, on the exit of the Ring Road and the Princes Highway for vehicles travelling generally in a westerly direction towards Geelong (“the exit”), when a vehicle driven by the first defendant collided with a vehicle driven by the second defendant (“the primary collision”).

3The fact of the primary collision is not in dispute, although there is little evidence of how it occurred.

4At approximately 9.12am, the plaintiff drove from the Ring Road onto the exit, when he suddenly encountered a build-up of traffic caused by the primary collision.  To avoid the vehicle in front of him, the plaintiff applied the brakes on his van, causing the van to skid, lose control and collide with a stone bridge support, before flipping onto its passenger side (“the subsequent collision”).

5There is also no dispute that the subsequent collision occurred. I will discuss the circumstances of both collisions later in more detail, however, in the overall scheme of things, there is scant direct evidence of either collision.

6By Second Further Amended Statement of Claim, dated 30 June 2022, the plaintiff claimed damages from each of the first and second defendants for injuries suffered by him due to the claimed negligence of the first and/or second defendant in causing the primary collision.

7The essence of the plaintiff’s claim can be distilled down to the allegation that the primary collision caused a sudden build-up of traffic to create a hazard, and that the plaintiff was injured when attempting to avoid that hazard.

8Each of the first and second defendants denied negligence and denied the extent of injury claimed by the plaintiff. In addition, each defendant asserted that the plaintiff had been contributorily negligent.

9This proceeding commenced on 3 August 2022, as a trial by Judge and jury, when a jury of six persons was empanelled. The trial then proceeded. 

10The plaintiff gave oral evidence. His seventeen-year-old son also gave oral evidence. The plaintiff tendered an answer to an interrogatory sworn by the second defendant; four medical reports from his treating general practitioner, Dr Golam Mamun; and some recent photographs of the road at the point of the subsequent collision. That was the extent of the evidence relied on by him. 

11The first defendant tendered the plaintiff’s answers sworn on 12 July 2021 to the second defendant’s Interrogatories 1, 8 and 10.  The fist defendant also tendered an extract from an affidavit sworn by the plaintiff on 14 December 2015. The second defendant tendered photographs of the Ring Road and the exit taken on various dates in the vicinity of the primary collision and the subsequent collision. The second defendant tendered two medical reports from Dr Graeme Doig, orthopaedic surgeon, and called Dr Doig to give oral evidence.  The second defendant also played to the jury, and tendered, video surveillance of the plaintiff obtained on two days in June 2016, when he was seen to be involved in the rendering of a house in Balwyn and then some other works at a different house in Point Cook.  Finally, the second defendant called Sergeant David Ramm, the police officer who attended the subsequent collision, to give evidence of the signage on the road, applicable speed limit, general traffic conditions and his observations of the plaintiff’s vehicle.

12At the conclusion of the evidence, it was raised with Senior Counsel for the plaintiff whether there was evidence upon which the jury could conclude that the second defendant had been negligent, bearing in mind that neither the first nor second defendant were called to give evidence. 

13Upon application by Senior Counsel for the second defendant, and as conceded on behalf of the plaintiff, I directed the jury that they had to find no negligence on the part of the second defendant. Counsel for the second defendant was then excused from further involvement in the trial.

14The proceeding then concluded with final addresses from counsel for each of the plaintiff and first defendant, and then a Charge from me. 

15The jury then retired to commence their deliberations in the late afternoon of Thursday, 11 August 2022. 

16On Monday, 15 August 2022, in response to a question from the jury, I gave them a perseverance direction. Then, on Tuesday, 16 August 2022, again, in response to a question from the jury, I gave them a majority verdict direction. Despite the indication that I would accept a majority verdict of five, I was informed that the jury were unable to reach a majority verdict.

17The jury was then discharged, and after discussions with counsel, it was agreed that there would be further short submissions on Wednesday, 17 August 2022, and I would then proceed to decide the proceeding on the evidence that had been before the jury.

18Accordingly, what follows are my reasons to decide this proceeding. In summary, I conclude that there be Judgment for the plaintiff against the first defendant and that:

(a)   there was negligence on the part of the first defendant that was a cause of the plaintiff’s injury, loss or damage;

(b)   that the plaintiff’s entitlement to pain and suffering damages is $135,000;

(c)   that the plaintiff’s entitlement to pecuniary loss of damages (after vicissitudes) is $188,310;

(d)   that there was contributory negligence on behalf of the plaintiff;

(e)   that the apportionment for contributory negligence is as follows:

(i)50 per cent as against the plaintiff;

(ii)50 per cent as against the first defendant;

(f)    that, after the reduction for contributory negligence, the plaintiff is entitled to an award of damages in the sum of $161,655.

19Further, the claim against the second defendant is dismissed.

The plaintiff

20The plaintiff’s background is not in dispute.  He was born in Albania in 1962.  After finishing school, he commenced work as a tiler.  He worked in Albania as a tiler for several years before migrating to Greece, where he lived and worked, mainly in Thessalonica.  During that period, he married, before subsequently divorcing.

21The plaintiff migrated to Australia in July 2000. He met and married his second wife. His son, who is now seventeen years of age, was born in 2005. The plaintiff and his second wife separated in 2007.

22Shortly after arriving in Australia, the plaintiff commenced work as a tiler. He worked for several different tilers and improved his English before going on to work as a subcontract tiler. From approximately October 2012, he worked as a subcontract tiler for Carlisle Homes Pty Ltd, trading as Carlos Homes.

The primary collision

23It is no secret that the Ring Road is a busy stretch of road. It carries a large volume of traffic. Anyone vaguely familiar with that road, or who listens to the traffic updates on the radio, would know that accidents are common, and traffic builds up on that road for a variety of reasons. 

24The primary collision occurred approximately several hundred metres from the location where the Ring Road splits from four lanes and into two lanes for travel in an easterly direction onto the West Gate Bridge and two lanes for travel in a westerly direction towards Geelong.

25Thursday 13 June 2013 was a rainy morning, and the road surface was wet. The primary collision occurred early in the morning and the road was busy with traffic.  The Ring Road was, at the time, subject to a speed limit of 100 kilometres per hour (“kmph”).[1]  At the point of the exit, the exit road curved to the right and there were advisory speed signs of 70 kmph.[2]

[1]        According to the evidence of Sergeant Ramm, which I accept as accurate.

[2]        According to the evidence of Sergeant Ramm, although the plaintiff denied the sign was present.

26The plaintiff did not witness the primary collision. The evidence of the primary collision is limited to the second defendant’s answer to Interrogatory 4 of the plaintiff’s interrogatories, which was tendered by the plaintiff.[3] The plaintiff’s Interrogatory 4 asked “[d]escribe, as best as you are able, the circumstances of the primary collision”.[4] In response, the second defendant said:

“My vehicle was travelling in the left hand lane of the offramp from the Western Ring Road, Laverton, onto the Princes Freeway at approximately 65-75 kilometres per hour when the First Defendant’s vehicle moved into my vehicle’s lane and its passenger side collided with the front driver’s side of my vehicle, forcing my vehicle into the concrete barrier on the left hand side of the roadway.”[5]

[3]        Exhibit P1.

[4]Ibid.

[5]Ibid.

27The only other ‘evidence’ of the primary collision is confined to what, if any, inference can be drawn from the second defendant’s answer to the interrogatory as set out in Exhibit P1.

The subsequent collision

28Turning next to the subsequent collision, the evidence regarding that collision was also limited. It consisted of photographs of the Ring Road and the exit, the evidence of the plaintiff and the evidence of Sergeant Ramm.

29It is not in dispute that in the early morning of 13 June 2013, the plaintiff had driven his 2010 Toyota Hilux van to collect materials for a tiling job.  He was then driving on the Ring Road to commence work at Point Cook, intending to exit the Ring Road at the exit to the Princess Highway, in Laverton. 

30What is very much in dispute is the circumstances of the subsequent collision, including:

·        the speed the plaintiff was driving his van;

·        the view he had in front of him;

·        the distance he was from the vehicle in front of him;

·        his awareness of the traffic conditions; and

·        his reaction to the traffic conditions.

31Before setting out the factual evidence of how the collisions occurred, it is convenient to resolve the limited evidence of the layout and signage of the Ring Road and the exit.

32Firstly, the second defendant tendered two photographs taken from Google Maps and purported to be dated July 2013,[6] which depict two 70 kmph advisory speed signs on the exit. Those photographs are reproduced below.

[6]Exhibit D2-6.

33Secondly, Sergeant David Ramm gave oral evidence.  He commenced service as a police officer in 2009 and was transferred to the highway patrol in 2012.  He was working in that position as of June 2013. He gave evidence of attending the subsequent accident and said that he was familiar with the Ring Road, as it was then covered by his highway patrol area. He travelled that road daily and was familiar with the traffic conditions.

34Sergeant Ramm was asked about advisory speed signs on the Ring Road and was shown Exhibit D2-6. His belief was that those signs were present as at 13 June 2013.[7] He was asked why advisory speed signs were put on roads and said “because there’s usually a hazard or corner or something coming up that would mean you would need to reduce your speed for that hazard or corner or whatever it is”.[8]

[7]Transcript (“T”) 373, Line (“L”) 3-4.

[8]T 373, L 10-14.

35Sergeant Ramm said that, on the exit, “[t]he general traffic, if there’s a lane blocked, would slow to a crawl very quickly and bank up quickly.”[9]

[9]T 380, L 17-19.

36Sergeant Ramm was asked what the speed limit was on the road at the scene of the accident and said, “at the time it was 100”.[10]

[10]T 384, L 20.

37Sergeant Ramm also gave evidence that the primary collision occurred approximately 150-200 metres from the subsequent collision.[11]

[11]T 386, L 23-24.

38Sergeant Ramm gave his evidence in a straightforward and compelling manner.  I accept his evidence, in combination with the photographs as reproduced, to reflect the signage on the road, and the speed limit that applied.

39Next, and for completeness, dealing initially with his evidence about the speed limit and signage, the plaintiff also gave oral evidence about those issues. Unlike Sergeant Ramm, his evidence was far from clear and compelling. As of June 2013, he drove on the Ring Road “all the time”.[12] He said that 13 June 2013 was a rainy day and the road was wet.[13] He said the Ring Road split into two lanes for the exit and he was driving on the right lane.  He said the speed limit at that time was 80 kmph. He went on to say, regarding the speed he was driving at shortly before the subsequent collision, that:

“And what approximate speed were you travelling, do you say?‑‑‑70, 75.  I was not 80 because no‑one ‑ on ramps, no‑one continue that speed.  You have to follow the cars.”[14]

[12]T 101, L 10.

[13]T 102, L 27-28.

[14]T 102, L 24-26.

40I will return to the plaintiff’s evidence about his speed shortly before and immediately at the time of the subsequent collision in due course, but his evidence was that the speed limit on the Ring Road was 80 kmph. 

41The plaintiff said he was familiar with the Ring Road as he had driven down there a lot, but he denied the advisory speed signs were present when he had the subsequent collision. He said, “in June I had the accident. This sign was not there”.[15] When asked whether he had seen the advisory signs before June 2013 he said no, but that “I remember 100 per cent was not there”.[16]

[15]T 274, L 1-2.

[16]T 274, L 11-12.

42Further, in respect to the advisory speed signs shown in Exhibit D2-6, Senior Counsel for the second defendant put to the plaintiff that those signs were there on the day of the collisions as follows:

“Had you ever seen those things before going down this road?‑‑‑I said that day of the accident, that was not there.  I have seen or not, I don't ‑ how can I remember now what you're asking?  Maybe I passed three years before the accident or three years before the accident.  How can I remember if that was there or not?  But the accident ‑ the day of the accident was exit sign 80 kilometres.  Before that, I can see now, there was sign, yes, the exit sign.

There wasn't a recommended 70K sign going around that bend?‑‑‑Not that day, no.

And not before?‑‑‑And not ‑ I don't know ‑ two weeks?  I was travelling every day then.

You were travelling up and down there ‑ ‑ ‑?‑‑‑Yes, because ‑ ‑ ‑

Can I just finish, please?‑‑‑Yeah, sorry.

You travelled up there regularly from your work; is that right ‑ to your work?‑‑‑Yes.

When did you start the job?  For how many years had you been doing that?‑‑‑That road?

Yes?‑‑‑Since when I bought the house in Greenvale.

And when was that?‑‑‑In 2011.

In 2011?‑‑‑Yes.

Can you remember what was there in 2011?‑‑‑No.

You can't remember that?‑‑‑No.  It was not there for me because I didn't see it, I don't remember.  It was not there.

But you can positively tell us that it wasn't there in 2013?‑‑‑Yes, positively, 100 per cent.

You're positive of that, are you?‑‑‑Yes, correct.”[17]

[17]T 274, L 20 – T 275, L 17.

43The plaintiff’s evidence about the speed limit on the road and the advisory signs on the exit was unconvincing.  I prefer the evidence of Sergeant Ramm.  I conclude that the Ring Road was speed limited at 100 kmph as of 13 June 2013.  I further conclude that advisory 70 kmph signs were on the exit as shown in Exhibit D2-6.  Because of the location of the subsequent collision – which is not really in dispute – the plaintiff must have driven past those advisory signs before he lost control of his van.

44It is convenient to include a photograph of the Ring Road and the exit with the approximate location of various features marked on that photograph (as Annexure A), to assist in understanding the issues in this proceeding and these reasons. But to be clear, this has been prepared by me as an aid and is not part of the tendered evidence.

45Next, dealing in more detail with the plaintiff’s oral evidence of how the subsequent collision occurred, he described how it occurred during his evidence-in-chief as follows:

“And as the Western Ring Road approaches towards the Princes Highway, what happens in relation to the road? Describe the road?‑‑‑From Western Ring Road you have to merge in the right turning ‑ I don't know the name, what's that called ‑ to go to the Princes Freeway. So we was not going ‑ I was not going fast, I had distance, safely distance from the other car in front of me, the other truck, which I didn't have a lot of vision on front of me because it was back‑covered truck, until he brakes hard and suddenly, so I was ‑ I brake too hard. On that point my car slipped ‑ my back of the van slipped left. That's why my car got turned on the right, my front car got turned on the right side.  I didn't want it to hit (indistinct words) because my car starts spinning on left, so I release my brakes, the car got to the right side until I hit the wall because after that I don't recall anything, just when I woke up, got up, on the left side was my car and I was on driver's seat.

I might just go back over some of the detail.  In relation to the road ‑ I think they call it an on‑ramp?‑‑‑The ramp, yes.

How many lanes are there in the on‑ramp of the Western Ring Road onto the Geelong‑bound side of the Princes Freeway?‑‑‑Two lanes.

And which of those lanes were you in?‑‑‑I was on the right lane.

What was the nature of the vehicle that was immediately in front of you?  What sort of vehicle was in front of you?‑‑‑Big van, covered at the back, which I didn't have a lot of vision on front.

What distance back from that van were you travelling, do you say?‑‑‑I can't say (indistinct).  I was in a safety distance.

A safe distance?‑‑‑A safe distance, yes.

What's the speed limit there at that time?‑‑‑80.

And what approximate speed were you travelling, do you say?‑‑‑70, 75.  I was not 80 because no‑one ‑ on ramps, no‑one continue that speed.  You have to follow the cars.

What was the nature of the weather?‑‑‑A rainy day.

And what was the road surface like?‑‑‑It was wet.

You said you hit the wall of the bridge and then you don't remember anything?‑‑‑Not after that stage, no.”[18]

[18]T 101, L 20 – T 102, L 30.

46The plaintiff then gave evidence of his friend coming to the accident scene and picking him up because he did not wish to leave his tools in his van. Returning to the circumstances of the subsequent collision, he then gave evidence as follows:

“Before he came, had you noticed anything untoward about what was happening just a bit ahead from you on that road? What had happened?‑‑‑The cars was stopped on the right side, because I could see the left lane was moving slowly but it was moving, but not the right lane.

Did you speak to any police there?‑‑‑Yes, the police come speak to me.  He said to me, 'Are you okay?'  I said, 'Yes.'  'Do you need the ambulance?'  I said, 'No.'  'Do you need me,' he said, 'to drive you home?'  I said, 'No, my friend is coming. I call him.'

Then when your friend did come, did you go in his car and took your tools with you?‑‑‑Yes.

And then did you ‑ as you drove past, what did you see of what had happened just a bit ahead of you on the road?‑‑‑Yes, had another car accident there.”[19]

[19]T 104, L 11-25.

47The plaintiff then gave evidence that the primary collision occurred approximately 60 or 70 metres from the subsequent collision.[20] That was the extent of his evidence-in-chief. 

[20]T 105, L 26-27.

48The plaintiff was first cross-examined by Senior Counsel for the first defendant.  Immediately, the plaintiff was challenged about the issue of the speed at which he was travelling when it was put to him:

“Mr Becka, when you say to this jury that you were travelling at 70 to 75 kph, are you telling the truth?‑‑‑Yes.”[21]

[21]T 115, L 29-30.

49The plaintiff was then questioned about whether it was a car or truck in front of him and he described it as “a big truck with a covered back”.[22] He was asked whether it had brake lights on, and said he did not remember that.[23]

[22]T 116, L 9.

[23]T 116, L 14-15.

50The plaintiff was then taken to several histories given to medical practitioners who were not called to give evidence. He was cross-examined about histories given to Mr Thomas Kossmann, Mr Charles Flanc and Dr David Eaton, to the effect that he had told those doctors that he was travelling at 100 kmph at the time of the subsequent collision. The plaintiff denied he had said that to doctors.  He was then cross-examined about a history given to a Dr Michael Baynes, that he was travelling at 80 kmph, and said he did not remember saying that.

51The plaintiff was also cross-examined about the speed that the truck in front of him was travelling at, and he said “like I told you, 70, 75”.[24] He was then asked how many other vehicles were ahead of the truck that he could see around the bend, and he said “I didn’t have any vision to see, I didn’t see any cars.  Just when I got out from my van lying down, I saw the cars”.[25]

[24]T 120, L 23.

[25]T 120, L 27-30.

52Relevantly, the plaintiff was then cross-examined about the distance he was back from the truck when he first applied his brakes. That evidence is as follows:

“Doing the best you can, what distance were you from the truck ahead of you when you applied your brakes?‑‑‑10 to 15.

Metres?‑‑‑Metres, yes.

So you're 10 to 15 metres behind the truck when you put your brakes on?‑‑‑Yes.

And what speed were you doing when you put your brakes on?‑‑‑Like I said, 70, 75.

And what speed were you doing when your car flipped on its side to the left?‑‑‑Tell me again, please.

What speed do you estimate you were doing when your car hit the wall and fell on its left side?‑‑‑I said when I release my brakes, I don't recall anything ‑ how much ‑ what I hit and how I was.

My question is, what speed do you estimate you were doing ‑ ‑ ‑?‑‑‑Probably 60 after I braked, yes.

Probably 60?‑‑‑Yes.

So in 10 to 15 metres you were able to apply your brakes, reduce your speed from 70 to 75 to 60?”[26]

[26]T 121, L 11-28.

53The plaintiff was cross-examined about an affidavit that he had sworn in an earlier proceeding on 14 December 2015.  An extract of that affidavit was tendered by the first defendant.[27]  It is convenient to set out that extract as follows:

“On Thursday, 13^th June, 2013 I was driving my 2010 Toyota Hilux to work at Point Cook where I was tiling houses for Carlos Homes.  I had been to buy materials for the job.  At about 9.15 am I was driving along the Western Ring Road just after it split to intersect with the Princess Highway either towards the city or towards Geelong. I took the turn off to Geelong and was travelling around a gradual right hand bend under a bridge taking traffic from the Princess Highway to go north on the Western Ring Road. I was travelling in the right of two lanes when I saw just beyond the bridge there had been a collision and there was stationery [sic] traffic blocking the roadway. There was a police car there. I immediately braked. I do not remember what happened then. My next recollection is the front windscreen being broken and police asking me if I was alright.”[28]

[27]Exhibit D1-2.

[28]DCB 2 at page 6, paragraph 5.

54The plaintiff was cross-examined about what he had said in his earlier affidavit and how it was different to his oral evidence.

55The plaintiff was then cross-examined in respect to his answers to interrogatories, and the first defendant then tendered the interrogatories and the plaintiff’s answers to the second defendant’s interrogatories numbered 1, 8 and 10, sworn 12 July 2021.[29]

[29]Exhibit D1-1.

56He was then cross-examined about his evidence that he was unsure of the exact speed he was travelling at the time of the subsequent collision.

57Next, the first defendant’s cross-examination of the plaintiff as to the circumstances of the collision culminated as follows:

“It's not unusual, on the Western Ring Road or its exit or entry ramps, for cars to be stopped, gridlocked, is it?‑‑‑That what I seen in the entry, where you ‑ when you exit the freeway.

I put to you that the only reason you had this collision was because you were travelling too fast for the weather conditions on the day and you weren't looking at the car in front sufficiently ‑ I better break that up.  I put first of all you were travelling too fast for the conditions.  What do you say to that?‑‑‑No.

And I suggest to you that you were travelling too close to the car in front?‑‑‑That's not true.

You say it was a safe distance?‑‑‑Yes.

How come you hit the wall, if that's the case?‑‑‑Because, as I said, I released the brakes and the car goes.  I didn't want to hit the car in front of me.

Because you wouldn't have been able to stop your car in time from hitting the vehicle in front of you, could you?‑‑‑I brake, the car slips on the left ‑ ‑ ‑

Answer my question.  You would not have been able to stop your car from hitting the vehicle in front of you; correct?‑‑‑Not correct.

Why didn't you continue going forward?‑‑‑Because the car slip.  I said I didn't want to hit the car on my side.

So is it your evidence that if you hadn't have touched the brakes in the manner that you had, you would have been able to stop behind the car in front of you?‑‑‑I hit the brakes.

Answer my question, please?‑‑‑Tell me again what answer you want.

Is it your evidence that you would have been able to stop your car in time and not hit the vehicle in front if you hadn't lost control?‑‑‑Until I hit the brakes, I was in control.  I lost control when I hit the brakes.  After the brakes of the car I released, as I said, because my side of the car can hit the truck in front.

I don't know that you're answering my question.  Is it your evidence that if you had not lost control of your car, you would have been able to stop before hitting the car in front?‑‑‑Yes.

HIS HONOUR:  Sorry, I missed your answer?‑‑‑Yes.

Sorry.

MR MIDDLETON:  I put to you that the only emergency that occurred on this day at this time was your late application of your brakes.  What do you say to that?‑‑‑Tell me again, please.  I don't understand.

The only emergency that occurred on this day at the time of your accident was your late application of brakes?‑‑‑Maybe, all right.”[30]

[30]T 155, L 24 – T 157, L 10.

58Next, Senior Counsel for the second defendant briefly cross-examined the plaintiff about the circumstances of the subsequent collision, including the cross-examination about the advisory signage as I have already set out.  But, relevant to the general circumstances on the day of his accident, the plaintiff was asked whether he agreed that traffic can just bank up on the Ring Road and he said “yes”.  It was put to him that you can come around and suddenly there are cars stopped in front of you and he agreed. It was put to him that you drive at a speed and are making observations, so you do not run into, or come close to running into, the vehicle in front and he agreed with that proposition, as well as that you need to look ahead when driving.[31]

[31]T 230.

59The plaintiff was asked to indicate on a photograph[32] the approximate point where his van hit the supporting stone wall for an overpass bridge. The point identified by the plaintiff correlated with the evidence from Sergeant Ramm.

[32]Exhibit D2-5.

60That concludes a discussion of the relevant evidence of both the primary collision and the subsequent collision. I shall analyse that evidence to make necessary factual findings in due course.

61The balance of the plaintiff’s oral evidence was directed towards the consequences of the injury suffered by him, his ongoing symptoms, treatment and incapacity for work.

A short discussion of the medical evidence

62Pausing here, the medical evidence in this proceeding is limited, to say the least. 

63There are four reports in evidence from the treating general practitioner, Dr Mamun. Those reports were tendered under objection from the defendants, because Dr Mamun was unwell and provided a medical certificate to the effect that he was unable to give evidence. There are clear inconsistencies between his reports that are unexplained, a topic to which I shall return, which does affect the weight to be attached to his reports. 

64The only other medical evidence is from Dr Graeme Doig, an orthopaedic surgeon who examined the plaintiff on one occasion for medico-legal purposes. His first and comprehensive report dated 31 August 2016 was supportive of the plaintiff, but after viewing the video surveillance, he retreated from his initial opinion. In his second report of 1 February 2018, he opined that, having seen the video surveillance, the plaintiff was obviously fit to perform heavy lifting and had no restrictions with respect to bending, twisting, and squatting. Dr Doig opined that the plaintiff should be fit for his pre-injury occupation, based on the video surveillance.

Conclusions regarding the primary collision

65Dealing firstly with the primary accident, the only conclusion that can be drawn from the direct evidence is that the first defendant moved into the second defendant’s lane and a collision occurred.  Beyond that, I cannot speculate, but in my view, it is open to infer a negligent act or omission by the first defendant.  The first defendant chose not to give evidence to either rebut the second defendant’s evidence that she moved into his lane, or to explain the circumstances that caused her vehicle to move into the second defendant’s lane. Ordinarily, it would be thought to be negligent and unsafe to drive into a lane for traffic and collide with another vehicle.

66The approach to drawing inferences in a civil proceeding was set out in Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd[33] as follows (footnotes omitted):

“First, any inference must be based on facts established by admissible evidence.  Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork.  Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be ‘the more probable inference’ from those facts.  In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference.  Fourthly, in determining whether an inference is to be drawn as a matter of probability, the tribunal of fact is not required to consider each primary fact, established by the evidence, in isolation.  Rather, the Court considers the totality of those facts together, giving effect to their united and combined force.”[34]

[33] [2017] VSCA 88.

[34]Ibid at [101].

67In this proceeding, the first defendant chose not to give evidence, and I am satisfied that I can draw the inference that she was negligent by moving into the lane of the second defendant and causing the primary collision. Ordinarily, the failure to drive within her own lane and to drive into the lane next to her, and cause a collision, would tend to the conclusion that she failed to keep a proper lookout, or failed to steer or control her vehicle so as not avoid a collision. If there was some other logical explanation, then I would have expected her to give evidence. I can therefore more readily accept Exhibit P1, and the inference that flows from it, as evidence of her negligence.

68Accordingly, I am satisfied that the first defendant was negligent and failed to take reasonable care in the driving and management of her vehicle and caused it to enter the lane in which the second defendant was driving, when unsafe to do so.

Conclusions regarding the subsequent collision

69Turning next to the subsequent collision, and returning to consider the plaintiff’s oral evidence, in summary he said that, when he told doctors he was driving at 100 kmph, what he meant to describe was his speed when he was on the Ring Road proper. His oral evidence, both in chief and in cross-examination, was of driving at 70‑75 kmph at the time he braked to avoid a truck in front of him.  He said that the truck in front braked hard and he slowed his vehicle to approximately 60 kmph.  He described how the back of his vehicle lost control, causing his car to enter into a skid, which I understand him to mean a yaw-like movement, where the rear of the car moved to the left and the van became out of control at an angle that caused it to move to the right and into a stone wall that was part of a bridge support, before tipping over.

70The evidence about the braking of the vehicle in front of the plaintiff’s van is vague at best. The plaintiff’s evidence is that he did not recall seeing brake lights on the van, which begs the question – how he can describe it as braking suddenly? The probability is that, due to the build-up of traffic after the primary collision, the van in front was slowing, but I am not satisfied that there was some sudden and dramatic act of braking by the driver of that vehicle.

71Returning to the issue of the plaintiff’s speed, he had described travelling at 100 kmph to several doctors. In answering the second defendant’s interrogatories, he preferred to avoid the topic rather than provide an estimate.  In his earlier affidavit, he also stayed away from the issue of speed.

72I do not accept the plaintiff’s evidence that the Ring Road was an 80 kmph speed limited road. However, if that evidence was accepted, then if I also accepted his oral evidence of travelling at 100 kmph on the Ring Road, that would mean that he was exceeding the speed limit by 20 kmph. I interpreted his oral evidence of the estimate of his speed at 70-75 kmph shortly before the subsequent collision to be, at least in part, informed by his evidence that the speed limit on the Ring Road was 80 kmph, and that he was driving at about the speed limit. But if, in fact, what he was really attempting to convey was that he was travelling at a speed slightly less than the speed limit, then that supports a conclusion that he was more likely travelling at 95-100 kmph shortly before the subsequent collision.

73The plaintiff’s evidence about the subsequent collision is unreliable. At the risk of repetition, he is clearly wrong about the signage on the road. He had travelled past two advisory 70 kmph signs before he lost control of his van.  He gave no evidence that he decelerated at any time after driving onto the exit. The inference from his evidence was that he travelled from the Ring Road and onto the exit at a constant speed and only attempted to brake when attempting to slow to avoid the vehicle in front of him.

74Upon a consideration of the whole of the evidence, I conclude that the plaintiff was likely travelling close to 95-100 kmph when he drove onto the exit and was continuing at about that speed until forced to brake to avoid the truck in front of him. This is obviously a relevant conclusion for both factual causation and contributory negligence, topics that I shall return to.

75In summary, I do not accept that the plaintiff was travelling at 70-75 kmph when he was forced into an emergency braking situation because of a truck in front of him suddenly slamming on the brakes. The evidence tends to the conclusion that the truck in front was slowing due to a build-up of traffic, which the plaintiff misjudged at a time when he had travelled onto the exit at a constant speed of approximately 95-100 kmph.

Applicable legal principles

76Before moving to decide the remaining issues in this proceeding, by reference to the factual findings to this point, it is necessary to briefly set out some of the applicable legal principles in a broad sense, but also in a specific sense. At the commencement of this trial, Senior Counsel for the plaintiff brought to the Court’s attention the decision of the New South Wales Court of Appeal given 2 August 2022 in Collins v Insurance Australia Ltd.[35] Collins is a case in which the facts were that the driver of a motor vehicle had crossed onto the wrong side of a road and collided with another vehicle, causing a long line of stationary vehicles. The plaintiff, Ms Collins, was driving on the relevant road approximately 1‑2 kilometres from the site of the original accident when, after a long blind bend in the road, she was confronted with a line of stationary vehicles that extended from the original accident, causing her to steer her vehicle into the embankment on the left side of the road and causing it to overturn.

[35][2022] NSWCA 135.

77Whilst the relevant legislation and relevant facts are not the same as the proceeding before the Court, there is obviously some similarity in respect to how Ms Collins suffered injury and as to the applicable legal principles.

78As noted in Collins, the duty of a motorist to other road users is a well-established general principle.  In Collins, the Court said the issue, on the facts of that case, was whether the distance in time and space between the insured driver’s collision and the appellant’s accident was such as to take the appellant outside the class of road users to whom the duty was owed.  The Court concluded that it did not and that the consequences of the original collision were still in play.

79Accordingly, after a discussion with counsel, in which no objection was raised, the jury in this proceeding were directed, firstly, that the defendants (ultimately, only the first defendant) owed the plaintiff a duty of care as he was a road user. Next, the jury were directed that the consequences of the primary collision were still in play at the time of the subsequent collision. Despite some revisiting of this issue during further submissions after the jury was discharged, ultimately, I do not understand the first defendant to disagree with that legal proposition, namely that on the facts of this proceeding, the scope of the duty of care was such that the consequences of the primary collision were still in play, where the facts are that the subsequent collision occurred several hundred metres and only four minutes after the primary collision.

80What is very much in dispute is “factual causation”.  In that regard, I note that in Collins, causation was not in dispute.  This was again discussed with counsel at the commencement of this trial.  Indeed, I raised with counsel the provisions of the Wrongs Act 1958 (Vic) (“the Wrongs Act”), which Senior Counsel for the first defendant helpfully reminded me of in final submissions; in particular, the general principles regarding causation contained in s51 of the Wrongs Act.

Factual causation is made out

81In this proceeding, the first defendant contended that the speed and way the plaintiff drove his vehicle was the sole cause of the subsequent collision, so when dealing with factual causation, the negligence of the first defendant was not a cause of the subsequent collision and the plaintiff’s injury.  I do not accept that submission.

82In my view, the primary collision caused a traffic hazard by way of a build-up of traffic on the exit. That was the hazard which required other vehicles to brake to avoid a collision, which is in effect what the plaintiff was doing. The plaintiff was travelling at or about the speed limit for the Ring Road, which also applies to the exit, but he was not travelling at the advisory speed for the exit. There is no expert evidence or the like as to the purpose behind advisory speed signs, but as a motorist, we all have experience of such signs. They are often applied on bends or corners. Advisory speed signs must, of course, consider the wide class of traffic that travels upon a road. In circumstances where there is no evidence in this case as to the purpose of the advisory speed sign, or whether the plaintiff’s failure to follow it in some way is relevant to the subsequent collision, to some extent it is a “red herring”. The advisory speed sign, when seen in combination with the arrow depicting the bend in the road, must surely relate to the advisory speed for travel on the bend, but here the subsequent collision did not occur because of the characteristics of the bend; rather, it occurred because of a build-up of traffic, a hazard caused by the primary collision.

83I reject the submission that the plaintiff drove in a manner that somehow broke the causal connection between the first defendant’s negligence in causing the primary collision and the subsequent collision. On the facts as found, factual causation is made out. The plaintiff’s driving was of a type that could reasonably have been foreseen to occur. He was travelling at the speed limit, and not at such an excessive speed to break the causal chain. Further, he was not driving while distracted by some other event or driving so recklessly to break the causal chain. What he did was fail to slow as he drove in traffic onto the exit ramp, ignoring the advisory speed signs, and while driving relatively close to the vehicle in front, on a rainy day, but that is not enough, in my view, to break the causal connection. The first defendant’s negligence caused the hazard – the build-up of traffic on a busy road – and that was still in play when the plaintiff had his accident. The real issue, in my opinion, is not factual causation, but one of contributory negligence.

Contributory negligence

84Having found that there was negligence by the first defendant that was a cause of the primary collision, and that negligence was a cause of the subsequent collision (“factual causation”), the next issue to decide is contributory negligence.

85The parties each took widely differing views of the evidence and what, if any, reduction would apply for contributory negligence. The plaintiff submitted that any reduction would be low.  The defendant ultimately submitted that any reduction would be high and to the jury it was put that contributory negligence against the plaintiff could be as much as 80 per cent. Somewhat surprisingly, in further submissions after the jury was discharged, Senior Counsel for the first defendant submitted that contributory negligence should be apportioned 100 per cent against the plaintiff.

86Other than broad submissions about contributory negligence, neither party sought to address the Court by reference to any relevant case law.

87The starting point is s62 of the Wrongs Act.  The standard of care is the same as for the task of determining negligence.  Broadly, contributory negligence means the failure to exercise reasonable care against a risk of harm that was reasonably foreseeable.

88The making of an apportionment as between the parties of their respective share of responsibility for the subsequent collision and the plaintiff’s injuries involves a comparison both of culpability and of the relative importance of the acts of the parties in causing the damage. Culpability in this sense refers not to moral culpability but to the degree of departure from the standard of care expected of each of the plaintiff and the first defendant.[36]

[36]        Pasqualotto v R & L Pasqualotto [2013] VSCA 21 at [64].

89The plaintiff accepted in his oral evidence that he was familiar with the road.[37]  He was aware that it was a busy road, and that traffic could build up for several reasons.[38] He accepted there was a need to drive in a manner appropriate for those road conditions.[39]

[37]T 229, L 25-26.

[38]T 230, L 2-11.

[39]T 230, L 20-22.

90I conclude that the plaintiff was driving at 95-100 kmph onto the exit, a relatively close distance behind the vehicle in front, of no more than 15 metres (approximately three car lengths) but probably more like his lower estimate of 10 metres (approximately two car lengths). He did so in heavy traffic, on a wet and rainy day, on a road where he appreciated traffic could suddenly build up and where he effectively said in his oral evidence that it was unsafe to travel at 80 kmph on the exit. In combination, that is evidence of a failure by him to exercise reasonable care for a risk that was reasonably foreseeable and known to him by reason of his experience driving on that road.

91The question, then, is in what sum is it reasonable to apportion negligence against the plaintiff? The answer to that question is made more difficult by the lack of evidence about the primary collision and the general traffic conditions, bearing in mind that the first defendant bears the evidentiary onus regarding contributory negligence. 

92As I have rejected parts of the plaintiff’s evidence, and because of the factual conclusions already expressed, the first defendant has not only discharged its evidentiary burden to establish contributory negligence against the plaintiff, but it has also established on the evidence that contributory negligence is more than minimal. 

93In my view, it is fair and reasonable to apportion contributory negligence as 50 per cent against the plaintiff and 50 per cent against the first defendant.

The assessment of the plaintiff’s damages

94A remarkable feature of this proceeding is the paucity of medical evidence relied on by the plaintiff and the limited evidence he gave as to the effect of the injury on him.

(i)Dr Golam Mamun

95Dealing, firstly, with the medical evidence and commencing with his treating general practitioner Dr Mamun, I again note that he was unavailable for cross-examination, but that the four reports from him were tendered.[40]  In his initial report of 11 September 2013, he diagnosed a fracture of the plaintiff’s T3 vertebra and opined that a good recovery was expected, but that it might take three to six months, or more, to recover.

[40]Exhibit P3.

96In a second report, dated 8 October 2015, Dr Mamun continued his upbeat appraisal of the plaintiff’s situation and opined that the plaintiff could then do a job which was mainly sedentary in nature and did not require a long distance to travel. 

97However, by the time he reported for the third occasion on 9 January 2018, he had adopted a more pessimistic attitude.  In that report, he said the plaintiff had been unable to work since the accident and that “by considering his education and training, he is not fit for any effective job”.[41]  He said that pain medication made the plaintiff drowsy and that his quality of life had been significantly affected by back and neck pain, even unable to do his daily activities properly. He then described the prognosis as poor.

[41]Ibid.

98Finally, in a fourth report dated 15 July 2021, Dr Mamun noted that since the date of his previous report, the plaintiff had attended on eight occasions for prescription of pain medication. He again described the prognosis as poor and the plaintiff as unfit for his pre-injury duties, and not fit for any other employment.

99There is no clear path of reasoning to explain Dr Mamun’s change of opinion between the first two of his reports and the more recent reports of 2018 and 2021.[42]  The unexplained issue in his reports is why was it that the expected good prognosis within three to six months had not transpired? That is simply not explained by Dr Mamun and, also considering the fact he could not give oral evidence to explain his opinions due to his unavailability, means that I attach less weight to his opinions regarding the plaintiff’s prognosis and incapacity for work. His more recent opinions are also difficult to understand in circumstances where the plaintiff gave no evidence suggesting there had been any dramatic deterioration in his condition from between late 2015 and 2018. The plaintiff’s evidence, such as it was, suggested his condition has been constant and chronic really since the subsequent collision. 

[42]Parrish v Specialised Australia Pty Ltd(Rulings) [2020] VSC 15 at paragraph [36].

100The lack of a proper path of reasoning in Dr Mamun’s reports when they are looked at in totality mans that I attach little weight to his opinion about work capacity and the extent of the plaintiff’s incapacity, as I say, especially given the complete lack of any evidence of ‘deterioration’. But I accept he has continued to infrequently attend the plaintiff for ongoing thoracic pain and prescribe pain killers from time to time (although the last of his reports is now over 12 months old and so the evidence of treatment in that period is basically non-existent).

(ii)Dr Graeme Doig

101The only other tendered medical evidence is contained in the two reports from Dr Doig as elaborated on during his oral evidence. In his first report of 31 August 2016, having viewed the available radiology, he opined that it revealed multiple thoracic spine fractures. He described the prognosis at that time as guarded, noting that the plaintiff had several fractures in his thoracic spine. He said the plaintiff would likely have thoracic pain for the rest of his life.  He placed restrictions on the plaintiff’s ability to undertake work.

102However, as already noted, in his second report of 1 February 2018, having viewed the video surveillance, he effectively did a 180 degree turn and opined that there was very little objectively wrong with the plaintiff.

103Dr Doig was taken to his opinions during his oral evidence. He described the nature of the spinal fractures that the plaintiff had suffered, by reference to radiology. He described the fractures as simple, single anterior column factures. He said that they do heal well “and very rarely do we see a non-union in that anatomical area”.[43]  He explained that in a small percentage of patients there can be ongoing pain, but that is a subjective complaint. 

[43]T 355, L 21-22.

104Dr Doig was taken to the video surveillance and to his change of opinion. He gave evidence as follows:

Q:“Yes, the video?---

A:Assuming it was the same examinee who was in the surveillance footage, there appeared to be a complete difference in the physical capabilities and movement through the spine.

Q:So therefore what do you say about the importance of that video surveillance in the formulation of your opinion now?---

A:The patient most likely was in less discomfort at the time the surveillance footage was undertaken to allow that type of movement.

Q:His general practitioner has provided reports to this court, which are part of the exhibits, and in a report of 11 September 2013, this general practitioner, Dr Mamun, says that the plaintiff was then unfit for pre-injury work now but felt in the long-term the prognosis was ‘good recovery expected’.  Is that something that you would anticipate as a proper and appropriate opinion in the circumstances of this injury?---

A:Yes.

Q:And he thought in the short-term, it may take at that point - September 13 - three to six months or more time to recover. Again, would you agree with that as a general proposition in respect of this man?---

A:Fractures would normally heal up in around three to four months and with a splintage in the thoracic region, you're usually pain-free a lot quicker than in the cervical or lumbosacral area. Pain is a very subjective symptom, but the fractures would heal up satisfactorily - - -”[44]

[44]T 359, L 18 ꟷ T 360, L 12.

105Dr Doig was cross-examined on behalf of the plaintiff. He accepted that the fractures shown on radiology were consistent with the plaintiff being the victim of a motor vehicle accident in which there was a relatively high degree of trauma to the upper part of the back.[45] He was cross-examined about his initial opinion and his description of the prognosis as guarded but, as he said, “pain is subjective”.[46]  He agreed, though, that the complaints of pain could be consistent with the sequelae of what followed from fractures in the thoracic spine and the aggravation of degenerative change in the neck.[47]

[45]T 362, L 25.

[46]T 363, L 18.

[47]T 364, L 18.

106Senior Counsel for the plaintiff then put to Dr Doig that what was shown on the video was consistent with the restrictions that Dr Doig had placed on the plaintiff in his first report. He agreed that, in respect to the movements demonstrated on the video, it was not a situation that the plaintiff could not do those movements, but that it would be ill-advised, because they may give rise to increased symptoms that day, or the next day,[48] and he agreed it would potentially be consistent with the plaintiff’s evidence of increased symptoms after attempting the activity depicted on the video surveillance.

[48]T 368, L 6-10.

107Having considered all the evidence from Dr Doig, I conclude that the plaintiff suffered multi-level spinal fractures in his thoracic spine, consistent with a motor vehicle accident of significant force. I also accept that the fractures have healed in an anatomically aligned position. I accept Dr Doig’s opinion that, for some patients, these types of fractures can cause ongoing pain, but that that is a subjective complaint.  I also accept Dr Doig’s opinion that the activities depicted in the video surveillance were inconsistent with the plaintiff’s presentation to him and tend to an objective conclusion that the plaintiff’s level of pain and suffering and claimed incapacity for work is not as great as described to Dr Doig.

(iii)The plaintiff

108Turning next to the plaintiff’s oral evidence as to his pain and consequences and incapacity for work, again, in my view, that evidence was limited. He gave evidence of initially being in pain and unable to work. He gave evidence about having ongoing symptoms and attempts at returning to work. He described how he had been referred for pain management. He described his ongoing attendances with Dr Mamun and prescription of medication, including Panadeine Forte. 

109The video surveillance was discussed with him during evidence-in-chief. Some of his evidence was hard to understand, particularly his evidence about how he came to obtain the job shown on the video surveillance.  Relevantly, he said:

Q:“What was happening in relation to your house payments by the middle of 2016?---

A:I was two months behind with the payments, the mortgage payments - even the car finance, both. I was trying to find money - to borrow money from people I used to know on that time because I still connection with people I used to work around. So I find this young boy - I knew him from before - I call him and I said, 'I'm two months behind in my payments. Can you help me?' And he said, 'I have two jobs. Nearly finish it but I haven't got the money, I haven't got paid. My worker left overseas holidays, left for Europe. If you can come help me', he said, 'then I lend you the money.' And I agree because I didn't have a choice.

Q:All right?---

A:So I went there first day and the second day. After that he got paid, I got the money, I pay back the bank, which I was two months behind. And since then I was in more pain from what I did, which I didn't did any hard work or any - but still from my up and down on the steps, for me it was painful.

Q:What was the work that he had you do? Was it tiling work or something different?---

A:No, rendering.

Q:Rendering?---

A:Yes.

Q:Tell the jury, what does rendering consistent of? What's rendering work?---

A:Rendering the walls outside of the building.

Q:In the course of doing that work, were you lifting bags of render?---

A:Yes. That is just powder bags which you mix it after that in a bucket, 10 kilo bags.

Q:10 kilo bags. And were you climbing up and down ladders?---

A:Yes.

Q:And were you bending?---

A:My lower back I never complain. Yes, I bend my lower back. To no one doctor I have complained that.

Q:By the end of the two days you worked for him, what was the state of your neck and upper back?---

A:I was another two days laying down at home. I couldn't even be able to do anything. The pain was worsen, I want to say.

Q:Having tried that work for two days, what do you say as to whether you could continue to work in a job that required you to do physical activity like that?---

A:I wish I could continue to work because I can have my house still now. I'm not able to do. That's why I sold my house, which was my biggest decision in my life.

Q:Tell the jury why is it that you're not able to work as a tiler?---

A:Because I'm in pain all the time. I can't force my spine to do things. I'm in pain all the time. That's why I stopped working.

Q:Why couldn't you continue doing the rendering work?---

A:Even that is more painful because this is all arm work and thing.

Q:I think it's been said that someone is going to show some film of you doing this rendering work. Have you seen the film of you doing rendering work? Have you seen that film?---

A:Yes.

Q:And what was it like for you at the end of that day? What, if any, followed by a second day?---

A:The pain was increase from that because I said, again, that is up and down steps and force me to - my right arm, which is no lower back, like bending, but is upper back pain for me. This painful - more painful for me than other things, but I was forced to go there - force myself, no-one else, but I was forced to go there because I was behind in mortgage.

Q:What do you say as to whether or not you were going to see Dr Mamun for further prescriptions in the days following the work you've done? Did you have to see Dr Mamun for further prescriptions of Panadeine Forte?---

A:I used to get and I get the prescription for - when I get, for example, 20 tablets, I have for five days.

Q:    Are you still taking Panadeine Forte now?---

A:    Yes.

Q:How many do you take a day?---

A:Two, three, which I get at evening time because I don't want to drive with this kind of tablets. Even in the morning time, because I just want them for sleeping, to be more - to release the pain.”[49]

[49]T 110, L 30 ꟷ T 113, L10.

110The plaintiff otherwise gave evidence that pleasurable activities, such as indoor soccer and spending time with his son, had been curtailed. He had, however, managed to travel to Albania.

111The plaintiff was cross-examined at length about the video surveillance and what it demonstrated. It is convenient, at this point, to mention the video surveillance, starting with an acknowledgement that the surveillance covered only two days and the second defendant made an admission about video surveillance as follows:

“The admission is that the plaintiff was under surveillance on certain dates for a certain period of hours and this will be recorded on the transcript, so you'll be given these dates.

The first date is 11 February 2015, for 8.5 hours.  Next, 13 February 2015, for two hours. 21 February 2015, for 3.5 hours. 2 June 2016, for six hours. 3 June 2016, for 11 hours. 7 June 2016, for 11.5 hours. 7 December 2017, for seven hours. 8 December 2017, for six hours.

And the last one is 9 December 2017, for 5.5 hours. We call upon my learned friends for the second defendant to make that admission.

MR ELLIOTT: Your Honour, I've discussed this with my friend.  I make those admissions, Your Honour.”[50]

[50]T 340, L 24-31, T 341, L 1-6.

112In the context, then, from substantial periods of surveillance, video surveillance was only obtained and shown from only two days, being 6 and 9 June 2016.  I accept it is only a snapshot of a particular point in time and must be seen in that context. 

113Having said that, contrary to the plaintiff’s description of the work, the video surveillance depicted him to engage in what I consider to be moderately physical work. He climbed up and down ladders without any restriction. He was seen to bend, lift and carry items without any restriction. He was seen to carry buckets of water and render mix, which he estimated contained 10 litres (assumed to weigh at least 10 kilograms), including up and down ladders, without any restriction. He was seen to move his arms to perform rendering work and to carry items. He was able to hold a mixer and mix render in a bucket, using a device that would have produced some vibration or jarring through the spine.  The video surveillance was obtained over a full working day, on two occasions, and at no stage was the plaintiff seen to display any restriction.

114I have already set out his explanation for how and why he obtained that rendering job. No party to the proceeding sought to identify the man that the plaintiff was working with in the video surveillance, which I found to be surprising. No one sought to lead evidence as to how the arrangement came about for that work, other than the vague evidence of it as already set out. On any view, it is a very unusual arrangement for an unidentified person to apparently lend the plaintiff $5,000, in circumstances where the plaintiff was in financial difficulty and, allegedly, was going to assist for two days in a rendering business, without any other expectation to be paid for that work. I found parts of the plaintiff’s evidence about the arrangement with the “friend” to be unbelievable. 

115At this point, I pause to note that the plaintiff was seen to sit for extended periods during the trial of this proceeding without any obvious discomfort. The most recent report from Dr Mamun sets out very few attendances for treatment over the last several years. At best, there is some ongoing prescription of medication, but there is no suggestion that the plaintiff needs to go on a regular basis to see Dr Mamun. The plaintiff’s level of driving, as revealed by the video, was better than what he apparently had said to other medico-legal examiners, accepting that those examiners’ reports did not ultimately form part of the evidence. 

116The limited medical material, when seen in the context of what the plaintiff was demonstrated to be able to do without restriction when under video surveillance, tends to a conclusion that the plaintiff has a residual capacity for work. He has failed to provide a proper explanation as to why he has not worked since June 2016.

117Further, at an earlier point in time, his pre-injury employer found work for him as a tiling supervisor. His evidence was that that job came to an end for reasons unrelated to his injury.

118In circumstances where the treating general practitioner’s reports do not set out an adequate path of reasoning, and in circumstances where Dr Doig’s opinions were tested in cross-examination, bearing in mind that he has had the benefit of the video surveillance, I prefer Dr Doig’s opinion as to the plaintiff’s injury and level of incapacity. 

119To summarise, I accept that, in the subsequent collision, the plaintiff was subject to significant force, strong enough to cause multilevel fractures of the thoracic spine. However, those fractures have healed in an anatomically sound position.  The plaintiff’s ongoing complaints are subjective and are inconsistent with the video surveillance. I conclude that, in fact, Dr Mamun’s early opinions were correct, namely that the plaintiff had a good prognosis and, by October 2015, had a capacity for work. Even if I were to give the plaintiff the benefit of the doubt, he has failed to provide a medical explanation why he could not at least attempt lighter employment. 

(iv)The plaintiff’s son

120At this point, I also note the oral evidence of the plaintiff’s son, Ardi Becka, (“Ardi”) who is now seventeen years of age, but was only eight years of age when his father was injured. Ardi struck me as a thoroughly decent young man, who clearly supported his father. His evidence of lending his father money was particularly poignant. I accept that he sees his father regularly, but Ardi also sees his father as a man who is now less active. But, of course, the plaintiff is now sixty years of age.  Balancing against that, I also accept Ardi’s evidence that the plaintiff still has something of a social life. Ardi travelled with his father to Albania and did not suggest that trip as something that his father struggled with. His father still drives him around. Ardi is aware that his father socialises with friends, at least for coffee and the like, noting that no other lay evidence was called.

Pain and suffering damages

121The assessment of an appropriate figure for pain and suffering damages is difficult due to the limited evidence in this case. But, of course, that difficulty is one the plaintiff must bear, in circumstances where he has the evidentiary onus.

122I note the submissions that the parties made to the jury regarding the assessment of general damages. On behalf of the plaintiff, a figure of $250,000 - $300,000 was put for pain and suffering damages.  On behalf of the first defendant no specific figure was suggested, but Senior Counsel for the first defendant submitted that pain and suffering damages should be assessed in the tens of thousands of dollars. Of course, I am free to arrive at my own assessment for pain and suffering damages.

123In the subsequent collision, the plaintiff was subject to significant force and suffered multi-level thoracic fractures.  He was required to wear a back brace for many months.[51]  There has been ongoing attendance on his general practitioner on an irregular basis and the ongoing need for medication, although there appears to be some overlap with an unrelated medical condition.

[51]        According to the oral evidence of Dr Doig.

124In my view, a consideration of the whole of the evidence, such as it is, tends to a conclusion that he has at least some ongoing low-level pain in the thoracic spine, despite my reservations about some of the reliability of his evidence, especially the activity depicted in the video surveillance.  In fact, the limited conservative treatment, and the objective evidence of the video surveillance suggests a better level of activity than alleged.

125Based on a body of limited medical and oral evidence, I assess the plaintiff’s entitlement to pain and suffering damages at $135,000.

Economic loss

126It was agreed between the parties that the plaintiff had an average net weekly loss from 13 June 2013 to 11 August 2022 of $635 per week.

127It was agreed that, between 13 June 2013 and 11 August 2022, there are 470 weeks.

128It was also agreed that the multiplier to age sixty-five is 214 and that the multiplier to age sixty-seven is 490.

129The submissions were made on behalf of the plaintiff on the basis that, apart from the attempts to return to work, he has effectively been unfit for any suitable employment since the occurrence of the subsequent collision. It was said that, considering his education and background, he was effectively a manual worker who is now unfit for work. It was said that his pecuniary loss could be assessed, both past and future, on that basis, or, alternatively, some overall discount could be applied for a possible, albeit theoretical, retained earning capacity. It was also said that an overall vicissitude of 15 per cent for future losses was appropriate. 

130Counsel for the first defendant had submitted that a more reasonable scenario would be in accordance with the first two reports of Dr Mamun. That is, it would be reasonable to allow the plaintiff a period of 18 months from the date of the subsequent collision of effective total incapacity and, thereafter, he should be assessed as having a residual work capacity, but perhaps some further allowance could be made to compensate him, on a submission which I effectively understood to be akin to a Farlow[52]-type allowance for the loss of opportunity.

[52]Victorian Stevedore & Co v Farlow [1963] VR 594.

131The assessment of pecuniary loss damages in this case is also difficult due to the paucity of reliable evidence. The only reliable evidence is demonstrated in the video surveillance, namely that by June 2016, the plaintiff had a capacity to undertake at least moderately physical manual-type employment. 

132If the plaintiff was allowed an approximate period of three years of total incapacity from the date of the subsequent collision, then that is a past loss of $99,060 at an average of $635 per week.  That takes into account Dr Mamun’s opinion that by the time he reported on 8 October 2015, the plaintiff had improved to a point where he had a capacity for at least sedentary work, but bearing in mind he has no real background in sedentary work and so some further allowance is reasonable after that date to allow for the plaintiff to have been able to obtain sedentary work, or to obtain work by June 2016 such as shown in the video surveillance.

133Beyond that, it is reasonable, in my opinion, to allow the plaintiff a further sum to reflect the fact that he has some ongoing level of incapacity, that might incapacitate him for heavier types of employment, or might have meant there would be periods of unemployment or underemployment because of symptoms in his thoracic spine.  Again, undertaking very much a holistic approach based on the limited evidence, I consider it appropriate to allow the plaintiff a further sum of $105,000 for both past and future loss of earning capacity.  In arriving at that figure, I have taken a broad-brush approach, but it roughly equates to allowing the plaintiff the sum of $200 net per week from June 2016 (the end of the three-year period of total incapacity referred to earlier) through until a retirement age of 65 at the agreed multiplier of 214.

134Neither party suggested a vicissitude for the past, but they made submissions about future vicissitudes.  Having considered the evidence, I also consider a ‘usual’ vicissitude of 15 per cent to be applicable in all the circumstances to the allowance for loss of earning capacity damages. This takes account of the plaintiff’s age, work history, date of injury and the evidence about his unrelated medical condition, for which he has required several surgical procedures, as discussed during his oral evidence, but not dealt with in the reports from Dr Mamun. Accordingly, the allowance for loss of earning capacity damages of $105,000 is reduced by 15 per cent to $89,250.

135Therefore, I assess the plaintiff’s total pecuniary loss damages at $188,310.

Calculation of damages

136As I have already set out, I have assessed the plaintiff’s entitlement to an award of pain and suffering damages at $135,000.  To that figure is added the award of $188,310 for total pecuniary loss damages. Therefore, total damages, before a reduction for contributory negligence, are $323,310.

137Next, the total damages as assessed must be reduced by the plaintiff’s contributory negligence, which I have concluded was 50 per cent.  Therefore, after the reduction of 50 per cent for contributory negligence, that entitles the plaintiff to an award of damages in the total sum of $161,655.

Conclusions

138For the reasons given, I conclude that –

·        there was negligence by the first defendant that was a cause of the plaintiff’s injury, loss or damage;

·        there was contributory negligence by the plaintiff;

·        the apportionment against the plaintiff for his own contributory negligence should be 50 per cent;

·        the assessment for pain and suffering damages is $135,000;

·        the assessment for both past and future pecuniary loss damages is $188,310; and

·        after the reduction of 50 per cent for contributory negligence, the plaintiff is entitled to an award of damages in the total sum of $161,655.

139The claim otherwise against the second defendant is dismissed. I shall hear the parties as to consequential orders, including for costs.

Annexure A