Benning v Richardson
[2021] ACTSC 34
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Benning v Richardson | ||||
| Citation: | [2021] ACTSC 34 | ||||
| Hearing Dates: | 1 – 5 March 2021 | ||||
| Decision Date: | 11 March 2021 | ||||
| Before: | Elkaim J | ||||
| Decision: |
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proceedings.
(iii) I will hear the parties if any different costs orders are sought.
| Catchwords: | CIVIL LAW – NEGLIGENCE – Motor Vehicle Accident – Contributory negligence – whether the plaintiff took hold of steering wheel – whether the plaintiff was wearing a seatbelt – entering a vehicle with an intoxicated driver – damages |
| Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) Pt 7.1 |
| Cases Cited: | Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Hewlett-Packard v Subasic [2012] ACTCA 3 Joslyn v Berryman [2003] HCA 34; 214 CLR 552 |
| Mason v Demasi [2009] NSWCA 227 | |
| Parties: | Dannielle Benning (Plaintiff) Jamie Richardson (First Defendant) |
| Insurance Australia Limited Trading as NRMA Insurance (ACN: 000 016 722) (Second Defendant) | |
| Representation: | Counsel |
| A Muller (Plaintiff) J Pappas (Defendants) | |
| Solicitors | |
| Maliganis Edwards Johnson (Plaintiff) HWL Ebsworth Lawyers (Defendants) | |
| File Number: | SC 196 of 2018 |
| ELKAIM J: |
1. The plaintiff was injured in a motor vehicle accident on 1 February 2014. She was an intoxicated passenger in a vehicle driven by an intoxicated driver (the first defendant). The second defendant is the third-party insurer.
2. The plaintiff says that the accident was caused by the negligence of the first defendant and she seeks damages as a result of that negligence. The damages are claimed under the following heads: general damages, past and future economic loss, past and future medical expenses and past and future domestic assistance.
3. The effect of the pleadings is that the first defendant admits a breach of duty of care owed to the plaintiff by driving while intoxicated. He then says, primarily, that the breach
did not cause her injuries because the accident was the result of the plaintiff “taking
hold of the Mazda’s steering wheel and turning it sharply to the left” so that the motor
car veered off the road into a tree (paragraph 3 of the Amended Defence). Secondly, if the first defendant is wrong on its primary submission, his case is that there should be a substantial finding of contributory negligence because the plaintiff voluntarily departed in the vehicle when she knew or ought reasonably to have known that the driver was intoxicated. In addition, she was not wearing a seatbelt.
4. The latter assertions, if established, give rise to the presumptions of contributory negligence required by Part 7.1 of the Civil Law (Wrongs) Act 2002 (ACT).
5. The defendants acknowledged that they bore the onus of establishing that the plaintiff interfered with the steering of the vehicle.
6. An important piece of background to this case is that the first defendant was charged with the offences of culpable driving causing death and separately causing grievous bodily harm. The latter offence related specifically to the plaintiff. The first defendant came to trial in March 2016. He was convicted on both counts. A later appeal failed.
7. The parties tendered a good deal of the transcripts of evidence from the criminal trial. Their use caused me some concern, in particular if I was to be called upon to make a finding of reliability of a witness based on a comparison of testimony contained only in a statement compared to the testimony of a witness who I have observed in court.
The accident and liability
8. The plaintiff has no personal memory of the accident.
9. A Mr Glenn Dunster was a close friend. She often slept over at his home after going out.
10. On 1 February 2014, as was her normal practice, she went home after work and had a shower. After a conversation with Mr Dunster she went to his house. She drove there in her own Mazda motor vehicle.
11. There were other friends already at Mr Dunster’s house. They included the first
defendant, Mr Jackson Gardner and Mr Chris Payne. The plaintiff may have been wrong about Mr Gardner. In her evidence in the criminal proceedings she said he joined the group later (Exhibit 1, page 20). Nothing turns on the distinction.
The plaintiff did not drink alcohol at Mr Dunster’s house because her intent was to drive
the group to the Lighthouse Pub in Belconnen. Mr Payne was also not drinking because he was not feeling very well. In fact he assumed the role of designated driver to bring
the group back to Mr Dunster’s house.
13. In accordance with these arrangements the group left for the hotel and arrived there at around 7pm. The plaintiff parked her car in the car park, facing the lake. The group entered the hotel where they were joined by other friends, Mr Dan Murphy and Mr Guy Barbour.
14. The plaintiff purchased her first glass of wine. She thinks that she would have
purchased drinks for her friends and then been the recipient of a ‘shout’ from each of
them in turn.
15. The group ordered dinner and continued to drink. At one stage Mr Dunster used the
plaintiff’s motor vehicle to take Mr Payne home because he wasn’t feeling well. When
Mr Dunster returned the plaintiff’s recollection is that the previous plan was replaced
with an intent for her car to be left overnight in the car park and to go home by taxi.
16. The plaintiff is unsure of precisely how many glasses of wine she had but at some stage
in the evening she recalls drinking a ‘shot’ of a spirit. It is clear both from the subsequent
blood analysis and from the CCTV footage of the group leaving the hotel that the
plaintiff was well intoxicated when departing.17. The plaintiff said that her last memory before the accident was laughing at Mr Gardner on a bench outside the hotel in the area reserved for smokers. The plaintiff was a smoker. The plaintiff could not put a time on this occurrence. The defendants did not
dispute the plaintiff’s lack of memory of the accident but did ask a number of questions
in an endeavour to identify with more precision the time of her last memory.
The plaintiff’s next memory was waking up the following day (February 1) in hospital.
19. The group left the hotel at about 1:30am. The previous intent to take a taxi was abandoned. This is despite the ready availability of taxis at the hotel. The first defendant was the driver. The plaintiff was seated in the front passenger seat. Mr Dunster and Mr Gardner were in the rear seats.
20. As the vehicle was travelling along William Slim Drive (as it was then known) it veered to the left, exited the road and hit a tree. It had been travelling at about 65 kph. Its path can be seen in the Collision Diagram annexed to the report of Mr Urquhart (Exhibit 3).
21. Mr Dunster died in the accident. The first defendant had a blood alcohol reading of about 0.190grams per 100ml of blood (measured about two hours after the accident). This is of course very high.
22. The defendants assert that the plaintiff was not wearing a seatbelt in the accident, primarily because the plaintiff struck the windscreen with her face and probably also her left shoulder. Most confusing is the observation that the front passenger seatbelt was done up. This can be seen in Exhibit C. The plaintiff said her normal habit was to wear a seatbelt. How it would come to be clicked in place is a mystery. If the plaintiff did wear her seatbelt there is no logical reason why it would have been in this condition.
23. The first defendant gave evidence. I also had available the transcript of his evidence in the criminal proceedings. Although his evidence covered a number of topics, the crucial area of importance to this case concerned whether or not the plaintiff had interfered
with the first defendant’s control of the vehicle by taking hold of the steering wheel.
24. In this specific regard I do not accept the evidence of the first defendant. My first observation about the first defendant was that he was a person who had a casual disregard for the dangers of driving under the influence of alcohol. This is well illustrated by the following passage from his evidence in the criminal proceedings:
MR HICKEY: Yes. Sir, why do you think there are laws in place to prevent people from driving with an alcohol blood concentration above .05?---I believe it's dangerous.
Why is it dangerous?---Because you're over the legal limit.
Anything else?---Not that I can think of at the moment.
Because you know, don't you, that your risk of crashing goes up significantly? ---Yes.
You know that?---I found that out yesterday.
So you're saying you didn't know that at the time?---No.
You would know from your own experience that when you go out and get drunk that alcohol impairs your decision-making?---Yes.
It impairs your coordination ?---Yes.
It impairs your vision?---Yes.
It impairs your problem-solving ability?---Yes.
It impairs all the sort of things that you would need to drive a car?---To some degree, yes.
You would know, then, wouldn't you, that driving when you're heavily intoxicated can't be safe?--Yes.
25. The first defendant works as a concreter, an occupation he was following at the time of the accident. He agreed he was a young and strong man involved in heavy labouring work. He also agreed that he was much stronger than the plaintiff.
26. There are a number of reasons for my rejection of the first defendant’s evidence about
the steering wheel:
(a) I found the first defendant to be a most unimpressive witness. This is not based on his demeanour but rather on the manner in which he gave a number of answers, especially those in which he seemed to treat offences of drink-driving as more an indication of bad luck at being caught than having any element of the protection of road users. (b) The first defendant said that the plaintiff “grabbed the steering wheel and ripped it out of my hands”. I simply do not accept that the plaintiff was in a position to
so strenuously take hold of the steering wheel and turn it so quickly and so
strongly that it would have been “ripped” from the hands of the first defendant.
(c) The first defendant was not averse to lying. When the police arrived he informed an officer that he had not been the driver of the vehicle. He even pointed to the direction in which the ‘phantom’ driver had fled.
(d) He later, but still at the scene, admitted to police that he was the driver but said nothing about the plaintiff taking hold of the steering wheel. He explained this omission by suggesting that he did not wish to say anything to the police before talking to a lawyer. This was because on a previous occasion the police had “turned things around”.
(e)
But he admitted that he knew he was in serious trouble. He was intoxicated and his close friend was very seriously injured. One would have thought that any exculpatory explanation would have been given to the police. He did tell the police that he wished to speak to his lawyer, but as is evident from the transcript of the conversation with the police officer, having told the officer that he wished to speak to a lawyer, he nevertheless continued to speak to the police.
(f) I accept that the first defendant was intoxicated, that he was distressed as his friend’s life ebbed away beside him and these facts might have influenced what
he said. But surely this was the time to tell the police that the accident was not
his fault.(g) There is evidence in the criminal proceedings to the effect that the first defendant told two persons who he knew, and who had arrived at the scene of the accident, about the plaintiff’s asserted actions. However a close scrutiny of
this evidence does not substantiate the assertion.
(h) One of the persons was a Mr Mitchell Bannink. He said that the first defendant had said the steering wheel was ripped out of his hands. This does not necessarily imply that the ‘ripping’ was caused by another person.
(i) It cannot be discounted that the first defendant, in his drunken state, with the vehicle suddenly going to the left and hitting the curb and then travelling into the tree formed a perception in his mind that the steering wheel had been ripped from his control.
(j) When, in cross-examination, it was put to Mr Bannink that the first defendant had said “she yanked the wheel out of my hands”, he said he could not recall
that having been said.
(k) In his evidence before me, the first defendant said he could not recall what he had said to Mr Bannink. (l) The first defendant also said he had told Mr Dunster’s parents on the day of the funeral about the plaintiff’s involvement in the accident. However he had not told
them on an earlier occasion, claiming that he was effectively under orders from his solicitor that he not divulge any detail. Again it seems extraordinary that he
would not have taken the first opportunity to tell his good friend’s parents that
he had not been the cause of their son’s death.
(m) I note here that there was a conflict between the parents and the first defendant about another matter. The parents said that the first defendant had told them that all the persons in the motor car had asked him, after he clipped a kerb, to stop driving. The first defendant’s version was that he had only told them that
the plaintiff wanted him to stop driving. This is an example of where I am called upon to decide between the evidence of a witness I have seen and that of witnesses I have not seen.
(n) I can only say, that based only on my overall rejection of the first defendant’s evidence, I would prefer the contradicting evidence about this issue.
(o) While the expert reports do not discount the possibility of interference with the steering wheel, they certainly do not raise the occurrence beyond a possibility. I will return to these reports below. (p) The first defendant submitted that it was unlikely that he would not tell the truth in these proceedings. He had been convicted in the criminal proceedings and served his sentence. Why then should he not now be frank, posed his counsel. There are numerous answers. They include: He would expose himself to the possibility of a prosecution for perjury or he wished to maintain his ‘no-fault’
status, in particular to people like Mr Dunster’s parents. Perhaps he believes his
version on the basis that it is his only explanation, developed through his
drunken and guilt-ridden stupor, for how the accident occurred.
27. I cannot say exactly why the vehicle suddenly turned to the left. My inability to explain
the motivation or reason for the first defendant’s story is not the point. The important
question is whether I accept the first defendant’s assertion that the plaintiff “ripped” the
steering wheel out of his hands and turned the vehicle to the left. I do not.
28. Combined with my views (below) on the expert evidence, the result is that I am not satisfied that the defendants have discharged their onus to establish that the plaintiff interfered with the steering of the vehicle. It follows that I am satisfied that, subject to contributory negligence for other reasons, there will be a verdict for the plaintiff.
29. Each side relied on the evidence of an expert reconstruction engineer. Dr Rechnitzer prepared a report dated 13 April 2020 (Exhibit B). He was cross-examined. Essentially his report is directed at the question of whether or not the plaintiff might have taken
hold of the steering wheel and dictated the vehicle’s path.
Dr Rechnitzer said that “…it is not possible to form any definitive conclusions of what
occurred inside the vehicle cabin to cause the sharp steering turn to the left and
resulting yaw and loss of control, leading to the impact with the tree” (page 42).
He explained, in his evidence, that a ‘yaw’ refers to a circumstance where the rate of
steering exhibited by a vehicle exceeds the speed the wheels can cope with. This leads to a side slipping of the vehicle in excess of the path that it would follow under normal steering. He agreed that the evidence in this case showed that there had been a degree
of yaw in the vehicle’s path to the tree.
32. Dr Rechnitzer also agreed that a yaw might be induced by a sudden input to the steering mechanism. He said however that this was not the only reason a vehicle might go into a yaw.
33. Dr Rechnitzer was at pains to emphasise the importance of steering in controlling a vehicle. He said that the steering wheel was the most frequently used part of the vehicle and was an implement which if interfered with, unless the drivers hands were completely off the wheel, would lead to an instantaneous reaction and resistance to the interference.
34. Dr Rechnitzer had conducted a somewhat vague and impractical experiment with a stationary vehicle. He conceded that the capacity of the vehicle to turn would have been greater if the vehicle was moving but he nevertheless was satisfied that it was unlikely that the description given by the first defendant of the steering wheel being
“ripped” from his control was correct.
The defendant’s expert was Mr Urquhart. His conclusion (at page 63) on the steering
wheel issue was that:
There is no physical evidence inconsistent with the Defendant’s version of events that the
plaintiff applied the left-hand steering input.
36. I will refrain from concluding that the above wording is contrived to promote a
conclusion favourable to the defendants’ case. Ultimately I think his conclusions are no
different to those of Dr Rechnitzer which allow for the possibility, but no more, of the plaintiff reaching over and taking hold of the steering wheel. As Mr Urquhart said, in his supplementary report at page 5:
It appears both authors agree that there is no physical evidence which can be used to assist in ascertaining the source of the left-hand steering input which led to the loss of control and vehicle departure from the road.
(Emphasis in original)
37. Mr Urquhart made two points during his oral evidence which I think assist, if only to a
minor degree, the plaintiff’s case:
(a) In order to achieve the extent of the turn shown by the vehicle and the immediate entry into a yaw, the steering wheel would have to have been moved through 90° or more. This is a significant movement which in my view would have been extremely difficult, bearing in mind the plaintiff’s position to the side of the first
defendant, even if she had leaned over, for the plaintiff to have achieved. I note that in the criminal proceedings an expert, Mr Hall, called by the first defendant in his defence, thought 90° was a minimum and a possibility of up to 120° was suggested.
(b) Following the entry into the yaw, Mr Urquhart said that the path of the vehicle indicated efforts to correct the continuation and extension of the yaw. This could have been achieved by application of the brakes, or the steering wheel, or both. To the extent that it was achieved, albeit unknown, by the steering wheel, this would suggest that the driver had his hands on the wheel in an attempt to straighten the vehicle’s path.
38. In relation to the seatbelt issue, Mr Urquhart concluded (at page 63):
It is highly unlikely the Plaintiff was wearing her seatbelt at the time of the collision.
He said that the main reason for his conclusion was that the plaintiff’s head had hit the
front windscreen. He did not think this could have occurred if the plaintiff had been wearing her seatbelt. To some degree this conclusion is a matter of common sense. It was certainly not contradicted by Dr Rechnitzer who did not comment on the seatbelt issue.
Taken with the seatbelt being in its clasp, the plaintiff’s head striking the windscreen, is
sufficient for me to conclude that the defendants have established that the plaintiff was not wearing a seatbelt when the collision occurred. The intoxicated state of the plaintiff, as demonstrated by her blood alcohol reading and her apparent state depicted in the CCTV footage suggests she was in such a condition that she may not have given consideration to wearing the seatbelt.
41. In further support of its contention is, as the defendants pointed out, that the seatbelt in the other positions (other than the centre back seatbelt) were hanging loosely, consistent with having been stretched to their limit and remaining in their extended position. The plaintiff pointed out that the front passenger seatbelt also appeared to be somewhat loose. I agree with the defendants that this appearance is probably caused by the twisting of the seat which led to the slackness of the belt.
42. Sergeant Dauth, in his statement dated 21 August 2014 (Exhibit F), said the following
under the heading of “SEATBELTS”:
The centre rear seat belt was locked in the retracted position suggesting it was not worn at the time of the collision. All other seatbelts engaged and loading marks on their fabric suggested all were in use at the time of the collision.
43. The defendants submitted that the above passage should not be read to suggest that
the plaintiff’s seatbelt was being used when the accident occurred; rather the meaning
of the words was that the seatbelts had been in general use. The plaintiff did not
positively suggest a contrary meaning but did rely on the Sergeant’s wording as
ameliorating the strength of the defendants’ case on the plaintiff’s seatbelt. Regrettably
neither side thought it necessary to call Sergeant Dauth to ask him what his words were
intended to convey.
I agree with the defendants’ position. Although a simple reading of the words might
suggest that the seatbelt was being used “at the time of the collision” I think the opposing interpretation is preferable and consistent with the Sergeant’s comments
about the centre rear seatbelt, which presumably was very rarely used.
45. There is no expert evidence on the effects of not wearing a seatbelt. However it must follow that if the plaintiff had not struck the windscreen there would have been no injury to those parts of her body that came into contact with the windscreen. Her shoulder injuries may also have been less severe, although it is a mystery as to how pieces of stone and gravel came to be embedded in her shoulder. The first defendant said that he opened the door and dragged the plaintiff out of the vehicle. She was never thrown onto the ground. The defendants suggested that the shoulder injury was probably caused by the plaintiff hitting the windscreen and then the injured shoulder was dragged across the ground by the first defendant. The already wounded shoulder, now bleeding,
then by some sort of adhesive action, attracted the leaves and gravel that the plaintiff’s
mother spoke about.
46. The above debate is of course pure speculation. It is however likely that the shoulder injury was caused, at least in part, by the plaintiff striking the windscreen. Accordingly, like the head and facial injuries, it will need to be taken into account in the assessment of contributory negligence arising from the failure to wear a seatbelt.
47. However there is no suggestion that the injuries sustained by the plaintiff to her ankles would have been any different had she been wearing a seatbelt.
48. There are effectively three matters to be considered in respect of liability:
(a) Did the plaintiff take hold of the steering wheel? Answer: No. (b) Was the plaintiff wearing a seatbelt, and if not, did this amount to contributory negligence? Answer: The plaintiff was not wearing a seatbelt and the failure to do so contributed to her injuries. (c) Should a finding of contributory negligence arise from the plaintiff travelling in the vehicle with an intoxicated driver? Answer: Yes. 49. The final liability issue to arise is what degree of contributory negligence should be attributed to the plaintiff. As noted above, presumptions of contributory negligence arise from the Civil Law (Wrongs) Act. These presumptions are rebuttable but that has not occurred in this matter.
50. In respect of the seatbelt the plaintiff submitted that the defendant had failed to put forward any evidence as to the difference the wearing of a seatbelt would have made
to the plaintiff’s injuries. That observation is correct, but as I have referred to above,
the evidence is clear that the plaintiff would not have struck the windscreen had she
been restrained.51. Although submitted to the contrary by the defendants I do not agree that the same
conclusion can be reached in respect of the plaintiff’s ankles. The absence of any
evidence whatsoever, let alone expert evidence, does not allow for such a conclusion.
52. As for the entering of the vehicle with an intoxicated driver, the plaintiff originally submitted that I could take into account her level of intoxication at the time she entered the vehicle. In other words, if she was so drunk that she could not appreciate the danger then there should not be a finding of contributory negligence. By the end of the case however, the plaintiff agreed that this was not a viable submission, especially when one has had regard to the test as posed by McHugh J in the High Court in Joslyn v Berryman [2003] HCA 34; 214 CLR 552 at [38]:
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 reason of the driver's intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication.
53. The first defendant was very drunk. The plaintiff had been drinking with him through the night. There can be no suggestion that she had not been in a position to know that he was intoxicated and that his capacity to control a motor vehicle would have been severely impaired. In addition, she was aware that there were taxis present and the option to get home by a safe means was available. Taking these factors into account, the plaintiff, as a reasonable person, would have foreseen that, entering as a passenger in a car driven by the intoxicated first defendant, would expose her to a risk of serious injury.
54. Although there are effectively two distinct acts of contributory negligence (failure to wear a seatbelt and being with an intoxicated driver) I think it is appropriate to combine the two acts in arriving at an overall percentage of contributory negligence.
55. The plaintiff submitted that the appropriate range for contributory negligence was 15% to 20%. The defendants said that 50% was the starting point. In my view these ranges are both at the respective extremes of a proper finding. In my view the correct percentage is 35%. In reaching this percentage I have taken into account that the
plaintiff’s most enduring (in fact lifelong) injuries were to her ankles. These injuries are
not relevant to her not wearing a seatbelt but do play a part in her getting into the vehicle
with an intoxicated driver.
Before the accident
56. The plaintiff was born in 1991. She was 22 when the accident occurred. She was a public servant in full-time employment with Canberra Connect at a level called APS 3. She was happy in her work and hopeful of a promotion to APS 4. She has worked in an acting APS 4 position and has continued to do so. Her pre-accident work involved being a concierge both for the public and persons within the licensing department.
57. The plaintiff enjoyed her work. She was paid $57,000 per annum gross plus superannuation.
58. The plaintiff lived with her parents and her brother. She had previously lived ‘out’ while
in a relationship but this ended towards the end of 2013. The distress caused by the ending of the relationship led her to visit a GP, but she soon recovered from her upset.
59. When living at home the plaintiff contributed to the family’s chores by doing the
washing, internal cleaning and sometimes helping her mother with cooking. Her
mother’s evidence to some degree diminished the extent of the plaintiff’s assistance,
limiting it, other than washing clothes, to the plaintiff’s own room and bathroom.
In relation to the plaintiff’s car, also based mostly on her mother’s evidence, it was
usually washed by the plaintiff’s father but the plaintiff cleaned the inside from time to
time.
61. The plaintiff had a diagnosis of scoliosis when she was about 10 years old. She continued to have some pain in her back from time to time until the accident. There is no suggestion that it affected her work or social activities.
62. The plaintiff ran or walked every day. Her social life included going out on Friday or Saturday evening with friends. She would usually drink white wine and have dinner with the group. She practised the apparently widespread, but difficult to understand, habit of drinking for the purpose of getting drunk.
After the accident
63. The plaintiff was admitted to Canberra Hospital. She was intubated. She had been unconscious for a short period after the collision. She was placed into an induced coma following her arrival at the hospital. The plaintiff woke up in a good deal of pain, in particular in her ankles, her temple, her shoulder and her right hand. She found it hard to breathe for some time. To this end she underwent treatment for a right tension pneumothorax by reinflation of the lung.
64. The plaintiff had surgery to her right ankle which included the insertion of ‘metalwork’.
The surgery was to repair a fracture of the medial malleolus. She was discharged from hospital after seven days, on 7 February 2014.
An initially undiagnosed fracture of the plaintiff’s calcaneus later came to treatment,
ultimately with a left subtalar fusion on 11 May 2017.
66. The discharge from hospital was early because she wished to attend the funeral of Mr Dunster. She then returned home where arrangements had been made for various items of equipment, such as a shower chair, to be available.
67. The plaintiff then spent a lot of time in bed. She couldn’t do very much and needed help
to be taken to the toilet and bathroom. Her family took over her chores.
The path of the plaintiff’s recovery can be seen in the chronology which sets out an
effective timeline of the treatment she received (Exhibit D).
69. The plaintiff also had surgery on her left eyelid in 2020 to remove a shard of glass. The plaintiff developed migraines but these seem to have been largely addressed by Botox injections every three months.
70. The plaintiff did eventually get back to work but had a good deal of time off when in pain. She found it difficult to be a passenger in a motor vehicle but, perhaps a little counterintuitively, this condition has been ameliorated by her working as a driving licence inspector. Her most recent work, still for the same employer, has been the auditing of driving instructors.
71. The plaintiff is now in a relationship with a man who lives in Bungendore. She spends a good deal of time at his home and intends to take up residence with him. This will affect the amount of time she spends doing housework. She has returned to her previous tasks but feels pain in her ankles, in particular when using a vacuum cleaner or a mop.
72. The plaintiff starts the day by taking two Panadol tablets, which might be supplemented by another two or four on particularly bad days. These occur about twice a week.
73. It was suggested to the plaintiff that she had stopped taking painkillers by January 2020. The source of the suggestion is a report of Dr Kulisiewicz dated 29 January 2020 in which this history is apparently given. The plaintiff said it was not correct. I accept the plaintiff both because I generally accept her evidence and because it is entirely consistent with the nature of her injuries and complaints that she has continued to require a degree of analgesic relief.
It is a measure of the plaintiff’s stoicism that she is able to cope with medication of this
level. All too often courts hear of evidence from plaintiffs taking large quantities of very powerful painkilling medication. I have also taken into account the warnings given by Basten JA, concerning medical reports, in Mason v Demasi [2009] NSWCA 227 at [2] and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8].
The plaintiff’s use of painkillers was confirmed by her mother, Mrs Michelle Benning. I
have already referred to her evidence in relation to pre-accident housework. Mrs Benning was an overwhelmingly believable witness. I accept entirely her evidence about her assistance to the plaintiff following the accident, although, through no fault of her own, some caution must be taken with her assessment of the hours taken. She was only asked to consider this issue some two weeks ago.
Mrs Benning confirmed her daughter’s evidence about continuing pain, especially in
the left ankle, and for example, when driving and needing to depress the clutch of the vehicle. The evidence of early degenerative change in the left ankle is consistent with continuing, and enduring, pain.
77. Other than the painkillers the plaintiff took anti-depressant medication for about four months and a drug called Pristiq for a short period. The latter is for anxiety. The plaintiff does not currently receive any psychological treatment despite advice to the contrary. She feels that she does not wish to talk about matters that she simply cannot remember.
78. As a general statement I accept the plaintiff in her description of her injuries and their effects upon her. Indeed I was impressed by her understatement of the pain she must have suffered from injuries of the sort that she sustained.
Damages
There is little medical contest between the parties as to the nature of the plaintiff’s
injuries. However the translation of those injuries into damages drew some diverse
submissions from each side.
Consistent with the commonality of expert opinion, only two of the plaintiff’s medical
experts were required for cross-examination. They were Dr Le Leu, an occupational
physician, and Mr Woolley, an occupational therapist.
An area of contest that emerged concerned the causation of the plaintiff’s migraines
and their treatment. The plaintiff’s evidence was that they commenced about two years
after the accident. This is confirmed by notes from the Palmerston General Practice. However some of the histories to doctors suggest the immediate, or fairly immediate, onset of the migraines. Unfortunately neither party brought to the attention of either of the two doctors cross examined, the possibly incorrect history that they had received. Had they done so the doctors might have commented on whether they remained of the view that the migraines were caused by the accident.
82. The plaintiff did not have migraines before the accident, she suffered a significant knock to her head and no other cause has been suggested for the onset of the migraines. I am satisfied that they were caused by the accident.
I note that in cross examination of the plaintiff, her assertion that she became “blind” at
the onset of her migraine headaches was treated with some scepticism by the cross
examiner. However this history was given to Dr Le Leu in 2018. Although the plaintiff’s
evidence was that the headaches started about two years after the accident, Dr Le Leu
had no difficulty in attributing their cause to the accident.84. The same may be said of Dr Dias, the occupational physician retained by the defendants. In his report of 19 November 2018 Dr Dias said:
In my opinion, Ms Benning's current disabilities, relative incapacity, and need for treatment, remains causally related to her involvement in the subject accident. Ms Benning did not have any significant pre-existing injuries or conditions affecting her ankles, or head prior to the subject accident of 1 February 2014. She has continued to suffer from ongoing documented symptomatology and disabilities relating to these injured regions over the course of the past 57 months.
In my opinion, the causal chain stemming from the subject accident to Ms Benning's current conditions affecting her right and left ankles and head remains unbroken. I note that Ms Benning has sustained various other injuries, as a result of her involvement in the subject accident, affecting her lungs, chest wall, abdomen, neck, mid back, and lower back. These injuries all appeared to have clinically resolved by the time of my assessment of Ms Benning on 13 November 2018.
85. In relation to continuing problems Dr Le Leu felt that if the plaintiff could continue with her current employment there would be no need for her to retrain. However he emphasised that the left ankle would not recover and was likely to deteriorate with time. He also thought there would be deterioration in the right ankle but at a much slower pace.
86. Dr Dias had an arguably more pessimistic view of the future: He said:
In my opinion, Ms Benning is likely to have reached maximum medical improvement in relation to her symptomatic conditions affecting her right and left ankles, and head. At 57 months post accident, in my opinion, Ms Benning's prognosis for improvement with respect to her injured regions from a symptomatic perspective would have to be judged as relatively poor. It is doubtful that Ms Benning's conditions will recover to the point where she is entirely symptom-free or free from functional compromise on a day-to-day basis in the foreseeable future.
…
In my opinion, Ms Benning is likely to suffer from the following disabilities, with respect to her compensable physical injuries stemming from the subject accident on an ongoing basis into the foreseeable future:
• Ms Benning should avoid walking for greater than 30 minutes at a time. • Ms Benning should avoid standing for greater than 30 minutes at a time. • Ms Benning should avoid walking on an uneven ground for a prolonged period of time. • Ms Benning should avoid any tasks that involve ladder climbing, or repetitive staircase climbing. In my opinion, the above-mentioned disabilities for Ms Benning's employment and functional capacity are likely to persist indefinitely into the foreseeable future, given that her conditions are likely to have reached maximum medical improvement at 57 months post accident date.
In his December 2019 report Dr Le Leu said that “nothing further can be done for the
previously diagnosed injuries”. He did raise the possibility of attending a pain
management clinic, but he was not “especially optimistic”. He again said that the
plaintiff was fit for her current employment but added that she was not fit for work of
“a moderately to highly physical nature”.
88. In relation to the Botox treatment, the defendants submitted that there was no medical evidence to justify its continued use. However the plaintiff said that the use of the Botox helped the migraines. She received the treatment every three months because that was the duration of the effect of each injection.
89. The doctors were informed about the Botox injections. Not one of them said the treatment was not efficient or effective.
90. I can see no reason why the Botox injections should not continue if they help the plaintiff to avoid the significant pain and limitations that flow from the migraines. In my view the treatment is reasonable and should be allowed. I do have some difficulty, because of
the absence of evidence, with allowing the treatment for the rest of the plaintiff’s life.
91. Dealing first with general damages, the plaintiff suggested $160,000. The defendant said $130,000. The plaintiff had severe injuries at the outset. She has had continuing pain and surgical intervention since. It is now seven years since the accident and she still has persistent pain, in particular in her left ankle. Because of the degenerative change this pain is likely to become worse in the future. There is also the possibility of further problems with the right ankle.
92. In my view $160,000 is a conservative estimate. I allow it. The plaintiff has claimed interest at 2% on half of this amount. The defendants say the interest allowance should only be over four years because there has been no explanation for the delay in bringing the proceedings. The plaintiff conceded that there was no available explanation for the delay to the start of proceedings until 2018. The criminal proceedings however took place in early 2016 with the appeal being finalised in November of the same year.
93. I have a discretion in respect of the effect of delay on interest, as discussed in Hewlett- Packard v Subasic [2012] ACTCA 3, from [95]. I think it was reasonable for the plaintiff to await the completion of the criminal proceedings. However the lack of explanation for not starting the civil proceedings within the next two years enables me to exercise my discretion to not allow interest for the full seven years. The defendants submitted that even after the commencement of proceedings the plaintiff was guilty of delay. Other than a global, and patently incorrect, submission that defendants are never responsible for a delay in proceedings, no specific evidence was put forward.
94. In the exercise of my discretion I think interest should be allowed for five years. It should be allowed on half of the general damages at a rate of 2%. This produces a figure of $8,000.
95. Past out-of-pocket expenses were agreed, as was the interest on the unpaid component ($51,964.75 and $206 respectively).
96. For future medical expenses the plaintiff claimed $67,000. This was met by a
suggestion of $10,000 from the defendants. The plaintiff’s figure is probably as
speculative as that of the defendants. The plaintiff will no doubt continue to take painkilling medication and will need the Botox injections at least for some time. However while I have no doubt that she will require physiotherapy and psychological treatment at different times in the future, I am not convinced that she will take up all of the recommendations.
97. The plaintiff has a medium life expectancy of about 56 years. Her ankle injuries are permanent. The left ankle will get worse as may the right ankle. In other words the plaintiff will require medication and treatment for the rest of her life. I think $28,000 is appropriate. Of this amount, $3000 is specifically referable to a Therapod Recliner chair. I will return to the justification for this expense below.
98. The plaintiffs claimed $37,220 for past economic loss. This was based on the table in Exhibit G in the letter dated 3 March 2021. The 137 days was calculated at a rate of
$879 net per week, which was the plaintiff’s agreed wage at the time of the accident.
In addition the plaintiff added 13 weeks at half pay following her left ankle surgery in
2017. The defendants proposed a figure of $15,922.23 based on 112 days off work.99. The defendants submitted that the table just referred to was unreliable because it did not specify whether or not the leave was related to the accident. Further the 13 weeks
claimed after the 2017 surgery was not based on any evidence. The plaintiff’s evidence
had been that she had four weeks off work.
100. It is difficult, if not impossible, to discern from the table which leave is related to the accident. On the other hand it is entirely reasonable that having regard to the extent of
the plaintiff’s injuries that she would have exhausted her sick leave and needed to make
use of other forms of leave, such as annual leave. I think I can take a discretionary approach here based on the plaintiff having needed a good deal of the leave claimed although not being in a position to state the extent with precision.
101. In my view a figure of $25,000 is an appropriate and reasonable conclusion having regard to the points made by both sides. Applying the same period of interest, but at 3%, I allow interest in the sum of $3,750.
102. In addition I allow lost superannuation benefits on the $25,000 at 15%. This is also $3,750.
103. In relation to future economic loss the plaintiff claimed $91,102, based on two weeks
per annum to age 70. There is a fundamental flaw in the plaintiff’s calculations.
Although styled as a “buffer” the total figure is a simple calculation of two weeks per
annum at $1,111.00 per week for 41 years. The plaintiff has omitted to discount future
economic loss on the 3% tables and also to reduce the total for vicissitudes.
The defendants allowed a buffer of $10,000 based on “occasional/sporadic ankle pain”.
The use of the term “sporadic” is far from applicable to a person with daily pain likely to
increase in the future.
Although the plaintiff’s current employment is primarily sedentary, she said she enjoyed
working as a concierge which no doubt involves being on her feet for extended lengths of time. Even in her current acting position of auditing driving instructors she will be in and out of motor vehicles on a frequent basis.
106. In the defendants’ favour is the stoic nature of the plaintiff who I envisage will do her
very best to maintain her employment and minimise time away from work.
107. The plaintiff’s current net weekly wage is $1050. In my view 1.5 weeks per year for the
balance of her working life at her current wage rate will be reasonable compensation. I will reduce the total by 15% for vicissitudes. On the 3% tables, the calculation is (1,575 ÷ 52) x 1224.2 x .85 = $31,517.26.
108. Future lost superannuation benefits at 17% are $5,357.93.
109. In relation to domestic assistance Dr Le Leu said that if the plaintiff lived alone she would need about two hours a week of assistance for the heavier household tasks such as vacuuming and carrying out baskets of washing.
110. Dr Dias said the plaintiff did not require any gratuitous or commercial domestic assistance or personal care assistance. However his view must be seen against the background that the question he was asked related to the present time and his answer confirms this precondition (Question 10 at page 20 of his report).
111. Mr Woolley assessed both past and future levels of domestic care assistance. I have some difficulty with his recommendations for past assistance because the task that I have is to assess the actual hours that were devoted to such assistance rather than the hours that were medically required. Although his recommendations are not overly excessive, they do not necessarily correlate with the evidence that I heard from the plaintiff and her mother.
112. In relation to the future, Mr Woolley proposed commercial assistance of 10.5 hours per
week, but from age 50. This was to cater for his ‘best guess’ as to when the plaintiff’s
continuing deterioration would reach a stage where she had a very limited capacity to
carry out her domestic tasks. I understand Mr Woolley’s approach, because the future
is unpredictable, however I do not agree with his level of suggested care.
113. Mr Woolley proposed a long list of requirements for future care, most of which were disputed by Ms Colyer, the occupational therapist retained by the defendant. It was put to Mr Woolley that one of his recommendations, for a Therapod Classic recliner chair, was a recommendation made in every one of his reports. Not surprisingly this bold suggestion was not substantiated.
114. For a person with painful and worsening ankles I think the assistance of a recliner chair with foot support is a perfectly reasonable medical suggestion. This is why I included $3000 in future medical expenses although I have not allowed for any replacement costs.
115. Ms Colyer did not see much need for present or future assistance. Her opinion seems to have been influenced by her drift into a psychological assessment. She said:
Her participation in domestic activities is limited by her pain belief’s (sic) and her mother’s
concerns for her wellbeing.
116. There is an air about Mr Woolley’s assessment that suggests provision for the future is made on a ‘Rolls-Royce’ basis. The plaintiff is however only entitled to compensation
for her reasonable needs. This does not mean I prefer the opinion of Ms Colyer, who I think has somewhat understated the reasonable needs of the plaintiff. The answer is somewhere between the two opinions.
117. Returning to the past, the defendants submitted that the plaintiff’s mother’s assistance
should be classified as “the reaction of a loving and caring mother”. This description
may have represented Mrs Benning’s motivation but it does not necessarily follow that
the assistance provided was not compensable. Mrs Benning and her son, in particular when the plaintiff came home from her initial period in hospital and then later after the left ankle surgery, provided genuine assistance with basic needs like showering, toileting and feeding. In addition Mrs Benning took over some domestic tasks the plaintiff had previously done such as some of the washing and a good deal of basic
house work, in particular in the plaintiff’s part of the house.
118. The one area where I agree with the defendants concerns the care of the plaintiff’s
motor vehicle. I think this was mostly previously done by her father and his continued participation is not compensable. As already mentioned, it is difficult to find precise periods of assistance arising from the evidence. However I think that a fair approach is to allow 20 hours per week for 3 weeks (when Mrs Benning was off work) followed by 10 hours per week for 12 weeks. Next I allow 5 hours per week until the left ankle surgery on 11 May 2017, followed by 8 hours per week for 4 weeks. From then until the present I allow 1 hour per week.
119. The plaintiff has claimed domestic assistance at $45 per hour. The defendants did not demur from this figure nor did they suggest any alternative rate. I will use this rate. The calculation is as follows:
Start End Hours per Weeks Rate Total week
08/02/2014 01/03/2014 20 3 $45 $2,700 02/03/2014 24/05/2014 10 12 $45 $5,400 25/05/2014 11/05/2017 5 155 $45 $34,875 12/05/2017 09/06/2017 8 4 $45 $1,440 10/06/2017 09/03/2021 1 196 $45 $8,820 $53,235 120. For the future the plaintiff has claimed three hours per week to age 75. The defendant suggested $10,000 by way of a buffer primarily because of the possibility of continuing
degenerative changes in the plaintiff’s ankles.
121. The plaintiff’s claim for past domestic assistance ended at two hours per week to the
present time. I cannot see the basis upon which it should instantly increase to three hours per week. I also note the plaintiff is about to move out and live with her boyfriend. There will be less need for her to carry out tasks in the larger house that she now occupies with her parents. I think there will be times when the plaintiff may not need any domestic assistance, but also times when there will be a fairly substantial need. I intend to average future domestic assistance at 1.5 hours per week to age 75. On the 3% tables the calculation is 1.5 x 45 x 1298.5 = 87,648.75.
122. A summary of the damages I have allowed is as follows:
General Damages $160,000.00
Interest on General Damages $8,000.00
Past medical expenses $51,964.75
Interest on unpaid past medical expenses $206.00
Future medical expenses $28,000.00 Past economic loss $25,000.00
Past lost superannuation benefits $3,750.00 Interest on past economic loss $3,750.00
Future economic loss $31,517.26
Future lost superannuation benefits $5,357.93
Past domestic assistance $53,235.00 Future domestic assistance $87,648.75
Total $458,429.69 123. The above total must be reduced to reflect my findings on contributory negligence. $458,429.69 less 35% is $297,979.30.
Orders
124. I make the following orders:
(i) Judgment for the plaintiff in the sum of $297,979.30. (ii) The defendant is to pay the plaintiff’s costs of the proceedings. (iii) I will hear the parties if any different costs orders are sought. I certify that the preceding one hundred and twenty- four [124] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.
Associate:
Date: 11 March 2021
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